United States District Court, D. Arizona
REPORT & RECOMMENDATION
BRUCE G. MACDONALD, Magistrate Judge.
Currently pending before the Court is Defendant Melquiades Natanael Lara-Valenzuela's Motion to Suppress Statements (Doc. 50) and Motion to Suppress Evidence Resulting from Fourth Amendment Violations (Doc. 58). Defendant is charged with one count of using a facility in interstate or foreign commerce, namely a telephone, with the intent to promote, manage, establish, carry on and facilitate the promotion management, establishment and carrying on of an unlawful activity, that is extortion in violation of A.R.S. § 13-1804(1) and (2) and thereafter performed and attempted to perform an act to promote, manage, establish and carry on, and to facilitate the promotion, management establishment and carrying on of such unlawful activity, all in violation of 18 U.S.C. § 1952(a)(3), and one count of conspiring to obstruct delay, and affect commerce and the movement of articles and commodities in commerce by extortion, as those terms are defined in 18 U.S.C. § 1951, that is obtaining and attempting to obtain the property of L.I.P. without L.I.P.'s consent induced by the wrongful use of threatened force, violence or fear. Defendant seeks suppression of evidence obtained as a result of a stop allegedly in violation of the Fourth Amendment. The Government argues that it lawfully stopped Defendant at the international border between the United States and Mexico, and the evidence was properly obtained consistent with a border search, and any statements were knowingly and voluntarily made after a waiver of Defendant's Miranda rights.
Pursuant to LRCrim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. On August 25-26, 2014, August 29, 2014, November 6, 2014, November 10, 2014, and November 12, 2014 oral argument was heard by Magistrate Judge Macdonald and the matter taken under advisement. See Minute Entry 8/25/2014 (Doc. 66); Minute Entry 8/26/2014 (Doc. 68); Minute Entry 8/29/2014 (Doc. 73); Minute Entry 11/6/2014 (Doc. 90); Minute Entry 11/10/2014 (Doc. 92); Minute Entry 11/12/2014 (Doc. 97). The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motion.
I. FACTUAL BACKGROUND
A. Report of Possible Kidnapping
Late in the evening of October 11, 2013, Federal Bureau of Investigations ("FBI") Agent Tony Taylor was contacted by Detective Gabriel Lopez from Tucson Police Department ("TPD"). Hr'g Tr. 8/25/2014 (Doc. 71) 42:5-11. Agent Taylor has been an FBI agent for over sixteen (16) years. Id. at 41:15-18. He is currently assigned to the violent crime and major offenders squad, and has been on that squad for a total of approximately fourteen (14) years. Id. at 41:19-42:1. This was Agent Taylor's assigned squad at the time of the October 13, 2013 incident. Id. at 42:2-4.
Agent Taylor testified that Detective Lopez informed him that Luz Parra had contacted TPD's office, and reported that her daughter Melissa Manzanedo was being held, possibly in Mexico, and the people who were allegedly holding her were asking for money in exchange for her safe return. Hr'g Tr. 8/25/2014 (Doc. 71) 42:13-19. Agent Taylor further testified that Detective Lopez also provided more specific information about the telephone calls and the telephone numbers that Ms. Parra received the calls from. Id. at 42:20-43:7. Agent Taylor testified that he provided Detective Lopez advice regarding obtaining telephone records and possibly doing a lookout at the border through the TECS system. Id.
Agent Taylor testified that he and Detective Lopez spoke more than once on the night of October 11, and into October 12, 2013. Id. at 43:8-20. Agent Taylor further testified that Detective Lopez informed him that Ms. Parra said that there was a person demanding money from her. Hr'g Tr. 8/25/2014 (Doc. 71) 43:21-44:6. Agent Taylor testified that Ms. Parra had informed TPD detectives that a few days prior, an individual that she knew only as Veinti Ocho ("28") came to her house looking for Melissa. Id. at 44:7-14. Agent Taylor further testified that Melissa was ultimately found at her apartment, and she went with Veinti Ocho and one other individual to settle a debt. Id. Agent Taylor also testified that Ms. Parra had informed the TPD that she had not seen her daughter, but had received numerous phone calls from individuals demanding money. Id. at 44:19-45:1. Agent Taylor testified that Ms. Parra was initially asked for $14, 000.00, but said she could not come up with that kind of money. Id. at 45:2-11. Agent Taylor testified that Ms. Parra did wire $800.00 via Western Union to a number or name provided by the captors. Id.
