Opinion
CR-23-01516-001-TUC-SHR (BGM)
02-15-2024
United States of America, Plaintiff, v. Omar Ali Olmos, Defendant.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald, United States Magistrate Judge.
Before the Court is Defendant Omar Olmos's Motion to Suppress Stop Based on Lack of Reasonable Suspicion to Conduct Investigatory Stop. (Doc. 19.) Pursuant to LRCrim 5., this matter was referred to Magistrate Judge Bruce G. Macdonald for an evidentiary hearing and a report and recommendation. (See Doc. 33 at 1.) The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motion to suppress evidence.
The abbreviation “Tr.” is used to designate the official transcript of the January 3, 2024 evidentiary hearing on Defendant's motion to suppress. (See Doc. 41.) .
FACTUAL FINDINGS
Investigatory Stop
On September 6, 2023, Border Patrol Agent John Dapuzzo was driving south on State Route 286 toward the United States-Mexico border outside of Sasabe, Arizona. (Tr. 10:4-18.1) On the drive, Dapuzzo noticed a car overloaded with passengers driving in the opposite direction. (Id. 10:17-19.) Not recognizing the vehicle, and finding an overloaded car driving into a desolate area suspicious, Dapuzzo turned around and began to follow the vehicle. (Id. 8:15-17; 11:7-19.) Once behind the sedan, Dapuzzo ran a records check using the car's license plate number and the state of issuance. (Id. 11:19-20; 23:13-24.) One of the records-check returns indicated that the car had just crossed the Sasabe Port of Entry with only one occupant-the car's driver, Omar Olmos. (Id. 11:19-23.)
As soon as Dapuzzo caught up to Olmos's vehicle, Olmos reduced his speed and began to watch his mirrors. (Id. 12:4-10.) As Olmos's car approached the intersection of Highway 286 and Arivaca Sasabe Road, his car came to a near complete stop to make the turn onto Arivaca Sasabe Road. (Id. 12:17-21.) Shortly after Olmos made the turn, Dapuzzo activated the emergency lights on his marked Border Patrol truck and initiated a traffic stop. (Id. 13:9-11.) After Dapuzzo activated his lights, Olmos abruptly pulled over to the side of the road. (Id. 14:13-14.) Upon pulling over, the passenger-side doors of Olmos's car suddenly opened and multiple passengers wearing camouflage pants fled into the desert. (Id. 14:14-16; 15:17-22.)
Evidentiary Hearing
On January 3, 2024, the Court held an evidentiary hearing on Olmos's motion to suppress. (See Doc. 36.) At the hearing, Agent Dapuzzo and Defendant Olmos both testified. (Tr. 6:14-28:18; 30:14-42:23.)
On direct examination, Dapuzzo testified that he has worked for the United States Border Patrol going on fourteen years. (Id. 6:14-16.) Over the past six years, he has been stationed in Tucson, Arizona, where he has been part of the Highway Interdiction Team and the Border Apprehension and Interdiction Team. (Id. 6:25-7:6.) While in Tucson, Dapuzzo has been tasked with teaching Border Patrol trainees as a field training officer. (Id. 7:8-9.) He affirmed that part of his responsibilities as a Border Patrol agent is to develop reasonable suspicion pending immigration vehicle inspections. (Id. 7:14-17.)
Dapuzzo affirmed that he is familiar with the area surrounding the Sasabe Port of Entry. (Id. 7:21-23.) He described the north side of Sasabe as having a total of three, occupied residences and one store. (Id. 8:2-4.) There are two individuals that reside year- round in Sasabe and every other house is abandoned. (Id. 8:6-8.) According to Dapuzzo, Sasabe is an area known for alien smuggling and is one of the easiest places to work vehicle traffic because it is such a desolate area. (Id. 8:8-16.) Sasabe is close to the border wall, and the south side of Sasabe is where migrants frequently come to start their journey into the United States. (Id. 8:17-19.) There are only three ranches north of Sasabe, and everything else is open desert. (Id. 8:19-22.) Dapuzzo estimated that the average travel time from the Port of Entry to milepost nine on Highway 286 is within ten to fifteen minutes. (Id. 9:4-8.)
Dapuzzo recalled that on September 6, 2023, he was driving south on his way to the border to assist with a family unit, when he encountered Olmos driving north on the same road. (Id. 10:12-18.) Dapuzzo could see through the windshield of Olmos's vehicle that there were “a lot of people in the car” and that it was “clearly overloaded.” (Id. 10:1811:6; 21:12-15.) He testified that when he sees cars that are not from the area, riding heavy in the rear, it is a good start to reasonable suspicion of alien smuggling. (Id. 11:9-17.)
On cross-examination, Dapuzzo explained that he ran a records check of Olmos's license plate through his phone. (Id. 23:20-24.) When Dapuzzo runs records checks through his phone, he inputs the license plate number and the plate's state of origin. (Id.) The records return indicates whether the vehicle is stolen, the make of the vehicle, and whether the vehicle has crossed the border within the last thirty to ninety days. (Id. 23:2424:21.) When Dapuzzo ran Olmos's license plate, the return indicated that Olmos had crossed the border at the Sasabe Port of Entry about ten to fifteen minutes earlier. (Id. 24:3-6.) Dapuzzo testified that he followed Olmos a half mile to a mile after Olmos turned right onto Arivaca Sasabe Road before activating his lights. (Id. 25:22-24.)
