U.S. v. Reyes-Bosque

• Decision Date: 21 November 2006
• Docket Number: No. 05CR2239 BEN.,05CR2239 BEN.
• Citation: 463 F.Supp.2d 1138
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Emilio REYES-BOSQUE (1), Jose Luis Ramirez-Esqueda (2), Jose Angel Rivas-Pozos (3), Defendants.

463 F.Supp.2d 1138

UNITED STATES of America, Plaintiff, v. Emilio REYES-BOSQUE (1), Jose Luis Ramirez-Esqueda (2), Jose Angel Rivas-Pozos (3), Defendants.

No. 05CR2239 BEN.

United States District Court, S.D. California.

November 21, 2006.

COPYRIGHT MATERIAL OMITTED

Carol C. Lam, United States Attorney, Andrew G. Schopler and Mark R. Rehe, Assistant United States Attorneys, San Diego, CA, for plaintiff United States of America.

Steven L. Barth, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant Emilio Reyes-Bosque.

Timothy A. Scott, Law Office of Timothy A. Scott, San Diego, CA, for defendant Jose Luis Ramirez-Esqueda.

Anthony E. Colombo, Jr., Law Office of Anthony E. Colombo, Jr., San Diego, CA, for defendant Jose Angel Rivas-Pozos.

BENITEZ, District Judge.

I. INTRODUCTION

Defendant Emilio Reyes-Bosque ("Reyes-Bosque") moves to suppress evidence and statements collected by United States Border Patrol Agents on December 2, 2005 when they arrested him along with defendants Jose Luis Ramirez-Esqueda ("Ramirez-Esqueda") and Jose Angel Rivas-Pozos ("Rivas-Pozos") (collectively, "defendants"). The defendants are charged with six counts each of "bringing in aliens for financial gain" in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and aiding and abetting in violation of 8 U.S.C. § 2; and "harboring illegal aliens" in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and aiding and abetting in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(II). Defendants Ramirez-Esqueda and Rivas-Pozos join the motions to suppress. On June 23, 2006, August 4, 2006 and October 26, 2006, an evidentiary hearing was held where the Court heard the testimony of several witnesses, as well as extensive arguments from counsel for the government and the defendants.

II. FACTS

On December 2, 2005, Border Patrol Agents observed two men and one woman walking on Main St. in Brawley, California. The individuals appeared to be lost and were walking aimlessly. When they saw the Border Patrol Agents, they turned in the opposite direction. The agents followed them to Garcia's Market, where the two men sat outside while the woman went inside. The agents identified themselves to the men, who then went inside the market. The agents followed them in, where they again identified themselves in English and in Spanish and asked the men and the woman to step outside. Once outside, the agents questioned the individuals about their documentation and whether they were here legally. The three admitted they were not here legally, and they were Mexican citizens. The agents then arrested them.

Once they were in the agents' vehicle, the woman informed the agents that they had escaped from a house a few miles away, and that there were approximately 20 more people there. The woman directed the agents to the house where she indicated they had been held, located at 362 Wilson Avenue in Brawley. When they arrived, she informed the agents that she didn't want to get out of the car because she was scared. The agents called for backup, and when the additional agent arrived, they drove around so they would have a view of the residence at 362 Wilson Ave. When they had a view of the residence from the car, the woman told the agents that an individual outside the residence was the caretaker of the apartment from which they had escaped. The individual she pointed out was defendant Rivas-Pozos.

Agent Martinez approached Rivas-Pozos, identified himself in English and in Spanish, and began to question him. Rivas-Pozos informed Agent Martinez that he lived in El Centro, California, but provided an LD. with the address 362 Wilson Avenue, arousing the agent's suspicion. Upon further questioning, Rivas-Pozos told the agent that he was visiting his godfather at 362 Wilson Avenue, Unit 3. At that point, Agent Perez, who had arrived as backup, accompanied Rivas-Pozos to Unit 3 to verify his story, while the other agents went to Unit 4 where they had been informed the aliens were being held.

At Unit 3, Rivas-Pozos and Agent Perez knocked on the door repeatedly until a woman answered the door. Agent Perez identified himself, and told her he was trying to verify Rivas-Pozos's story. He then asked the woman for identification, in response to which she produced what the agent believed to be a Mexican border card. He inquired whether she had immigration documents and she admitted that she did not. She told Agent Perez that her husband, defendant Reyes-Bosque, was inside the house, and he then came to the door. When Agent Perez questioned Reyes-Bosque about Rivas-Pozos, Reyes-Bosque informed him that Rivas-Pozos was a friend, not his godson. Agent Perez asked Reyes-Bosque for identification and then immigration documents, in response to which he provided a California driver's license and a valid immigration document. Upon receipt of the immigration documents, Agent Perez performed a record check and was informed that Border Patrol had stopped vehicles in the past that had taken them to 362 Wilson Avenue, and the occupants of those vehicles said they had made arrangements with a man named Emilio.

