United States v. Rizzo

          REPORT AND RECOMMENDATION

          Honorable Jacqueline M. Rateau United States Magistrate Judge.

         This matter was referred to Magistrate Judge Rateau for pretrial matters. On June 12, 2018, Defendant Mariah Rizzo filed a Motion to Suppress Evidence. Doc. 82. The Government filed a Response on July 3, 2018. Doc. 90. The defense filed a reply on July 10, 2018. Doc. 91. The matter was heard by the Court on September 27 and December 17, 2018. Docs. 106, 126 (Transcripts of proceedings). Defendant was present and represented by counsel. The Government presented five witnesses: Border Patrol Agents Christopher Troxell, Kathleen June, Scott Bowles, Sergio Morando; and Supervisory Border Patrol Agent Braden King. Doc. 113 (Government's Witness List). Seventeen Government exhibits were admitted. Doc. 115 (Government's Exhibit List). The defense presented one witness, Investigator Sergio Murueta. Doc. 114 (Defendant's Witness List). Three defense exhibits were admitted. Doc. 116. Having considered the matter, the Magistrate Judge recommends that Defendant's motion be denied.^[1]

         I. Findings of Fact

         Border Patrol agents from the Wilcox Border Patrol Station work the three checkpoints located in Southeast Arizona. TR1:5.^[2] The area in which the checkpoints are located is bounded to the west by State Route 90, to the east by the New Mexico state line, to the north by Interstate 10, and to the south by State Route 82, and the checkpoints are located on State Routes 90, 80, and 191. TR1:6, 8-9; Ex. 10 (map of Southeast Arizona with locations of checkpoints identified by large stop signs). The checkpoints are all located on roads leading away from the international border with Mexico and are intended to prevent contraband, particularly undocumented aliens and narcotics, from entering the United States. TR1:9-10; TR2:6. The checkpoints are frequently staffed with canines which are used to conduct sniffs of vehicles passing through the checkpoint to determine if there is any odor of potential contraband. TR1:13. Based on the weather or operational and tactical needs, the staffing level at the checkpoints varies and they are closed occasionally. TR1:11, 118-119. Because of the staff variations and closures, smugglers will scout the checkpoints by having someone who is not carrying contraband approach a checkpoint to determine if it is open, how heavily staffed it is, and whether canines are present. TR1:11-12; TR2:11-12.

         The SR 90 checkpoint is located approximately six miles north of SR 82. TR1:13-14; Ex. 10 (map). Approximately one mile before the SR 90 checkpoint, there is a sign indicating whether the checkpoint is open or closed. TR1:59, 72-73; TR2:14; Ex. 4 (photograph of sign). South of SR 82, SR 90 leads to Sierra Vista and Ft. Huachuca, Arizona, which are the population centers in the area. TR1:14-15; Ex. 1 (photograph of checkpoint). Between the junction of SR 82 and the checkpoint, there are 11 opportunities to turn around on SR 90, but there is only one opportunity to make a U-turn after the open/closed sign. TR1:15, 73; TR2:13, 15. The last opportunity to turn around is a left turn lane located just south of the checkpoint. TR1:15-16; Ex. 1 (showing left turn lane). However, because vehicles are rarely seen making U-turns just before the checkpoint, when it does happen it raises the agents' suspicions. TR1:17, 71. When a U-turn does occur, agents will investigate by getting into a pursuit vehicle, catching up the vehicle that made the U-turn, and running the plates and getting a good view of the driver and passengers. TR1:17. By running the plates, agents can determine if the vehicle is from a nearby town and decrease agents' suspicions. TR1:18.

         On October 12, 2017, Supervisory Border Patrol Agent (“SA”) King and Border Patrol Agents Troxell and June were working at the SR 90 checkpoint. TR1:13-14, 19, 70; TR2:18. At about 4:00 p.m., SA King saw a late-model white Lincoln Navigator approach the checkpoint and at the last moment it could use paved surface, it turned around and avoided the checkpoint. TR2:18. Agent King believed that the person driving the vehicle could be either scouting the checkpoint to see if it was open or closed, possibly looking to see if there was a canine working, or possibly at that moment they could have had illegal aliens in the car and they turned around because the checkpoint was open. TR2:19. An agent working in the primary inspection area of the checkpoint called out a turnaround or U-turn. TR1:19-20, 70. Hearing the call, Agent Troxell caught a glimpse of the SUV as he left his post and ran to the marked pursuit vehicle that was positioned to interdict such situations. TR1:19, 23. Agent June, who is a canine handler, placed her dog in a second unmarked Border Patrol vehicle and joined the pursuit. TR1:20, 23, 74. As the agents neared the SUV, it was identified as a Lincoln Navigator registered to Mariah Rizzo out of Oro Valley, Arizona. TR1:22, 34, 75. The agents were also informed that license plate readers located at the Border Patrol checkpoints had recorded the vehicle making “multiple crossings” at the SR 80 and SR 90 checkpoints. TR1:21-22, 32-34, 75.

         As the pursuit proceeded south toward the intersection of SR 90 and SR 82, Agent Troxell took the initial or primary position behind the Navigator because he was in a marked vehicle. TR1:23, 76, 84-85. Agent Troxell recalls that as the vehicles approached SR 82, the Navigator took “a sudden left and move[d] from the slow lane and into the turn lane to turn onto State Route 82 heading east . . .” towards Tombstone, Arizona. TR1:23-24, 25, 47-49; Ex. 2 (photograph of SR 82 intersection with SR 90). Agent June does not recall the sudden movement but noted that the vehicle was heading further away from Oro Valley and was not headed to the nearby population centers around Sierra Vista. TR1:77, 93. Agent Troxell thought that the Navigator was possibly headed to the Shell gas station located on the southeast corner of the intersection. TR1:25-26, 49. After the driver of the Navigator did not stop at the gas station, Agent Troxell's suspicions were raised “because if she was from Oro Valley, has multiple crossings of State Route 90 and State Route 80 checkpoints, she knows - or the driver knows at this point in time that the quickest route to Oro Valley, where the vehicle is out of, would be up State Route 90 and not traversing back towards State Route 80.” TR1:26. Additionally, Agent Troxell found it suspicious that the vehicle turned left and bypassed the gas station because the nearby areas of commerce-Sierra Vista, Ft. Huachuca, and Huachuca City-are all located on SR 90 south of SR 80. TR1:27-28.

