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United States v. Bautista

United States District Court, D. Arizona

October 29, 2018

United States of America, Plaintiff,
v.
Sheila Bautista and Orlando Unito, Defendants.

          REPORT AND RECOMMENDATION

          Honorable Lynnette C. Kimmins United States Magistrate Judge.

         Pending before the Court are Defendant Unito's Motion to Suppress Evidence Based on Illegal Search (Doc. 47), which Defendant Bautista joined (Doc. 60); and Defendant Unito's Motion to Suppress Identification (Doc. 56), which Defendant Bautista joined (Doc. 65). 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 October 2 and 3, 2018. (Docs. 88, 89.) This matter was submitted following the conclusion of oral argument on October 9, 2018. (Doc. 90.)

         Defendants allege a search of the Bautista property was illegal, and they seek suppression of the government agents' discovery of a car, a hat, and statements of Defendants. Defendants also allege the identification of Defendants by a material witness was unduly suggestive and unreliable. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, grant in part and deny in part both of Defendants' motions.

         I. FACTUAL BACKGROUND

         On April 13, 2018, around 4:45 a.m., Agent David Serrato, who was manning a surveillance truck, notified other agents that four people had loaded into a car from the desert near South Komelik. (RT 10/3/18 at 8;[1] RT 10/2/18 at 5; Ex. 60.) The agent noted that the car was a four-door sedan and had an irregular headlight; the driver's side was brighter than the other. (RT 10/3/18 at 14, 46-47.) Agent Serrato reported that the car headed east to the end of a dirt road near a residence, where he lost visual for about seven minutes, then it headed west on the same road. (Id. at 8-9.) Agent Dominguez was two miles away from South Komelik and, after waiting several minutes for further information, it took him two to three minutes to enter the village heading east. (RT 10/2/18 at 62-63, 88). He saw headlights heading west, one of which was brighter than the other. (Id. at 64, 93.) The car turned north into a residential driveway (“Bautista property”). (RT 10/3/18 at 9, 18; RT 10/2/18 at 7; Ex. 60.) Agent Serrato saw the vehicle go east behind the house and out of sight. (RT 10/3/18 at 18-19.) He then saw two people on the north side of the house where they appeared to be hiding before entering the Bautista residence. (Id. at 19-20.)

         When he arrived, Agent Dominguez parked on the road by the Bautista property; he could not see any vehicles from his parking location on the west side of the property. (RT 10/2/18 at 63, 68, 80.) At approximately 5 a.m., he entered the property from the road through a pedestrian gate in the fence and walked around the east side of the house. (Id. at 66-67, 80; RT 10/3/18 at 23; Ex. 28.) He approached a Chrysler Sebring, determined the hood was warm, and, using a flashlight, saw a camouflage ball cap on the rear seat. (RT 10/2/18 at 69-71; Exs. 6, 7.) He was not invited on the property and Agent Dominguez did not recall speaking to the property owners at that time. (RT 10/2/18 at 95-96.) While he was on the property, Agents Perry and Goutzounis arrived. (Id. at 72, 87.) Agent Serrato saw one of the agents approach within ten feet of the house. (RT 10/3/18 at 24-25.)

         Agent Goutzounis was the second to arrive at the Bautista residence; he also entered the property around 5 a.m. and approached the Sebring. (RT 10/2/18 at 132, 134; RT 10/3/18 at 24.) He saw footprints from the vehicle to the house and noted the camouflage hat in the rear of the vehicle. (RT 10/2/18 at 134.) He did not approach or knock on any doors of the residence. (Id. at 140.) Agent Goutzounis testified that he subsequently remained on the road in or near his vehicle in front of the Bautista residence until after the illegal aliens had been apprehended. (Id. at 75, 138-39, 140-41.)

         When Agent Perry heard the call from Agent Serrato it took him about fifteen minutes to drive to South Komelik, arriving at the Bautista property just after 5 a.m. (Id. at 101; RT 10/3/18 at 26.) He parked on the road in front of the house. (RT 10/2/18 at 102.) Agent Perry testified that the agents checked the Sebring and walked the perimeter of the house from a distance of five to ten feet and then returned to the road. (Id. at 104.) Around 5:23 a.m., Agent Serrato saw someone again walk from the front of the Bautista property, where the border patrol vehicles were parked, to the north side of the house. (RT 10/3/18 at 33-35.) The agents could not have made their observations about the Sebring, the footprints, warmth of the engine, or location of the hat, without entering the property. (RT 10/2/18 at 85-86, 134.)

