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United States v. Morales-Armenta

United States District Court, D. Arizona

November 18, 2016

United States of America, Plaintiff,
Jesus H. Morales-Armenta, Defendant.


          Cindy K. Jorgensonr, United States District Judge

         Pending before the Court are the discovery issues regarding 1-19 checkpoint statistics, canine statistics (and/or raw data) and canine training records.

         Evidence and argument were presented to the Court on October 25, 2016, in a joint evidentiary hearing with CR 16-121-TUC-CKJ. As the briefs in the cases differ, the Court accepts any arguments made on behalf of one defendant as applying to both defendants.

         I. Factual and Procedural History

         On April 20, 2015, Jesus H. Morales-Armenta ("Morales-Armenta") arrived at the Border Patrol checkpoint on 1-19 near Tubac, Arizona, as the registered owner, driver, and sole occupant of a 2007 Hyundai Sonata. Doenja, a Border Patrol canine patrolling the pre-primary area, alerted to the vehicle and the Morales-Armenta was immediately directed to park in the secondary inspection area. An x-ray of the Sonata revealed an anomaly in the rear quarter panel, above the passenger side tire. A search of that area revealed 10 bundles, containing 12.2 kilograms of cocaine.

         On May 20, 2015, Morales-Armenta was indicted for Conspiracy to Possess with Intent to Distribute Cocaine and Possession with Intent to Distribute Cocaine On April 4, 2016, Morales-Armenta filed a Motion to Suppress (Doc. 50). Aresponse (Doc. 60) and a reply (Doc. 69) have been filed.

         On that same date, Morales-Armenta filed a Request for Disclosure (Doc. 51). A response (Doc. 61) and a reply (Doc. 63) have been filed. A protective order was issued as to confidentiality of law enforcement sensitive information, specifically, records related to U.S. Border Patrol canine Doenja. (See Doc. 39).

         On July 12, 2016, Morales-Armenta filed a Motion to Compel Disclosure (Doc. 79). A response (Doc. 84) has been filed.

         The magistrate judge heard argument regarding the Request for Disclosure (Doc. 51) and the Motion to Compel Disclosure (Doc. 79) on July 29, 2016. Defense counsel agreed with the magistrate judge's proposed bifurcation of disclosure issues. The magistrate judge took the issues under advisement.

         Morales-Armenta filed a Supplement to Motion to Compel Disclosure/Motion to Reconsider (Doc. 90). Morales-Armenta withdrew his consent to the bifurcation of the disclosure issues.

         On August 11, 2016, the magistrate judge issued an Order granting in part and denying in part the Request for Disclosure and the Motion to Compel Disclosure (Doc. 91). The magistrate judge ordered the government to submit the canine training records to the court for an in camera review and ordered the government to provide an affidavit from the Chief Counsel's Office detailing the existence of the checkpoint data.

         On August 18, 2016. the government filed a Motion for Review of Magistrate Judge's Order Requiring Proof of "Primary Purpose" of 1-19 Checkpoint (Doc. 93). A response (Doc. 103) and a reply (Doc. 118) have been filed.

         On August 26, 2016, the magistrate judge ordered the government to disclose some of the canine training records in an unredacted format (Doc. 98).

         On August 31, 2016, the magistrate judge vacated the hearing regarding the Motion to Suppress pending resolution of the issues before the District Judge (Doc. 104).

         On September 1, 2016, the government filed an Appeal of Magistrate Judge's Order to Produce Documents to Defense (Doc. 107) as to August 26, 2016, order (Doc. 98) of the Magistrate Judge. The government also filed two Supplements (Doc. 108 and 115). A response (Doc. 117) has been filed.

         In the interest of judicial economy and pursuant to LRCrim 5.2 and LRCiv 42.1(e)(2), the matter was reassigned to this Court on September 19, 2016 (Doc. 122).

         On September 19, 2016, this Court, inter alia, set argument on the Appeals, afforded the parties an opportunity to file supplemental briefs, and terminated the referral to the magistrate judge of the discovery issues related to the checkpoint and canine issues (Doc. 122).

         The Court has received and reviewed the unredacted and redacted canine records submitted for an in camera review in CR 15-938-TUC-CKJ. These records include the declarations of Matthew B. Devaney ("Devaney"), Paul E. DuBois ("Dubois"), and Damien E. Montes ("Monies"). A supplemental Declaration (Doc. 115-2) by Devaney has been submitted and reviewed by the Court.

         During an October 5, 2016, status conference, this Court stated it would conduct a de novo review of the disclosure issues and hear all motions in this case (Doc. 128).

