United States District Court, D. Arizona
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 ...