Opinion
CR-23-00616-001-TUC-JAS (BGM)
10-24-2023
United States of America, Plaintiff, v. Johnathon Clint Stemann, Defendant.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald, United States Magistrate Judge
Before the Court is Defendant Johnathon Clint Stemann's Motion to Suppress (Illegal Stop/Search). (Doc. 30.) Under LRCrim 5.1, this matter was assigned to Magistrate Judge Bruce G. Macdonald for an evidentiary hearing and a report and recommendation. After reviewing the briefs and evidence in this case, the Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion to suppress and suppress any evidence obtained from the unlawful search of Defendant's vehicle.
FACTUAL FINDINGS
On April 4, 2023, United States Border Patrol Agents Dakota Araujo and Wyatt Giroux were stationed at the Highway 191 Border Patrol Immigration Checkpoint, which is located at the intersection of Rucker Canyon Road and Highway 191 at mile marker 30. (Doc. 45 at 8:8-18; 50:15-19.) Highway 191 is the main highway that travels from Douglas, Arizona, to Interstate 10. (Id. at 8:14-15.) Close to the checkpoint are multiple dirt roads on which the Border Patrol has installed remote cameras. (Id. at 10:5-11.) The cameras have been strategically placed on these roads because alien smugglers commonly use the roads to circumvent the Border Patrol checkpoint. (Id. at 10:7-9.)
At approximately 2:00 a.m., Agents Araujo and Giroux received a notification from the Tactical Operations Center at the Wilcox Border Patrol Station that one of the agency's remote cameras had activated in response to a small pickup truck traveling eastbound on Rucker Canyon Road. (Doc. 45 at 9:21-10:4; 11:1-3; 50:25-51:3.) At 2:15 a.m., the Agents were notified that the same vehicle had activated a different surveillance camera on North Sweetwater Trail, which is east of Highway 191. (Id. at 52:2-6.) Sweetwater Trail is a dirt road that travels north from Rucker Canyon Road and leads to multiple small dirt roads that eventually intersect with Highway 191. (Id. at 52:25-53:4.) The dirt roads are adjacent to Highway 191, are unpaved, and have no streetlighting or access to stores. (Id. at 11:2124; see also Pl.'s Exs. 2-4.) The roads intersect Highway 191 approximately four miles north of the Border Patrol Checkpoint. (Id. at 12:17-20.)
The dirt roads are mainly traveled by local ranchers and farmers during the day when they are out working the fields. (Id. at 53:20-24.) Thus, the vehicles that are normally found on the roads include agricultural vehicles, one-ton trucks, diesel vehicles, and newer vehicles. (Id. at 9:9-14.) It is rare for any vehicles to show up on the roads until 4:00 or 4:30 in the morning. (Id. at 8:21-9:6; 11:4-5.) The cars that typically travel the roads at 2:00 a.m. belong to alien smugglers. (Id. at 11:19-20.)
Twenty-seven minutes after receiving the first remote camera notification, Agents Araujo and Giroux observed the small pickup truck in question pass them at Mustang Mall, traveling northbound on Highway 191. (Id. at 12:22-24; 54:5-7.) It was the only vehicle on the road at the time, and the Agents noticed that it appeared weighed down in the rear. (Id. at 15:14-19; 54:9-10.) The Agents immediately began following the truck, with Agent Araujo taking the lead. (Id. at 15:23-25; 54:8-12.) Once behind the truck, Araujo noticed that it had a temporary license plate even though the truck was an older model. (Id. at 15:25-16:8.) Araujo observed only one occupant, the driver, and that the truck slowed down once their Border Patrol vehicles got behind it. (Id. at 17:2-4.)
Mustang Mall is a convenience store and gas station that operates between 7:00 a.m. and 7:00 p.m. (Doc. 45 at 51:9-11; see also Pl.'s Exs. 18-19.)
Finding the aforementioned facts suspicious, Araujo ran a registration check on the vehicle, and the truck came back registered out of Sierra Vista, Arizona, which is a city located approximately fifty miles southwest from the tuck's location at the time. (Id. at 16:12-21.) Notably, the truck was not registered to any of the residences located near the dirt roads. (Id. at 16:17-19.) Araujo then activated his lights and siren and stopped the truck at miler marker 41 on Highway 191. (Id. at 22:8-10; 24:23-25:1.) Agent Giroux also stopped and parked next to Araujo. (Id. at 54:23-25.)