         A joint evidentiary hearing with CR 16-121-TUC-CKJ on disclosure issues was held on October 25, 2016. At the conclusion of the hearing, the Court took the disclosure issues under advisement (Doc. 137).

         II. October 25, 2016, Hearing

         The government advised the Court it does not object to disclosure of Exhibits 1-5, 15, 29, 31, and 32 of the canine records submitted for in camera review, as stated in the affidavit of Matthew Delaney (CR 15-938-TUC-CKJ, Doc. 115-2). Defense counsel advised the Court that the canine records submitted in this case is intended to apply to CR 16-121-TUC-CKJ as well. Exhibits 1-5 were admitted during the hearing. The Court will direct exhibits 1-4 be docketed with this Order.

         A. Summary of Testimony of U.S.B.P. Division Chief Raleigh L. Leonard

         Raleigh L. Leonard, Division Chief, Law Enforcement Programs, U.S. Border Patrol, Tucson Sector ("Leonard"), testified the Nogales station area of responsibility includes approximately 30.3 linear miles of international border between the United States and Mexico and encompasses four border zones and two northern zones. See Ex. 5.

         In the Tucson Sector, there are eleven checkpoints, located on every major route of egress away from the border. Checkpoints are typically located in areas that have high levels of activity along the border (border crossings, illicit activity), are safe for the motoring public (in coordination with the Arizona Department of Transportation), not located directly adjacent to densely populated areas, not in close proximity to the border, and do not constitute a major egress leading away from the border. Additionally, pursuant to federal regulations, checkpoints may be as far as 100 air miles from an international border.

         The use of checkpoints is a safer alternative than roving patrols.

         The primary focus of the checkpoints is the enforcement of immigration laws and to have everybody who passes through the checkpoints state their citizenship. Many thousands of immigration status determinations occur in the Tucson Sector, which result in a very small number of immigration violations; an even smaller number of narcotics violations; and even fewer other violations.

         The busiest checkpoint in the Tucson Sector is the 1-19 checkpoint located approximately 25 miles north of Nogales. According to statistical analysis completed by the Arizona Department of Transportation, over 18, 000 vehicles went through the checkpoint in 2015 and over 17, 000 vehicles went through the checkpoint in 2014. The checkpoint is strategically located in the center of a valley; although it can be walked around, it is a challenge to drive around.[1]An integrated fixed tower located adjacent to the 1-19 checkpoint detects a tremendous amount of traffic of people attempting to circumvent the checkpoints. The area also includes sensors and agents on patrol in ATVs, horse patrol, or on foot.

         Signs around the checkpoints alert people approaching the checkpoint to slow down and that it is a Border Patrol checkpoint. It is a clearly marked location where vehicles are asked to stop and then continue north away from the U.S.-Mexico border. A large canopy at the checkpoint covers most of the three lanes at the checkpoint (other than for major holiday weekends or because of the flow of traffic, typically only two lanes are in operation). A housing unit allows agents to monitor traffic and support the agent who is in primary. By primary, Leonard refers to a Border Patrol agent standing in the open, between the lanes with a stop sign next to him. As vehicles pull up to him, the agent conducts his immigration status determination of the vehicle. The 1-19 checkpoint is open 24 hours a day, seven days a week, 365 days a year. Although some checkpoints may shut down because of inclement weather, the 1-19 checkpoint never shuts down.

         There are 5, 000 points where someone who was interested in entering the United States unlawfully can use some sort of terrain feature to effect an unlawful entry into the United States.[2] The Nogales station area of responsibility ("AOR") is heavily trafficked by undocumented migrants who are attempting to circumvent Border Patrol resources.

         Approximately 24 canines are currently assigned to the Nogales Border Patrol station. The canines are divided up amongst the various shifts to make try to ensure there is always a detection canine on duty at the 1-19 checkpoint. However, the canines are not always on duty due to getting over-heated, being injured or being sick. The availability of canines may also be affected by their be used for tracking or trailing if a tactical request is made from the field.

         As vehicles pull into a checkpoint, a canine handler and a leashed canine are located just ahead of the agent standing in primary. At the 1-19 checkpoint, this means the canine is directly south of the agent at the stop sign. The canine handler and the canine walk around the traffic that is approaching the primary immigration checkpoint. Leonard refers to this area as pre-primary. The canine handler does not interact with the occupants of vehicles, but is looking at and interacting with his canine. If a canine alerts, the canine handler notifies the agent at primary. The agent at primary will refer the vehicle to secondary.

         The agents at primary always ask questions related to immigration status. A check is done of every occupant of every vehicle.[3] These questions are asked regardless of whether a canine has alerted to a vehicle.

