United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Thomas Ferraro, United States Magistrate Judge
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.
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.
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.
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,
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.
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
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'
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
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
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.