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United States v. Tungovia

United States District Court, D. Arizona

February 14, 2018

United States of America, Plaintiff,
v.
Kevin Ronnie Tungovia and Michaela Denise Ventura Defendants.

          REPORT AND RECOMMENDATION

          HONORABLE LESLIE A. BOWMAN, UNITED STATES MAGISTRATE JUDGE

         The 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).

         An 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.

         Charge:

         The 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) and (a)(1)(B)(i).

         Motion to Suppress:

         The 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.

         The 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[1] or unlawful. The defendants were subsequently arrested based on probable cause. Evidence acquired subsequent to the arrests is admissible at trial.

         EVIDENCE:

         Luis Santiesteban

         Luis 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 language.

         On 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. 3)[2] 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)

         The 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)

         The 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 ...


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