United States v. Robinson

          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)