Opinion
CR 18-0255-TUC-JAS (JR)
09-21-2018
United States of America, Plaintiff, v. Armando Castro Bejarano, Defendant.
REPORT AND RECOMMENDATION
This matter was referred to Magistrate Judge Rateau for pretrial matters. On July 9, 2018, Defendant Armando Castro Bejarano filed a Motion to Suppress Based on Lack of Reasonable Suspicion. Doc. 23. The Government filed a Response on July, 17, 2018. Doc. 27. The defense did not file a reply. The matter was heard by the Court on September 18, 2018. Defendant was present and represented by counsel. The Government presented one witness, Border Patrol Agent Brian Horton. Doc. 42. Two Government exhibits were admitted. Doc. 43. Nine defense exhibits were admitted. Doc. 44. Having considered the matter, the Magistrate Judge recommends that Defendant's motion be denied.
Trial is scheduled for November 6, 2018, and the plea deadline is October 19, 2018. Doc. 46.
I. Findings of Fact
Border Patrol Agent Brian Horton has worked as an agent for 10 years out of the Border Patrol's Sonoita Station. On January 28, 2018, he was assigned to the Mobile Interdiction Team targeting vehicles smuggling aliens and narcotics. That day, he was in a marked unit and had stationed his vehicle at the Shell gasoline station located on the southeast corner of State Route 82 and State Route 83 and was facing the intersection and observing traffic. Def. Ex. 3 (photograph of Shell gas station marked by Agent Horton to show his location); Gov. Ex. 1 (aerial photograph of intersection). The intersection is approximately 30 miles from the international border.
Because the facts giving rise to this case were largely undisputed, the Court did not order a transcript of the September 18, 2018 evidentiary hearing. "Ex." refers to the exhibits that were admitted at the hearing. --------
As he watched the intersection, he noticed two vehicles traveling westbound on SR 82. The first vehicle was a Dodge truck with the Honda Accord following "right behind." As the vehicles pulled into the Shell station, Agent Horton noticed that the occupants of neither vehicle looked at him. The Dodge truck proceeded to park at the gas pumps and the car parked in a parking space. Believing that the cars might be traveling in tandem, Agent Horton drove past the vehicles to record and run the vehicles' license plate information. After the plate information was provided to dispatch, Agent Horton learned that the Honda had a valid registration out of Tucson that did not raise his suspicions. However, he was informed that the registration associated with the Dodge truck was what agents describe as a "pseudo registration" that included a name and a Sierra Vista address, but contained no additional identifying information such as the owner's date of birth, driver's license number, or social security number.
At about the same time, Agent Horton drove north on SR 83 and parked at a church located approximately 300 yards north of the intersection of SR 82 and SR 83. From there, using binoculars, he saw an occupant of the truck communicating with the occupants of the Honda. He then saw the truck and car pull out of the gas station at the same time. The truck proceeded northbound on SR 83 and the car went westbound on SR 82. Agent Horton was suspicious about the truck's direction of travel because it was registered in Sierra Vista and was headed toward Tucson and because the usual route from Sierra Vista to Tucson is SR 90. Agent Horton decided to follow the truck northbound on SR 83 and requested that another agent follow the Honda.
Agent Horton was informed a short time later that the Honda had made a U-turn to travel eastbound on SR 82 toward Sierra Vista. Agent Horton continued to follow approximately 1000 feet behind the truck and he contacted the Border Patrol checkpoint, located further north on SR 83, to inform them about the approaching truck and his suspicions. However, a short distance before the checkpoint location, the truck turned onto Gardner Canyon Road. The road is known for smuggling and is used by alien and drug smugglers to circumvent inspection at the SR 83 Border Patrol checkpoint. Agent Horton then activated his lights and conducted a stop of the truck. The vehicle stopped and the agent approached and asked the driver for his driver's license. The driver was identified as Defendant Castro Bejarano. Agent Horton asked for and was granted consent to search the vehicle. The initial search revealed four packages of marijuana and Agent Horton impounded the vehicle. A subsequent search resulted in the discovery of a total of 26 kilograms of marijuana in the truck.
II. Conclusions of Law
The Fourth Amendment protects a person against unreasonable searches and seizures. United States v. Hensley, 469 U.S. 221, 226 (1985). Consistent with the Fourth Amendment, police may stop persons in the absence of probable cause under limited circumstances. Terry v. Ohio, 392 U.S. 1, 88 (1968). The police may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity. Hensley, 469 U.S. at 226. Reasonable suspicion exists when an officer is aware of specific articulable facts, that, together with rational inferences drawn from them, reasonably warrant a suspicion that the person to be detained has committed or is about to commit a crime. United States v. Cortez, 449 U.S. 411, 416-18 (1981).
