Opinion
CR 22-1969-TUC-JGZ (JR)
12-09-2022
United States of America, Plaintiff, v. Ahmad Montez Jackson, Defendant.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU UNITED STATES MAGISTRATE JUDGE
This matter was referred to Magistrate Judge Rateau for pretrial matters. On October 26, 2022, Defendant filed a Motion to Suppress Stop. Doc. 20. The Government filed a Response on November 14, 2022. Doc. 25. Defendant did not reply. An evidentiary hearing was conducted on November 23, 2022. Doc. 26. Defendant was present and represented by counsel. The Government presented two witnesses, Border Patrol Agents Osvaldo Gonzalez and Juan Munoz. Doc. 28. Seven Government exhibits were admitted. Doc. 27. The defense did not call any witnesses. Three defense exhibits were admitted. Doc. 29.
Along with the Defendant's Motion to Suppress Stop, the Court heard argument on Defendant's Motion to Dismiss Felon in Possession of a Firearm Charge on Second Amendment Grounds which was filed on October 7, 2022. Doc. 13. The Government responded on October 22, 2022 (Doc. 19) and the Defendant replied on October 28, 2022 (Doc. 22). Having considered both matters, the Magistrate Judge recommends that Defendant's motions be denied.
Trial is scheduled for January 10, 2023. Doc. 16.
I. Defendant's Motion to Suppress Stop
A. Facts
Brooks Road is a rural road in a remote area near Douglas, Arizona. It runs north-south for 6.6 miles. Its northern end starts south of West Double Adobe Road and ends at State Route 80 which runs east-west about one mile north of the United States-Mexico border. The road is paved from State Route 80 to approximately milepost 2 where it turns into a poorly maintained dirt road. Besides a handful of ranches, there are few residential homes throughout the 6.6 miles of road. Agent Munoz described Brooks Road as frequently used by smugglers due to its remoteness, limited vehicle traffic and lack of Border Patrol presence.
On August 9, 2022, Border Patrol Agent Gonzalez was working the midnight shift on the west side of the Douglas Border Patrol Station. At 4:55 a.m., while it was still dark, he saw a dark-colored sedan traveling north on the dirt portion of Brooks Road. He described the sedan as having a distinct front grill, almost like it had a third light in the middle.
Meanwhile, Agent Munoz, who was also working the midnight shift, was assigned to the Douglas Border Patrol Station. He was working with the Small Unmanned Aircraft Systems (sUAS or drone) Team performing pre-flight checks a few yards east of north Brooks Road and north of ASR 80. From his vantage point he had a visual of any people traversing or hiding in the brush in the surrounding areas.
Agent Gonzalez knew Agent Munoz was in the area so he asked if he could obtain a visual of the sedan with his drone. In the same area, thirty minutes prior, Agent Munoz had witnessed suspected undocumented noncitizens (UNCs) being loaded up into a car. That driver was not apprehended.
As Agent Munoz was preparing to launch the drone, he observed a sedan traveling north on Brooks Road away from State Route 80. As it approached his location, he clearly noticed a bright illuminative light emitting from the front of the grill area as it continued north past his location. The sedan was the only vehicle traffic on that stretch of road at the time. Agent Munoz ascended the drone and tracked the sedan as it pulled over on the west side of the road for 30 seconds and then pull out again going back south on Brooks Road. While the car was stopped, Agent Munoz saw two “heat signatures” moving east through the brush towards the sedan.
According to Agent Gonzalez this type of driving behavior is not consistent with local traffic but very consistent with cars that load UNCs to drive them further into the interior of the United States. He also indicated that in the past few years there has been a significant increase in that type of activity on Brooks Road. According to Agent Gonzalez, he did not recognize the dark colored sedan as belonging to any of the residents in the area. Sedans do not comprise the local traffic due to the dirt portion of the road.
Agent Munoz informed the Tactical Operations Center (TOC) as well as Agent Gonzalez that he believed the sedan may have picked up UNCs. Based on that information, Agent Gonzalez travelled north on Brooks Road and when he saw the sedan with the illuminating lights, he turned his car around and followed the sedan as it travelled south on Brooks Road.
