United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins, United States Magistrate Judge
Pending
before the Court is Defendant Robinson's Motion to
Suppress (Doc. 20). The government responded in opposition
(Doc. 31) and Defendant Robinson replied (Doc. 32). These
matters came before the Court for a hearing and a report and
recommendation as a result of a referral, pursuant to LRCrim
57.6. Evidence and argument were heard on October 8, 2019.
(Doc. 39.) These matters were submitted following oral
argument at the conclusion of the hearing.
Defendant
alleges there was no reasonable suspicion to extend the
traffic stop for additional questioning of the driver of the
vehicle and Defendant passenger, that ultimately resulted in
a drug-sniffing dog alerting to illegal aliens in the trunk;
therefore, the evidence obtained as a result of the seizure
should be suppressed. Having now considered the matter, the
Magistrate Judge recommends that the District Court, after
its independent review, deny Defendant‘s motion to
suppress.
I.
FACTUAL BACKGROUND
Department
of Public Safety (DPS) Trooper Jeffrey Richardson has been
with DPS for 17 years and has spent his entire career in the
Bisbee/Douglas area on patrol. (RT 10/08/19 at
6-8.)[1] Of that time, he has spent significant
time patrolling the State Route 92 area. (RT at 8-9.) Trooper
Richardson has experience with alien smuggling investigations
through traffic stops where undocumented aliens have been
apprehended, trainings by Homeland Security, working with the
Southern Arizona Border Region Enforcement, tracking aliens
with Border Patrol, and receiving intelligence briefings from
Border Patrol on common trends, locations of smuggling and
types of vehicles used. (RT at 9-10.)
On
August 7, 2019, Trooper Richardson was patrolling the area of
SR-92 near Milepost 335. (RT at 11.) Trooper Richardson
testified this is a rural area approximately 3 miles from the
United States/Mexico border. (RT at 12.) In addition to the
area being in close proximity to the border, the San Pedro
River runs through this area with no barriers making an easy
access point for aliens to cross and walk up towards the
highway. (RT at 12-14.) Trooper Richardson testified to
making multiple traffic stops resulting in contact with
illegal aliens in vehicles in this same location. (RT at 12.)
At
approximately 5:30 p.m., Trooper Richardson stopped an older
model sedan with a temporary license plate not property
affixed and flapping in the wind. (RT at 11, 14-15.) Trooper
Richardson testified that based on his training and
experience, a common trend for alien smuggling is the use of
older model vehicles with temporary tags or newer plates. (RT
at 14-15.) The driver of the sedan pulled over without
incident. Trooper Richardson approached the passenger side of
the sedan and asked the driver for her license, registration
and insurance. He also asked the passenger for
identification. (RT at 15.) For safety reasons, he asked the
driver to get out of the car and come back to his patrol
vehicle. (RT at 15.) He asked the passenger (Defendant) to
remain in the car. Trooper Richardson told the driver the
reason he pulled her over was because her license plate was
not properly taped down. (RT at 26.) In running the
driver's registration and license, Trooper Richardson
learned the vehicle and registration was out of Goodyear,
Arizona along with the driver's license, while the
passenger's identification listed Tucson as her
residence. (RT at 16.)
Trooper
Richardson thought it significant that neither the driver nor
passenger were from Cochise County but were traveling in the
area on a weekday. (RT at 16.) Specifically, he testified
that the location, type of vehicle, temporary tags, and the
fact that both the driver and passenger were out of county
was “leading” him towards suspicion. (RT at 16.)
Trooper Richardson continues with what he describes as
“conducting his enforcement action” with the
intent of issuing the driver a warning for the traffic
violation. The driver was concerned about getting a ticket
and Trooper Richardson assured her that he was only going to
write her a warning. While conducting his enforcement action,
including registration and license checks and filling out the
warning document, he asked the driver a series of questions
which he acknowledged was not directly related to the actual
traffic violation. (RT at 16-17; 26, 31.) Trooper Richardson
recalled asking the driver where they were coming from and
where they were going. (RT at 17.) When the driver responded
they had been visiting a friend, Trooper Richardson asked the
name of the friend and where the friend lived, however the
driver could not give him a location, only indicating
“about 15 minutes up the road”. (RT at 17.)