Agent Taylor testified that according to Ms. Parra, she believed that the person calling, wanting her to wire money, was Veinti Ocho - the person who had come looking for Melissa and went with her to Mexico. Hr'g. Tr. 8/25/2014 (Doc. 71) 45:12-25; see also id. at 44:7-14. Agent Taylor further testified that Detective Lopez informed him that after Ms. Parra wired the money for the safe return, the individuals continued to demand additional money, and threatened to begin cutting off Melissa's fingers if they did not receive it. Id. at 46:1-9; see also id. at 63:3-14. Agent Taylor also testified that Detective Lopez indicated that Ms. Parra was concerned about her daughter's safety, because she believed that her daughter was being held against her will and in serious danger. Id. at 46:7-13.
Agent Taylor testified that he suggested to Detective Lopez to make a request for an exigency order from the telephone company to determine the location of the two telephones, which he believed were both 520 area code telephone numbers. Id. at 46:14-24. Agent Taylor further testified that Detective Lopez did seek an exigency order, and that the phones were located in the Agua Prieta/Douglas area on October 11 and 12, 2013. Id. 46:25-47:7. Detective Taylor testified that he put Detective Lopez and TPD in contact with someone at the Douglas Police Department to see if they could get further information regarding the telephones' location information. Hr'g Tr. 8/25/2014 (Doc. 71) 47:12-48:3. Agent Taylor further testified that he also began disseminating the information to the Sierra Vista Office, to Supervisory Special Agent Dave Bodily. Id .; see also id. at 48:19-49:13. Agent Taylor also testified that he provided Supervisory SA Bodily and his border liaison officer with a summary of what Detective Lopez had given him, including the concern that if Ms. Parra did not pay, the individuals who held Melissa would begin cutting off her fingers. Id. at 47:12-48:3; 50:3-7; see also 84:12-18, 85:14-19. Agent Taylor testified that this was done both via telephone and e-mail. Id. at 48:4-10. Agent Taylor further testified that Supervisory SA Bodily is the group supervisor for the Sierra Vista FBI, and runs the Sierra Vista office. Id. at 48:15-49:13.
Agent Taylor testified that as a result of this information sharing, Agent Albert Ortiz, an FBI agent on the task force assigned to Supervisory SA Bodily, ran TECS crossings for the victim, Melissa Manzanedo, and her friend, Anel Marquez. Hr'g Tr. 8/25/2014 (Doc. 71) 50:8-52:2. Agent Taylor further testified that the TECS crossings showed crossings for Melissa, as well as Anel Marquez, and the crossings with Anel Marques showed multiple crossings with Lara-Valenzuela. Id. at 50:8-51:2. Agent Taylor also testified that Supervisor SA Bodily reported that Lara-Valenzuela uses the moniker Veinti Ocho. Id. at 50:8-52:2. Agent Taylor testified that the TECS system is used to monitor individuals going across the international border. Id. at 52:12-22. Agent Taylor further testified that he obtained historical telephone records for Ms. Parra via subpoena through Cox Communication. Id. at 53:2-8. Agent Taylor also testified that he interviewed Melissa during his investigation. Id. at 53:9-22, 56:19-25.
