United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
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).
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
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.
The Arivaca Area and Initial Observation
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.
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.
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.
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.
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.
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.
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