Body camera footage obtained from the Agents captured the traffic stop, and subsequent search, as they happened. (See Pl.'s Exs. 5-6.) After stopping the vehicle, Agent Araujo approached the pickup truck on the driver's side and observed that Defendant was the only occupant in the cab. (Ex. 5 at 1:50-2:20.) Araujo instructed Defendant to put the vehicle in park, and Defendant complied. (Ex. 6 at 1:59-2:05.) Araujo then asked for Defendant's identification and whether there were any guns in the vehicle. (Ex. 5 at 2:08-2:11.) Araujo also inquired whether there was anyone else in the vehicle, to which Defendant replied, “Not that I'm aware of.” (Id. at 2:19-2:21.)
This citation is written in a minute:second format, i.e., the incident occurred between one minute, fifty seconds and two minutes, twenty seconds after recording began.
While Araujo was questioning Defendant, Agent Giroux proceeded to the back of the pickup truck, lifted the tarp covering the truck bed with his left hand, shined the flashlight that he was holding with his right hand, peered inside, and noticed individuals hidden in the bed. (Ex. 6 at 2:11-2:20.) The footage demonstrates that Giroux lifted the tarp after Agent Araujo asked Defendant for his identification, but before Araujo asked Defendant whether there were any other individuals in the vehicle with him. (Id. at 2:122:23.) The time lapse between Giroux exiting his vehicle and lifting the tarp was approximately twenty-six seconds. (Id. at 1:53-2:19.)
The Court declines to credit Agent's Giroux's hearing testimony that he used his flashlight to peer through a small opening in the tarp before he manipulated it, as the video footage directly contradicts his recollection of the event.
After lifting the tarp and peering into the truck bed, Agent Giroux gave a nonverbal head nod to Araujo that there were suspected aliens hidden in the vehicle. (Ex. 5 at 2:162:17.) Araujo then went to the back of the truck, lifted the tarp, and shined his light into the truck bed, presumably noticing the hidden individuals as well. (Id. at 2:46-2:54.) Araujo called out to the hidden individuals and determined that they spoke Spanish. (Id. at 3:39-3:49.) Araujo then unfastened the tarp and opened the rear gate, revealing four adult men laying huddled together in the truck bed. (Id. at 5:32-6:18.)
Defendant was subsequently arrested and later indicted by grand jury for conspiracy to transport illegal aliens for profit and transportation of illegal aliens for profit. (Doc. 17.) On June 23, 2023, Defendant filed his motion to suppress. (Doc. 30.) On July 7, 2023, the Government filed its response (Doc. 35); and on July 13, 2023, Defendant filed his reply (Doc. 36). On August 17, 2023, the Court held an evidentiary hearing on Defendant's suppression motion. (Doc. 37.) This Report and Recommendation follows.
LEGAL STANDARD
The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV. This protection extends “to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002). Agents on roving border patrols may conduct brief investigatory stops if the stop is supported by “reasonable suspicion to believe that criminal activity may be afoot.” United States v. Raygoza-Garcia, 902 F.3d 994, 999 (9th Cir. 2018). To conduct a warrantless vehicle search, however, an officer must have probable cause to believe that the vehicle is carrying contraband. California v. Acevedo, 500 U.S. 565, 580 (1991).
Reasonable Suspicion
Reasonable suspicion requires “specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.” United States v. Thomas, 211 F.3d 1186, 1189 (9th Cir. 2000) (cleaned up). In determining whether reasonable suspicion exists, a court must consider the totality of the circumstances at the time of the stop. United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013). In making this determination, the court may view some factors as more probative than others, but it cannot decline to give weight to factors which may have an innocent explanation because individual instances of innocuous conduct, when viewed collectively, may warrant additional exploration. Arvizu, 534 U.S. at 272. Factors considered in determining whether reasonable suspicion exists to justify a Border Patrol traffic stop include: (i) characteristics of the area; (ii) proximity to the border; (iii) usual patterns of traffic and time of day; (iv) previous alien smuggling in the area; (v) behavior of the driver; (vi) appearance or behavior of passengers; (vii) model and appearance of the vehicle; and (viii) officer experience. United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997). The reasonable suspicion standard is not a high threshold to reach-it is lower than the level required for probable cause. Valdes-Vega, 738 F.3d at 1078.
