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United States v. Ruiz

United States District Court, D. Arizona

November 18, 2016

United States of America, Plaintiff,
Jose Antonio Ruiz, Defendant.


          Cindy K. Jorgenson, 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 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 defendants.

         I. Factual and Procedural History

         On 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 twenty-four kilograms.

         On January 13, 2016, Ruiz was indicted for Conspiracy to Possess with Intent to Distribute Cocaine and Possession with Intent to Distribute Cocaine.

         On May 18, 2016, Ruiz filed a Motion to Suppress (Doc. 34). A response (Doc. 37) and a reply (Doc. 38) have been filed.

         On July 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.

         On September 6, 2016, Ruiz filed an Appeal of Magistrate's Order Denying Motion to Compel Disclosure (Doc. 58).

         On September 8, 2016, Ruiz filed an Amended Motion to Compel Disclosure (Doc. 62). A response (Doc. 73) has been filed.

         On 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.

         On September 19, 2016, Ruiz filed a Notice of Supplemental Authority (Doc. 67).

         On 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).

         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 (CR 15-938, Doc. 115-2) by Devaney has been submitted and reviewed by this 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. 75).

         A joint 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).

         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 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 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 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.

         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 recommend a single blind and odor range of motion for purposes of certification testing.

         Canines 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.

         Border 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 ...

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