Trooper Richardson continued to ask her questions about the
time of day they left Tucson (10:00 a.m.), what they did
while at the friend's house, what they ate at Panda
Express in Sierra Vista, what the Defendant had to eat, etc.
(RT at 17-18.) During these series of questions, Trooper
Richardson found it suspicious that the driver could not give
a more exact location for the friend they were visiting and,
also noted that the driver looked back at her vehicle twice
while talking to him. (RT at 18.) Trooper Richardson
testified that at this point he felt the driver was giving
him incomplete information and he was “starting to
question” if there was anything in the vehicle based on
the “typical trends” for the area. (RT at 19.) He
then asked the driver if there was anything illegal in the
car, and specifically mentioned certain contraband to include
various drugs, illegal aliens, cash and bombs. (RT at 31-32.)
Trooper Richardson testified that when he asked about
“illegal aliens” in the trunk he noted the driver
“kind of smirked”. (RT at 19.) To each question,
the driver denied anything in the vehicle. During this
conversation with the driver, Trooper Richardson is
continuing to fill out the warning document. (RT at 19.)
Trooper Richardson clarified that by the time he asked the
driver specific questions about drugs, aliens, etc., in the
car he believed he had reasonable suspicion. (RT at 41-42.)
After
speaking with the driver, he asked for consent to search the
car and the driver declined. (RT at 19.) Prior to fully
completing the warning document, Trooper Richardson then
walked back to the car to speak with the Defendant where the
Defendant gave a completely different name for the friend
they were visiting, and when asked what time they left Tucson
together, the Defendant indicated she didn't leave Tucson
with the driver, that she had already been in the Sierra
Vista area for court and the driver was taking her back to
Tucson. (RT at 19-20.) Based on the inconsistent stories from
the Defendant and the driver, Trooper Richardson requested a
K-9. (RT at 20.) The K-9 and handler arrived approximately 40
minutes later and alerted to the trunk where two illegal
aliens were found.
Trooper
Richardson's patrol car dashcam and body audio microphone
were activated during the entire time of the stop,
questioning, K-9 alert and retrieval of the illegal aliens.
(Exhibit 5.) A review of the dashcam video reveals that after
Trooper Richardson pulled the car over, he asked the driver
for her license, registration and insurance, asked Defendant
for her identification and then asked the driver to get out
the car and meet him near his patrol car. (Exhibit 5 at
approximately 0:58-1:42.) At that time, Trooper Richardson
told the driver the reason he pulled her over was that her
temporary paper license plate was not secured properly.
(Exhibit 5 at approximately 1:54-2:02.) She expressed concern
about getting a ticket and he assured her that he was only
going to write her a warning. (Exhibit 5 at approximately
2:03-2:15.) While Trooper Richardson is conducting his
investigation to include running her license and
registration, he asked the driver the following series of
questions (Exhibit 5, starts at approximately
2:17)[2]:
Where you guys going? (Tucson)
Where are you coming from? (inaudible)
Visiting a friend where? (I forgot the street)
What town? (over there; 15 minutes away . . .)
What's your friend's name? (Meggin)
Meggin what? (I'm not sure, you'll have to ask
her)
Have to ask who? (driver points to car)
Have to ask Meggin?
So you don't know Meggin's last name?
But your friend's name is Meggin?[3]
So you came down to pick her (Defendant) up? Is that what
you're doing? (I picked her up in Tucson . . .
inaudible),
Who is the friend you just went and saw? (her
friend)
What's her friend's name? (Jesse)
Justin? Jesse? (Jesse)
How long were you guys down here for? (inaudible)