United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro, United States Magistrate Judge
the Court is Defendant Garcia's motion to suppress (Doc.
33). The government filed its response opposing the
Defendant's motion (Doc. 38). This matter came before
Magistrate Judge Ferraro for a report and recommendation as a
result of a referral, pursuant to LRCrim 5.1. A motion
hearing was held on May 14, 2019. (Doc. 40.) The Magistrate
Judge recommends that the District Court, after its
independent review, deny the motion to suppress.
February 14, 2019, Border Patrol Agent William Bodwell was
patrolling a remote area along Federal Route 19 (FR 19),
south of Sells, Arizona. From Sells to the international
border is about 27 miles. (Doc. 44, Reporter's Transcript
(RT), at 6-7.) Agent Bodwell is very familiar with the area
because he has worked with Border Patrol for seven (7) years,
first as a camera operator and most recently patrolling the
area with a canine. (RT 6.) It is a high trafficking area
where he often saw more than ten aliens walking through the
desert during any given shift. (RT 14.) In Agent
Bodwell's experience illegal aliens use the mile markers
on FR 19 to identify their pickup locations for load drivers.
He has noticed that at many of the posted mile markers there
is discarded camouflaged clothing and carpet shoes often used
by illegal aliens.
February 14, 2019, at approximately 3:45 p.m., Agent Bodwell
responded to a report of two potential illegal aliens walking
near FR 19 approximately 8 miles north of the border. (RT
18-19.) Agent Bodwell and several other agents arrived and
were able to locate and apprehend two subjects for illegally
entering the United States. (RT 18.) After assisting with
that apprehension, Agent Bodwell drove south to refuel his
truck at the Border Patrol facility near San Miguel, a small
village approximately two miles from the border. While
heading south, at around mile marker 7.5, Agent Bodwell
noticed a silver Lexus parked about 200 feet off the highway.
(RT 19-2222.) According to Agent Bodwell, he is familiar with
the residents and their vehicles. Based on that experience,
the clean silver Lexus, with its expensive rims, stuck out.
(RT 23.) In addition, on FR 19, a two lane highway, there are
no commercial businesses or points of interest for tourists.
The nearby border crossing was blocked to vehicle traffic and
only enrolled members of the tribe were permitted to use this
thing that stood out to Agent Bodwell was the female driver
appeared to be talking on her cell phone with the
driver's side window down while it was raining. (RT 25.)
According to Agent Bodwell, load drivers routinely used cell
phones to communicate with illegal aliens to determine where
to pick them up. (RT 26-27.)
his truck was nearly out of gas, Agent Bodwell continued
driving south to refuel. (RT 23.) It took Agent Bodwell about
15 minutes to refuel and return to mile marker 7.5. By that
time the Lexus was gone. (RT 24.) Agent Bodwell continued
driving north until he was just south of mile marker 13,
where he pulled off the road and parked. (RT 24.) Shortly
thereafter, Agent Bodwell spotted the same silver Lexus
approaching him heading north on FR 19. As the silver Lexus
passed him, Agent Bodwell pulled out and radioed for the
Border Patrol dispatch to run the registration on the
Lexus's license plate. (RT 25.) The results came back to
an individual at an address in Scottsdale, Arizona-
confirming his suspicion that the silver Lexus was not local.
This fact was significant to Agent Bodwell because, in his
experience, vehicles involved in smuggling drugs and aliens
on FR 19 were typically from Tucson or Phoenix, not local.
point, Agent Bodwell initiated his emergency lights and
pulled the vehicle over. (RT 27.) After approaching the
driver's side window, Agent Bodwell noticed three
individuals dressed in camouflage sitting in the back seat.
Id. An immigration inspection of the three backseat
passengers revealed that they were illegally present in the
United States. The defendant, who was sitting in the front
passenger seat, was arrested. (RT 28-29.)
Supreme Court recognized in Terry v. Ohio, 392 U.S.
1 (1968), that a law enforcement officer's reasonable
suspicion that criminal activity is afoot permits a brief
stop to investigate further. Reasonable suspicion is a lesser
standard than a preponderance of the evidence. United
States v. Valdez-Vega, 738 F.3d 1074, 1078-80 (9th Cir.
2013) (en banc). Probable cause and exists when an agent can
“point to specific and articulable facts, which, taken
together with rational inferences from those facts,
reasonably warrant th[e] intrusion.” Terry v.
Ohio, 392 U.S. at 21.
In the context of border patrol stops, the totality of the
circumstances may include characteristics of the area,
proximity to the border, usual patterns of traffic and time
of day, previous alien or drug smuggling in the area,
behavior of the driver, appearance or behavior of passengers,
and the model and appearance of the vehicle.
Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. 2574.
Not all of these factors must be present or highly probative
in every case to justify reasonable suspicion. See
id. And the facts must be filtered through the lens of
the agents' training and experience. Id. at 885,
95 S.Ct. 2574.
United States v. Valdez-Vega, 738 F.3d at 1079.
Court applies these settled standards to the instant stop.
The events occurred very near the international border in a
very remote area of the Tohono Odom reservation. The border
crossing is restricted to tribal members on foot and the area
south of the border is very remote. There are no commercial
businesses or tourist attractions where the agent first saw
and then later stopped the silver Lexus. The driver's
behavior was suspicious. The car was pulled off the roadway
about 200 feet and the driver was talking on her cell phone,
with her window open, while it was raining. These facts were
significant to Agent Bodwell because it is a familiar pattern
for load drivers to communicate by cell phone with aliens to
arrange a pick-up location. These pickup locations are
typically along FR 19 and near mile markers so the drivers
can easily locate their passengers.
Bodwell also found the type of vehicle was significant. The
local vehicles are older models and “beat up.” FR
19 is the only paved roadway in the area. The rest of the
roads are rough, unpaved roads. Hence, local cars are
typically dusty. The Lexus ...