B. Initial Contact at the United States - Mexico Border
On October 13, 2013, Customs and Border Protection ("CBP") Officer Armando Altamirano was working at the Douglas, Arizona Port of Entry ("POE"). Hr'g Tr. 8/25/2014 (Doc. 71) 91:9-15. Officer Altamirano has been a CBP officer for over five years. Id. at 87:7-12. He has worked at the Douglas, Arizona POE for his entire career. Id. at 87:13-17. Officer Altamirano described his responsibilities at the POE as including processing the traffic coming into, as well as leaving, the country through the POE. Id. at 18-23. Officer Altamirano described traffic to include vehicles, pedestrians, and cargo traffic. Id. at 87:24-88:25. Officer Altamirano further explained that processing this traffic means checking documentation or vehicles to ensure lawful entry into the United States. Id. Officer Altamirano also described that checking outgoing vehicles and people involves a different process than when they are trying to gain entry into the United States. Hr'g Tr. 8/25/2014 (Doc. 71) 89:1-19. Individuals leaving the United States are checked at random, whereas persons or vehicles entering the country are all inspected. Id.
Officer Altamirano testified that he was working the swing shift, 4:00 p.m. to midnight, on October 13, 2013. Id. at 91:9-18. Officer Altamirano further testified that although he did not have a particular assignment during the shift, on the rotation schedule he was assigned to the pedestrian walkway. Id. at 91:19-22. Officer Altamirano testified that he was responsible for processing traffic coming from Agua Prieta, Sonora into Douglas, Arizona. Id. at 91:23-92:1, 93:2-13. Officer Altamirano further testified that when working as a primary inspector in the pedestrian walkway, he is the first officer that people making entry encounter, and as such he is responsible for determining an individual's admissibility. Hr'g Tr. 8/25/2014 (Doc. 71) 94:10-95:4.
Officer Daniel Castillo of Customs and Border Protection testified that he was also working at the Douglas, Arizona POE on October 13, 2013. Id. at 6:8-12. Officer Castillo has been a CBP officer since December 22, 2008. Id. at 6:1-3. On October 13, 2013, Officer Castillo was working the 4:00 p.m. to midnight shift, assigned to the primary lane inspection, as well as secondary inspection. Id. at 6:18-7:2.
Officer Altamirano testified that on October 13, 2014, he received a briefing via e-mail and a paper copy and photograph at all the terminals regarding a lookout for an individual regarding a possible kidnapping. Id. at 92:5-93:1, 93:16-94:9. Officer Altamirano further testified that on the same day, at 5:16 p.m., a gentleman came through the pedestrian walkway, and gave him his legal permanent resident visa, and when Officer Altamirano entered the information into the system, the lookout alert came up on the terminal. Hr'g Tr. 8/25/2014 (Doc. 71) 95:5-96:11, 116:5-10, 119:17-120:15. Officer Altamirano testified that the alert stated that the individual was "armed and dangerous." Id. Officer Altamirano further testified that this alert was broadcast across all the other terminals simultaneously. Id. at 99:23-100:13. Officer Altamirano testified that when the broadcast went out, he stated over the radio that he was code four (4), meaning that he was okay and to disregard. Id. at 99:23-100:13, 121:2-15. Officer Altamirano further testified that this was to prevent the subject from being alarmed, and in an effort to make the crossing seem as routine as possible, he continued asking the individual the standard questions he asks of all incoming pedestrians. Id. at 96:12-25, 100:14-101:4; 120:16-122:14. Officer Altamirano testified that he asked the individual if he was declaring anything from Mexico, and was told no. Id. at 97:14-23, 121:16-122:14. Officer Altamirano further testified that he asked the individual to empty his front pockets, and the individual complied. Hr'g Tr. 8/25/2014 (Doc. 71) 97:14-23, 121:16-122:14. Officer Altamirano also testified that he had the individual empty his back pockets and turn around to visually inspect his person. Id. at 98:4-13, 121:16-122:14, 123:5-124:1. Once the individual turned around, Officer Altamirano testified that this was his opportunity to get a hold of him, and put handcuffs on him. Id. at 98:14-20, 123:5-124:1. Officer Altamirano further testified that handcuffing the individual was based on the armed and dangerous lookout, and done as a precaution. Id. at 98:21-99:3. Officer Altamirano also testified that he did not use his weapon or show any force on the individual, and the subject did not offer a struggle, although the subject may have been caught off guard. Id. at 99:4-15. Officer Altamirano testified that after a brief pat down of the subject, he and another officer accompanied the subject approximately thirty (30) feet to the secondary inspection office. Id. at 101:5-16, 104:1-105:4; see also Hr'g Tr. 8/26/2014 (Doc. 72) 22:18-23:10. Officer Altamirano further testified that he escorted the subject into a patdown cell, with additional officers providing backup as a result of the "armed and dangerous" lookout. Hr'g Tr. 8/25/2014 (Doc. 71) 102:3-103:12, 125:10-127:22.
