United States District Court, D. New Mexico
PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION
OF DEFENDANT'S MOTION TO SUPPRESS
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court upon Defendant Larry
Edwardo Rivero's Motion to Suppress
(“Motion”). [Doc. 31]. In accordance with 28
U.S.C. §§ 636(b)(1)(B) and (b)(3), United States
District Judge Kenneth J. Gonzales referred the Motion to the
undersigned to conduct hearings, if warranted, and to perform
any legal analysis required to recommend an ultimate
disposition. [Doc. 37]. Having reviewed the record, the
parties' briefings, relevant case law, and the testimony
and exhibits presented at the September 27, 2017 evidentiary
hearing, the undersigned recommends, for the reasons set
forth below, that the Motion be DENIED.
Rivero was arrested on May 2, 2017 and charged with a
violation of 8 U.S.C. §1324(a)(1)(A)(v)(I), Conspiracy
to Transport Illegal Aliens. On May 4, 2017, Mr. Rivero
appeared for initial appearance and, on May 5, 2017, he
waived his preliminary hearing. This matter went before the
Grand Jury and Mr. Rivero was indicted on July 19, 2017, on
one count of Conspiracy to Transport Illegal Aliens, in
violation of 8 U.S.C. §1324(a)(1)(A)(v)(I), and one
count of Transporting Illegal Aliens and Aiding and Abetting,
in violation of 8 U.S.C. §1324(a)(1)(A)(ii),
(a)(1)(b)(ii). [Doc. 25]. Mr. Rivero filed the Motion on July
28, 2017. [Doc. 31]. The United States filed its response to
the Motion on August 11, 2017. [Doc. 34]. Mr. Rivero did not
file a reply. On August 21, 2017, a hearing on the Motion was
set for September 14, 2017, before United States District
Judge Kenneth J. Gonzales. [Doc. 35]. On August 23, 2017,
Judge Gonzales ed that the hearing be vacated[Doc. 36], and
he referred the Motion to the undersigned to conduct
hearings, if warranted, and to perform any legal analysis
required to recommend an ultimate disposition. [Doc. 37].
evidentiary hearing was held on September 27, 2017, at which
counsel for both parties, along with Mr. Rivero, were
present. Both the Government and counsel for Mr. Rivero
presented evidence and oral argument concerning the Motion.
Rivero challenges the roving patrol stop of his vehicle by
United States Border Patrol Agent Edgar Tagle (“Agent
Tagle”) on New Mexico State Road 9 (“State Road
9”) in Luna County, New Mexico on May 2, 2017 at
approximately 4:30 p.m. Mr. Rivero asserts that Agent Tagle
did not have a reasonable suspicion to believe that Mr.
Rivero was transporting undocumented immigrants or any other
contraband, and so was not justified in making the stop. Mr.
Rivero urges the Court to suppress all evidence generated
from the stop.
connection with his argument that evidence gained by the
Government as a result of the stop should be suppressed, Mr.
Rivero challenges much of the evidence upon which the
Government relies in support of the stop. Mr. Rivero contends
that the fact that he was driving on State Road 9 is entitled
to little, if any, weight. Mr. Rivero argues that the fact
that his vehicle was registered at an address in Las Cruces,
Dona Ana County, New Mexico adds nothing to the reasonable
suspicion analysis. Mr. Rivero further contends that since
his vehicle was registered in Las Cruces, Dona Ana County,
New Mexico, and he was driving in adjacent Luna County on a
road that traverses both counties when he was stopped, the
fact that he was driving his vehicle in a westerly direction
on State Road 9 between the New Mexico communities of Santa
Teresa and Columbus is entitled to no weight at all. Mr.
Rivero further argues that Agent Tagle's premise that Mr.
Rivero was driving on State Road 9 for the purpose of
avoiding a fixed checkpoint located on Interstate 10 west of
Las Cruces is a hunch, unsupported by evidence. Mr. Rivero
also argues that the fact that he did not look at or waive to
Agent Tagle when passing the agent's vehicle, and the
fact that Agent Javier Murillo, the first United States
Border Patrol Agent who saw Mr. Rivero's vehicle, saw
only one person in the vehicle while Agent Tagle saw two
people, add nothing to the analysis. [Doc. 31].
