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United States v. Ruiz

United States District Court, D. Arizona

March 15, 2017

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

          ORDER

          Cindy K. Jorgenson United States District Judge

         Pending before the Court is the Motion to Suppress (Doc. 34) filed by Jose Antonio Ruiz (“Ruiz”). A Response (Doc. 37) and a Reply (Doc. 38) have been filed. Evidence and argument were presented to the Court on February 14 and 15, 2017. Additionally, evidence has previously been presented in this case on October 25, 2017.

         I. Factual and Procedural History

         A. Summary of Testimony of Agent Delfina Scarlet Cruz

         Customs and Border Patrol (“CBP”) Agent Delfina Scarlet Cruz (“Agent Cruz”), who has been a CBP agent for 11 years, is stationed at the Nogales Border Patrol station. She is sometimes assigned to checkpoint duty. On checkpoint duty, she works at the I-19 checkpoint just north of Tubac, Arizona.[1]

         When assigned to the primary area of the I-19 checkpoint, Agent Cruz stands in the traffic lanes as the vehicles approach and interacts with the people in the vehicles. She has been trained to observe the body language of the drivers/occupants traveling through the checkpoint (e.g., sweaty, grabbing the steering wheel, evading eye contact). Her duties at the primary area include establishing the immigration status of the people in the vehicles. For those persons Agent Cruz recognizes (e.g., commuters), she does not ask them if they are United States citizens. The secondary area is off to the side for referral of vehicles that need further inspection or for follow-up questioning. The secondary inspection area is used to prevent backing up the traffic, which may create a hazard; referral to secondary does not necessarily mean that someone is in trouble - it is just to keep everything safe.

         At approximately 9:50 a.m. on December 14, 2015, Agent Cruz was stationed at the I-19 checkpoint, assigned to the primary area. She remembers a black Tundra following the speed cautions traveling towards her.[2] She looked to CBP Canine Agent Ned Phillip Ewing (“Agent Ewing”) as the vehicle passed him and he gave Agent Cruz a hand signal which indicated the vehicle needed to be inspected at secondary. She was paying attention to the handler and does not recall seeing the canine doing anything. When the Tundra pulled up to Agent Cruz, she asked the driver, Jose Antonio Ruiz (“Ruiz”), to please move to the secondary inspection area. Ruiz complied.

         Agent Cruz has not received any training on how to recognize canine cues, but her interaction with fellow agents has allowed her recognize canine cues. It is not her job to pay attention to the canine; Agent Cruz pays attention to the canine handler.

         Agent Cruz did not keep any notes regarding this encounter. She believes the United States Attorney's office asked her to write a report; the agent drafted her report regarding this incident on February 11, 2016. Between December 14, 2015, and February 11, 2016, Agent Cruz was assigned to one of the primary traffic lanes of the I-19 checkpoint several times per week. A large percentage of the vehicles she sees while assigned there are trucks. During four hours assigned to the primary area out of a ten hour shift, the agent sends approximately 12 cars a day to the secondary inspection area. Agent Cruz did not dispute a question that concluded that she has sent hundreds, if not thousands of cars, to the secondary inspection area. Agent Cruz does remember another car, a gold Nissan, for which she was the primary agent and a case resulted.

         She remembers interacting with Drug Enforcement Administration (“DEA”) “BANG” agents on that day which is why, along with the large quantity of cocaine, this case stands out to her.

         B. Summary of Testimony of Officer Bevan Anderson

         Immigration Customs Enforcement (“ICE”) Officer Bevan Anderson (“Officer Anderson”) had been an agent with Border Patrol for over five years. While with the Border Patrol, he usually worked at the I-19 checkpoint. When assigned to the primary area, he was responsible for asking the country of citizenship for the persons who traveled through the checkpoint. When assigned to the secondary inspection area, he would inspect the vehicles, question people, and verify immigration documents; this included vehicles with a lot of people in them (e.g., large vans, buses). Officer Anderson was also assigned to operate a ZBF, which is an x-ray van. Using the ZBF, Officer Anderson finds organic material - he has found illegal narcotics, food, water, chemicals, and humans.

         On December 14, 2015, Agent Ewing used his service radio to indicate the vehicle was being sent to secondary because the canine had alerted to it. Officer Anderson does not recall having any interaction with Ruiz; he believes he would recall if there had been any interaction. Officer Anderson recalls scanning a black pickup on December 14, 2015. He recalls this because it was his last day or second to the last day on shift with Border Patrol.

