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United States v. Jones

United States District Court, D. Arizona

October 5, 2018

United States of America, Plaintiff,
v.
Anthony Delbert Jones, Jr., Defendant.

          REPORT AND RECOMMENDATION

          Eric J. Markovich, United States Magistrate Judge.

         Pending before the Court is the defendant's motion to suppress evidence obtained from an illegal traffic stop. [Doc. 21.] The defendant first argues that Border Patrol agents did not have a reasonable suspicion of alien smuggling to stop his vehicle. The defendant also maintains that the Border Patrol agents had no authority to stop the vehicle based only on state traffic violations, especially given that agents never intended to issue a traffic citation; moreover, even if they had that authority, they lacked a reasonable suspicion for a stop on that basis.

         The government argues that because the Border Patrol agents involved in the traffic stop were cross-certified as Arizona peace officers, the agents had the authority to stop the defendant based only on their reasonable suspicion of traffic infractions. The government also argues that agents had a reasonable suspicion of alien smuggling. [Doc. 25.]

         The Court concludes that the agents did not have a reasonable suspicion of alien smuggling to justify the stop of the defendant's vehicle. However, the Court concludes the cross-certification of the Border Patrol agents as Arizona peace officers provided these agents with the authority to stop the defendant based on the suspected traffic infractions; and that authority existed regardless of whether the agents intended to issue a traffic citation. Because there was a reasonable suspicion for the stop based on the traffic infractions, it is recommended that the motion to suppress evidence be denied.

         FACTUAL BACKGROUND

         On June 5, 2017, a criminal complaint was filed against the defendant charging him with the felony offense of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). [Doc. 1.] The criminal complaint sets forth the following facts that form the basis for this charge. On March 31, 2017, the defendant was driving a vehicle that was stopped by law enforcement for traffic violations. When asked if any weapons were in the vehicle, the defendant stated that he had a firearm, which belonged to him, hidden in the center rear seat. Because the defendant had a prior felony conviction, he was prohibited from possessing a firearm. Agents with the Bureau of Alcohol, Tobacco, and Firearms (“ATF")” confirmed that this firearm traveled in interstate commerce.

         On January 3, 2018, a federal grand jury sitting in Tucson, Arizona returned an Indictment against the defendant charging him with a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). [Doc. 3.] The defendant had his Initial Appearance on February 7, 2018, and was temporarily detained pending his detention hearing and arraignment on February 9, 2018. At that hearing, the defendant was detained pending trial.

         On August 10, 2018, the defendant filed the instant motion to suppress evidence obtained as a result of the traffic stop. As noted above, the defendant argues that Border Patrol agents did not have a reasonable suspicion of alien smuggling to stop his vehicle. The defendant also argues that the Border Patrol agents had no authority to stop the vehicle based only on state traffic violations, and even if they had that authority, they lacked a reasonable suspicion for a stop on that basis. The government argues that because the Border Patrol agents involved in the traffic stop were cross-certified as Arizona peace officers, the agents had the authority to stop the defendant based only on their reasonable suspicion of traffic infractions. The government also argues that agents had a reasonable suspicion of alien smuggling.

         An evidentiary hearing on the motion to suppress was held on September 19, 2018. The government called two witnesses: retired Border Patrol Agent Peter Hermansen, Jr., and Border Patrol Agent Christopher Bullock. The defense also called two witnesses: Jack Lane and Martin Pesqueira. The testimony of these witnesses is set forth below.[1]

         1. Peter Hermansen, Jr.

         Mr. Hermansen testified as follows on direct examination. Mr. Hermansen is a retired Border Patrol agent who currently works as a SETA (Science, Engineering, and Technical Advisor) contractor under the assistant secretary of defense. (9/19/18 Tr. at 26.) He was hired for his current position in June of 2017; he testified that he obtained that position because of the work he did while in the Border Patrol. (Id.) He was a Border Patrol Agent for 21 years prior to his retirement. (Id.)