Government counters Mr. Rivero's argument by contending
that based upon the totality of the circumstances and a
consideration of the factors enunciated in United States
v. Brignoni-Ponce, 422 U.S. 873 (1975), Agent Tagle
clearly had reasonable suspicion to stop Mr. Rivero's
vehicle to further investigate the agent's suspicions.
First, in addressing the Brignoni-Ponce factors, the
Government states that State Road 9 originates in Santa
Teresa, New Mexico and runs west along the U.S./Mexico border
through a sparsely populated area of New Mexico to the
Village of Columbus, New Mexico, and that State Road 9 is
known to Border Patrol Agents as a smuggling route. Next, the
Government points out the close proximity to the U.S./Mexico
border where the stop was made. Next, the Government
addresses the normal traffic patterns in the area where the
stop occurred, and points out that traffic tends to be local.
In addition, the Government contends that Mr. Rivero's
automobile was unusually clean when compared with local
traffic. Next, the Government contends that Agent Tagle
learned that Mr. Rivero's vehicle was registered to an
individual with a Las Cruces address, raising further
the Government addressed the previous experience Agents
Murillo, Velarde, and Tagle have had with illegal alien
traffic. The Government points out that Mr. Rivero's
vehicle was traversing State Road 9 around the time of the
agents' shift change. In connection with information that
the Border Patrol Agents might have concerning illegal border
crossings in the area, the Government then points out that
alien smuggling is a constant and common occurrence along
State Road 9, and that many of the vehicles operated by the
alien smugglers apprehended on or near State Road 9 are
registered to Las Cruces, New Mexico addresses.
Government then addresses Mr. Rivero's behavior as the
driver of his vehicle, and makes several contentions. First,
the Government contends that the first United States Border
Patrol Agent to encounter Mr. Rivero's vehicle on the
date and at the time in question was Agent Murillo. The
Government explains that Mr. Rivero was driving in a westerly
direction along State Road 9 when he encountered Agent
Murillo's marked Border Patrol Unit parked near mile
marker 104. Agent Murillo noticed that Mr. Rivero applied his
brakes in an erratic manner, appeared extremely stiff at the
wheel of his vehicle and did not acknowledge Agent Murillo
when he drove past Agent Murillo's vehicle. The
Government also contends that Agent Tagle considered Mr.
Rivero's origination point to be Las Cruces, Mr.
Rivero's immediate destination to be Columbus, New
Mexico, and considered it suspicious that Mr. Rivero would
choose to take the much longer route from Las Cruces, to
Santa Teresa, New Mexico, and then west along State Road 9 to
Columbus, rather than the shorter route on a far superior
road west from Las Cruces on Interstate 10 to Deming, New
Mexico, and then south to Columbus. The Government also
points out that there is a United States Border Patrol
check-point on Interstate 10 west of Las Cruces, and that the
State Road 9 route being driven by Mr. Rivero permitted him
to avoid that check point in his westerly travel from Las
Cruces. Finally, the Government contends that alien smugglers
often use high capacity vehicles to transport illegal aliens,
and that the agents considered Mr. Rivero's blue Dodge
sport utility vehicle (the “SUV”) to be a high
addition to the contentions referenced above addressing the
Brignoni-Ponce factors, the Government makes an
additional factual contention, and argues that a totality of
the circumstances demonstrates that Agent Tagle had a
reasonable suspicion to believe that Mr. Rivero was engaged
in illegal activity. The Government points out that when
Agent Murillo saw Mr. Rivero's vehicle traveling west on
State Road 9 at mile marker 104, there was only one person
observable in the vehicle. Next, when Mr. Rivero's
vehicle encountered Agent Tagle further west on State Road 9
at mile marker 96, there were at least two people observable
in Mr. Rivero's vehicle. Based upon that information, the
Government contends that the Border Patrol Agents thought
that either the passenger in Mr. Rivero's vehicle had
been hiding from view when passing Agent Murillo at mile
marker 104, or that Mr. Rivero had stopped and picked a
person up along State Road 9 between mile marker 104 and mile
FINDINGS OF FACT
September 27, 2017, the Court held an evidentiary hearing.
