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United States v. McCowan

United States District Court, D. Arizona

February 1, 2018

United States of America, Plaintiff,
v.
Janice Ann McCowan, Defendant.

          REPORT AND RECOMMENDATION

          Eric J. Markovich United States Magistrate Judge

         Pending before the Court are the defendant's Motion to Suppress Evidence obtained in violation of the Fourth Amendment [Doc. 58.] and Motion to Suppress Statements obtained in violation of the Fifth Amendment. [Doc. 59.] The defendant argues that the narcotics found in her vehicle at a United States Border Patrol checkpoint should be suppressed for three reasons: (1) the checkpoint's primary purpose was not related to immigration inspections; (2) the canine that detected the narcotics was not reliable; and (3) the defendant was detained longer than necessary to conduct an immigration inspection for the sole and unlawful purpose of utilizing the canine to detect for drugs. The defendant argues that her statements were involuntary and should be suppressed because they were obtained based on inducements and promises made to her by law enforcement. For the reasons detailed below, it is recommended that the District Court deny both motions.

         FACTUAL BACKGROUND

         On May 1, 2017, the defendant, Janice McCowan, was arrested for possessing with the intent to distribute marijuana. A criminal complaint dated May 2, 2017 details the circumstances that led for her arrest. At approximately 1:30 p.m. on May 1, 2017, the defendant arrived in her vehicle at the Border Patrol Checkpoint located on Federal Route 15 near North Komelik, Arizona, which is on the Tohono O'odham Indian Reservation. When the defendant handed the Border Patrol agent her identification, he noticed that her hand was shaking and she spoke rapidly. The agent attributed those actions to nervousness. A service canine conducted a sniff of the defendant's vehicle and alerted to an odor in the trunk of the vehicle. The defendant was instructed to open the trunk. She provided her keys to an agent who opened the trunk and discovered bundles of marijuana.

         In a post-Miranda interview, the defendant stated that she was visiting an elderly man that she cares for and had no knowledge of the marijuana in her car. The interview concluded when the defendant requested to have an attorney present. The defendant reinitiated the interview, and waived her right to have an attorney present, while she was being transported to the Federal Correctional Institution in Tucson, Arizona. The defendant then admitted that she agreed to pick up and transport the marijuana in exchange for payment.

         The defendant had her initial appearance on May 2, 2017, and was temporarily detained until her formal detention hearing. On May 30, 2017, the defendant was released from custody pursuant to pretrial conditions, including residing at a drug treatment facility. The defendant violated her release conditions when she used drugs prior to being admitted to the treatment facility. She has remained in custody since that violation.

         EVIDENTIARY HEARING

         As noted above, the defendant has filed motions to suppress evidence seized from her vehicle and statements she made to law enforcement. An evidentiary hearing on the motions was held on December 11, 2017 and December 18, 2017. The government called five witnesses: (1) Raleigh Leonard, Division Chief, Border Patrol; (2) Paul Du Bois, Special Operations Supervisor/Canine Coordinator, Border Patrol; (3) Chris Brewer, Border Patrol Agent; (4) Mark Metheny, Border Patrol Agent; and (5) John McLaughlin, Special Agent, Homeland Security Investigations. The defense called one witness: the defendant, Janice McCowan. The testimony of the witnesses is set forth below.[1]

         1. Raleigh Leonard

         Raleigh Leonard is employed by the United States Border Patrol, which is an agency within the Department of Homeland Security Customs and Border Protection. (12/11/17 Tr. at 7.) Agent Leonard began his career with the Border Patrol in 1991 in San Diego, California. (Id.) During his time in San Diego, he was a line Border Patrol Agent (assigned to different tactical groups), a Senior Patrol Agent, the Public Information Officer, and a Supervisory Border Patrol Agent. (Id. at 8.) In 2007, he transferred to the Yuma Sector as an Assistant Chief Patrol Agent. (Id.) He then transferred to the Tucson Sector in 2008 as an Associate Chief and was later promoted to Division Chief in 2010 or 2011. (Id. at 8-9.) He is currently the Acting Deputy Chief Patrol Agent of the El Centro Sector in El Centro, California. (Id. at 7.) In that position, he oversees tactical infrastructure (e.g., fencing), technology - such as fixed towers, sensors, and remote video surveillance systems - and the prosecutions department. (Id. at 9-10.)

         Agent Leonard testified that the Border Patrol's mission is to patrol the lands and coastal borders of the United States to prevent the unlawful entry of people and contraband. (Id. at 10.) He explained that the Tucson Sector is responsible for 262 linear miles of border, which amounts to 90, 000 square miles of surrounding territory. (Id. at 11.) Within that area of responsibility, there are nine Border Patrol stations, eleven Border Patrol checkpoints, and five forward operating bases. (Id.)

