Opinion
CR-23-00941-TUC-SHR (LCK)
08-10-2023
United States of America, Plaintiff, v. Zackery Allen McKenzie and Miguel Allende Ortiz, Jr., Defendants.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins, United States Magistrate Judge.
Pending before the Court is Defendant Zackery Allen McKenzie's Motion to Suppress (Doc. 22). The government responded in opposition (Doc. 29) and Defendant McKenzie replied (Doc. 30). Subsequently, Defendant Ortiz joined the motion (Doc. 31). 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 July 19, 2023. (Doc. 33.) These matters were submitted following oral argument at the conclusion of the hearing.
Defendants allege that United States Fish and Wildlife Service (FWS) Officer Taylor Amos had no authority to conduct a traffic stop of Defendant McKenzie for speeding; therefore, all evidence collected after the traffic stop should be suppressed as it was obtained in violation of Defendants' Fourth Amendment Rights. The government argues that Congress has granted FWS officers, including Officer Amos, statutory authority to enforce violations of federal and state law (including traffic offenses) on wildlife refuges. Further, the government argues that FWS Officer Amos had reasonable suspicion to stop the vehicle. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, deny the Motion to Suppress.
For purposes of this motion, the government agrees with the facts as set forth in the Motion to Suppress but emphasizes that the traffic stop for speeding took place within the boundary of the Buenos Aires National Wildlife Refuge on State Route 286 as shown in an exhibit to Defendant McKenzie's motion. (Doc. 22, Ex. A; Doc. 29 at 1-2.) Unless otherwise indicated, the Court summarizes its facts from the motion.
On June 2, 2023, agents with Customs and Border Protection became suspicious of a white Chrysler 200 traveling south on State Route (SR) 286. At approximately 5:23 p.m., agents at the SR 286 checkpoint (located at Mile Post (MP) 22) conducted a record check of the vehicle's license plate and issued a "be on the lookout" notice for the vehicle regarding suspected transportation of illegal aliens. At approximately 5:35 p.m., agents located near MP 12 (10 miles from the checkpoint) indicated the Chrysler had passed their location. Later, other agents advised that they observed the vehicle traveling northbound from MP 2.
At approximately 6:00 p.m., Border Patrol Agent (BPA) Weber was monitoring traffic while parked at ¶ 9 on SR 286. He observed the white Chrysler 200 pass his location traveling northbound and noticed multiple people in the backseat wearing camouflage. BPA Weber pulled out behind the Chrysler. At that time, FWS Officer Taylor Amos was parked at ¶ 11. As the Chrysler passed Officer Amos's location, he pulled out behind the car. FWS Officer Amos was communicating with BPA Weber over the radio. Officer Amos indicated he was going to make a traffic stop due to the Chrysler driving over the posted speed limit. Officer Amos activated his emergency equipment and stopped the Chrysler at approximately MP 12. After the stop, FWS Officer Amos and BPA Weber discovered five illegal aliens in the rear seat of the vehicle. Defendant McKenzie, who was driving the vehicle, and his front seat passenger, Defendant Miguel Ortiz Jr., were arrested for conspiracy to transport illegal aliens, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(I), and 1324(a)(1)(B)(i). (Doc. 1.) On June 29, 2023, both defendants were indicted for the conspiracy charge as well as three counts for transportation of illegal aliens for profit. (Doc. 26.)
At the evidentiary hearing, FWS Officer Amos testified that he had been with the FWS for 10 years, spending the last 4 years in law enforcement. (RT at 9.) Officer Amos testified that he stopped Defendant McKenzie for traveling 9 miles per hour (mph) over the speed limit, specifically 64 mph in a posted 55 mph speed limit area. (RT at 10.) The stop occurred at ¶ 12 on SR 286, which is an Arizona State Highway located within the Buenos Aires National Wildlife Refuge. (RT at 8,14; Doc. 22, Ex. A.) After visually observing Defendant McKenzie traveling over the posted speed limit and confirming his observations with radar, FWS Officer Amos stopped Defendant McKenzie, pursuant to 50 C.F.R. § 27.31, and gave him a warning for the violation. (RT at 10, 19.) FWS Officer Amos has stopped and cited other individuals for speeding on SR 286 within the Buenos Aires Wildlife Refuge, pursuant to 50 C.F.R. § 27.31, and has appeared in the U.S. District Court, District of Arizona, for these citations. (RT at 10-11, 14-15, 20.) The Central Violations Bureau is responsible for processing such federal citations.
