United States District Court, D. Arizona
JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE
On February 26, 2016, Magistrate Judge Bernardo P. Velasco issued a Report and Recommendation (“R&R”) (Doc. 57) in which he recommended that Defendant Eduardo Vasquez Durazo’s Motion to Suppress evidence obtained as a result of a traffic stop (Doc. 24) be denied and that Defendant’s Motion to Suppress evidence obtained as a result of a vehicle search (Doc. 25) be granted. Both Defendant and the government filed Objections to the R&R. (Docs. 60, 61.) For the reasons stated herein, the Court adopts the R&R with respect to Doc. 24 and rejects the R&R with respect to Doc. 25.
STANDARD OF REVIEW
The Court reviews de novo the objected-to portions of the R&R. 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 R&R. 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). If the Court rejects the credibility findings of the magistrate judge, a de novo hearing is required. United States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir. 2002).
The factual background contained in Magistrate Velasco’s R&R (Doc. 57) is adopted as supplemented by the additional facts stated in this Order. United States Border Patrol Agent Eric Jaramillo was the sole witness to testify at the evidentiary hearing on the motions. The Court notes that while the parties dispute the legal significance of Agent Jaramillo's observations, they do not dispute the veracity of his observations.
The Defendant objects to the Magistrate Judge’s finding that Agent Jaramillo had reasonable suspicion to stop Defendant’s vehicle on September 22, 2015. The Government objects to the Magistrate Judge’s finding that Agent Jaramillo’s search of the vehicle exceeded the scope of the search to which Defendant had consented. The Court concludes that Agent Jaramillo's stop of Defendant's vehicle was supported by reasonable suspicion. The Court further finds that Agent Jaramillo’s search did not exceed the scope of Defendant’s consent and that, regardless of Defendant’s consent, Agent Jaramillo had probable cause to search Defendant’s vehicle. Accordingly, the Court will deny Defendant's Motions to Suppress.
1. Agent Jaramillo had reasonable suspicion to stop Defendant’s vehicle
A border patrol agent may conduct “brief investigatory stops” without violating the Fourth Amendment “if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot.” United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) (citing United States v. Arvizu, 534 U.S. 266, 273 (2002)). Reasonable suspicion is defined as “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. (citation omitted). The reasonable- suspicion standard is not a particularly high threshold to reach. Id. “Although ... a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274. When reviewing a border patrol officer's reasonable suspicion, the Court must consider the totality of the circumstances, including characteristics of the area, proximity to the border, usual patterns of traffic and time of day, previous alien or drug smuggling in the area, behavior of the driver, appearance or behavior of passengers, and the model and appearance of the vehicle and the agent’s training and experience. See Valdes-Vega, 738 F.3d at 1079 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975)). Not all of these factors must be present or highly probative in every case to justify reasonable suspicion. See id.
Agent Jaramillo's testimony established that numerous factors are present in this case. On September 22, 2015, Agent Jaramillo was assigned to roving patrol because the Highway 191 Border Patrol checkpoint was closed due to rain. (Doc. 54, pg. 6.) In Agent Jaramillo’s eight years of experience and training, drug and alien smuggling operations use closed checkpoints as an opportunity to transport illegal loads. (Id., pgs. 4, 6, 9.) While on roving patrol, Agent Jaramillo observed a Ford F-250 truck with an amber light on the roof consistent with a commercial vehicle, but the truck did not have any other markings to suggest it was a commercial vehicle. (Id., pg. 11.) The license plate on the truck did not have letters typically assigned to commercial vehicles. (Id.) The truck had been newly-registered in Defendant’s name; Agent Jaramillo knew from his training and experience that smugglers often transport illegal cargo in newly-registered vehicles. (Id., pg. 16.) A newly-registered Jeep SUV was traveling 15-20 car lengths behind the F-250; the traffic on that day was light and, apart from the F-250 and the Jeep traveling close together, Agent Jaramillo had observed a car pass by only every few minutes. The Jeep had entered the United States through the Douglas Port of Entry that morning. (Id., pg. 13.) Both the F-250 and the Jeep had Treasury Enforcement Communication System (TECS) alerts: the Jeep had been involved in narcotics smuggling and Defendant -- the registered owner of the F-250 -- had a prior arrest for alien smuggling. (Id., pgs. 13-17.)
Under the totality of the circumstances, Agent Jaramillo had reasonable suspicion to stop Defendant’s Ford F-250. At the time of the stop, Agent Jaramillo knew Defendant had a prior arrest for alien smuggling and was driving along a known smuggling route when smuggling was believed to be more likely due to the checkpoint closure. Defendant’s vehicle was traveling in close proximity with another vehicle that had recently crossed the border and was known to be involved in narcotics smuggling. The fact that the two vehicles were traveling together was inconsistent with the light traffic pattern at the time, suggesting that the vehicles were driving in tandem. Defendant’s vehicle and the Jeep were newly-registered vehicles; Agent Jarmillo knew from his training and experience that newly-registered vehicles such as Defendant’s were more likely to be used in smuggling operations. These factors, taken as a whole, formed an objective basis for Agent Jaramillo to reasonably suspect that Defendant was involved in illegal activity.
2. Agent Jaramillo’s search did not exceed the scope of Defendant’s consent, but even if it did, Agent Jaramillo had probable cause to search behind Defendant’s back seat
The Magistrate Judge concluded that Agent Jaramillo’s search of Defendant’s vehicle exceeded the scope of Defendant’s consent because Defendant had only agreed that Agent Jaramillo could “look” in the backseat, and Agent Jaramillo discovered drugs in Defendant’s car after moving the back seat rest forward. (Doc. 57, pgs. 3-4.) In the pending Objection, the government argues that Agent Jaramillo’s search did not exceed the scope of ...