         Every checkpoint is located on major routes of egress leading away from the border with Mexico, and all checkpoints are within 100 air miles of the border. (Id. at 12.) The checkpoints are one tool utilized to deter and prevent the unlawful entry of people and contraband into the United States. (Id. at 13-14.) Agent Leonard explained that the checkpoints were not built simultaneously; rather, they were built in response to the movement of transnational criminal organizations to deter illegal activity. (Id. at 15.) Thus, the checkpoints are located at strategic locations that benefit the Border Patrol. (Id.) But the community impacted by a checkpoint plays a major role in the precise location of a checkpoint. (Id. at 16-17.) He further explained that the checkpoints are “all connected” and have “an interdependent relationship with one another.” (Id. at 15.)

         With respect to the checkpoint on Federal Route 15, Agent Leonard testified that it is located on the Tohono O'odham Nation, which presents a sensitive situation for the Border Patrol. (Id. at 15-16.) There are sacred sites on this land and cultural sensitivities in that tribal members do not recognize “the border” because the Nation extends to the Sea of Cortez in Mexico. (Id. at 15.) Tribal members travel across the border routinely and there is no Port of Entry or fencing. (Id. at 15-16.) Thus, the concerns of the Nation played a role in the location of the FR 15 checkpoint in the Village of North Komelik. (Id. at 16-19.) The intent of the FR 15 checkpoint was to block off traffic that is coming across the border within the Nation. (Id. at 18.)

         The FR 15 checkpoint is rudimentary in that there are no utilities, water, or sewage. (Id. at 19.) There is now a canopy over both lanes of travel and a metal box, known as a Conex box, off to the east side of the road that has an air conditioner. (Id. at 19-20.) There are generators to power lights for the agents at night. (Id. at 20.) The checkpoint is operational 24 hours a day, 7 days a week. (Id.) Agent Leonard testified that approximately 200 vehicles (containing approximately 400 people) pass through the FR 15 checkpoint each day. (Id. at 20-21.)

         When a vehicle approaches the FR 15 checkpoint, the driver would see signs that say “slow down” and that a Border Patrol checkpoint is ahead. (Id. at 22.) The speed limit gradually drops as the vehicle gets closer to the checkpoint. (Id.) There may be a line of vehicles waiting to clear the checkpoint as the Border Patrol agent does his/her immigration inspection of the occupants of the vehicle. (Id.) And there is usually a service canine in and around the vehicles waiting at the checkpoint. (Id.) Once the immigration inspection is completed and it is determined that all occupants are legally in the United States, the vehicle and its occupants are allowed to go on their way. (Id. at 22-23.) However, if the Border Patrol agent doing the immigration inspection develops a suspicion of criminal activity or further questioning is necessary, a vehicle would be referred to a secondary inspection area for further examination of the vehicle and/or its occupants. (Id. at 22.) The goal is for all vehicles traveling northbound on FR 15 to be stopped and the occupants inspected. (Id. at 23.) The only exception is where a public safety issue -- like where traffic is backed up near a curve in the road that creates a blind spot -- requires vehicles simply to be waved through the checkpoint. (Id.)

         With respect to the use of canines at a checkpoint, Agent Leonard testified that there are 14 service canines assigned to the Casa Grande station that operates the FR 15 checkpoint. (Id. at 24.) The canines are trained to detect the odors of concealed humans, narcotics, and their derivatives. (Id.) Some of these canines are also tracking and trailing canines. (Id. at 25.) He explained that the canines are multi-disciplined for economy of purpose - there are a finite number of canines and they work at areas other than the checkpoint. (Id.)

         Notwithstanding the use of canines, alien smuggling organizations still try to get illegal aliens through the checkpoint in vehicles. (Id.) Agent Leonard testified that two to three times per week illegal aliens will be found in vehicles at the various checkpoints, often times in the trunk of the vehicle. (Id.) With respect to the FR 15 checkpoint specifically, Agent Leonard requested statistics from the Office of Chief Counsel regarding immigration and narcotic events/arrests at this checkpoint for a six-month period before and after the defendant's arrest on May 1, 2017. (Id. at 28-29.) For the six-month period prior to the defendant's arrest (11/1/16 to 5/1/17), there were four immigration-related events and 14 immigration-related offenses as a result of those four events; there were 9 narcotic events and 13 narcotic arrests resulting from those events. (Id. at 30.) For the six-month period after the defendant's arrest (5/1/17 to 11/1/17), there were four immigration-related events and 8 immigration-related arrests resulting from those events; there were three narcotic events and 6 narcotic arrests resulting from those events. (Id. at 32.) Agent Leonard explained that the narcotic event/arrests are classified as non-immigration related when the people arrested are either United States citizens or Legal Permanent Residents. (Id. at 32-33.)

