United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER comes before me upon Defendant Humberto
Cerecer-Fraire's “Motion to Suppress Physical
Evidence and Statements” (“Motion”). ECF
No. 28. In accordance with 28 U.S.C. §§
636(b)(1)(B) and (b)(3), the presiding judge referred this
Motion to me to conduct hearings and recommend an ultimate
disposition. See Order of Reference, ECF No. 30.
Having reviewed the record, the parties' briefing,
relevant case law, and the testimony and exhibits presented
at the May 10, 2017 evidentiary hearing, I recommend for the
following reasons that the Motion be denied.
Motion, Defendant challenges the Border Patrol's roving
patrol stop of a vehicle in which he was a passenger on the
night of December 20, 2016. Defendant also contests the
lawfulness of his subsequent roadside investigative
detention. Defendant urges the Court to suppress all evidence
generated from the stop and the roadside detention, headlined
by the more than five kilograms of methamphetamine recovered
from the trunk of the vehicle.
specifically asserts that the agent did not have reasonable
suspicion to make the stop at all, notwithstanding the fact
that the vehicle had made a U-turn to apparently avoid a
Border Patrol checkpoint. See Def.'s Mot. 4.
Defendant further argues that the investigative detention of
him that followed the stop exceeded both in scope and in time
what reasonableness permitted. See Id. at 5-6.
part, the United States responds that a substantial
combination of facts and circumstances gave the agent well
more than reasonable suspicion to stop the vehicle to
investigate whether alien smuggling was occurring.
See Gov't.'s Resp. 10-12, ECF No. 29. The
United States further emphasizes that the duration and scope
of the resulting investigative detention were reasonable,
particularly given additional suspicious information obtained
by the agents after the stop and the brief lapse of time
between the stop and the driver's admission that there
was methamphetamine in the vehicle. See Id. 12-14.
10, 2017, I held an evidentiary hearing. The United States
called four witnesses (Border Patrol Agents Benjamin Perry,
Jose Granados, Israel Diaz, and Durango Ayala) and introduced
18 exhibits. See Clerk's Mins. 11-12, ECF No.
50. Defendant called private investigator Jim Laws to testify
and introduced one additional exhibit. See id.
the following factual findings based on the testimony of the
five witnesses who testified and the exhibits that were
introduced. Because no finalized transcript has been
prepared, I do not cite to one. Unless more specifically
explained herein, I have resolved any disputes in the
testimony consistent with the following findings.
December 20, 2016, United States Border Patrol Agent Benjamin
Perry was on duty in his official capacity working the 7:00
p.m. - 5:00 a.m. shift. He has been a Border Patrol agent for
more than seven years and has been assigned to the Las Cruces
station the entire time. Agent Perry was assigned that
evening to perform duties associated with the Border
Patrol's permanent checkpoint located near mile marker 26
on New Mexico Highway 185 which runs from Las Cruces to
Hatch. Highway 185 is west of and runs roughly parallel to
the Rio Grande and Interstate 25.
Highway 185 services a largely rural and agricultural area.
Although there are numerous residences that are accessed via
that highway, the area is nonetheless thinly populated.
Between the communities of Radium Springs and Hatch, there
are no commercial businesses on that highway. By comparison
to I-25, the traffic on Highway 185, especially at night, is
very light. Agent Perry testified that “maybe a couple
of cars” will go through the Highway 185 checkpoint at
the night of December 20, 2016, Agent Perry was functioning
as a member of the “Tactical Enforcement Team.”
He explained that the purpose of the team is to conduct
surveillance of the few miles of Highway 185 that are south
of the checkpoint, as well as the foot trails, washes, and
arroyos in that area that splinter off from the highway. The
team member is usually posted atop either of two small
mountains, which are referred to as the “Bluff”
and the “Skybox.” The team member's
assignment is to use binoculars and other technology to look
for indications of alien smuggling.
According to Agent Perry, the Border Patrol implemented this
team some years ago to counteract and defeat a modus
operandi by alien smugglers of circumventing the
checkpoint. He explained that the modus operandi
involves a smuggler dropping off the aliens at a location
south of the checkpoint, the aliens then walking around the
checkpoint on foot using a network of washes or the dry
riverbed, and then another smuggler picking the aliens up at
a location north of the checkpoint. Over time, the Border
Patrol has become familiar with the locations at which aliens
are most frequently dropped off and picked up and the routes
they follow to get from one to the other. Agent Perry
explained that two of the most frequent drop-off locations
south of the checkpoint are the “23 wash” near
mile marker 23 and a separate location near the
“Peaceful Valley” road sign. He described the
latter location as about as close as a vehicle can get to the
checkpoint without being seen by agents at the checkpoint.
the night of December 20, 2016, Agent Perry was posted at the
“Bluff.” From there, he could see Highway 185 in
the valley beneath him and could follow it visually to at
least a point a couple of hundred yards north of the
checkpoint, which he estimated was approximately two or three
miles from the Bluff. He also could follow the highway at
least a couple of miles south from his location. From this
vantage, he could also hear vehicles coming from a
significant distance away.
