Opinion
No. CR-16-01460-TUC-JGZ (LCK)
03-14-2017
United States of America, Plaintiff, v. Orlando Antonio Rivas, Defendant.
REPORT AND RECOMMENDATION
Pending before the Court is Defendant Rivas's Motion to Suppress. (Doc. 37.) The government responded in opposition. (Doc. 39.) These matters came before the Court for a hearing and a report and recommendation as a result of a referral, pursuant to LRCrim 57.6. Evidence and argument were heard on February 27, 2017. (Doc. 40.) This matter was submitted following oral argument at the conclusion of the hearing.
Defendant alleges there was not reasonable suspicion to stop his vehicle; therefore, the evidence obtained as a result of the seizure should be suppressed. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motion to suppress.
I. FACTUAL BACKGROUND
Border Patrol Agent Martin Ramirez has been with the agency for over 11 years, all of which he has spent in the Sonoita sector of Arizona. (RT 2/27/17 at 8.) He is currently assigned to the Alien Smuggling Interdiction and Deterrence Team. (Id.) When he's not needed at the station to conduct interviews or complete paperwork, he usually conducts a stationary patrol. (Id. at 9-10.) He selects locations where the traffic is slow and he has a good vantage point to assess the type of vehicle, and the occupants and their actions. (Id. at 10.) Agent Ramirez is aware that smugglers often use older model sedans (when using a newer vehicle they are often rentals). (Id. at 11-12.) State Route 82 to State Route 83 is a "very, very common" route for smuggling (id. at 19) although there are more direct routes from the border to Tucson (id. at 63). From personal experience and from his interviews with people that smuggle aliens, Agent Ramirez learned that smugglers like to use SR 83 to Tucson because the checkpoint on that road closes during inclement weather. (Id. at 11-12, 22-23.) On June 29, 2016, it was cloudy with intermittent thunderstorms and the SR 83 checkpoint was closed. (Id. at 22, 47.) Smuggling organizations are aware that the checkpoint closes during rain, and smugglers often will send a clean vehicle through the checkpoint to determine if it's operational. (Id. at 64-66, 67.)
"RT" refers to the Reporter's Transcripts of the February 27, 2017 hearing. (Doc. 44.) --------
Around 11 a.m., Agent Ramirez set up a stationary patrol on the north side of Patagonia, at mile marker 21 on the east side of SR 82, which is one lane in each direction. (Id. at 12, 14, 16, 22; Ex. 2.) He likes this spot because it is just before the speed limit changes from 35 to 55 miles per hour so he has a good view of the vehicles passing, and it is a "choke point" for vehicles coming from the border towns of Nogales and Lochiel. (Id. at 15-16.) He noted there had been a recent increase of smuggling out of those areas. (Id. at 16.) From his location, he could follow a vehicle to SR 83 to see which direction it went. (Id.) Agent Ramirez was driving an unmarked white Dodge truck and wearing plain clothes with an armored green Border Patrol vest with a yellow embroidered badge. (Id. at 29-30, 46.)
That day, Agent Ramirez observed a green Nissan Titan truck, with two females in it, followed closely "in tandem" by a blue-over-gray sedan, occupied by one male driver. (Id. at 23, 61.) The vehicles were headed east on SR 82 away from the border. (Id. at 23.) The sedan appeared to be driving very close to the green truck, which Agent Ramirez believed to be unsafe with the wet roads and rain coming down. (Id. at 24.) The close driving was suspicious to the agent because smugglers will use a "scout" or "heat" vehicle to lead them to their destination. (Id.) The lead scout vehicle will escort as well as act as a decoy and distract law enforcement. (Id. at 25.) The vehicles will not necessarily stay together at all times but may sometimes separate. (Id.) Agent Ramirez was familiar with local traffic but did not recognize either vehicle or the occupants. (Id. at 25-26.) The driver of the sedan was gripping the steering wheel and staring straight ahead. (Id. at 26.)