On direct examination, Olmos testified that at the time in question, he had been working as a ride-share driver for Uber and Lyft for a year and a half. (Id. 38:14-19.) He confirmed that he was driving a 2017 Hyundai Sonata, which had approximately 196,000 miles. (Id. 31:1-7.) Olmos conceded that he crossed from Mexico into the United States on September 6, 2023, through the Sasabe Port of Entry. (Id. 31:8-15.) He testified that he witnessed a marked Border Patrol vehicle rapidly approach his car from behind around mile mark nine on State Route 286. (Id. 33:9-23.) Olmos recalled that he moved his car partially to the side of the road to let the vehicle pass, and that when it did not pass, he returned his car to the center of the road. (Id. 33:24-34:9.)
Olmos stated that while his car's front windshield was not tinted, his rear and back windows were. (Id. 34:18-23.) To prevent his car from stalling on the road, Olmos explained that he has to slow down to slow speeds to make turns. (Id. 35:14-17.) During his slow turn onto Arivaca Sasabe Road, Olmos observed Agent Dapuzzo activate his emergency lights. (Id. 35:22-25.) Olmos then pulled his car over to the side of road where there was a clearing. (Id. 36:4-7.) Olmos asserted that at no time was he swerving within his lane, neither before nor after his turn onto Arivaca Sasabe Road. (Id. 36:17-25.)
On cross-examination, Olmos testified that his car's front and rear windows were marked with Lyft emblems to designate that he was a ride-share driver. (Id. 38:20-23.) When presented with a photo of the rear of his vehicle taken on the day in question that failed to show a Lyft emblem in the window, Olmos stated that the emblem was damaged when he got his car detailed but that the emblem on the front windshield was still there. (Id. 40:8-20.) Olmos then admitted that he was not working as a ride-share driver on the day in question. (Id. 40:21-24.) It was his day off. (Id. 41:11.) He also admitted that he crossed the Sasabe Port of Entry by himself that day and that when he was pulled over by Agent Dapuzzo, he had other passengers in his car. (Id. 42:10-15.) Olmos agreed that he did not pick up the passengers for Lyft or Uber because it was his day off. (Id. 42:16-23.)
PROCEDURAL HISTORY
On September 7, 2023, Olmos was charged with one felony count of transportation of illegal aliens for profit, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(B)(i), and one misdemeanor count of knowingly assisting illegal aliens, in violation of 8 U.S.C. § 1325(a)(1) and 18 U.S.C. § 3, for the events that transpired the previous day. (Doc. 1.) On October 2, 2023, Olmos filed his motion to suppress. (Doc. 19.) On October 13, 2023, the Government filed its response. (Doc. 24.) On November 3, 2023, Olmos entered a plea of not guilty to all pending counts. (Doc. 27.) Olmos failed to file a reply in support of his motion to suppress. On January 3, 2024, the Court conducted an evidentiary hearing on Olmos's motion to suppress and heard oral argument. (Doc. 36.) This Report and Recommendation follows.
LEGAL STANDARD
The Fourth Amendment's prohibition against unreasonable searches and seizures extends to brief investigatory stops. United States v. Jimenez-Medina, 173 F.3d 752, 754 (9th Cir. 1999). Roving Border Patrol agents may conduct brief investigatory vehicle stops without violating the Fourth Amendment, “if the [agent's] action is supported by reasonable suspicion to believe that criminal activity may be afoot.” United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). “Reasonable suspicion requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.” United States v. Thomas, 211 F.3d 1186, 1189 (9th Cir. 2000) (cleaned up). The government bears the burden of showing that reasonable suspicion exists to conduct a warrantless search. United States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012); see also 6 Wayne R. LaFave, Search and Seizure § 11.2(b) (6th ed. 2022). When making reasonable suspicion determinations, courts are to consider the “totality of the circumstances” of each case. Arvizu, 534 U.S. at 273.
DISCUSSION
Olmos brings the motion at hand asserting that he was subject to an unlawful stop because the Government failed to have any justification to stop him. (Doc. 19 at 5-6.) Olmos adds that, at best, the Border Patrol agent may have had a “hunch of wrongdoing,” but that a hunch is insufficient to establish the requisite level of reasonable suspicion for a warrantless search. (Id. at 7.) Olmos argues that the sum total of the facts surrounding his stop appears to be the standard pattern of contradictory, post hoc rationalizations on which the Government relies to conduct unlawful stops. (Id.) Olmos concludes his motion by asserting that it is clear that Border Patrol agents were only on a fishing expedition when they stopped his vehicle. (Id. at 8.)
