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United States v. Ruiz-Hernandez

United States District Court, D. Arizona

March 16, 2017

United States of America, Plaintiff,
v.
Oscar Jesus Ruiz-Hernandez, Defendant.

          ORDER

          Cindy K. Jorgenson United States District Judge

         Pending before the Court is the Motion to Suppress (Doc. 50) filed by Oscar Jesus Ruiz-Hernandez (“Ruiz-Hernandez”). A Response (Doc. 54), a Supplemental Memorandum (Doc. 64) and a Response to Supplemental Memorandum (Doc. 66) have been filed. Evidence and argument were presented to the Court on February 13, 2017.

         I. Factual and Procedural History

         A. Agreements of the Parties

         During the February 13, 2017, hearing, counsel for Ruiz stated that he agreed the statistical summary provided by the government regarding immigration and narcotic-related events and other arrests at the checkpoint at issue in this case is accurate. Ex. 14; see also Response (Doc. 54), p. 7.

         Counsel also agreed that the fact that the Arizona state route 80 (“SR80") checkpoint is within 100 air miles of the international border is not in dispute and is in compliance with relevant federal regulations.

         B. Summary of the Testimony of Helso Lara

         Immigration and Customs Enforcement (“ICE”) Officer Helso Lara (“‘Agent Lara”) previously served as a Border Patrol Agent for approximately six years.[1] He was trained at the United States Border Patrol Agent Academy in Artesia, New Mexico and received course work in immigration law, nationality law, seizures (including the Fourth Amendment), TAC weapons, and tactics instruction. Officer Lara was previously a legal facilitator in the United States Marine Corps and an investigative assistant for the Naval Criminal Investigative Services.

         Officer Lara was assigned to checkpoint duty for approximately one year to one year and three months during 2012-2013 and 2015-2016; each rotational assignment lasted three to six months. On February 19, 2016, he was assigned as a Border Patrol agent to work the SR80 checkpoint. The SR 80 Checkpoints is approximately five miles north of Tombstone, between Tombstone and Benson. It is at approximately where SR80 intersects with Arizona state route 82 (“SR82"). The checkpoint is approximately 40 to 50 miles from the international border. There are signs (about one to two miles south of the checkpoint) notifying persons approaching the checkpoint that an immigration checkpoint is ahead and signs to incrementally reduce speed.

         Persons/vehicles entering the checkpoint present themselves in an area where there is a stop sign. A primary agent stands in that primary inspection area. When a vehicle comes to the primary inspection area, Agent Lara, as a primary inspection officer, questions the occupants about their immigration status; i.e., he asks them their citizenship and ask them to present documents if they are not U.S. citizens. Once a person is established to be legally in the country, Agent Lara would complete the encounter. If an agent has suspicion to look further into the vehicle, the vehicle/occupants are referred to the secondary inspection area. For example, such a referral may occur for safety reasons or if a canine has provided a basis for a referral. Canine teams patrol before the primary inspection area.

         On February 19, 2016, Agent Lara was assigned to the primary inspection area and primary duties. At approximately 6:50 a.m., the canine team moved from the pre-primary inspection area (to return to the station).[2] The canine could be seen leaving the pre-primaty area. Approximately, 30 seconds later, a 2008 Chevy Impala quickly approached the checkpoint. The agent had not seen the vehicle stop elsewhere as if waiting for an opportune time to enter the checkpoint. Although Agent Lara thought the timing of the vehicle with the leaving of the canine was a little strange, he could not necessarily connect the two events.

         Agent Lara asked the driver if he was a U.S. citizen.[3] The driver looked a little nervous - he looked straight ahead and was grabbing the steering wheel. After the driver responded that he was a resident and not a U.S. citizen, Agent Lara asked to see his documents. The driver provided his permanent resident card to the agent. The card identified the driver as Ruiz-Hernandez. During this time, the agent felt that Ruiz-Hernandez was in a hurry. There was no eye contact between the agent and Ruiz-Hernandez and one hand of Ruiz-Hernandez continued to tightly grip the steering wheel.

