Opinion
CR 07-1439-TUC-FRZ (HCE).
January 18, 2008
REPORT AND RECOMMENDATION
Defendant Arturo Santos-Granados (hereinafter "Defendant") filed a Motion to Suppress Evidence (Doc. No. 13) of a Glock 9 mm pistol allegedly possessed by him on July 11, 2007 at or near Tucson, Arizona. Defendant's Motion To Suppress came on for hearing on December 27, 2007.
For the reasons stated herein, the Magistrate Judge recommends that the District Court grant Defendant's Motion to Suppress Evidence of a Glock 9 mm pistol alleged in Count 1 of the Superceding Indictment.
I. PROCEDURAL AND FACTUAL HISTORY.
A. Charge
Defendant was charged by Indictment on August 8, 2007 with being an Illegal Alien In Possession of a Firearm in that on or about July 11, 2007 at or near Tucson, Arizona he knowingly possessed a Glock 9 mm, Model 17, bearing serial number HRK 332, which contained a magazine containing ten rounds of ammunition, said firearm being in and affecting commerce in that it was previously shipped and transported into the State of Arizona from another state or foreign country, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). (Doc. No. 6).
Defendant was charged by Superceding Indictment on December 12, 2007 with being an Illegal Alien In Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), as previously charged (Count 1). In addition, Defendant was charged with Illegal Re-entry After Deportation in that on or about July 11, 2007 at or near Tucson, Arizona Defendant was an alien previously denied admission, excluded, deported, and removed from the United States on January 10, 2000 and did not obtain the express consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission in violation of 8 U.S.C. § 1326 (Count 2). (Doc. No. 22).
B. Testimony
On December 27, 2007 U.S. Border Patrol Agent Christopher Lee Leblanc (hereinafter "BPA Leblanc") testified. BPA Leblanc is employed by Border Patrol and has received instruction at the Border Patrol Academy in, inter alia, vehicle stops. (BPA Leblanc testimony, Transcript p. 5 (hereinafter "Leblanc p.")). After attending the Border Patrol Academy, BPA Leblanc was paired with a journeyman agent and obtained practical experience. (Leblanc pp. 5-6). By this experience he learned about vehicles commonly used to smuggle large groups of people: vehicles that can have the backseats removed and/or have a large trunk space. (Leblanc p. 6).
BPA Leblanc has participated in over 100 arrests regarding alien smuggling and over 50 arrests regarding narcotics smugglers. (Leblanc p. 7).
On July 11, 2007 at the inception of rush hour, at approximately 5:45 p.m., BPA Leblanc was assigned as a field training officer for three other trainee agents. (Leblanc pp. 9, 27). He was in the front passenger seat of a marked Border Patrol vehicle driven by one of the three trainee agents. (Leblanc pp. 10, 14, 26). On this date and time BPA Leblanc and the trainee agents were southbound on the Nogales Highway 50 miles north of the United States — Mexico border. (Leblanc pp 10-11). The Nogales Highway runs north and south, to and from Nogales, Arizona and Tucson, Arizona. (Id.) The Nogales Highway runs parallel to Interstate 19 which also runs north and south, to and from Nogales, Arizona and Tucson, Arizona. (Id.)
Despite BPA Leblanc's characterization of traffic conditions as "rush hour", in his opinion there were not a lot of vehicles at that time. (Leblanc p. 27). BPA Leblanc also testified that ". . . the driver which keyed me initially was the — the driver. He sat up in the vehicle, sat up, sat rigid, grabbed a [sic] hold of the steering wheel, sat rigidly in the vehicle, stared straight forward, was not relaxed at all as he — you're coming up to no traffic people tend to be a little bit relaxed and a little casual as they drive . . ." (Leblanc p. 13) (emphasis added). Nonetheless, his reason for being suspicious about the Pontiac Grand Am in which Defendant was a passenger is because at ". . . this time of day, alien smugglers attempt to blend in with rush hour traffic." (Leblanc p. 27).