Probable Cause
A police officer has probable cause to conduct a search when “the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.” Florida v. Harris, 568 U.S. 237, 243 (2013) (cleaned up). To determine whether an officer has probable cause to search a vehicle, courts are instructed to examine the events leading up to the search, and then decide whether the historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. Maryland v. Pringle, 540 U.S. 366, 371 (2003). The test for probable cause is not reducible to a precise definition, and courts evaluating whether the standard has been met are instructed to look to the totality of the circumstances. Harris, 568 U.S. at 244-45. Reasonable suspicion “may ripen into probable cause” through after-the-stop facts and incidents. United States v. Avalos-Ochoa, 557 F.2d 1299, 1303 (9th Cir. 1977).
DISCUSSION
Defendant brings the suppression motion at hand arguing that Border Patrol agents lacked the requisite levels of reasonable suspicion and probable cause to stop and search his vehicle. (Doc. 30 at 4-15.) The Government argues that the totality of the circumstances supports findings that reasonable suspicion existed to stop the vehicle and that probable cause existed to search it. (Doc. 35 at 4-8.) The Court concludes that while agents had reasonable suspicion to stop Defendant's truck, they failed to have sufficient facts to believe that contraband or evidence of a crime was hidden within it. As such, the agents lacked probable cause to conduct a warrantless search of Defendant's vehicle. To arrive at these conclusions, the Court addresses the parties' arguments in turn.
I. Reasonable Suspicion Supported
The parties disagree whether, under a totality of the circumstances, Agents Araujo and Giroux had reasonable suspicion to stop Defendant's vehicle. Defendant claims that his vehicle was “stopped unlawfully[,] as there was no reasonable suspicion to believe that [he] was involved in criminal activity.” (Doc. 30 at 4.) The Government argues that Agent Araujo had reasonable suspicion to stop Defendant's vehicle based on the totality of the circumstances, which is comprised of a number of factors that contributed to his belief that criminal activity may be afoot. (Doc. 35 at 4-5.) These factors include the fact that: (i) Defendant activated two separate sensors on dirt roads that are generally used for alien smuggling at the time that Defendant was pulled over; (ii) Defendant was driving a small, older model pickup truck with a temporary license plate, which was registered in Sierra Vista, Arizona; (iii) Defendant's truck was inconsistent with the usual type of agricultural vehicle or larger pickup truck that normally travels the dirt roads in question; (iv) Defendant drove onto Highway 191 north of the checkpoint just as anticipated if he was smuggling aliens rather than performing farmwork at 2:00 in the morning; (v) Defendant slowed down after agents began following him; and (vi) Defendant's truck appeared to be weighed down despite containing only one visible occupant. (Id. at 4-6.) The Court addresses these factors individually and then collectively to determine whether agents had reasonable suspicion and probable cause to stop and search Defendant's vehicle.
A. Characteristics of the Area
Agent Araujo stopped Defendant after his pickup truck had been detected driving on dirt roads known for their high level of alien smuggling activity. (Doc. 45 at 10:5-9; 14:11-13.) The Agents were aware that drivers who engaged in alien smuggling used the dirt roads to circumvent the nearby Border Patrol checkpoint. (Id. at 48:16-20.) The dirt roads were not in heavily populated areas, and the roads were otherwise primarily used for agricultural purposes during the day and not often traveled during the middle of the night. (Id. at 8:21-14:13.) While law enforcement awareness that a particular route or location is predominantly used for illegal purposes is strong support for reasonable suspicion, United States v. Manzo-Jurado, 457 F.3d 928, 936 (9th Cir. 2006), reasonable suspicion cannot be derived where the underlying factors depict a large category of presumably innocent travelers, United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1127 (9th Cir. 2002).
