Opinion
4:22-cr-00370-RM-BGM-1
06-21-2023
United States of America, Plaintiff, v. Nathaniel Taylor, Defendant.
REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION TO SUPPRESS EVIDENCE (ILLEGAL ARREST) (DOC. 87)
Honorable Bruce G. Macdonald, United States Magistrate Judge
Currently pending before the Court is Defendant Nathaniel Dijon Taylor's (“Defendant's”) Motion to Suppress Evidence (Illegal Arrest) (Doc. 87). The Government filed its response. See Govt.'s Response (“Response”) (Doc. 92). No reply was filed. Defendant is charged with one (1) count of conspiracy to transport illegal aliens for profit in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), 1324(a)(1)(A)(ii), and 1324(a)(1)(B)(i); and one (1) count of transportation of illegal aliens in violation of §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(ii). Indictment (Doc. 28). Pursuant to LRCrim 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. On May 17, 2023, an evidentiary hearing was held by Magistrate Judge Macdonald. ME 05/17/23 (Doc. 95.) After receipt of the hearing transcript, this matter is ripe for adjudication. The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's Motion (Doc. 87).
Also pending before the Court are Defendant's Motion to Preclude Other Acts. Evidence Under 404(b) (Doc. 85); Defendant's Motion to Preclude Expert (Doc. 86); and Defendant's Motion to Preclude Statements (Doc. 84). Defendant's Motion to Suppress Evidence (No reasonable suspicion to Stop) (Doc. 83) was withdrawn by Defendant at the hearing. See ME 05/17/23 (Doc. 95).
I. FACTUAL BACKGROUND
At the hearing held May 17, 2023, United States Supervisory Border Patrol Agent Shawn Smalldridge (“BPA Smalldridge”) testified on behalf of the Government regarding the events leading up to Defendant's arrest on the evening of December 14, 2021, for transportation of illegal aliens. BPA Smalldridge has been employed with Border Patrol for fifteen (15) years. Hr'g Tr. 5/17/23 at 10:14. Also appearing on behalf of the Government at the hearing, although he did not testify, was case agent Vincent Gonzales. Id. at 9:8-9.
The Court notes the Transcript of Record from the hearing held May 17, 2023, page 11, reflects December 14th, 2022, however, the Criminal Complaint reflects December 14, 2021 (Doc. 1).
On December 14, 2021, according to BPA Smalldridge's testimony at the hearing, he was assigned to the Sonoita Border Patrol Station, for most of eastern Santa Cruz County and western Cochise County. Hr'g Tr. 5/17/23 (Doc. 100) at 10:25-11:5. At the start of his shift at 2:00 p.m., he testified to receiving his daily assignments including, inter alia, intel regarding a dark-colored Ford Edge SUV that was seen in the Lochiel area, that had been stopped previously that day by other Border Patrol agents who identified the driver of the vehicle as Nathaniel Taylor. Hr'g Tr. 5/17/23 (Doc. 100) at 12:6-11, 14:1620, 32:15-17. According to intel supplied at shift start, BPA Smalldridge testified that the stop earlier in the day determined that Taylor was not the registered owner of the SUV, and the vehicle had Washington plates. Id. at 14:16-21. BPA Smalldridge further testified that at the intelligence briefing, the agents had pictures of the vehicle and Mr. Taylor from the stop earlier in the day. Hr'g Tr. 5/17/23 (Doc. 100) at 32:15-17. BPA Smalldridge testified that the shift briefing also included intel of a records check performed on Mr. Taylor relating to a previous arrest in Tucson, by the Tucson Station, one week prior for alien smuggling. Id. at 12:12-16, 28:15-19.
This type of intel is also referred to as a be-on-the-lookout-for (“BOLO”), and “the prior police contact” is currently the subject of Defendant's Motion to Preclude Other Acts Evidence Under 404(b) (Doc. 85); see also Doc. 77.
The alleged December 6, 2021 arrest is also the subject of Defendant's pending Motion to Preclude Other Acts Evidence under 404(b) (Doc. 85), reserved for the District Judge.
Based on his experience as a Border Patrol Agent, BPA Smalldridge further testified that the area in Lochiel, an abandoned port of entry, along the border east of Nogales, is so well-known for human smuggling that the crime itself is referred to locally as a “Lochiel Special.” Hr'g Tr. 5/17/23 (Doc. 100) at 13:8, 13-17. BPA Smalldridge further testified that Border Patrol agent(s), e.g., a Nogales camera operator, and a Sonoita camera operator, and a number of other National Guard members, were conducting surveillance of the area near Lochiel, Arizona, on December 14, 2021. Id. at 12:13-15, 18-23.
BPA Smalldridge testified that on December 14, 2021, between approximately 7:30 p.m. and 8:30 p.m., camera operators, running on infrared, watched a group of approximately six to ten people cross the border and continue walking toward de Niza's cross. Hr'g Tr. 5/17/23 (Doc. 100) at 32:24-33:1-2, 13-16, 21-25; 34:1-3. BPA Smalldridge further testified that the Sonoita camera operator reported seeing the SUV go back to Lochiel, and back to de Niza's cross, and it parked behind the cross. Id. at 18:1315. De Niza's cross is a large stone and concrete cross commemorating the Saint de Niza, and is an easily identified landmark on northwest side of Lochiel on Forest Service Road 61, which is Duquesne Road. (Doc. 100) at 15:2-7.
