Opinion
4:21-mj-01720-TUC-N/A(LAB)
03-02-2022
United States of America, Plaintiff, v. Thomas Edward Ochoa, Defendant.
REPORT AND RECOMMENDATION
Honorable Leslie A. Bowman United States Magistrate Judge.
The District Court referred this case to the Magistrate Judge for a Report and Recommendation on Defendant's Motion to Dismiss for Lack of Reasonable Suspicion to Stop, filed on 1/12/22. (Doc. 26) The defendant, Thomas Edward Ochoa, argues that United States Border Patrol (USBP) agents stopped his vehicle without reasonable suspicion, in violation of his Fourth Amendment rights.
The Court characterizes the motion as a motion to suppress evidence.
The government filed its response on 1/28/22. (Doc. 30) Its position is that there was reasonable suspicion to support the stop, based on the totality of the circumstances.
An evidentiary hearing was held on 2/17/22. USBP Agent Deborah McElroy and Supervisory USBP Agent Steven Hoogasian testified for the Government. The defendant called no witnesses. Defense Exhibits 51, and 53(a) and (b) were admitted without objection.
Charge :
The defendant is charged in a two-count complaint with conspiracy to transport undocumented aliens and transportation of undocumented aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and 8 U.S.C. §§ 1324(a)(1)(A)(v)(I) and (a)(1)(B)(ii).
Motion to Suppress Evidence :
The defendant argues that his Fourth Amendment rights were violated when USBP agents stopped the vehicle he was driving without reasonable suspicion to believe that a crime had been committed and that he was the person who committed the suspected crime. Mr. Ochoa claims that the factors cited by the government witnesses do not rise to the level of reasonable suspicion and are all subject to innocent explanations.
The Magistrate Judge recommends that the District Court, after its independent review, DENY Defendant's motion to suppress evidence and to dismiss the complaint. There was reasonable suspicion to conduct the stop.
Procedural Background and Facts :
Mr. Ochoa was arrested on 8/29/21. A criminal complaint was filed on 8/30/21. (Doc. 1) On 9/21/21, 11/10/21 and 1/20/22, Unopposed Motions for Extensions of Time to Indict were filed. (Docs. 20, 22 and 27) The motions were granted. (Docs. 21, 23 and 28)
Deborah McElroy testified that she has been a USBP agent for three years, stationed in Sonoita, Arizona. (RT 6:10, 19-20) On 8/29/21 she started her shift at 2:00 pm with muster, a briefing where agents are assigned their duties for the day and are provided with information from intelligence agents. (RT 6-7:21-22, 24, 1-4, 8-10) On that day the agents were advised that there were a group of undocumented non-citizens waiting in Acorn Wash to be picked up. (RT 7:22-24) That is an area that is less than a mile from the international border and is well-known for alien smuggling. (RT 8:3-4, 2223)
Agent McElroy was in her marked Border Patrol vehicle when an F-150 truck coming westbound caught her attention. (RT 8-9:6-7, 24-25, 1, 3, 5) It was coming from the area of Acorn Wash. (RT 9:23-24) The truck looked out of place because it had aftermarket rims, extremely dark tint on the windows and old English lettering and stickers on the rear window. (RT 10:3-6, 23-24) As Agent McElroy began to follow the truck. it slowed down and hesitated at a split in the road before it continued down FSR 227. (RT 11-12:3-4, 25, 1-3) The truck had been traveling faster than normal traffic in the area and noticeably slowed down when she pulled behind it. (RT 12:10-11) The driver and passenger put their arms out their windows and seemed to be trying to get Agent McElroy to pass them. (RT 12-13:15-18, 1-2) It is unusual for people to slow down when she pulls out in front of or behind them because they are familiar with the area. (RT 2122:25, 1-2)
