United States v. Bejarano

          REPORT AND RECOMMENDATION

          Honorable Jacqueline M. Rateau United States Magistrate Judge

         This matter was referred to Magistrate Judge Rateau for pretrial matters. On July 9, 2018, Defendant Armando Castro Bejarano filed a Motion to Suppress Based on Lack of Reasonable Suspicion. Doc. 23. The Government filed a Response on July, 17, 2018. Doc. 27. The defense did not file a reply. The matter was heard by the Court on September 18, 2018. Defendant was present and represented by counsel. The Government presented one witness, Border Patrol Agent Brian Horton. Doc. 42. Two Government exhibits were admitted. Doc. 43. Nine defense exhibits were admitted. Doc. 44. Having considered the matter, the Magistrate Judge recommends that Defendant's motion be denied.^[1]

         I. Findings of Fact

         Border Patrol Agent Brian Horton has worked as an agent for 10 years out of the Border Patrol's Sonoita Station. On January 28, 2018, he was assigned to the Mobile Interdiction Team targeting vehicles smuggling aliens and narcotics. That day, he was in a marked unit and had stationed his vehicle at the Shell gasoline station located on the southeast corner of State Route 82 and State Route 83 and was facing the intersection and observing traffic. Def. Ex. 3 (photograph of Shell gas station marked by Agent Horton to show his location); Gov. Ex. 1 (aerial photograph of intersection).^[2] The intersection is approximately 30 miles from the international border.

         As he watched the intersection, he noticed two vehicles traveling westbound on SR 82. The first vehicle was a Dodge truck with the Honda Accord following “right behind.” As the vehicles pulled into the Shell station, Agent Horton noticed that the occupants of neither vehicle looked at him. The Dodge truck proceeded to park at the gas pumps and the car parked in a parking space. Believing that the cars might be traveling in tandem, Agent Horton drove past the vehicles to record and run the vehicles' license plate information. After the plate information was provided to dispatch, Agent Horton learned that the Honda had a valid registration out of Tucson that did not raise his suspicions. However, he was informed that the registration associated with the Dodge truck was what agents describe as a “pseudo registration” that included a name and a Sierra Vista address, but contained no additional identifying information such as the owner's date of birth, driver's license number, or social security number.

         At about the same time, Agent Horton drove north on SR 83 and parked at a church located approximately 300 yards north of the intersection of SR 82 and SR 83. From there, using binoculars, he saw an occupant of the truck communicating with the occupants of the Honda. He then saw the truck and car pull out of the gas station at the same time. The truck proceeded northbound on SR 83 and the car went westbound on SR 82. Agent Horton was suspicious about the truck's direction of travel because it was registered in Sierra Vista and was headed toward Tucson and because the usual route from Sierra Vista to Tucson is SR 90. Agent Horton decided to follow the truck northbound on SR 83 and requested that another agent follow the Honda.

         Agent Horton was informed a short time later that the Honda had made a U-turn to travel eastbound on SR 82 toward Sierra Vista. Agent Horton continued to follow approximately 1000 feet behind the truck and he contacted the Border Patrol checkpoint, located further north on SR 83, to inform them about the approaching truck and his suspicions. However, a short distance before the checkpoint location, the truck turned onto Gardner Canyon Road. The road is known for smuggling and is used by alien and drug smugglers to circumvent inspection at the SR 83 Border Patrol checkpoint. Agent Horton then activated his lights and conducted a stop of the truck. The vehicle stopped and the agent approached and asked the driver for his driver's license. The driver was identified as Defendant Castro Bejarano. Agent Horton asked for and was granted consent to search the vehicle. The initial search revealed four packages of marijuana and Agent Horton impounded the vehicle. A subsequent search resulted in the discovery of a total of 26 kilograms of marijuana in the truck.

         II. Conclusions of Law

         The Fourth Amendment protects a person against unreasonable searches and seizures. United States v. Hensley, 469 U.S. 221, 226 (1985). Consistent with the Fourth Amendment, police may stop persons in the absence of probable cause under limited circumstances. Terry v. Ohio, 392 U.S. 1, 88 (1968). The police may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity. Hensley, 469 U.S. at 226. Reasonable suspicion exists when an officer is aware of specific articulable facts, that, together with rational inferences drawn from them, reasonably warrant a suspicion that the person to be detained has committed or is about to commit a crime. United States v. Cortez, 449 U.S. 411, 416-18 (1981).

         When assessing the reasonableness of the police officer's actions, the court must consider the totality of the circumstances which confronted the officer at the time of the stop. United States v. Sokolow, 490 U.S. 1, 8 (1989). This assessment precludes a “divide-and-conquer analysis” because even though each of a suspect's acts may be innocent in and of themselves, when taken together, they may warrant further investigation. United States v. Arvizu, 534 U.S. 266, 272 (2002). “A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct. United States v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013) (quoting Arvizu, 534 U.S. at 277).

         The articulable facts forming the basis of a reasonable suspicion must be measured against an objective reasonableness standard, not by the subjective impressions of a particular officer. Gonzalez-Rivera v. I.N.S., 22 F.3d 1441, 1445 (9th Cir. 1994). An officer is however, “entitled to assess the facts in light of his experience in detecting illegal entry and smuggling.” United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975). But the inferences drawn from an officer's experience must be objectively reasonable. United States v. Montero-Camargo, 208 F.3d 1122, 1131 (9^th Cir. 2000) (en banc).

         In relation to stops by Border Patrol agents, the totality of circumstances may include:

(1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including obvious attempts to evade officers; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and, (8) officer experience.

United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9^th Cir. 2007). “Not all of these factors must be present or highly probative in every case to justify reasonable suspicion[, ] . . . [a]nd the facts must be filtered through the lens of the agents' training and experience.” Unit ...