United States v. Martinez-Villezcas

          ORDER

          CINDY K. JORGENSONR UNITED STATES DISTRICT JUDGE.

         On 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).

         The 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 made.”).

         Report and Recommendation – Factual Background

         The factual background of the R&R is adopted with the following modifications:

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 95).

         Additionally, 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.”).

         Reasonable Suspicion

         Martinez-Villezcas 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 vehicle).

         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 ...