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United States v. Tungovia

United States District Court, D. Arizona

April 3, 2018

United States of America, Plaintiff,
v.
Kevin Ronnie Tungovia, Defendant.

          ORDER

          Honorable Rosemary Marquez United States District Juage

         Pending before the Court is Defendant Kevin Ronnie Tungovia's Motion to Suppress (Doc. 48), joined in by Defendant Michaela Denise Ventura (Doc. 50).[1] In their Motion, Defendants argue they were arrested without probable cause and that all evidence stemming from their arrests should therefore be suppressed. On February 1, 2018, Magistrate Judge Leslie A. Bowman held an evidentiary hearing (Doc. 61). On February 14, 2018, Judge Bowman issued a Report and Recommendation (Doc. 72), recommending that this Court deny the Motion to Suppress. Both Defendants filed an Objection (Docs. 78, 80). The Government filed a Consolidated Response (Doc. 93), and Defendant Tungovia filed a Reply (Doc. 96).

         I. Standard of Review

         A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations” of a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of a magistrate judge's “report or specified proposed findings or recommendations to which objection is made.” Id. The advisory committee's notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee's note to 1983 addition; see also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).

         II. Background

         Defendants were arrested on October 19, 2017, at an immigration checkpoint located on State Route Highway 86 near Three Points, Arizona. (Doc. 1.) On October 25, 2017, they were both indicted for knowingly or recklessly transporting an illegal alien in furtherance of the alien's violation of law, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i), and with conspiracy to commit that offense, in violation of § 1324(a)(1)(A)(v)(I), (a)(1)(A)(ii), and (a)(1)(B)(i). (Doc. 15.) They filed a Motion to Suppress on January 2, 2018, arguing they were arrested without probable cause and that all evidence obtained as a result of their arrests is inadmissible. (Docs. 48, 50.) The following recitation of facts is taken from Border Patrol Agent Luis Santiesteban's testimony at the evidentiary hearing.

         Agent Santiesteban has been a Border Patrol agent for approximately 17 years, stationed in Tucson, Arizona, during that time. (Doc. 69 at 11.) He estimated he has worked the Highway 86 checkpoint over 100 times during his career. (Id.) He is fluent in Spanish. (Id. at 12.)

         The Highway 86 checkpoint is located approximately 45 miles north of the international border between the United States and Mexico. (Id. at 12-13.) That road is the only egress between Tucson and Ajo. (Id. at 13.) Agent Santiesteban was working the graveyard shift at the checkpoint on October 19, 2017. (Id. at 12.) He was the only agent assigned to primary inspection at around 2:30 a.m., when he observed a silver minivan approach the checkpoint. (Id. at 12-13.)

         There were three people in the vehicle: a male driver (Tungovia), a female passenger (Ventura), and a male passenger in the backseat (the material witness). (Id. at 14.) Agent Santiesteban approached the vehicle, but before he asked any questions, Defendants (apparently anticipating questions) began stating their answers. (Id. at 13- 14.) Agent Santiesteban asked the vehicle occupants in English to “[p]lease state your citizenship.” (Id. at 14.) Defendants responded that they are U.S. citizens. (Id.) The material witness responded “yes” in a heavy accent that sounded more like “jes.” (Id. at 14-15.) Agent Santiesteban asked the material witness the same question in Spanish, and the material witness again responded “yes, ” although the question required a more substantive response. (Id. at 15.) The material witness was seated straight up and failing to make eye contact with Agent Santiesteban. (Id.) While Agent Santiesteban was questioning the material witness, Defendants attempted to answer the questions on the material witness's behalf by stating that the witness is a U.S. citizen. (Id. at 15-16.) Agent Santiesteban asked them to stop. (Id. at 16.) Since Agent Santiesteban was unable to establish whether or not the material witness is a U.S. citizen, he referred the vehicle to secondary inspection “for further inspection of the [rear] passenger.” (Id. at 16-17.)

         Once the vehicle was in secondary inspection, Agent Santiesteban ran the license plate and learned that the vehicle was properly registered out of Tucson, but not to the vehicle's occupants. (Id. at 17, 51.) Agent Santiesteban returned to the vehicle and continued to question the material witness regarding the witness's citizenship. (Id. at 17.) Defendants attempted once more to answer the citizenship questions on the material witness's behalf, so Agent Santiesteban removed the material witness from the vehicle. (Id. at 17-18.) After removal of the material witness from the vehicle, one of the Defendants told Agent Santiesteban they had picked the witness up by the “Coyote” and that the witness had told them in English that he was a U.S. citizen. (Id. at 19.) Agent Santiesteban understood “Coyote” to refer to the Coyote Store, which is a known load-up point for undocumented aliens. (Id. at 24-25.)

         Once outside the vehicle, Agent Santiesteban resumed questioning the material witness in Spanish. (Id. at 21.) The material witness responded in Spanish, giving his name and admitting that he is a Guatemalan citizen with no documents allowing him to be in the United States. (Id.) Agent Santiesteban then took the material witness into custody. (Id. at 22.) After securing the material witness, Agent Santiesteban returned to the vehicle and informed Defendants they were under arrest. (Id. at 25.)

         In Agent Santiesteban's experience, several common alien smuggling tactics were present in this case. (Id. at 23.) It is common for the smugglers to answer on behalf of an undocumented alien. (Id.) It is also a tactic to instruct non-English-speaking aliens to answer “yes” to questions posed by Border Patrol agents because some agents tend to ask questions requiring a “yes” or “no” answer, such as, “Are you a U.S. citizen?” (Id.) To thwart this tactic, Agent Santiesteban personally asks people to state their citizenship because it requires more than a “yes” or “no” answer. (Id.) Undocumented aliens also tend to exhibit the same rigid posture, nerves, and failure to make eye contact with agents. (Id. at 24.)

         Agent Santiesteban agreed that the vehicle was obeying all traffic laws; that he noticed no suspicious driving, furtive gestures, or attempts to flee or evade inspection; and that he had not received any information from other agents or people regarding the vehicle. (Id. at 27-28.) He agreed that the material witness was not trying to conceal himself although there were places in the vehicle where a person could hide. (Id. at 29- 31.) He did not see a backpack or water bottle or notice any brush or other debris, which might indicate that the material witness had walked through the desert. (Id. at 65.)

         Agent Santiesteban's original report was written on October 19, 2017. (Id. at 31.) He wrote an amended report on January 29, 2018. (Id. at 33.) Agent Santiesteban wrote his amended report after meeting with the Assistant United States Attorney (“AUSA”) and recounting the entire stop, answering questions that helped him recall information not contained in the original report. (Id. at 61, 70-71.) The AUSA did not tell him what to write. (Id. at 71.) The following information was included in the supplemental report but not the original report: the Coyote Store is a well-known smuggling location; the Defendants became nervous when referred to secondary inspection; the material witness's new, overlarge sweatshirt was a significant ...


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