United States District Court, D. Arizona
Honorable Jennifer G. Zipps United States District Judge
October 12, 2017 Report (“R&R”) (Doc. 226),
Magistrate Judge Thomas Ferraro recommended denying: (1)
Defendant Slayden's Motion for Reconsideration and
Rehearing on Motion to Suppress (Doc. 133); (2) Slayden's
Amended Motion to Suppress (Doc. 148); and (3) Defendant
Mize's Motion to Suppress Illegal Checkpoint Search (Doc.
136). The Defendants filed timely Objections to the R&R
(Docs. 230 & Doc. 232),  and the Government filed a
response to the Objections. (Doc. 234.) A technical amendment
was made to the R&R on December 22, 2017 to correct the
caption. (Doc. 239.) Upon independent review of the record,
the Court will adopt the Report and Recommendation (Doc.
STANDARD OF REVIEW
Court reviews de novo the objected-to portions of
the R&R. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
The Court reviews for clear error the unobjected-to portions
of the Report and Recommendation. Johnson v. Zema Systems
Corp., 170 F.3d 734, 739 (7th Cir.1999); see also
Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or.
findings of a magistrate judge may be adopted without
conducting further evidentiary review. 28 U.S.C. §
636(b)(1). However, if a district court rejects the
credibility findings of the magistrate judge, a de
novo hearing is required. United States v.
Ridgway, 300 F.3d 1153, 1157 (9th Cir. 2002).
FACTUAL FINDINGS AND LEGAL CONCLUSIONS
parties do not challenge the Magistrate Judge's factual
findings-only the legal significance of those
findings. Accordingly, the Court will adopt the
findings as set forth in the Factual Background section of
the R&R. (Doc. 239.)
Slayden argues that the Magistrate Judge erred by: (a)
declining to evaluate whether the border patrol checkpoint
was constitutional; (b) finding that Defendants'
detention at the checkpoint was not an arrest without
probable cause; (c) concluding Defendant was not subjected to
custodial interrogation in violation of Miranda v.
Arizona; (d) determining Agent Smith and Ranger
Rinck's erroneous October 5, 2016 testimony was
reasonably mistaken rather than recklessly false; (5)
concluding the canine Anouk alerted to Defendants'
vehicle, providing probable cause to search the vehicle; and
(6) failing to address his claim that the warrantless search
of the vehicle was unconstitutional. (Doc. 230, p. 1-2.)
Mize raises two objections: (1) the Magistrate Judge failed
to address the border checkpoint's constitutionality by
analyzing its primary purpose, and (2) if the
constitutionality of the border patrol checkpoint is not at
issue, the Magistrate Judge incorrectly applied
border-crossing law to find that Defendants were not
arrested, but were merely detained, at the border checkpoint.
The Magistrate Judge did not err in failing to evaluate the
constitutionality of the checkpoint.
Slayden and Mize argue that stop of their vehicle was illegal
because it occurred at a border patrol checkpoint that
operates as a general crimes checkpoint. Defendants'
argument misses the mark.
crimes checkpoints are unlawful. United States v.
Martinez-Fuerte, 428 U.S. 543, 556-64 (1976). Unlike
immigration checkpoints, general crimes checkpoints cannot be
used to stop vehicles and develop reasonable suspicion or
probable cause for detention or arrest. Id.; cf. United
States v. Soto-Zuniga, 837 F.3d 992, 998-99 (9th Cir.
2016) (immigration checkpoints provide an exception to the
general rule that a search or seizure is unreasonable unless
it rests on individualized suspicion; immigration control is
a valid purpose for stopping cars and posing questions
without individualized suspicion.) The checkpoint's
legality is not relevant here because the authority of the
checkpoint was not used as a basis for forming reasonable
suspicion exists when the totality of the circumstances
support a “particularized and objective basis for
suspecting legal wrongdoing.” United States v.
Arvizu, 534 U.S. 266, 273 (2002). Here reasonable
suspicion existed that Defendants were transporting marijuana
in their vehicle before the Defendants arrived at the
checkpoint. As set forth in the R&R, Border Patrol Agent
Hughes observed eight individuals in camouflage cross through
a hole in the International Boundary Fence carrying large
packages consistent with marijuana bundles; the individuals
entered an RV park located adjacent to the border. (Doc. 239,
p. 2.) He observed the individuals cross back into Mexico,
without the bundles (Doc. 111, 34:1-12), and saw a white
utility truck leaving the RV park. (Doc. 239, p. 2.) Agent
Hughes radioed the information to Ranger Rinck, who followed
the vehicle toward the checkpoint. Ranger Rinck made
additional observations about the vehicle that supported an
objective, particularized belief that the truck was
transporting marijuana. Rinck observed that the truck's
bed appeared old and its reflector marks appeared new; the
telephone number on the truck's exterior was not
hyphenated and did not reach Rural Electric, the business
name displayed on the truck; and the license plate was not
registered to Rural Electric. (Doc. 239, pp. 2-3.)
do not challenge the finding that reasonable suspicion
existed prior to the checkpoint. Rather, they argue that law
enforcement officers improperly use the checkpoint as a
matter of “convenience” to stop vehicles when the
agency develops reasonable suspicion that a crime has been
committed. While it may be true that the agents use the
checkpoint as a convenience, or, from the agents'
perspective, as a safe and controlled environment in which to
initiate a vehicle stop, the use of the checkpoint does not
merit ignoring the fact that reasonable suspicion supported
the detention of Defendants' vehicle. The reasonable
suspicion did not become inert as the vehicle traversed the
checkpoint regardless of the checkpoint's primary
The Magistrate Judge did not err in finding that
Defendants' were detained, not arrested, at secondary
Slayden objects to the Magistrate Judge's determination
that Defendants were not under arrest until the marijuana was
found. Defendant Slayden asserts that their stop and
detention was not a “temporary detention occasioned by
border crossing formalities” because the agents
retained the Defendants' drivers licenses, Ranger Rinck
pulled in behind Defendants' vehicle and provided
security to make sure the Defendants could not leave, and
Defendants were told they were detained and not free ...