United States v. Flores-Ferris

          REPORT AND RECOMMENDATION

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently pending before the Court is Defendant Ana Flores-Ferris's Motion to Suppress Based on Lack of Reasonable Suspicion to Conduct Investigatory Stop of Her Vehicle (Doc. 41). The Government has filed its response, and there was no reply. Govt.'s Response to Def.'s Mot. to Suppress (No Reasonable Suspicion to Stop) (Doc. 43). Defendant is charged with one (1) count of conspiracy to transport illegal aliens for profit, and two (2) counts of transportation of illegal aliens for profit in violation of Title 8, United States Code, Section 1324. Indictment (Doc. 28) at 1-2. Defendant Ana Flores-Ferris seeks suppression of all evidence obtained as a result of an allegedly faulty investigatory stop. See Def.'s Mot. to Suppress (Doc. 41).

         Pursuant to LRCrim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. On October 18, 2018, an evidentiary hearing was held before Magistrate Judge Macdonald regarding the motion. Minute Entry 10/18/2018 (Doc. 49). This matter is ripe for adjudication. The Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion.

         I. FACTUAL BACKGROUND

         On June 13, 2018, United States Border Patrol Agent Julian Trujillo was assigned to the Border Apprehension and Interdiction Team (“BAIT”) in the town of Arivaca, Arizona. Hr'g Tr. 10/18/2018 (Doc. 54) at 5:9-6:11. Agent Trujillo has been employed with Border Patrol for eleven and a half (111/2) years. Id. at 5:9-17, 19:9-11, 21:13-21. Agent Trujillo described his work on BAIT as a plain clothes detail, where agents are in plain clothes, driving unmarked vehicles, and watching traffic or areas that are known for smuggling activities. Id. at 5:19-24. Prior to working for BAIT, Agent Trujillo participated in ASID in the Tucson station area of responsibility, a detail where agents interview groups of undocumented aliens for the purpose of identifying the foot guide. Id. at 21:13-22:13.

         A. The Arivaca Area and Initial Observation

          At approximately 10:40 a.m. on June 13, 2018, Agent Trujillo at the library parking lot in the town of Arivaca, watching traffic. Hr'g Tr. 10/18/2018 (Doc. 54) at 7:24-8:4, 20:16-19. Agent Trujillo described Arivaca, Arizona as approximately twenty (20) miles south of the Amado and I-19 intersection, and about twelve (12) miles north of the international border between the United States and Mexico. Id. at 6:3-7. Agent Trujillo further described the town of Arivaca as part of a smuggling corridor between Mexico to Tucson and Phoenix. Id. at 6:22-7:14, 22:25-23:11. Agent Trujillo testified that while observing traffic, he saw a white Toyota pickup truck pull into the library parking lot and park for approximately three (3) minutes, with the female driver, later identified as Defendant Ana Flores-Ferris, talking on her cellular telephone. Id. at 8:5- 13, 18:7-15. Agent Trujillo further testified that he observed the pickup truck pull out, and head back into town. Id. at 8:5-13. Approximately three (3) minutes later, the same pickup truck returned and parked in the same parking spot, with the driver still talking on her cellular telephone. Hr'g Tr. 10/18/2018 (Doc. 54) at 8:5-24. Agent Trujillo indicated that he found the driver's behavior strange, because the driver of the Toyota pickup never got out of the vehicle. Id. at 8:25-9:3.

         Agent Trujillo described the library parking lot as consisting of approximately twenty (20) parking spaces. Id. at 9:4-6. Agent Trujillo further testified that there were other vehicles in the parking lot, but none in the area where the driver of the Toyota pickup parked, nor were there any coming or going from the parking lot. Id. at 9:4-15. Agent Trujillo testified that when the white Toyota pickup truck returned to the parking lot, a small gray sedan pulled up next to the pickup truck. Id. at 9:16-10:2. Agent Trujillo also testified that two females got out of the gray sedan and walked toward the pickup truck, while the female driver of the pickup truck motioned in a waving fashion indicating that they should hurry. Hr'g Tr. 10/18/2018 (Doc. 54) at 9:16-10:2. Agent Trujillo described the two women as wearing jeans, one with a navy blouse and matching purse, and the other with a red blouse and matching purse. Id. at 21:2-12.