BPA Leblanc's attention was drawn to an oncoming northbound Pontiac Grand Am (hereinafter "Pontiac") red in color on the Nogales Highway because "[t]his is the type of vehicle that's commonly used to smuggle aliens in and/or contraband," i.e. the backseat can be removed to accommodate a large number of people with easy access to the back trunk which is a large space. (Leblanc pp. 11-12). BPA Leblanc was trained on the importance of preparing reports. (Leblanc p. 23). However, BPA Leblanc did not include in his report any information regarding the observed vehicle; could not testify as to the dimensions of the trunk space; and as to the year of the vehicle he ". . . want[ed] to say mid — 90's. I don't remember off the top of my head. I don't have the records check in front of me." (Leblanc pp. 28-31). Nothing was offered by BPA Leblanc in testimony or notation in his report that the Pontiac was riding low consistent with a "large number of people" or contraband in the trunk; or alternatively, that the Pontiac was equipped with modified suspension to accommodate a heavy load.
BPA Leblanc on Defendant's Exhibit 2, a diagram of Nogales Highway denoting in pink his vehicle southbound and denoting in green the Pontiac northbound when he first observed it, testified that he could see clearly into the vehicle and discerned the driver and front seat passenger were both males, were conversing, and the driver was driving in what he considered to be a relaxed posture. (Leblanc, pp. 12-13, 25). This observation was made from a distance of 150 yards. (Leblanc p. 26).
When BPA Leblanc's southbound vehicle passed the northbound Pontiac he noted that the driver would not make eye contact with him and instead stared straight ahead. (Leblanc pp. 13, 14). In his opinion they were acting nervous, i.e., sat straight, one gripping the steering wheel, and staring straight forward. (Leblanc pp. 13-14). He instructed the driver of his marked Border Patrol vehicle to turn around and follow the Pontiac (Leblanc p. 14). Once the Border Patrol vehicle was positioned behind the Pontiac, BPA Leblanc noted that over the span of five minutes the front seat passenger, later determined to be Defendant, looked over his shoulder "[p]robably two or three times." (Leblanc p. 16). In his experience this is an enormous number of looks to take. (Leblanc p. 34).
BPA Leblanc did not note in his report that at any time he saw in the Pontiac back seat a crying and restless child in a car seat later determined to be Defendant's son. (Leblanc pp. 31-33).
BPA Leblanc testified that the Pontiac was traveling north at approximately 40 miles per hour. (Leblanc p. 14). The driver of the Border Patrol vehicle followed the Pontiac for five minutes from "[p]robably one car length, two car lengths at the most." (Leblanc p. 15). During this time the driver of the Pontiac would look at his side view mirror and adjust the rearview mirror constantly. (Leblanc p. 15). BPA Leblanc testified that both the driver, and Defendant when looking over his shoulder, were looking to see what he was doing thus making him suspicious. (Leblanc pp. 15, 34):
Pursuant to Fed.R.Evid. 201, the Court takes judicial notice that a vehicle traveling 40 miles per hour will travel 3.33 miles in 5 minutes and of the mathematical equation to determine same ( e.g. 40 miles ÷ 60 minutes = .66 × 5 minutes = 3.33).
Q. Thank you. Then, as you turn around and you follow Granados as a passenger, and he turns around, that makes you suspicious?
A. Yes
Q. So you can't win. If a person doesn't look at you and looks rigidly ahead, he's suspicious, right?
A. Is [sic] this line of work, yes. You can't be —
Q. And if a person turns around and looks at you twice over a five minute period, that makes you suspicious, right?
A. As — it starts raising my level of suspicion, yes.
(Leblanc, p. 34).
During the five minutes that the Pontiac was being followed a records check on the license plate, which was a Nevada license plate, was run. (Leblanc p. 16). BPA Leblanc has conducted a number of stops of Nevada-licensed vehicles resulting in illegal aliens being discovered therein. (Leblanc p. 16). Also performed was a "1072 or a lane check which . . . [indicates] when that vehicle last crossed through the port of entry." (Id.) It was determined that the Pontiac had neither recently been in Mexico nor recently made an entry into the United States. (Id.) BPA Leblanc testified that this was significant because vehicles that go to Tucson, Nogales, Amado or Arivaca generally make a trip into Mexico. (Leblanc p. 17). Consequently, vehicles not going to Mexico ". . . potentially pick up illegal aliens." (Id.) However, "[t]hat's not one of the justifiable facts" but rather "potentially unusual." (Leblanc pp. 37-38).
