United States District Court, D. Arizona
K. JORGENSONR UNITED STATES DISTRICT JUDGE.
November 20, 2018, Magistrate Judge D. Thomas Ferraro issued
a Report and Recommendation (“R&R”) (Doc.
118) in which he recommended that the Motion to Suppress
(Doc. 82) filed by Ruben Martinez-Villezcas
("Martinez-Villezcas") be denied.
Martinez-Villezcas has filed an objection (Doc. 137) and the
government has filed a response (Doc. 147).
standard of review that is applied to a magistrate
judge’s report and recommendation is dependent upon
whether a party files objections–the Court need not
review portions of a report to which a party does not object.
Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466,
472-73, 88 L.Ed.2d 435 (1985). However, the Court must
“determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.
The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instruction.”
Fed. R. Civ. P. 72(b)(3); see also 288 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
and Recommendation – Factual Background
factual background of the R&R is adopted with the
1. Bureau of Land Management (BLM) Chief Ranger Grady Cook
(“Cook”) testified that law enforcement noticed
the suspicious circumnavigation pattern beginning in April
2018 (Tr. 11/7/2018 at 25), rather than in May 2018, as
stated in the R& R. (R&R, p. 2).
2. Cook asked Martinez-Villezcas if he had ever been in the
area before (Tr. 11/7/2018 at 94), rather than asking if he
had ever driven the route before as stated in the R&R.
(R&R, p. 5).
3. The R&R states that “only two or three minutes
had passed from when Defendant first pulled up and stopped in
the intersection to when [Cook] heard over the radio that the
trucks had failed to yield and were speeding toward
them.” (R&R, p. 5). However, Cook testified that
approximately eight to ten minutes had passed when he heard
about the failure to yield over the radio. (Tr. 11/7/2018 at
Martinez-Villezcas has disputed conclusions reached by the
magistrate judge. The Court will consider these disputes in
addressing Martinez-Villezcas’ objections. See
generally United States v. Hoyos, 892 F.2d 1387, 1392
(9th Cir.1989) (cert. denied, 498 U.S. 825 (1990))
(“Probable cause may be based on the collective
knowledge of all of the officers involved in the
investigation and all of the reasonable inferences that may
be drawn therefrom.”).
argues that Cook did not have a reasonable suspicion
Martinez-Villezcas was involved in criminal activity. See
e.g., United States v. Hartz, 458 F.3d 1011, 1017 (9th
Cir. 2006) (“A police-initiated traffic stop is
reasonable under the Fourth Amendment if the police stop the
vehicle because of a ‘reasonable suspicion’ that
the vehicle's occupants have broken a law.”);
United States v. Brignoni-Ponce, 422 U.S. 873,
884–85 (1975) (factors to be considered in determining
whether reasonable suspicion exists to stop a vehicle in a
border region include: 1) the characteristics of the area; 2)
previous experiences of the arresting agents with traffic in
the area; 3) proximity to the border; 4)characteristics of
the vehicle stopped (including its type or load); 5) usual
patterns of traffic; and 6) the behavior of the driver of the
magistrate judge summarized as follows:
Here, the events unfolded on a route commonly used to
circumvent a Border Patrol Checkpoint on Highway 83, which
is located close to the international border with Mexico.
The roads Defendant traveled on are unpaved and very rough.
Normal automobiles would likely be damaged if they traveled
these roads. Thus, the traffic is mostly limited to trucks
and the roads are not heavily traveled. The Court concludes
smugglers could easily expect to travel this route without
encountering much if any traffic.
This case presents the unique situation where law
enforcement officers had both experience with traffic in
the area and experience with Defendant’s activities
in the area. The photographs captured on the game cameras
along with law enforcement officers’ investigation
leading up to the stop provide an abundance of suspicion.
Weeks before the stop, Border Patrol Agents had advised
Ranger Cook that Defendant’s truck had been seen near
Parker Lake, a location notorious for alien smuggling, and
only seven to ten miles from the border. United States
v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989)
(reasonable suspicion is based on the collective knowledge
of all officers involved in the investigation); United
States v. Butler, 74 F.3d 916, 921 (9th Cir. 1996)
(“collective knowledge of police officers involved in
an investigation, even if some of the information known to
other officers is not communicated to the arresting
officer” can ...