U.S. v. Juarez-Torres

• Citation: 441 F.Supp.2d 1108
• Decision Date: 21 July 2006
• Docket Number: No. CR-05-2271 MV.,No. CR-05-2270 MV.,CR-05-2270 MV.,CR-05-2271 MV.
• Parties: UNITED STATES of America, Plaintiff, v. Cesario JUAREZ—TORRES and Teresa Betancourt—Perez Defendant.
• Court: U.S. District Court — District of New Mexico

441 F.Supp.2d 1108

UNITED STATES of America, Plaintiff, v. Cesario JUAREZ—TORRES and Teresa Betancourt—Perez Defendant.

No. CR-05-2270 MV.

No. CR-05-2271 MV.

United States District Court, D. New Mexico.

July 21, 2006.

Phillip G. Sapien, Esq, Sapien Law LLC, Albuquerque, for Cesario Juarez—Torres (1) aka Byron Garcia—Ochoa aka Agustin Moreno aka Julio Zambrano—Torres, defendant.

James D. Tierney, Esq., William J. Pflugrath, Esq, U.S. Attorney's Office, District of New Mexico, Albuquerque, for U.S. Attorneys.

John F. Robbenhaar, Esq, Albuquerque, for Teresa Betancourt—Perez (1) aka Martha Garcia—Garza, defendant.

William J. Pflugrath, Esq, U.S. Attorney's Office, District of New Mexico, Albuquerque, for U.S. Attorneys.

MEMORANDUM OPINION AND ORDER

VASQUEZ, District Court Judge.

THIS MATTER comes before the Court on Defendants' Motion to Suppress [Doc. No. 19], filed November 9, 2005 and the United States' Motion for Fingerprint Exemplars [Doc. No. 24], filed January 4, 2006.¹ The Court, having considered the motion, briefs, relevant law and being otherwise fully informed, finds that the Defendants' motion is well taken and will be GRANTED, and that the United States' motion is not well taken and will be DENIED.

BACKGROUND

On June 28, 2005, Defendants Cesario Juarez—Torres ("Defendant Juarez") and Teresa Betancourt—Perez ("Defendant Betancourt") were pulled over by border patrol agents, approximately 12 miles west of Albuquerque, New Mexico on 1-40, near mile marker 145. Senior Patrol Agent Oscar Duenez, along with some other border patrol agents, had set up a "static observation post" at this location to look for passing vehicles that might be transporting illegal aliens. The "static observation post" was approximately 250 miles from the border. The government states that the observation post was set up at that location because Department of Homeland Security Intelligence indicates that 1-40 is a known alien smuggling corridor.

According to border patrol agents, they had reasonable suspicion that the vehicle may have been engaged in alien smuggling. Specifically, the agents assert that the following factors supported their suspicion: characteristics of the area of the stop, previous experience of the agent with alien traffic, driver's and passengers' response to the border patrol observation post, aspects of the vehicle, appearance of vehicle as heavily loaded, cargo inconsistency ethnicity of occupants and general occupant relationships.

Once the Defendants were pulled over by the border patrol agents, they admitted that they were Mexican nationals in the United States illegally and they were arrested.

On October 12, 2005, a one count indictment was filed against Defendant Betancourt, charging her with illegal reentry into the United States subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1) and (a)(2) and 8 U.S.C. § 1326(b)(2). Also, a one count indictment was filed against Defendant Juarez, charging him with illegal reentry into the United States subsequent to a conviction for a felony, in violation of 8 U.S.C. §§ 1326(a)(1) and (a)(2) and 8 U.S.C. § 1326(b)(1).

DISCUSSION

The issue now before this Court is what evidence, if any, may the government rely on at trial to establish Defendants' identity and the fact of their illegal presence in the United States. Defendants argue that all evidence of their identity, including fingerprints, statements, purported immigration file, and all observation of their presence in the United States, obtained as a result of their stop by border patrol agents on June 29, 2005, should be suppressed. The government argues that such evidence should not be suppressed and also moves this Court to compel Defendants to submit fingerprint exemplars for the purpose of substantiating Defendants' identity.