         At that point, Agent Troxell informed dispatch that he was going to conduct a vehicle stop of the Navigator. TR1:28. Both agents activated their overhead lights and the Navigator pulled over on SR 82 approximately a mile or two east of SR 90. TR1:28-30, 78; Ex. 3 (photograph of location of the stop). As it pulled over, the windows of the Navigator were lowered and, after the vehicle came to a stop, the cargo area gate was opened. TR1:30, 78. Agent Troxell thought it was odd that the windows were rolled down and both agents were thinking that people were going to “bailout” and start running from the vehicle. TR1:30, 52, 78. However, no one ran from the vehicle and Agent Troxell approached the passenger side of the vehicle. TR1:30. While Agent Troxell began his investigation, Agent June was getting her canine from her vehicle. TR1:31. Agent Troxell saw only one female occupant in the Navigator, whom he identified as Defendant Mariah Rizzo, and asked her why she turned around at the SR 90 checkpoint. TR1:31. Rizzo gave him “a changing story.” She first stated that she had gotten confused and her daughter and her daughter's boyfriend were filming in Patagonia, Arizona, which is in the direction opposite from the direction she was traveling. TR1:32, 79, 94. After further questioning, Rizzo said that she was lost and was heading to Tombstone to pick up her daughter's boyfriend. TR1:34, 79, 94. There was nothing in the vehicle and Agent Troxell found that unusual because he expected to see photography equipment. TR1:34-35, 39. Agent June ran her canine around the vehicle without an alert. TR1:35, 57. Agent Troxell confirmed that Rizzo was a United States citizen and released her. TR1:35.

         Feeling that Rizzo was not being truthful and might be preparing to smuggle aliens, Agent Troxell called the SR 80 checkpoint and informed them that he had stopped the Navigator. TR1:35-36. He explained that the female driver's story “didn't quite make sense, ” and told them to keep an eye out for the vehicle “as there was one passenger, possibly if you see more people.” TR1:36. Agents Troxell and June then returned to the SR 90 checkpoint. TR1:37.

         SA King also recalls being informed by agents Troxell and June that the driver's story “appeared to be almost made up.” TR2:21. Based on the information the agents had collected, SA King telephoned Agent Bowles who was working at the SR 80 checkpoint. TR2:21. The SR 80 checkpoint, which was open at the time, is located just north of the intersection of SR 80 and SR 82, which is north of Tombstone. TR1:109-111, 115; Exs. 5, 6 (photographs of checkpoint), Ex. 10 (map). During the phone call, which was placed at about 4:30 p.m., SA King told Agent Bowles about the U-turn and about Agents Troxell and June's stop of a white Lincoln Navigator and told him that “it could be possibly a suspicious vehicle and basically was just giving us a heads-up in case we saw it.” TR1:114; TR2:21-22. While still on the phone with SA King, Agent Bowles observed what appeared to by a white Lincoln Navigator approach the stop sign and intersection of SR 82 and SR 80 and make a right-hand turn away from the checkpoint and continue heading south on SR 80 toward Tombstone. TR1:114-115; TR2:22.

         Shortly after Agent Bowles reported seeing the Navigator, SA King left the SR 90 checkpoint and drove to the SR 80 checkpoint. TR2:22. At about 6:00 p.m. that evening, SA King decided to close the SR 80 checkpoint, explaining that:

As the shift supervisor, we had begun trying a short-term closure of checkpoints to see if that would agitate whatever attempts to circumvent the checkpoint were staged in and around the local area. So, so to speak, we were kind of baiting them into taking criminal activity and I think that's kind of the intent of it.

         TR2:24; TR1:115. After closing the checkpoint, SA King remained parked just north of the checkpoint's inspection area where it was unlikely for approaching vehicles to see him. TR2:25-26. At about 7:00 p.m., it was dark and SA King saw headlights approaching the checkpoint and saw that it was a white Lincoln Navigator passing through the closed checkpoint. TR2:26. SA King pulled out and followed the Navigator and verified with dispatch through the license plate number that it was the same Navigator that was stopped hours earlier on SR 82 by Agents Troxell and June. TR2:26-27, 33; Exs. 15, 16, 51 (audio recording and transcripts of radio transmissions). With that confirmation, SA King decided to further investigate the Navigator and directed Agent Bowles to take over his spot at the checkpoint. TR2:34.

         The SR 80 checkpoint is located near mile marker 314 and the town of St. David is located to the north at around mile markers 301 and 302. TR2:31; Ex. 10 (map with St. David marked in small print). As he followed the Navigator north on SR 80, over the radio, SA King learned that Agent Jaime Gonzalez was at mile marker 310. TR2:34. SA King, after determining there were three persons in the Navigator, called the SR 90 checkpoint to ask whether there were three people in the Navigator when it was previously stopped and was told that there had been only one. TR2:35. SA King then learned that Agent Morando was parked with his canine at about mile marker 302 or 303 on SR 80. TR1:121; TR2:35-36. Because Agent Morando had a canine, and because radio reception “gets a little sketchy” north of the SR 80 checkpoint until reaching the town of St. David, SA King decided to wait until he was closer to Agent Morando before initiating a ...