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United States v. Corral-Cinco

United States District Court, D. Arizona

October 31, 2016

United States of America, Plaintiff,
v.
Jasiel Corral-Cinco, Defendant.

          ORDER

          Cindy K. Jorgenson, United States District Judge

         On September 6, 2016, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (Doc. 51) in which she recommended that the Motion to Suppress (Doc. 25) filed by Jasiel Corral-Cinco ("Corral-Cinco") be denied. Corral-Cinco has filed an objection (Doc. 55) and the government has filed a response (Doc. 56).

         On October 28, 2016, this Court heard additional testimony and argument regarding the surveillance videos (Ex. 8). During the hearing, Corral-Cinco requested this matter be remanded to the magistrate judge for further review in light of the additional evidence.

         The Court has reviewed the Motion to Suppress (Doc. 25), the response (Doc. 30), the Report and Recommendation (“R & R”) (Doc. 51), the exhibits, the Notice of Disclosure (Doc. 38), the Notice - Video Footage Timestamps (Doc. 40), the Defendant's Notice of Video Footage Time Stamps and Authority (Doc. 47), the transcripts of the hearing held before the magistrate judge (Docs. 48, 49, 50), the objections (Doc. 55), the response (Doc. 56), and the additional evidence and argument presented to this Court. The standard of review that is applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472-73, 88 L.Ed.2d 435 (1985). However, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction.” Fed.R.Civ.P. 72(b)(3); see also 288 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”).

         Report and Recommendation - Factual Background

         While Corral-Cinco has objected to conclusions reached by the magistrate judge, no specific objection has been made to the magistrate judge's summary of evidence. The Court, therefore, adopts those findings. Additionally, the magistrate judge stated:

Government's Exhibit 8 consists of two DVDs which the Court reviewed in chambers after the hearing. The DVDs have limited value due to the grainy quality of the images. No testimony was presented to explain what the DVDs depict. The Court was unable to identify specific people and had difficulty identifying locations and specific vehicles.

R & R, p. 2, n. 1. While the Court agrees it is unable to identify specific people, the Court did make some relevant observations.

         At approximately 8:27:30 a.m., Camera 1 shows two persons walking. It does not adequately show whether the person looked toward the intersection of Tangent Range Road and Industrial Park Avenue. It appears that one person may have made a half-body turn to look towards the intersection area, but the Court does not place any significance on this observation because it could simply be a matter of fluctuations in the pixelation. The videos do not show the view the agents may have had of the intersection of Tangent Range Road from the side of the daycare center or from the back lots. A review of Ex. 4 indicates a line of sight between the side of the daycare center and some area in the back/side lots and the intersection of Tangent Range Road and Industrial Park Avenue, depending on the foliage. Camera 4 shows part of Tangent Range Road can be seen through the foliage. While the Court does not find this establishes that the agents saw Corral-Cinco and Gabriel Antonio Quijada-Quijada (“Quijada-Quijada”) walking south on Tangent Range Road, the Court finds it does establish that the agents may have been able to see them turning onto or walking on this road.

         At 8:37:32 a.m., Camera 1 shows two persons exited the first Border Patrol vehicle. One person exited from the front driver's side door and the other person exited from the front passenger's side door. The two persons moved freely about and neither person appeared to restrict the other's movements. This vehicle was subsequently moved and the Court did not observe any other persons exiting from this vehicle. Moreover, the videos do not appear to show any person, other than a driver when it was moved, get into this vehicle. While the Court does not find this establishes Quijada-Quijada was not in this vehicle, Quijada-Quijada was not removed from this vehicle, or Corral-Cinco was not told to get into this vehicle as stated in Corral-Cinco's testimony, the Court considers this along with other evidence.

         The Court agrees with Corral-Cinco that, at 8:51:31 a.m., Camera 1 shows a person appears to open the rear driver's side door of the Border Patrol vehicle with its lights flashing. However, the Court cannot tell if at that time, or any other time, the rear passenger's side door is opened. The Court does not find this conclusive, but considers the video footage does not definitively establish whether a second person was in the rear seat of the Border Patrol vehicle with its lights flashing. Specifically, as to Border Patrol Agent Samuel Schultz's testimony that he separated the men by placing Quijada-Quijada in another marked vehicle after arriving at the back lot, the videos do not confirm or dispute this statement.

         The Court's review of the relevant time portions of the videos does not show any other two persons that agents could have reasonably concluded were not the subjects of the reported tip (e.g., single person in the back area, apparent parent or guardian accompanying child into the daycare). While the Court does not find this establishes Corral-Cinco and Quijada-Quijada triggered the earlier sensor activity in the area or were the persons referenced to in the report from the dispatcher, the Court considers this along with other evidence.

         Objections to the Report and Recommendation

         Corral-Cinco objects to the magistrate judge's conclusion as to the first encounter because, he argues, the agents had neither reasonable suspicion nor probable cause for the first encounter with Corral-Cinco and Quijada-Quijada. Objections (Doc. 55), p. 4. Corral-Cinco also objects to the magistrate judge's conclusion as to the second encounter because, he again argues, the agents had neither reasonable suspicion nor probable cause for the second encounter with Corral-Cinco and Quijada-Quijada. Objections (Doc. 55), p. 4.

         Credibility Determinations

         The magistrate judge concluded Border Patrol Agent Justin Sander's characterization that Corral-Cinco and Quijada-Quijada were trying to hide was “not entirely credible based on the agents' testimony that the men were taller than the pillar and were looking at the agents. The court concludes that the men were simply trying to make ...


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