I. Defendants' Motion to Suppress

At international borders and their functional equivalents, the protections of the Fourth Amendment are not applicable. United States v. Venzor-Castillo, 991 F.2d 634, 636-37 (10th Cir.1993) (citing Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 69 L.Ed. 543 (1925)); see also, Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) (holding that stop by a roving patrol twenty miles away from border was not "functional equivalent" and was, therefore, subject to Fourth Amendment). In fact, "Border searches from before the adoption of the Fourth Amendment, have been considered to be `reasonable' by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause." Venzor-Castillo, 991 F.2d at 637 (quoting United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977)).

However, beyond the border and its functional equivalent, the fundamental protections of the Fourth Amendment are implicated and law enforcement may make an investigatory stop only if an officer has reasonable suspicion that "criminal activity may be afoot." United States v. Quintana-Garcia, 343 F.3d 1266, 1270 (10th Cir. 2003); United States v. Monsisvais, 907 F.2d 987, 989-90 (10th Cir.1990); see also, Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). If the stop becomes more than a mere investigatory stop or a search ensues, there must be probable cause. United States v. Watson, 423 U.S. 411, 417-24, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). While the border patrol is subject to regulations that set a 100 air mile limit, a stop made more than 100 air miles from the border is not a violation of a person's Fourth Amendment rights, so long as the reasonable suspicion requirement is met. United States v. Leyba, 627 F.2d 1059, 1065 (10th Cir.1980) (dictum).

An officer's "reasonable suspicion" must be based on the totality of circumstances. Brignoni-Ponce, 422 U.S. at 885 n. 10, 95 S.Ct. 2574. Although the Court may not make one factor determinative in a "totality of circumstances" analysis, the Court may assign different weights to individual factors. See United States v. Little, 60 F.3d 708, 712 (10th Cir.1995); Venzor-Castillo, 991 F.2d at 638-39. The greater the distance from the border, the more distance from the border may weigh against a finding of "reasonable suspicion" when the Court engages in a "totality of circumstances" analysis. See, e.g., id. This was the case in Venzor-Castillo, where the court assigned greater weight to the distance from the border because the distance was so great. Specifically, the Venzor-Castillo court stated that "the more attenuated the international border becomes, the greater the significance distance assumes in the equation used to measure the power to stop only on reasonable suspicion when the officer has no knowledge whatever about the point of origin of a particular traveler's route." Id. at 639.

The government argues that the methodology used in Venzor-Castillo has been soundly rejected by the Supreme Court in United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The government summarizes its objection to Venzor-Castillo by stating that "not only did the court fail to apply the totality of circumstances in that case or assess other factors, but it also failed to recognize the real hypothesis for an investigatory stop is the reasonable suspicion to believe that criminal activity may be afoot." Govt's Resp. 27-28. The government asserts that "It must be concluded that Venzor-Castillo is no longer useful precedent for this circuit." Id. at 28. In fact, this Court must conclude no such thing. Venzor-Castillo is still good law in this circuit and, contrary to the government's assertion, it is consistent with the Supreme Court's Arvizu instruction that "When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the `totality of the circumstances' of each case ...." Arvizu, 534 U.S. at 273, 122 S.Ct. 744.

The Venzor-Castillo opinion indicates that the court did look at the totality of circumstances. While the court did give greater significance to the distance from the border in its analysis, it made clear that "if the officer has an articulable basis for believing that [the point of origin of a traveler's route] was across an international point, distance will have far less significance in judging the reasonableness of the officer's decision." Venzor-Castillo, 991 F.2d at 639. This statement by the court indicates that the court did not consider distance to be a determinative factor and that the court agreed that other factors may form a basis for reasonable suspicion in some cases even if the stop is a significant distance from the border.

Moreover, the finding in Venzor-Castillo is completely consistent with the finding in Arvizu that, in a totality of circumstances analysis, "some factors are more probative than others." Arvizu, 534 U.S. at 277, 122 S.Ct. 744. It makes absolute sense that when the basis for a stop by law enforcement is suspicion that the crime of illegal entry has occurred, the distance from the border is a more probative factor. I conclude that this Court is guided by the principal that the basis for an officer's reasonable suspicion must be based on the totality of the circumstances and Venzor-Castillo is instructive precedent on this point.

Venzor-Castillo is factually similar to the case at hand. In Venzor-Castillo, three border patrol agents were conducting a patrol approximately 235 miles from the border. The three border patrol agents were standing next to a marked border patrol car along the edge of Highway 36. The most direct route from the border to the area of the highway being patrolled required passage through thirteen towns or cities. Additionally, the relevant section of the highway was a segment of a highway...