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United States v. Gonzalez-Saucedo

United States District Court, Ninth Circuit

July 4, 2013

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


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 Sierra Vista and that the Camaro belonged to a friend by the name of Joe Dominguez. Agent Knight determined that the vehicle had never been registered to a person by that name. (Tr. 34-35.)

Agent Knight requested to see the identifying documents related to the vehicle, but Gonzalez-Saucedo was unable to produce them and was searching the vehicle for any paperwork associated with the vehicle. (Tr. 35.) Because he could not see what Gonzalez-Saucedo was reaching for, Agent Knight asked him to exit the vehicle. (Tr. 35-36.) After determining he was a legally admitted permanent resident, Agent Knight escorted him to the rear of the vehicle, performed a Terry frisk, and obtained Gonzalez-Saucedo's consent to search the vehicle. (Tr. 36.) Agent Knight then went to his service vehicle and returned with his K-9 to perform an exterior sniff of the Camaro. ( Id. ) The K-9 alerted by following the scent from an open window, then jumping into the vehicle without command and sitting. (Tr. 37.)

Agent Knight asked Gonzalez-Saucedo about the contents of the Camaro and he denied he was responsible, saying it was not even his car. (Tr. 37.) Agent Knight then returned the dog to his service vehicle, returned to the Camaro and leaned in to visually inspect the car. ( Id. ) He saw brown packaging tape and smelled what he believed to be marijuana. (Tr. 38.) He then took Gonzalez-Saucedo into custody by handcuffing him and sitting him down next to his service vehicle. ( Id. ) While Agent Knight questioned about biographical information, Gonzalez-Saucedo became emotional and said, "This will ruin my life. I have children. I'm unable to take care of, pay for my [asthma] medication." (Tr. 38-39.)

Shortly after Agent Knight placed Gonzalez-Saucedo in custody, Supervisory Border Patrol Agent Sean King arrived on the scene and read him his Miranda warnings. (Tr. 40-41, 91.) After placing Gonzalez-Saucedo in the back of a Border Patrol SUV, Agents King and Knight questioned him and he claimed that he had obtained the vehicle through a friend, John Spatco. He admitted picking it up at the Veterans Memorial Park in Sierra Vista and that he had seen the Cadillac Escalade at the park. (Tr. 41, 42, 93.) He also admitted that he knew that there was marijuana in the vehicle when he picked it up and that he was going to be paid to deliver it to Tucson. (Tr. 42.)

After 20 or 30 minutes of questioning, although he still appeared to Agent Knight to be in no distress, Gonzalez-Saucedo expressed concerns about his asthma, saying he was experiencing a shortness of breath. (Tr. 42-43, 44, 92-93.) The agents discontinued questioning and Agent King called for an EMT certified agent to respond to the scene. (Tr. 43.) Officer Rob Palmer, who was EMT trained, from the Department of Public Safety arrived on the scene. (Tr. 98.) He described Gonzalez-Saucedo as handcuffed, calm and cooperative at the time (Tr. 100.) He did not observe any shortness of breath and noted that "everything seemed fine" when he arrived. ( Id. ) Gonzalez-Saucedo did not immediately request medical care, but when it started raining heavily, he was moved into the backseat of Officer Palmer's SUV and, five or ten minutes later, began complaining of chest pains. (Tr. 101-102.)

Officer Palmer immediately assessed his vital signs and placed him on oxygen. The officer observed that Gonzalez-Saucedo was "starting to have a little bit of shortness of breath" and was becoming flushed. (Tr. 102.) He did not have an oxygen monitor and therefore was unable to determine the oxygen levels in Gonzalez-Saucedo's body, so he requested additional assistance from Border Patrol Agent Patrick Ford, who was also in the area. (Tr. 102-103.) Gonzalez-Saucedo remained in Officer Palmer's vehicle with the air conditioning on and was not being questioned. (Tr. 103, 111.) Agent Ford arrived and also assessed Gonzalez-Saucedo, finding his vitals within normal limits except for his breathing, which was rapid and shallow with some wheezing. (Tr. 103, 109-110.) Due to Gonzalez-Saucedo's complaints of chest pain, the decision was made to call an ambulance, which arrived in approximately 15 minutes. (Tr. 103-104, 112.) Gonzalez-Saucedo was then taken from the scene and transported to Kino Hospital in Tucson. (Tr. 134, 78-79, 104, 111.)