Agent Perry primarily was looking for vehicles that would
pull over and stop south of the checkpoint, including those
that would subsequently turn around. He has experience in
prior cases in which motorists engaged in this behavior and
were thereafter stopped and discovered to be involved in
Agent Perry testified that the checkpoint itself is
well-illuminated at night and the lights can be seen for some
distance by motorists approaching from the south. He added
that there is also a sign indicating the presence of a U.S.
Border Patrol checkpoint roughly a half-mile or so south of
approximately 10:30 p.m. on December 20, 2016, Agent Perry
took note of a northbound vehicle that went by the Peaceful
Valley sign. He testified that the vehicle then stopped and
its lights went out. He estimated that, after approximately
10 seconds, the vehicle turned around and headed southbound.
Based on the behavior of the vehicle, Agent Perry believed
that its driver had dropped off illegal aliens. He first
tried to radio his colleagues at the checkpoint to advise
them of the “turn-around, ” but was unable to
reach them. So he used his cellphone to notify them instead.
Although he could not recall precisely which agent he
notified, Agent Perry believed that he was speaking to Agent
Israel Diaz. Agent Perry recalled that he told his fellow
agent that a vehicle had “blacked out” (turned
off its lights) and then turned around and drove south. Agent
Perry understood that the agents at the checkpoint were going
to look for footprints at the suspected drop-off location and
also intercept the vehicle that had turned around.
Agent Perry eventually was able to use his radio to
communicate with fellow agents and kept them apprised of the
vehicle's location as it headed south. Because the
checkpoint was nearing a shift change, Agent Jose Granados
was headed northbound to the checkpoint from Las Cruces.
Agent Perry was able to relay via radio to Agent Granados the
location of the suspect vehicle.
Agent Perry observed no other vehicle traffic on Highway 185
at this time on that night except for the suspect vehicle and
the pursuing agents' vehicles. Although Agent Perry could
not see from the Bluff the location where the suspect vehicle
was apprehended, he believed that only a few seconds had
passed between the time it left his vision and when he heard
the radio traffic that it had been intercepted by Agent
Agent Perry's night vision equipment was inoperative that
night, so he was unable to see whether any persons had in
fact been dropped off at the turnaround location.
Agent Perry was not the case agent on this case, nor did he
prepare a supplemental report. He admitted that he had
reviewed the case agent's report at some point before his
testimony. He further admitted that the report was silent on
the suspect vehicle having turned off its lights before
turning around south of the checkpoint. He also admitted that
the report did not include any reference to him having kept
his colleagues apprised of the location of the suspect
vehicle as it made its way southbound.
find that Agent Perry testified in a credible fashion. I
listened to him carefully as he answered questions from
counsel. I questioned him myself on his confidence in the
accuracy of his memory of the events of this night,
particularly considering the passage of time and his failure
to prepare a supplemental report memorializing his
observations. Based on the detail and content of his
responses, and his demeanor while giving them, I conclude
that his testimony was credible.
Jose Granados has served as a U.S. Border Patrol Agent for
approximately ten years, all while assigned to the Las Cruces
station. He is very familiar with Highway 185 and its
checkpoint. He testified that the checkpoint is within 100
air miles of the international border. He also testified that
Highway 185 normally features only local commuters, ranchers,
and residents, and that it is very unusual to see a vehicle
on that roadway with out-of-state tags.
Agent Granados echoed the alien smugglers' modus
operandi that had been described by Agent Perry. Agent
Granados explained that the agents receive actual training on
the smugglers' patterns and how to defend against them.
He advised that, in 2016, there had been 44 illegal aliens
apprehended while trying to circumvent the Highway 185
the night of December 20, 2016, Agent Granados was on duty in
his official capacity and headed northbound on Highway 185 to
relieve other agents at the checkpoint. He overheard radio
traffic at approximately 10:30 p.m. to the effect that there
had been a suspicious vehicle turn around south of the
checkpoint. Agent Granados was somewhere between mile markers
16 and 17 when he heard this radio traffic.
Agent Granados pulled his marked unit over to await the
suspect vehicle. He continued to overhear Agent Perry calling
out the vehicle's whereabouts via radio. There were no
other vehicles traveling in either direction on Highway 185
at that time.
dark-colored sedan approached and then passed Agent
Granados' location. This vehicle is depicted in
Government's Exhibits 11-13. It bore Nevada plate 39F-244
on both its front and rear bumpers. Agent Granados pulled in
behind the sedan as it headed southbound. He called in
records checks on the vehicle to inquire into the registered
owner and whether the vehicle was stolen. The vehicle was not
reported as stolen.
Agent Granados also inquired into whether the vehicle had
gone through any international port-of-entry or any other
Border Patrol checkpoint within the preceding 72 hours. The
records check revealed that the vehicle had gone westbound
through the Border Patrol checkpoint on Interstate 10 west of
Las Cruces the preceding day. Given his experience, Agent
Granados thought this to be highly unusual, particularly
given the out-of-state plates. He immediately suspected that
the vehicle was engaged in alien smuggling because the
communities of Deming and Columbus, New Mexico, and Palomas,
Chihuahua, are located west of the ...