         Officer Anderson realized he had scanned a similar truck a couple of days prior to December 14, 2015, and noticed there was a difference between the two vehicles.[3] At that point, Officer Anderson had been working secondary for about two and a half years. In his experience, most anomalies turn out to be illegal narcotics. Officer Anderson further noticed multiple packages secreted on the driver's side and on the passenger side.[4] He believes the time to take the truck to the scanning area, scanning the truck, and returning the truck to back under the checkpoint awning should have taken less than five minutes. Officer Anderson informed Agent Ewing that he saw anomalies in the “beds.”

         C. Summary of Testimony of Agent Ned Ewing

         Agent Ewing has worked with Border Patrol for about 12 and a half years, off and on since 2000. He is a canine handler; canine Niky is assigned to Agent Ewing. Agent Ewing graduated from the canine academy, which lasted about five or six months, in 2009 and Niky has been with him ever since. As a CBP agent, Agent Ewing also has experience with checkpoint primary, checkpoint secondary, line watch, detention, and casework duties.

         The canine academy program Agent Ewing participated in lasted seven or eight weeks. The program included two weeks of classroom, assignment of a canine, approximately five weeks of working with green sheets (performance canine handler detection score sheets) with Niky, learning other material, and a final exam. Prior to Niky's assignment to Agent Ewing, Niky was selection tested and worked with instructors at pre-training for approximately seven weeks. The green sheets have to be passed by the team with a score below 3.55. A three is average, a two is above average, and a one is excellent. After the final exam was taken, Agent Ewing and Niky also went through a one week certification testing process. Certification is conducted by either Border Patrol agents or contract instructors. Yellow sheets (detection canine combined performance review), which is a quarterly evaluation of the combined green sheets and an evaluation of the instructor, are also utilized. When Agent Ewing is given a search area, Niky stays in one location while Agent Ewing walks the search area to look for hazards, safety issues, and to get an idea how the area should be searched. No one talks to Agent Ewing during this time; usually the instructor stays with Niky. Agent Ewing is not advised of where the search items are located; it would defeat the purpose if he was pre-advised of their locations. The instructor knows the location(s) of the source of the odors.

         Every two weeks, Agent Ewing and Niky complete eight hours of green sheets. They are evaluated quarterly with the yellow sheets. Agent Ewing and Niky are required to be recertified annually.[5] Niky has never failed a green sheet, a yellow sheet, or a certification, although there have been periods where Niky has been sick or having “off days.”

         Niky is trained to detect concealed humans and the odors of marijuana, heroin, cocaine, methamphetamine and their derivatives.[6] The daily assignment of Agent Ewing and Niky is the I-19 checkpoint. However, they also take calls out in the field. In the eight year period Agent Ewing and Niky have been assigned to the I-19 checkpoint, Niky has detected concealed humans, marijuana, methamphetamine, heroin, and cocaine at the checkpoint and in the field. Niky will “alert” (change in body posture, increased respiration) when he first encounters an odor he has been trained to detect. However, these body changes may be the result of interest in other dogs or food. Niky will provide an “indication” (sit) when he locates the source of a trained odor. If Agent Ewing verifies an alert or an indication, he provides a reward to Niky.

         Safety is always a concern while working the I-19 checkpoint. There are signs reducing the 75 mile an hour speed limit, but some people do not slow down. Additionally, some drivers are distracted and there is traffic flowing on the southbound lanes.

         Agent Ewing and Niky were assigned traffic check at the I-19 checkpoint on December 14, 2015. Agent Ewing worked the primary area with Niky, allowing him to work freely in the two lanes of traffic with the vehicles passing them. It was an overcast day with a northbound wind. The northbound wind at the I-19 checkpoint usually causes a trained odor to come towards a detection canine. On that day, two lanes of traffic were open. While Agent Ewing and Niky were between the two lanes a black Tundra approached.[7] As the middle to back part of the truck passed them, Niky alerted - his body posture changed, he began sniffing very intensely tying to trace the odor to its source.