Early the following morning, Gonzalez-Saucedo was returned to custody at the Sonoita Border Patrol Station and, beginning at just after 3:00 a.m. and ending before 3:15 a.m., was questioned and videotaped by Agent Alberto Ontiveros. (Tr. 114, 117, 135, 149; Ex. 3 (video recording).) Agent Ontiveros recalls that Gonzalez-Saucedo was still experiencing some asthma symptoms and he offered him water and coffee, but during the interviews, Gonzalez-Saucedo did not appear to be in physical distress and he did not request medical attention. (Tr. 115-116, 121.) After reading him his Miranda warnings on the video recording, Gonzalez-Saucedo agreed to talk with Agent Ontiveros without a lawyer present. (Tr. 119.) After the video interview concluded, Gonzalez-Saucedo was further questioned for intelligence-gathering purposes. (Tr. 120.) Gonzalez-Saucedo claims that he collapsed as he was being returned to his cell, however, medical records reflect that later that morning Gonzalez-Saucedo was transported by ambulance to Sierra Vista Regional Medical Center, leaving the Sonoita station shortly after 9:00 a.m. and admitted to the hospital at 9:51 a.m. (Tr. 136; Ex. 107 (medical records).)

II. Conclusions of Law

A. The stop was supported by reasonable suspicion.

Gonzalez-Saucedo moves to suppress the evidence seized following the stop of the vehicle in which he was traveling. The Fourth Amendment protects the right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures. U.S. v. Hensley, 469 U.S. 221, 226 (1985). In Terry v. Ohio, 392 U.S. 1, 88 (1968), the Supreme Court held that, consistent with the Fourth Amendment, police may stop persons in the absence of probable cause under limited circumstances. The Court has held that law enforcement agents 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). 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. INS, 22 F.3d 1441, 1445 (9th Cir.1994). 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). In relation to stops by the border patrol, 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 attempt 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) (quoting United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997)). In this case, the Court must ascertain whether the factors cited by the Government in support of the stop constitute behavior that should excite the suspicion 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 the motion to suppress and at the hearing, the Government cited Agent Knight's experience and awareness that smuggling operations are common in the Sonoita area, particularly when the border checkpoint is not operational. In addition to these general factors, the Government argues that the stop was also supported by Gonzalez-Saucedo's driving posture and hand position on the steering wheel, that the Camaro appeared to be traveling in tandem with the Dodge Ram, and the suspicious actions of the driver and passenger in the Ram. These factors are considered individually and collectively.

1. Proximity to the Border

Agent Knight testified that he is familiar with the area around Sonoita and that his suspicions are supported by the town's proximity to the border and the history of alien and drug smuggling in the area. He also noted that the border checkpoint in the area was closed at the time due to inclement weather. The cases indicate that these factors are entitled to a varying degree of weight. The Ninth Circuit has stated that "[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 v. Manzo-Jurado, 457 F.3d 928, 936 (9th Cir. 2006). For example, if the road regularly carries alien and drug smugglers, but also carries a large volume of legitimate traffic, this factor carries little weight. See United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975). However, if the road is a remote, unpaved road that is rarely traveled except when used by smugglers to avoid detection and arrest, this factor would be entitled to greater consideration in the reasonable suspicion calculation. See United States v. Arvizu, 534 U.S. 266, 269 (2002).

Here, Agent Knight's suspicions were initially raised because the driver of the Camaro was driving awkwardly and was being closely followed by the Ram, whose occupants engaged in behavior that he believed was intended to distract his attention from the Camaro. Of course 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). It is also notable that the road is paved and Agent Knight described it as being used to commute between Sonoita and the Tucson area. That would suggest that the road was in regular use. As such, this factor does deserve some weight given Sonoita's proximity to the border and the amount and frequency of alien and drug smuggling activity in the area.

2. Behavior of the Driver

Agent Knight described several credible factors that raised his suspicions about Gonzalez-Saucedo. When he initially saw Gonzalez-Saucedo, he noticed that he was sitting awkwardly upright and very close to the steering wheel, suggesting that something was preventing him from moving the seat back. He also noticed that Gonzalez-Saucedo repeatedly looked back and forth from the road to the agent. The latter factor became more significant later when Agent Knight passed the Camaro and the Ram and allowed them to pass him again as he sat by the road. At the time of the second contact, Gonzalez-Saucedo did not look at the agent, but kept looking forward at the road. Although the Court typically does not put great weight on the consideration of whether a driver does or does not make eye contact with an agent, in this case there was both what could be described as nervous eye contact initially coupled with a refusal to make eye contact later. When considered with the driver's upright and awkward driving position, these factors do carry some weight in the reasonable suspicion calculus in this case.

3. Tandem Driving

Traveling in tandem, although not sufficient on its own to establish founded suspicion, is a factor that can be considered. 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 Agent Knight first spotted the Camaro and Ram truck, he was in a stationary position alongside the road. He immediately noticed that the vehicles were traveling closely together. Then, the female passenger in the Ram "feigned" concern and dove into the lap of the driver. This suggested to Agent Knight that the occupants in the Ram were attempting to draw his attention to themselves and away from the Camaro. Agent Knight's initial suspicion was further supported by the maneuvering of the Ram when Agent Knight attempted to pass it and pull in behind the Camaro. The Ram was variously pulling into oncoming traffic to prevent Agent Knight's attempt to overtake, or would pull so close to the Camaro that Agent Knight was unable to pull in behind the Camaro. Finally, both vehicles were traveling below the posted speed limit, but the Ram never attempted to pass the Camaro. Thus, in this case, the evidence of tandem driving is significant and this factor deserves great weight in the evaluation of reasonable suspicion.