Here, Border Patrol agents knew that the dirt roads on which Defendant was traveling were frequently used for alien smuggling. In addition to remote surveillance cameras having been installed on the roads, over a six-day period (from March 21, 2023, to March 26, 2023), the agency had eleven encounters with human smugglers along dirt roads adjacent to Highway 191. (Doc. 45 at 53:15-19.) Defendant's truck was detected traveling these same roadways, which lacked infrastructure and lighting, even though Highway 191 was nearby and is much easier to navigate. Additionally, the roads on which Defendant was traveling are not in high traffic areas; traffic on the roads occurs primarily during the day; and the vehicles that travel these roads are typically larger pickup trucks and agricultural vehicles. Lastly, the Court declines to find that Defendant's vehicle belongs to a large category of presumably innocent drivers, as such drivers are typically not engaged in offroad exploration fifty miles from the cities in which they are registered. All of these factors weigh heavily in favor of a reasonable suspicion determination.
B. Vehicle Characteristics
It is uncontested that Defendant's small pickup truck is an older model vehicle that has a temporary license plate. Both Agents observed that the truck appeared to be weighed down even though there was only one visible occupant-the driver. The Government argues that Defendant's truck is inconsistent with the types of vehicles that would normally be expected to be driving on dirt roads, e.g., dump trucks, agricultural vehicles, and larger pickup trucks. (Doc. 35 at 5.) Defendant argues that the large toolbox attached to the back of his truck demonstrates that the truck was used for work purposes. (Doc. 30 at 8.) While it may be true that larger trucks are more commonly used for agricultural purposes, it is not inconceivable that a small pickup truck could also serve agricultural ends, particularly one with a large toolbox in the back. Thus, the size of the truck, alone, carries no significant weight in this analysis.
However, courts in this District have noted that older vehicles with temporary license plates are known to rouse officers' suspicion for alien smuggling activity. See e.g., United States v. Robinson, No. CR-19-2298 JAS (LCK), 2019 WL 6684196, at *1 (D. Ariz. Nov. 13, 2019), report and recommendation adopted, No. CR 19-2298-TUC-JAS (LCK), 2019 WL 6682397 (D. Ariz. Dec. 6, 2019) (reiterating trooper testimony that “a common trend for alien smuggling is the use of older model vehicles with temporary tags or newer plates”). Courts in this District have also concluded that a vehicle's appearance of being “weighed down” can support a reasonable suspicion determination. See, e.g., United States v. Purita, No. CR08-1195-TUC-CKJ, 2009 WL 981083, at *3 (D. Ariz. Apr. 9, 2009), affd, 442 Fed.Appx. 351 (9th Cir. 2011) (crediting the observation that “the vehicle appeared weighted down despite the appearance of only a driver and two passengers,” in ruling there was reasonable suspicion to stop the vehicle). Accordingly, the specific characteristics of Defendant's pickup truck-an older truck with a temporary license plate that appeared to be weighed down-weigh in favor of finding reasonable suspicion to conduct the stop.
C. Driver Behavior
Agent Araujo testified that Defendant began to slow down once the Agents began following him. Defendant argues that reducing his speed in response to the presence of law enforcement was not suspicious behavior, and he cites United States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir. 1989), to support his argument. (Doc. 30 at 10.)
In Hernandez-Alvarado, the United States Court of Appeals for the Ninth Circuit ruled that a defendant's 10 mph reduction in speed in response to a police car failed to support reasonable suspicion to initiate a stop. 891 F.2d at 1419. The court reasoned that it was common for law-abiding drivers to slow down when being followed by a law enforcement vehicle. Id. This was not the only time that the Ninth Circuit made this observation. See e.g., United States v. Garcia-Camacho, 53 F.3d 244, 247 (9th Cir. 1995) (ruling that it is “perfectly consistent with innocent driving that a driver might slow down near a Border Patrol car”).
The evidence in the record indicates that Defendant slowed down when Border Patrol agents started following him, but this was arguably innocent behavior. Agent Araujo conceded that Defendant's pickup truck may have been traveling up an incline when the officers pulled behind him, which could also account for Defendant's reduction in speed. (Doc. 45 at 32:6-8.) Accordingly, the fact that Defendant's vehicle slowed when agents began following it fails to provide significant weight for a reasonable suspicion finding.
D. Totality of Circumstances
While none of the aforementioned factors, standing alone, supports reasonable suspicion to stop Defendant's vehicle, when viewed under the totality of the circumstances, the characteristics of the area-including the fact that the dirt roads upon which Defendant was traveling are frequently used by alien smugglers at 2:00 in the morning, and vehicle characteristics-Defendant was driving an older pickup truck with a temporary license plate that appeared to be weighed down, constitute “specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.” Thomas, 211 F.3d at 1189 (cleaned up). Therefore, the Court concludes that there was reasonable suspicion to stop Defendant's vehicle, and agents did not violate his Fourth Amendment rights when the stop was made.