BPA Leblanc testified that in his opinion other communities in the area, e.g. Tubac, Tumacacori, Carmen, Rio Rico, and Nogales, Arizona are little in number for utilization of the Nogales, Highway (Leblanc pp. 38-39). However, vehicles do utilize the Nogales Highway to avoid Interstate 19 traffic. (Leblanc p. 28). Moreover, the Interstate 19 Border Patrol checkpoint can be circumvented by use of the Nogales Highway. (Leblanc p. 39).
After following the Pontiac for five minutes the Border Patrol vehicle driver activated emergency equipment and the Pontiac immediately yielded without incident. (Leblanc p. 18). The driver and Defendant were questioned. Defendant was evasive regarding his identity and immigration status. (Leblanc pp. 18-19). After providing his true name and immigration status, Defendant was asked to step out of the vehicle and a search of his person was conducted. (Leblanc p. 19). A handgun was found in the small of his back in the waistband. (Leblanc p. 20).
BPA Leblanc was recently, or in the last seven years, disciplined for dishonesty as a Border Patrol Agent, specifically misuse of a government credit card. (Leblanc pp. 35-36).
II. LAW AND DISCUSSION
A. Standing
On July 11, 2007 Defendant was a passenger in a Pontiac driven by another. Such vehicle was stopped upon BPA Leblanc's instruction based in whole or in part on observations of the driver and/or Defendant. Once the Pontiac stopped, both the driver and Defendant were questioned while seated in the vehicle. Defendant was told to step out of the vehicle at which time he was searched.
It has long been settled under the Fourth Amendment that when an officer conducts a traffic stop, the driver and its occupants are seized. Delaware v. Prouse, 440 U.S. 648, 653 (1979) ("[s]topping an automobile and detaining its occupants constitute a `seizure' within the meaning of [the Fourth and Fourteenth] Amendments. . . ."); Colorado v. Bannister, 449 U.S. 1, 4 n. 3 (1980) ( per curiam) ("There can be no question that the stopping of a vehicle and the detention of its occupants constitute a `seizure' within the meaning of the Fourth Amendment."); Berkemer v. McCarty, 468 U.S. 420, 436-437 (1984) ("[W]e have long acknowledged that stopping an automobile and detaining its occupants constitute a `seizure.'"); United States v. Hensley, 469 U.S. 221, 226 (1985) ("[s]topping a car and detaining its occupants constitute a seizure"); Whren v. United States, 517 U.S. 806, 809-810 (1996) ("Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of [the Fourth Amendment]"); United States v. Colin, 314 F.3d 439, 442-443 (9th Cir. 2002) ("We have held that occupants of a vehicle have standing to challenge on Fourth Amendment grounds an officer's stop of their vehicle even if they have no possessory or ownership interest in the vehicle."); United States v. Twilley, 222 F.3d 1092, 1095 (9th Cir. 2000) (same).
When the traffic stop of the Pontiac occurred, Defendant as a passenger was seized for Fourth Amendment purposes and may challenge the stop's constitutionality. Brendlin v. California, ___ U.S. ___, 127 S.Ct. 2400 (June 18, 2007).
B. Investigatory Stop
The Fourth Amendment's protection against unreasonable searches and seizures extends to brief investigatory stops of persons or vehicles shy of a traditional arrest. Terry v. Ohio, 392 U.S. 1, 9 (1968). The Fourth Amendment's strictures are satisfied if an officer's action is supported by reasonable suspicion to believe criminal activity is or may be afoot. United States v. Cortez, 449 U.S. 411, 417 (1981). The court must look at the "totality of the circumstances" of each case to determine whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Cortez, supra at 417-418).
