United States District Court, D. Arizona
ORDER
CINDY
K. JORGENSON UNITED STATES DISTRICT JUDGE
On
February 4, 2019, Magistrate Judge Jacqueline M. Rateau
issued a Report and Recommendation (“R&R”)
(Doc. 129) in which she recommended the Motion to Suppress
(Doc. 82) filed by Mariah Yolanda Rizzo ("Rizzo")
be denied. Rizzo has filed an Objection to the Report and
Recommendation (Doc. 132); the government has filed a
Response (Doc. 136).
Standard
of Review
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 (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
instructions.” Fed.R.Civ.P. 72(b)(3); see also
28 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
In her
factual summary, Rizzo includes argument as to inferences and
conclusions regarding the evidence presented at the
evidentiary hearing. For example, Rizzo points out that
Border Patrol Agent Christopher Troxell
(“Troxell”) testified that “the vehicle
swerved lanes into the turn lane to turn onto SR 82, though
he conceded that he never mentioned it in his initial
report.” Objection. (Doc. 132, p. 2) (citing R&R,
p. 4; TR1:23-24, 25, 47-49). Rizzo asserts Border Patrol
Agent Kathleen June (“June”) “contradicted
Troxell on that point, testifying that she did not recall any
sudden movement from the Navigator.” Id.
(citing R&R, p. 4; TR1:77, 93). While not recalling any
sudden movement does not necessarily mean it did not occur
and that June contradicted Troxell, the Court accepts such
arguments as simply arguments, not specific objections to the
R&R.
Rizzo
asserts the magistrate judge made a factual determination
regarding Rizzo's crossing history without any supporting
evidence in the record. Specifically, Rizzo points out the
government did not demonstrate that Rizzo was the driver of
each of the prior crossing occasions involving the Lincoln
Navigator that Rizzo was driving when she was stopped on
October 12, 2017. However, Rizzo does acknowledge that the
magistrate judge “noted at the September 27, 2018,
suppression hearing that it was the vehicle with recorded
crossings, and not necessarily Ms. Rizzo.” Id.
at 7 (citing TR1:33, 8-14). Rizzo states, “Thus, for
the Magistrate Court now to find Ms. Rizzo's driving
behavior suspicious due to her strong crossing pattern is
contradictory from its previous findings.” Id.
The Court overrules this objection in part. While the
specific evidence does not conclusively demonstrate Rizzo was
driving during each of the crossings, the vehicle was
registered in her name and a reasonable inference may be made
that Rizzo was driving the vehicle during some or all of the
border crossings.
Reasonable
Suspicion - Initial Stop
Rizzo
argues the border patrol agents lacked reasonable suspicion
to make the initial stop of Rizzo. Because Rizzo has argued
there is no evidence Rizzo was driving the vehicle during the
prior border crossings, Rizzo argues the legal u-turn made by
Rizzo alone cannot provide the basis for reasonable
suspicion. However, the evidence does establish that the
vehicle driven by Rizzo on the date of the incident had made
multiple crossings in the prior two months. A reasonable
inference may be made that Rizzo may have been driving this
vehicle during those prior crossings. See e.g. United
States v. Raygoza-Garcia, 902 F.3d 994, 999-1001 (9th
Cir. 2018) (totality of circumstances approach allows agents
to draw on experiences and specialized training to make
inferences). The Court finds this circumstance is
appropriately considered in determining whether reasonable
suspicion existed to stop Rizzo.
The
legal u-turn was not the only basis for a finding of
reasonable suspicion. Furthermore, as pointed out by the
magistrate judge, this fact may considered when combined with
other factors in determining reasonable suspicion. United
States v. Montero-Camargo, 208 F.3d 1122, 1137 (9th Cir.
2000). The Court agrees with the summary of the magistrate
judge:
The agents testified that there are eleven turn-around points
between the SR 90/SR 82 intersection and the SR 90
checkpoint. Yet, Rizzo used the final U-turn point before the
checkpoint which suggested to the agents that she might be
carrying contraband or scouting for others to see if the
checkpoint was operational and fully staffed. She might have
dispelled at least some of the agents' suspicions had she
returned to a nearby house or if she had proceeded to the gas
station, but she did not. Rather, after making the U-turn,
Rizzo travelled back to the intersection and did not continue
toward the larger population centers around Sierra Vista, but
turned left on SR 82 toward Tombstone and bypassed the gas
station. Thus, after making the U-turn, none of Rizzo's
actions suggested an innocent reason for making the
last-second U-turn before the checkpoint.
R&R, pp. 13-14. Further, the agents knew the vehicle was
registered to a residence in Oro Valley, yet knew the u-turn
with a left turn on SR 82 meant the vehicle was driving away
from Oro Valley.
Additionally,
the agents reasonably surmised, given the multiple recent
sightings of the vehicle in the area, it was unlikely the
driver was lost. Indeed, the analysis includes consideration
of “the modes or patterns of operation of certain kinds
of law-breakers.” R&R, p. 11, 13 (citing United
States v. Berber-Tinoco, 510 F.3d 1083, 1087-88 (9th
Cir. 2007) (As to stops by border patrol agents, the totality
of circumstances may include the area characteristics, the
proximity to the border, usual traffic patterns and the time
of day, previous alien or drug smuggling in the area, the
behavior of the driver, including obvious attempts to evade
officers, the appearance or behavior of passengers, the model
and appearance of the vehicle, and the experience of the
officer). This includes the scouting of the checkpoint by
smugglers to determine whether the checkpoint is open, the
checkpoint is heavily staffed, or canines are present at the
checkpoint. The Court agrees with the magistrate judge
reasonable suspicion existed for the initial stop of Rizzo.
Reasonable
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