United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
matter was referred to Magistrate Judge Rateau for pretrial
matters. On July 9, 2018, Defendant Armando Castro Bejarano
filed a Motion to Suppress Based on Lack of Reasonable
Suspicion. Doc. 23. The Government filed a Response on July,
17, 2018. Doc. 27. The defense did not file a reply. The
matter was heard by the Court on September 18, 2018.
Defendant was present and represented by counsel. The
Government presented one witness, Border Patrol Agent Brian
Horton. Doc. 42. Two Government exhibits were admitted. Doc.
43. Nine defense exhibits were admitted. Doc. 44. Having
considered the matter, the Magistrate Judge recommends that
Defendant's motion be denied.
Findings of Fact
Patrol Agent Brian Horton has worked as an agent for 10 years
out of the Border Patrol's Sonoita Station. On January
28, 2018, he was assigned to the Mobile Interdiction Team
targeting vehicles smuggling aliens and narcotics. That day,
he was in a marked unit and had stationed his vehicle at the
Shell gasoline station located on the southeast corner of
State Route 82 and State Route 83 and was facing the
intersection and observing traffic. Def. Ex. 3 (photograph of
Shell gas station marked by Agent Horton to show his
location); Gov. Ex. 1 (aerial photograph of
intersection). The intersection is approximately 30 miles
from the international border.
watched the intersection, he noticed two vehicles traveling
westbound on SR 82. The first vehicle was a Dodge truck with
the Honda Accord following “right behind.” As the
vehicles pulled into the Shell station, Agent Horton noticed
that the occupants of neither vehicle looked at him. The
Dodge truck proceeded to park at the gas pumps and the car
parked in a parking space. Believing that the cars might be
traveling in tandem, Agent Horton drove past the vehicles to
record and run the vehicles' license plate information.
After the plate information was provided to dispatch, Agent
Horton learned that the Honda had a valid registration out of
Tucson that did not raise his suspicions. However, he was
informed that the registration associated with the Dodge
truck was what agents describe as a “pseudo
registration” that included a name and a Sierra Vista
address, but contained no additional identifying information
such as the owner's date of birth, driver's license
number, or social security number.
about the same time, Agent Horton drove north on SR 83 and
parked at a church located approximately 300 yards north of
the intersection of SR 82 and SR 83. From there, using
binoculars, he saw an occupant of the truck communicating
with the occupants of the Honda. He then saw the truck and
car pull out of the gas station at the same time. The truck
proceeded northbound on SR 83 and the car went westbound on
SR 82. Agent Horton was suspicious about the truck's
direction of travel because it was registered in Sierra Vista
and was headed toward Tucson and because the usual route from
Sierra Vista to Tucson is SR 90. Agent Horton decided to
follow the truck northbound on SR 83 and requested that
another agent follow the Honda.
Horton was informed a short time later that the Honda had
made a U-turn to travel eastbound on SR 82 toward Sierra
Vista. Agent Horton continued to follow approximately 1000
feet behind the truck and he contacted the Border Patrol
checkpoint, located further north on SR 83, to inform them
about the approaching truck and his suspicions. However, a
short distance before the checkpoint location, the truck
turned onto Gardner Canyon Road. The road is known for
smuggling and is used by alien and drug smugglers to
circumvent inspection at the SR 83 Border Patrol checkpoint.
Agent Horton then activated his lights and conducted a stop
of the truck. The vehicle stopped and the agent approached
and asked the driver for his driver's license. The driver
was identified as Defendant Castro Bejarano. Agent Horton
asked for and was granted consent to search the vehicle. The
initial search revealed four packages of marijuana and Agent
Horton impounded the vehicle. A subsequent search resulted in
the discovery of a total of 26 kilograms of marijuana in the
Conclusions of Law
Fourth Amendment protects a person against unreasonable
searches and seizures. United States v. Hensley, 469
U.S. 221, 226 (1985). Consistent with the Fourth Amendment,
police may stop persons in the absence of probable cause
under limited circumstances. Terry v. Ohio, 392 U.S.
1, 88 (1968). The police may briefly stop a moving automobile
to investigate a reasonable suspicion that its occupants are
involved in criminal activity. Hensley, 469 U.S. at
226. Reasonable suspicion exists when an officer is aware of
specific articulable facts, that, together with rational
inferences drawn from them, reasonably warrant a suspicion
that the person to be detained has committed or is about to
commit a crime. United States v. Cortez, 449 U.S.
411, 416-18 (1981).
assessing the reasonableness of the police officer's
actions, the court must consider the totality of the
circumstances which confronted the officer at the time of the
stop. United States v. Sokolow, 490 U.S. 1, 8
(1989). This assessment precludes a “divide-and-conquer
analysis” because even though each of a suspect's
acts may be innocent in and of themselves, when taken
together, they may warrant further investigation. United
States v. Arvizu, 534 U.S. 266, 272 (2002). “A
determination that reasonable suspicion exists . . . need not
rule out the possibility of innocent conduct. United
States v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir.
2013) (quoting Arvizu, 534 U.S. at 277).
articulable facts forming the basis of a reasonable suspicion
must be measured against an objective reasonableness
standard, not by the subjective impressions of a particular
officer. Gonzalez-Rivera v. I.N.S., 22 F.3d 1441,
1445 (9th Cir. 1994). An officer is however, “entitled
to assess the facts in light of his experience in detecting
illegal entry and smuggling.” United States v.
Brignoni-Ponce, 422 U.S. 873, 885 (1975). But the
inferences drawn from an officer's experience must be
objectively reasonable. United States v.
Montero-Camargo, 208 F.3d 1122, 1131 (9th
Cir. 2000) (en banc).
relation to stops by Border Patrol agents, the totality of
circumstances may include:
(1) characteristics of the area; (2) proximity to the border;
(3) usual patterns of traffic and time of day; (4) previous
alien or drug smuggling in the area; (5) behavior of the
driver, including obvious attempts to evade officers; (6)
appearance or behavior of passengers; (7) model and
appearance of the vehicle; and, (8) officer experience.
United States v. Berber-Tinoco, 510 F.3d 1083, 1087
(9th Cir. 2007). “Not all of these factors
must be present or highly probative in every case to justify
reasonable suspicion[, ] . . . [a]nd the facts must be
filtered through the lens of the agents' training and
experience.” Unit ...