United States v. Del Real

• Decision Date: 07 April 2016
• Docket Number: No. 15-cr-4409 KG,15-cr-4409 KG
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. SULEMA CARBAJAL DEL REAL, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff, v. SULEMA CARBAJAL DEL REAL, Defendant.

No. 15-cr-4409 KG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

April 7, 2016

MAGISTRATE JUDGE'S SECOND PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER is before me on a Memorandum Order and Opinion by the Honorable Kenneth J. Gonzales, United States District Judge, filed March 25, 2016. [Doc. 45]. In the Order, Judge Gonzales sustained the Government's objections to my Proposed Findings and Recommended Disposition [Doc. 41] (in which I recommended granting Defendant's Motion to Suppress [Doc. 22]) and resubmitted this matter to me for further consideration. Having reviewed the Government's objections, Defendant's response to those objections, and Judge Gonzales' Memorandum Order and Opinion, I find that considering the totality of the circumstances, the stop of Defendant was not supported by reasonable suspicion. I therefore recommend GRANTING Defendant's Motion to Suppress.

Procedural Background

After Defendant was stopped by border patrol agents, her vehicle was searched and illegal drugs were seized. [Doc. 22] at 1. Defendant was arrested and charged with possession with intent to distribute a controlled substance. [Doc. 16]. She filed a Motion to Suppress Physical Evidence and Statements ("Motion") [Doc. 22], on January 7, 2016, in which she challenges both the initial stop and her continued detention as unconstitutional. She moves to suppress all evidence, physical and testimonial, recovered a result of the stop and detention. Id. at 1. The Government responded on January 21, 2016. [Doc. 30]. Defendant replied on January 26, 2016. [Doc. 31]. Judge Gonzales referred the Motion to me to make findings of fact and to recommend an ultimate disposition. [Doc. 25].

I held an evidentiary hearing on February 22, 2016. United States Border Patrol agents Orlando Morin and Philip Gaylord, along with Border Patrol Law Enforcement Communications Assistant Argelia Reta, testified for the Government. Investigator Horlando Lopez testified for Defendant. I issued my Proposed Findings and Recommended Disposition ("PF&RD") on March 2, 2016. [Doc. 41]. The Government objected to the legal conclusions of the PF&RD, but not the factual findings, on March 16, 2016. [Doc. 43]. Defendant responded to those objections. [Doc. 44]. Judge Gonzales issued a Memorandum Opinion and Order sustaining the Government's objections and directing me to revisit my PF&RD. [Doc. 45]. Specifically, he asked me to analyze the totality of the circumstances through the eyes of a reasonable border patrol agent with Agent Morin's training and experience, according due deference to Agent Morin's ability to distinguish between innocent and suspicious conduct, and make clear my finding on his credibility. Id. at 3.

Standard for Stops by United States Border Patrol Agents

Consistent with the Fourth Amendment's prohibition on unreasonable searches and seizures, Border Patrol agents on roving patrol may stop vehicles "only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that the vehicle's occupants are involved in criminal activity. United States v.Cantu, 97 F.3d 1118, 1120 (10th Cir. 1996). Reasonable suspicion "does not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 274 (2002). "By imposing the reasonable suspicion standard, the Supreme Court sought to avoid subjecting residents of the [border area] to potentially unlimited interference with use of the highways, solely at the discretion of Border Patrol officers." United States v. Rodriguez-Rivas, 151 F.3d 377, 380 (5th Cir. 1998).

When determining if a Border Patrol agent had reasonable suspicion to stop a vehicle in the border area, the Court considers "the totality of the circumstances" under which the stop occurred. United States v. Sokolow, 490 U.S. 1, 8 (1989). In making its determination, the Court takes into account (1) the characteristics of the area where the agent encountered the vehicle; (2) the proximity of the area to the border; (3) the usual patterns of traffic on the road; (4) the agent's previous experience with alien traffic; (5) information about recent illegal border crossings in the area; (6) the driver's behavior, including erratic driving or any obvious attempts to evade the agent; (7) aspects of the vehicle, such as a station wagon with concealed compartments; (8) the appearance that the vehicle is heavily loaded; and other relevant factors. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975). "When evaluating an [agent's] decision to stop a vehicle, a court may not engage in a 'sort of divide-and-conquer analysis' by evaluating and rejecting each factor in isolation." United States v. Cheromiah, 455 F.3d 1216, 1221 (10th Cir. 2006). Rather, the "whole picture" should be taken into account. United States v. Cortez, 449 U.S. 411, 417 (1981).

