Opinion
CR-20-02099-TUC-SHR (LCK)
10-28-2021
United States of America, Plaintiff, v. Mario Pastor Buelna, Defendant.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kirnrnins, United States Magistrate Judge.
Pending before the Court is Defendant Buelna's Motion to Suppress Pretrial Identification. (Doc. 72.) The government filed a response. (Doc.78.) This matter came before the Court for a hearing and a report and recommendation as a result of a referral, pursuant to LRCrim 57.6. Evidence and argument were heard on October 4, 2021. (Doc. 83.) This matter was submitted following oral argument at the conclusion of the hearing.
Defendant argues the identification of him by a Border Patrol Agent was unduly suggestive and unreliable. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion.
I. FACTUAL BACKGROUND
Adrian Martinez is a U.S. Border Patrol field agent with his main area of patrol in Douglas, Arizona. (RT at 5-6.) Agent Martinez received training on tracking, processing, and other duties at the Federal Law Enforcement Training Center. (Id. at 6.)
“RT” refers to the Reporter's Transcript of the October 4, 2021 evidentiary hearing. (Doc. 91.)
On May 22, 2020, at approximately 1:50 p.m., Agent Martinez was in his marked Border Patrol vehicle patrolling Geronimo Trail, a two-lane road approximately one half-mile from the International Border Fence (IBF). (Id. at 6, 8, 20.) Geronimo Trail is a somewhat maintained dirt and rocky road. Typically, this road is used by ranchers, not the public; however, during this time, there were construction vehicles and workers due to the building of the border wall. (Id. at 7.) Agent Martinez was notified by another agent that there was a white S-10 Chevrolet small pick-up truck parked near the IBF in a location that was not designated for construction vehicles. (Id. at 7-8.) Finding a vehicle so close to the IBF was unusual because the construction workers were specifically told not to park next to the fence. (Id.)
At approximately 2:45 p.m., Border Patrol horse units advised that the white S-10 truck was driving westbound on Geronimo Trail towards Douglas. (Id. at 8.) Agent Martinez was near mile marker 12, facing eastbound on Geronimo Trail as the S-10 truck passed him. Agent Martinez admitted that, as the driver passed, he did not have a good enough look to describe or identify the driver. (Id. at 21.) The agent made a U-turn in an attempt to get behind the S-10 truck. By the time he turned, the S-10 truck had increased its speed to approximately 50 miles per hour. (Id. at 9.)
At approximately mile marker 9.5, the S-10 truck slowed down, which allowed Agent Martinez to catch up. (Id. at 9-10.) At mile marker 9.1, another Border Patrol vehicle became visible on the road ahead. (Id. at 10.) At that location, the S-10 truck took a sharp left-hand turn onto a road traveling south towards the IBF. (Id. at 10.) The S-10 truck was a little less than half a mile from the border traveling at speeds of 50-55 miles per hour, which Agent Martinez indicated was excessive because the road was dirt and not maintained, with a lot of dips and humps. (Id. at 11, 23.) Agent Martinez continued to pursue the S-10 truck but backed off a little due to his concern for construction workers in the area. (Id. at 11-12, 22.) At the end of the road, the S-10 truck took another left-hand turn, doubling back, now traveling at approximately 70 miles per hour on a straight-away part of the road that paralleled the IBF. This pursuit continued to approximately mile marker 13. The IBF in this area consisted of various gaps or spaces large enough for a vehicle to pass through. (Id. at 11-12, 22-23.) The S-10 truck started to slow down to approximately 35 miles per hour near a large wash where there was no fencing, and it eventually stopped near the IBF between a gap and the start of the fence. Agent Martinez stopped directly behind the S-10 truck. (Id. at 12, 24.)