The Government agrees with the majority of the background facts presented in Olmos's motion. (Doc. 24 at 1.) However, it asserts that while Border Patrol agents were following Olmos's vehicle, they were able to verify that he had gone through the Sasabe Port of Entry, alone, approximately fifteen minutes earlier. (Id. at 2.) It adds that agents encountered Olmos approximately nine miles from the Port of Entry, which is a distance they know typically takes around ten minutes to drive. (Id.) Based on this time discrepancy, the characteristics of the area, and the fact that Olmos now had four or five passengers in his car, the Government argues that agents had reasonable suspicion to suspect that Olmos made a short stop to pick up undocumented immigrants. (Id.) The Government argues that agents' suspicion was verified once Olmos's vehicle stopped and five suspected undocumented immigrants wearing camouflage fled into the desert. (Id.)
The issue for the Court to determine is whether Border Patrol agents had reasonable suspicion to conduct a brief investigatory stop of Olmos's vehicle in light of the totality of the circumstances. See Valdes-Vega, 738 F.3d at 1078-81. The Court concludes that government agents had reasonable suspicion of alien smuggling to stop Olmos's vehicle, and it recommends that his motion to suppress be denied.
I. Government Demonstrates Reasonable Suspicion for Stop
In the case of brief investigatory stops, it is the government's burden to demonstrate that a warrantless seizure does not violate the Fourth Amendment. Cervantes, 703 F.3d at 1141. An investigatory stop is constitutional when the stop is supported by reasonable suspicion that criminal activity may be afoot. Valdes-Vega, 738 F.3d at 1078. When analyzing whether a Border Patrol agent had sufficient reasonable suspicion to conduct a stop, courts look at the totality of the circumstances. Id. The totality of the circumstances may include: (i) characteristics of the area; (ii) proximity to the border; (iii) usual patterns of traffic and time of day; (iv) previous alien smuggling in the area; (v) behavior of the driver; (vi) the appearance of passengers; and (vii) the model and appearance of the vehicle. Id. at 1079. Not all of these factors must be present to justify reasonable suspicion, and “the facts must be filtered through the lens of the agents' training and experience.” Id.
At the evidentiary hearing on Olmos's motion to suppress, the Government offered sufficient, unrefuted evidence that Agent Dapuzzo had a particularized and objective basis to suspect that Olmos was engaged in alien smuggling to stop his vehicle. See United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 2013) (cleaned up) (“Reasonable suspicion is defined as a particularized and objective basis for suspecting the particular person stopped of criminal activity.”) Dapuzzo testified that he had been employed as a Border Patrol agent for nearly fourteen years, six of which were spent in or around the area in which Olmos's vehicle was stopped. (Tr. 6:23-7:23.) The agent gave an extensive overview of Sasabe, Arizona, and the land adjacent to State Route 286. (Id. 8:2-22.) Dapuzzo explained that before activating his emergency lights, he observed: a foreign, overloaded vehicle driving north into a desolate area on a stretch of road known for alien smuggling (id. 10:17-11:17); that there were so many passengers in the car that it appeared to be riding heavy in the rear (id.); that Olmos drove at unusual speeds in an atypical manner-slowing down considerably once Dapuzzo was behind him, closely watching his mirrors, and nearly coming to a complete stop to make a right turn onto an adjacent road (id. 12:4-25); and that Olmos had been the sole occupant of his car only minutes before he was spotted with his car overloaded with passengers (id. 8:23-9:11; 11:23-12:3). Olmos either failed to refute or conceded all of these facts at the evidentiary hearing on his motion to suppress. (See generally id. 30:14-42:23.)
The situation at hand is similar to the scenario in United States v. Valdes-Vega, 738 F.3d 1074 (9th Cir. 2013) (en banc). There, the United States Court of Appeals for the Ninth Circuit recommended a holistic “totality of the circumstances” view when analyzing an agent's reasonable suspicion to conduct an investigatory stop. See, e.g., 738 F.3d at 1078-81. The court reiterated that a totality-of-the-circumstances evaluation “precludes a divide-and-conquer analysis” because a suspect's seemingly innocuous acts, taken together, may warrant further investigation. Id. at 1078. The court also observed that prior decisions holding that certain reasonable suspicion factors were not probative, or were per se minimally probative, no longer complied with precedent. Id. at 1079. In light of this ruling, Olmos's remaining argument that he was subject to an unlawful stop because of impermissible, innocent reasons (see Doc. 19 at 7-8) is outdated and unavailing.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court DENY Defendant's Motion to Suppress Stop Based on Lack of Reasonable Suspicion to Conduct Investigatory Stop (Doc. 19).
Pursuant to Federal Rule of Criminal Procedure 59, any party may serve and file written objections within fourteen (14) days of being served a copy of this Report and Recommendation. Fed. R. Crim. P. 59(b)(2). A party may respond to the other party's objections within fourteen (14) days. LRCiv 7.2(c). No reply shall be filed unless leave is granted by the District Court. If objections are filed, the parties should use the following case number: CR-23-1516-SHR-1. Failure to file timely objections to any of the Magistrate Judge's factual or legal findings may result in waiver of the right of review.