When assessing the reasonableness of the police officer's actions, the court must consider the totality of the circumstances which confronted the officer at the time of the stop. United States v. Sokolow, 490 U.S. 1, 8 (1989). This assessment precludes a "divide-and-conquer analysis" because even though each of a suspect's acts may be innocent in and of themselves, when taken together, they may warrant further investigation. United States v. Arvizu, 534 U.S. 266, 272 (2002). "A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct. United States v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013) (quoting Arvizu, 534 U.S. at 277).
The articulable facts forming the basis of a reasonable suspicion must be measured against an objective reasonableness standard, not by the subjective impressions of a particular officer. Gonzalez-Rivera v. I.N.S., 22 F.3d 1441, 1445 (9th Cir. 1994). An officer is however, "entitled to assess the facts in light of his experience in detecting illegal entry and smuggling." United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975). But the inferences drawn from an officer's experience must be objectively reasonable. United States v. Montero-Camargo, 208 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
In relation to stops by Border Patrol agents, the totality of circumstances may include:
(1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including obvious attempts to evade officers; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and, (8) officer experience.United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007). "Not all of these factors must be present or highly probative in every case to justify reasonable suspicion[,] . . . [a]nd the facts must be filtered through the lens of the agents' training and experience." United States v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013).
Guided by these factors the Court must determine whether the facts cited by the Government in support of the present stop constitute behavior that would excite the suspicions of a trained Border Patrol agent that criminal activity is afoot. See United States v. Rodriquez, 976 F.2d 592, 595 (9th Cir. 1992), amended by United States v. Rodriquez, 997 F.2d 1306 (9th Cir. 1993). In the Response to Defendant's motion to suppress and at the hearing, the Government contends the stop was supported by Agent Horton's experience and awareness that smuggling operations are common in the Sonoita area, the tandem driving of the Dodge truck and the Honda Accord, the "pseudo registration" of the truck, and the truck's attempt to evade the checkpoint by turning onto Gardner Canyon Road. These factors must be considered individually and collectively.
A. Characteristics of the Area, Proximity to the Border and Previous Smuggling in the Area
Law enforcement's awareness that a particular route or location is predominantly used for illegal purposes, including alien and drug smuggling, is strong support for a finding of reasonable suspicion. United States v. Manzo-Jurado, 457 F.3d 928, 936 (9th Cir. 2006); see also Arvizu, 534 U.S. at 269, 277 (finding it significant that officers found defendant on an unpaved road used primarily by ranchers and forest service employees, but commonly used by smugglers to avoid a nearby border checkpoint). However, there is nothing inherently suspicious about vehicles traveling on a public highway, see United States v. Rodriquez, 976 F.2d 592, 595 (9th Cir. 1992), and where the factors underlying the suspicion depict a very large category of presumably innocent travelers, there is no reasonable suspicion. United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1127 (9th Cir. 2002). As the Ninth Circuit has explained, "[a] location or route frequented by illegal immigrants, but also by many legal residents, is not significantly probative to an assessment of reasonable suspicion." United States Manzo-Jurado, 457 F.3d 928, 936 (9th Cir. 2006).
Here, the Government established that the location of the stop is close to the border and Agent Horton testified that the stop occurred in area known for drug trafficking and alien smuggling. He also testified that Gardner Canyon Road is used by smugglers to avoid the SR 83 checkpoint. Although the agent did not testify that the area is predominantly used by smugglers, the factors identified by the Government merit some weight in the calculus of reasonable suspicion.
B. Patterns of Traffic and Time of Day
The totality of the circumstances analysis includes a consideration of the modes or patterns of operation of certain kinds of law-breakers. Berber-Tinoco, 510 F.3d at 1088. In this case, the Government does not contend that the traffic pattern or time of day contributed to Agent Horton's suspicion. The patterns of traffic and the time of the present stop carry no weight in the totality of the circumstances analysis.
C. Behavior of the Driver and Passengers
When Agent Horton first noticed the Dodge Truck and the Honda car, he noticed that none of the occupants acknowledged his presence in any way. He testified that this sometimes happens, but is atypical of his experience when he is stationed on the side of a road. Such conduct is a factor that supports reasonable suspicion, see Brignoni-Ponce, 422 U.S. at 885 (stating that "the driver's behavior may be relevant . . . [to] support a reasonable suspicion" that criminal activity is afoot), however, in this case it merits only slight weight.