During this time, BPA Smalldridge testified to additional agents and some assisting deputies from Santa Cruz Sheriff's Department, as well as himself, responding a little bit further west of Patagonia and set up in an area known as Kino Springs, just east of Nogales. Id. at 18:15-19. BPA Smalldridge testified that also during this time, the Sonoita camera operator reported the group had crossed the border and was on a small hill to the south of de Niza's Cross and went down the hill towards the cross, and then the camera operator lost visual of group because of the cross itself. Id. at 18:20-24. BPA Smalldridge testified that at this time, the camera operators, did not have a visual of the driver of the vehicle. Id. at 33:12-16, 20-25. The group of people and the vehicle, once behind the cross, BPA Smalldridge testified, are out of view of the camera operators, until they come back out again. Hr'g Tr. 5/17/23 (Doc. 100) at 31:16-20; 33:23-25. BPA Smalldridge further testified that no one, camera operators, or agents, saw anybody get into the vehicle because the vehicle was behind the view of the camera when the vehicle was behind the cross. Id. at 31:18-20, 23-25. A few minutes after that, BPA Smalldridge testified that the [Sonoita] camera operator reported that the vehicle had left the cross and was leaving the area at a high rate of speed. Hr'g Tr. 5/17/23 (Doc. 100) at 18:24-25, 19:1-2.
Once the vehicle left the area of de Niza's cross, in Lochiel, while attempting to track the vehicle's location, BPA agents bounced back and forth between two different radio frequencies with the Sonoita station and the Nogales station, according to BPA Smalldridge's testimony. Hr'g Tr. 5/17/23 (Doc. 100) at 35:9-11. BPA Smalldridge further testified that eventually the Nogales camera operator reported that the vehicle had come to a stop and people had bailed out and ran away from the vehicle. Hr'g Tr. 5/17/23 (Doc. 100) at 19:9-11. Simultaneously, on the Sonoita frequency, BPA Smalldridge testified, that there was a request for back up from the Santa Cruz County Sheriff's department, that law enforcement was behind the SUV, that it had bailed out, and law enforcement was requesting assistance. Id. at 19:11-17.
BPA Smalldridge testified that he was located at the Kino Springs Fire Department, on Highway 82 near Kino Springs Road. Hr'g Tr. 5/17/23 (Doc. 100) at 19:18-21. According to BPA Smalldridge's testimony, he drove from his location at the fire department, approximately five minutes, to a location where other Border Patrol agents were already on the scene. Id. at 19:22-25, 20:1-2. BPA Smalldridge testified that he then contacted the sheriff's deputy and could see that the vehicle was involved in an accident with a tree. Hr'g Tr. 5/17/23 (Doc. 100) at 20:3-4. BPA Smalldridge, in talking with the deputy, said it sounded like the passengers of the vehicle had bailed out a short distance prior to the accident, that the driver kept going, crashed into the tree and then the driver himself bailed out and jumped over a fence and ran away. Id. at 20:5-9. BPA Smalldridge testified that he was given a description of what the driver looked like, as, male, tall, dark complexion with large Afro-like hair. Hr'g Tr. 5/17/23 (Doc. 100) at 20:10-13. The Nogales station camera operators, according to BPA Smalldridge's testimony, advised that they had visual of the group walking north from the scene of the bail out. Id. at 20:16-18.
BPA Smalldridge testified that assisting Border Patrol agents went out to where the group was located based on guidance from the camera operator, picked up the foot sign(s) that kind of matched coming from the vehicle, followed the foot sign(s) and ended up jumping the group and apprehending them, determining alienage, and making the arrest for being illegally present in the U.S. Hr'g Tr. 5/17/23 (Doc. 100) at 20:18-24.
BPA Smalldridge testified that he and his agents then pulled out of the area, where the driver of the vehicle bailed out, to allow camera operators, using infrared cameras, to look for hot spots. Hr'g Tr. 5/17/23 (Doc. 100) at 22:23-25. Agents waited for over an hour before any updates, according to BPA Smalldridge's testimony. Id. at 23:1-2. At approximately 10:20 p.m., according to BPA Smalldridge's testimony, the agents left the area to begin searching both sides of the Santa Cruz River, with the other agents traveling along Duquesne Road, and BPA Smalldridge traveling on Kino Springs Road. Id. at 25:15-18.
At approximately 10:40 p.m., December 14, 2021, according to BPA Smalldridge's testimony, BPA Smalldridge reached Highway 82 (SR-82), and started traveling east on SR-82, across the bridge when he saw a male subject, that matched the description of Mr. Taylor, walking along the bridge. Hr'g Tr. 5/17/23 (Doc. 100) at 25:19-23. BPA Smalldridge testified that he passed him, made a U-turn at South River Road (a.k.a. Duquesne Road on the east side of SR-82), turned on his rear emergency lights to warn oncoming traffic that he was on the bridge, and he approached Mr. Taylor. Id. at 25:2526:1-2. BPA Smalldridge testified that Mr. Taylor looked over the side of the bridge and then jumped off the bridge into the dry Santa Cruz Riverbed. Id. at 26:4-6. BPA Smalldridge testified that he observed Mr. Taylor running away to the north. Id. at 26:89. BPA Smalldridge testified to calling for assistance to attempt to track footprints, a.k.a., a “sign-cutting” operation. Hr'g Tr. 5/17/23 (Doc. 100) at 26:9-14. BPA Smalldridge testified to picking up some footprints traveling north a few hundred yards where they discovered Mr. Taylor located in the brush on the north side of the South River Road bridge. Id. at 26:17-22. Once they had Mr. Taylor surrounded, BPA Smalldridge testified that he surrendered, and they took him into custody. Id. at 26:25-27:1-2. BPA Smalldridge advised Mr. Taylor he was under arrest for 1324. Id. at 27:10.
