U.S. v. Hernandez–lopez

Decision Date07 December 2010
Docket NumberNo. CR 10–0769 JB.,CR 10–0769 JB.
Citation761 F.Supp.2d 1172
PartiesUNITED STATES of America, Plaintiff,v.Roberto Javier HERNANDEZ–LOPEZ, Defendant.
CourtU.S. District Court — District of New Mexico


Kenneth J. Gonzales, United States Attorney, Norman Cairns, Assistant United States Attorney, Albuquerque, NM, for Plaintiff.Brian A. Pori, Assistant Federal Public Defender, Albuquerque, NM, for Defendant.


JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Suppress, filed April 28, 2010 (Doc. 21) (“Motion”). The Court held an evidentiary hearing on August 13, 2010. The primary issues are: (i) whether United States Border Patrol Agent Rodolfo Gutierrez, Jr. had reasonable suspicion to stop the Dodge sedan in which Defendant Roberto Javier Hernandez–Lopez was a passenger; and (ii) whether Gutierrez was justified in detaining Hernandez–Lopez. The Court grants Hernandez–Lopez' Motion, because it finds Gutierrez did not have reasonable suspicion to stop the Dodge sedan in which Hernandez–Lopez was a passenger.


Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d) (“When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269–70 (10th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269.

1. Border Patrol agents have jurisdiction to enforce the Immigration and Nationality Act of 1952, codified in Title 8 of the United States Code, and the Controlled Substances Act, codified in sections of Title 21. See 8 U.S.C. § 1357; 8 CFR § 287.8(c)(2)(i); Transcript of Hearing at 55:13–56:2 (taken August 13, 2010) (Cairns, Gutierrez) (“Tr.”); id. at 118:7–11 (Pori, Gutierrez); id. at 127:19–128:6 (Cairns, Mechem).1

2. Some motorists are aware that Border Patrol agents do not issue citations for speeding or other traffic violations. See Tr. at 61:14–25 (Gutierrez); id. at 101:11–13 (Pori, Gutierrez).2

3. Vehicles traveling east Interstate 10 from California and Arizona may not encounter a Border Patrol checkpoint until reaching the checkpoints at Deming, Las Cruces, Hatch, or Truth or Consequences, New Mexico. See id. 139:5–142:13 (Cairns, Mechem).

4. Interstate 25 is a major artery for traffic bound from Juarez, Mexico to parts north in the United States. See U.S. Department of Homeland Security Form, Event No. TCN1002000006 at 2 (dated February 13, 2010), filed April 28, 2010 (Doc. 21–1) (“Gutierrez' Report”).

5. I–25 is a corridor for smugglers of contraband, illegal aliens, smugglers of illegal aliens, and the law-abiding, motoring public. See Gutierrez' Report at 2; Tr. at 57:10–12 (Gutierrez).

6. The vast majority of people traveling on I–25 are United States citizens who are, at the time of their travels, law abiding. See Response at 6 (conceding this fact); Motion at 9–10; Gutierrez' Report at 2; Tr. at 57:10–12 (Gutierrez).

7. Gutierrez has been a Border Patrol Agent for three years and has participated in arrests involving illegal aliens, including approximately twenty arrests on I–25. See Tr. at 57:22–58:6 (Cairns, Gutierrez); id. at 93:11–14 (Pori, Gutierrez).

8. On February 13, 2010, Gutierrez was on roving patrol in his marked Border Patrol vehicle monitoring traffic in the north bound lane of I–25 near Truth or Consequences. See Gutierrez' Report at 2; Tr. at 56:3–22 (Cairns, Gutierrez); id. at 61:12 (Gutierrez).

9. The area which Gutierrez was patrolling was within 100 air-miles of the international border with Mexico. See Tr. at 186:18–23 (Cairns, Mechem).

10. Gutierrez was parked on a berm observing traffic beside I–25 at approximately mile marker 67. See Gutierrez' Report at 2; Tr. at 59:17–19 (Cairns, Gutierrez); id. at 60:17–22 (Cairns, Gutierrez).

11. The berm is concealed from approaching traffic. See Tr. at 128:23–129:19 (Cairns, Mechem)

12. Drivers were unable to see the Border Patrol unit “until the last minute [when a driver would] see the Border Patrol agent sitting there when [the driver] c[a]me around the corner.” Id. at 129:3–4 (Mechem).

13. Gutierrez had been on patrol for approximately two hours and had observed hundreds of cars pass by when, at approximately 12:15 p.m., he noticed a Dodge four-door sedan, bearing a New Mexico license plate, pass his location. See Gutierrez' Report at 2; Tr. at 59:17–19 (Cairns, Gutierrez); id. at 60:17–22 (Cairns, Gutierrez); id. at 81:13–82:5 (Pori, Gutierrez).