         Mr. Hermansen started his career as a reserve officer for the city of East Detroit, Michigan. (Id. at 27.) He was in that position for three years and then joined the Border Patrol. (Id.) During his career with the Border Patrol, he was stationed in El Paso, Texas; Washington, D.C.; Douglas, Arizona; Casa Grande, Arizona; and Tucson, Arizona. (Id.) In his time with the Border Patrol, he served with their national tactical team (BORTAC), including being the director of that organization, as well as serving in Central and South America. (Id.)

         When he retired from the Border Patrol, his title was Patrol Agent in Charge for the Tucson Sector Intelligence Unit. (Id.) In that position, he ran the sector intelligence program for the State of Arizona. Specifically, that unit gathered information and produced intelligence for agents in the field to use in their patrol duties. (Id.) In terms of his day-to-day duties, he had a leadership role which was probably five to six levels removed from agents in the field. (Id.) Nevertheless, he still was involved with the day-to-day “boots on the ground operations of the Border Patrol.” (Id. at 28.)

         Mr. Hermansen's testimony then turned to the cross-certification of Border Patrol agents as state peace officers. (Id.) He explained that the Border Patrol obtains cross-certifications for its agents with many sheriff's departments across the State of Arizona so agents can work cases with state and county law enforcement. (Id.) He testified that the Border Patrol does not seek cross-certifications in order to enforce state law per se. (Id.) He explained that counties offered the Border Patrol “ticket books” to cite for violations of the Arizona Revised Statutes, but the Border Patrol declined the offer. (Id.) Mr. Hermansen testified that the cross-certification furthers the mission of the Border Patrol because agents can work with state law enforcement generally as well as on task forces. (Id. at 29.) But he emphasized that the Border Patrol's primary mission is “to defend the homeland.” (Id.)

         Mr. Hermansen was personally involved with the process of obtaining cross-certification of Border Patrol agents. (Id.) Specifically, he would request the cross-certification of agents assigned to task forces from sheriff's departments. (Id.) He explained that his superiors restricted the cross-certification requests to agents “assigned to task forces or agents in critical positions at stations that wanted to work and interact with state, local agencies at the time.” (Id. at 30.) In terms of the cross-certification process, he testified that he would complete a memorandum requesting cross-certification of certain agents and submit it to the sheriff's department. (Id.) As part of that process, he would ensure that the agents requested for cross-certification are federal peace officers that are in good standing with the Border Patrol. (Id. at 31.) The sheriff would review the request and then decide whether to authorize the cross-certification. (Id. at 30.)

         Mr. Hermansen testified that shortly before his retirement, he submitted a memo dated March 1, 2017 to Sheriff Napier requesting cross-certification of sixty Border Patrol agents. (Id. at 32-33; Def. Ex. 53.) That request for cross-certification included Agent Christopher Bullock. (Id. at 33.) In a letter dated March 10, 2017, Sheriff Napier granted the request for the cross-certification of these sixty Border Patrol agents pursuant to A.R.S. 13-3875. (Id. at 34-35; Def. Ex. 53.) The cross-certification was effective for one year. (Def. Ex. 53.)[2]

         Mr. Hermansen's testimony then turned to the traffic stop on March 31, 2017. (Id. at 36.) He testified that on that date, he was working as part of a Disrupt team that goes into the community and looks for illegal activity based on “verbal reporting or intelligence-type information.” (Id.) On or around March 31, 2017, Border Patrol received information from the Tucson Police Department and the South Tucson Police Department about “a lot of activity in those areas in relation to aliens and narcotics.” (Id.) He testified that Border Patrol's authority to investigate alien and drug cases extends beyond the border and into communities like South Tucson. (Id. at 37.) He explained that alien and drug activity permeates into urban centers and, as a result, investigations by Border Patrol agents extend into the Tucson area. (Id.) Mr. Hermansen testified that he and Agent Bullock wanted to go into the South Tucson area in an unmarked vehicle before sending marked Border Patrol units to the area because Border Patrol is often seen in a negative light by individuals in that area. (Id. at 38.) He testified that the specific area they were looking at was the Santa Rita Skate Park on Curtis and Euclid Streets. (Id. at 40.)

