United States District Court, D. Arizona
ORDER
Honorable James A. Soto United States District Judge
Pending
before the Court is a Report and Recommendation (“R
& R”) (Doc. 97) issued by United States Magistrate
Judge Bernardo P. Velasco that recommends granting Defendant
Joseph Antony Norris, Jr.'s Motion to Suppress Statements
and Consent (Doc. 14)[1] and denying Defendant's Motion to
declare the checkpoint unconstitutional (Doc. 15). The
government timely filed an Objection to the R & R (Doc.
98). Mr. Norris filed a response to the government's
objection (Doc. 101). For the reasons stated below, the R
& R is adopted, in part.
BACKGROUND[2]
On
December 11, 2017, at approximately 5:00 p.m., a blue vehicle
with two Tohono O'odham occupants approached the Border
Patrol Checkpoint on Federal Route 15, approximately 55 to 60
miles North of the United States border with Mexico. Mr.
Norris was the driver of the vehicle. The primary Border
Patrol duty agent, Agent Donnelly, on the driver's side
of the vehicle asked about the occupants' immigration
status and concluded that both of occupants appeared nervous.
Agent Gears[3] was on the passenger side of the vehicle
and waived for it to be sent to secondary. He then asked
Agent Reyes, who was on the passenger side of the vehicle
with Agent Gears, to retrieve Agent Reyes' service dog
ICE-A. Agent Reyes walked over to the government vehicle
where ICE-A was kenneled.
Once at
secondary, Agent Donnelly instructed Mr. Norris to turn off
the ignition, put the car key on the roof of the car, and
step out of the car. Agent Donnelly informed Mr. Norris the
vehicle was going to be inspected. As Mr. Norris got out the
car, Agent Donnelly asked Mr. Norris if the K-9 could do an
interior or exterior sniff of the car. Mr. Norris answered in
the affirmative and waited in a secondary seating area as
directed.
When
Agent Reyes was advised consent was given, he and ICE-A
started a systematic search of the vehicle's interior,
starting with the front of the vehicle. As soon as the two
approached the vehicle, ICE-A rushed to the driver's seat
and refused to move his head, fixing it on the driver's
side seat towards the buckle location. Agent Reyes ended up
using a minor audible reward to distract him away from that
area. Once ICE-A was taken back to his kennel, Agent Reyes
searched that area, he found some marijuana residue referred
to as flake. Agent Reyes then looked in between the seat and
console, where he retrieved the semi-automatic pistol that
had no ammunition magazine. Reyes then gave the gun to
another agent to determine if there was a bullet cartridge in
the chamber.
Concurrently,
a record check on the two men was conducted. Agents then
found that the car was registered to a woman, the passenger
had an active warrant and the driver, Mr. Norris, was a
convicted felon. The Tohono O'odham Police Department was
called, and an officer responded around 6:00 p.m. the same
day. The Tohono O'odham Police Department took over the
case upon arrival. No. arrests or federal prosecution was
affected on December 11, 2017. There was no evidence
indication the vehicle trunk lid was ever opened to look for
people or contraband.
Discussion[4]
First,
the Court finds the R& R appropriately resolved the issue
regarding the Immigration Checkpoint. The Court agrees with
the R & R that the checkpoint in this matter is
constitutional. Defendant did not object to this. The only
remaining issue is if the search of the vehicle violated the
Fourth Amendment.
“[A]
search conducted pursuant to a valid consent is
constitutionally permissible.” Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973). “It is the
government's burden to prove that the consent was freely
and voluntarily given.” United States v. Patayan
Soriano, 361 F.3d 494, 501 (9th Cir. 2004). Whether the
consent is valid is determined from the “totality of
all the circumstances.” Id.
Previous
cases from the United States Court of Appeals for the Ninth
Circuit have identified five non-exhaustive factors to
consider when determining voluntariness of consent.
Id. at 502. These are: (1) whether defendant was in
custody; (2) whether the officers had their guns drawn; (3)
whether Miranda warnings were given; (4) whether the
defendant was notified that he had the right not to consent;
and (5) whether the defendant had been told a search warrant
could be obtained. see United States v. Jones, 286
F.3d 1146 (9th Cir. 2002).
In
Patayan Soriano, the defendant was sent to secondary
after arriving at a permanent checkpoint. 964 F.2d at 884. At
secondary an agent questioned the defendant and asked for
consent to search the car while the defendant is still in the
vehicle. Id. The agent searched the car
compartments, asking for and receiving consent prior to
searching each container. Id. The agent found a
“brick-like bundle, ” which was later determined
to be cocaine. Id. The defendant moved to suppress
the search, which the district court denied. Id. The
Ninth Circuit looked at the five factors and determined that
the consent was voluntary. Id. at 885.
In the
instant case, Mr. Norris was told that the car was going to
be inspected before consent was requested. There was no
consent obtained from Mr. Norris as to this inspection. Agent
Donnelly instructed Mr. Norris to get out of the vehicle and
surrender the car key on to the roof. After Mr. Norris was
out away from the vehicle, Agent Donnelly made a request to
him for permission to conduct a dog sniff in the interior of
the car. Mr. Norris answered in the affirmative.
The
five factors are not exhaustive, given the totality of the
circumstances, the Court finds that the consent was obtained
under coercive circumstances and therefore was not voluntary.
It is clear that Mr. Norris was seized at the checkpoint. He
could not leave secondary at the checkpoint until completion
of the search of the vehicle, prior to which he was told to
leave the car and surrender keys to the vehicle. There were
no Miranda warnings or acknowledgement that Mr. Norris could
withhold consent. While there were many guns present, none of
these seems to have been used or referenced prior to
obtaining consent. Mr. Norris was never told a search warrant
could be obtained. Additionally, unlike the agent in
Patayan Soriano, the agent in this case did not ask
for consent multiple times, as it could be an indication for
defendant that withholding consent is an option. In the
similar vein, unlike the agent in Patayan Soriano,
the agent in this case told Mr. Norris an inspection was
going to be conducted without asking for consent, then
instructed Norris to step outside ...