         Agent Trujillo testified that once the two women got into the pickup truck, it pulled out of the parking lot and headed east away from the town of Arivaca. Id. at 9:16- 10:8, 23:12-19. Agent Trujillo further testified that he obtained the license plate information for both vehicles and followed the white pickup truck east while the gray sedan traveled west. Id. at 10:9-12, 23:12-19. Agent Trujillo reported following the white Toyota pickup truck for a few minutes until it stopped on Universal, just north of Lazy Acres. Id. at 10:13-20, 24:10-18. Agent Trujillo also reported that he was a few vehicles behind the white pickup truck. Hr'g Tr. 10/18/2018 (Doc. 54) at 10:21-23, 24:19-25. Agent Trujillo described the speed limit as approximately twenty-five (25) miles per hour at the library, then increasing to approximately forty-five (45) miles per hour. Id. at 23:22-24:5, 25:5-13.

         Defendant Ana Flores-Ferris testified that she lives in Arivaca, Arizona. Id. at 38:20-23. Ms. Flores-Ferris testified that she noticed Agent Trujillo's SUV following her approximately a quarter-mile or less after she pulled out of the library parking lot. Id. at 39:12-40:2, 44:18-45:4. Ms. Flores-Ferris further testified that she was unaware that the SUV was law enforcement, and noted that it looked like two or three other vehicles in Arivaca. Id. at 40:6-14, 45:5-9. Ms. Flores-Ferris testified that while driving on Arivaca Road, Agent Trujillo was following her closely enough that she thought he wanted to pass her. Hr'g Tr. 10/18/2018 (Doc. 54) at 40:15-41:18. Ms. Flores-Ferris further testified that she thought that if he did want to pass her when she turned onto Universal, she would let him go by. Id. at 40:15-42:4, 45:10-14. Ms. Flores-Ferris noted that this is normally what Arivaca residents do. Id. Because Ms. Flores-Ferris was going to turn onto Universal, she knew that she would be out of the SUV's way if it were to continue on Arivaca Road. Id. at 40:15-41:24.

         B. The Stop

         Agent Trujillo testified that the white pickup truck pulled over to the side of the road, on top of the grass and noted that they had just passed an area where they could park. Hr'g Tr. 10/18/2018 (Doc. 54) at 13:3-13. Agent Trujillo further explained that the vehicle turned right onto Universal Ranch Road prior to stopping. Id. at 25:18-19. Ms. Flores-Ferris testified that once she turned onto Universal, Agent Trujillo was still behind her, so she pulled over to allow him to pass. Id. at 41:25-42:4, 45:10-23. Agent Trujillo identified photographs of the unmarked Tahoe, with an Arizona license plate, that he drove that day and testified that he did not activate his lights or siren, nor did he make any gestures indicating that the Toyota should pull over. Id. at 11:4-13:23, 17:19- 25, 18:19-25. Agent Trujillo further testified that when the pickup truck pulled to the side of the road, he pulled in behind it and activated his vehicle's lights. Id. at 13:24- 14:22, 17:19-25, 29:4-17, 30:1-6. Agent Trujillo explained that he activated the lights as a safety precaution, in light of the area where the vehicles were pulled off and stated that he ran the pickup truck's license plate and put on his vest. Id. at 13:24-14:22, 18:1- 2, 31:4-16. Ms. Flores-Ferris presumed that Agent Trujillo was stopping her, because he pulled in right behind her and activated his lights. Id. at 42:5-21.

         Agent Trujillo testified that he approached on the passenger side of the vehicle, and he inquired how its occupants were doing. Hr'g Tr. 10/18/2018 (Doc. 54) at 14:23- 15:4. Agent Trujillo further testified that the driver responded, “Good until now, sir.” Id. at 14:23-15:4. Agent Trujillo introduced himself as Border Patrol and stated that he was going to conduct an immigration inspection. Id. at 15:5-18. Agent Trujillo testified that upon questioning, the driver stated that she was a United States citizen; however, the passengers did not answer. Id. Agent Trujillo stated that the back-seat passenger was laying down. Id. at 15:11-16:7. Agent Trujillo reported that there was open space, without obstruction, in front of the pickup truck. Hr'g Tr. 10/18/2018 (Doc. 54) at 16:8- 13. Agent Trujillo asked about citizenship a second time, but in Spanish. Id. at 16:14- 24. The passengers informed Agent Trujillo that they were from Guatemala. Id.

         Agent Trujillo testified that he contacted his partners to alert them that he had a load vehicle, as well as informed dispatch. Id. at 16:25-17:5. Agent Trujillo instructed the driver to turn off the vehicle and give him the keys. Id. at 17:6-10, 31:17-32:7, 35:15-18. Agent Trujillo waited until his partner arrived before ...