The driver of the S-10 truck opened his door and proceeded on foot towards Mexico. As the driver left the truck, he directed his eyesight towards the agent. Agent Martinez did not follow the driver because he was so close to Mexico. Agent Martinez indicated he was approximately a half-car length from the driver and was able to see him for no more than 10-15 seconds. (Id. at 13.) Agent Martinez clarified that, at the beginning of his 10-15 seconds of viewing time, he was in his vehicle but proceeded to get out of his vehicle, staying near the door frame; the driver was briskly walking towards Mexico while periodically looking back. (Id. at 13, 24-25, 31.) Agent Martinez testified that he had a “pretty good view of the driver” until he went into the desert brush. (Id. at 14.) The agent admitted that the driver was not staring directly at him for any extended amount of time, and he did not have a very long visual as the brush and trees obscured his view. His only good visual of the driver was the 10-15 seconds from when he stopped the vehicle, got out, and walked briskly to the IBF before reaching the obstructing brush. (Id. at 14, 26.) The only features Agent Martinez described were that the driver was not very tall, not skinny, of above-average build, and had a noticeable goatee. (Id. at 14-15, 26.) Agent Martinez admits that he could not provide any other physical descriptors of the driver, such as hair or eye color, and that the goatee was the only somewhat distinguishable trait. (Id. at 29.)
After the driver absconded, Agent Martinez secured the S-10 truck and went to the station to process the marijuana found in the truck and to write his narrative report. (Id. at 15.) During this time, Agent Martinez was able to determine that the registered owner of the S-10 truck was Defendant Mario Buelna. While Agent Martinez was writing his report, an individual from the Border Patrol intel department brought over a single photograph and asked Agent Martinez if it was the driver of the S-10 truck. (Id.at 15, 28, 31; Exhibit 1.) Agent Martinez believed it was most likely a driver's license picture. (Id. at 15.) He identified the individual in the photo as the driver of the S-10 truck that he saw abscond into Mexico. At the hearing, Agent Martinez verified that the photo was from the driver's license of the registered owner of the vehicle, Defendant Buelna. (Id. at 16.) Agent Martinez did not include a detailed description of the driver in his notes or report. (Id. at 27.)
The following day, on May 23, 2020, Agent Martinez was notified that Defendant Buelna, the registered owner of the S-10 truck, had been detained at the Port of Entry and taken to the Douglas Border Patrol station for an interview. (Id. at 16.) Agent Martinez went to the station and saw Defendant, who was being held alone in an isolation cell. The agent, again, identified Defendant Buelna as the individual he saw abscond into Mexico the previous day. (Id. at 16-17, 29, 31.)
Agent Martinez also made an in-court identification of Defendant Buelna during the evidentiary hearing. (RT at 17.)
II. DISCUSSION
Defendant requests suppression of the pretrial identification of him by Agent Martinez. The Due Process Clause is implicated if police used an identification procedure that was unnecessarily suggestive. See Neil v. Biggers, 409 U.S. 188, 201 (1972); Perry v. New Hampshire, 565 U.S. 228, 238-39 (2012). An identification procedure is suggestive where it “[i]n effect … sa[ys] to the witness ‘This is the man.'” Foster v. California, 394 U.S. 440, 443 (1969).
Courts use “unnecessarily, ” “impermissibly, ” and “unduly” suggestive interchangeably, with the focus on whether the identification is so suggestive as to undermine reliability. Perry v. New Hampshire, 565 U.S. 228, 254 n.2 (2012) (Sotomayor, J., dissenting).
If the identification procedure is not impermissibly suggestive, the inquiry ends and there is no due process violation. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985). However, even if a defendant is able to show that the procedure was impermissibly suggestive, “suppression of the resulting identification is not the inevitable consequence.” Perry, 565 U.S. at 239. Instead, the Court must evaluate whether the improper procedure created a “substantial likelihood of misidentification.” Biggers, 409 U.S. at 201. The analysis focuses on reliability because that “is the linchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977). In deciding if the identification is nevertheless reliable, the Court evaluates the totality of circumstances, including:
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.Biggers, 409 U.S. at 199-200. “Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Brathwaite, 432 U.S. at 114. The identification should be suppressed only if the “identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Biggers, 409 U.S. 197 (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). A suggestive identification violates due process if it was unnecessary or “gratuitous” under the circumstances. Id. at 198.
A. Suggestive Nature of the Identification
An identification procedure that “emphasize[s] the focus upon a single individual” is suggestive and increases the likelihood of misidentification. U.S. v. Montgomery, 150 F.3d 983, 992 (9th Cir. 1998) (quoting Bagley, 772 F.2d at 493.) If the suggestive identification procedure is “imperative” it does not violate due process. Id. (citing Stovall v. Denno, 388 U.S. 293, 301-02 (1967) (one person show-up in hospital room of critically wounded victim did not violate due process where record indicated the suggestive procedure was “imperative”)). In the instant case, there was a clear emphasis and focus upon a single individual during the identification process. First, Agent Martinez was shown only Defendant's driver's license photo. Then, he was told the registered owner of the S-10 truck was in custody, and he was asked if that person was the driver. Nothing in the record reveals that such a suggestive confrontation was emergent or imperative. The Court finds that the identification procedure was unnecessarily suggestive.