Agent Ramirez pulled into traffic behind a semi-truck; after he passed the semi-truck he could see the green truck and sedan traveling close together approximately one-half mile ahead of him. (Id. at 27.) He accelerated to catch up, at which point the green truck abruptly passed several vehicles. (Id. at 28.) This made him suspicious because scout vehicles sometimes try to draw attention from a contraband vehicle or Agent Ramirez thought it might be trying to distance itself from the sedan. (Id.) Agent Ramirez lost sight of the green truck at that point. (Id. at 30.) The driver of the sedan continued to grip the wheel and focused on the agent in the rear-view mirror. (Id. at 29.) Additionally, the sedan crossed the double-yellow several times and his speed dropped to 50 miles per hour or slower. (Id.) The vehicle was a 2002 Hyundai registered out of Tucson. (Id. at 29, 63.) Agent Ramirez observed that the rear end of the sedan was bouncing more than normal, which led him to believe there might be something heavy in the trunk. (Id. at 31-32.) He passed the sedan to get a look inside and observed nothing large in the back seat that would explain the bouncing motion. (Id. at 32.) While passing, Agent Ramirez noticed the rear fender was close to the back tire. (Id. at 33.) All of this information led Agent Ramirez to conclude that it was possible something was being concealed in the trunk. (Id.)
Agent Ramirez remained in front of the sedan for approximately five miles. (Id. at 34.) He then pulled off at a rest area outside of Sonoita, to observe the sedan pass by again. (Id.) While passing him, the driver of the sedan turned and stared at the agent while continuing to grip the wheel. (Id. at 35.) Agent Ramirez pulled back onto SR 82 behind the sedan. (Id.) At that point, he noticed the green truck was again in front of the sedan at a very close distance. (Id. at 36, 43.) Close together, the vehicles both turned onto SR 83. (Id. at 36.) Because the green truck and the blue sedan met back up and turned together, Agent Ramirez believed they were travelling together. (Id.)
Four to five minutes after turning north onto SR 83, at mile marker 34.5, Agent Ramirez initiated his lights and siren and the sedan stopped. (Id. at 36-37.) The driver was identified as Defendant Orlando Rivas, and a female of approximately 100 pounds was found inside the trunk. (Id. at 37-38, 55.) Agent Ramirez followed the sedan for approximately 15 miles total, which lasted about 20 to 25 minutes. (Id. at 40.)
After turning onto SR 83 and up through the time of the stop, Agent Ramirez ceased observing the green truck because he was focused on the sedan. (Id. at 38, 44, 75-76.) However, while speaking to the driver of the sedan on the side of the road, Agent Ramirez observed the green truck coming up from behind the stop and pass by, again heading north. (Id. at 38-39, 76.) Between the time the truck turned onto SR 83 in front of the sedan and the time Agent Ramirez pulled over the sedan, he does not know what the truck was doing. (Id. at 62, 76.) At the request of Agent Ramirez, the green truck was pulled over by another agent but the agent making that stop "cleared" the women in the truck. (Id. at 57-58.) Agent Ramirez continued to believe the green truck was involved with the blue sedan but he does not know for certain. (Id. at 58, 66-67.)
II. DISCUSSION
Defendant seeks to suppress all evidence seized by the government as a result of what he alleges was an unlawful stop. The government responds that the stop was supported by reasonable suspicion.
The Fourth Amendment's prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle. See United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). Therefore, an officer must have a "reasonable suspicion" that criminal activity may be afoot to stop a motorist. United States v. Diaz-Juarez, 299 F.3d 1138, 1141 (9th Cir. 2002). When the Court makes reasonable-suspicion determinations, it must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for his or her suspicions about criminal activity. United States v. Arvizu, 534 U.S. 266, 273 (2002).
The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each ofwhich must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person.
. . . .
United States v. Cortez, 449 U.S. 411, 418 (1981).
The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.
Hence, an investigatory stop must be based on facts, not the "mere subjective impressions of a particular officer," United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989), and the inferences drawn by the officer must be objective and reasonable, Cortez, 449 U.S. at 418. Under these circumstances, an officer may draw inferences from, and deductions about, the cumulative information based on experience and specialized training, which "might well elude an untrained person." Id.; see also Ornelas v. United States, 517 U.S. 690, 699 (1996) (reviewing court must give "due weight" to factual inferences drawn by local law enforcement officers).
In the context of stops made near a border, the Supreme Court has identified a non-exclusive set of factors that may be considered in determining whether reasonable suspicion exists: (1) characteristics of the area in which the car is traveling; (2) proximity to the border; (3) usual traffic patterns on the road; (4) prior experience with alien traffic; (5) recent illegal border crossings in the area; (6) erratic or evasive driving behavior; (7) vehicle characteristics; and (8) the behavior or appearance of persons in the car. Brignoni-Ponce, 422 U.S. at 884-85.
The Court finds that Agent Ramirez's observations were grounded in objectively identifiable facts, and the totality of the circumstances—his observations combined with his knowledge of the area—make clear that the agent had reasonable suspicion.