On March 9, 2022, the Grand Jury Indictment (Doc. 28) charged Defendant with:
COUNT I:
8 U.S.C. § 1324(a)(1)(A)(v)(I)
8 U.S.C. § 1324(a)(1)(A)(ii)
8 U.S.C. § 1324(a)(1)(B)(i)
(Conspiracy to Transport Illegal Aliens)
COUNT II:
8 U.S.C. § 1324(a)(1)(A)(ii)
8 U.S.C. § 1324(a)(1)(B)(ii)
(Transportation of Illegal Aliens)See Indictment filed March 9, 2022 (Doc. 28).
Subsection (B)(i) provides, in pertinent part, “in the case of a violation of subparagraph . . . (v)(I) . . . [or] (A)(ii) . . . in which the offense was done for the purpose of commercial advantage or private financial gain ....” 8 U.S.C. § 1324(a)(1)(B)(i).
Subsection (B)(ii) provides, in pertinent part, “in the case of a violation of subparagraph (A)(ii) ....” 8 U.S.C. § 1324(a)(1)(B)(ii).
II. PARTIES' POSITIONS
Defendant's Motion to Suppress Evidence (Illegal Arrest) (Doc. 87) asserts Defendant was legally walking on the street at the initial encounter, law enforcement lacked probable cause for arrest, and Defendant moves for suppression of all evidence, in whatever form, as the fruits of an unlawful arrest, citing to the Federal Rules of Criminal Procedure (Fed.R.Crim.P.), Rule 12, the Fourth and Fifth Amendments to the United States Constitution, and Wong Sun v. United States, 371 U.S. 471 (1963). (Doc. 87 at 1-2.)
The Government's Response (Doc. 92), originally responded to two motions, i.e., Defendant's Motion to Suppress Evidence (No Reasonable Suspicion to Stop) (Doc. 83), which was withdrawn, See ME 05/17/23 (Doc. 95), and the subject motion (Illegal Arrest) (Doc. 87). The Government submits there was only one stop and arrest in this case, and they took place at the same time, when Mr. Taylor was finally apprehended after his multiple attempts to evade law enforcement. (Doc. 92 at 1.) The Government specifically asserts Sergeant Gonzales had reasonable suspicion to initiate a stop-based on the vehicle suspected of picking up a group of illegal aliens and it driving at a relatively high rate of speed down a dirt road-had Defendant Taylor not continued to evade law enforcement. (Doc. 92 at 4.) The Government concedes “no stop occurred” and more specifically, “there is no doubt that Mr. Taylor did not stop and was not apprehended when Santa Cruz County Sheriff's Sergeant Gonzales began following the defendant's vehicle.” (Doc. 92 at 4.) Lastly, the Government submits that when Agent Smalldridge encountered Defendant Taylor walking along SR-82, BPA Smalldridge “knew” the following information:
At hearing on May 17, 2023, counsel identified in the courtroom a “Vincent Gonzales” as “our case agent from Border Patrol” Hr'g Tr 05/17/23 (Doc. 100 at 9); and the Response identifies a Sergeant Gonzales with the Santa Cruz County Sheriff's Dept (Doc. 92 at 4). However, it is unclear whether these two individuals are the same person or separate individuals, as one is identified as a case agent from “Border Patrol” and the other identified as a sergeant with “Santa Cruz County Sheriff's Department.”
Defendant Taylor had a previous human smuggling arrest, that he was encountered earlier in the day driving a black SUV, that the same black SUV later was observed in close proximity to a group of suspected undocumented immigrants (UI), that the black SUV was pursued by local law enforcement and suspected UIs were caught in the immediate aftermath of that black SUV fleeing, that local law enforcement identified the driver as someone matching the description of Nathaniel Taylor, and that Nathaniel Taylor had fled and was hiding in the very same area this ‘unknown' person was now found. and
Mr. Taylor then fled from law enforcement a second time and was found hiding in the brush.Response (Doc. 92 at 4-5.) The Government asserts that with the above facts, BPA Smalldridge had more than sufficient support to arrest Mr. Taylor and Defendant's motion should be denied.
III. LAW
Under the collective knowledge doctrine, we must determine whether an investigatory stop, search, or arrest complied with the Fourth Amendment by ‘look[ing] to the collective knowledge of all the officers involved in the criminal investigation although all of the information known to the law enforcement officers involved in the investigation is not communicated to the officer who actually [undertakes the challenged action].'United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007) citing United States v. Sutton, 794 F.2d 1415, 1426 (9th Cir. 1986); see generally 2 WAYNE LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 3.5 (4TH ED.2004). The Language of the Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. CONST. amend. IV.
“[T]he nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators.” United States v. Brignoni- Ponce, 422 U.S. 873, 883, 95 S.Ct. 2574, 2581 (1975). “Consequently, a requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference.” Id. “Because it is a ‘less demanding' standard, ‘reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause.'” Kansas v. Glover, 206 L.Ed.2d 412, 140 S.Ct. 1183, 1188 (2020) citing Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412 (1990). “The standard ‘depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act' and they must permit officers to make ‘commonsense judgments and inferences about human behavior.'” Kansas, 206 L.Ed.2d at 1188 citing Prado Navarette v. California, 572 U.S. 393, 402, 134 S.Ct. 1683 (2014).
Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant. (citations omitted) They also may consider information about recent illegal border crossings in the area. The driver's behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion. (citations omitted) Aspects of the vehicle itself may justify suspicion.United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 2582 (1975) (emphasis added). Whether an investigatory stop is supported by reasonable suspicion presents a mixed question of law and fact. United States v. Diaz-Ramirez, 299 F.3d. 1138, 1140 (9th Cir. 2002).
IV. ANALYSIS
As a preliminary matter, the Court has filed simultaneously with this Report and Recommendation (R&R), a Report and Recommendation addressing Defendant's Motion to Preclude (Statements) (Doc. 84) which recommends the District Court deny Defendant's Motion (Doc. 84) and allow the admission of the parties' Stipulation and Joint Motion for Release of Material Witness without taking Video Deposition (Doc. 17). In addition to the issue of admissibility of the parties' Stipulation, the Government's Response asserts “Mr. Jimenez-Entzin also identified the defendant as the driver of the vehicle through a photo lineup and told BPAs that his family had made smuggling arrangements on his behalf.” (Doc. 92 at 3.) However, beyond the parties' Stipulation (Doc. 17), the Court received no evidence and heard no testimony at hearing regarding Mr. Jimenez-Entzin identifying the defendant as the driver of the vehicle through a photo lineup.
Regarding Defendant's Motion to Suppress Evidence (Illegal Arrest) (Doc. 87), the Government's Response asserts the SUV was suspected of picking up a group of illegal aliens at de Niza's cross and was driving at a relatively high rate of speed down a dirt road when Sergeant Gonzales had reasonable suspicion to initiate a stop, had the driver not ‘bailed out.' (Doc. 92 at 4.) The Government concedes that Sergeant Gonzales did not effectuate a stop, but argues he had reasonable suspicion to do so, had the driver not evaded law enforcement. The Government submits, further, that “when [Sergeant Gonzales] pulled behind the vehicle it rapidly accelerated away from him before he even was able to turn on his lights and sirens[,]” and “[i]f law enforcement had been able to conduct a stop at that point, it would have been one based on reasonable suspicion.” (Doc. 92 at 4.)
The Government further submits that based on BPA Smalldridge's knowledge of the facts when he encountered a male walking on the bridge along SR-82, and the fact that the individual evaded law enforcement when approached, the Government requests the Court find 1) no stop occurred until Mr. Taylor was arrested late in the night of December 14, 2021; and 2) that probable cause existed for Mr. Taylor's arrest; and deny Defendant's motion.
Defendant contends he “was legally walking on a street when the Agents approached him” . . . and the fact that he was “[i]n the general area where the vehicle was last noticed” does not provide reasonable suspicion. (Doc. 87 at 2:18-23.)
The factors for the Court's consideration in this matter are interwoven and drawn from one another spanning a full day and into the night of December 14, 2021.
As one of the factors for finding reasonable suspicion, the Government submits the Court should consider the stop, allegedly occurring earlier in the day on December 14, 2021, prior to the start of BPA Smalldridge's shift beginning at 2:00 p.m. As testified to by BPA Smalldridge, as part of the intel shift briefing that day, the agents “were made aware of a dark-colored Ford Edge SUV that was seen down in the Lochiel area, which is along the border east of Nogales, that was stopped previously in the day by other Border Patrol agents, and those agents identified the driver of that vehicle as Nathaniel Taylor.” (Doc. 100 at 12.)
Under the collective knowledge doctrine, we must look to the collective knowledge of all the officers involved in the criminal investigation although all of the information known to the law enforcement officers involved in the investigation is not communicated to the officer who actually [undertakes the challenged action]. Ramirez, 473 F.3d at 1032.
Assuming arguendo Sergeant Gonzales had effectuated a stop when he encountered the vehicle traveling at a high rate of speed from the Lochiel area, the Court, here, analyzes Sergeant Gonzalez' basis for reasonable suspicion.
Under the Fourth Amendment of the U.S. Constitution, a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
Because the ‘balance between the public interest and the individual's right to personal security,' United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574 (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity ‘may be afoot,' United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581 (1989).United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750 (2002). In making reasonable suspicion determinations, reviewing courts must look at the ‘totality of the circumstances' of each case to see whether the detaining officer has a ‘particularized and objective basis' for suspecting legal wrongdoing. Arvizu, 534 U.S. at 273 citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690 (1981).
Under the ‘collective knowledge' doctrine, Ramirez, 473 F.3d at 1032, the knowledge that BPA Smalldridge possessed-i.e., that the driver of that same vehicle was identified when pulled over previously in the day, and it was discovered that Mr. Taylor was not the registered owner-may be imputed to the Santa Cruz County Sheriff's department, Sergeant Gonzales. In addition, the vehicle had Washington state license plates, was traveling in a remote area, and suspected of trying to evade law enforcement by traveling at a high rate of speed from an area known for smuggling undocumented immigrants (UIs) where the vehicle and a group of UIs were observed within close proximity of space and time.
“Stops by Border Patrol agents on roving patrol may be justified under circumstances less than those constituting probable cause for arrest or search.” U.S. v. Covarrubia, 911 F.Supp. 1409 (D.N.M. 1994) citing United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 2580 (1975). “Border Patrol agents on roving patrol may stop vehicles only if they are aware of ‘specific and articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle contains aliens who may be illegal in the country.' Covarrubia, 911 F.Supp. at 1413 citing Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. at 2582, as extending Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) to the roving patrol context.