B. Reliability of the Identification under the Totality of the Circumstances
The Court next reviews the reliability of the identification under the totality of the circumstances and evaluates the factors set forth in Biggers. The Court acknowledges that the length of time between the crime and the confrontation, both with the photo and the identification of Defendant in the holding cell, was short. And, the Court determines, although not specifically asked, that Agent Martinez demonstrated a level of certainty about Defendant's identification.
The government argues that the Court also should take into consideration the fact that Agent Martinez is a trained law enforcement officer; therefore, 10-15 seconds is ample time for him to be able to identify the driver. (RT at 37.) There may be circumstances where 10-15 seconds for a law enforcement officer to view a suspect is sufficient for a reliable identification. In this case, however, counsel presented no testimony regarding this agent's specific training and experience with respect to opportunity to view and/or identify suspects.
The agent was quite forthright about his limited opportunity to view the driver for only 10-15 seconds and his divided attention. Not only was the time limited, but the driver was rapidly moving away from the agent and looking back only periodically, and brush eventually obscured the view. Further, Agent Martinez was focused on, not only the driver, but also getting out of his vehicle at the same time. The agent's written report lacked a detailed description of the suspect. The most notable descriptor the agent provided was that the driver had a goatee. There was nothing specific about height, weight, race, age, hair color or style, eye color, or facial features to compare for accuracy with Defendant or his photo. The Court finds most weighty the agent's limited view of the fleeing driver, his divided attention, and the lack of a previous description. Therefore, based on a totality of the circumstances, the Court finds that the unnecessarily suggestive pretrial identification procedures created a “substantial likelihood of irreparable misidentification.”
In reaching this conclusion, the Court compares the instant case to Manson v. Brathwaite, 432 U.S. 98 (1977) which deals specifically with a law enforcement officer's identification of a defendant using a single photograph two days after the crime. In Brathwaite, an undercover police officer was conducting a drug buy outside an apartment door in Hartford, Connecticut. When he made initial contact with the suspect, the door was opened 12 to 18 inches, the officer made his request for drugs, handed the suspect money and the door closed. Id. at 99-100. Soon thereafter, the suspect returned to the door and handed the officer the drugs. The officer stood within two feet of the suspect and observed his face. Between 5 and 7 minutes elapsed from the time the door first opened until it closed the second time and each contact with the suspect was 2 to 3 minutes face-to-face. Id. at 100-01, 114. The officer was not a casual or passing observer as he was participating in a transaction with the suspect. He also was trained, assigned, and experienced in an undercover capacity, knowing that his claimed observations would be subject to close scrutiny and examination at trial. Id. at 115. The officer was able to give a detailed description of the suspect including race, height, dark complexion, hair color and style, and further descriptors of high cheekbones, heavy build, and clothes worn. Id. The description was sufficiently detailed that a backup officer, not part of the drug buy, left a photo of the defendant for the undercover officer. Id. Upon the undercover officer's return to the station two days later, he examined the singular photograph and identified the person in the photo as the same one who sold him the drugs. Id. The Supreme Court concluded that, while the identification procedure was suggestive and unnecessary, in the absence of emergent or exigent circumstances, under a totality of the circumstances, there was not a substantial likelihood of irreparable misidentification. Id. at 116.
The facts of Brathwaite stand in substantial contrast to those present here. Agent Martinez observed the driver of the S-10 truck for no more than 15 seconds as opposed to seeing him for at least four minutes. His view of the driver was not face-to-face but of him fleeing away from the agent with periodic looks back. And, Agent Martinez was unable to offer a meaningful description of the driver prior to the identification process. Considering these weighty factors in the totality of the circumstances, the Court finds that the identification procedure in this case was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.
III. RECOMMENDATION
It is recommended that, after its independent review of the record, the District Court grant Defendant's Motion to Suppress the pretrial identification (Doc. 72). Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No. reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.