While he was following the sedan, Agent Gonzalez called the TOC to run a records check. The car came back registered to a man from Avondale, Arizona. According to Agent Gonzalez, it is a common tactic for load drivers to drive from Tucson or Phoenix to Douglas for a brief period and then return right back to Tucson or Phoenix. At 5:03 a.m., Agent Gonzalez informed TOC that he would be stopping the sedan.
UNCs and a firearm were allegedly found in the Sedan. The driver was identified as the Defendant. According to the Government, Defendant was previously convicted of armed robbery with a deadly weapon and served 14 years in prison.
B. Law
The Fourth Amendment protects a person against unreasonable searches and seizures. United States v. Hensley, 469 U.S. 221, 226 (1985). Consistent with the Fourth Amendment, police may stop persons in the absence of probable cause under limited circumstances. Terry v. Ohio, 392 U.S. 1, 88 (1968). The police may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity. Hensley, 469 U.S. at 226. Reasonable suspicion exists when an officer is aware of specific articulable facts, that, together with rational inferences drawn from them, reasonably warrant a suspicion that the person to be detained has committed or is about to commit a crime. United States v. Cortez, 449 U.S. 411, 416-18 (1981).
When assessing the reasonableness of the police officer's actions, the court must consider the totality of the circumstances which confronted the officer at the time of the stop. United States v. Sokolow, 490 U.S. 1, 8 (1989). This assessment precludes a “divide-and-conquer analysis” because even though each of a suspect's acts may be innocent in and of themselves, when taken together, they may warrant further investigation. United States v. Arvizu, 534 U.S. 266, 272 (2002). “A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct. United States v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013) (quoting Arvizu, 534 U.S. at 277).
The articulable facts forming the basis of a reasonable suspicion must be measured against an objective reasonableness standard, not by the subjective impressions of a particular officer. Gonzalez-Rivera v. I.N.S., 22 F.3d 1441, 1445 (9th Cir. 1994). An officer is however, “entitled to assess the facts in light of his experience in detecting illegal entry and smuggling.” United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975). But the inferences drawn from an officer's experience must be objectively reasonable. United States v. Montero-Camargo, 208 F.3d 1122, 1131 (9thCir. 2000) (en banc).
In relation to stops by Border Patrol agents, the totality of circumstances may include:
(1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including obvious attempts to evade officers; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and (8) officer experience.United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007). “Not all of these factors must be present or highly probative in every case to justify reasonable suspicion[,] . . . [a]nd the facts must be filtered through the lens of the agents' training and experience.” United States v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013).
Guided by these factors the court must determine whether the facts cited by the Government in support of the present stop constitute behavior that would excite the suspicions of a trained Border Patrol agent that criminal activity is afoot. See United States v. Rodriquez, 976 F.2d 592, 595 (9th Cir. 1992), amended by United States v. Rodriquez, 997 F.2d 1306 (9th Cir. 1993).
Characteristics of the Area, Proximity to the Border and Previous Smuggling in the Area
Law enforcement's awareness that a particular route or location is predominantly used for illegal purposes, including alien and drug smuggling, is strong support for a finding of reasonable suspicion. United States v. Manzo-Jurado, 457 F.3d 928, 936 (9th Cir. 2006); see also Arvizu, 534 U.S. at 269, 277 (finding it significant that officers found the defendant on an unpaved road used primarily by ranchers and forest service employees, but commonly used by smugglers to avoid a nearby border checkpoint).
Here, the Government established that the location of the stop was very close to the border in a rural and remote area. Aside from a few ranches, there are few residential homes. Defendant was driving on Brooks Road, a partially paved and in areas, a poorly maintained dirt road commonly used by smugglers because of its remoteness, limited vehicle traffic and lack of a Border Patrol presence. In fact, just 30 minutes before Agent Gonzalez stopped Defendant, Agent Munoz had seen another vehicle load up suspected UNCs. Agent Gonzalez confirmed that in the past few years there has been a significant increase in alien smuggling on Brooks Road. In terms of raising suspicion of smuggling, these facts merit significant weight in the calculus of reasonable suspicion.