The Government called three witnesses (Border Patrol Agents
Javier Murillo, Luis Velarde and Edgar Tagle) to testify and
introduced four exhibits. [See Doc.
45]. Mr. Rivero called private investigator Gilbert Nieto to
testify and introduced one exhibit. See Id. The
Court proposes the following factual findings be made based
on the testimony of the four witnesses who testified and the
exhibits that were introduced. Because no finalized
transcript has been prepared, the Court does not cite to one.
Unless more specifically explained herein, the Court has
resolved any disputes in the testimony consistent with the
Border Patrol Agents Javier Murillo, Luis Velarde and Edgar
Tagle each testified during the hearing on the Motion. Based
on the agents' demeanor, attention to detail, and the
content of their testimony, I found each agent to be a
May 2, 2017 at approximately 4:30 p.m. MDT, Agent Murillo
observed the SUV traveling westbound on State Road 9 near
mile marker 104.
United States Border Patrol considers vehicles such as the
SUV to be “high capacity” vehicles, which is to
say that the vehicle is capable of transporting numerous
United States Border Patrol Agents involved in observing,
stopping and arresting Mr. Rivero on the date and time in
question know that high capacity vehicles are often involved
in illegal alien smuggling schemes because those vehicles may
be used to transport numerous individuals at one time.
the time and date that the United States Border Patrol Agents
encountered the SUV, Agents Murillo and Tagle had each been
United States Border Patrol Agents for nine years. Agent
Murillo has been at the Deming Border Patrol Station for two
years. Agent Murillo was assigned to the Lordsburg, New
Mexico Border Patrol Station, approximately fifty-five miles
west of Deming, for seven years before transferring to the
Deming Border Patrol Station. Agent Tagle has been at the
Deming Border Patrol Station for the entirety of his career
as an agent covering the geographical area at issue.
Agent Murillo, who was sitting parked in his marked Border
Patrol Unit near mile marker 104 on State Road 9, observed
that the driver of the SUV applied the vehicle's brakes
very forcefully as it approached Agent Murillo's
location, so that the front of the SUV dipped noticeably.
Agent Murillo observed that when the SUV passed the location
where his vehicle was parked, the driver appeared very stiff
at the steering wheel. Agent Murillo also observed that the
driver of the SUV did not look at, waive to, or otherwise
acknowledge seeing Agent Murillo or the United States Border
Patrol vehicle sitting by the road. Vehicle drivers from the
local area typically waive to or otherwise acknowledge the
Border Patrol Agents when their vehicles pass.
Agent Murillo inferred from Mr. Rivero's very forceful
application of the SUV's brakes at the initial encounter
with Agent Murillo's marked United States Border Patrol
unit that Mr. Rivero was concerned or alarmed with the
presence of a United States Border Patrol Agent.
Agent Murillo inferred from Mr. Rivero's conduct of not
looking at or acknowledging the presence of the agent on the
remote, isolated road, and by looking straight ahead and
appearing very stiff while driving, that Mr. Rivero was
tense, uneasy, or concerned by the presence of the agent and
that he was not from the local area.
Agent Murillo could only see one occupant, the driver, in the
Agent Murillo noticed that in comparison to local traffic the
SUV appeared abnormally clean. Agent Murillo did not
recognize the SUV as a local vehicle.
Agent Murillo was suspicious that the driver of the SUV might
be engaged in illegal activity.
Agent Murillo knew that Agent Luis Velarde and Agent Tagle
were then positioned to the west on State Road 9, near mile
Agent Murillo advised United States Border Patrol Agent Luis
Velarde via cellular telephone of his observations. Agent
Velarde, along with Agent Tagle, had stationed their marked
Border Patrol Units near mile marker 96 about eight miles
west of mile marker 104 on New Mexico State Road 9. The
agents were sitting in their vehicles with the driver's
doors facing each other, ...