Opinion
No. CR 12-1240-TUC-CKJ (BGM)
03-25-2013
UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO ANDRES VALENCIA, Defendants.
ORDER
On February 8, 2013, Magistrate Judge Bruce G. Macdonald issued a Report and Recommendation (Doc. 44) in which he recommended that the Motion to Suppress (Doc. 33) filed by Francisco Andres Valencia ("Valencia") be denied. The Report and Recommendation notified the parties that they had fourteen days from the date of being served with the copy of the Report and Recommendation to serve and file any objections. Valencia has filed an objection (Doc. 46) and the government has filed a response (Doc. 49).
The Court has reviewed the Motion to Suppress (Doc. 33), the response (Doc. 38), the Report and Recommendation (Doc. 44), the exhibits, the transcript of the hearing held before the magistrate judge, the Objections (Doc. 46), and the response (Doc. 49). The standard of review that is applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472-73, 88 L.Ed.2d 435 (1985). However, the Court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction." Fed. R. Civ. P. 72(b)(3); see also 288 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.").
The Report and Recommendation states that Valencia is charged with one count of knowingly and intentionally possessing with intent to distribute approximately 112 kilograms of marijuana in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii). However, Valenica is alleged to have violated 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii).
Testimony of Agent DeBaun Regarding Evasive Driving
Valencia objects to consideration of Valencia's evasive driving as a factor supporting reasonable suspicion to justify the stop of Valencia's vehicle. Specifically, Valencia points out that, although Agent Todd DeBaun ("DeBaun") testified that the evasive driving was the final piece of information to justify the stop of Valencia's vehicle, DeBaun did not include this information within his report. The government argues that, because Valencia did not object to the magistrate judge's determination that DeBaun's testimony was credible, this Court is not required to review de novo the magistrate judge's finding of credibility. However, Valencia's objection implicitly raises the credibility of DeBaun's testimony and the Court finds it appropriate to review de novo.
The government argues that the agent's explanation for not including in his report every fact known to him at the time is credible. However, a review of the transcript of the hearing shows that the agent did not provide an explanation for not including every fact known to him in his report. See Doc. 43. Rather, DeBaun simply acknowledged that the report did not include all of the details. Hearing Transcript 1/11/2013, Doc. 43, pp. 68-69, 82-83. However, DeBaun also testified that referring to the information in the report would help to refresh his recollection about the specific facts in this case. Id., at 20. See e.g. United States v. Griffith, 762 F.Supp.2d 1179, 1183 (D.Ariz. 2010) ("The officers agreed that the purpose of writing a report post-incident is to summarize the important aspects of the investigation so they may later use a report to refresh their recollection.").
"While it is reasonable that not all the details of an investigation be contained in a report, factors that the officers considered in deciding to stop a vehicle are critical to an investigation." Id. In this case, DeBaun included facts in his report that the driver of the vehicle was trying to get around the two vehicles in front of him. Tr., pp. 82-83. In other words, DeBaun included sufficient detail to refresh his recollection of the details of the incident. The Court finds the failure of DeBaun to include further details in his report does not warrant a determination that DeBaun's testimony was not credible. Rather, the Court agrees with the magistrate judge's finding that DeBaun's testimony was credible.
Reliance on Agent's Experience in Upholding the Stop
Valencia objects to the magistrate judge's reliance on the experience of DeBaun in upholding the stop. Valencia argues that the experience factor in considering the totality of circumstances is limited and asserts that "'[a]n officer's experience may furnish the background against which the relevant facts are to be assessed as long as the inferences he draws are objectively reasonable; but 'experience' does not in itself serve as an independent factor in the reasonable suspicion analysis." Objections, Doc. 46, p. 2, quoting United States v. Montero-Camargo, 208 F.3d 1122, 1131 (9th Cir. 2000).
The magistrate judge stated:
Under the totality of the circumstances in this case, [] DeBaun possessed reasonable suspicion to stop Defendant. Although each fact in the circumstances previously described, taken individually, may appear innocent, it had significance to a trained law enforcement officer.Report and Recommendation, Doc. 44, p. 6.
As the Ninth Circuit has stated:
Often, the data in the record seems equally capable of supporting an innocent explanation as a reasonable suspicion. In such cases, the Supreme Court directs us to give due weight to the factual inferences drawn by law enforcement officers, United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), and has noted that officers may make reasonable deductions and inferences based on their experience and specialized training that "might well elude an untrained person." Id.United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007). DeBaun was entitled to make reasonable deductions and inferences, based on his 12 years of experience and his specialized training. Contrary to Valencia's assertions, the magistrate judge gave due weight to the factual inferences drawn by DeBaun.
at 273, 122 S.Ct. 744 (internal quotation marks omitted). In this vein, the Court has emphasized that even when factors considered in isolation from each other are susceptible to an innocent explanation, they may collectively amount to a reasonable suspicion. Id. at 274, 122 S.Ct. 744.
Indeed, as argued by the government, this case does not present a situation where the inferences drawn by the agent were not supported by evidence. Nicacio v. INS, 797 F.2d 700, 705 (9th Cir. 1986); United States v. Jimenez-Medina, 173 F.3d 752, 754 (9th Cir. 1999). Rather, the Court finds that in determining whether DeBaun "had reasonable suspicion, due weight must be given, not to his inchoate and unparticularized suspicion, or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience[ ]." United States v. Crasper, 472 F.3d 1141, 1147 (9th Cir. 2007) (internal citations and quotations omitted). Contrary to Valencia's assertion, the Court finds that the agent did not have such a limited amount of objective facts such that DeBaun's experience becomes disproportionally important. Rather, the Court agrees with the magistrate judge's summary of the totality of circumstances, including reasonable inferences, that support a finding that DeBaun possessed reasonable suspicion that criminal activity may be afoot. See Report and Recommendation, Doc. 44, pp. 6-7.
Accordingly, after an independent review, IT IS ORDERED:
1. The Report and Recommendation (Doc. 44) is ADOPTED.
2. The Motion to Suppress (Doc. 23) is DENIED.
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Cindy K. Jorgenson
United States District Judge