Patterns of Traffic and Time of Day
The totality of the circumstances analysis includes a consideration of the modes or patterns of operation of certain kinds of law-breakers. Berber-Tinoco, 510 F.3d at 1088. These factors also weigh in the Government's favor. The stop occurred in at 5 a.m. while it was still dark. The area is remote with limited vehicle traffic. Other than the possible load vehicle Agent Munoz saw 30 minutes prior, the sedan was the only car in the area at that time. ...
Behavior and Appearance of the Driver
There was nothing unusual about Defendant's appearance but his driving behavior significantly contributes to a finding of reasonable suspicion. Agent Gonzalez saw the sedan driving north on Brooks Road. Agent Munoz, with the help of a drone, saw the same car pull over for 30 seconds then pull back out onto Brooks Road, this time heading south. From his vantage point, Agent Munoz was able to see what happened while the sedan had pulled over. Indeed, he saw two “heat sources” move from the brush toward the sedan. This scenario supported the agents' belief that the Defendant was involved in alien smuggling.
Characteristics of the Vehicle
Defendant was driving a dark colored sedan with distinct front lights. It was travelling on a poorly maintained dirt road in a remote area near the border. In the testifying agents' opinion, sedans do not comprise the local traffic due to the dirt potion of the road. Despite having enough information to conduct a lawful stop, Agent Gonzalez did one final thing-he conducted a records check on the sedan and learned that it was registered to a man from Avondale, Arizona which is approximately 250 miles from the Douglas area. In the agents' experience, it is a common tactic for load drivers to travel from the Tucson or Phoenix area for just a brief period and then return home.
Totality of Circumstances
Giving due weight to each of the above factors and considering them in the totality and in light of the Border Patrol agents' collective experience, this Court finds that the agents had reasonable suspicion to believe that Defendant was engaged in illegal activity. The stop comported with the Fourth Amendment. The Court will recommend that the District Count deny Defendant's motion to suppress stop.
II. Defendant's Motion to Dismiss Felon in Possession of a Firearm Charge on Second Amendment Grounds
Count Four of the indictment charges Defendant with possession of a firearm and ammunition by a convicted felon pursuant to 18 U.S.C. § 922(g)(1) and 924(a)(2). Doc. 7. The defense argues that the felon in possession statute is an unconstitutional infringement of his Second Amendment right to bear arms.
On June 23, 2022, the United States Supreme Court laid out a modified standard for courts to use when analyzing firearm regulations. In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111, 2126 (2022), the Court held that only if a firearm regulation is consistent with our country's historical tradition, may a court conclude that a person's conduct falls outside of the Second Amendment's “unqualified command.” The Court also stated that because the Constitution presumptively protects individual conduct covered by the Second Amendment's plain text, the government has the burden to justify its regulation by demonstrating not simply that the regulation promotes an important interest, but that it is consistent with our country's historical tradition of firearm regulation. Bruen, 142 S.Ct. at 2118-19.
Post-Bruen, the Court of Appeals for the Third Circuit was the first to address the constitutionality of the felon in possession statute. That circuit court summarized:
Based on history and tradition, we conclude that “the people” constitutionally entitled to bear arms are the “law-abiding, responsible
citizens” of the polity, . . . a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range falls within “the people,” the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition. Accordingly, because Range's felony-equivalent conviction places him outside the class of people traditionally entitled to Second Amendment rights, and because the Government has shown the at-issue prohibition is consistent with historical tradition, we will affirm the District Court's summary judgment in favor of the Government.Range v. Attorney General, 53 F.4th 262, 285 (3d Cir. 2022).