         On March 31, 2017, Mr. Hermansen and Agent Bullock were conducting surveillance near the park. (Id. at 41.) They had arrived at the park around noon. (Id.) They were in an unmarked Chevy Tahoe and Agent Bullock was driving. (Id. at 42.) Both agents were in plainclothes, but Agent Bullock was wearing a Border Patrol vest and Mr. Hermansen had on a jacket that said “CBP” with a badge on the front and “police” across the back. (Id. at 43.) He described the area around the park as a residential area, “people walking around, stores, businesses on some of the roads, and vehicular traffic in the area as well.” (Id. at 41.)

         At about 1 p.m., Agent Bullock slowed the vehicle down “to take a look at some subjects in the park and a vehicle approached from behind . . . and honked its horn and then sped around us.” (Id.) He testified that the vehicle then slowed at a stop sign but immediately sped across the intersection; “that piqued a concern . . . because it was either attempting to evade us or attempting to get out of the area.” (Id. at 43.) Agent Bullock sped up and started following the vehicle in order to get the license plate. (Id. at 44.) After the vehicle sped through the stop sign, the agents were able to get the license plate. They called the plate number in to dispatch via the radio; the vehicle was a rental. (Id.) Agents continued to follow the vehicle which went into a residential area; the vehicle was exceeding the posted speed limit of twenty-five miles per hour and continued to roll through stop signs. (Id. at 44-45.) The vehicle eventually did a quick U-turn at a T intersection at the end of the street; the vehicle also made quick turns and rolled through stop signs, which he interpreted as attempts to evade law enforcement. (Id. at 47.) He also noticed the subject in the vehicle making suspicious furtive movements; movements behind, movements to the side, looking like he was attempting to hide something. (Id. at 47.) Mr. Hermansen estimates that they observed this erratic driving behavior for about three to five minutes. (Id. at 48.)

         Mr. Hermansen testified that he and Agent Bullock had safety concerns based on the driving behavior, given that they were in a residential area and there were people in the area. (Id. at 45.) He testified that Border Patrol agents are still responsible for the safety of the public even though they are federal officers tasked with enforcing federal immigration and narcotics laws. (Id. at 45.) Based on these concerns, agents decided to stop the vehicle. (Id. at 47.) Eventually, Agent Bullock activated the emergency lights on his vehicle. (Id. at 47-48). The driver of the vehicle did not immediately stop; he “continued to drive at a higher speed going through stop signs.” (Id. at 49.) Agent Bullock had to pull along side the vehicle, activate the siren, and roll down his window to instruct the driver to pull over to the side of the road. (Id. at 49-50.) Ultimately, the driver pulled the vehicle over to the side of the road. (Id. at 50.)

         Once the vehicle stopped, Agent Bullock approached the vehicle to speak with the driver, and Mr. Hermansen approached the passenger side of the vehicle. (Id. at 50.) Agents noticed a small child in a car seat in the backseat of the vehicle. (Id. at 51.) The defendant was the driver of the vehicle. Both the defendant and his passenger were very animated as to why they were pulling them over. (Id. at 50.) The defendant was very nervous, and the passenger kept demanding to know why they were pulled over. (Id. at 51.) Agent Bullock asked the defendant to exit the vehicle, and they went to the back of the vehicle. (Id. at 51.) Agent Bullock advised Mr. Hermansen that there was a weapon in the vehicle. (Id. at 52.) The defendant provided his consent for agents to search the vehicle. (Id.) Mr. Hermansen searched the vehicle and found a firearm underneath the back seat where the child was seated. (Id.) The firearm was a revolver which was loaded with ammunition. (Id. at 53.) The defendant told officers he had prior convictions and that he had drugs on him and in the vehicle. (Id. at 53-54.) Agents found what they believed was heroin hidden in the defendant's underwear and in the vehicle. Agents could not immediately determine if the defendant was a convicted felon, although he admitted as much, so they told him that he would have to come to the station so they could run a records check. (Id. at 54.)

         In response to the prosecutor's question about why the vehicle was stopped, Mr. Hermansen testified that a stop was performed because of “the notoriety of the area, the manner and travel of the vehicle, the furtive movements of the subject, and the record checks coming back to it being a rental vehicle, which is very common in narcotics and alien smuggling events.” (Id. at 60.) He further testified that it is common for alien and drug smuggling subjects to disobey traffic laws. (Id. at 61.)