         Agent Ewing asked Agent Cruz, who was in the far west lane, via the radio to hold traffic. As it was a windy day and Niky had alerted, Agent Ewing wanted to determine the source of the alert. He did not believe Agent Cruz had heard him, so he walked around the back of the truck, made eye contact with Agent Cruz, and made a fist (which means to hold traffic). Agent Ewing then made a number two signal (holding up two fingers) to Agent Cruz, indicating to Agent Cruz to send the vehicle to the secondary inspection area because of a canine alert. Niky did not make an active indication while in the primary area. Agent Ewing also testified that Niky did not bark while in the primary area.

         Approximately three to five minutes later, Agent Ewing went to secondary. This affords an x-ray operator time to conduct an x-ray of the vehicle. Agent Ewing usually walks to the area to afford Niky an opportunity to again sniff the air of the vehicle. Ruiz was in the waiting area.[8]

         Agent Ewing and Niky did a secondary walk around the Tundra. Agent Ewing noticed the back wheel well on the passenger side appeared to have some after-market tampering that was not consistent with any other Tundra he had ever seen. Niky again alerted to the truck; although he did not indicate, Niky was “all over” the bed of the truck. The wind, temperature, and humidity impact a canine and his detection abilities. Officer Anderson advised Agent Ewing of anomalies observed from the x-ray. Agent Ewing kenneled Niky. Agent Ewing and Officer Anderson decided to place the Tundra under the canopy near the primary inspection area to further inspect and search the Tundra.

         Another agent found access to a compartment. After the packages had been removed from the Tundra and the content was tested and verified, Agent Ewing brought Niky back to the odor. Niky alerted to the back, middle part of the truck. Agent Ewing rewarded him. Agent Ewing also testified that Niky barked at the end, which is an aggressive indicator which is not trained. Agent Ewing's report did not include reference to a reward, an indication, or a bark. Over 53 pounds of cocaine was seized.

         Some of the reviews, called green sheets, and yellow sheets were admitted into evidence. See Ex. 1. They include separate scores and instructor comments for both Agent Ewing and Niky. Agent Ewing did receive one 4 regarding his voice tone. However, Agent Ewing also scored perfect on ritual and received a lot of 2s. In over 30 evaluations referred to by the Assistant United States Attorney (“AUSA”) that included 132 separate location evaluations, Agent Ewing only received the one 4 and Niky had only one 4 for control and one 4 for indication.

         If a canine team has a continual problem, the instructors would work with the canine handler and the canine to rectify the problem. If the problem is not resolved, they would go through another week of training and green sheets to work on just that problem. Remedial training consists of 40 hours. The canine team would retain its certification, but would be assigned to the canine office for a week. If the problem persists, certification may not be reissued.

         D. Summary of Testimony of Agent Alex Markle

         Border Patrol Agent Alex Markle (“Agent Markle”) joined the Border Patrol in January of 1998. He was selected to be a canine handler in 2005. In 2008 he became an instructor with the Border Patrol. In 2015, Agent Markle was promoted to Course Developer Instructor Supervisory Border Patrol Agent at the Canine Center in Front Royal, Virginia, for the CBP Canine Program; he currently remains in that position. Agent Markle has been certified previously as a canine handler for other government agencies. Additionally, he has a law degree and was a Special Assistant United States Attorney from 2013-2015. Agent Markle has not received any education outside of his CBP experience as to canine physiology, canine neurophysiology, or veterinarian medicine.

         Agent Markle's current duties include the selection and testing of new canines for purchase by the CBP Canine Program. He also evaluates canines and provides initial training of canines. Agent Markle trains students with the canines in a seven week program as well as training instructor students in a 12 week course. He conducts certification testing of students in the detection of concealed humans and the odors of controlled substances. Agent Markle has developed some of the protocols used to train other instructors; these are based on the knowledge and experience he acquired through working with the CBP Canine Program and his educational background (e.g., courtroom testimony, report writing). Matthew B. Devaney, the Research and Development Coordinator of the CBP Canine Program, developed the current curriculum for training the detector canines for the CBP - Agent Markle implements and improves the curriculum. CBP attempts to follow the best practices included in a list put out by the Scientific Working Group on Dog and Orthogonal Detector Guidelines (“SWGDOG”) regarding the maintenance of records, certification, maintenance training, training aids, and field practices. Agent Markle believes CBP has adopted the best practices or has acknowledged them and recognized they are appropriate. In other words, CBP has been using the same recommended processes or has modified processes in response to the recommendations. SWGDOG includes a lot of experts in the canine field. SWGDOG views a single blind method as the best practice for comprehensive team assessments for certifications. Individual Border Patrol agents have been certified by and/or joined that organization.

