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United States v. Sadah

United States District Court, Ninth Circuit

August 29, 2013

United States of America, Plaintiff,
v.
Basim Sadah, Defendant.

REPORT AND RECOMMENDATION

LESLIE A. BOWMAN, Magistrate Judge.

The District Court referred this case to the Magistrate Judge for a hearing on the defendant's motion to suppress. The defendant, Basim Sadah, argues his Fourth Amendment rights were violated when his vehicle was stopped and searched on April 19, 2013. (Doc. 35)

An evidentiary hearing was held on August 22, 2013. United States Border Patrol (USBP) Agent Ubaldo Soto testified.

Charge:

The defendant, Basim Sadah, is charged by indictment with transportation of illegal aliens for profit, in violation of Title 8 United States Code §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i). (Doc. 18).

Motion to Suppress:

The defendant argues his Fourth Amendment rights were violated when his vehicle was stopped without reasonable suspicion. He moves to suppress all evidence discovered as a result of the vehicle stop because it is the fruit of the unlawful seizure. The Court concludes that the traffic stop was supported by reasonable suspicion. Therefore, the evidence seized as a result of the vehicle stop should not be suppressed and is admissible at trial.

EVIDENCE:

Ubaldo Soto

Ubaldo Soto is a United States Border Patrol Agent. On 4/19/13, the day of the vehicle stop, Soto had been a Border Patrol Agent for 1 ½ to 2 years. He has always been stationed in Ajo, AZ. Prior to this stop he made approximately 10 vehicle stops on his own and was in a support role in over 20 additional stops. His experience is based on his own activities, the information he receives at muster before he starts most shifts, conversations with fellow agents, and radio traffic that he hears during his shifts.

Soto was stationed on the Tohono O'odham Nation in a soft static position at the intersection of Federal Route (FR) 1 and State Route (SR) 86 on 4/19/13. "Soft static position" means that he was stationary but allowed to move from his place and make vehicle stops when necessary. The purpose of a static position is for deterrence and apprehension of illegal aliens. Soto arrived at his post at about 8:10 a.m. to relieve the agent from the midnight shift, Agent Broeker.

When Soto arrived, Broeker advised that at about 6:30 a.m. he saw a late model white van with gray moldings heading southbound with one visible occupant. Broeker noted that the driver appeared nervous, made no eye contact and did not appear to be Tohono O'odham because he was light-skinned.[1] The white van was the only traffic throughout the night.

During Soto's shift, a Border Patrol helicopter identified a white van heading northbound just south of the village of GuVo. Soto requested and was given permission to leave his post to investigate. He initially spotted a white van parked at a house, which he determined to be a Tohono O'odham transportation shuttle. At about 8:20 a.m., as he came out of the housing development, Soto saw the van that Broeker described earlier. Soto tried to catch up to the van, requiring him to travel at speeds of up to 98 miles per hour, which led him to believe the van was speeding.

Soto followed within two car lengths of the van. The driver slowed to about 45 miles per hour in a 55 mile per hour zone and was swerving within his lane as the driver constantly checked his mirrors to watch the law enforcement vehicle. It is unusual for locals to slow when they see Border Patrol because Border Patrol has no authority to cite drivers for state traffic violations. Soto noticed that there were three spare tires behind the third row of seats in the van. Smugglers commonly carry extra spare tires because they ...


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