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United States v. Alonso-Castaneda

United States District Court, D. Arizona

April 14, 2015

United States of America, Plaintiff,
v.
Tule Israel Alonso-Castaneda, Defendant.

REPORT AND RECOMMENDATION

BRUCE G. MacDONALD, Magistrate Judge.

Currently pending before the Court is Defendant Tule Israel Alonso-Castaneda's Motion to Suppress Images Illegally Found on Cellphone [sic] (Doc. 25). The Government filed its Response to Defendant's Motion to Suppress ("Response") (Doc. 34), and Defendant filed his Reply (Doc. 35). Defendant is charged with four (4) counts of using any means or facility of interstate or foreign commerce, to knowingly distribute, child pornography, that is, visual depictions, the production of which involved the use of minors engaging in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256(2), and which depicted such conduct, which had been shipped and transported in interstate or foreign commerce by means of computer, or otherwise. Indictment (Doc. 1) at 1-3. Defendant is also charged with three (3) counts of using any means or facility of interstate or foreign commerce, to knowingly receive, using any means or facility of interstate or foreign commerce, including by computer, child pornography, that is, visual depictions, the production of which involved the use of minors engaging in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256(2), and which depicted such conduct, which had been shipped and transported in interstate or foreign commerce by means of computer, or otherwise. Id. at 3-4. Lastly, Defendant is charged with one (1) count of knowingly possessing child pornography, that is, visual depictions, the production of which involved the use of minors engaging in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256(2), and which depicted such conduct, which had been shipped and transported in interstate or foreign commerce by means of computer, or otherwise. Id. at 5. Defendant Tule Israel Alonso-Castaneda seeks "suppression of the images of child pornography found on the cell phone during the warrantless search in this matter." Def.'s Mot. to Suppress Images Illegally Found on Cellphone [sic] (Doc. 25) at 8.

Pursuant to LRCrim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. On March 10, 2015, oral argument was heard by Magistrate Judge Macdonald and the matter taken under advisement. Minute Entry 3/10/2015 (Doc. 36). The Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Encounter

On December 8, 2010, United States Border Patrol Agent Argelia Robles was on duty at the United States Border Patrol checkpoint located on Interstate 19, Kilometer Post 41, near Tubac, Arizona. Hr'g Tr. 3/10/2015 (Doc. 40) 11:7-22, 30:4-7. Agent Robles was assigned to the primary inspection area of the checkpoint, conducting immigration inspections. Id. at 11:23-12:4, 14:12-17. Agent Robles has been a Border Patrol Agent for nine (9) years and eleven (11) months. Id. at 10:14-18. Initially, Agent Robles was assigned to the duty station in Yuma, Arizona, then later transferred to Nogales, Arizona, and now is assigned to Tucson, Arizona. Id. at 10:19-23. She is currently a prosecutions agent. Id. at 10:24-25. Border Patrol Agent Tim Kouris is currently assigned to the Nogales Border Patrol Station as a K-9 handler. Hr'g Tr. 3/10/2015 (Doc. 40) 47:1-13, 47:24-48:5. Agent Kouris has been a border patrol agent for almost sixteen (16) years, and has been a K-9 handler since June 2008. Id. at 47:14-23.

On the date in question at approximately 6:45 p.m., Agent Robles was at the primary inspection area, when a white 2002 BMW X5 sports utility vehicle approached her position. Id. 14:18-24, 16:10-12, 34:5-8, 35:1-6, 49:10-12. At the same time, Agent Kouris was assigned to work his K-9 in the pre-primary area of the checkpoint. Id. at 48:9-49:9. This assignment involved moving through traffic, and allowing his dog to sniff the vehicles. Id. Agent Robles testified that Defendant Alonso-Castaneda was the driver and lone occupant of that vehicle. Hr'g Tr. 3/10/2015 (Doc. 40) 14:18-24, 16:10-12, 34:5-21; see also Hr'g Tr. 3/10/2015 (Doc. 40) at 71:18-22. Agent Robles asked Defendant Alonso-Castaneda if he was a United States citizen, and he responded affirmatively. Hr'g Tr. 3/10/2015 (Doc. 40) at 14:18-24, 16:10-12, 34:5-21. While Agent Robles was interacting with Defendant Alonso-Castaneda, Agent Kouris was conducting a K-9 sniff at the rear of the vehicle. Id. at 14:25-15:4, 34:22-25, 48:22-49:9. Agent Robles testified that she went to the rear of the vehicle and Agent Kouris told her to refer the vehicle to secondary inspection, because the K-9 had alerted to the vehicle. Id. at 14:25-15:18, 36:2-4. Agent Kouris confirmed that he requested Agent Robles to refer the vehicle to secondary. Id. at 48:22-49:20. As such, Agent Robles directed Defendant Alonso-Castaneda to the secondary inspection area, and he moved his vehicle accordingly. Id. at 14:25-16:4, 36:22-35, 37:10-21, 49:21-25.