D. Tandem Driving
As Agent Horton described it, vehicles involved in smuggling activity regularly drive in tandem, with one car being the "load car" carrying aliens or narcotics, and the second car being the "scout car," which is used to draw attention away from the load car or to provide guidance. Traveling in tandem, although not sufficient on its own to establish founded suspicion, is a factor that can be considered. See United States v. Larios-Montes, 500 F.2d 941, 943-44 (9th Cir. 1974); United States v. Montero-Camargo, 208 F.3d 1122, 1139 (9th Cir. 2000) (holding that tandem driving could be given some weight in evaluation of reasonable suspicion). However, the determination that vehicles are driving in tandem must be based on more than the "briefest of observations." United States v. Robert L., 874 F.2d 701, 704 (9th Cir.1989). Where it is relied upon to support reasonable suspicion, the evidence of tandem driving must be detailed and substantial. See United States v. Medina-Gasca, 739 F.2d 1451, 1453 (9th Cir.1984) (extended observation of three vehicles traveling close together, parking together and then traveling again in tandem).
In this case, when Horton first spotted the Dodge truck and the Honda, he was in a stationary position next to the gas station. He noticed that the vehicles were traveling closely together. As Defendant contends, the vehicles were approaching the intersection where the speed limit was progressively slower and that may have caused them to "bunch up." However, Agent Horton's initial suspicion that the cars were traveling together was further supported when he witnessed the occupants of the vehicles communicating and then leaving the gas station at the same time. These additional factors, particularly the communication between the occupants of the two vehicles, supports Agent Horton's belief that the vehicles were traveling in tandem and, thus, this factor deserves some consideration in the evaluation of reasonable suspicion.
E. Characteristics of the Vehicle
The Government does not allege that anything about the truck itself supported Agent Horton's suspicion. Rather, it was the association of the truck with a "pseudo registration" that caused the agent's suspicion. Obviously, the lack of registration would itself be an articulable basis supporting reasonable suspicion to make a stop. See Delaware v. Prouse, 440 U.S. 648, 659 (1979). However, as Agent Horton explained, a "pseudo registration" is not a non-existent or illegal registration, but is a valid registration that does not include identifying information, such as the owner's date of birth, driver's license number, or social security number, that is usually included in a vehicle registration, and that could be used to readily identify the registered owner of the vehicle. Although this is the first instance in the Court's experience where the Government has relied on this factor to support reasonable suspicion, Agent Horton testified that he and other agents have come across this sort of registration and it is frequently associated with vehicles involved in criminal activity. Based on the agent's testimony, the Court will give slight weight to this factor.
F. Attempts to Evade Officers
Agent Horton was prompted to stop the truck when it turned onto Gardner Canyon Road because he believed that the driver was attempting to evade the SR 83 checkpoint that lie just ahead. This factor is properly considered in evaluating the existence of reasonable suspicion. See United States v. Arvizu, 534 U.S. 266 (2002) (officer properly took into account that defendant "had set out for [his destination] along a little-traveled route used by smugglers to avoid" the Border Patrol checkpoint); United States v. Perez, 639 Fed.App'x 428 (9th Cir. 2016) (considering intent to avoid checkpoint as factor to support reasonable suspicion); United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997) (same). If the truck's turn onto Gardner Canyon Road was not accompanied by other factors, the Court would give it little to no weight in the calculus. But the turn was not the only factor. Agent Horton, when he first saw the vehicles, believed they were traveling in tandem. He then saw the occupants of the two vehicles communicating while at the Shell gas station and, while the Court does not give great weight to this factor, he was told by dispatch that the truck's registration was not typical. When considered under the totality of the circumstances, the turn onto Gardner Canyon Road was the factor that moved the needle from "mere hunch" to reasonable suspicion. Thus, given the surrounding circumstances, the Court gives this consideration great weight in evaluating the reasonableness of the stop.
G. Totality of Circumstances
Agent Horton testified that he has been a United States Border Patrol Agent in Sonoita for 10 years. Based on his experience and training, he based his decision to stop Defendant's truck on the following factors: (1) he believed the truck was traveling in tandem with the Honda; (2) the truck was found to have a "pseudo registration;" and (3) the truck turned on Gardner Canyon Road to avoid the checkpoint. Giving due weight to each of the factual inferences, and considering them in the totality and in light of Agent Horton's 10 years of experience with the Border Patrol, the Court finds that the agent had reasonable suspicion to believe that Defendant was engaged in illegal activity. Thus, the stop comported with the Fourth Amendment.
III. Recommendation for Disposition by the District Judge
Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and Local Rule Civil 72.1, Rules of Practice of the United States District Court, District of Arizona, the Magistrate Judge recommends that the District Court, after an independent review of the record, DENY Defendant's Motion to Suppress (Doc. 23).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment in the case.
Pursuant to 28 U.S.C. §636(b)(1)(B), the parties have fourteen (14) days from the date of this Report and Recommendation to file written objections to these findings and recommendations with the District Court. Any Objections and Responses to objections filed should be filed as CR 18-0255-TUC-JAS. No Replies shall be filed unless leave is granted from the District Court.
Dated this 21st day of September, 2018.
/s/_________
Honorable Jacqueline M. Rateau
United States Magistrate Judge