Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Peraza

United States District Court, D. Arizona

November 7, 2014

United States of America, Plaintiff,
v.
Amelia Peraza, Vanessa Marie Gonzales, Defendants.

REPORT & RECOMMENDATION

BRUCE G. MacDONALD, Magistrate Judge.

Currently pending before the Court is Defendant Amelia Peraza's Motion to Suppress for Lack of Probable Cause (Doc. 30) and Defendant Vanessa Marie Gonzales's Motion to Join Co-Defendant's Motion to Suppress (Doc. 47).[1] Defendants are charged with one count of knowingly and intentionally combining, conspiring, confederating and agreeing together with other persons known and unknown to the grand jury, to possess with intent to distribute 50 kilograms or more of marijuana, a Schedule I controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C). Indictment (Doc. 9). Defendants are also charged with one count of knowingly and intentionally possessing with intent to distribute 50 kilograms or more of marijuana, a Schedule 1 controlled substance; in violation of 21 U.S.C. ยงยง 841(a)(1) and 841(b)(1)(C). Indictment (Doc. 9). Defendants seek suppression of evidence obtained as a result of a search allegedly in violation of the Fourth Amendment. The Government argues that it lawfully searched Defendant's vehicle based upon probable cause.

Pursuant to LRCrim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. On October 6, 2014, oral argument was heard by Magistrate Judge Macdonald and the matter taken under advisement. Minute Entry 10/6/2014 (Doc. 58). The Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion.

I. FACTUAL BACKGROUND

For purposes of these motions, the parties have stipulated to the facts as presented in their respective pleadings, supplemented by the testimony of United States Border Patrol Agent Ivan Chokan. Hr'g Tr. 10/6/2014 (Doc. 61) 12:4-13:11; 13:12-14:5; 20:15-22:20; 22:23-24:3.

Defendants Vanessa Marie Gonzales and Amelia Peraza have been in a relationship for approximately eight to nine years. Def. Gonzales's Mem. in Support of Mot. to Join Co-Def.'s Mot. to Suppress (Doc. 52) at 2. Prior to this incident, Defendants have cohabitated, and at the time of their arrest were both living with Defendant Gonzales's sister. Id. Defendants have each had their own vehicles in the past, and have shared use and access of those vehicles. Id.

On January 18, 2014, United States Border Patrol Agent Zane Chokan was on duty at the south checkpoint on State Route 85 ("SR 85"), outside of Ajo, Arizona. Hr'g Tr. 10/6/2014 (Doc. 61) 27:9-28:5; see also Def.'s Mot. to Suppress (Doc. 30) at 2; Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3. At approximately 10:10 a.m., Agent Chokan received a radio call from agents at the Lukeville, Arizona Port of Entry ("POE") who advised him that a suspicious vehicle had entered the United States from Mexico. Hr'g Tr. 10/6/2014 (Doc. 61) 28:6-13; see also Def.'s Mot. to Suppress (Doc. 30) at 2; Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3. The Lukeville POE agents described the vehicle as a red Ford Explorer with an Arizona license plate of BEN 9729. Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3; Hr'g Tr. 10/6/2014 (Doc. 61) 28:11-21; see also Def.'s Mot. to Suppress (Doc. 30) at 2. Agent Chokan testified that the POE agents indicated that the Explorer had two occupants and no luggage. Hr'g Tr. 10/6/2014 (Doc. 61) 28:22-29:6; see also Def.'s Mot. to Suppress (Doc. 30) at 2; Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3.

Agent Chokan testified that the State Route 85 checkpoint where he was working at is located at approximately milepost 58 or 59. Hr'g Tr. 10/6/2014 (Doc. 61) at 29:12-16. Agent Chokan further testified that the area between the checkpoint and Lukeville, specifically between mileposts 77 and 79, aside from being a major roadway for transportation, was an area of smuggling activity. Id. at 29:20-30:14; 31:3-23; see also Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3. Agent Chokan testified that individuals would pullover along State Route 85, particularly between mileposts 79 and 77, have their vehicles loaded with narcotics, and proceed north. Hr'g Tr. 10/6/2014 (Doc. 61) 31:7-23; see also Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3. The drivers then typically try to smuggle the illicit cargo through the Border Patrol checkpoint at SR 85. Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3. Agent Chokan further testified that at approximately 10:15 a.m., he was contacted by radio from the Ajo Border Patrol station and advised to watch for the red Ford Explorer on the basis of the POE report. Hr'g Tr. 10/6/2014 (Doc. 61) at 30:15-25; see also Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3.

Agent Chokan testified that at approximately 10:40 a.m., the same morning, he saw a red Ford Explorer pull into the primary inspection lane at the checkpoint. Hr'g Tr. 10/6/2014 (Doc. 61) 31:24-32:2, 33:2-4; see also Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3. Defendant Peraza states that she approached the checkpoint at approximately 10:15 a.m. Def.'s Mot. to Suppress (Doc. 30) at 2. Agent Chokan further testified that the Ford Explorer had two occupants and that the license plate matched the POE report. Hr'g Tr. 10/6/2014 (Doc. 61) 32:3-11; see also Def.'s Mot. to Suppress (Doc. 30) at 2. Agent Chokan identified Defendants as the vehicle occupants. Hr'g Tr. 10/6/2014 (Doc. 61) 33:22-34:9. Agent Chokan testified that as he walked around the Ford Explorer, he looked through the tinted windows and saw some clutter in the backseat, and two large duffel bags in the cargo area. Id. at 32:12-34:22; see also Def.'s Mot. to Suppress (Doc. 30) at 2.

