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United States v. Gonzalez-Saucedo

United States District Court, Ninth Circuit

July 4, 2013

United States of America, Plaintiff,
v.
David Gonzalez-Saucedo, Defendant.

REPORT AND RECOMMENDATION

JACQUELINE M. RATEAU, Magistrate Judge.

This matter was referred to Magistrate Judge Rateau for all pretrial matters. A Motion to Suppress (Doc. 37) filed by Defendant David Gonzalez-Saucedo was heard by Magistrate Judge Rateau on June 12, 2013. Defendant Gonzalez-Saucedo was present at the hearing and was represented by counsel. The Government presented five witnesses: United States Border Patrol Agents Adam Knight, Sean King, Patrick Ford, and Alberto Ontiveros; and Department of Public Safety Officer Rob Palmer. Defendant Gonzalez-Saucedo testified on his own behalf. The witnesses were examined, cross-examined, and questioned by the Court. Having considered the matter, the Magistrate Judge submits the following Findings of Fact and Conclusions of Law and recommends that Defendant Gonzalez-Saucedo's Motion be denied.

I. Findings of Fact

Defendant Gonzalez-Saucedo has suffered from asthma, which he usually controls with an inhaler, since he was a child. (Tr. 126-127.) On the morning of August 14, 2012, Gonzalez-Saucedo, then a resident of Tucson, was in Sierra Vista when he had an asthma attack and, because he did not have his inhaler, went to the emergency room at Sierra Vista Regional Medical Center. (Tr. 127, 142.) After being at the hospital for an hour and a half and receiving a breathing treatment, he was released with an inhaler and given prednisone. (Tr. 128, Ex. 105 (medical records).)

An hour or two after leaving the hospital, Gonzalez-Saucedo met a person at a gas station near the hospital who asked him to drive a Camaro to a Dollar Store in Tucson. (Tr. 143-144.) Gonzalez-Saucedo agreed to take the Camaro and began traveling toward Tucson. (Tr. 128.)

That same day, Border Patrol Agent Adam Knight was assigned to the immigration checkpoint located on State Route 83 between Sonoita, Arizona and Interstate 10. (Tr. 7.) However, due to scattered thunderstorms and standing water on the road, the checkpoint was down and Agent Knight, who was in uniform and driving an unmarked Ford 250 Super Duty K-9 truck, stationed himself about 20 feet from the roadway at the northeast corner of the intersection of State Route 82, which is an east/west traveling road, and State Route 83, which runs north/south, in the town of Sonoita and began observing traffic. (Tr. 7-8, 10.) At the intersection, there is only a stop sign for north/south traffic. (Tr. 8.) State Routes 82 and 83 are well known to border patrol agents as trafficking routes. (Tr. 33.)

At approximately 6:15 in the evening, Agent Knight saw a red or burgundy Camaro, followed by a Dodge Ram pickup truck. (Tr. 8-9, 45.) He initially noticed the vehicles because he had seen only one vehicle every 10 or 15 minutes while he was stationed at the intersection and these vehicles were traveling in close succession. (Tr. 9.) As the Camaro approached, Agent Knight noticed that the driver was sitting awkwardly upright as if something was obstructing the seat causing it to be pushed forward. (Tr. 10, 66.) The driver was sitting very close to the steering wheel and had both of his hands at a 12 o'clock position on the wheel as he began to make a right turn onto northbound State Route 83. (Tr. 10.) As the Camaro made the turn, Agent Knight noticed the driver, after initially making eye contact, repeatedly looked back and forth between the agent and the road. (Tr. 10.)

Agent Knight's attention was then drawn to the Dodge Ram pickup following ten to twelve feet behind the Camaro. (Tr. 12.) In that vehicle, there was a male driver wearing a baseball cap and a female passenger, who looked directly at Agent Knight as they passed. (Tr. 12-13.) When she saw him, "her expression was sort of like feign shock, and then what she did is she turned to the driver and then dove into his seat, dove across his lap as he was driving." (Tr. 13.) Agent Knight believed she was "performing" and trying to get his attention. (Tr. 13.)

Based on what he saw, Agent Knight decided to follow the vehicles. He pulled out and began traveling north on State Route 83 until he caught up with the vehicles, which were traveling between 30 and 45 m.p.h. in a 55 m.p.h. zone, and pulled in behind the Ram pickup. (Tr. 13, 15-16.) Shortly after he began following the vehicles, he noticed the driver was watching him closely in his mirrors and also saw the passenger "jump out of the lap of the driver" and began fixing her hair. (Tr. 17.) After noting the license plate number of the Dodge Ram, Agent Knight attempted to pull around the pickup to and get in between it and the Camaro. (Tr. 13-14.) However, the Ram pickup was still following the Camaro at a very close distance and was swerving from the shoulder to median in an exaggerated manner that the agent likened to the behavior of a drunk driver. (Tr. 14-15.) In fact, when the agent would pull out to pass the Ram, the driver would quickly move the pickup into the oncoming lane and Agent Knight was forced to pull back and remain behind the pickup or it would remain so close to the Camaro that Agent Knight was unable to pull in between the two vehicles. (Tr. 15.)