Agent Robles testified that initially upon referring Defendant to the secondary inspection area, she remained at her post in the primary inspection area. Hr'g Tr. 3/10/2015 (Doc. 40) 16:5-17, 37:10-21. Agent Robles further testified that approximately ten (10) or fifteen (15) minutes later, she heard Agent Kouris over her service radio state that "it was good for narcotics." Id. at 16:13-19, 16:25-17:5. Agent Robles testified that she called another agent for relief, and went to help Agent Kouris. Id. at 16:20-24.

B. Secondary Inspection

Border Patrol Agent Thomas Mogz testified that on the date in question, he was in the canopied seating area of secondary while Defendant Alonso-Castaneda's vehicle was searched. Hr'g Tr. 3/10/2015 (Doc. 4) 113:4-14, 114:7-115:9. Agent Mogz is currently assigned to the Sandusky Bay Border Patrol Station in Ohio. Id. at 111:23-112:3. He has been a border patrol agent for over five (5) years, and prior to his current assignment, he was assigned to the Presidio, Texas Border Patrol Station, and temporarily assigned for ninety (90) days to the Nogales Border Patrol Station in 2010. Id. at 112:4-13. While assigned to the Nogales Border Patrol Station, Agent Mogz was assisting with field operations, including working the I-19 checkpoint. Id. at 112:14-19.

Agent Kouris testified that the standard procedure, once a vehicle is referred to secondary, is for the driver to exit the vehicle, and the vehicle moved approximately twenty (20) yards away for an X-ray to be taken of it. Id. at 50:1-15, 57:11-19, 73:2-74:4, 75:11-22. The driver is then seated in a carport area, while their vehicle is being inspected. Hr'g Tr. 3/10/2015 (Doc. 40) 50:16-22, 54:8-13, 74:5-9. Agent Mogz testified that he escorted Defendant Alonso-Castaneda from his vehicle to the seating area, approximately fifty (50) feet away. Id. at 114:11-115:9. Agent Kouris further testified that individuals in the carport area, although detained, are not under arrest, and are not handcuffed. Id. at 50:23-51:3, 54:14-22, 109:16-110:4. Agent Kouris also testified that these individuals are also allowed to take their personal possessions, such as purses and telephones, out of the vehicle with them as long as the items do not pose a threat to officer safety. Id. at 105:22-10. Agent Kouris testified that once the X-ray is done of the vehicle, he and his K-9 will perform a follow-up sniff, which is what occurred on the day in question. Id. at 50:4-52:8. Agent Kouris remained at primary inspection until he was notified by the agent performing the X-ray that he was finished, and anomalies had been found. Hr'g Tr. 3/10/2015 (Doc. 40) 49:21-25, 51:15-52:1, 76:21-77:3; see also Hr'g Tr. 3/10/2015 (Doc. 40) 114:24-115:9. Agent Kouris testified that he then went and performed a systematic K-9 sniff of Defendant Alonso-Castaneda's vehicle, and his K-9 alerted and pinpointed to an area in the rear of the vehicle. Hr'g Tr. 3/10/2015 (Doc. 40) 52:2-21, 77:6-22. Agent Kouris testified that he secured his K-9, and further inspection of the vehicle uncovered four (4) large bundles of suspected illegal contraband in the area which would normally hold the spare tire. Id. at 52:9-53:13. Agent Kouris further testified that once he found the bundles he advised, over his service radio, that he had located contraband. Id. at 53:20-24. Agent Kouris also directed over the radio that Defendant Alonso-Castaneda be placed under arrest. Id. at 102:6-13, 103:13-21; 115:10-19.

