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United States v. Velasquez

United States District Court, D. Arizona

October 23, 2019

United States of America, Plaintiff,
v.
Nicholas Velasquez, Defendant.

          REPORT AND RECOMMENDATION

          Honorable Leslie A. Bowman, United States Magistrate Judge

         The District Court referred this case to the Magistrate Judge for a hearing on the defendant's motion to suppress evidence. The defendant, Nicholas Velasquez, argues that all evidence obtained as a result of the traffic stop on June 3, 2019 must be suppressed because the stop was not supported by reasonable suspicion, in violation of his Fourth Amendment rights. (Doc.51).

         An evidentiary hearing was held on September 24, 2019. United States Border Patrol (USBP) Agents Matthew Ottersbach, John Veal, Salvador Lopez and Paul Hernandez testified. Exhibits 1, 4-7, 10 and 27 were admitted into evidence for purposes of this hearing only.

         Charge:

         The defendant is charged by indictment with one count of Conspiracy to Transport Illegal Aliens for Profit and six counts of Transportation of Illegal Aliens for Profit, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), (A)(ii), (B)(i) and 18 U.S.C. § 2.

         Motion to Suppress:

         The defendant argues that his Fourth Amendment rights were violated when he was stopped by U.S. Border Patrol Agent Salvador Lopez, while driving a Chevrolet Trailblazer near a non-operational checkpoint on State Route 80. He claims that the agent stopped him without reasonable suspicion and that any evidence obtained as a result of the illegal stop must be suppressed.

         The Court concludes the traffic stop was based on reasonable suspicion. The defendant was subsequently arrested based on probable cause. The evidence acquired from the stop was lawfully obtained and should therefore be admissible at trial.

         EVIDENCE:

         Matthew Ottersbach testified that he has been employed as a USBP Agent for 11 years. (7:3, 8) He has been stationed in Willcox since 2017 (8:2) and is part of a task force that covers Naco, Douglas and Willcox because smuggling organizations often use those areas due to limited law enforcement presence. (9:5-11) In this area of responsibility, checkpoints are strategically placed along roads heading northbound since those are paths of egress from the international border. (20-21:24-25, 1-4)

         Agent Ottersbach was on duty on June 3, 2019. (13:21-22) At the end of his shift he was returning to Benson, AZ in his unmarked vehicle with Supervisor Hernandez. They were on State Route 80 traveling northbound from the Tombstone checkpoint. (14:14-16, 21, 23-24) He heard over the radio that an agent was interested in a vehicle. (15:6, 8-9) Supervisor Hernandez then received a phone call from Agent Lopez advising him that he had suspicions about a particular vehicle. (15:10-12) Agents Ottersbach and Hernandez waited for Agent Lopez and the suspect vehicle, a Trailblazer, to travel further north so they could get behind them. (17:20-22) Since Agent Lopez was by himself the agents decided to provide backup for the traffic stop. (18:1-4)

         The vehicle stop occurred at mile marker 303. (18:13) When Agent Ottersbach and Supervisor Hernandez exited their vehicle, Agent Lopez was already talking to the people in the Trailblazer. (18:18-20) Based on the circumstances, Agent Ottersbach arrested the passenger and placed him in handcuffs. (19:14-15)

         On the day of the stop, the checkpoint on State Route 80 was closed due to a lack of manpower. (22:7-10) Agent Ottersbach only realized it was closed when he drove past it because he was not working in that area. (23:14-15, 19-20) When checkpoints are closed the agents monitor the area for criminal activity by performing roving patrols. (20:8-10; 23:5-6) Suspicions of all vehicles are heightened, but not all vehicles are stopped. (23:8-10; 25:16-18)

         John Veal testified that he has worked at the Willcox Border Patrol station for 1 year and 9 months as a field agent. (26:15-17; 27:11-12) There are three immigration checkpoints in his area of responsibility. (29:9-10) At times they are closed due to safety concerns. (29:13-14) When that happens, the agents who are scheduled to man the checkpoint become roving patrol. (29:18-21) One agent remains at the checkpoint to provide security for the equipment. (29-30:22-25, 1) On the date of this incident, the checkpoint was closed, perhaps due to a ...


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