In determining whether there is reasonable suspicion to stop a car in the border area, officers may consider any number of relevant factors, including: (1) characteristics of the area in which the vehicle is encountered; (2) the proximity of the area to the border; (3) the usual patterns of traffic on the particular road; (4) the previous experience of the agent with alien traffic; (5) information about recent illegal border crossings in the area; (6) the driver's behavior, including any obvious attempts to evade officers; (7) aspects of the vehicle, such as a station wagon with concealed compartments; and (8) the appearance that the vehicle is heavily loaded. Brignoni-Ponce, 422 U.S. at 884-885, 95 S.Ct. at 2582.Covarrubia, 911 F.Supp. at 1413-14. “Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of ‘criminal activity.'” Covarrubia, 911 F.Supp. at 1414 citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690 (1981).
The Court's analysis of the Brignoni-Ponce factors, inter alia, regarding reasonable suspicion for roving patrols near the border follows.
(1) The characteristics of the area in which the vehicle is encountered
From the location of the de Niza's Cross in Lochiel, Arizona, traveling west on Duquesne Road, the road eventually leads to Highway 82, SR-82. Lochiel sits on the western side of what is known as the San Rafael Valley. San Rafael Valley is mainly private property cattle ranches. Hr'g Tr. (Doc. 100) at 13:22-24.
After the vehicle was observed at de Niza's cross, the SUV began to travel west and head out towards Nogales. Hr'g Tr. (Doc. 100) at 16:25-17:1. The Sonoita camera operator lost visual of the vehicle around the Fifth Cattle Guard, and the Nogales station camera operator reported that the vehicle had stopped and then had turned around and gone back towards Lochiel. Hr'g Tr. (Doc. 100) at 17:5-12. Lochiel is a rural area, with limited cell phone reception, and difficult for camera operators to observe all of the comings and goings of the area with dirt roads. Hr'g Tr. (Doc. 100) at 17:13-19; 15:8-11; 22:2-5 (“the ruggedness of the terrain the rolling hills and the highs, as well as the creeks and washes that drain out into the Santa Cruz River”). In addition to the rough terrain, based on his experience as a Border Patrol Agent, BPA Smalldridge testified that the area of Lochiel, an abandoned port of entry, along the border east of Nogales, is so well-known for human smuggling that the crime itself is referred to locally as a “Lochiel Special.” Hr'g Tr. 5/17/23 (Doc. 100) at 13:8, 13-17.
Officers' suspicion or awareness that a particular location or route is used predominantly for illegal purposes-including illegal immigration-is strong support for a finding of reasonable suspicion. See Arvizu, 534 U.S. at 269, 277, 122 S.Ct. 744 (finding it significant that officers found the defendant on an unpaved road “very rarely traveled except for use by local ranchers and forest service personnel,” but commonly used by smugglers to avoid a nearby border checkpoint)United States v. Manzo-Jurado, 457 F.3d 928, 936 (9th Cir. 2006).
The Court finds the characteristics of the area-between the de Niza Cross, in Lochiel, Arizona, and SR-82, where BPA Smalldridge ultimately encountered an individual walking on the bridge at approximately 10:40 p.m. the night of December 14, 2021-ranges from a remote, rural location with few roads, mostly dirt, and very little traffic in Lochiel, Arizona, to a slightly more populated area along SR-82 near Kino Springs, and Kino Springs Golf Resort on Duquesne Road FSR-61, east of Highway 82, near the bridge. Hr'g Tr. (Doc. 100) at 21:12-17; see also Exhibit 2 admitted at the hearing; ME 05/17/23. At night, outside of the few lights at the golf resort and some of the residential lights from some ranches, there are no streetlights, and very little ambient lighting. Hr'g Tr. (doc. 100) at 23:23-24:1-2. The remoteness of the Lochiel area with few residential or commercial structures, mostly private ranches, near the border of Mexico, and the uniqueness of a vehicle with Washington license plates traveling to Lochiel, out of Lochiel, and back to Lochiel, and then rapidly existing heading west toward SR-82, weighs in the Government's favor as a factor supportive of reasonable suspicion.
(2) The proximity of the area to the border
Lochiel is an abandoned port of entry, kind of a ghost town, that sits south of Patagonia, east of the Patagonia Mountain range, Mount Washington. Lochiel is on both sides of the border. There is a Lochiel, Mexico, as well as Lochiel, United States. Hr'g Tr. (Doc. 100) at 13:7-12. The Fray Marco de Niza's historical monument (de Niza's Cross) is approximately half of a mile on Duquesne road, a.k.a. Forest service Road 61, from the Border Road dividing the United States from Mexico. The proximity of Lochiel, Arizona, to the border of Mexico, and the initial sighting of the vehicle parked behind the de Niza's Cross, then sighted exiting the town by traveling west on Duquesne Road toward SR-82, the proximity to the border factor weighs in favor of the Government for a finding of reasonable suspicion.
(3) The usual patterns of traffic on the particular road
De Niza's Cross is on the northwest side of Lochiel, Arizona, United States, on Forest Service Road 61, a.k.a. Duquesne Road. Traveling west on Duquesne Road eventually leads to Highway 82, SR-82.
As testified to by BPA Smalldridge, “San Rafael Valley is mainly private property cattle ranches, and over the years you start to, you know, learn vehicles that are common to the area, residents who live in the area, and when you see vehicles that are not from the area, it kind of raises the suspicion.” Hr'g Tr. (Doc. 100) at 13:23-14:2.
The Court finds BPA Smalldridge's testimony regarding the ability to “learn vehicles that are common to the area”-due to the fact that the area is mostly cattle ranches-is reasonable, and the factor regarding usual patterns of traffic weighs in favor of the Government regarding the traffic patterns on Duquesne Road.
