United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. Markovich, United States Magistrate Judge.
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.
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.]
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.
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.
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.
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
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.
Peter Hermansen, Jr.
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
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.)
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.
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
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.
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
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.)
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 ...