Opinion
5-22-CR-0510-OLG
08-17-2023
UNITED STATES OF AMERICA, v. LAURA LIZBETH RIVERA-RAMOS, Defendant.
To the Honorable Orlando Garcia, United States District Judge:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation concerns Defendant Laura Lizbeth Rivera-Ramos's Motion to Suppress. See Dkt. Nos. 24 (Motion), 28 (Response), 36 (hearing transcript). The District Court referred the motion by Text Order, dated March 10, 2023. Authority to enter this Report and Recommendation stems from 28 U.S.C. § 636(b). Following the referral, this Court on April 19 held a hearing on the motion at which Defendant, her counsel, and counsel for the Government were present. See Dkt. No. 36.
For the reasons stated below, Defendant's Motion to Suppress, Dkt. No. 24, should be DENIED.
Background
Defendant Laura Rivera-Ramos is charged with conspiracy to transport aliens and alien transportation in violation of 18 U.S.C. § 1324(a)(1)(A)(v)(I)/(B)(i) and § 1324(a)(1)(A)(ii)/(B)(i). The charges stem from a warrantless traffic stop that occurred on September 15, 2022. Kerr County Sheriff's Deputy Brandon Rowe, who testified at the April 19 hearing, instigated the stop.
At approximately 7:45 a.m. on September 15, Deputy Rowe was working criminal interdiction, focusing on looking for human smuggling, on Highway 41 in Kerr County, Texas. See Dkt. No. 36 at 13. While driving on Highway 41, Rowe noticed a black 2009 Chevrolet Silverado pickup truck. Id. at 14. Rowe was not on the lookout for this particular vehicle. Id. at 22. Instead, according to Rowe's hearing testimony, he noticed the Silverado pickup because it was riding low, which he explained at the hearing can be an indicator of human trafficking:
I noticed the back end was basically sitting extremely low. So just based on that determination, I decided to at least follow this vehicle and look into it. * * *
Based on my experience and the fact that this was a known human smuggling corridor, very often, especially during that time frame [i.e., 7:30 a.m.], we were getting human smuggling events where there was a large amount of humans in the beds of pickup trucks, causing the back end to be weighted down.Id. at 14-15. In response to questioning at the hearing, Rowe agreed that he had previuosly “actually observed other vehicles with people inside that kind of were sagging the same way” as the pickup he observed on September 15. Id. at 15.
Having noticed the pickup, Rowe followed it in his vehicle. After about “two to three miles,” the pickup stopped at the intersection of State Highway 27 and Highway 41, with Rowe pulling up to stop behind it. Id. at 23-24. Then, as the pickup accelerated and pulled away from the stop, the truck's bed dipped. Id. at 15. This, Rowe testified, allowed him to view into the bed, where he saw “multiple humans laying [sic] down, concealed in the . . . bed of that pickup truck.” Id. Rowe also testified that the area in which he observed the pickup is a known human smuggling route. Id. at 16. And the time of the day was significant as well because, according to Rowe's experience and understanding, traffickers in previous incidents “were picking up these [people] . . . around 6:00,” and that “by the time they got up to where we were at” on Highway 41, “it was 7:30, 8:30 o'clock in the morning.” Id.
After seeing the people “concealed” in the bed of the pickup, Id. at 15, Rowe's testimony continued, he radioed for backup and continued to follow the pickup, Id. at 18. Backup arrived after about 15 minutes, at which time Rowe initiated a traffic stop. Id. Upon stopping the pickup, Rowe testified, he learned there were 12 people in total in the truck, including Defendant Rivera, who was the driver. Id. at 18-19. Two other adults accompanied Rivera in the front seat(s) of the pickup's cab, five others were in the backseat of the pickup's extended cab, and the remaining four were in the pickup's bed. See DX1 at 3:02 to 6:24. Deputy Reusser assisted with the traffic stop and spoke to the passengers, who “admitted that they had crossed [the border] near Eagle Pass and that they were all non-citizens of the United States.” Dkt. No. 36 at 21. Rivera also made statements to officers, and officers seized her cell phone at that time as well. See Dkt. No. 24 at 2.
There is video evidence of these events. Rowe's vehicle had a dashboard camera, and this dash cam recorded events after he began following the pickup. See DX1. Rowe's body camera was not functioning correctly, however, and there is no body camera footage of these events from his camera. See Dkt. No. 36 at 19-20. But other officers who assisted Rowe were equipped with body cameras, and their cameras recorded events from their perspective once they arrived to assist with the stop. Id. at 6. The moment Rowe spotted the individuals concealed in the bed of the pickup, however, is not captured on either his body camera or vehicle camera.
Analysis
At issue is the propriety of Deputy Rowe's warrantless traffic stop, at which he pulled over the Silverado pickup and walked up to it (with other officers) to peer into its bed and locate the individuals there and in the cab. Rivera argues the traffic stop was unlawful, and therefore the evidence obtained as a result should be suppressed. Dkt. No. 24 at 2 (“Ms. Rivera-Ramos moves to suppress the aliens, the Defendants' statements, the aliens' statements, the results of the phone searches, the results of the physical search of the vehicle, and any other fruits of this stop.”). The Court is unpersuaded by Rivera's arguments and, therefore, recommends that Rivera's motion be denied, as discussed more fully below.
A. Deputy Rowe Credibly Testified at the Hearing.
The first issue to address is the credibility of Deputy Rowe. At the hearing, Rivera questioned Rowe's credibility in at least three ways. First, through counsel she highlighted certain alleged inconsistencies between Rowe's testimony and other evidence. The Court, however, finds Rowe credible and reliable. Rivera's noted alleged inconsistencies are not sufficient to bring Rowe's credibility meaningfully into question. For example, he plausibly explained that his use of the term “subject” instead of the plural, “subjects,” at various times in his written statements was a simple typographical error. See Dkt. No. 36 at 28-30.