14. The Dodge sedan was not heavily loaded. See Tr. at 106:1–3 (Pori, Gutierrez).

15. “A Dodge sedan is not the type of vehicle frequently used by smugglers because of its size, [and] the size of its gas tank....” Response at 8. Accord Motion at 10; Tr. at 196:6–11 (Cairns).

16. As the Dodge sedan passed his location, Gutierrez observed the occupants for a few seconds with his naked eyes. See Tr. at 89:17–90:1 (Pori, Gutierrez).

17. The two occupants seated in the front seat looked straight ahead and sat upright as they passed Gutierrez. See Gutierrez' Report at 2; Tr. at 60:22–61:2 (Cairns, Gutierrez); id. at 62:6–13 (Cairns, Gutierrez).

18. Gutierrez found this behavior suspicious, because most motorists would usually acknowledge his presence, and some would wave at him as they passed. See Gutierrez' Report at 2; Tr. at 61:9–17 (Cairns, Gutierrez) (“I was in marked Border Patrol unit and usually as people pass my location usually acknowledge my presence. Some wave at me some don't ....”); id. at 82:6–8 (Pori, Gutierrez); id. at 84:15–22 (Pori, Gutierrez).

19. Gutierrez also found this behavior suspicious, because most motorists usually have a relaxed posture or a bit of a slouch. See Tr. at 87:22–19 (Pori, Gutierrez).

20. Gutierrez did not stop all of the vehicles of people who do not wave at him. See id. at 84:23–24 (Pori, Gutierrez).

21. Gutierrez did not stop the Dodge sedan because the occupants failed wave at him. See id. at 85:7 (Gutierrez) (“I did not perform the stop for that reason.”).

22. Gutierrez left his observation position to follow the Dodge sedan on I–25. See id. at 63:5–9 (Cairns, Gutierrez).

23. As Gutierrez “got closer to the vehicle” in the same lane, but more than two car lengths behind the Dodge sedan, the Dodge sedan wavered on the road, swerving between the lanes and crossing over the fog line. Tr. at 63:10–17 (Cairns, Gutierrez). See Gutierrez' Report at 2; Tr. at 104:5–11 (Pori, Gutierrez); id. at 131:24–132:5 (Cairns, Mechem).

24. When Gutierrez first caught up with the Dodge sedan, the Dodge sedan was in the right lane, and Gutierrez was in the left passing lane. See Tr. at 97:13–99:21 (Pori, Gutierrez).

25. Gutierrez came within a car length of the Dodge sedan, at which time the Dodge sedan reduced its speed as though the driver wished the Border Patrol agent to pass. See Gutierrez' Report at 2; Tr. at 65:20–25 (Cairns, Gutierrez); id. at 97:13–99:21 (Pori, Gutierrez).

26. Gutierrez did not pass the Dodge sedan, but decelerated in the fast lane until the Dodge sedan was sufficiently far in front of him that Gutierrez was able to pull behind it, and then he changed lanes to fall in behind the Dodge sedan in the slow lane. See Tr. 99:6–23 (Pori, Gutierrez).3

27. From the time Gutierrez caught up with the Dodge sedan until he stopped it, he trailed the Dodge sedan by one or two car lengths. See id. at 65:14–17 (Cairns, Gutierrez); id. at 95:18–96:17 (Pori, Gutierrez).

28. Safe driving standards provide that drivers should follow no closer than one car length for every ten miles-per-hour at which they are traveling. See id. at 96:18–97:12 (Pori, Gutierrez).

29. The Dodge sedan was traveling approximately seventy-five miles-per-hour when Gutierrez was following dangerously close behind it. See id. at 88:20–89:9 (Pori, Gutierrez); id. at 132:12–13 (Mechem).

30. As he followed the Dodge sedan, Gutierrez ran a registration check, a stolen-vehicle check, and a seventy-two-hour-lane check on the vehicle to see of the Dodge sedan had crossed the border in the previous 72 hours. See Gutierrez' Report at 2; Tr. at 66:6–11 (Cairns, Gutierrez); id. at 91:14–17 (Pori, Gutierrez).

31. Gutierrez discovered that the Dodge sedan was not stolen, that it had not crossed the international border within the last seventy hours, and that it was registered to Misty and/or Edelberto Hernandez from Deming. See Gutierrez' Report at 2; Tr. at 66:12–15 (Cairns, Gutierrez); id. at 91:23–93:2 (Pori, Gutierrez).

32. Gutierrez' experience leads him to believe that Deming is a major staging area for illegal aliens entering the United States, and he was “a little suspicious” of the vehicle being registered to a Deming address. See Gutierrez' Report at 2; Tr. at 66:21–67:2 (Cairns, Gutierrez); id. at 67:12–25 (Cairns, Gutierrez); id. at 93:8–10 (Pori, Gutierrez).

33. Gutierrez acknowledges that many areas in the southern part of New Mexico are major smuggling routes, but he is not suspicious of every vehicle originating from New Mexico's southern region. See Tr. at 93:19–95:1 (Pori, Gutierrez).

34. Gutierrez had “no...

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