(4) The previous experience of the agent with alien traffic
BPA Smalldridge has been a Border Patrol agent for over 15 years. Hr'g Tr. (Doc. 100) at 10:14. Prior to his current title as a special operation supervisor, assigned to the asset forfeiture office, BPA Smalldridge was previously a Supervisory Border Patrol Agent for approximately five years at the Sonoita Border Patrol Station covering most of eastern Santa Cruz County and western Cochise County. (Doc. 100) at 10:19-11:5. During BPA Smalldridge's five-year assignment at the Sonoita Border Patrol station he supervised or personally encountered approximately 50 to 100 alien smuggling encounters, arrests, or incidents. Hr'g Tr. (Doc. 100) at 11:11-21. BPA Smalldridge received numerous law enforcement training courses, including the Border Patrol Academy, as well as dozens of investigative classes. Id. at 10:16-18.
The Court finds BPA Smalldridge's experience weighs in favor of the Government and supports his testimony regarding the facts surrounding the totality of the circumstances in this matter when analyzing reasonable suspicion.
(5) Information about recent illegal border crossings in the area
On December 14, 2021, camera operators spotted a group of suspected undocumented immigrants south of the border in the general area of Lochiel. Hr'g Tr. (Doc. 100) at 16:9-14. The camera operator in Sonoita reported that the group had crossed the border and was on a small hill to the south of de Niza's Cross and going down the hill towards the cross. Hr'g Tr. (Doc. 100) at 18:20-23. Additionally, the camera operators notified BPA Smalldridge that they had a visual of the vehicle that they were looking for had parked in an area near de Niza's Cross. Hr'g Tr. (Doc. 100) at 15:18-16:108, 18:1315.)
The Court finds that an illegal border crossing occurred that same day, i.e., December 14, 2021, the day that Taylor was pulled over earlier in the day, and determined to be driving a vehicle later spotted in the Lochiel area, specifically, near de Niza's Cross- the area where the suspected undocumented aliens crossed the border and continued walking towards de Niza's Cross-and the same day a group of suspected undocumented aliens were later apprehended near the scene of the vehicle that crashed (Doc. 100 at 20:1624), all weigh in favor of the Government for this factor regarding information about recent illegal border crossings.
(6) The driver's behavior, including any obvious attempts to evade officers
a. Turnaround
“So our camera operator lost visual around that location; however, the Nogales station camera operator was able to gain visual on the other side. They reported that the vehicle had stopped and then had turned around and gone back towards Lochiel.” (Doc. 100 at 17:8-12.) (emphasis added). Regarding driving behaviors, the Ninth Circuit concludes, in pertinent part:
[T]his Court has made it clear that a turnaround combined with other factors may be considered as part of a reasonable suspicion analysis. (citation omitted). Even more so, a U-turn.United States v. Montero-Camargo, 208 F.3d 1122, 1137-38 (9th Cir. 2000).
BPA Smalldridge affirmed with his testimony that this behavior of “leaving one location that may or may not have had cell phone service to get better cell phone service becomes one of a number of things” considered for “reasonable suspicion.” Hr'g Tr. (Doc. 100 at 18:3-8.)
The Court finds the behavior of the driver of the vehicle driving into the Lochiel, area, out of Lochiel, then into Lochiel and out of Lochiel, again, this time at a high rate of speed, is driving behavior, combined with other factors, that is supportive of the Government for this factor.
The Court notes that the factor of the driver's behavior regarding a “turnaround” and the analysis of reasonable suspicion regarding Sergeant Gonzales, weighs in favor of the Government for this factor as the driver's turnaround to head back to Lochiel occurred prior to Sergeant Gonzales following the vehicle when he contemplated a stop, prior to the vehicle bailing out at a high rate of speed and Sergeant Gonzales calling for assistance.
b. Evasive Behavior
In addition to the vehicle's “turnaround” described in (a.) above, BPA Smalldridge testified, to three occasions of evasive behavior that occurred during his shift: 1) when the Santa Cruz County Sheriff's Office was behind the vehicle and the vehicle bailed out rapidly prior to requesting assistance; 2) after the vehicle stopped and dropped off the group and then bailed out as reported by camera operators; and 3) after the vehicle collided with a tree, the driver bailed out of the vehicle, jumped over a fence and ran away on foot. Then later, when BPA Smalldridge approached the individual matching the description of Mr. Taylor walking on the bridge and Mr. Taylor jumped from the bridge to the dry Santa Cruz riverbed and continued running away north.
“[E]vasive behavior is another pertinent factor in determining reasonable suspicion [,] and headlong flight is the consummate act of evasion.” Illinois v. Wardlow, 528 U.S. 119, 119, 120 S.Ct. 673, 674 (2000) citing e.g., Brignoni-Ponce, 422 U.S. at 885.
The first evasion occurred when on the Sonoita frequency, there was a request for back up from the Santa Cruz County Sheriff's department that law enforcement was behind the SUV, that it had bailed out, and law enforcement was requesting assistance. Hr'g Tr. (Doc. 100 at 19:11-17.). The Government's Response asserts the SUV was suspected of picking up a group of illegal aliens at de Niza's cross and it was driving at a relatively high rate of speed down a dirt road when Sergeant Gonzales had reasonable suspicion to initiate a stop, had the driver not ‘bailed out.' (Doc. 92 at 4.). The Santa Cruz County Sheriff's department was following the SUV because of the suspected pick up of illegal aliens at de Niza's cross, a known alien smuggling location, and the vehicle's continued travel at a high rate of speed down a dirt road, from de Niza's cross.