Officer Altamirano testified that in the patdown cell, a more thorough search was performed. Id. at 104:1-107:8; see also Hr'g Tr. 8/26/2014 (Doc. 72) 26:16-42:10. Officer Castillo's testimony confirmed that the search took place in the detention cell of secondary. Hr'g Tr. 8/25/2014 (Doc. 71) 9:7-21. Officer Martin Mora, the Douglas Operations Command Center ("DOCC") officer on duty that night, simultaneously filled out the "Personal Detention Log" recording these events, times, and persons involved. Hr'g Tr. 11/6/2014 (Doc. 91) 5:9-18:7. Officer Altamirano further testified that this search included emptying the subject's pockets, and removing any outer layers of clothing, belt, jewelry, and shoes. Hr'g Tr. 8/25/2014 (Doc. 71) 104:1-107:8. Officer Altamirano also testified that Officer Castillo was present to witness the patdown per protocol, and neither he or Officer Castillo or any other officer performed a strip search of the subject. Id. at 108:23-110:10; see also Hr'g Tr. 8/26/2014 (Doc. 72) 52:7-53:14. Officer Castillo testified confirming that he witnessed the subject being patdown over his clothing by Officer Altamirano. Hr'g Tr. 8/25/2014 (Doc. 71) 7:11-8:6, 9:24-10:1, 38:8-39:6. Officer Castillo also testified confirming that any outer layers of clothing may have been removed, but the subject was not stripped of any base clothing. Id. at 18:2-9, 21:4-23, 22:3-23:4, 31:23-32:4. Officer Castillo further testified that his understanding was that the patdown was performed for officer safety, because the subject was identified in a lookout regarding a possible kidnapping of a United States citizen, and also to ensure the health of the individual. Id. at 8:9-9:6, 32:9-25. Officer Altamirano testified that this search lasted approximately eight (8) minutes, and he followed department guidelines. Hr'g Tr. 8/25/2014 (Doc. 71) 110:16-21; Hr'g Tr. 8/26/2014 (Doc. 72) 50:5-9. Officer Castillo estimated that the search took approximately five (5) minutes. Hr'g Tr. 8/25/2014 (Doc. 71) 9:22-23. Officer Mora independently recorded the relevant times and events in the Prisoner Detention Log and the IOIL (the TECS Incident Report Log). See Hr'g Tr. 11/6/2014 (Doc. 91) 5:9-38:7. Rather than taking officer resources away from the inspection lanes, Officer Mora, as the DOCC officer, was responsible for generating reports. Id. at 18:-8-20:5. Officer Altamirano further testified that he left the subject's belongings outside of the cell, and locked him in, while another officer contacted the owning agency of the lookout. Hr'g Tr. 8/25/2014 (Doc. 71) 112:7-113:8.
C. Department of Homeland Security Contact with Defendant at the Border
Agent Albert Ortiz, a Special Agent with the Department of Homeland Security Office of Inspector General ("DHS/OIG"), had October 12, 2013 off work. Hr'g Tr. 8/26/2014 (Doc. 72) 58:7-60:17. Agent Ortiz has been with DHS/OIG since 2012, and prior to that was employed by CBP as a border patrol agent for twelve (12) years. Id. at 58:17-23, Hr'g Tr. 8/29/2014 (Doc. 76) 22:21-23, 24:12-16. Agent Ortiz described DHS/OIG's priority to conduct independent investigations on programs, events, contracts, anything under the DHS umbrella, including employees, to promote the integrity of the department. Hr'g Tr. 8/26/2014 (Doc. 72) 59:1-8. Agent Ortiz also represents DHS/OIG on a border ...