         Although the number of immigration and narcotic events/arrests during this one-year time period are almost equal, Agent Leonard testified that the statistics do not alter the purpose and objective of the checkpoint, which is to conduct immigration inspections. (Id. at 33-34.) Agent Leonard acknowledged that Border Patrol agents are trained in conducting narcotic investigations and have the authority to make narcotics-related arrests. (Id. at 47-48.) But he explained that “anything that happens after that immigration inspection is incidental to the primary purpose, intent and objective of the checkpoint.” (Id. at 34.) He further explained that the checkpoints “have an interdependent relationship with our technology, our tactical infrastructure, and the immediate border.” (Id. at 35.) The Border Patrol does not have enough resources to keep everyone from entering the United States illegally, so layers of enforcement activities are used to apprehend people who have crossed the border illegally. (Id.) In addition to deterrence, the checkpoints push alien smuggling into other areas where it can be more easily detected by other Border Patrol resources. (Id. at 35-36.)

         There was no cross-examination of Agent Leonard.

         2. Paul Du Bois

         Paul Du Bois started with the Border Patrol in 1999 in the Tucson Sector. (Id. at 53.) In 2002, he was selected for the Search Trauma and Rescue Team and became the supervisor of that team in 2008. (Id.) He was promoted to the Supervisor Canine Coordinator for the Tucson Sector in 2009. In terms of his experience in working in the canine unit, he explained that he started in the canine program in 2004, first as a search and rescue handler, and then in 2007 he became a search and rescue tracking and trailing canine instructor. (Id.) In 2008, he became a human remains detection instructor, and in 2010 became a detection certified instructor for the Border Patrol. (Id.) He has taught canine training programs to instructors as well as canine handlers, and has received a number of different certifications related to canine training. (Id.) He still has his own canine and works with his canine in addition to his supervisory responsibilities. (Id. at 54.)

         His day-to-day duties involve program management, specifically, oversight of all the canine teams operating within the Tucson Sector of the Border Patrol. (Id.) He has oversight over the training of the canine teams, and estimates that there are over 100 teams in the Tucson Sector (divided up among the nine Border Patrol stations). (Id.) Agent Du Bois testified that it is a rigorous process for an agent to become a canine handler. (Id. at 55.) If an agent makes it through the two-tier interview process, s/he attends a national training, which is a seven-week course. (Id. at 55-56.) There is an academic portion and a psychomotor portion where the handler is performing exercises with the canine and is evaluated. (Id. at 56.) If the agent successfully completes the training, s/he is certified as a canine handler. (Id.) However, the handler still has to engage in regular or maintenance training (16 hours per month) with the Border Patrol. (Id. at 60-61.)

         Agent Du Bois's testimony turned to the Performance Standard Score Sheets, commonly referred to as “Green Sheets, ” that are created for the bi-weekly training sessions at the Border Patrol. (Id. at 62.) Both the canine and the handler are graded, individually and as a team, and a numerical score is assigned to various categories (e.g., search skills, voice tone, speed, communication skills, problem solving, presentation, control, competence). (Id. at 64-66.) The grades range from 1 (good) to 6 (bad). (Id. at 69.) The canine team is required to obtain a total score of 3.5 or less to continue in service. (Id. at 69.) Basically, the Green Sheets are used to score the team's proficiency in search scenarios; they are reviewed quarterly. (Id. at 66, 70.)

         Agent Du Bois was asked to review the Green Sheets for Agent Metheny and canine Jessy-A, the canine team involved in the case at hand. (Id. at 62; Ex. 9.) The team obtained a score lower than the 3.5 required for their yearly certification. (12/11/17 Tr. at 69, 71, Ex. 8; Ex. 9.) Based on his review of the Green Sheets for this team over the course of a year, Agent Du Bois is of the opinion that the team is credible and reliable. (12/11/17 Tr. at 71-72, 79.)

         Finally, Agent Du Bois testified as to the difference between an alert and an indication by a canine. (12/11/17 Tr. at 73.) He described an alert as a reflex or involuntary response, such as a change of body posture and increased respiration, when the canine first encounters an odor it is trained to detect. (Id.) An indication is a trained voluntary behavior that pinpoints the source of the odor. (Id.) Generally, there are three accepted indications for a Border Patrol canine, which are all considered passive. (Id. at 75.) The canine could sit, lay down, and/or point to the source of the odor. (Id.) Agent Du Bois also described “cuing, ” which can occur if the canine handler knows the outcome of the scenario (i.e., where something is hidden) and consciously or subconsciously cues the dog into an indication (usually sitting). (Id. at 80.) Conversely, a handler cannot cue if s/he has no knowledge of where an item is hidden or concealed. (Id. at 80-81.) Agent Du Bois explained that handlers are sensitive to and trained to avoid cuing behavior. (Id. at 80.) Agent Du Bois also explained that all Border Patrol canines are cross-trained to detect the odor of narcotics and concealed humans. (Id. at 82.) As Agent Leonard explained, the reason for cross-certification is “economy of purpose” - i.e., there are a finite number of service canines. (Id. at 82-83.)