An officer may evaluate facts supporting reasonable suspicion based on his experience and training. United States v. Montero-Camargo, 208 F.3d 1122, 1131 (9th Cir. 2000); see also Arvizu, 534 U.S. at 273. Experience alone may not be used to give an officer unbridled discretion in making a stop. Nicacio v. INS, 797 F.2d 700, 705 (9th Cir. 1986), overruled in part on other grounds in Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1986). "Reasonable suspicion" is based on specific articulable facts, together with rational inferences from those facts, that gives rise to individualized suspicion of the particular person to be stopped. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975); United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir. 1992), amended 997 F.2d 1306 (9th Cir. 1993), (Reasonable suspicion requires that the specific facts and inferences create suspicion "that the particular person detained is engaged in criminal activity."). However, the inferences that officers draw based upon their training and experience "must also be grounded in objective facts and be capable of rational explanation." United States v. Rojas-Millan, 234 F.3d 464, 469 (9th Cir. 2000). Reasonable suspicion cannot rely solely on generalizations that, if accepted, casts suspicion on large segments or entire categories of the law abiding population. United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2002).
1. Witness Credibility
The Court with ample opportunity observed and heard testimony given by the only witness called by the Government: BPA Leblanc. It is this Court's finding that testimony given by BPA Leblanc, as will be discussed below, was implausible and an unbelievable accounting of critical facts. See United States v. Hernandez-Acuna, 498 F.3d 942, 944 (9th Cir. 2007). The investigatory stop conducted by BPA Leblanc was based upon mere subjective impressions. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989). Inferences drawn therefrom were not reasonable. Cortez, 449 U.S. at 418. Consequently, BPA Leblanc's testimony was not credible.
2. Factors Giving Rise to the Stop a. Type of Vehicle
It stretches credulity to believe that BPA Leblanc was able to discern from 150 yards two conversing males, a driver and the front-seat passenger Defendant, in an approaching vehicle. What allegedly drew BPA Leblanc's attention to the on-coming vehicle was that it was a Pontiac Grand Am: a vehicle commonly used to smuggle aliens in and/or contraband because of access to the back trunk which is a large space. This Court finds that the more plausible and probable explanation for BPA Leblanc's attention being drawn to the vehicle from that distance was merely that it was the color red. This is particularly so given: 1) no mention of the make and model was indicated in his report; 2) even based on his training he could not offer any dimension of the trunk space of this make and model Pontiac accommodating to illegal aliens and/or contraband; 3) he could only venture a guess as to the year of the vehicle and would only be able to give such information by reference to a "records check" in front of him. (Leblanc pp. 30-31). Thus, any particularized attention to the vehicle make and model as used in legal wrongdoing, was non-existent at the initial observation. See Factor "c", infra, pp. 10-11.
Q. Did you read the Government's Response to the Motion to Suppress filed by the Defendant in this case?
A. Yes
Q. And you are aware that in that Motion — that that Response, the following is said. It says, the agent's attention was initially drawn to the vehicle because he knows that particular make and model of car is popular with narcotics and alien smugglers because of the large trunk capacity. Do you remember that statement —
A. Correct.
Q. — in the Response?
A. Yes
Q. All right. Now, this is precisely your testimony this morning, right?
A. Uh-huh.
Q. And that's precisely the observation that you didn't include in your report.
A. I didn't think it was relevant. (Leblanc p. 34-35) (emphasis added)
b. Rush Hour Traffic
BPA Leblanc testified that he wrote in his report that the time he observed the Pontiac was at 5:45 p.m. when alien smugglers attempt to blend in with rush hour traffic presumably raising his suspicion. This factor's importance dissipates entirely in light of BPA Leblanc's concession that 1) the Nogales Highway is used as an alternate route to avoid having to travel with rush hour traffic on Interstate 19 (Leblanc p. 28).; 2) there were not a lot of vehicles on the Nogales Highway (Leblanc p. 27); 3) there are any one of a number of communities in the area that would make use of the Nogales Highway. (Leblanc pp 17, 38-39).
More importantly, BPA Leblanc offered no testimony that may have otherwise given rise to reasonable inferences based on facts and his experience, such as: 1) the Nogales Highway is a notorious or well-known route used by smugglers; 2) recent activity of smuggling on the Nogales Highway; 3) a check point on Interstate 19 was in operation at that time such that a smuggler would circumvent it by using the Nogales Highway.