         By 5:12 a.m., Agent Dominguez headed east on foot down the road in South Komelik; it took about five minutes to arrive at the residence on the east end of the village. (RT 10/2/18 at 92-93.) It took Agent George Flores ten to fifteen minutes to drive to South Komelik, where he met up with Agent Dominguez. (Id. at 6, 36.) Around 5:42 a.m., the agents received notice from the surveillance truck that four people were seen near that eastern residence of South Komelik. (Id. at 73-74, 93; RT 10/3/18 at 35.) Around 6 a.m., Agents Flores, Dominguez, and Perry located four illegal aliens in a nearby wash, all of whom were wearing camouflage hats with the exception of Joshua Tapia-Torralba. (RT 10/2/18 at 11-12, 32, 38-40.) When asked by Agent Dominguez, Tapia-Torralba stated that his hat fell in the rear seat area of the car that dropped them off. (Id. at 12, 40, 76.)

         Next, Agent Flores drove his vehicle through a gap in the fence at the Bautista property, up the driveway, and parked on the northeast side of the house. (Id. at 13-14, 15; Exs. 9, 17.) Agent Flores agreed that the fence-line through which he drove was lined with trees and bushes. (RT 10/2/18 at 43-44; Exs. 12, 18.) Agent Flores looked through the window of the Sebring and saw a camouflage hat on the rear floor of the car; he does not know who else saw the hat. (RT 10/2/18 at 51-52.) Mrs. Bautista, an owner of the residence, approached the agents and asked why they were there. (Id. at 22, 116-17.) When asked about the Sebring, she stated that her daughter, Sheila Bautista, and her boyfriend had just returned from Tucson in it. (Id. at 22, 117.) The Sebring was registered to Robert Bautista and, ultimately, it was seized. (Id. at 32.) The camouflage hat in the rear of the vehicle was the only physical evidence corroborating the illegal aliens' presence in the vehicle. (Id. at 40-41.)

         The Sebring was parked behind the house next to another vehicle; to Agent Dominguez, the Sebring appeared to be parked in an area the family used for parking. (Id. at 19, 85; Ex. 1.) Agent Flores estimated the Sebring was 10-15 yards from the house (RT 10/2/18 at 17, 42; Ex. 8); Agent Dominguez estimated the Sebring was 20-25 feet from the house (RT 10/2/18 at 68); Agent Perry said the Sebring was “right next to” the house, estimated at 10-15 yards (id. at 105-06); and Agent Goutzounis estimated the car was 25 yards from the house (id. at 137). There are some shrubs to the east of the Sebring and something cast a partial shadow shading the vehicle where it was parked. (Id. at 46-47, 85.) From some points on the road, the Sebring would have been at least partially visible. (Exs. 2, 28, 29.)

         The Bautista property is bordered all around by a barbed wire fence. (RT 10/2/18 at 144, 146-47; Exs. 32, 67.) The shrubbery along the Bautista's fence line decreased visibility into the property. (RT 10/2/18 at 148.) An investigator for the defense described an internal perimeter of vegetation around the driveway of the Bautista home. (Id. at 153- 54; Exs. 4, 54.) From the surveillance truck, Agent Serrato could see vegetation surrounding but not blocking the Bautista house, and south of the house there were mesquite trees and brush blocking his view. (RT 10/3/18 at 61-62.)

         Inside the front gate, behind the shrubbery along the southern fence line, there were children's toys. (Id. at 149; Ex. 47.) East of where the Sebring was parked is a storage area and a garden area with fruit trees, which is bordered to the east by some fencing that separates the home of a family member. (RT 10/2/18 at 150-51, 157; Exs. 49-52.) Mrs. Bautista waters the garden area and the shrubbery on the southern fence line. (RT 10/2/18 at 166.) To the north of the home, approximately parallel and west of where the Sebring was parked is a clothes line. (Id. at 151-53; Exs. 53-55.) Between the clothesline and where the Sebring was parked were some items that appear to have been discarded, tires, 50-gallon drums, an appliance, and a recycling bin. (RT 10/2/18 at 171-72; Ex. 53.) North of the clothesline (and north of the parking area), near some trees, there is an outdoor oven and some seating; some of the Bautistas reported using the grill area over July 4th of that year and for family gatherings. (RT 10/2/18 at 154-55, 157, 163; Exs. 56-58.) Entering South Komelik from the west, driving into the Bautista's driveway and approaching the front door, a person cannot see the area where the Sebring was parked. (RT 10/2/18 at 159.)

