United States v. Castro

• Citation: 929 F.Supp.2d 1140
• Decision Date: 14 March 2013
• Docket Number: No. CR 12–3207 RB.,CR 12–3207 RB.
• Parties: UNITED STATES of America, Plaintiff, v. John Richard CASTRO, Defendant.
• Court: U.S. District Court — District of New Mexico

929 F.Supp.2d 1140

UNITED STATES of America, Plaintiff,

v.John Richard CASTRO, Defendant.

No. CR 12–3207 RB.

United States District Court, D. New Mexico.

March 14, 2013.

Mick I.R. Gutierrez, United States Attorney's Office, Las Cruces, NM, for Plaintiff.

Cesar Pierce–Varela, Las Cruces, NM, for Defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

ROBERT BRACK, District Judge.

THIS MATTER is before the Court on Defendant's Motion to Suppress Evidence and Statements, filed January 24, 2013. (Doc. 36). Having carefully considered the submissions of counsel, and the evidence adduced at the March 4, 2013 hearing, and being otherwise fully advised, the Court GRANTS Defendant's motion.

Findings of Fact

Federal Rule of Criminal Procedure 12(d) provides that when factual issues are involved in deciding a motion, the Court must state its essential findings on the record. The Court makes the following factual findings based on the evidence adduced at the evidentiary hearing, including the testimony from United States Border Patrol Agents Jonathan Navar and Cesar Flores and Homeland Security Investigations Special Agent David Ferg.

1. On September 1, 2012, Agent Navar, a United States Border Patrol Agent with over five years of experience, all of which has been in the Deming, New Mexico area, seized and ultimately arrested Defendant John Richard Castro.

2. The facts leading to Defendant's arrest are somewhat hazy, and the truth is further obscured by Agent Navar's cut-and-paste report containing self-proclaimed factual inaccuracies and the decidedly deficient presentation at the evidentiary hearing, as described herein. The United States asks this Court to take Agent Navar at his word and to believe his testimony at the hearing, which included purported inconsistent and incriminatory statements by the Defendant. However, none of those inconsistencies or incriminating statements were included in Agent Navar's report. The Court does not believe that a trained law enforcement officer would omit a Defendant's inconsistent or incriminating statement from his report. Additionally, the evidentiary hearing occurred six months after the date of Defendant's arrest. Over the course of those six months, this Court has no doubt that Agent Navar has encountered many citizens and individuals in the course of his work as a Border Patrol Agent, and the Court doubts Agent's Navar's ability to recollect the Defendant's precise words and the timing of those words when nothing about those statements was written down. The Court, therefore, finds Agent Navar's testimony credible solely to the extent that it is consistent with his report ¹ or the testimony of Agent Flores.

3. On September 1, 2012, Agent Navar was working at a tactical checkpoint on Highway 180 between Deming and Silver City, New Mexico. The checkpoint was located approximately fifty miles from the United States–Mexico border. September 1 was the third day of the checkpoint's operation, and those three days were the first time that the Border Patrol had manned the tactical checkpoint in 2012. Agent Navar provided no information regarding the structure of the checkpoint, the number of agents at the checkpoint, the visibility of the checkpoint to northbound drivers, or any warnings deployed relating to the checkpoint. Agent Navar testified that Highway 180 is a road used to circumvent permanent checkpoints on Interstate 25, Interstate 10, and Highway 26. He testified that legitimate traffic uses the road as well. Indeed, on the day in question, Agent Navar testified that the northbound traffic was extremely heavy due to a bear hunt in Silver City. Just before Agent Navar stopped Defendant, he testified that northbound traffic was so heavy that he could not perform a U-turn when he was a short distance south of the checkpoint.

4. Around 1:40 that afternoon, Agent Navar observed a single vehicle pulled over about a mile south of the checkpoint. Agent Navar did not identify the color, make or model of the vehicle. Agent Navar advised other agents at the checkpoint that there was a vehicle pulled over. As soon as he pointed out the vehicle, it performed a U-turn. Agent Navar then saw two other cars do a U-turn. Agent Navar did not explain whether this was the final opportunity for a car to turn to avoid the checkpoint, nor did he testify regarding whether the cars could, or should, have been aware of the upcoming checkpoint. Agent Navar did not identify the make or model of any of the cars, though he ultimately identified one of the vehicles as a purple Dodge Ram.