Second, Rivera attacked Rowe's credibility by relying on testimony from a defense investigator who attempted to re-create the events from September 15, 2022, to demonstrate that Rowe could not have seen the four individuals in the pickup's bed prior to the stop. See id. at 5785. But the re-creation was not sufficiently similar to the events in question to provide meaningful assistance to the Court. For example, the re-creation involved only three individuals in the bed of a pickup, not four in the bed, five in the back seats of the cab, and three up front. See Def. Exs. 4D, 4E, 4F. Moreover, the re-creation used a 2020 model Silverado pickup. Dkt. No. 36 at 59. Rivera drove a 2009 model on September 15. Id. at 69-70. No hearing testimony or other evidence sufficiently addressed the possible consequences of this disparity, including potential differences in the condition of the two pickups' suspensions or the vehicles' heights. E.g., Id. at 70 (possible height difference).
Third, Rivera questioned Rowe's credibility based on the video evidence. But any discrepancies between Rowe's testimony and the video evidence are minor, readily explained, or both. For example, it is of no moment that Rowe's dash cam video does not at any point show individuals concealed in the bed of the pickup, even as Rowe followed behind the pickup. See DX1. The key moment, when Rivera's Silverado pickup dipped down as it accelerated uphill from a stop at the intersection of State Highway 27 and Highway 41, is not shown on any video. Indeed, Rowe testified plainly that he saw “multiple humans laying [sic] down, concealed in the . . . bed of that pickup truck.” Id. at 15. It is plausible that Rowe only saw the individuals as the truck accelerated away and at no other time, at least until he pulled the pickup over. That state of affairs is consistent with the video evidence.
Further, it hardly assists Rivera's case that multiple individuals remained concealed in the pickup's bed for the entire time that Rowe followed, apart from a single fleeting instant when Rowe saw them. See Dkt. No. 36 at 32. If four individuals were innocently riding in the pickup's bed, one would expect at some point that their presence would have been picked up on dash cam video from Rowe's vehicle taken after he began to follow the pickup. See DX1. But not one glimmer of their presence occurred during this time. This corroborates Rowe's view that these individuals were concealed in the pickup's bed, not merely innocently riding in it. And one would also expect that the four individuals riding in a pickup's bed might find a more comfortable way to arrange themselves rather than lying completely prone, as the limited space in the bed would require for them to remain entirely out of sight.
B. The Stop Was Lawful.
The information that Deputy Rowe testified he had at the time of the stop is sufficient to justify the stop. What is required to justify this type of an investigative stop is a “reasonable suspicion that criminal activity may be afoot.” United States v. Basey, 816 F.2d 980, 988 (5th Cir. 1987) (cleaned up); accord Terry v. Ohio, 392 U.S. 1, 30 (1968). Courts review “the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” United States v. Pack, 612 F.3d 341, 352 (5th Cir. 2010) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.'” Arvizu, 534 U.S. at 273 (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). The test for reasonable suspicion under the Fourth Amendment is an objective one. See Scott v. United States, 436 U.S. 128, 137-38 (1978). Here, it is satisfied.
The information available to Rowe included the following: (1) the vehicle's characteristics and the fact that it was riding low; (2) his brief observation of multiple individuals lying down and concealed in the bed of the truck; and (3) that the vehicle was on a known smuggling route at a time of day at which human smuggling was known to take place in that area. With respect to the vehicle's characteristics, Rowe testified that in his experience pickup trucks are frequently used in this area, on this route, and at this time of day to smuggle individuals. Dkt. No. 36 at 15. He testified that a truck riding low is an indicator that it might be smuggling humans in the bed. See United States v. Varela-Andujo, 746 F.2d 1046, 1048 (5th Cir. 1984) (observation of a knee and a hand protruding from a tarp covering a truck bed a factor in establishing reasonable suspicion for suspected alien smuggling). Rowe had personally observed that other vehicles sagged, in the way Rivera's truck was sagging, when they were used to smuggle individuals. Dkt. No. 36 at 15.
Rowe also observed multiple individuals concealed in the truck's bed. As mentioned, those four individuals did not move or shift such that Rowe ever saw them, except for in a single moment when he was able to peer briefly into the pickup's bed. This was also, in his experience, an indicator of a possible smuggling event. See United States v. Cervantes, 797 F.3d 326, 336 (5th Cir. 2015) (agent's 16 years of “experience is a factor weighing in favor of reasonable suspicion”); United States v. Sanchez-Pena, 336 F.3d 431, 437 (5th Cir. 2003) (officer's training can allow an officer to “draw inferences and make deductions that might well elude an untrained person” (cleaned up)). And, finally, all of this took place on a known smuggling route and at a time of day at which other smuggling events in this area had occurred. See Cervantes, 797 F.3d at 330; United States v. Aldaco, 168 F.3d 148, 151-52 (5th Cir. 1999).
In combination, this information provides the needed reasonable suspicion. See United States v. Olivares-Pacheco, 633 F.3d 399, 402 (5th Cir. 2011) (“Factors that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise reasonable suspicion in the minds of experienced officers.” (quotation omitted)). The many cases cited by the Government in its Response support this conclusion. See generally Dkt. No. 28 at 3-8 (citing multiple cases).
Conclusion
For these reasons, Defendant's Motion to Suppress, Dkt. No. 24, should be DENIED.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59. The objecting party shall file the objections with the Clerk of the Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.