         Soon after arriving at the Bautista property, Agent Flores asked to speak to Defendant Bautista. (Id. at 23.) After she came out, Agent Flores asked her to bring out her boyfriend, Defendant Unito. (Id. at 24.) He read Defendant Unito his Miranda rights and he waived them. (Id. at 26.) Agent Flores told Defendant Unito that he knew he had been a passenger in the vehicle, that they had picked up four people and dropped them off, and that one of those people indicated he left his hat in the car, and it was in plain view in the rear of the car. (Id. at 26-27.) Agent Flores asked Defendant Unito what he was going to be paid, and he responded, “what if I say I was driving?” (Id. at 28.) When the agent told him he knew that wasn't true, Defendant Unito said, “what if I take the blame?” (Id. at 29.) Agent Flores based his statements on one of the illegal aliens telling him that a younger woman was the driver. (Id.) Mr. Unito eventually stated that he would be paid $10-$13 per person. (Id.) He admitted to being the passenger in the vehicle. (Id. at 32.) Agent Flores then read Defendant Bautista her Miranda rights and she waived them. (Id. at 30.) He told her that they knew she was driving the vehicle when four illegal aliens entered and were transported east, prior to her and Defendant Unito returning to the residence; he did not recall if he mentioned the hat to Defendant Bautista. (Id. at 31, 54.) Upon questioning, she stated that she did not know how much she would be paid in relation to those four individuals but typically she would be paid $1300 to $1400 per person. (Id. at 31.) Defendant Bautista stated that she dropped them at a residence where they would wait until it was time to move them further north. (Id.) Defendant Bautista admitted to being the driver of the Sebring. (Id.) Agent Flores placed the two Defendants under arrest. (Id. at 32.) Defendant Unito was continuously detained and did not consult an attorney prior to giving a recorded statement later that day. (Id. at 49-50.)

         Agent Perry drove two of the illegal aliens, including Tapia-Torralba, to the Bautista residence, so they could see Defendants who had been apprehended. (RT 10/2/18 at 12-13, 108-09, 110.) He ultimately parked his vehicle at the northwest corner of the house, facing east. (Id. at 125-26, Ex. 9.) The agent asked Tapia-Torralba where his hat was located and he pointed towards the cars parked at the Bautista residence. (Id. at 111, 115-16.) When Defendants came into view after being arrested and placed in handcuffs, the two illegal aliens ducked and tried to hide; when queried about their reaction, they identified those two as the drivers. (Id. at 112, 122.)

         Agent Edgar Martinez conducted a video recorded interview of material witness Tapia-Torralba on April 13, 2018. (RT 10/3/18 at 68; Ex. 35.) Tapia-Torralba stated that a car arrived to pick them up in South Komelik and it turned off its lights. (Ex. 59 at 20.) He described the car as a large 4-door sedan but he did not see the color of the car because it was dark. (Id. at 21, 22-23, 31.) There were two people in the car that picked them up, a man and a woman. (Id. at 22, 25.) He did not see them and could not identify which one was driving. (Id. at 24-26.)

         Tapia-Torralba stated that the people that picked them up in the car were arrested. (Id. at 33.) After he was apprehended, agents drove him to “her house” and he saw the woman's “husband” talking to agents by the truck, apart from the woman. (Id. at 33-34.) He said he saw them from behind and did not see their faces. (Id. at 34.) He described the woman as tall (same height as him), chunky, with long hair. (Id. at 34-35.) He said the man was chubby, tall, and bald. (Id. at 36.) Immediately thereafter, the agents told him they would show him some pictures and he should tell them if he recognized one. (Id. at 36.) Agent Martinez showed him a six-pack lineup of men. (RT 10/3/18 at 74; Ex. 45.) Tapia-Torralba said, “the truth is I don't know, but I think that it's number two.” (Ex. 59 at 37.) They then asked him to circle the picture and “write down who he was.” (Id.) In response, he said “I don't know who he was. Just that, they arrived to bring us, ” that he was one of the two that arrived. (Id. at 37-38.) At the agent's direction, he wrote in Spanish, “person who was involved.” (RT 10/3/18 at 76; Ex. 59 at 38; Ex. 45.) The agent then showed him a six-pack lineup of women for “the other person involved.” (RT 10/3/18 at 74; Ex. 59 at 38.) Tapia-Torralba immediately choose number 5, which he again circled and wrote “person who was involved.” (RT 10/3/18 at 76; Ex. 59 at 38-39; Ex. 34.) He then indicated concern that someone would come looking for him and said his family had told him to stay quiet. (Ex. 59 at 39.) He stated, “that one I didn't see, but, uh huh (yes), ” and then confirms that yes, she was involved. (Id.) Tapia-Torralba selected both Defendants from the photo arrays. (Exs. 34, 45.)

         II. DISCUSSION

         Defendants request suppression of the physical evidence, Defendants' statements, and the identification of Defendants by material witness Tapia-Torralba.

         MOTION TO SUPPRESS EVIDENCE AND DEFENDANTS' STATEMENTS

         The Fourth Amendment of the Constitution guarantees, “the right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures.” Any evidence unlawfully obtained in violation of the Fourth Amendment is not admissible. Mapp v. Ohio, 367 U.S. 643, 654 (1961).

         A. Search of Bautista Property

         Defendants argue that the agents' search of the Bautista property, including the Sebring, was within the curtilage of the ...


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