Testimony by BPA Leblanc relying on this factor in the panoply of considerations is solely a generalization casting suspicion on large segments of the law abiding population. Sigmond-Ballesteros, 285 F.3d at 1121; Montero-Camargo, 208 F.3d 1122 at 1129-33; Rodriguez, 976 F.2d at 595-596, amended 997 F.2d 1306. c. The Passby Observance
BPA Leblanc testified that the vehicle he was in was in the number 1 lane southbound while the Pontiac Grand Am was in the number 1 lane northbound. The two lanes are separated by a distance of five feet. (Leblanc p. 12). BPA Leblanc testified that the driver sat up rigidly and stared straight ahead avoiding eye contact with him or his vehicle. It is unknown whether eye contact was made with the other trainees accompanying BPA Leblanc in the Border Patrol vehicle. BPA Leblanc also conceded that if a person does or does not make eye contact raises his level of suspicion. (Leblanc p. 34). A driver's failure alone to look cannot weigh in the balance of whether there exists reasonable suspicion. Gonzalez-Rivera v. INS, 22 F.3d 1441, 1446-1447 (9th Cir. 1994).
As described by BPA Leblanc the number 1 lane is what is commonly referred to as the "fast lane". (Leblanc p. 12)
Otherwise seemingly innocuous behavior can justify a stop if combined with other circumstances that tend to arouse a reasonable suspicion that a particular person being stopped has committed or was about to commit a crime. Montero-Camargo, 208 F.3d at 1129-1130. In the instant case BPA Leblanc fails to support any reasonable suspicion of legal wrongdoing by failing to note that: 1) this commonly used Pontiac to transport illegal aliens and/or contraband had dark-tinted windows preventing him from looking into the vehicle; 2) the Pontiac looked suspiciously low indicating a load of contraband and/or a group of illegal aliens in the large trunk space; or 3) the Pontiac appeared to have modified suspension that would keep the vehicle from riding low so as to not draw attention, See United States v. Diaz-Juarez, 299 F.3d 1138, 1142 (9th Cir. 2002); 4) he made no effort to glance into the back seat area to determine whether the backseat was removed, (Leblanc p. 12); or 5) to see if there was any number of individuals seated, or even laying low to avoid detection. This Court finds that the reason that BPA Leblanc did not or would not acknowledge looking into the back seat is because he would have to concede: a) lack of visual acuity to ascribe legal wrongdoing by the presence of illegal aliens and/or contraband; or b) sufficient visual acuity to determine no legal wrongdoing. Either one would profoundly undermine his claimed subsequent observations discussed in the following Factor "d".
Q. Between the Number 1 lane southbound and the Number 1 lane northbound, was there a divider, a median?
A. There's a two-lane highway — or I'm sorry. There's two stripes there seperated probably by five feet as the cars pass.
Q. Nothing blocking your view?
A. No.
Q. Were you able to see into the car?
A. Yes.
(Leblanc p. 12) (emphasis added)
d. Observation While Following
Once BPA Leblanc's vehicle and the Pontiac passed each other, BPA Leblanc instructed his driver to make a u-turn and follow the Pontiac. (Leblanc p. 14). At this time the Pontiac was traveling at 40 miles per hour. (Id.) The Border Patrol vehicle BPA Leblanc was in followed the Pontiac for five minutes one car length to, at most, two car lengths behind. During this time the driver gripped the steering wheel and constantly looked at his side mirror and adjusted his rearview mirror. (Leblanc p. 15). On the other hand, Defendant in the front passenger seat conversed with the driver and looked back two or three times during the five minutes he was followed by the Border Patrol vehicle BPA Leblanc was in. (Leblanc pp. 15-16). Presumably BPA Leblanc was unaware of an infant in a car seat in the back seat of the Pontiac. However, BPA Leblanc was emphatic that the two or three times Defendant looked back Defendant was looking directly at him and at no other Border Patrol Agent or vehicle. (Leblanc p. 33). Based on his experience BPA Leblanc considered the two or three times Defendant looked back during a five minute "follow" was an "enormous number of looks." (Leblanc p. 34).
No description was provided as to hand placement or manner that characterizes "gripping."
