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United States v. Slayden

United States District Court, D. Arizona

October 19, 2016

United States of America, Plaintiff,
v.
JEREMIAH SLAYDEN, Defendant.

          REPORT AND RECOMMENDATION

          D. Thomas Ferraro, United States Magistrate Judge

         Before the Court are Defendant Slayden's motion to suppress (Doc. 58) and Defendant Mize's motion for severance (Doc. 62). The government filed a response to each motion. (Doc. 67, 68.) Defendant Mize did not file a separate motion to suppress but joined in Defendant Slayden's motion to suppress (Doc. 58) without objection.

         These matters came before Magistrate Judge Ferraro for a report and recommendation as a result of a referral, pursuant to LRCrim 5.1. Evidence was heard on October 5, 2016. (Doc. 72.) The Magistrate Judge recommends that the District Court, after its independent review, deny the motions.

         I. FACTUAL BACKGROUND

         On January 7, 2016, at approximately 3:20 p.m., Border Patrol Agent Aaron Hughes was operating a Mobile Surveillance Capable (MSC) camera and saw a group of eight individuals cross through a hole in International Boundary Fence between Mexico and the United States. The group crossed just south of the Gringo Pass RV Park in Lukeville, Arizona. The Port of Entry is less than a half mile to the west. To the east is remote desert. Except for the Port of Entry, the RV Park and one gas station, the area is remote and sparsely populated. Smugglers routinely cut holes in the fence in this area to cross people and narcotics into the United States illegally. Agent Hughes could see that the individuals wore camouflage clothing and carried large square shaped objects consistent with the size and shape of marijuana bundles. According to agent Hughes, the recorded video was less clear than what he could actually see on camera, but individuals carrying large packs can be seen crossing the border and running into the RV Park. (Ex. 8.) Agent Hughes described the activity to other law enforcement officers in the area over his service radio. National Park Service Ranger Moses Rinck, responded to the area, which was within the Organ Pipe National Monument. Ranger Rinck parked at the gas station so he could watch the paved road from the RV Park to State Route 85.

         Meanwhile, agent Hughes continued to watch and record both the point of entry and the road leaving the RV Park. He was able to capture on video individuals running back into Mexico through the same point of entry and a white utility truck leaving the RV Park at about the same time. When the white utility truck pulled out of the RV Park onto State Route 85, Ranger Rinck pulled in behind the truck and followed it all the way to the Border Patrol Checkpoint near mile marker 58, South of Why, Arizona.

         While following the white utility truck, Ranger Rinck noticed a number details that increased his suspicion. There were numerous markings on the vehicle suggesting it was a truck used in the electrical contracting business, but these marking appeared unprofessional. They were not painted, instead they were merely stickers, which would likely peel off in the hot summer. Some of the decals were uneven. There was a decal for a website address, but it did not begin with “www.” Also, the telephone number was not hyphenated. (Exs. 13-18.) According to Ranger Rinck, these markings created an unprofessional appearance that in his experience was atypical for a legitimate business. Ranger Rinck also called the number displayed on the truck and it did not come back to the business. He then checked the vehicle registration and it did not come back to the business, instead it was registered to a private individual, later identified as Defendant Slaydon. Ranger Rinck notified agents at the U.S. Border Patrol checkpoint of his findings and that he was following the utility truck.

         At about 4 p.m., the white utility truck pulled into the Border Patrol Checkpoint, followed by Ranger Rinck. Border Patrol Agent Christopher Smith had been listening to the radio transmissions about the events at the RV Park and Ranger Rinck's observations of the utility truck he was following. Agent Smith was the agent who had the initial contact with the defendants when they pulled into the checkpoint. Defendant Andrew Mize was driving the truck and Defendant Jeremiah Slayden was the passenger. Agent Smith asked Mize where he was coming from and Slayden said that he and Mize were coming from the Gringo Pass RV Park. Slayden claimed they were electricians and had a job at the RV Park. Agent Smith asked questions about the job but Slayden was unable to produce a work order or the name of the person he was to do the work for. During this brief questioning Slayden was the only one who responded to the agent's questions. Slayden informed the agent that they were in a rush and needed to leave immediately. Slayden then inquired whether they were being detained. The agent responded that he was conducting an investigation and that they were being detained for that purpose. The utility truck was referred to secondary inspection.

         As Mize maneuvered the utility truck to the secondary inspection area, Agent Smith noticed fresh paint on the tool box and a large compartment in the middle of the truck's cargo area that appeared inaccessible and could hold contraband. The truck was also missing a Registrar of Contractors license number, which Agent Smith typically sees on contractors' vehicles.

         At secondary inspection, Agent Smith ran a records check on the vehicle and its occupants and then re-approached the truck. At this time, Slayden had his cell phone camera out and began to record his interaction with the checkpoint agent. Agent Smith told Slayden that a dog had been requested and that the vehicle and the defendants were being detained on suspicion that the vehicle contained narcotics. He then attempted to ask additional questions about their presence at the Gringo Pass RV Park and why they traveled travel all the way from Mesa, Arizona, for an electrical job. Instead of answering agent Smith's questions, Slayden insisted that agent Smith describe the evidence he believed justified detaining him.

         At approximately 4:40 p.m., Border Patrol Agent Jesus Araiza arrived with his dog, Anouk. Anouk is trained and certified to identify controlled substances, including marijuana. (Ex. 19.) Agent Araiza had been assigned to another checkpoint, 40 miles north, and responded immediately when requested by agent Hughes.

         Shortly after arriving, agent Araiza directed Anouk to conduct a free air sniff on the vehicle. Slayden recorded this on his camera and the video was admitted as Defense Exhibit D. According to agent Araiza, Anouk signals an alert to the presence of drugs by a change in posture and or direction. This behavior can be seen on Defense Exhibit D. After Anouk alerted to the presence of drugs, agent Araiza told Slayden his dog had alerted, the vehicle was searched, 687 pounds of marijuana were seized and both defendants were arrested.

         II. DISCUSSION

         A. Defendants' ...


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