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United States v. Ventura

United States District Court, D. Arizona

April 8, 2016

United States of America, Plaintiff,
v.
Candace Rae Ventura, Defendant.

REPORT AND RECOMMENDATION

BRUCE G. MacDONALD, Magistrate Judge.

Currently pending before the Court is Defendant's Motion to Suppress Evidence for Lack of Reasonable Suspicion (Doc. 41). The Government has filed its response. Govt.'s Response to Def.'s Mot. to Suppress Evidence for Lack of Reasonable Suspicion (Doc. 42). Defendant replied (Doc. 46). Defendant is charged with four (4) counts of transportation of illegal aliens for profit in violation of Title 8, United States Code, Section 1324. Indictment (Doc. 17) at 1-3. Defendant Candace Rae Ventura argues that agents lacked reasonable suspicion to stop her vehicle, and as such seeks suppression of all evidence obtained as a result thereof. See Def.'s Mot. to Suppress Evidence for Lack of Reasonable Suspicion (Doc. 41).

Pursuant to LRCrim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. On March 9, 2016, an evidentiary hearing was held before Magistrate Judge Macdonald, and the matter taken under advisement. Minute Entry 3/9/2019 (Doc. 49). The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Background

At approximately 8:30 p.m. on June 7, 2015, United States Border Patrol Agent Carlos Ortiz was on duty and driving out State Route 86 to the Sells, Arizona area and then turning South on Federal Route 19 to his area of responsibility. Hr'g Tr. 3/9/2016 (Doc. 55) 10:10-13:19; see also Govt's Exh. "1." Agent Ortiz will have been a Border Patrol agent for eight (8) years in October of 2016. Hr'g Tr. 3/9/2016 (Doc. 55) 5:10-12. He is currently assigned as a field agent working in the area of responsibility for both Casa Grande and Three Points stations. Id. at 6:14-20, 29:5-30:19. The area of responsibility for both stations is the same. Id. at 6:14-20, 7:2-9. Agent Ortiz further testified that most of the people living in his area of responsibility are Native Americans living on the Tohono O'odham reservation. Id. at 30:23-31:8.

Agent Ortiz described his field agent assignment as "first and foremost [to] interdict terrorists and human/narcotic smuggling[.]" Id. at 6:21-7:1, 7:19-8:10. He has also, at times, had specialized assignments with Border Patrol including the ATV unit and mobile surveillance unit. Hr'g Tr. 3/9/2016 (Doc. 55) 7:12-18. Agent Ortiz has also undergone post-academy training regarding the performance of vehicle stops and what indicators to look for during those stops, as well as how to use the immigration laws. Id. at 5:22-6:13, 8:12-9:9. Agent Oritz testified that his shift started at approximately 6:00 p.m. and ended at 2:00 a.m. on the date in question. Id. at 10:10-18.

Agent Ortiz described his Federal Route ("FR") 19 as a two-lane, paved road, with a speed limit of fifty-five (55) miles per hour. Id. at 14:5-18, 19:11-13, 45:16-23. Agent Ortiz further testified that the Border Patrol agents tend to patrol along the border and stay along the dirt roads that branch off from FR 19. Id. at 13:20-14:4. At Mile Marker 23, there is a sign on the southbound lane, that the area is private and restricted for the Tohono O'odham Nation. Hr'g Tr. 3/9/2016 (Doc. 55) 14:19-15:1, 38:15-23, 40:18-24. Agent Ortiz agreed that there are groupings of homes located along FR 19. Id. at 31:17-33:22. Agent Ortiz also testified that in the time that he has patrolled this area, he has become familiar with the vehicles owned and used by the people who live in the area. Id. at 15:2-5.

B. Initial Sighting

Agent Ortiz testified that on the date in question, at about 8:30 p.m., he saw a 1996 Dodge Caravan at approximately milepost 8. Hr'g Tr. 3/9/2016 (Doc. 55) 15:6-10, 45:10-15, 47:4-7, 63:8-10. Agent Ortiz was driving southbound on FR 19 and the Dodge Caravan was traveling north. Id. at 15:11-15. Initially, the Dodge Caravan caught Agent Ortiz's attention because it was not a vehicle that he recognized. Id. at 15:16-25.

After the Dodge Caravan caught Agent Ortiz's eye, he pulled to the side of the road and made a U-turn back onto FR 19 heading northbound. Id. at 17:25-10, 48:18-19. Agent Ortiz testified that once he was traveling northbound, he observed the Dodge Caravan turn on its turn indicator, but passed a couple of opportunities to turn off the road. Id. at 18:11-21. Agent Ortiz further testified that when he came up behind the vehicle, it came to a stop in the middle of the road. Hr'g Tr. 3/9/2016 (Doc. 55) 18:22-19:3, 48:20-24. At this point, the Dodge Caravan attempted to execute a U-turn; however, the narrow roadway required a multi-point turn. Id. at 19:4-10, 48:25-49:4. Once the Dodge Caravan was turned back southbound, it turned right down a dirt road to the first house it came to. Id. at 19:14-20:7, 49:7-10. Agent Ortiz also made a U-turn and observed the Dodge Caravan turn into the first house. Id. at 19:17-20:4, 49:11-12.

Agent Ortiz described the area as remote and generally with few vehicles on the road. Id. at 16:1-10. Agent Ortiz testified that the road sees the most traffic early in the morning and then around 4:00 or 5:00 p.m. when people are coming home. Hr'g Tr. 3/9/2016 (Doc. 55) at 16:5-18. Agent Ortiz further testified that at approximately 8:30 p.m., there were very few cars on the road. Id. at 16:1-25. Agent Ortiz also testified that FR 19 is a high traffic area for narcotics and alien smuggling. Id. at 17:20-24, 60:19-21. Agent Ortiz testified that FR 19, also known as San Miguel Road near the border, is the only paved road that runs from the border to central Arizona in the area of southern Arizona which is his area of responsibility. Id. at 28:9-22. Agent Ortiz testified that he has previously interdicted loads of drugs or aliens on FR 19. Id. at 17:1-10. Agent Ortiz further testified that the agents he works with in the area have also interdicted loads of drug and aliens on FR 19. Id. at 17:11-13. Prior to before beginning his shift, Agent Ortiz participates in muster (briefing) and receives intelligence from other agents. Hr'g Tr. 3/9/2016 (Doc. 55) 17:14-19, 37:10-12.

C. Additional Observation

Agent Ortiz parked along the dirt road, outside of the fence line, where he could observe the Dodge Caravan. Id. at 20:13-18, 49:13-14. Agent Ortiz further testified that he observed the Dodge Caravan park at the house, but no one exited the vehicle immediately. Id. at 20:5-12. After approximately one (1) minute, Agent Ortiz observed the driver exit the Dodge Caravan and then knocked on the front door of the house. Id. at 20:8-23, 49:15-50:4. Agent Ortiz observed an occupant answer the door and have a conversation with the driver of the Dodge Caravan. ...


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