The second evasion and third evasion, according to BPA Smalldridge's testimony, “[i]n talking to the deputy, it sounded like the passengers of the vehicle had bailed out a short distance prior to the accident, that the driver kept going, crashed into the tree and then the driver himself bailed out and jumped over a fence and ran away.” Hr'g Tr. (Doc. 100) at 20:5-9.
The last evasion, i.e., a “headlong flight,” occurred when BPA Smalldridge encountered an individual walking on the bridge who matched the description he was given (Doc. 100 at 20:10-13, 25:19-23), and after BPA Smalldridge made a U-turn, he turned on his rear emergency lights, and approached Mr. Taylor, Mr. Taylor looked over the side of the bridge and then jumped off of the bridge into the dry Santa Cruz Riverbed. Hr'g Tr. (Doc. 100) at 26:1-6. BPA Smalldridge, “[g]ot out and walked to the edge of the bridge to look down” and saw “Mr. Taylor running away to the north.” Id. at 26:8-9.
Regarding BPA Smalldridge, the analysis of reasonable suspicion regarding this factor (i.e., a driver's behavior including attempts to evade officers), combines the “turnaround” that was included in the analysis for Sergeant Gonzales, with the three instances of “evasive behavior” as described by BPA Smalldridge's testimony above; all weigh in favor of the Government as obvious attempts to evade officers. When considering Defendant's “headlong flight” after BPA Smalldridge approached him on the bridge, the caselaw indicates “headlong flight” is the consummate evasion for a finding of reasonable suspicion for the factor of evasive behavior. BPA Smalldridge knew of three instances of evasive behavior prior to approaching the individual walking on the bridge.
Accordingly, the Court finds both-i.e., the reasonable suspicion analysis for Sergeant Gonzales for this factor which includes just the “turnaround”; and the reasonable suspicion analysis for BPA Smalldridge, which includes the three instances of evasive behavior-support weighing this factor in the Government's favor regarding the driver's behavior and attempts to evade law enforcement. The last attempt to evade by jumping off the bridge would factor into the analysis for the arrest, thereafter.
(7) Aspects of the vehicle such as a station wagon with compartments
Although an out-of-state license plate, alone, is not a factor supporting reasonable suspicion, this factor viewed as part of the totality of the circumstances may contribute to reasonable suspicion, particularly given that Taylor was not the registered owner of the vehicle and the vehicle was traveling in this remote area. Cf. U.S. v. Monsisvais, 907 F.2d 987, 991 (10th Cir. 1990).
The Court finds that the aspects of the vehicle, i.e., a dark-colored Ford Edge SUV, with Washington plates, although not a station wagon, is a larger vehicle with passenger capacity that could potentially carry UIs. The Washington plates, although considered, alone, would not support a finding of reasonable suspicion, the fact that the vehicle was pulled over earlier in the day, and driven by someone who is not the registered owner, combined with an out-of-state Washington plate, supports a finding in favor of the Government for this factor, however, tenuous it may be.
(8) The appearance that the vehicle is heavily loaded.
The Court did not hear testimony or receive evidence regarding the vehicle appearing heavily loaded and therefore does not consider this as a factor for determining reasonable suspicion.
(9) Other Factors
BPA Smalldridge testified that at the intelligence briefing, the agents had pictures of the vehicle and Mr. Taylor from the stop earlier in the day. Hr'g Tr. 5/17/23 (Doc. 100) at 32:15-17. The stop previously in the day by other Border Patrol agents, “identified the driver of that vehicle [dark-colored Ford Edge SUV] as Nathaniel Taylor. Hr'g Tr. 5/17/23 (Doc. 100) at 12:9-11. BPA Smalldridge also testified that he was given a description of what the driver looked like, as, a “male, tall, dark complexion with large Afro-like hair.” Hr'g Tr. (Doc. 100) at 20:10-13. At approximately 10:40 p.m. when traveling on SR-82 BPA Smalldridge saw a male subject that matched the description of Mr. Taylor. Hr'g Tr. 5/17/23 (Doc. 100) at 25:19-23.
The Ninth Circuit addressed the use of ethnic descriptors as a factor in the Court's determination of reasonable particularized suspicion, in the case of United States v. Montero-Camargo, in pertinent part, as follows:
[W]e are confronted with the narrow question of how to square the Fourth Amendment's requirement of individualized reasonable suspicion with the fact that the majority of the people who pass through the checkpoint in question are Hispanic. [W]e conclude that, at this point in our nation's history, and given the continuing changes in our ethnic and racial composition, Hispanic appearance is, in general, of such little probative value
that it may not be considered as a relevant factor where particularized or individualized suspicion is required. Moreover, we conclude, for the reasons we have indicated, that it is also not an appropriate factor.United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000). “[T]he demographic changes we describe have been accompanied by significant changes in the law restricting the use of race as a criterion in government decision-making.” United States v. Montero-Camargo, 208 F.3d 1122, 1134 (9th Cir. 2000).
Here, BPA Smalldridge had available to him a picture of Nathaniel Taylor provided at the shift briefing, and a description he was given of the driver of the vehicle from the crash. When BPA Smalldridge discovered an individual matching the description of Nathaniel Taylor walking on the bridge, it is reasonable that BPA Smalldridge relied on both, i.e., the picture of Nathaniel Taylor provided at shift briefing, as well as, the description of a tall male with dark complexion with large Afro-like hair, in addition to several other factors such as the proximity to the scene where the suspect left, on foot, and the fact that the individual on the bridge was walking, alone, at night.