Agent McElroy and the truck were traveling northbound on FSR 227 where there had been a trend of increased alien smuggling. (RT 11:14, 17-19) She saw another Border Patrol vehicle traveling southbound on FSR 227. (RT 13:3-5, 7) As it passed the truck it stopped, and Agent McElroy pulled up next to it. (RT 13:10-11) Agents Gerardo Delgadillo and Steve Hoogasian were in the vehicle. (RT 13:18-19) She asked them if they saw anything unusual about the occupants of the truck. (RT 13:21-22) Agent Hoogasian said the driver and passenger were Hispanic, they had tattoos, and the driver was wearing a baseball cap with a straight brim and a red t-shirt. (RT 13-14: 24-25, 1-2; 23:22)
Agent McElroy caught back up to the vehicle and called in a records check on the license plate. (RT 14:4-6) The license plate came back to a VW Jetta. (RT 14:9) She engaged her emergency lights and siren to initiate a vehicle stop. (RT 14:12-13) The driver pulled to the side and started to slow down but did not come to a full stop. (RT 14: 16-17) She hit her horn, and the vehicle finally stopped. (RT 14:17-18)
Once the truck stopped Agent McElroy approached the driver's side and noticed the license plate included a Z, not a 7. (RT 15:3, 7) She called the corrected plate in and was advised that the vehicle matched the plate, and the registered owner was Thomas E. Ochoa out of Tucson. (RT 15:8, 11-12, 14-15) Meanwhile, the other two agents arrived, and Agent Hoogasian approached the passenger side of the truck. (RT 14-15:24-25, 1-3) The driver was Thomas Ochoa. (RT 15:20-21, 24)
Agent McElroy testified that in the last six to eight months she has processed at least 20 cases for alien smuggling along that route. (RT 20:1-2, 3, 6) She has not pulled over any vehicle on that route that was not smuggling aliens. (RT 20:14-15)
Steven Hoogasian testified that he has been a supervisory USBP agent for the last five years and has been with Border Patrol at the Sonoita station for 15 years in total. (RT 31:1-2, 7, 11) That station covers the Acorn Wash area which runs into Mexico and is about 1/2 to 3/4 of a mile north of the international border. (RT 31:19-20, 22-23, 25, 1-2) On 8/29/21 he was on duty beginning at 1:00 pm. (RT 32-33:22-24, 2, 6, 9) Daily muster was at 2:00 pm.
There has been a significant spike in criminal activity on the border. (RT 33:1718) On 8/29/21 there were confirmed reports of a staging group in Acorn Wash waiting to be picked up, which had become a nearly everyday occurrence. (RT 33:21-23) On the day in question there were two other active vehicle stops that resulted in apprehensions of alien smuggling loads. (RT (RT 35:8-10) There is a pattern of Acorn Wash and the surrounding canyons being used on almost a daily basis for smuggling. (RT 35:10-12) Forest Service Road (FSR) 61 is a common route of illegal traffic, allowing rapid movement east/west so vehicles can load in the low spots near the border and then get out of the area quickly. (RT 35:15-18) The road is within two miles to about a half a mile from the international border. (RT 35:21-23) Agents were getting three or four smuggling loads a day in the area which is nearly a 500% increase from the station's previous apprehension numbers. (RT 48:16-19)
On 8/29/21 Agents Hoogasian and Delgadillo were riding together in a marked Border Patrol vehicle, driving south on FSR 227 at about 5:00 pm when they saw Agent McElroy. (RT 36:7-8, 17, 24-25; 37:5-9) Agent Delgadillo was driving and Agent
Hoogasian was operating the radio. (RT 37: 2-3) Agent McElroy was driving northbound following a pickup truck. (RT 37:16) The agents heard information on the radio that caused them to head in her direction because she was working alone. (RT 37:19-20) She asked the agents if they could look into the truck as they drove by to provide her with additional information that might help her develop reasonable suspicion to conduct a stop. (RT 38-39:25, 1-4)
