United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, Magistrate Judge.
The District Court referred this case to the Magistrate Judge for a hearing on the defendants' motion to suppress. The defendants, Andrew Scott Livingston and Teresa Lynn Schnabel, argue in the motion to suppress that there was a warrantless search and seizure of their vehicle and that the government has the burden to prove that the search and seizure were permissible pursuant to the Fourth Amendment. (Doc. 33). Defendant Schnabel filed a motion for joinder in Defendant Livingston's motion. (Doc. 34).
An evidentiary hearing was held on April 11, 2014. United States Border Patrol (USBP) Agent Ewan Cordice testified. Government's Exhibits 1, 2, and 3 were admitted.
Defendants Livingston and Schnabel are charged by indictment with conspiracy to possess with intent to distribute 50 kilograms or more of marijuana and possession with intent to distribute 50 kilograms or more of marijuana, in violation of Title 21 United States Code §§ 841(a)(1) and 841(b)(1)(C). (Doc. 12).
Motion to Suppress:
The defendants argued at the evidentiary hearing that the search and seizure of their vehicle was in violation of the Fourth Amendment because the detention was prolonged, without articulable suspicion, beyond the time necessary to determine that the defendants are United States citizens. Defendant Schnabel argued that Defendant Livingston's consent to search the trunk of the vehicle was not voluntary. Defendant Livingston did not join in that argument. The government responded that Schnabel does not have standing to raise the voluntariness of Livingston's consent. The issue was not briefed. The defendants move to suppress all statements and evidence obtained as a result of the vehicle stop as the fruit of the unlawful seizure.
The Court concludes that the stop at primary inspection was legal and that articulable or minimal suspicion was established prior to the vehicle's referral to secondary inspection. The search of the vehicle was based on valid consent by the driver. The evidence should not be suppressed and is admissible at trial.
Ewan Cordice testified that he has been a U.S.B.P. Agent for 5 1/2 years. On 10/18/13 he was working the shift from midnight until 8 a.m. at the checkpoint on State Route 83, checking immigration status and looking for drug and alien smugglers. Cordice is familiar with the traffic patterns for his shift, which he has been working for one year. Traffic is slow until about 5:00 a.m. to 8:00 a.m. when people start going to work. Cordice recognizes most Sonoita residents and about 70% to 80% of the vehicles. On his shift, about 100 vehicles pass through the checkpoint and he generally refers one or two of those to secondary inspection. On weekdays the traffic is mostly locals. On weekends others drive in the area to get to recreation sites.
On 10/18/13 the canine officer left the checkpoint at about 7:45 a.m. The agents are more vigilant when the dog is absent because smugglers send scouts to see if the dog is there. It's easier to pass people and contraband through the checkpoint when the dog is gone. At about 8:00 a.m., Hector Sanchez, a known scout for drug and alien smugglers, passed through the checkpoint heading north. Sanchez regularly passes through the checkpoint. He is usually unfriendly but did not have his normal bad attitude on 10/18/13. He was leaning forward and looking around, specifically toward the trailer where the agents usually take their breaks.
A couple of local vehicles drove through the checkpoint after Sanchez and then a Toyota Avalon with two occupants came through. It was the first unfamiliar vehicle after Sanchez. Agent Cordice identified Defendant Livingston as the driver. Cordice first noticed a bar code on the windshield, which in Cordice's experience meant that the car was a rental. Cordice did not recognize the driver. He walked around the car to check the license plate and saw that it started with "CH", indicating that it was some type of official or commercial vehicle. As Cordice spoke with the occupants he noted that they were dressed very casually, not as if they were going to work, although he does not know what type of work they are engaged in. Livingston was wearing a white jacket, unzipped, with bright colors and jeans. Schnabel was wearing black capris pants. The vehicle was a high-end model Toyota and the clothing was not consistent with the vehicle. The driver's face looked nervous and his left hand was shaking. Cordice never asked any immigration questions.
Agent Cordice asked Livingston where they were coming from. Livingston responded "Sonoita", which Cordice thought was odd because there is nothing to do there. When Cordice asked Livingston why they had been in Sonoita, Livingston froze and did not respond. Livingston said the car was a rental vehicle but he could not produce the rental agreement. Cordice asked if he could look in the trunk and Livingston said no because that would make him late to work. Cordice sent Livingston to secondary inspection. ...