In viewing the totality of the circumstances, BPA Smalldridge's experience combined with the above facts provide objective articulable facts for reasonable suspicion to approach the individual on the bridge. Had the individual not evaded BPA Smalldridge by jumping off the bridge, BPA Smalldridge could have conducted a brief investigatory stop and asked the suspect some questions.
Regardless of an individual's ethnic characteristics, the fact that a tall male is walking on a bridge at 10:40 p.m., in a somewhat secluded area-proximately located in time and space from the scene of an accident-while agents are in the process of searching both sides of the Santa Cruz River for the suspect who fled-on foot-would raise suspicion of the individual walking, to a reasonable person.
“While ‘reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 675-76 (2000) citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581 (1989).
In viewing the ‘totality of the circumstances'-and whether law enforcement had a ‘particularized and objective basis' for suspecting legal wrongdoing, see Arvizu, 534 U.S. at 266, the Court finds that according to BPA Smalldridge's testimony, and experience, as part of the shift briefing and plan, also known as an interdiction-camera operators on two separate frequencies enabled law enforcement to follow the vehicle's movement tipping most of the factors to weigh in favor of the Government under the collective knowledge doctrine. Under the collective knowledge doctrine, particularly due to the intel at shift start identifying Defendant Taylor as the driver of the suspect vehicle, due to being pulled over earlier in the day, on December 14, 2021, BPA Smalldridge's knowledge is imputed to Sergeant Gonzales, and likewise, vice versa.
Although Sergeant Gonzales did not detain the vehicle, when he was behind the vehicle and called for assistance, Sergeant Gonzales possessed an objective particularized basis to suspect wrongdoing through the collective knowledge doctrine. The camera operators linked the vehicle's “turnaround,” to the presence of the vehicle at the cross, along with the presence of the group of UIs at the cross, and the high speed exit of the vehicle from the remote location near the border, i.e., Lochiel, combined with BPA Smalldridge's imputed knowledge-under the collective knowledge doctrine-that he received at shift change of the anticipated presence of the vehicle and connected driver in the Lochiel area, all provide Sergeant Gonzales with a sufficient objective particularized basis that criminal activity was afoot, under Sokolow, supra, as grounds to perform an investigative stop based on reasonable suspicion, notwithstanding the evasive behavior of the driver. Sergeant Gonzales possessed reasonable suspicion when following the vehicle despite the vehicle bailing out.
The ensuing events further support a finding of sufficient facts for BPA Smalldridge's eventual arrest of Taylor.
When BPA Smalldridge discovered an individual walking on the bridge, agents were in pursuit of an individual that left the scene of an accident-on foot- proximately located to the bridge. Prior to the accident, a group of people had been spotted leaving the vehicle on foot traveling north, and were tracked by law enforcement with the help of camera operators and eventually apprehended, the agents determined alienage and made arrests for being illegally present in the U.S. (Doc. 100 at 20:16-24).
In addition, under the collective knowledge doctrine, BPA Smalldridge was aware of a chain of events including, but not limited to, the “turnaround” in Lochiel, the rapid acceleration away from Sergeant Gonzales, the bailout from dropping off the UIs that were later apprehended, the flight-on foot-from scene of the crashed vehicle, and then BPA Smalldridge encountered an individual male walking, alone, on the bridge at approximately 10:40 p.m. BPA Smalldridge testified that he passed him, made a U-turn at South River Road (a.k.a. Duquesne Road on the east side of SR-82), turned on his rear emergency lights to warn oncoming traffic that he was on the bridge, and he approached Mr. Taylor. Id. at 25:25- 26:1-2. BPA Smalldridge further testified that Mr. Taylor looked over the side of the bridge and then jumped off the bridge into the dry Santa Cruz Riverbed. Id. at 26:4-6.
Given the proximity to the crashed vehicle, and the individual male was walking alone at night, BPA Smalldridge possessed objective particularized indices of criminal activity afoot and a reasonable suspicion to stop and question the individual. However, the individual decided to perform the consummate act of evasion and commenced headlong flight by jumping from the bridge to the dry riverbed below. Illinois, 528 U.S. at 119 citing Brignoni-Ponce, 422 U.S. at 885. Ultimately, BPA Smalldridge called for assistance and found Defendant Taylor a few hundred yards north located in the brush on the north side of the South River Road bridge and once they had him surrounded, he surrendered, and they took him into custody and BPA Smalldridge advised Defendant Taylor that he was under arrest for 1324. Hr'g Tr. 517/23 (Doc. 100) at 26:17-22, 26:25-27:1-2, 27:10.
BPA Smalldridge's reasonable suspicion to stop combined with the suspect's headlong flight provide grounds for Defendant Taylor's arrest.
The Court finds based on the above, denial of Defendant's motion is appropriate.
V. CONCLUSION
Based on the totality of the circumstances, the collective knowledge doctrine, and the Court's consideration of the factors under Brignoni-Ponce, supra, inter alia, the Court finds articulable grounds sufficient to support a founded suspicion to make an investigatory stop were it not for Defendant's headlong flight. When these factors are considered in light of the officers' experience, they support a finding of reasonable suspicion.
VI. RECOMMENDATION
For the reasons stated above, the Court recommends that the District Court deny the Defendant's Motion to Suppress Evidence (Illegal Arrest) (Doc. 87).
Pursuant to 28 U.S.C. §636(b) and Federal Rules of Criminal Procedure, Rule 59(b)(2), any party may serve and file written objections within fourteen (14) days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. If any objections are filed, the parties should use the following case number: CR-22-00370-RM.
Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See Fed. R. Crim. P., Rule 59.