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United States v. Javalera-Hernandez

United States District Court, D. Arizona

January 3, 2019

United States of America, Plaintiff,
Eunice Gabriela Javalera-Hernandez, Defendant.


          Honorable James A. Soto United States District Judge.

         Pending before the Court is a Report and Recommendation issued by Magistrate Judge Bernardo P. Velasco (Doc. 30). In the Report and Recommendation, Magistrate Judge Velasco recommends that the Court grant Defendant's motion to suppress (Doc. 20). The Government timely objected to the Report and Recommendation and requested an evidentiary hearing (Doc. 32). Defendant responded to the Government's objection to the Report and Recommendation (Doc. 33).[1] This matter is ripe for the Court's consideration.


         On March 7, 2018, Defendant attempted to enter the United States through the DeConcini pedestrian port of entry. Defendant presented her identification to Customs and Border Protection Officer Roanhorse, who asked follow-up questions regarding Defendant's crossing history and her current destination. Officer Roanhorse has experience at the border and understands that it is a common practice for pedestrians to attempt to cross into the United States with contraband hidden on their person. “Officer Roanhorse believed that [Defendant] had a larger chest size than what a woman of her frame would have.” (Doc. 27 at ¶ 5.) No. other individualized, suspicious observations, such as a lump in the chest, loose clothing, or a nervous demeanor, were presented to the Court.[3]

         Officer Roanhorse sent Defendant to secondary and had another officer conduct a canine sniff of her person, specifically her chest and groin. The canine went around Defendant's body and came within close proximity to her groin. The canine alerted to Defendant's groin. Officer Roanhorse asked Defendant if she was carrying something and Defendant answered in the affirmative. Officer Roanhorse, with the approval of her supervisor, performed a pat-down over Defendant's clothes. Defendant then removed two packages from her bra and one from her groin area. The packages contained blue pills, methamphetamine, and fentanyl.

         Defendant was arrested, and a criminal complaint was filed in this Court alleging that Defendant knowingly possessed with the intent to distribute 50 grams or more of methamphetamine, or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of Section 841 of Title 21 of the United States Code. (Docs. 1, 3.) An indictment later charged Defendant with four counts related to importation or possession of methamphetamine. (Doc. 9.)

         On August 7, 2018, Defendant filed the pending motion to suppress, which stated that Defendant was sent to secondary due to Officer Roanhorse's perception that Defendant had a larger chest than a woman of her frame would have. (Doc. 20.) The Government responded on August 10, 2018, and stated that “the relevant facts in this case do not appear to be in dispute.” (Doc. 24 at 4:10-11.) On August 16, 2018, Defendant filed a reply, again reiterated that Officer Roanhorse's only reason for suspicion was that Defendant's chest and frame were disproportionate in size. (Doc. 26.) On August 23, 2018, Defendant filed a stipulation as to the facts and requested that the evidentiary hearing be vacated. (Doc. 27.) Magistrate Judge Velasco granted that request. (Doc. 28.) On October 18, 2018, Magistrate Judge Velasco filed a Report and Recommendation, which recommended that this Court grant Defendant's motion. (Doc. 30.) The Report and Recommendation expressed disapproval that something as subjective and arbitrary as the perception of Defendant's chest size for a woman with her body frame would be endorsed by the Government as grounds for suspicion. The Government timely objected and requested an evidentiary hearing arguing that Magistrate Judge Velasco made several misstatements and unsupported assumptions. (Doc. 32.)

         First, the Government argues that the Magistrate Judge was unjustified in asserting that “Officer Courtney Roanhorse believed that a small-framed woman with a larger chest was more likely than other body types to smuggle drugs into the United States of America.” Id. However, given the record before the Magistrate Judge this was a logical inference as the only suspicion before him was that Defendant had a larger chest size than a woman of her frame would have.[4] Second, the Government argues that Magistrate Judge's remarks regarding body types or physiognomy were “off-the-mark.” Id. But again the record before the Magistrate Judge was that the only suspicion was that “Officer Roanhorse believed that [Defendant] had a larger chest size than what a woman of her frame would have.” (Doc. 27 at ¶ 5.) Third, the Government argues that there is no indication on the record that a “border-wide policy” has been put into place. (Doc. 32.) The Magistrate Judge does not suggest that there is a border-wide policy, but instead notes that the results of the search do not determine the legality of it or of condoning potential policies that may arise from it. Finally, the Government objects to the Magistrate Judge's focus on the sniff of the groin. Id. The Magistrate Judge comments on the inclusion of the groin to the search area as evidence that the canine search of Defendant was arbitrary as the stated suspicion up to that point rested completely on Defendant's chest. The Government instead seems to argue that because it was “chest and groin” and that narcotics were found in the underwear that the inclusion of the groin was not arbitrary. (Doc. 32.) The Government argues for the first time in response to the Report and Recommendation that there was reasonable suspicion prior to Defendant being subjected to a canine sniff based on newly discovered facts. (Id. at 5 n. 1.) The Court will not accept or rely on the supplemental or new facts presented by the Government.[5] Defendant timely responded to the Government's objection. (Doc. 33.)


         The international border presents a special subset of considerations under the Fourth Amendment. United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). For example, referral to secondary at the border requires no individualized suspicion. United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976). The reasonableness of a seizure under the Fourth Amendment does not rest on the actual motivations of an individual officer, but instead relies on the circumstances when viewed objectively. Whren v. United States, 517 U.S. 806, 813 (1996) (internal citation omitted).

         Searches at the international border present a different balance of reasonableness than searches conducted in the interior. Montoya de Hernandez, 473 U.S. at 538. “[T]he Fourth Amendment balance between the interests of the Government and the privacy right of the individual is [] struck much more favorably to the Government at the border, ” id. at 539-40, because ‘[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border, ” United States v. Flores-Montano, 541 U.S. 149, 152 (2004). The Court has acknowledged that the border may allow factors that would be impermissible in other contexts, such as apparent ancestry or ethnicity. See Montoya de Hernandez, 473 U.S. at 538 (citing Martinez-Fuerte, 428 U.S. at 563). The result is that intrusions must be viewed in perspective and not that “at the border, anything goes.” United States v. Seljan, 547 F.3d 993, 1000, 1002 (9th Cir. 2008) (en banc).

         The Supreme Court of the United States has held that some searches, defined as non-routine searches, at the border require reasonable suspicion. Montoya de Hernandez, 473 U.S. at 541. The distinguishing factor between a routine search and a non-routine search is the degree of intrusiveness. United States v. Ramon-Saenz, 36 F.3d 59, 61 (9th Cir. 1994) (explaining that strip searches, body cavity searches, and involuntary x-ray searches are all non-routine searches). The concerns regarding intrusiveness, destructiveness, and offensiveness do not apply equally to a search of people and property. Seljan, 547 F.3d at 1000. The United States Court of Appeals for the Ninth Circuit has also held that pat-down searches at the border require “minimal suspicion.” United States v. Ruiz, 612 Fed.Appx. 463, 464 (9th Cir. 2015) (mem.) (citing United States v. Vance, 62 F.3d 1152, 1156 (9th Cir. 1995)).


         The Court adopts and agrees with Magistrate Judge Velasco's finding that the provided explanation regarding why Defendant was subjected to a canine sniff of her person is subjective and insufficient to provide an objective basis for any degree of suspicion. The relevant ...

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