Agent Perez then informed Reyes-Bosque that he was arresting his wife because she lacked immigration documents. Reyes-Bosque's wife had recently given birth to the couple's son. Agent Perez then told her that if she wished to take the baby with her, he would have to search the house to make sure she wasn't going to grab any weapons. Otherwise she would have to leave the baby with her sister, who was also in the house. She decided to take the baby, and Agent Perez proceeded to search the house. He discovered defendant Ramirez-Esqueda in one of the bedrooms, covered up in the bed. When asked for I.D., Ramirez-Esqueda produced a Mexican passport with a valid visa. In response to questioning, he told Agent Perez he was a family friend and was just visiting. Agent Perez instructed him to stay put, performed a record check, and discovered that Ramirez-Esqueda had been arrested by Border Patrol in 2001 for alien smuggling.

Once Reyes-Bosque's wife collected her belongings, Agent Perez took Ramirez-Esqueda outside and began questioning him again. Ramirez-Esqueda repeated that he was just visiting, then after Agent Perez brought up his previous arrest and asked if he was smuggling again, Ramirez-Esqueda admitted that he worked for "him", and that he got paid $100 to check if the checkpoint was up or down.

At the same time that Agent Perez was at Unit 3 with Rivas-Pozos, Agents Martinez and Rodriguez approached Unit 4, where they understood the aliens to have escaped from, and where the other aliens were being held. Agent Martinez positioned, himself at the back of the house, while Agent Rodriguez proceeded to the front where he knocked and identified himself as a border patrol agent in English and in Spanish. When Agent Rodriguez knocked at the front door, Agent Rodriguez observed a small window in the back open and a man pop his head out, as if he was trying to escape. As soon as the individual observed Agent Martinez there, he withdrew and shut the window. Agent Martinez informed Agent Rodriguez of what he had just seen, after which Agent Rodriguez entered the premises, identified himself, and Agent Martinez followed him in. The agents questioned the individuals in Unit 4 and ascertained that they were aliens, then did a room to room sweep to gather everyone into one area while awaiting transport. While Agent Martinez was processing the aliens, another agent searched Unit 4 and seized a ledger, a list of what he suspected to be alien names, California maps and a paper document that appeared to be instructions for divers of aliens.

The defendants were transported back to the Border Patrol station, where they were read their Miranda rights in Spanish.

III. DISCUSSION

Defendants ask the Court to suppress the evidence and statements resulting from the searches of Units 3 and 4 at 362 Wilson Avenue. Reyes-Besque also asks the Court to suppress any fruits of his arrest on the basis that the agents lacked probable cause when they arrested him.

A. Unit 4

1. Standing

To invoke the protection of the Fourth Amendment, a person must show that he or she has a legitimate expectation of privacy. A legitimate expectation of privacy encompasses two requirements (1) the individual's subjective expectation that his activities would be private; and (2) that this expectation is one that society recognizes as reasonable. United States v. Bautista, 362 F.3d 584, 589 (9th Cir.2004) (citing United States v. Nerber, 222 F.3d 597, 599 (9th Cir.2000)). This Court has been skeptical that any defendant actually has standing to assert a Fourth Amendment violation with regard to Unit 4. Prior to the filing of supplemental briefing, of the three defendants, only Rivas-Pozos made any claim of an expectation of privacy in Unit 4. In response to that claim, the Court made substantial efforts to elicit from Rivas-Pozos the basis for his assertion of standing. No offer of testimony was made, and only after counsel engaged in extensive argument would Rivas-Pozos agree to submit a sworn declaration of the basis for his assertion of standing. The Court bent over backwards to allow Rivas-Pozos to make his best claim of standing, in spite of his refusal to support the claim in any way that could be cross-examined by the government.

Rivas-Pozos argues that he stayed in Unit 4 from time to time, that his California identification listed his address as 362 Wilson Avenue, and that at some point prior to his arrest he obtained a cable subscription at that address. Additionally, he argues that the material witness identified him as the "caretaker" of Unit 4 when she and the other aliens were being held there. However, at the time of the search, he informed the Border Patrol Agents that he lived in El Centro, and was staying with his godfather in Unit 3, not Unit 4. Putting aside his conflicting claims about where he was staying,...