         While Agent Lara was inspecting the card, he asked Ruiz-Hernandez where he was going - the driver responded that he was going to Tucson. Agent Lara had not completed his inspection of the card (checking the holograms, attempting to ensure the card was valid)[4], when, within one minute of Ruiz-Hernandez stopping at the checkpoint, he asked if he could have consent to look inside the trunk. He did not believe that there was anything in the trunk that would help him ascertain whether Ruiz-Hernandez was legally within the United States. Agent Lara used a normal speaking tone, but was wearing a uniform and had a holstered weapon. The agent did not threaten Ruiz-Hernandez and did not raise his voice. Agent Lara testified as follows:

Q. I guess just as a final question, why did you ask the defendant for consent to search his trunk?
A. Why?
Q. Yes.
A. Just because of his nervousness. And you know, if he would have said no, he would have -- he would have been free to go. I just felt like there was too much nervous energy at one point that I just asked him. I didn't have any tools with me, so the only thing I could do is ask for consent.

Transcript of February 13, 2017, Hearing (Doc. 68) (“TR”), pp. 38-39.

         Ruiz-Hernadez responded yes to the request to look in the trunk. He either pulled a trunk release lever or pushed a trunk release button; i.e., the driver unlatched the trunk from inside the vehicle. If Ruiz-Hernadez had not consented to the search, the agent would have ensured the card was valid, returned the card, and told Ruiz-Hernandez he was free to go. Agent Lara went to the rear of the vehicle, opened the trunk, and saw overflowing packages of marijuana. Not only was the odor of marijuana readily identifiable, but the packages were similar to ones Agent Lara had previously seen used for packaging marijuana. There were 193 packages of marijuana, weighing approximately 301 pounds.

         C. Summary of the Testimony of Raleigh Leonard

         Raleigh Leonard (“Deputy Chief Leonard”) is the Acting Deputy Chief of Tucson Sector Border Patrol. The Department of Homeland Security, Customs and Border Protection include the Office Air/Marine, Office of Field Operations, and Border Patrol agents (immigration officers).

         Deputy Chief Leonard joined the Border Patrol in February of 1991. In 2006 he accepted a promotion to the Yuma Sector. Deputy Chief Leonard was assigned checkpoint duties in San Diego, California, and Yuma, Arizona, in the mid 1990s to early 2001 or 2001. While performing those duties, he inquired of the citizenship or nationality of persons. He also asked people if they could produce documents that permitted their presence in the United States. When provided with such documentation, Deputy Chief Leonard would inspect the documents.

         He transferred to the Tucson Sector in 2008 as a Division Chief. He has been assigned to stations in California, completed a few tours in Washington, D.C., and toured Iraq. Deputy Chief Leonard has held every position from a GS-5 to a GS-15 in the Border Patrol.

         The Tucson Sector uses an integrated, multilayered approach to border security. There is an interdependent relationship between the checkpoints and the immediate border, between the checkpoints and the ports of entry, and between the checkpoints and the Border Patrol stations.[5] There is a front line deployment of personnel, technology, and tactical infrastructure. The second line of defense consists of personnel and technology. There are also border checkpoints along the 262 linear border miles from Yuma County to the New Mexico state line. In the 90, 000 square miles, there are eight Border Patrol stations and 11 Border Patrol checkpoints. With the exception of one, each major route of egress has a Border Patrol checkpoint on it.[6] There are nearly 4, 000 Border Patrol agents in the Tucson Sector. In other words, Border Patrol agents seek to prevent the further entry into the United States of undocumented people by using horses, ATVs, aircraft, and checkpoints to make the area a containment zone. Without checkpoints, roving patrol stops and agents in vehicles would have to be used, which does not work well for the Border Patrol. Such methods result in people fleeing from the agents, vehicle accidents, damage to private property, and innocent persons being injured or killed. Checkpoints are manned 24 hours a day, seven days a week, although they are occasionally closed due to inclement weather and/or staffing shortages.

         The Tucson Sector command staff, with input from the Border Patrol Headquarters, determine where checkpoints are located. They look for an area that is straight (avoiding a blind curve in case traffic backs up), not in the middle of a major metropolitan city, and where it would cut off all smaller routes of egress away from the border. Deputy Chief Leonard testified:

So Tucson Sector would be responsible for the strategy as far as what do you need to further contain that particular area? And then we would reach out to Washington, D.C. and ask them for the resources so that we could establish a checkpoint. But we would also have to negotiate with community members and get their permission, negotiate with the Arizona Department of Transportation to get their authority, their permission. So it's a long, drawn-out process, but the strategy is devised at the local level.