During the five minutes the Pontiac was followed no evasive action or unusual driving behavior was observed such as speeding up or slowing down; exiting the Nogales Highway; stopping; or swerving in the lane. Illinois v. Wardlow, 528 U.S. 119, 124 (2000); see Diaz-Juarez, 299 F.3d at 1142-1143. Ultimately, the vehicle immediately yielded and pulled over without incident when the Border Patrol vehicle's emergency equipment was activated. (Leblanc p. 18).
A driver's preoccupation with a law enforcement vehicle following him is a natural reaction and is insufficient to justify an investigatory stop. United States v. Jimenez, 173 F.3d 752, 755 (9th Cir. 1999); United States v. Garcia-Camacho, 53 F.3d 244, 249 (9th Cir. 1995); United States v. Robert L., 874 F.2d 701, 703 (9th Cir. 1989).
Eye contact or lack thereof may be considered as a factor contributing to reasonable suspicion. However, whether eye contact is suspicious or not is highly subjective and can devolve into a case of "damned if you do, equally damned if you don't." Montero-Camargo, 208 F.3d at 1136; see Gonzalez-Rivera, 22 F.3d at 1446-1447; Nicacio v. INS, 797 F.2d 700, 704 (9th Cir. 1986); United States v. Mallides, 473 F.2d 859, 861 n. 4 (9th Cir. 1973).
. . . it is a common, if not universal, practice for drivers and passengers alike to take note of a law enforcement vehicle coming up behind them. In fact, the most law-abiding of citizens frequently adjust their driving accordingly.Montero-Camargo, 208 F.3d at 1136; see Garcia-Camacho, 53 F.3d at 247 ( citing Gonzalez-Rivera, 22 F.3d at 1447) ("A driver's failure to look at the Border Patrol car [cannot be used to justify the agent's suspicion] since the opposite reaction, a driver's repeated glancing at a Border Patrol car, can also be used to justify the agent's suspicion. To give weight to this type of justification `would put the officers in a classic `heads I win, tails you lose' position [and] the driver, of course, can only lose.'").
The driver of the Pontiac's preoccupation with the Border Patrol vehicle following him is reasonable and understandable. The preoccupation was arguably generated by the Border Patrol vehicle driver's own excessive driving actions:
The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent and shall have due regard for the speed of the vehicles on, the traffic on and the condition of the highway.
Ariz. Rev. Stat. § 28-730(A). This Court finds that following a vehicle for five minutes, or 3.33 miles, by "one car length, two car lengths at the most" is neither reasonable nor prudent. Common sense and experience holds that a vehicle following too closely would not have enough time to stop without hitting the other vehicle or running off the roadway. Law enforcement observing a vehicle following another vehicle too closely can amount to reasonable suspicion. See United States v. Chavez v. Valenzuela, 268 F.3d 719, 723-724 (9th Cir. 2001), amended 279 F.3d 1062 (2002), overruled on other grounds as discussed in United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007).
Officers are encouraged to draw upon their own specialized training and experience in assessing the "totality of the circumstances."Colin, 314 F.3d at 442 (emphasis added) (citing Arvizu, 534 U.S. at 272-275) "Certainly, an agent cannot create a situation which amounts to a dangerous driving condition, observe the drive react appropriately, and then base reasonable suspicion on the reaction because it somewhat comports with `suspicious behavior.'" Sigmond-Ballesteros, 285 F.3d at 1124. Herein, the Border Patrol vehicle driver instead subjectively created the eye-contact factor anteing to the totality of the circumstances. See Id. e. The License Plate and Lane Check
BPA Leblanc testified that he conducted a record check on the Pontiac's license plate and it was a Nevada license plate. (Leblanc p. 16). The Pontiac was stopped during a time period that BPA Leblanc had conducted an unknown number of vehicle stops of Nevada license-plated vehicles and had "gotten illegal aliens out of the vehicle." (Id.) Moreover, a 1072 or lane check was conducted to determine whether the vehicle had entered through the ports of entry from Mexico. (Leblanc p. 37). It had not. This raised his level of suspicion because "vehicles that come down into this area, down to Tucson or southern Tucson in Nogales or into Amado or Arivaca, generally make a trip into . . . Mexico" (Leblanc p. 17) and "[b]ecause vehicles come from out of town into local Tucson area or southern Tucson area and potentially pick up illegal aliens." (Id.)