5. After witnessing three vehicles perform a U-turn south of the checkpoint, Agent Navar and two other agents got into their units and pursued the vehicles. It is not clear whether there were two or three units pursuing the three vehicles. Agent Navar drove south and saw a purple Dodge truck pulled over on the side of the road. After Agent Navar passed the purple truck, he attempted but was unable to turn around due to the heavy northbound traffic. He instead pulled to the side of the road and waited for the purple truck to continue driving southbound. The purple truck pulled onto Highway 180 and drove south. After it passed Agent Navar, Agent Navar pulled onto the road and followed the truck. When he was behind the truck, he attempted to contact dispatch to request checks on the license plate. However, because the other unit was calling in the checks on one of the other vehicles, he was not able to “get out” using his service radio.

6. According to Agent Navar, he decided to stop the Dodge because it attempted to evade a federal checkpoint, which he stated is a violation of federal law. Based on this purported violation, Agent Navar believed that he had authority to stop and detain the driver of the Dodge. Agent Navar activated his emergency lights and pulled the Dodge over without incident. Agent Navar testified that he stopped the vehicle around 2:00 in the afternoon, or twenty minutes after witnessing the U-turn. However, he stopped the truck just two miles south of the tactical checkpoint, and, when questioned further, Agent Navar admitted that he did not recall the amount of time that transpired between the U-turn and the stop. Given the short distance and the evidence before the Court, the Court finds that Agent Navar's original estimate was incorrect and that the stop occurred approximately five minutes after Agent Navar witnessed the U-turn.

7. Agent Navar used his personal cellphone to call dispatch to run the plates. Border Patrol agents use a plate check to determine whether a car is stolen, whether it crossed through a port of entry within the previous seventy-two hours, and to whom it is registered. While the checks were running, Agent Navar made contact with the driver. Though Agent Navar failed to identify the Defendant as the driver during the course of the evidentiary hearing, merely stating that the driver provided the name “John Castro,” Agent Flores did identify Defendant as the driver of the Dodge truck. The vehicle checks came back clear, though Agent Navar testified that nearly twenty minutes passed before he was contacted by dispatch with the results of the checks.

8. Upon contacting the driver, Agent Navar almost immediately asked the driver to exit the vehicle and give Agent Navar the keys to the truck. The driver complied. When asked for his identification, the driver indicated he did not have his identification on him, but he did provide his name and date of birth. Once Agent Navar had that information, he attempted to use his service radio to run warrant and immigration checks. However, Agent Navar was again unable to get through to dispatch on his service radio due to the radio traffic. He testified that he used his personal cellphone to call in the check. Usually, it takes approximately five minutes for Agent Navar to receive results of a personal record check. The personal record check for Defendant did not come back until after Defendant had been placed under arrest.

9. Agent Navar continued to speak with Defendant and requested an explanation for Defendant turning around before reaching the checkpoint. Agent Navar testified to a number of statements purportedly made by Defendant. First, he testified that Defendant told him that “he saw the checkpoint and he freaked out.” This statement was not in Agent Navar's report. As previously stated, the Court is highly skeptical that a trained and experienced Border Patrol agent would omit such an incriminatory statement from his report, and the Court does not credit Agent Navar's recollection six months after the fact that Defendant told Agent Navar that he saw the checkpoint and freaked out.

10. Second, Agent Navar testified that Defendant explained that he was fixing the transmission on the truck and that it was not his vehicle. This was apparently included in the report, and the Court deems this testimony credible.

11. Third, Agent Navar testified that Defendant provided a male name when asked about the owner of the truck, when in fact dispatch had advised that the truck was registered to a woman. This inconsistency was not in Agent Navar's report, and, for the reasons previously stated, the Court does not credit Agent Navar's recollection on this point.

12. Finally, Agent Navar pointed out that the Defendant seemed nervous while they were speaking. In support of that conclusion, Agent Navar recalled that the Defendant could not give a straight answer and it took him some time to “actually come up with something to tell me.” Agent Navar conceded that he did not know Defendant, and he did not further specify the degree or duration of Defendant's nervousness.

13. At some point during the conversation, Defendant mentioned that he had a “nonextraditable warrant out of another city in New Mexico.” However, Agent Navar did not indicate when in the course of the detention Defendant made...