TR, p. 84.

         The SR80 checkpoint is located a little north of Tombstone and a little south of Benson. It is 61 miles from the immediate border. This checkpoint deals with people going northbound from Naco, Bisbee, and Douglas and includes a lot of tourists from Bisbee and Tombstone. All the agents stationed at the checkpoints have been trained at the Border Patrol academy. They are Border Patrol agents, but their position description is immigration officers. The Border Patrol agents are evaluated on a matrix related to immigration results and are trained in immigration law, nationality law, statutory law, and criminal law with a priority toward immigration law. They are also trained how to inspect various forms of identification and have some expertise in determining if documents are valid.

         Referring to a map, see Ex.16, from February 20, 2015 through November of 2016, the vast majority of enforcement events took place along the immediate border in the Brian A. Terry station's area of responsibility.[7] Red dots on the map, representing immigration-related events, show most enforcement events along the border, with a smattering of red dots to the north closer to the checkpoint. Deputy Chief Leonard stated:

And I'd like to point out, you see the Highway 80 checkpoint, the one we're talking about today, we look at all the immigration enforcement activities that took place in proximity to this checkpoint as people, from our intell (sic) indicates, that they're dropped off and asked to walk around the checkpoint to circumvent the Border Patrol agents at this checkpoint which is why you see all of the enforcement, the immigration enforcement activity here with a smattering of narcotic enforcement activity. And then you see quite a bit of immigration enforcement activity here with also a smattering of narcotic-related events.

TR, p. 53. The map also identifies narcotic-related events with green diamonds and weapons-related events with circles with guns in them. Event symbols are stacked upon other event symbols. Further, some of the red dots represent multiple persons in a group. Events represented by gray symbols are enforcement events that were outside the area of responsibility for the Brian A. Terry Station.

         Within the last two to three months, cameras have been placed at the SR80 checkpoints. The cameras were added to address complaints regarding traffic backing up or vehicles being held too long.

         The SR80 checkpoint is located just north of SR82, as opposed to further south closer to Tombstone, to prevent people from using SR82 to circumvent the checkpoint. The red dots on the map show people who have been dropped off about 60 miles north of the border and who are trying to walk around the checkpoint to avoid the Border Patrol agents at the checkpoint. The roving agents on horseback, ATVs, and four-wheel drive vehicles attempt to detect the people before they are able to reload into a vehicle.

         According to the Arizona Department of Transportation, approximately 2, 500 - 2, 700 vehicles pass through the SR80 checkpoint in a 24-hour period. Deputy Chief Leonard did not dispute the calculation of the Assistant United States Attorney (“AUSA”) that about one million vehicles travel through the checkpoint in one year.

         At the primary area of the checkpoint, the agent performs the function of determining the alienage or citizenship of the occupants of the vehicles. The secondary inspection area is where people are referred if further examination of the documents, occupants, or vehicles is needed. In the secondary inspection area, occupants can disembark the vehicles safely and the agents can walk around the vehicles more safely with less risk of injury from other traffic. As the singular purpose of the checkpoints is for immigration inspections, the agents ask the occupants their citizenship or immigration status. If someone answers in the negative, the agents ask for documentation. Agents will sometimes waive persons through if the agents are familiar with them.

         Every enforcement event, whether it results in an arrest or not, is entered into the Enforcement Information Database (“EID”), Border Patrol's database. This includes all apprehensions. When an apprehension occurs, the agents write a report and shortly thereafter enter the information at the Wilcox Station where arrested persons are transported - these events may include multiple subjects. This occurs whether or not the case is referred to the U.S. Attorney's Office for prosecution. However, typical or consensual encounters are not entered into the database. The data is overseen by ICE, but Border Patrol and the Office of Field Operations have the ability to retrieve statistics from the EID. It is from this data that Exs. 16, 17, and 18 were created.

         Deputy Chief Leonard summarized the statistics included in Exhibit 14, which provides:

CTN80 Checkpoint

02/20/2015 - 02/19/2016

02/20/2016 - 11/20/2016

Immigration Related* Events

33

11

Immigration Related* Arrests

72

17

Narcotics Related Events

67

38

Narcotics Related Arrests

89

44

Narcotics Related, Non-Immigration Related* Arrests

86

44

Other Arrests (All Non-Immigration*)

105

61


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