         On cross-examination, Agent Du Bois was asked if a handler could command a canine to only alert to a particular odor. (Id. at 84-85.) Agent Du Bois explained that a handler cannot command a dog to alert because it is an involuntary behavior. (Id. at 85.) If a dog does alert, it is not specific to drugs or a concealed human; rather, the alert is to an odor the dog was trained to detect (again, usually drugs or concealed humans). (Id. at 86.)

         3. Chris Brewer

         Chris Brewer is a Supervisory Border Patrol Agent at the Casa Grande station. (Id. at 88.) He has worked for the Border Patrol for over 16 years. (Id.) He has worked at various Border Patrol checkpoints over the course of his career, including the FR 15 checkpoint. (Id. at 89-90.) When working as the primary inspector at a checkpoint, an agent watches vehicles as they approach the checkpoint and then questions the vehicle's occupants regarding immigration status. (Id. at 91.) If Agent Brewer is handed an identification document by an individual, he examines the document to ensure it is valid. (Id. at 92.) Because the FR 15 checkpoint is on tribal land, he may also question the individuals about where they were and where they are headed. (Id.) Agent Brewer testified that canine free air sniffs are done simultaneous with the immigration inspection. (Id. at 93.)

         On May 1, 2017, Agent Brewer was supervising and working at the FR 15 checkpoint. (Id. at 97.) He started his shift around noon and arrived at the checkpoint around 1:00 p.m. (Id.) When he arrived, he assumed primary inspection duties. (Id.) Agent Brewer saw the defendant's vehicle as she approached the checkpoint. (Id.) Traffic was very light that day, and there were no vehicles behind the defendant's vehicle. (Id. at 100.) Agent Metheny, a canine handler, was also working at the checkpoint. (Id.) As the defendant's vehicle was approaching, Agent Metheny got his canine out of his vehicle to conduct a free air sniff while Agent Brewer conducted the primary inspection. (Id. at 97-98.)

         When the defendant arrived at the primary inspection area, she handed Agent Brewer a Colorado River Indian identification. (Id. at 98.) He testified that her hand was shaking as she handed him the identification document and she was speaking rapidly. (Id.) Agent Brewer testified that most people he encounters at that checkpoint are local residents or people who work on the reservation, and it is rare when United States citizens provide agents with identification documents. (Id. at 101.) Agent Brewer did not recognize the defendant as a local resident so he asked her where she was coming from and what she was doing in this area. (Id. at 101.) As Agent Brewer was speaking with the defendant, Agent Metheny indicated to him that the canine alerted to the rear part of the vehicle. (Id. at 99.) As a result, Agent Brewer asked the defendant to open the trunk. (Id.) The defendant told Agent Brewer that she had been stopped earlier that day and agents had already inspected her. Agent Brewer told the defendant that he still needed to look in the trunk because the dog had alerted to her vehicle. (Id.) Agent Brewer believes that Agent Metheny also told the defendant the dog had alerted. (Id.) The defendant ultimately handed her keys to Agent Brewer, who opened the trunk and found eight bundles of marijuana. (Id.)

         On cross-examination, defense counsel pointed out that Agent Brewer's report noted that he thought the defendant was nervous because her hand was shaking and she was speaking rapidly. (Id. at 101-102.) Agent Brewer acknowledged that he had never seen the defendant prior to May 1, 2017, and did not know her mannerisms. (Id. at 104.) He also acknowledged that many people who are not doing anything illegal get nervous when talking with law enforcement. (Id. at105.) Agent Brewer conceded that his report does not specify when the canine team began their inspection of the defendant's car or when the canine alerted. (Id. at 108.) However, Agent Brewer reiterated that the canine alerted while he was conducting his primary immigration inspection of the defendant. (Id.)

         Agent Brewer testified that he was not aware that the defendant had been stopped by law enforcement earlier that day until she told him she had been stopped. (Id. at 110.) After he had arrested the defendant and taken her to the station, he learned that she had been stopped earlier that day by a Border Patrol agent and that a canine was called to search her vehicle. (Id. at 111.)

         4. ...


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