         The CBP Canine Program designed the performance standard score sheet, i.e., the green sheet. The form has been modified slightly over the years. The goal of the form is to evaluate the handler and the canine; it also ensures appropriate testing is conducted through a multitude of environments as well as to identify and document any problems that may be occurring. The first seven columns focus on the handler, the next five columns focus on the canine, and the next seven columns are the actual search criteria. Agent Markle summarized the columns, rituals, and search skills included in the green sheets. A scale grading system is used to help identify issues and more accurately describes the performance of a canine team than a simple pass/fail system.

         If a canine team does not average 3.5, different results may occur. For example, if it occurs during a certification, the team fails certification and they must go through remedial training. If a 3.5 score or above occurs in a bi-weekly evaluation, the handler is advised of the situation and should take steps to correct the problem prior to the next training day; if the handler fails to do so, it will be apparent in the next training session.

         CBP wants well-trained canine handlers and canines as a point of pride and to ensure that people's constitutional rights are not negatively affected by a canine team that is not up to standard.

         Agent Markle had an opportunity to review the green sheets and the yellow sheets of Agent Ewing and Niky. After that review, Agent Markle concluded Agent Ewing and Niky were a very experienced team, appeared to be very proficient, and worked very well together. As to the December 14, 2015, incident in this case, Agent Markle praised Agent Ewing's request for the traffic to be held. Additionally, Agent Ewing's testimony indicated to Agent Markle that he knew Niky was alerting to the vehicle - specifically, to the rear of the vehicle, but without any more precision.

         Canines may not indicate for a variety of reasons: limited space, an overwhelming odor (the odor is everywhere), or a moving source (traffic). Even if a canine is trained with a passive alert, the canine may use an active indicator if it is frustrated; i.e., unable to passively indicate.

         CBP uses a single blind method of evaluation. In other words, the instructor knows where the items are hidden, while the canine handler and the canine do not. This mitigates a canine possibly reading cues from the canine handler (e.g., providing hints as to where the handler desires a canine to indicate). A comprehensive assessment of both the canine handler and the canine are being conducted - the evaluator needs to know the location or absence of the training aid to effectively complete that evaluation. It is not possible to use a double blind method of evaluation if a complete team assessment is being conducted; Agent Markle clarified this on cross-examination: the use of a video would make the use of a double blind evaluation method possible, but it would not be effective. If a double blind method of evaluation was used, rewards to the canine might be inappropriately withheld (i.e., no one present would be aware a reward should be given), which could cause the canine to become frustrated or confused with a diminished performance as the result. If CBP were only doing an odor recognition assessment, a double blind method could be used.

         Agent Markle is not aware that there is a consensus in the field of detector dogs across the country that a certification should be double blind. During the initial training/certification process, the CBP Canine Program utilizes a barrier that prevents the canine handler and the canine from seeing the instructor, while allowing the instructor to see the exercise. Agent Markle distinguished between the initial training/certification process and the maintenance training. As stated by Agent Ewing, during the maintenance training, the instructor stays close enough to evaluate the canine team. Agent Markle clarified that the instructor varies his conduct so the canine team cannot cue in or read the instructor's actions (e.g., walk through the search, stand back, use a loud tone of voice).

         Agent Markle does not believe he was present at the initial certification or re-certifications of Agent Ewing and Niky. He cannot testify as to what the specific instructors did or how faithful they were in following the precautionary measures. Agent Markle testified regarding other aspects of the training curriculum.

         The CBP Canine Program does not train canines to bark with an indication, but some canines do.

         To the best of his knowledge, a complete unredacted copy of the curriculum is not provided to defense counsel in San Diego, California, where he practiced as a Special Assistant United States Attorney. He believes partially redacted green sheets are disclosed in San Diego.

         When asked if he had ever heard of any cartel or anyone else using reverse engineering with unredacted canine records to subvert CBP's processes, Agent Markle stated he was aware of some things cartels had done in response to the uses of canines in the detection area. Agent Markle cited examples of specific packaging and placements. However, he did state that he cannot make a direct connection between the cartel practices and the CBP processes.

         During rebuttal examination, Agent Markle stated a canine exhibits a specific behavior when it encounters a trained odor. A canine does not exhibit the same behavior when it encounters other odors of interest. The training of the ...


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