“RT” refers to the Reporters Transcript of the July 19, 2023 hearing. (Doc. 36.)
See www.azd.uscourts.gov/cvb/central-violations-bureau
FWS Officer Amos admits that, at the time he stopped Defendant McKenzie, no fish or wildlife were being affected or endangered by his speeding. (RT at 11.) However, Officer Amos stated that based on his training and experience, including his involvement in wildlife collision investigations, he has seen wildlife endangered by drivers speeding on the refuge. (RT at 15-16, 18.)
II. DISCUSSION
Defendants seek to suppress all evidence obtained as a result of the stop that they allege was unlawful. The government contends the stop by FWS Officer Amos was not only authorized under federal law but also was supported by reasonable suspicion.
Fish and Wildlife Service Officers' Authority
Defendants argue that FWS Officer Amos lacked authority under the law to conduct a traffic stop; therefore, the stop was unconstitutional. The Secretary of the Interior and the Secretary of Commerce are authorized under 16 U.S.C. § 742l(b)(3) to designate law enforcement officials who can "search, seize, arrest, and exercise any other law enforcement functions or authorities under Federal laws relating to fish and wildlife." With respect to the National Wildlife Refuge System, 16 U.S.C. § 668dd(g) states, "[a]ny person authorized by the Secretary to enforce the provisions of this Act or any regulations issued thereunder, may, without a warrant, arrest any person violating this Act or regulations in his presence or view."
The National Wildlife Refuge System is regulated under Title 50 of the Code of Federal Regulations (CFRs), which includes specific duties and responsibilities delegated to FWS and its officers. Section 27.31 of this title governs FWS's enforcement authority over vehicles traveling within a national wildlife refuge:
Travel in or use of any motorized or other vehicles . . . is prohibited on national wildlife refuges except on designated routes of travel . . . and subject to the following requirements and limitations:
(a) Unless specifically covered by the general and special regulations set forth in this chapter, the laws and regulations of the State within whose exterior boundaries a national wildlife refuge or portion thereof is located shall govern traffic and the operation and use of vehicles. Such State laws and regulations which are now or may hereafter be in effect are hereby adopted and made a part of the regulations in this part. ....
(c) Driving or operating any vehicle carelessly or heedlessly, or in willful or wanton disregard for the rights or safety of other persons, or without due care or at a speed greater than is reasonable and prudent under prevailing conditions, having regard to traffic, weather, wildlife, road, and light conditions, and surface, width, and character of the travel way is prohibited. Every operator shall maintain such control of the vehicle as may be necessary to avoid danger to persons or property or wildlife.
(d) The vehicle speed limit shall not exceed 25 m.p.h. except as otherwise legally posted.
The enforcement authority for the above regulation exists for the purpose of protecting fish and wildlife, FWS lands, property, facilities or interests, and ensuring the safety of the public (RT at 22). 50 C.F.R. § 28.21. That regulation further states that enforcement is pursuant to federal, state, and local laws and regulations, with explicit citation to subchapter C (of the section of Title 50 governing FWS), which includes § 27.31. Id.
Defendants do not contest that their vehicle was within the boundary of the Buenos Aires National Wildlife Refuge when it was stopped by FWS Officer Amos. Nor do they dispute that Officer Amos is an authorized federal law enforcement officer responsible for enforcing federal regulations on the national wildlife refuge. The Court examines Officer Amos's authority under the three above-quoted provisions of § 27.31.