         On cross-examination, Mr. Hermansen agreed that 8 CFR § 287.5 denotes the Border Patrol's authority, which includes the authority to investigate and make immigration arrests, as well as execute immigration warrants. (Id. at 63.) Mr. Hermansen conceded that this code provision does not give Border Patrol agents authority to stop someone for a traffic violation. (Id. at 63-64.) He also agreed that Border Patrol agents normally do not stop individuals for traffic violations, and this stop did not occur on federal land. (Id. at 64.)

         With respect the cross-certification as an Arizona peace officer, Mr. Hermansen agreed that he did not have a citation pad or a radar gun because that is not his job. (Id.) And he had no intention of writing the defendant a ticket for speeding, blowing through a stop sign, or making a U-turn. (Id.) In fact, Mr. Hermansen has never cited someone for a traffic infraction while working as a Border Patrol agent. (Id. at 65.)

         As to the safety concerns about the defendant's driving behavior, Mr. Hermansen agreed that Agent Bullock pulled to the side of the road to let the defendant pass; that Agent Bullock sped up to get behind the defendant's vehicle; that the defendant was driving about 40-45 miles per hour and Agent Bullock was driving faster than that through a residential area to catch up to the defendant; and that the Chevy Tahoe that Agent Bullock was driving is a big vehicle. (Id. at 65-66.) Mr. Hermansen testified that both the driver and passenger “took a long look” (about five seconds) at him and Agent Bullock as they passed them. Mr. Hermansen got a good look at the passenger who was an African-American female in her 30's and heavier set; he only got a glimpse of the driver. (Id. at 67-68.) Mr. Hermansen reiterated that he and Agent Bullock thought it seemed out of the ordinary for the driver to speed up after he passed them and looked at them, so they decided to follow the vehicle. (Id. at 68.) Mr. Hermansen did not see anyone get into or out of the defendant's vehicle, and the vehicle did not have Mexican plates. (Id. at 68, 70.) He also agreed that the defendant was pulled over about a block from Tucson Auto Rentals, which is where the vehicle was registered. (Id. at 70.)

         The testimony then turned to the cross-certification under A.R.S. 13-3875. Mr. Hermansen agreed that certain steps are required for a federal agent to be cross-certified by a sheriff. (Id. at 73.) Mr. Hermansen also agreed that the first step is that the federal agency has to write a letter to the sheriff; the second step is that you have to submit evidence that the federal agents are certified as federal peace officers; the third step is that the federal agency has to submit evidence that the agents have been authorized under federal law to engage in or supervise the prevention, detection, investigation, or prosecution of a violation of federal law; and lastly, that the agent is authorized by federal law to make arrests, serve warrants, and carry firearms. (Id. at 73-74.) Mr. Hermansen confirmed that the only information that was sent to Sheriff Napier was the March 1, 2017 letter. (Id. at 74-75; Def. Ex. 53.) Defense counsel asked Mr. Hermansen whether he submitted any evidence that Agent Bullock is authorized to make arrests, serve warrants, investigate violations of federal law, or carry firearms; Mr. Hermansen testified that he only submitted the letter.

         With respect to the initial encounter with the defendant, Mr. Hermansen testified that Agent Bullock brought the vehicle to almost a complete stop at the time the defendant honked the horn and passed the agents. (Id. at 76.) He does not know how fast the defendant was going when he passed the agent's vehicle; he only heard an acceleration of the engine. (Id.)

         Finally, Mr. Hermansen agreed that most undocumented individuals that he encounters are generally identifiable as Hispanic. (Id. at 77.) He also agreed that most of the undocumented aliens that he encounters are not African-American. (Id. at 78.)

         On re-direct examination, Mr. Hermansen explained that he encounters individuals who are engaged in alien or drug smuggling who are not undocumented and/or Hispanic. (Id. at 78-79.) In fact, he has encountered African-American individuals engaging in those crimes. (Id. at 79.) And ...


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