When Agent Ramirez began following the sedan it was only 21miles from the border. See United States v. Manzo-Jurado, 457 F.3d 928, 936 (9th Cir. 2006) (internal quotations omitted) ("Proximity to the border may be considered as a factor in the reasonable suspicion calculus.") (quoting Diaz-Juarez, 299 F.3d at 1142); Brignoni-Ponce, 422 U.S. at 884. State Route 82 to SR 83 is known to Agent Ramirez as a drug and alien smuggling corridor. See United States v. Palos-Marquez, 591 F.3d 1272, 1277 (9th Cir. 2010) ("the notoriety of a road as an alien smuggling route has long been held by numerous courts, including the Supreme Court, as a relevant factor supporting reasonable suspicion"). Additionally, he is aware that smugglers like to use SR 83 to reach Tucson during inclement weather because the checkpoint often closes; on the day he stopped the sedan it was rainy and the checkpoint was closed. See Cortez, 449 U.S. at 418 ("Consideration of the modes or patterns of operation of certain kinds of lawbreakers" is permitted as part of the reasonable suspicion analysis); United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997) (considering intent to avoid checkpoint as factor to support reasonable suspicion). Further, the car was an older model sedan, which Agent Ramirez knew was the type of car often used by smugglers.
When Agent Ramirez first observed the sedan it was driving very close to a green truck, and the agent considered the close distance unsafe for the wet road conditions. Although familiar with local traffic after 11 years assigned to that area, Agent Ramirez did not recognize the car or the truck. See United States v. Medina-Gasca, 739 F.2d 1451, 1453 (9th Cir. 1984) (including as a factor in reasonable suspicion that agents determined the vehicles were not local). The agent was aware that smugglers will often drive in tandem to look out for, or distract, law enforcement. Soon after Agent Ramirez pulled close to the sedan, the truck passed several vehicles. The agent believed this may have been intended to distract his attention away from the sedan. Shortly before the turn-off to SR 83, the truck reappeared in front of the sedan and, again following closely, both vehicles turned onto SR 83. The reappearance of the truck directly and closely in front of the sedan, led the agent to believe the vehicles were associated and travelling in tandem. See United States v. Montero-Camargo, 208 F.3d 1122, 1139 (9th Cir. 2000) (finding tandem driving may be indicative of smuggling activity when considered with other circumstances). Even if Agent Ramirez ultimately was mistaken about the tandem driving, his belief was reasonable and he had no knowledge of a mistake when he stopped the car; therefore, it can form the basis for reasonable suspicion. See United States v. Garcia-Acuna, 175 F.3d 1143, 1147 (9th Cir. 1999).
Agent Ramirez observed that the sedan was bouncing and the fender was close to the tire. Both of these facts suggested to the agent that something was weighing down the rear of the vehicle. After passing the sedan, Agent Ramirez noted nothing heavy was in the back seat of the vehicle, leading him to believe there might be something heavy in the trunk. That a vehicle appears to be heavily loaded or "riding low" can be considered in evaluating reasonable suspicion for a stop near the border. See Medina-Gasca, 739 F.2d at 1453; Brignoni-Ponce, 422 U.S. at 884 (aspects of the vehicle itself may justify suspicion).
Finally, Agent Ramirez considered the driver's grip on the wheel and reaction to his presence. Initially, the driver stared straight ahead; when Agent Ramirez was behind him, the driver was preoccupied with looking in the rear-view mirror; and, when the agent pulled off to the side of the road, the driver stared at the agent as he drove by him. Although not weighty, the Court considers these observations within the totality of circumstances. See Montero-Camargo, 208 F.3d at 1135-36 (allowing lack of eye contact to be considered depending upon the circumstances but finding it of low value). Additionally, when Agent Ramirez was following the sedan, the driver slowed below the speed limit and drifted across the yellow line several times.
Keeping in mind that border patrol agents, not courts, are trained to detect smugglers, and "[t]he facts are to be interpreted in light of a trained officer's experience," United States v. Michael R., 90 F.3d 340, 346 (9th Cir. 1996), the facts presented here support the conclusion that Agent Ramirez acted with reasonable suspicion when he stopped the vehicle.
III. RECOMMENDATION
It is recommended that, after its independent review of the record, the District Court deny Defendant's Motion to Suppress (Doc. 37).
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.
Dated this 14th day of March, 2017.
/s/_________
Honorable Lynnette C. Kimmins
United States Magistrate Judge