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United States v. Chavira

United States District Court, D. Arizona

July 7, 2016

United States of America, Plaintiff,
Arnoldo Saavedra Chavira, Defendant.

          Arnoldo Saavedra Chavira, Defendant, represented by Ray Anthony Ybarra Maldonado, Law Office of Ray A Ybarra Maldonado PLC.

          USA, Plaintiff, represented by David Patrick Savel, U.S. Attorneys Office.


          CINDY K. JORGENSON, District Judge.

         On July 16, 2015, Defendant was arrested at the Nogales, Arizona Port of Entry and charged with bulk cash smuggling in violation of 31 U.S.C. § 5332. (Doc. 1.) Defendant's juvenile sister was with him in the vehicle at the time of the stop. On August 12, 2015, Defendant was indicted on two-counts: violations of 31 U.S.C. § 5332 (Bulk Cash Smuggling) and 31 U.S.C. § 5324 (Evading Reporting Requirements).[1] (Doc. 12).

         Thereafter, Defendant filed a Motion to Suppress Statements and Evidence and a Motion to Dismiss the Indictment for Outrageous Government Conduct. (Docs. 31, 32.) The matter was referred to Magistrate Judge Eric J. Markovich, and an evidentiary hearing was held on April 14 and April 22, 2016. Magistrate Judge Markovich issued a Report and Recommendation (R & R) on May 19, 2016, recommending denial of both motions. (Doc. 68.) Defendant filed his objections and the Government filed its response. (Docs. 73, 75.)

         The Court has reviewed the Motion to Suppress and the Motion to Dismiss (Docs. 31, 32), the government's responses (Docs. 37, 38), the R & R (Doc. 68), the hearing transcripts from April 14 and 22, 201 (Docs. 52, 58), Defendant's audio-taped interview, Defendant's objections to the R & R (Doc. 58), and the government's response (Doc. 61). The Court will overrule the objections, adopt the R & R, and deny the Motions.

         I. Background

         Defendant's Motion to Dismiss the Indictment for Outrageous Government Conduct is based on the treatment that he and his juvenile sister allegedly received from the federal agents both before and after the arrest. (Doc. 32.) Defendant claims that government agents violated the Juvenile Delinquency Act ("JDA") by detaining his sister for a prolonged period of time without advising her of her legal rights and immediately notifying her parents that she was in custody for an alleged offense. He also claims that agents threatened to charge his juvenile sister with a crime if he did not speak to law enforcement and that U.S. Customs and Border Protection ("CBP") officers humiliated him both by telling his sister about his private medical condition and by making fun of his medical condition.

         The Motion to Suppress alleges that Defendant's statements to law enforcement were involuntary because Defendant was coerced into waiving his rights by the threat to charge his juvenile sister and by the agents' violation of his sister's rights under the JDA. (Doc. 31). The Motion to Suppress also alleges that the search of the juvenile's purse and the pat down of Defendant were unreasonable under the Fourth Amendment because law enforcement did not have probable cause or a reasonable suspicion that Defendant and/or his sister were engaging in criminal activity at the time of the stop or initial searches.

         At the evidentiary hearing, the government called CBP Officer Sony Bun; CBP Officer Adrian Morales; and Border Patrol Agent Julio Barajas. The defense called Defendant's juvenile sister; Defendant's mother, Leticia Saavedra; and Defendant. The R & R summarizes the testimony of the witnesses, and this Court will not repeat the summaries here. (Doc. 68 at 3-11.) The Court notes there is no dispute that on July 16, 2015, Defendant and his juvenile sister were in a vehicle attempting to leave the United States and enter the Republic of Mexico at the Nogales Port of Entry. Officer Bun, who was working the outbound vehicle lane at the port of Entry, waved for Defendant to stop his vehicle and asked Defendant if he or the female passenger had any weapons, ammunition, or currency in excess of $10, 000 to declare. Defendant denied that he and the juvenile accompanying him had any of these items, including more than $10, 000 in currency in their possession or in their vehicle. There is also no dispute that Bun had not received a tip to watch for someone transporting money and that there was nothing suspicious about Defendant or his vehicle.

         Officer Bun noticed that the female in the passenger seat had a purse either on her lap or on the floor. According to Bun, he asked for consent to search the purse and it was handed to him; according to Defendant and his sister, Bun simply took the purse from her. He opened the purse and found two sealed envelopes. When he asked what it was, Defendant responded that it was money. Bun requested identification from both Defendant and the juvenile; they both provided their passports and were referred to the secondary inspection area.

         At the secondary inspection area, Officer Bun gave the passports to his colleague, CBP Officer Adrian Morales, who conducted a pat down of Defendant to check for weapons. Officer Morales discovered something around Defendant's ankles and inner thigh. When Officer Morales asked what the bundles were, Defendant stated "money." Officer Morales placed Defendant in handcuffs. Bun testified that he stayed with the juvenile sister in a waiting area for about 30 minutes until a female officer was available to conduct a pat down.

         Officer Morales brought Defendant into the building at the Port of Entry to conduct a more thorough pat down; he asked Defendant if he was taking any medications or had any medical conditions. Defendant stated that he had a skin rash around his waist area that might be contagious. Officer Morales testified that officers use latex gloves for all thorough pat downs, and he used gloves to conduct the pat down, which revealed currency bundles tucked into Defendant's socks and shoes and taped around his thighs. Morales conceded that he did not ask for Defendant's consent to perform the pat down and testified that officers routinely conduct such pat downs for officer safety when an occupant exits a vehicle in secondary inspection. There is evidence that the officers made unprofessional comments about Defendant's skin rash and that Defendant's sister heard the comments.

         Officer Barajas took a recorded statement from Defendant after reading Defendant his Miranda warnings; Defendant said he understood his rights and was willing to speak without counsel. Defendant also signed a form acknowledging receipt of the warnings and that he understood them, and he waived his rights. (Docs. 52, Exs. 1, 5.) Defendant made various statements during the interview. Defendant asserts that prior to the recorded interview and Miranda warnings, he had a brief conversation with Barajas as Barajas escorted Defendant from his cell; Defendant claims that Barajas told him that "if I did not-if I didn't pretty much talk to them, that my sister would be facing the same thing that I'll be facing." Barajas denied that he threatened to charge or arrest Defendant's sister and testified that did not recall having a conversation about the sister before the tape recorded was turned on, although he admitted that Defendant may have asked him a question and he answered truthfully.

The search of Defendant and the juvenile's purse revealed more than $76, 000.

         As noted Magistrate Judge Markovich recommended that this Court deny both motions. He summarized his conclusions as follows:

Both the motion to suppress evidence and statements and the motion to dismiss the indictment are based on alleged unprofessional conduct of law enforcement, specifically, the alleged mistreatment of the defendant and his juvenile sister by law enforcement officers at the DeConcini Port of Entry. The behavior of some of the law enforcement officers involved in the defendant's arrest may have been rude, impolite, and even childish, but that behavior was not so outrageous as to justify dismissal of the indictment. Similarly, while it would have been courteous to obtain the juvenile's consent to search her purse and to ask the defendant for permission to conduct a pat down of his outer clothing, no consent or permission was required under the border search doctrine. Finally, there is no evidence that the defendant's waiver of rights was involuntary because the defendant was offended by the CBP officers' insensitive comments about his skin condition and/or his (understandable) concerns that his sister was also likely going to be searched, interviewed, and potentially charged with a criminal offense.

(Doc. 68 at 11-12.)

         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. ...

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