United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
Defendant Francisco Jesus Sosa filed an Amended Motion to Suppress Evidence obtained as a result of a stop of vehicle driven by Defendant on January 19, 2014; Defendant Luis Carlos Saiz joined the motion. (Docs. 30, 32.) On May 19, 2014, Magistrate Judge Bruce G. Macdonald held an evidentiary hearing on the Amended Motion to Suppress. (Doc. 41.) Magistrate Judge Macdonald issued a Report and Recommendation (R & R) on June 20, 2014, recommending that Defendants' Motion to Suppress Evidence be denied. (Doc. 52.) On July 7, 2014, Defendant Saiz filed Objections to the R & R, and on July 8, 2014, Defendant Sosa filed a Motion for Joinder Re: Objection to Magistrate's Report and Recommendation. (Docs. 54, 56.) On July 10, 2014, the Government filed a Response. (Doc. 57.)
After consideration of the objections and de novo review of the record, the Court overrules the objections, adopts the R & R, and denies the Amended Motion to Suppress.
I. STANDARD OF REVIEW
The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the un-objected to portions of the Report and Recommendation. 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).
II. FACTUAL BACKGROUND
At the May 19, 2014 evidentiary hearing, Border Patrol Agents Edward Seed and Juan Delgado testified for the Government. Defendants did not present any witnesses. The record shows the following:
Agent Seed has been employed with the United States Border Patrol for the past six years. (Doc. 45 (May 19, 2014 Hrg. Trans.) at 7-8.) He has continually worked at the Wilcox Border Patrol Station during that time. (Doc. 45 at 8). Agent Delgado has been employed with the United States Border Patrol for the past ten years and has been stationed at the Wilcox Border Patrol Station his entire career. (Doc. 45 at 88). As part of their responsibilities, Agents Seed and Delgado regularly patrol the areas around Interstate 10 (I-10) from Douglas, Arizona to the New Mexico border including Highways 181/186 and Highway 191. (Doc. 45 at 8, 13, 89). Agents Seed and Delgado are very familiar with that area. (Doc. 45 at 9, 89, 91).
The area around Highway 186 is sparsely populated, and the Chiricahua National Monument is at one end. Agent Seed testified that there are 30 to 50 households along Highway 186 between the Chiricahua National Monument and Wilcox and about 15 households in the area the agents were patrolling the night of January 14, 2014. (Doc. 45 at 13, 14.) Agents Seed and Delgado are very familiar with the ranchers that reside in that area and the vehicles that they drive. (Doc. 45 at 9, 91.) Highway 186 intersects with I-10 and runs parallel to Highway 191. (Doc. 45 at 10.) The Chiricahua National Monument is located at the intersection of Highway 181 and Highway 186. (Doc. 45 at 90.) Someone traveling from Douglas, Arizona north to I-10 can take Highway 181/186 or Highway 191. (Doc. 45 at 11, 94.) Highway 191 is the faster route, however, because it has a higher speed limit and is a more direct route to I-10. (Doc. 45 at 10, 11, 94-95.) There are Border Patrol checkpoints set up on Highway 191 and I-10 but none on Highway 181/186. (Doc. 45 at 10, 12, 78.) As such, Highway 181/186 is a route commonly used by alien or drug smugglers to avoid the Border Patrol checkpoints on Highways 191 and I-10. (Doc. 45 at 96, 142.)
On January 19, 2014, Agents Seed and Delgado were working the night shift from 6 p.m. to 2 a.m. (Doc. 45 at 12, 96, 98.) Shortly after 12 a.m., they were seated in their Border Patrol vehicle when they observed a vehicle traveling north on Highway 186 heading towards I-10. (Doc. 45 at 14, 17, 99-100.) This initially raised suspicions because it was rare to observe a vehicle traveling on Highway 186 at night. Further, the Defendants' vehicle was observed during a Border Patrol agent shift change and it is common for alien or drug smugglers to attempt to travel through that area during a shift change. (Doc. 45 at 14, 25-26, 98, 100, 130.)
Agents Seed and Delgado observed the vehicle travel past the Chiricahua National Monument and continue traveling north on Highway 186. (Doc. 45 at 16-17, 102.) Agent Seed reasoned that because the vehicle travelled past the camp grounds at the Chiricahua National Monument, it was unlikely that the occupants of the vehicle were campers or tourists. (Doc. 45 at 17). The Agents then pulled their vehicle over to the side of the road and observed Defendants' vehicle as it drove past them. (Doc. 45 at 102.)
As the Defendants' vehicle passed, Agent Delgado observed the driver of the vehicle grab the steering wheel with both hands in a rigid fashion and look straight ahead as they passed. (Doc. 45 at 104.) In addition, the agents observed two dirt bikes strapped down in the rear of the Defendants' pick-up truck. (Doc. 45 at 18, 105.) Agents Seed and Delgado explained that it was unusual to observe dirt bikes in the vehicle because there is no recreational off-roading in that area and neither agent had ever previously observed anyone riding a dirt bike in that area. (Doc. 45 at 13, 19, 92-93.) Further, it was very cold out that evening and not conducive to riding dirt bikes. (Doc. 45 at 52, 110.) Agents Seed and Delgado decided to investigate further and pulled out behind the Defendants' vehicle to begin following it. (Doc. 45 at 20, 110-111.)
A registration check revealed that the vehicle was registered out of Douglas, Arizona and the vehicle had no history of border crossings. (Doc. 45 at 20, 56, 111.) The Agents observed that the dirt bikes were leaning against the side of the truck bed and were not securely strapped. (Doc. 45 at 18-19, 30, 105-106.) One of the dirt bikes had a strap wrapped around the exhaust pipe, which was extremely odd because the exhaust pipe is a weak point on the dirt bike and if the truck hit a bump it could cause severe damage to the bike. (Doc. 45 at 76, 84, 105-106, 109.) Agent Seed explained that dirt bikes are normally secured upright. (Doc. 45 at 82.) Further, Agents Seed and Delgado explained that they had observed smugglers attempt to use ATV's or dirt bikes as props in an effort to blend into the area. (Doc. 45 at 26, 106-107.)
After following the Defendants' vehicle for approximately three minutes, the agents pulled them over. (Doc. 45 at 30-31, 56.) There were no camp grounds or bike trails to the north of the location where Defendants were stopped. (Doc. 45 at 27.) While the Agents did not observe Defendants violate any traffic laws, (Doc. 45 at 129), the stop was based on the Agents' observations of the vehicle given the location and time of their observations.
III. TIMELINESS OF OBJECTIONS
The government argues that Defendants' Objections are untimely and should not be considered by the ...