Agent Chokan testified that the area between the Lukeville POE and the SR 85 south checkpoint is a national park, with the checkpoint located just beyond where the national park land ends. Hr'g Tr. 10/6/2014 (Doc. 61) 34:23-35:12. Agent Chokan also testified that one could see the national park's border clearly from the checkpoint. Id. Agent Chokan testified that there is no place in the park that someone could buy luggage like the duffel bags found in Defendants' vehicle. Id. at 35:13-16; see also Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3. Agent Chokan further testified that based on elapsed time from the 10:10 radio report to the 10:40 arrival of the Explorer, any stop by the Explorer could not have lasted more than several minutes. Hr'g Tr. 10/6/2014 (Doc.61) 36:3-15; see also Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 3.

Agent Chokan testified that he was familiar with several seizures at the checkpoint involving luggage and cars coming through the Lukeville POE. Hr'g Tr. 10/6/2014 (Doc. 61) 37:7-10. Agent Chokan further testified that he recalled two recent narcotics seizures involving duffel bags that were similar in size, shape, and color to those found in Defendants' vehicle. Hr'g Tr. 10/6/2014 (Doc. 61) 37:7-19; 38:14-23; 43:2-44:9; 54:3-15; 55:9-13; see also Def.'s Mot. to Suppress (Doc. 30) at 2. Agent Chokan also testified that after observing the luggage in the back of Defendants' vehicle, he directed the Explorer to the secondary inspection area, because he believed that the vehicle was loaded with narcotics. Hr'g Tr. 10/6/2014 (Doc. 61) 37:20-38:3; see also Govt.'s Resp. to Def.'s Mot. to Suppress for Lack of Probable Cause (Doc. 32) at 4.

Agent Chokan testified that after referring the Ford Explorer to secondary, he asked Defendant Peraza to place the vehicle in park and turn the engine off. Hr'g Tr. 10/6/2014 (Doc. 61) at 38:4-13;58:7-15; see also Def.'s Mot. to Suppress (Doc. 30) at 2-3. Defendant Peraza expressed her concern that if she turned the vehicle off, it would not start again. Def.'s Mot. to Suppress (Doc. 30) at 3; see also Hr'g Tr. 10/6/2014 (Doc. 61) 38:4-13, 58:16-18. As such, Agent Chokan testified that he decided to proceed with the vehicle running. Hr'g Tr. 10/6/2014 (Doc. 61) at 38:4-13; 58:19-22. Agent Chokan further testified that while the Ford Explorer was in the secondary inspection area, he went to the rear of the vehicle, opened the lift gate and opened the luggage. Hr'g Tr. 10/6/2014 (Doc. 61) 38:-4-13; 58:19-22. Agent Chokan testified that he did not ask any questions of either Defendant prior to searching the vehicle. Hr'g Tr. 10/6/2014 (Doc. 61) 58:23-25; see also Def.'s Mot. to Suppress (Doc. 30) at 3. Agent Chokan also testified that he tried to pull one of the duffel bags toward him and found that it was very heavy. Hr'g Tr. 10/6/2014 (Doc. 61) at 38:14-16; 59:1-12. Upon opening the bag, Agent Chokan testified that he discovered approximately ninety-two (92) kilograms (approximately 204 pounds) of marijuana. Hr'g Tr. 10/6/2014 (Doc. 61) 39:2-7; see also Def.'s Mot. to Suppress (Doc. 30) at 3.

Upon discovery of the marijuana, both Defendants were placed under arrest and advised of their rights. Def.'s Mot. to Suppress (Doc. 30) at 3. Following the advisement and waiver, Defendant Peraza fully confessed, and Defendant Gonzales was interviewed regarding her role in the incident. Govt.'s Response to Def. Gonzales's Mem. in Support of Mot. to Join Co-Def.'s Mot. to Suppress (Doc. 53) at 3-4. Both Defendants were hired by a friend, Adrian Sanchez, to smuggle marijuana from Mexico to Phoenix, Arizona. Id. Defendant Peraza was given money to register the Ford Explorer in her name. Id. Defendant Gonzales drove the Ford Explorer to the Arizona Department of Motor Vehicles to have it registered. Hr'g Tr. 10/6/2014 (Doc. 61) 13:12-14:5. Defendant Peraza was also given food and gas money for the trip. Govt.'s Response to Def. Gonzales's Mem. in Support of Mot. to Join Co-Def.'s Mot. to Suppress (Doc. 53) at 4. Defendants stayed in a hotel for two nights in Mexico, then told to go to a gas station in Lukeville, Arizona for further instructions. Id. Upon arriving in Lukeville, Arizona, the women were told to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.