A significant number of lower courts throughout the country have also considered the constitutionality of the felon in possession statute post-Bruen. In each case, the deciding court upheld Section 922(g) as constitutional. See United States v. DaSilva, No. 3:21-cr-267, 2022 WL 17242870 (M.D. Pa. Nov. 23, 2022); United States v. Willis, No. 22-cr-00186-RMR, 2022 WL 1717747 (D. Co. Nov. 23, 2022); United States v. Teerlink, No. 2:22-cr-0024-TS, 2022 WL 17093425 (D. Utah Nov. 21, 2022); United States v. Gray, 22-cr-00247-CNS, 2022 WL 16855696 (D. Colo. Nov. 10, 2022); United States v. Baker, No. 2:20-cr-00301-DBB, 2022 WL 16855423 (D. Utah Nov. 10, 2022); United States v. Carpenter, No. 1:21-cr-00086-DBB, 2022 WL 16855533 (D. Utah Nov. 10, 2022); United States v. Reese, 19-cr-257, 2022 WL 16796771 (W.D. Pa. Nov. 8, 2022); United States v. Young, Criminal No. 22-054, 2022 WL 16829260 (W.D. Pa. Nov. 7, 2022); United States v. Butts, No. CR 22-33-M-DWM, 2022 WL 16553037 (D. Mont. Oct. 31, 2022); United States v. Minter, No. 3:22-CR-1353, 2022 WL 10662252 (M.D. Pa. Oct. 18, 2022); United States v. Trinidad, Crim. No. 21-398 (SCC), 2022 WL 10067519 (D.P.R. Oct. 17, 2022); United States v. Ridgeway, No. 22-cr-175-CAB, 2022 WL 10198823 (S.D. Cal. Oct. 17, 2022); United States v. Raheem, No. 3:20-cr-61-RGJ, 2022 WL 10177684 (W.D. Ky. Oct. 17, 2022); United States v. Carrero, No. 2:22-cr-00030, 2022 WL 9348792 (D. Utah Oct. 14, 2022); United States v. Riley, No. 1:22-cr-163 (RDA), 2022 WL 7610264 (E.D. Va. Oct. 13, 2022); United States v. Price, No. 2:22-cr-00097, 2022 WL 6968457 (S.D. W.Va. Oct. 12, 2022); United States v. Daniels, No. 1:03-cr-00083-MR, 2022 WL 5027574 (W.D. N.C. Oct. 4, 2022); United States v. Charles, No. MO:22-CR-00154-DC, 2022 WL 4913900 (W.D. Tex. Oct. 3, 2022); United States v. Siddoway, No. 1:21-cr-00205-BLW, 2022 WL 4482739 (D. Idaho Sept. 27, 2022); United States v. Collette, No. MO:22-CR-00141-DC, 2022 WL 4476790 (W.D. Tex. Sept. 25, 2022); United States v. Coombes, No. 22-CR-00189-GKF, 2022 WL 4367056 (N.D. Okla. Sept. 21, 2022); United States v. Hill, No.: 21-cr-107 WQH, 2022 WL 4361917 (S.D. Cal. Sept. 20, 2022); United States v. Cockerham, No. 5:21-cr-6-DCB-FKB, 2022 WL 4229314 (S.D.Miss. Sept. 13, 2022); United States v. Jackson, No. CR 21-51, 2022 WL 4226229 (D. Minn. Sept. 13, 2022); and United States v. Ingram, No. 0:18-557-MGL-3, 2022 WL 3691380 (D.S.C. Aug. 25, 2022).
In this case, the Government argues just as the government did in Range, that under Bruen's newly modified analytical standard, the federal felon in possession statute is constitutional on its face and as applied. This Court agrees and adopts the thorough and well-reasoned analysis and decision issued by the Third Circuit in Range. The Government has met its burden of demonstrating that prohibiting an individual previously convicted of a felony from possessing a firearm is consistent with this country's historical tradition of firearm regulation.
The Court will recommend that the District Count deny Defendant's motion to dismiss.
III. Recommendation for Disposition by the District Judge
Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and Local Rule Civil 72.1, Rules of Practice of the United States District Court, District of Arizona, the Magistrate Judge recommends that the District Court, after an independent review of the record, DENY Defendant's Motion to Suppress Stop (Doc. 20) as well as Defendant's Motion to Dismiss Felon in Possession of a Firearm Charge on Second Amendment Grounds (Doc. 13).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment in the case.
Pursuant to 28 U.S.C. §636(b)(1)(B), the parties have fourteen (14) days from the date of this Report and Recommendation to file written objections to these findings and recommendations with the District Court. Any Objections and Responses to objections filed should be filed as CR 22-1969-TUC-JGZ. No Replies shall be filed unless leave is granted from the District Court.