II. No Probable Cause to Conduct Search
While the Court concludes that there was reasonable suspicion to stop Defendant's vehicle, it also concludes that agents lacked probable cause to conduct a warrantless search of Defendant's truck. The Government argues that the Border Patrol had probable cause to search Defendant's truck because Agent Giroux's “use[ of] his flashlight to look underneath the tarp does not constitute a search.” (Doc. 35 at 7.) The Government cites United States v. Lake, 611 Fed.Appx. 390 (9th Cir. 2015), to support its proposition. (Id.) It also argues that Giroux's subsequent visualization of individuals under the tarp constituted probable cause to search the truck. (Id.) Defendant argues that this case is distinct from the plain view observations addressed in Lake and that the video footage in evidence demonstrates that Agent Giroux was not being forthcoming when he testified that he first used his flashlight to search Defendant's vehicle. (Doc. 36 at 1-3.)
The Court agrees that the Government's version of events is contradicted by the evidence in the record, and it reasserts that it declines to credit Agent Giroux's in-person testimony that he used his flashlight to search Defendant's truck bed before lifting the tarp. The Court also concludes that the fact scenario outlined in Lake is inapposite to the situation at hand and that the decision itself is non-binding.
Non-binding memorandum dispositions like Lake are “not precedent, except under the doctrine of law of the case or rules of claim preclusion.” Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th Cir. 2020) (quoting 9th Cir. R. 36-3(a)).
In United States v. Lake, a panel of the Ninth Circuit concluded that an officer did not conduct a search when he was lawfully near the defendant's vehicle and used a flashlight to see a handgun in plain view on the floorboard. 611 Fed.Appx. at 393. In the case at hand, however, Agent Giroux's body camera footage reveals that he lifted the truck's tarp with his hand prior to using his flashlight to peer inside the bed. This behavior is not subject to the plain view exception to the warrant requirement and undoubtedly constitutes a search. See Arizona v. Hicks, 480 U.S. 321, 325 (1987) (ruling that the “distinction between looking at a suspicious object in plain view and moving it even a few inches is much more than trivial for purposes of the Fourth Amendment . . .. A search is a search.”); Bond v. United States, 529 U.S. 334, 337 (2000) (ruling that a “[p]hysically invasive inspection is simply more intrusive than purely visual inspection.”) Accordingly, the Agents were required to establish probable cause to conduct their search of Defendant's vehicle, which they failed to do.
There is nothing in the record that indicates Agent Giroux had sufficient facts available to him which would warrant the belief that contraband or evidence of a crime was present in Defendant's truck. The factors that the Court credits to demonstrate reasonable suspicion fail to raise to the level which justifies a warrantless search. Moreover, there were no after-the-stop facts and incidents that would indicate that the officers' reasonable suspicion ripened into probable cause. Agent Araujo had only asked Defendant for his identification and whether he had any weapons in the vehicle at the time Giroux lifted the tarp. And because neither Giroux nor Araujo saw the individuals hidden in the truck bed until after Giroux physically manipulated the tarp, their presence could not provide the requisite probable cause for the agents' premature actions. See United States v. Myers, 700 F.Supp. 1358, 1362-63 (D. N. J. 1988) (finding that officers who discovered illegal contraband in a truck bed conducted an illegal search because they did not have probable cause prior to lifting a tarp revealing the contraband below).
The Court concludes that given the totality of the circumstances, Agent Araujo had reasonable suspicion to stop the Defendant. However, neither Agent had probable cause to conduct a warrantless search of his vehicle. This lack of probable cause, a warrant, or consent to search constitutes a violation of Defendant's Fourth Amendment rights.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court GRANT Defendant's Motion to Suppress (Doc. 30) and suppress any evidence obtained from the unlawful search of his vehicle.
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served a copy of this Report and Recommendation. A party may respond to the other party's objections within 14 days. No reply shall be filed unless leave is granted by the District Court. If objections are filed, the parties should use the following case number: CR-23-616-TUC-JAS.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge under Federal Rule of Criminal Procedure 59 may result in waiver of the right of review.