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United States v. Cerecer-Fraire

United States District Court, D. New Mexico

May 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
HUMBERTO CERECER-FRAIRE, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         PROCEDURAL BACKGROUND

         In this 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.[1]

         Defendant 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.

         For its 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.

         On May 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.

         FACTUAL FINDINGS

         I make 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.

         1. On 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.

         2. 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 night.

         3. On 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.

         4. 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.

         5. On 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.

         6. 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 smuggling aliens.

         7. 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 the checkpoint.

         8. At 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.

         9. 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.

         10. 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.

         11. 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 Granados.

         12. 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.

         13. 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.

         14. I 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.

         15. 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.

         16. 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 checkpoint.

         17. On 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.

         18. 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.

         19. A 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.

         20. 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 ...


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