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United States v. McCracken

United States District Court, D. Arizona

April 15, 2014

United States of America, Plaintiff,
Rick David McCracken, Defendant.


JENNIFER G. ZIPPS, District Judge.

On January 30, 2014, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation ("R&R") (Doc. 56) in which he recommended that Defendant's Motion to Suppress for Lack of Reasonable Suspicion to Stop (Doc. 43) be denied. On February 18, 2014, Defendant filed an Objection to the R&R. (Doc. 60.) Defendant's Objection challenges the Magistrate's finding that the testifying Border Patrol Agent was credible and that Defendant consented to a stop of his vehicle. The government filed a response to Defendant's Objection on February 26, 2014. (Doc. 62.) For the reasons stated herein, the Court will adopt the R&R and overrule the Objection.


The Court reviews de novo the objected-to portions of the R&R. 28 U.S.C. ยง 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the R&R. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998). If the Court rejects the credibility findings of the magistrate judge, a de novo hearing is required. United States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir. 2002).


The factual background contained in Magistrate Ferraro's R&R (Doc. 56) is adopted by reference herein. To the extent Defendant's Objection alleges erroneous factual findings by the Magistrate, those objections are addressed below.


Defendant objects to the Magistrate Judge's R&R on two grounds: (1) Defendant challenges the Magistrate Judge's finding that Border Patrol Agent Daniel Sturkie credibly testified that, at the time Defendant stopped his vehicle, Agent Sturkie's vehicle was pulled over on the side of the road; and (2) Defendant objects to the Magistrate Judge's conclusion that Defendant voluntarily stopped his vehicle.

1. Credibility of Agent Sturkie

Agent Sturkie and Defendant offered similar testimony regarding their encounter on April 21, 2013. Agent Sturkie drove onto Road 687 from Dragoon Mountain Ranch Road. (TR 19-20.) Road 687 is a narrow, one-lane road that is not maintained; Agent Sturkie testified that it is a well-known "circumvention road, " used by smugglers to avoid a nearby Border Patrol checkpoint. (TR 14-15.) On April 21, 2013, entry to Road 687 was blocked by a cattle gate, which Agent Sturkie opened and drove through. (TR 20.) As he began to drive south on Road 687 he noticed a gold Chevrolet Tahoe traveling north on Road 687. (TR 23-24, 32.) Agent Sturkie testified that he pulled his unmarked Border Patrol truck to the side of the road about 100 feet from the gate and parked it. (TR 18-19, 23.) His vehicle was positioned approximately five feet off the road and parallel to the road. (TR 23.) He then got out of his vehicle and stood near the front bumper, leaning against the hood of his vehicle. (TR 24.) Agent Sturkie testified that, given the area's reputation as a smuggling corridor, he did not know how the occupants of the approaching Tahoe might react to seeing a Border Patrol agent. (TR 38.) Agent Sturkie stated that, in the event the approaching driver pulled out a gun or tried to run him over, he was safer outside of his vehicle. (TR 38.) Agent Sturkie testified that the gold Tahoe - driven by Defendant - slowed to a stop as it approached Agent Sturkie. (TR 25.) Agent Sturkie did not signal for the Tahoe to stop in any way. (TR 24-25.)

Defendant's testimony differed from Agent Sturkie's in one key detail. Contrary to Agent Sturkie's testimony that Agent Sturkie's vehicle was pulled over to the side of the road, Defendant stated that Agent Sturkie had stopped his car in the middle of the gate connecting Dragoon Mountain Ranch Road and Road 687. (TR 53.) Defendant testified that Agent Sturkie was standing in front of the unmarked Border Patrol vehicle, leaning against the hood. (TR 60.) Defendant slowed and pulled his vehicle to the right because the Border Patrol vehicle was blocking the gate. (TR 55, 57-58.)

Defendant contends that Agent Sturkie's testimony regarding the location of his Border Patrol vehicle was not credible because it is implausible that an agent would consider it safer to wait outside his vehicle as an unfamiliar car approached in a known smuggling corridor. While Agent Sturkie's conclusion that it would be safer to wait outside the car appears illogical, the Court concludes that it does not undermine Agent Sturkie's credibility. There is no issue as to whether Agent Sturkie stood outside of the vehicle while he waited for Defendant's vehicle to approach. The disputed question is where Agent Sturkie had parked his vehicle while he waited. Defendant's assertion - that a Border Patrol agent would park an unmarked Border Patrol vehicle in the middle of a cattle gate and then position his body in the front of the vehicle facing an oncoming Tahoe is implausible, more implausible than any explanation of why the agent waited outside of the vehicle in the first place. As the Magistrate Judge noted, an agent so positioned would be very vulnerable - the oncoming Tahoe could sandwich the agent against his vehicle, and the agent's ability to get into his vehicle and flee would be hampered by the vehicle's position across a gate. Even if the agent was hoping to effectuate a stop by blocking the road, it is unlikely he would position his vehicle in the middle of the gate and his body in front of the vehicle. In addition, Agent Sturkie's testimony as to the position of the vehicle was corroborated by the testimony of Border Patrol Agent Brandon Caspar, who arrived on the scene 10 minutes after Agent Sturkie asked for assistance and observed Agent Sturkie's vehicle parked off the road across from Defendant's Tahoe just as Agent Sturkie had described.[1] (TR 75-78.) The Court agrees with the Magistrate Judge's credibility determination.

2. Voluntary Stop

Defendant contends that even if Agent Sturkie's car was parked on the side of the road, Agent Sturkie compelled Defendant to stop his vehicle and did not have reasonable suspicion to do so. According to Defendant, no reasonable person driving down a one lane road in a rural area would conclude that he could ...

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