Any weight that might be given to the aforementioned is nonexistent by BPA Leblanc's own words:
Q. Are you going to tell me that if you checked any vehicle in — in Nogales with out of state license plates, that if that vehicle has not recently crossed into Mexico, that automatically becomes a suspect vehicle for smuggling either aliens or narcotics?
A. That's not one of the justifiable facts or [sic] whether —
Q. Is that what you're saying?
A. No.
Q. All right. So there was nothing unusual about this — about the fact that this vehicle had not crossed into Mexico.
A. Yes, but potentially unusual around this area.
(Leblanc pp. 37-38). Conduct not necessarily indicative of criminal activity may, in certain circumstances, be relevant to the reasonable suspicion calculus. See Wardlow, 528 U.S. 119.
At the same time, however, innocuous conduct does not justify an investigatory stop unless there is other information or surrounding circumstances of which the police are aware, which when considered along with the otherwise innocuous conduct, tend to indicate criminal activity has occurred or is about to take place.Montero-Camargo, 208 F.3d at 1130. The officer must be able to articulate more than a mere "inchoate and unparticularized suspicion or `hunch'" of criminal activity. Terry, 392 U.S. at 27.
f. Proximity to the Border
Proximity to the border may be considered as a factor in the reasonable suspicion calculus. Diaz-Juarez, 299 F.3d at 1142. The instant case occurred on the Nogales Highway between Tucson and Nogales, Arizona, i.e. within 60 miles from the Unites States-Mexico Border.
III. CONCLUSION
The requirement of particularized suspicion encompasses two elements. First, the assessment must be based upon the totality of the circumstances. Cortez, 449 U.S. at 418. The "totality of the circumstances" precludes a "divide and conquer" analysis, i.e., evaluation and rejection of factors in isolation from each other. Arvizu, 534 U.S. at 274. Second, the assessment must arouse a reasonable suspicion that the particular person being stopped has committed or is about to commit a crime. Cortez, supra at 418. Reasonable suspicion cannot be based on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped. United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir. 1994), overruled in part on other grounds, Montero-Camargo, 208 F.3d at 1131-1132; Sigmond-Ballesteros, 285 F.3d at 1121.
The Government herein argues that an investigatory stop was supported by reasonable suspicion. The Government tendered a rote recitation of factors by BPA Leblanc of innocent driving behavior asking the court to embrace it as criminal behavior to a trained and experienced eye.
In sum, the totality of the circumstances are that BPA Leblanc spotted a red Pontiac Grand Am on the Nogales Highway at 5:45 p.m., which was rush hour when smugglers attempt to blend in with traffic. (Leblanc p. 27). There is a tremendous amount of traffic on Interstate 19 at this time. (Leblanc p. 28). The location is a probative factor for the obvious reason: transporting illegal aliens and/or drugs at the most immediate point of their introduction into the United States. The time of day is marginally probative to the instant reasonable suspicion analysis because both smugglers and law-abiding individuals will use Nogales Highway as an alternate route to driving on Interstate 19 at rush hour. (Id.) Consequently, driving in rush hour on either heavily-traveled Interstate 19 or the sparsely-traveled Nogales Highway during rush hour would always be suspect.
BPA Leblanc testified that the Pontiac Grand Am is a vehicle commonly used to transport illegal aliens because of access from the back seat to large trunk space. Yet he does not mention this in his report because it was not relevant. (Leblanc p. 35). He states that it was important to testify regarding the use of this type of vehicle only after reading the Government's Response to Defendant's Motion to Suppress. Nonetheless, BPA Leblanc fails to provide a rational explanation as to why this particular Pontiac Grand Am was suspect. See Rojas-Millan, 234 F.3d at 469 (citation omitted) (The inferences that officers draw based upon their experience "must also be grounded in objective facts and be capable of rational explanation.") BPA Leblanc did not note tinted windows; did not note the presence of persons in the back; did not note whether the back seat appeared to have been removed; did not note if the vehicle was riding low; did not note if the vehicle had modified suspension. Any one of these conditions would have otherwise aroused individualized suspicion upon the driver of the Pontiac. Many innocent individuals purchase vehicles with large trunk space including space behind the back seat in which a person or luggage might fit. Rodriguez, 976 F.2d at 596, amended 997 F.3d 1306; (Leblanc p. 31). Thus, this Court is constrained to conclude that nothing about the fact of driving a Pontiac Grand Am at rush hour on the Nogales Highway suggests that the Pontiac was then about to be used or being used to commit a crime.
