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United States v. Vasquez

United States District Court, D. Arizona

April 26, 2018

United States of America, Plaintiff,
v.
Elias Vasquez, Defendant.

          REPORT AND RECOMMENDATION

          HONORABLE LYNETTE C. KIMMINS UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are Defendant's Motion to Suppress Statements (Doc. 40) and Motion to Suppress Identification (Doc. 39). The government filed responses to both motions. (Docs. 50, 51.) This matter came before the Court for a hearing and a report and recommendation as a result of a referral, pursuant to LRCrim 57.6. Evidence and argument were heard on March 16 and April 13, 2018.[1] (Doc. 44.) This matter was submitted following oral argument held on April 20, 2018. (Doc. 88.)

         Defendant contends that his Miranda waiver was not knowing, intelligent and voluntary and his statement was not voluntary. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motion to suppress his statements. Defendant also argues the Court should suppress Agent Pintado's identification of Defendant. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motion to suppress identification.

         I. FACTUAL BACKGROUND

         Defendant Elias Vasquez is charged with conspiracy to transport illegal aliens, transporting illegal aliens, and fleeing from an immigration checkpoint. (Doc. 21.)

         On the night of December 4, 2017, Border Patrol Agent Cynthia Pintado was working at the I-19 border patrol checkpoint. (RT1 at 8, 18.) During her shift, at 9:35 p.m., a blue semi-truck without a trailer pulled up to the primary inspection lane where she was working. (Id. at 8-9, 18; RT2 at 62; Exs. 3, 8.) Agent Pintado climbed up on the side step of the truck to talk to the driver. (RT1 at 10.) She asked the male driver if he was alone and he said, “yes, ” and pulled back the curtain. (Id. at 10, 23.) When she asked if they could search the cabin of the truck, the driver became angry and opened the truck door, which knocked her off the step. (Id. at 11.) Agent Pintado again asked the driver if he would allow them to search the cabin, and he said, “come in and search it.” (Id.) Agent Pintado told the driver he would need to go to the secondary area for the search. (Id.) The driver accelerated and drove away from the checkpoint. (Id.)

         The truck was in Agent Pintado's inspection zone for 29 seconds; she estimated being on the truck's side-step for 20 seconds. (RT1 at 12; RT2 at 36; Ex. 7.) In the five minutes prior to the blue semi-truck approaching her lane, 11 semi-trucks (all with trailers) and one car passed through her inspection area; she spoke to five of the semi drivers, two of them step-side. (RT2 at 34-35; Ex. 8.) Agent Pintado had a well-lit clear view of the driver and described him as of Hispanic descent, bald (no hat), medium build, and 30 to 40 years old. (RT1 at 12-13, 22, 23, 28, 29.) Agent Pintado stated that she was confident in her memory of the driver because she had been just two feet from him and she'll never forget getting pushed off the step. (Id. at 30.)

         On December 4, 2017, Task Force Officer Jorge Rodriguez received a phone call from the I-19 checkpoint that a truck had fled from that location. (RT1 at 56.) TFO Rodriguez responded to I-19 and, when the truck passed his location, he joined the other units pursuing the truck. (Id. at 56-57.) The truck reached speeds of 90 miles-per-hour and agents lost sight of the truck for a period of time, but it was later located at the Triple T truck stop in Tucson at 10:18 p.m. (Id. at 57; RT2 at 66.) There was no driver with the vehicle but five individuals, illegally in the country, were found inside. (RT1 at 58.)

         At 3:53 a.m. on December 5, TFO Rodriguez spoke to material witness Martinez-Lopez, one of the truck passengers. (RT2 at 39, 42.) Martinez-Lopez said he could not describe the driver of the truck, that he did not get a good look at him. (Id. at 39-40.) TFO Rodriguez spoke to a second passenger, material witness Zaragoza-Guzman, at 4:12 a.m. (Id. at 41.) He described the driver as male, skinny, and wearing a hat. (Id.)

         The following day, at 2:08 p.m. on December 5, TFO Rodriguez received an email that agents had found a debit card in the blue semi-truck, with the name Elias Vasquez on it. (RT1 at 59, 75; RT2 at 68.) He also received a driver's license photo for Vasquez and prior checkpoint photos of the semi-truck. (RT1 at 59-60, 76, 86.) The checkpoint photos were taken November 1, 16, 20, and December 4. (RT2 at 58-61; Exs. 6, 7.) TFO Rodriguez reviewed the December 4 photos on the computer system. (RT2 at 69-70.) He concluded the driver's license photo was of the same person as the checkpoint photos. (RT1 at 60, 86-87.)

         TFO Rodriguez telephoned Agent Pintado on December 5, and told her he was going to send her a picture of someone that possibly was driving the blue semi-truck she had encountered the previous night. (RT1 at 13, 15, 61.) Agent Pintado testified that TFO Rodriguez informed her that he had a driver's license photograph of a person whose debit card was found in the blue truck. (Id. at 13.) Agent Rodriguez sent her the driver's license photograph (not a photo lineup) by text message at 2:52 p.m. (Id. at 13, 25, 88; Ex. 4.) Agent Pintado was absolutely sure when she saw the photograph that it was the driver of the blue semi-truck from the night before. (RT1 at 14.) She responded right back to TFO Rodriguez that the photograph was of the driver. (Id. at 27, 87.) At the time TFO Rodriguez contacted Agent Pintado, he was concerned about rapidly identifying the driver because the possible material witnesses to the driver's crime could be transferred out of the area if a complaint was not filed against the suspect. (Id. at 62-63, 72; RT2 at 72-74.)

         TFO Rodriguez did a second interview with the material witnesses on the evening of December 5, during which he used a 5-photo lineup. (RT1 at 88; RT2 at 42, 44.) At 7:40 p.m., Zaragoza-Guzman stated that he did not get a good look at the driver because the driver had been facing forward, but he estimated him to be 45 years old. (RT2 at 43.) Zaragoza-Guzman did not select a photograph of the driver from the lineup. (Id. at 44, 45.) At 7:56 p.m. on December 5, Martinez-Lopez stated that he only saw the side of the driver's face and he thought he had facial hair; he believed the photograph of Defendant Vasquez looked like the driver but he couldn't be sure. (Id. at 40, 44-45.)

         On December 7, 2017, Defendant was arrested at the DeConcini port of entry and transported to the HSI substation in Tucson. (RT1 at 33, 65.) During transport, Defendant asked why he was being detained. (Id. at 65.) The agents told him there was an arrest warrant for him based on alien smuggling, and Defendant responded, “What do you mean, like UFOs?” (Id. at 65-66.) TFO Rodriguez interpreted it as a denial of the events but did not ask Defendant about that statement. (Id. at 66, 97-98.)

         HSI Special Agent Jose Mendoza met Defendant at the substation for processing. (Id. at 33.) SA Mendoza removed Defendant's handcuffs but kept ankle shackles on him. (Id. at 34.) The agent testified that Defendant was very upset when he arrived, he was cussing and clenching his fists, and stated that he was going to file a lawsuit for wrongful arrest because they had gotten the wrong guy. (Id. at 35, 39-40.) The agent spoke to Defendant in both English and Spanish and found that Spanish was somewhat calming for Defendant. (Id. at 35.) SA Mendoza read Defendant his rights in English from the I-214 form; Defendant did not ask any questions. ...


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