In deciding whether the government has met its burden of showing reasonable suspicion, we "judge the officer's conduct in light of common sense and ordinary human experience," United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997), and we accord deference to an officer's ability to distinguish between innocent and suspicious actions. United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997); see also United States v. Lopez-Martinez, 25 F.3d 1481, 1484 (10th Cir. 1994) (observing that deference is owed to police officer's ability to assess suspiciousness of seemingly innocent conduct). Thus, "[t]he evaluation is made from the perspective of the reasonable officer, not the reasonable person." United States v. Guerrero, 472 F.3d 784, 787 (10th Cir. 2007) (internal quotation marks omitted) (emphasis in original).

The deference owed to the officer's judgment, however, is not unlimited. Even though reasonable suspicion may be founded upon factors consistent with innocent travel, see Sokolow, 490 U.S. at 10, "[s]ome facts must be outrightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous." United States v. Lee, 73 F.3d 1034, 1039 (10th Cir. 1996), overruled on other grounds by United States v. Holt, 264 F.3d 1215, 1226 n.6 (10th Cir. 2001) (en banc). Moreover, the officer must point to specific, articulable facts. United States v. Fernandez, 18 F.3d 874, 878 (10th Cir. 1994). Inchoate suspicions and unparticularized hunches do not provide reasonable suspicion. Id.

Unlike ordinary police officers, Border Patrol agents have limited jurisdiction. Ortiz v. United States Border Patrol, 39 F. Supp. 2d 1321, 1326 (D.N.M. 1999), aff'd, 210 F.3d 390 (10th Cir. 2000) ("Border Patrol agents are not general law enforcement officers. Instead . . . their authority and duties are circumscribed by statute and limited in scope. Their primary duties are to prevent illegal aliens from entering the country."). Border Patrol agents do not haveauthority to stop a vehicle for a traffic violation alone. See United States v. Hernandez-Lopez, 761 F. Supp. 2d 1172, 1199 (D.N.M. 2010) ("The Border Patrol has no jurisdiction to enforce the New Mexico traffic code."); United States v. Rodriguez-Rivas, 151 F.3d 377, 381 (5th Cir. 1998) ("the absence of Texas license plates alone does not authorize a Border Patrol agent to stop a vehicle"); United States v. Gonzales-Calderon, No. 05-CR-1369 BB, 2005 WL 6147579, at *3 n.1 (D.N.M. Sept. 16, 2005) (unpublished) ("The [Border Patrol agent]'s testimony that the van's speed was erratic and that the van made two lane changes is not relevant [to determining whether reasonable suspicion existed] as the Agent admitted he had no authority to stop the van for traffic violations.").

Factual Findings

Orlando Morin had been a border patrol agent for nine years in August 2015. I give due deference to his training and experience as an agent. And with one exception, which I will discuss below, I found him to be a credible witness. Prior to beginning his career, Agent Morin attended the 20-week border patrol training academy. Hrg. Tr. at 10:12-21. As an agent, his duties involved detecting and apprehending illegal aliens and narcotics. Id. at 10:22-11:1. At approximately 4:00 a.m.¹ on August 31, 2015, he was observing a section of New Mexico Highway 80, about 50 miles from the U.S.-Mexico border, and one mile from the Arizona border. [Doc. 30] at 1; Hrg. Tr. at 13:2-8.

Agent Morin patrolled this area about once or twice a week and was familiar with the vehicles belonging to local residents. Id. at 16:11-16. He was aware that Highway 80 was often used by smugglers, and that traffic at that early hour consisted mainly of semi-trailer trucks. Id. at 13:10-15, 14:9-13. In his experience, smugglers from Mesa and Phoenix, Arizona frequent this portion of Highway 80 in order to avoid border patrol checkpoints on other routes. Id. at 19:1-10. Agent Morin was trained to observe vehicle occupants, and had observed hundreds or thousands during his career. Id. at 79:12-18. I accord due deference to his ability to distinguish between innocent and suspicious conduct.

He saw Defendant pass his location in a 2002 Honda Civic, travelling at the speed limit.² Id. at 14:16; 16:22-25; 45:8-18. Because of the vehicle's speed, and because he was only able to see the area of the highway illuminated by his headlights as it was completely dark outside, Agent Morin was only able to observe the vehicle for a fraction of a second. Id. at 44:17-46:2. He had apprehended one or two older-model sedans carrying illegal aliens in the previous weeks. Id. at 69:7-9. He did not recognize the car as belonging to a local resident, and decided to follow her while calling in a records check. Id. at 17:1-11. The records check revealed that the car was registered to a woman in Mesa, Arizona, was not stolen, and had not recently...