United States v. Garcia

          REPORT AND RECOMMENDATION

          Honorable D. Thomas Ferraro, United States Magistrate Judge

         Before 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.

         I. FACTUAL BACKGROUND

         On 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.

         On 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 crossing.

         Another 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.)

         Because 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. (RT 25-26.)

         At that 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.)

         II. DISCUSSION

         The 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.

         The 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.

         Agent 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 ...