United States District Court, D. Arizona
Honorable Rosemary Márquez United States District Judge
Pending before the Court is a Report and Recommendation (Doc. 48) issued by United States Magistrate Judge Bruce Macdonald (Doc. 32). In the Report and Recommendation, Judge Macdonald recommends that this Court deny Defendant’s Motion to Suppress (Doc. 23) after finding that there was reasonable suspicion to justify the January 23, 2015 investigatory stop that lead to Defendant’s arrest. Defendant objects and argues that the Border Patrol Agents involved lacked the necessary objective facts to reasonably suspect him of any criminal conduct.
Judge Macdonald held a hearing on Defendant’s Motion to Suppress on July 31, 2015. Border Patrol Agents Eduardo Hidalgo, Sean Dorsey, and Jesus Verdugo testified as follows.
On January 23, 2015 at approximately 3:15 p.m., Agent Hidalgo was off-duty from his post in Douglas, Arizona and was driving to his home in the city of Naco, Arizona. Each of the agents testified that Naco is a particularly small border city. Agents Dorsey and Verdugo stated that it takes one to two minutes to drive through the entire city. Naco is almost entirely residential and both Agents Hidalgo and Verdugo testified that aside from school children walking to and from home, there was very little foot traffic. When asked if he witnessed frequent foot traffic in Naco, Agent Dorsey testified that outside of the many undocumented immigrants he has seen, he has witnessed only occasional foot traffic. Agent Hidalgo testified that there are no sidewalks.
Agent Hidalgo has lived in Naco for thirty years and knows all of his neighbors. Agents Dorsey and Verdugo have been stationed in Naco for over seven and fourteen years, respectively. Each agent testified that Agent Hidalgo’s neighborhood, which is just a few blocks from the international border, has high incidents of human and narcotic smuggling. Agent Hidalgo had not personally witnessed any undocumented immigrants in Naco before the day in question. Border Patrol Agents Dorsey and Verdugo testified that there have been numerous occasions on which they have intercepted illegal immigrants in Naco. Agent Verdugo in particular listed several interceptions of smuggling activity directly in front of, in the alley directly adjacent to, and in various places in the two-block radius surrounding Agent Hidalgo’s home.
As Agent Hidalgo was preparing to turn onto his block on January 23, 2015, he noticed two men who were standing on the corner looking around for something or someone. Agent Hidalgo did not recognize either man. One of the men was talking into a cell phone and both men were visibly in search of something. When Agent Hidalgo turned onto his street and proceeded into his garage, the men were walking east on Dominquez Street towards an alley next to Agent Hidalgo’s house.
Agent Hidalgo testified that the men’s actions made him suspicious because it was unusual to see strangers walking around in his neighborhood and, given their apparent search and Agent Hidalgo’s knowledge of common practices of human smugglers, it appeared possible that the men might be looking for a pick-up spot as part of a smuggling operation. Specifically, Agent Hidalgo testified that smugglers often directed undocumented immigrants by telephone to a car or person who is to provide them transportation on the next stage of their journey.
Because of these reasons, Agent Hidalgo called the Border Patrol dispatch upon entering his house and alerted them that he believed he might be witnessing two undocumented immigrants in the middle of a smuggling operation. Agent Hidalgo went into his bathroom where a window overlooked the alley, and he saw the two men get into the back seat of a distinctive gold and black car.
The alley next to Agent Hidalgo’s house is unpaved and is not maintained by the city. Agent Hidalgo testified that he maintains the alley by mowing the grass because he has a swingset in the alley that his children use. Agents Dorsey and Verdugo testified that they do not usually see cars in the alley, and Agent Hidalgo testified that the only cars he had previously seen were utility vehicles checking various meters for the neighboring houses. Agents Hidalgo and Dorsey testified that they had not seen individuals walking in the alley in the past. Agent Verdugo testified that he has previously found illegal immigrants there.
Agent Hidalgo testified that he told the Border Patrol dispatch that he believed he had just witnessed two illegal immigrants load into the back seat of a black and gold 1990s model Cavalier. He also relayed that as he was speaking, the car was backing out of the alley and subsequently turned onto Dominquez Street, crossed Towner Avenue, made a U-turn, and then turned North onto Towner Avenue. Dispatch thereafter issued an alert that an off-duty border patrol agent witnessed two individuals who he believed were undocumented immigrants enter a black and gold 1990s Cavalier on West Dominguez Street and that the car was then seen traveling North on Towner.
Agents Dorsey and Verdugo, who are both members of the Disrupt Unit, heard the call from dispatch at approximately 3:40 p.m. The Disrupt Unit uses border patrol agents in plainclothes and unmarked cars to investigate and intercept illegal smuggling operations. Both Agents testified that the timing of this tip was significant because it was right before the Patrol Unit’s next shift change. They testified that smuggling operations attempt to time their actions to limit the likelihood of detection, in particular by moving individuals during and around the Patrol Unit’s change in shifts. The theory is that as agents are moving off and into the field, they are paying less attention to those around them. Agents Dorsey and Verdugo have found over the years that smuggling activity tends to increase when one patrol shift is ending and another is beginning.
In response to the dispatch call, Agents Dorsey and Verdugo drove to the intersection of Route 92 and Naco Highway. They chose this location because, of the few routes out of Naco, it is the one most frequently used by smuggling operations. After hearing that a vehicle matching the description had been sighted by the Border Patrol’s remote surveillance, the agents saw the suspected vehicle. While both agents spend their days in the small Naco area, neither had seen the car before.
The agents followed the car as it turned eastbound on Route 92. While they were following the vehicle, the agents ran the license plate and determined that the car was registered to a female in Phoenix. Each agent testified that this was significant because the majority of human smugglers use cars that are registered out of Phoenix. Agent Verdugo in particular testified that ...