Agent Kouris testified that photographs were then taken, and a further search of the car took place to ensure all contraband and other evidence was found. Id. at 54:22-55:12, 60:1-25, 77:23-14. Agent Kouris further testified that the vehicle was not registered to Defendant Alonso-Castaneda, and the cellular telephone was found clipped to the visor above the driver's seat. Hr'g Tr. 3/10/2015 (Doc. 40) 55:13-24, 56:9-13, 103:22-104:5. Agent Kouris estimated that between twenty (20) and twenty-five (25) minutes passed prior to discovery of the telephone. Id. at 56:25-57:10, 110:5-20. Agent Kouris testified that he moved behind the vehicle and looked at the cellular telephone for text messages or calls relevant to the crime, or incriminating photographs of drugs, money, or weapons. Id. at 57:22-59:12, 104:6-18, 107:16-109:13. While reviewing the contents of the cellular phone, Agent Kouris found images of an explicit nature depicting minors. Id. at 59:13-15, 71:23-72:4. Agent Kouris testified that at that point he stopped looking at the phone, and notified his immediate supervisor of the situation. Id. at 59:16-25, 72:5-25. Ultimately, Immigration and Customs Enforcement ("ICE") and Drug Enforcement Administration ("DEA") were contacted. Hr'g Tr. 3/10/2015 (Doc. 40) 59:16-25, 61:16-21. Agent Kouris testified that the cellular telephone was secured prior to transport to Nogales for processing. Id. at 61:12-62:4.

Agent Robles testified that when she went to the secondary area, and Defendant Alonso-Castaneda was seated under the canopy located there speaking with Agent Jose Martinez, and Defendant's vehicle was parked next to the secondary inspection area. Id. at 17:6-24, 18:5-7, 38:17-24. Agent Robles further testified that after stopping by Agent Martinez, she then went to the rear of the vehicle where Agent Kouris was located. Id. at 18:11-13, 20:12-19. Agent Robles testified that when she went to the rear of the vehicle, she saw bundles of marijuana, and Agent Kouris told her that he had found a cell phone containing child pornography. Id. at 18:11-24, 20:12-29, 23:2-4, 42:8-20. Agent Robles estimated that the time between her initial encounter with the Defendant in the primary inspection lane, and learning about the child pornography on the cellular telephone was approximately thirty (30) minutes. Hr'g Tr. 3/10/2015 (Doc. 40) 19:8-20:4, 39:13-16. Agent Robles testified that Agent Kouris contacted the DEA regarding the case, and was told by DEA Special Agent Dawson to contact ICE. Id. at 28:15-21. Agent Robles further testified that Agent Kouris then spoke with ICE Special Agent ("SA") Mike Osborne, who informed Agent Kouris of his intention to investigate the case further at the border patrol station. Id. at 28:15-29:7.

Agent Mogz testified that after Agent Kouris made the call to arrest Defendant Alonso-Castaneda, Agent Martinez handcuffed him, and Agent Mogz assisted in escorting the Defendant to the holding cell. Id. at 115:10-116:9. Agents Robles and Mogz witnessed Agent Kouris reading Defendant Alonso-Castaneda his Miranda rights in one of the holding cells, located in the trailer at the checkpoint. Id. at 21:2-23, 22:21-15, 23:8-24:25, 41:6-19, 62:13-21, 69:24-2, 115:19-116:12. Agent Robles agreed that approximately one (1) hour elapsed between her initial encounter and Agent Kouris reading Defendant Alonso-Castaneda his Miranda rights. Id. at 41:20-24. Agent Kouris also performed a search of Defendant Alonso-Castaneda's person and found $1, 045.00, which was then seized. Hr'g Tr. 3/10/2015 (Doc. 40) 21:24-22:8, 41:6-16, 63:10-25. Agent Kouris testified that the physical search happened prior to giving the Defendant his Miranda warnings. Id. at 64:1-4. Defendant signed the advise of rights form, which was witnessed by Agent Kouris. Id. at 64:9-65:7. After being advised of his rights, Defendant Alonso-Castaneda made a statement that he was on his way to the Cactus Moon bar in Tucson, Arizona to celebrate his girlfriend's birthday. Id. at 25:13-23. Agents Robles and Kouris testified that Defendant Alonso-Castaneda stated that the car and the cellular telephone both belonged to his girlfriend. Id. at 26:2-8, 65:5-20, 70:3-11. Agent Mogz confirmed that Defendant Alonso-Castaneda stated that the phone did not belong to him. Hr'g Tr. 3/10/2015 (Doc. 40) 116:20-117:12. Agent Kouris confirmed that his report mentioned the vehicle ownership question, but not the phone question. Id. at 70:12-71:11. Subsequently, Agents Robles, Martinez, and Mogz transported ...


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