Agent Hoogasian radioed to Agent McElroy that there were two Hispanic people in the truck, and the driver was wearing a red basketball jersey and a flat-brim hat. (RT 38:4-5; 39:4, 17) Since it's a remote area, the agents mainly see ranchers and people who are lost. (RT 38:17-19) Hunters generally avoid the area near the border because of smuggling and dangerous traffic. (RT 38:19-21) The truck Agent McElroy was following had not been seen in the area before. (RT 38:13-15) Agent Hoogasian has met most of the locals in the area. (RT 40:21-22) He's met some of their ranch hands and knows generally what they look like, how they dress and the vehicles they drive. (RT 41:1-4) He noticed that the occupants were wearing clothing that is worn by people in the city and doesn't fit the area. (RT 39:11-13) Also, people in that attire cruising through that area raised suspicions because they matched the look of people apprehended in multiple other smuggling loads throughout the year. (RT 39:17-20)
Agent Delgadillo turned the vehicle around and followed Agent McElroy. (RT 42:15-16) She conducted a vehicle stop by activating her lights and sirens. (RT 42:17-18) Agent Hoogasian thought they were in for a chase because the vehicle did not speed up or slow down. (RT 42-43:24, 10-13) It rolled for about 20 seconds before the truck came to a stop, as if they were deciding whether to stop or run. (RT 43:11-13, 15) It took the truck longer than average to stop, especially in an area where it is so easy to stop. (RT 46:4-7) Agent Hoogasian approached the passenger side while Agents McElroy and Delgadillo approached the driver's side. (RT 43:18-20)
Discussion :
A law enforcement officer may make an investigatory stop of a vehicle if there is “reasonable suspicion” to believe that criminal activity “may be afoot.” U.S. v. Arvizu, 534 U.S. 266, 273 (2002); Terry v. Ohio, 319 U.S. 1 (1968). The Ninth Circuit has defined reasonable suspicion as “a particularized and objective basis for suspecting the particular person stopped of criminal activity. U.S. v. Valdes-Vega, 783 F.3d 1074, 1078 (9th Cir. 2013) (quoting Cotterman, 709 F.3d at 968).
Reasonable suspicion must be more than a mere “hunch,” but it is a low bar and does not require probable cause. Arvizu, 534 U.S. at 274. Reasonable suspicion requires considerably less proof of wrongdoing than that required to satisfy the preponderance of evidence standard. U.S. v. Sokolow, 490 U.S. 1, 7 (1989). “In determining whether a stop was justified by reasonable suspicion, we consider whether, in light of the totality of the circumstances, the officer had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.'” U.S. v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007) (quoting U.S. v. Cortez, 449 U.S. 411, 417-18 (1982)).
The totality of the circumstances includes, but is not limited to: (1) the characteristics of the area where the vehicle is encountered; (2) the vehicle's proximity to the border; (3) traffic patterns and information about previous illegal border crossings in the area; (4) whether certain types of vehicles are frequently used to transport contraband or undocumented people; (5) erratic behavior on the part of the driver or attempts to evade law enforcement; and (6) whether the vehicle is heavily loaded or has an unusual number of passengers. U.S. v. Brignoni-Ponce, 422 U.S. 873, 884-885 (1972). Although each factor may be subject to an innocent explanation, a divide-and-conquer analysis was precluded by the Supreme Court in the Terry decision. U.S. v. Arvizu, 534 U.S. 266, 274 (2002)
An officer's training and experience may be considered in his or her assessment of the facts so long as inferences drawn are objectively reasonable. Arvizu, 534 U.S. at 273; Cortez, 449 U.S. at 418; U.S. v. Montero-Camargo, 208 F.3d 1122, 1131 (9th Cir. 2000, en banc). The Supreme Court “has emphasized that even when factors considered in isolation from each other are susceptible to an innocent explanation, they may collectively amount to a reasonable suspicion.” U.S. v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007) (quoting U.S. v. Arvizu, 534 U.S. 266, 274 (2002)). In such cases, the Supreme Court instructs the Court “to give due weight to the factual inferences drawn by law enforcement officers.” Id. (quoting U.S. v. Cortez, 449 U.S. 411, 417-18 (1981)). “If the initial stop was unconstitutional, then all evidence seized as a result of the stop must be suppressed as the fruit of the poisonous tree.” U.S. v. Morales, 252 F.3d 1070, 1073 (9th Cir. 2001).