4. Totality of the Circumstances

In deciding whether the totality of the circumstances establish reasonable suspicion, it is inappropriate to consider each factor in isolation or to give no weight to factors for which an innocent explanation may exist. United States v. Arvizu, 534 U.S. 266, 274 (2002). Considering in totality the factors identified by Agent Knight, the Court concludes they are sufficient to establish the reasonable, particularized suspicion necessary to support the investigative stop of the Camaro driven by Gonzalez-Saucedo.

B. Gonzalez-Saucedo's statements were voluntary.

Gonzalez-Saucedo contends that his statements to the agents must be suppressed because the stop of his vehicle was illegal and because his medical condition was used to force him to provide a statement in exchange for favorable treatment. As discussed above, the Court finds that the stop was supported by reasonable suspicion and therefore does not provide a basis for suppression of Gonzalez-Saucedo's statement. Moreover, the Court also concludes that the statements were voluntary.

As a threshold matter, the obligation to provide Miranda warnings attaches once a person is subject to "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 445 (1966). Custody turns on whether there is a formal arrest or a restraint on freedom of movement of the degree associated with formal arrest. United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir. 2005), amended by United States v. Rodriguez-Preciado, 416 F.3d 939 (9th Cir. 2005). There is no dispute that Gonzalez-Saucedo was in custody during his roadside interrogation and the later interrogation at the station. It is also undisputed that he was provided and waived his Miranda rights on both occasions.

Despite receiving his Miranda warnings, Gonzalez-Saucedo nevertheless claims his statements were involuntary. A confession is involuntary if it is not "the product of a rational intellect and a free will." Brown v. Horell, 644 F.3d 969, 979 (9th Cir. 2011) (citing Townsend v. Sain, 372 U.S. 293, 307 (1963). "The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." Beaty v. Schriro, 509 F.3d 994, 999 (9th Cir. 2007). A statement may also be considered involuntary if it is extracted by any sort of threat or violence, or "obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence." Id.

Gonzalez-Saucedo claims that Agents Knight and King were aware that he was having medical issues, but nevertheless continued questioning him even while he was getting treatment. However, Officer Palmer and Agent Ford contradicted this contention. They were charged with treating Gonzalez-Saucedo at the scene and both testified that he was not being questioned at that time. In fact, they did not even find Gonzalez-Saucedo was in acute distress, only sending him to the hospital via ambulance because they were concerned not with his breathing and oxygen saturation, but with his complaints of chest pain. Additionally, the fact that Agent Knight called the EMTs to the scene undermines Gonzalez-Saucedo's contention that the agent was using his condition to leverage a statement from him.

Gonzalez-Saucedo also contends that his statement at the Sonoita station given to Agent Ontiveros was involuntary because he was struggling with asthma and was told that he had until the ambulance arrived to cooperate or they could no longer help him. (Tr. 133.) A review of the video recording of the statement undermines Gonzalez-Saucedo's contention that he was visibly suffering. (Ex. 3.) While the recording does illustrate that he was coughing, it discloses no obvious signs that he was in the type of distress that needed immediate medical attention. He was quiet and cooperative and said nothing to the agents about his asthma. Additionally, Gonzalez-Saucedo's claims that he had until the ambulance arrived to copperate is not supported by the documented timing of the evening. The recorded portion of the interview was over by 3:14 a.m. on August 15, 2012 (Ex. 3), and he was not sent to the hospital until around 9:00 a.m. (Ex. 107.) Thus, the unrecorded portion of the interview would have had to have taken approximately five hours if Gonzalez-Saucedo's version of events is to be believed. Given that the recorded portion of the interview was under 15 minutes, and the unrecorded portion was reported as being approximately twice that long, the entire interview would have ended no later than about 4:00 a.m., or approximately five hours before Gonzalez-Saucedo was taken to the hospital. There is nothing in the record that would support Gonzalez-Saucedo's contention that he went from the interview directly to the hospital. Thus, considering the totality of the circumstances surrounding the interview, the Court finds that the second statement, like the first, was entirely voluntary.

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 the Motion to Suppress (Doc. 37) filed by Defendant David Gonzalez-Saucedo.

This 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. However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have ten (10) days within which to file a response to the objections. No replies are permitted without leave of court. If any objections are filed, this action should be designated case number: CR 12-1916-TUC-DCB. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

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