When BPA Leblanc passed the Pontiac going in the opposite direction, the Pontiac's driver did not make eye contact with him. However, after BPA Leblanc's vehicle began following the Pontiac, the Pontiac's driver adjusted the rearview mirror and looked out his side mirror. The Pontiac driver adjusting the rearview mirror and preoccupation with the Border Patrol vehicle following unreasonably and improvidently close, by looking at the side and rear view mirror is a normal reaction. Further, the front seat passenger Defendant glancing two or three times over a five minute period is not extraordinary in number and in BPA Leblanc's opinion unreasonably and subjectively narrows the occasion to glance back to "none or one." Both the Pontiac driver and Defendant making eye contact, in light of the unsafe manner the Border Patrol vehicle was following, was not unreasonable. See Sigmond-Ballesteros, 285 F.3d at 1124, 1127 (excluding from the reasonable suspicion analysis the defendant's "appropriate reactions" to the agent's unsafe driving behavior). Moreover, the claimed eye contact between Defendant and only BPA Leblanc and no other agent does not ring true. This testimony undercuts BPA Leblanc's earlier testimony that he found suspicious the Pontiac's driver failure to make eye contact when he passed by the Pontiac. As stated before, making eye contact or failing to do so, without more, is not probative to this reasonable suspicion calculus. Additionally, the Pontiac did not speed up or slow down. It was not driven erratically. Nothing in the way it was being driven hints at evasive behavior.
As to the license plate and lane check query, BPA Leblanc concedes it is not a justifiable fact but rather potentially unusual. However, other than his testimony that he has stopped other vehicles from Nevada with illegal aliens therein, BPA Leblanc fails to particularize suspicion to the driver of the Pontiac and instead composes a broad profile to include individuals who happen to be driving on Nogales Highway, in the proximity of the Mexican border, at rush hour who failed to look at him when he first passed but did make eye contact and glance his way when he was following them and who were not interested in going into Mexico; individuals who enter Mexico on foot but leave their vehicles on the United States side for anyone of a number of innocent and legitimate reasons; or individuals who are simply in the area for and under lawful purposes and circumstances.
The reasonable suspicion analysis requires consideration of "the combination of factors motivating an investigatory stop to determine whether they support a finding of reasonable suspicion under the totality of the circumstances." Diaz-Juarez, 299 F.3d at 1141 ( citing Arvizu, 534 U.S. 266). Under such analysis, "[i]ndividual factors that may appear innocent in isolation may constitute suspicious behavior when aggregated together." Id. For the reasons stated above, the otherwise innocuous factors of type of vehicle, passby observance of vehicle and occupants, observation of vehicle and occupants while following at an unsafe distance, license plate and lane check query cited by BPA Leblanc when considered in the aggregate with the factors of proximity to the border and that it was rush hour do not "suffice to form a particularized and objective basis", Arvizu, 534 U.S. at 277, that the driver of the Pontiac and/or Defendant were about to commit or had committed a crime. Consequently, the Magistrate Judge finds that under the totality of the circumstances, the facts available to the Border Patrol taken together before the investigatory stop did not establish a reasonable basis for such stop.
IV. RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court grant Defendant's Motion to Suppress Evidence (Doc. No. 13) of a Glock 9 mm pistol, Model 17, bearing serial number HRK 332 in Count 1 of the Superceding Indictment.
Pursuant to 28 U.S.C. § 636(b) and Rule 59 of the Federal Rules of Criminal Procedure, any party may serve and file written objections within ten days after being served with a copy of this Report and Recommendation. If objections are filed, the parties should use the following case number: CR 07-1439-TUC-FRZ.
Failure to file objections in accordance with Fed.R.Crim.P. 59 will result in waiver of the right to review.