After this happened several times over a period of six to ten minutes and a distance of eight or nine miles, Agent Knight decided to pass both vehicles. (Tr. 20.) Traveling at the posted speed limit of 55 m.p.h., Agent Knight quickly gained distance ahead of the Camaro and the Ram, and he then pulled over to the side of the road and again began observing traffic. (Tr. 21-22.) Agent Knight eventually saw the vehicles approaching, still traveling close together at approximately 35 to 40 m.p.h., and again noticed the behavior of the driver of the Camaro. This time, instead of looking at Agent Knight, the driver did not look over, but continued to look forward. (Tr. 22.) However, the driver was still sitting in an upright position and his hands were still in the awkward 12 o'clock position that Agent Knight noticed when he first spotted the Camaro making the turn onto State Route 83. (Tr. 22-23.)

As Agent Knight began to pull out to resume following the vehicles, he noticed a third vehicle, a blue Chevrolet pickup, approaching from the south and traveling at or just above the speed limit. (Tr. 23-24.) After the Chevrolet pickup passed, he pulled back out onto SR 83 and all three of the vehicles he was following began traveling at the 55 m.p.h. speed limit. (Tr. 24.) Agent Knight ran the license plate of the Chevrolet and determined it was registered out of Bisbee, Arizona. (Tr. 25.) After a few miles, the vehicles all slowed to approximately 35 m.p.h. (Tr. 25-26.) Then, after traveling through several passing zones, the Chevrolet eventually passed both the Camaro and the Ram truck and Agent Knight pulled in again behind the Dodge. (Tr. 26.) He then encountered a Cadillac Escalade parked on the side of the road with its lights on observing traffic. (Tr. 26-27.) Agent Knight noticed the Escalade because he had seen it at the SR 82/83 intersection approximately 20 minutes prior to the arrival of the Camaro and the Ram. (Tr. 27.) The Escalade pulled in behind Agent Knight and continued traveling behind him as he followed the other two vehicles northbound on SR 83. ( Id. ) Agent Knight ran a registration check on the Escalade and was told it was registered out of Huachuca City, Arizona. (Tr. 28-29.) At the next available passing zone, the Escalade passed all three of the vehicles, Agent Knight's truck, the Ram and the Camaro. (Tr. 28.)

Now again traveling behind the Ram and Camaro, Agent Knight tried to pass the Ram once more, but was prevented from doing so when the Ram moved into the oncoming lane. (Tr. 29.) Still behind the Ram, Agent Knight activated his emergency lights, which were in the front grill of his vehicle. (Tr. 29-30) The Ram yielded and, as it pulled off onto the road shoulder, Agent Knight passed and pulled in behind the Camaro. (Tr. 29-30.) He then was able to see the Camaro's license plate and ran the registration and was told that the vehicle was recently purchased and was registered out of Huachuca City, Arizona. (Tr. 30.)

The Camaro then pulled over and stopped partially off the roadway, but blocking a portion of the northbound lane of SR 83. (Tr. 30-31.) The Ram, which was now behind Agent Knight, then accelerated quickly and sped northbound on SR 83. (Tr. 31.) Agent Knight then approached the passenger side of the Camaro so he would not be in the road and in the backseat and floorboard, he noticed a black sleeping bag that was covering large rectangular objects which he believed were marijuana. (Tr. 31, 35) Agent Knight asked the driver for identification and he did not have a driver's license, but provided an Arizona identification card indicating he was David Saucedo-Gonzalez. (Tr. 33.)

Gonzalez-Saucedo testified that when he was pulled over he was feeling nauseated and was suffering from a cough and shortness of breath. However, according to Agent Knight, Gonzalez-Saucedo did not appear to be in any physical distress when he engaged him in conversation. (Tr. 132, 33.) Gonzalez-Saucedo testified that he requested medical attention and was ignored. Agent Knight, who has first responder training, did not recall such a request and did not notice any distress. (Tr. 132-133, 147, 34, 40.) Agent Knight did notice that Gonzalez-Saucedo's hands were noticeably shaking when he was manipulating his wallet to remove his identification. (Tr. 33-34.) When questioned, Gonzalez-Saucedo said he was coming from ...


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