Title 50 C.F.R. § 27.31(d) precludes driving over 25 mph in a national wildlife refuge "except as otherwise legally posted." Here, Officer Amos testified that the posted speed limit was 55 mph. Therefore, vehicles were precluded from driving over 55 mph under the regulation's subsection (d). Defendants did not argue that FWS Officer Amos did not have authority to enforce specific subsections of § 27.31. Enforcement of subsection (d) is analogous to enforcement of subsection (f), which prohibits travelling on a national wildlife refuge in a vehicle that has not been inspected as required by state law. As Defendants acknowledged, the Fifth Circuit upheld the authority of an FWS officer to stop a vehicle for violating subsection (f) (Doc. 30 at 4). United States v. Garza, 264 Fed.Appx. 369, 373 (5th Cir. 2008). The Court finds FWS Officer Amos had authority to stop Defendant McKenzie for driving in violation of the posted speed limit, pursuant to 50 C.F.R. § 27.31(d).
Next, the Court looks to the catchall provision set forth in subsection (a). Title 50 C.F.R. § 27.31(a) states that when the CFRs do not cover specific situations regarding the regulation of traffic and operation of vehicles, then the corresponding State's laws are applicable and "made part of the regulations." Although Defendants argue that enforcing state traffic laws is outside the scope of authority granted to FWS officers by § 28.21, subsection (a) explicitly allows for enforcement of state and local laws. By adopting § 27.31(a), the Secretary of the Interior necessarily concluded that enforcement of state traffic laws met the purposes set forth in § 28.21. Defendant argues, more specifically, that FWS officers cannot stop someone for speeding unless the speed is creating a danger for wildlife. That argument does not take into consideration the potential for danger to wildlife or public safety from any vehicle that is speeding. Defendants' interpretation would require FWS officers to wait for a dangerous event to occur before making an otherwise lawful stop. Further, § 28.21 is quite broad, in that it allows for the protection of the land and inhabitants of the refuge, as well as public safety. It is reasonable to conclude that speed limits are adopted, in part, to protect the public and the area surrounding roadways from harm that may occur when a person exceeds the speed limit. The Court finds that, to the extent subsection (d) does not address all speeding scenarios on a national wildlife refuge in Arizona, the state laws on speeding are treated as part of the regulations over which FWS officers have enforcement authority.
The Arizona Revised Statutes include a chapter on Arizona Traffic and Vehicle Regulation. That chapter encompasses A.R.S. § 28-702.01 Waste of a Finite Resource, which states, in part, that if the maximum speed limit on a public highway in Arizona is at least thirty mph in an area that is outside of an urbanized area (or forty mph in an urbanized area), "a person shall not drive a motor vehicle at a speed in excess of the posted speed limit." If the driver's speed was not more than ten mph over the speed limit, the offense may be designated as a waste of finite resources, a civil traffic violation. A.R.S. § 28702.01. The Court finds FWS Officer Amos had authority, pursuant to § 27.31(a), to stop Defendant McKenzie for driving 9 mph above the posted speed limit in violation of A.R.S. § 28-702.01.
Finally, the Court evaluates the relevance of subsection (c) to this case. Defendants focused their motion on arguing that, because they were not traveling at a speed greater than that which was reasonable and prudent (as prohibited by subsection (c)), FWS Officer McKenzie did not have authority to stop their vehicle. Officer Amos testified that he did not stop Defendant McKenzie under subsection (c); rather, he testified to having a reasonable suspicion that the vehicle was travelling above the posted speed limit. Defendants' arguments as to subsection (c) are irrelevant to the circumstances of this case, because FWS Officer Amos was not enforcing that subsection when he stopped the vehicle.