         Leonard testified as to the statistics summarized in the government's exhibits. The statistics were prepared by the Washington, D.C., headquarters office of Border Patrol. The headquarter analysis relied upon classification of the reports/events by individual agents. Prior to being notified by headquarters that it would compile the data, local agents had begun a report by report analysis; Leonard does not recall if the local analysis was ever completed. As far as Leonard knows, the data system used by headquarters cannot clarify which or how many canine alerts related to humans or narcotics, but that data is contained in the narrative portions of agents' reports. The statistics from headquarters include activity that occurred at the Arivaca and 1-19 checkpoints.

         Referencing the exhibits, Leonard testified regarding the number and the types of arrests at the 1-19 checkpoints. There were a total of 242 arrests (from 128 events, which generally is a vehicle from which an arrest is made, but can include a bicycle or a single person on a shuttle) from October 21, 2014, through April 20, 2015 at the 1-19 checkpoint. This includes all arrests whether they pertained to immigration or not. Of those totals, there were 72 immigration related events that resulted in the arrest of 181 persons.[4] These persons need not be illegal immigrants, but are related to an immigration offense. Leonard initially testified that illegal immigrants who are arrested for narcotics offenses are not included in the immigration related totals, but later stated they are defined under both headings. During the same time period, there were 65 narcotic related arrests (out of 55 narcotic related events). 18 of those arrestees were not United States citizens.[5] During that same time period there were 61 non-immigration related arrests. This includes narcotics related arrests. This number is lower than the narcotics related number because some of the 65 narcotics related arrests involved some persons not in violation of immigration laws. The persons referred to are 14 years of age or older.[6]

         Statistics from the nearby area zones show the activity that occurs at the checkpoint is similar, but with less immigration related events compared to narcotics related events in those other areas.

         B. Summary of Testimony of U.S. B. P. Supervisory Agent Alex Markle

         Border Patrol Supervisory Agent Alex Markle ("Markle") testified that his duties include selecting and testing canines for purchase by Customs and Border Protection ("CBP"), training new canine handlers, training canines, developing curriculum for the use and training of new canine handlers, training instructors within the canine program of CBP and other related duties. Markle adopted the affidavits submitted by Devaney.

         The curriculum includes the training of the handlers during classroom setting (e.g., legal instruction, mock scenarios), the field instruction and rating of canine handlers during the field instruction, and certification testing of the canine handlers and canines.

         The selection of canines comes with a 180 day health guarantee as well as a 15 day return policy should the canine have any problems or if unforeseen issues arise. The canines are put through a series of exercises designed to show what the canine is capable of and desires to do. The canines are evaluated on temperament, reaction, and physical capability. Because CBP encompasses every possible geographic area and environments in the United States, canines have to be suitable for all possible environments for use in deployment.

         As related to immigration offenses, canines are used for the primary purpose of detecting concealed humans. Border Patrol utilizes physical apprehension canines, search and rescue canines, and concealed human and narcotic detection canines. Detection canines are trained to detect the odors of marijuana, heroin, cocaine, methamphetamine, ecstasy and concealed humans.

         Typically during every two-week period throughout the entire year a handler and canine receives eight hours of documented training. The ongoing training is designed to be a challenge for the canine team and is meant to improve their performance overall.

         The quarterly training records, because of the scores having been averaged, make it obvious if additional training is needed. A certification is an evaluation because it is the overall evaluation of a canine team and it certifies that a canine team has passed the certification training. A canine team is certified for one year.

         As a team, a canine handler and the canine pass or fail. If they fail certification they receive 40 hours of remedial training and then are tested via certification again; if they fail that certification testing, the team is then separated upon approval by the director of the CBP canine program. Of the two, the canine handler is the most likely to fail - 90 % of the time the problems can be resolved by removing the handler.

         Markle testified as to some of the exercises utilized during the yearly certification, consisting of vehicles, warehouses, occupied buildings, open area searches, livestock environments, and luggage and parcel searches.

         Regarding the redacted records submitted to the Court for an in camera review, Markle testified that specific portions of the training program are redacted because of concerns of reverse engineering, testing of contraband and human concealment methods, or other attempts to defeat law enforcement efforts by people who are smuggling people or contraband into the United States. The concern is not only what is contained in the documents, but what knowledge comes with it - in other words, once that knowledge is acquired, it cannot be forgotten. Further, that knowledge can be transferred to other arenas (e.g., chemical munitions).

         Markle states that, with the proposed redactions, the reliability of a canine can be evaluated by examining the entire program and processes, without going into the specifics.

         Markle believes SWIG is an acronym for the scientific working group (researchers and practitioners) of detection and original graphic detection dogs. This panel has put together some best practices for various aspects of detection - canines as well as other disciplines regarding canines. This panel ...

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