United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE LESLIE A. BOWMAN, UNITED STATES MAGISTRATE JUDGE
District Court referred this case to the Magistrate Judge for
a hearing on the defendants' motion to suppress evidence.
The defendants, Kevin Tungovia and Michaela Ventura, argue
that all evidence obtained as a result of their arrests on
October 19, 2017 must be suppressed because they were
arrested without probable cause, in violation of their Fourth
Amendment rights. (Docs. 48 and 50).
evidentiary hearing was held on 2/1/18. United States Border
Patrol (USBP) Agent Luis Santiesteban testified.
Government's exhibits 1 and 2, and Defendants'
exhibits 10, 11 and 12, were admitted by stipulation of the
parties. Defendants' exhibit 13, an audio recording of
the material witness interview, from 0000 to 32 seconds and
from 11 minutes, 2 seconds to 11 minutes, 8 seconds was
admitted over the government's objection.
defendants are charged in a two count indictment with
conspiracy to transport an illegal alien for profit and
transportation of an illegal alien for profit, in violation
of 8 U.S.C. §§ 1324 (a)(1)(A)(v)(I), (a)(1)(A)(ii)
defendants argue that their Fourth Amendment rights were
violated when they were arrested at the United States Border
Patrol checkpoint on State Route 86 near Three Points,
Arizona on 10/19/17 at about 2:45 a.m., without probable
cause. They assert that any evidence obtained as a result of
the illegal arrests must be suppressed.
Court concludes the initial seizure was lawful. The defense
did not argue, nor did the evidence support, that the
inspection at the checkpoint was unduly
prolonged or unlawful. The defendants were
subsequently arrested based on probable cause. Evidence
acquired subsequent to the arrests is admissible at trial.
Santiesteban testified that he has been a USBP agent,
stationed in Tucson, AZ, since December of 2000. He has
worked at the State Route 86 checkpoint over 100 times during
his 17 years with the Border Patrol. He is fluent in Spanish,
having grown up in a home where Spanish was the primary
10/19/17 Agent Santiesteban worked the midnight shift at the
checkpoint, located about 45 miles north of the international
border between the United States and Mexico. (Tr. p. 13, ln.
That road is the only egress between Tucson and Ajo. (Tr. p.
13, lns.4-5) He was working as the primary agent, at about
2:30 a.m., when he saw the silver minivan approach the
checkpoint; there was no other traffic. (Tr. p. 13, ln.19)
first thing that raised suspicion after the van stopped for
inspection was that the driver and front seat passenger began
answering before Agent Santiesteban asked them any questions.
(Tr. pp. 13-14, lns. 23-25, 1) His report reads, “I
noticed the driver and passenger promptly attempting to
answer immigration status questions…”, but he
explained that he hadn't asked them any questions. (Tr.
p. 32, 33, lns. 18-20, 12-16)
occupants of the van included a male driver, a female front
seat passenger and a male passenger seated in the back seat
behind the female. Agent Santiesteban asked the occupants of
the vehicle in English to state their citizenship. The driver
and front seat passenger, later identified as Mr. Tungovia
and Ms. Ventura, answered that they were United States
citizens. (Tr. p. 14, lns. 20-21) The back seat passenger,
later identified as the material witness Mario
Hernandez-Romero, kept saying “yes” with a heavy
accent that sounded more like “jes”. (Tr. pp.
14-15, lns.24-25, 1-4) The driver and passenger presented
Arizona identification but the rear ...