The parties and the Court identified only three cases addressing FWS officers' authority to enforce violations of § 27.31, none of which involved speeding. See Garza, 264 F. App'x. 369 (finding FWS officer had federal authority and was acting within the scope of his duties when he stopped a truck on FWS property with an expired state inspection sticker, in violation of 50 C.F.R. § 27.31(f)); United States v. Germain, 107 F. App'x. 91, 94 (9th Cir. 2004) (finding FWS officer had reasonable suspicion that § 27.31 was being violated based on observing several people standing by vehicles that were in a prohibited area, off a designated route of travel); United States v. Adams, 426 F.3d 730, 731 n.* (4th Cir. 2005) (looking to the state definition of the term "highway" because, pursuant to 50 C.F.R. § 27.31(a), state law governs traffic safety and permissible use and operation of vehicles within a national wildlife refuge). Defendants contend that the lack of cases discussing routine traffic stops by FWS officers for speeding, based on state statutes, establishes that they do not have authority to conduct such stops. (RT at 22; Doc. 30 at 5.) In contrast, the government argued there are no cases challenging FWS officers' authority to make traffic stops for speeding because it is axiomatic that they are authorized to make such stops. (RT at 29.) The Court is not persuaded by Defendants' interpretation of the absence of caselaw on this topic. Further, the cases cited by Defendants affirm the authority of FWS officers to enforce 50 C.F.R. § 27.31 on a national wildlife refuge, including the catchall provision of subsection (a) (which looks to state law), or the speeding provision in subsection (d). In sum, FWS Officer Amos had federal authority to stop Defendants, pursuant to both the CFRs and Arizona law.
Defendant also cited United States v. Ahrendt, 2015 WL 6445184 (Dist. Minn. Oct. 21, 2015). In that case, Defendant was charged with a violation of § 27.31 (among other things), for traveling on other than a designated route of travel. It does not appear there was a legal challenge to the officer's authority regarding enforcement of the regulation; however, Ahrendt was found not guilty under the facts presented. Id. at 2 & n.1.
Reasonable Suspicion
The Fourth Amendment's prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle. See United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). Therefore, agents/officers may perform "brief investigatory stops" only if they have a reasonable suspicion to believe that a traffic violation has occurred. United States v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir. 2000); United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013); see also United States v. Raygoza-Garcia, 902 F.3d 994, 999 (9th Cir. 2018) (citing United States v. Arvizu, 534 U.S. 266, 278 (2002) (agents may perform "brief investigatory stops" only if they have a "reasonable suspicion to believe that criminal activity may be afoot.")). The reasonable suspicion standard is not a high threshold. Valdes-Vega, 738 F.3d at 1078. However, when the Court makes reasonable-suspicion determinations, it must look at the "totality of the circumstances" in each case to see whether the agent had a "particularized and objective basis" for his suspicions about criminal activity. Arvizu, 534 U.S. at 273; United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (noting that "reasonable suspicion analysis is 'not readily, or even usefully, reduced to a neat set of legal rules'") (quoting United States v. Sokolow, 490 U.S. 1, 7-8 (1989)). A traffic stop is valid if the officer had reasonable suspicion to believe the driver violated a traffic law, regardless of the officer's intent in stopping the vehicle. See Whren v. United States, 517 U.S. 806, 810, 813 (1996) (holding that a pretextual stop is valid if supported by probable cause); Lopez-Soto, 205 F.3d at 1104 (clarifying that an investigatory traffic stop requires only reasonable suspicion).
Defendants did not dispute the existence of reasonable suspicion for a law enforcement officer with authority to stop Defendant McKenzie for speeding. However, they also did not concede the existence of reasonable suspicion as to speeding. FWS Officer Amos testified that the posted speed limit was 55 mph. Prior to the stop, FWS Officer Amos not only observed Defendant McKenzie driving in excess of the posted speed limit, but also confirmed with radar that the vehicle was traveling 64 mph. Based on this information, FWS Officer Amos had reasonable suspicion to believe Defendant McKenzie was driving above the posted speed limit in violation of a state traffic law and the federal regulation forbidding driving above a posted speed limit. 50 C.F.R. §§ 27.31(a), (d); A.R.S. § 28-702.01.
III. CONCLUSION AND RECOMMENDATION
Because FWS Officer Amos was within his authority and had reasonable suspicion for the traffic stop, there is no basis to suppress the evidence or Defendants' statements. Therefore, it is recommended that, after its independent review of the record, the District Court deny Defendant McKenzie' Motion to Suppress (Doc. 22), as joined by Defendant Ortiz (Doc. 31).
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.