United States District Court, D. Arizona
K. Jorgenson, United States District Judge
before the Court are the discovery issues regarding 1-19
checkpoint statistics, canine statistics (and/or raw data)
and canine training records.
and argument were presented to the Court on October 25, 2016,
in a joint evidentiary hearing with CR 15-938-TUC-CKJ. As the
briefs in the cases differ, the Court accepts any arguments
made on behalf of one defendant as applying to both
Factual and Procedural History
December 14, 2015, Jose Antonio Ruiz ("Ruiz")
arrived at the Border Patrol checkpoint on I-19 near Tubac,
Arizona, as the driver, and sole occupant of a Toyota Tundra.
Niky, a Border Patrol canine patrolling the pre-primary area,
alerted to the vehicle and the Ruiz was immediately directed
to park in the secondary inspection area. An x-ray of the
Tundra revealed square-shaped anomalies lining the interior
of both of the truck bed's sidewalls above the wheel
wells. Niky again sniffed the air around the pickup truck,
and he again alerted to an odor he was trained to detect.
Soon thereafter, agents discovered twenty-two packages in
compartments above the rear wheel wells. Agents pierced one
representative package, exposing a white, powdery substance
that field tested positive for cocaine. The total gross
weight of the cocaine discovered in the Tundra was roughly
January 13, 2016, Ruiz was indicted for Conspiracy to Possess
with Intent to Distribute Cocaine and Possession with Intent
to Distribute Cocaine.
18, 2016, Ruiz filed a Motion to Suppress (Doc. 34). A
response (Doc. 37) and a reply (Doc. 38) have been filed.
17, 2016, Ruiz filed a Motion to Compel Disclosure (Doc. 39).
A response (Doc. 44) and an reply (Doc. 45) 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 Niky. (See
Docs. 46 and 47). The magistrate judge denied the Motion to
Compel Disclosure (Doc. 39) on August 23, 2016 (Doc. 49). The
magistrate judge stated the Motion to Suppress would be set
for hearing at a later date and Ruiz anticipated filing a
supplemental motion regarding the records that have been
received regarding the canine.
September 6, 2016, Ruiz filed an Appeal of Magistrate's
Order Denying Motion to Compel Disclosure (Doc. 58).
September 8, 2016, Ruiz filed an Amended Motion to Compel
Disclosure (Doc. 62). A response (Doc. 73) has been filed.
September 18, 2016, the government filed a Motion to Stay
Hearing on Defense Appeal of Magistrate Order (Doc. 66). A
response (Doc. 73) has been filed.
September 19, 2016, Ruiz filed a Notice of Supplemental
Authority (Doc. 67).
September 19, 2016, this Court, inter alia, set
argument on the Appeal and the Amended Motion to Compel for
October 25, 2016, denied the Motion to Stay Hearing (Doc. 66)
as moot, 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. 68).
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 (CR 15-938,
Doc. 115-2) by Devaney has been submitted and reviewed by
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. 75).
evidentiary hearing with CR 15-938-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. 83).
October 25, 2016, Hearing
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 CR 15-938-TUC-CKJ is intended to apply in this
matter as well. Exhibits 1-5 were admitted during the
hearing. The Court will direct exhibits 1-4 be docketed with
Summary of Testimony of U.S.B.P. Division Chief 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.
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.
of checkpoints is a safer alternative than roving patrols.
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.
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. An integrated fixed tower located adjacent
to the I-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.
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
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. The Nogales station area of responsibility
("AOR") is heavily trafficked by undocumented
migrants who are attempting to circumvent Border Patrol
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.
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.
agents at primary always ask questions related to immigration
status. A check is done of every occupant of every
vehicle. These questions are asked regardless of
whether a canine has alerted to a vehicle.
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.
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. 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. 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
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
Summary of Testimony of U.S. B. P. Supervisory Agent Alex
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.
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.
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.
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
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
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.
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
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.
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).
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.
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 recommend
a single blind and odor range of motion for purposes of
are trained to detect concealed humans in the same manner by
which disaster canines are trained. The canines are also
trained to ignore visible humans.
Patrol has a huge swath of land to cover, and canines are
used throughout the entire Southern Arizona Border Patrol
area of operation. Canines are used in the desert and at the
ports of entry in support of field operations. Canines are
used to locate, for example, narcotics that are discarded in
the desert when a person has absconded. It is an efficient
use of resources to train the canine for both concealed human
and narcotics detection. All canines that search for
narcotics also search for concealed humans. CBP canines are
also trained ...