United States District Court, D. Arizona
K. Jorgenson United States District Judge
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.
Factual and Procedural History
Agreements of the Parties
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.
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.
Summary of the Testimony of Helso Lara
and Customs Enforcement (“ICE”) Officer Helso
Lara (“‘Agent Lara”) previously served as a
Border Patrol Agent for approximately six
years. 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.
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.
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.
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). 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.
Lara asked the driver if he was a U.S. citizen. 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.
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), 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. 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.
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.
Summary of the Testimony of Raleigh Leonard
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).
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.
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
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. 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. 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.
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
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.
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.
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. 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
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.
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.
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.
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.
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.
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
Chief Leonard summarized the statistics included in Exhibit
14, which provides:
02/20/2015 - 02/19/2016
02/20/2016 - 11/20/2016
Immigration Related* Events
Immigration Related* Arrests
Narcotics Related Events
Narcotics Related Arrests
Narcotics Related, Non-Immigration Related* Arrests
Other Arrests (All Non-Immigration*)