United States District Court, D. Arizona
Cindy K. Jorgenson, United States District Judge
Defendant filed a Motion to Suppress (Doc. 20), Motion to Dismiss (Doc. 29) and Motion to Disclose Agents’ Personnel File (Doc. 21). The government filed a response to each motion. (Docs. 24, 27, 30.) Defendant also filed a supplemental memorandum in support of the Motion to Suppress, to which the government did not respond. (Doc. 43). The matters were referred to Magistrate Judge D. Thomas Ferraro, who held evidentiary hearings on December 9 and 21, 2015. (Docs. 32, 39.) On January 14, 2016, Magistrate Judge Ferraro issued a Report and Recommendation (R & R) recommending that the Motion to Suppress (Doc. 20) and Motion to Dismiss (Doc. 29) be denied and that the Motion to Disclose Agents’ Personnel File (Doc. 21) be denied without prejudice. (Doc. 44.)
Defendant filed objections to the R & R, and the Government responds briefly but relies on the R &.R. (Docs. 52, 57.)
The Court has reviewed the motions, responses, transcripts of the hearings, hearing exhibits, the R & R, and the objections and response to the R & R. The Court overrules Defendant’s objections, denies the Motions to Suppress/Dismiss (Docs. 20-29), denies without prejudice the Motion to Disclose Personnel Files (Doc. 30), and adopts the R & R with a modification.
Defendant was arrested by Border Patrol agents on the evening of June 25, 2015, near the international border in Nogales, Arizona, and later indicted for conspiring to possess with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). In his motions, Defendant asserts that he was detained by the agents without reasonable suspicion and arrested and searched without probable cause. (Doc. 20.) He further argues that the package containing marijuana was destroyed without notice, precluding re-weighing of the marijuana and violating his due process rights. (Doc. 29.) Finally, he seeks the disclosure of the Border Patrol Agents’ personnel files. (Doc. 21.)
II. Legal Standard
The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also, Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).
III. Motion to Dismiss/Suppress (Detention and Arrest)
A. R & R
The R & R found that on June 25, 2015, Border Patrol Agents operating cameras along the international border in Nogales, Arizona, noticed individuals in Mexico setting up a launching device, which was similar to launchers used previously to throw packages containing controlled substances. Thereafter, Agent Rodriguez, a camera operator, notified field agents that a bundle had been launched from Mexico into the United States. (RT1 at 12-14, 77-78.) Agent Rodriguez also provided the field agents with the suspected landing location of the bundle and information that an individual was seen carrying a bundle in the area where he believed the projectile had landed. (RT1 at 12-14, 19, 78, 113, 133.)
Border Patrol Agents Connors and Price responded to the part of Escalada Street where Agent Rodriguez had directed them. (RT at 13-14, 20, 79-80.) As Agent Connors proceeded down the street on foot, Agent Rodriguez informed him which driveway the suspect had entered and Agent Connors walked up the same driveway. (RT1 at 14, 15.) According to Agent Connors, he saw a cylindrical bundle wrapped in tape on the ground and then, approximately 15-20 feet away, he saw Defendant knocking on the front door of a house. (RT1 at 15, 17, 42, 80.) The agents did not see anyone else on the street at that time. (RT1 at 14, 18, 83.) Agent Connor directed Defendant to come to him so he could speak with Defendant. (RT1 at 17.)
At about the same time, Agent Price arrived and assisted Agent Connor. (RT1 at 17, 80.) They questioned Defendant, who claimed he was visiting his grandmother. (RT1 at 83, 111.) Shortly thereafter, a vehicle pulled up and the agents recognized it as one that was usually parked at the residence. (RT1 at 64-65.) The agents questioned the driver of the car, who said he lived in the residence and who denied knowing Defendant. (RT1 at 65, 69-70.)
While Defendant was detained for questioning, Agents Connors and Price were in contact with Agent Rodriguez. (RT1 at 18, 20, 83-84.) Agent Rodriguez and Supervising Agent Ortiz confirmed that Defendant’s clothing matched the description of the individual seen carrying the bundle (red shirt, dark pants, and white shoes). Defendant was then arrested ...