In the present case, the USBP agents involved in the stop had been briefed earlier that day about undocumented non-citizens waiting in Acorn Wash to be picked up. Acorn Wash is a canyon that lies on both sides of the international border between the United States and Mexico. It is known to the agents as an area used for alien smuggling and was used on almost a daily basis by smugglers in the few months preceding the vehicle stop. Agent McElroy testified that there were two alien smuggling apprehensions within an hour of each other earlier in her shift. She was involved in about 20 cases of transportation of undocumented aliens in the area in the prior 5 to 6 months. The number of apprehensions in the area had increased nearly 500% around the time the truck was stopped. The truck was traveling in an area that was within 1/2 to 2 miles from the international border.
Agent McElroy first saw the Ford F-150 truck coming from the direction of Acorn Wash. She thought the driver's actions were suspicious. He had been driving faster on the dirt road than locals usually drive. He slowed down when the agent began following him. He gestured with his arm out the window which the agent believed indicated that he wanted the agent to pass him. No one in the area has done that to Agent McElroy before. She noticed the truck had after-market rims of a type not seen on local vehicles. The window tint was extremely dark, which is not typical of local vehicles.
When Agent Hoogasian and his partner Agent Delgadillo passed the truck, Agent Hoogasian noticed two Hispanic people in the driver's and front passenger's seats. The driver was wearing a red basketball jersey and a flat-brim hat, both of which are more commonly seen on people from the city, not ranchers or hunters. The passenger had a sleeve of tattoos and tattoos on his hand. The truck had old English lettering on the rear window which was out of place for the area. These observations were relayed to Agent McElroy before she initiated the vehicle stop. The agents are familiar with the locals and their vehicles. The agents did not recognize the truck in question as being from the area.
Agent McElroy determined that she had reasonable suspicion to conduct an investigatory stop. She called in the license plate number and was told that it returned to a VW Jetta. The mismatch added to her suspicion. She engaged her lights and siren. The driver slowed but did not stop the vehicle right away. They were on a narrow dirt road with no other traffic and no reason not to stop immediately. Agent McElroy used her horn to get the driver to stop. As Agent McElroy approached the rear of the vehicle, she realized that the license plate number included a Z, not a 7, which she had originally called in. When she called in again with the correct information, the plate came back to the truck and was registered to the driver.
In analyzing the factors set forth in Brignoni-Ponce, the Court finds that there was reasonable suspicion for the stop. The truck was less than a mile from the international border in an area well-known for alien smuggling. Two alien smuggling apprehensions had occurred in the few hours prior to the stop and Agent McElroy participated in about 20 other apprehensions in the area in the prior 5 to 6 months. There were reports of groups of undocumented people waiting in the area to be picked up. The agents did not recognize the defendant's truck as local to the area. The truck and its driver and passenger did not fit the typical appearance of vehicles and people in the area where ranchers, hunters and lost motorists are most frequently encountered. The driver's behavior was unusual in that he drove faster than most locals, reacted to USBP presence by slowing and tried to wave the agent to pass. The driver failed to yield promptly.
Recommendation :
In view of the foregoing, it is recommended that, after its independent review of the record, the District Court DENY the defendant's motion to dismiss for lack of reasonable suspicion to stop (Doc. 26)
The defendant may serve and file written objections within 14 days. If objections are not timely filed, the party's right to de novo review may be waived. No reply to objections shall be filed unless leave is granted from the District Court.
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.