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United States v. Rivero

United States District Court, D. New Mexico

October 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LARRY EDUARDO RIVERO, Defendant.

          PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION OF DEFENDANT'S MOTION TO SUPPRESS

          KEVIN R. SWEAZEA UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         PROCEDURAL BACKGROUND

         Mr. 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].

         An 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.

         MR. RIVERO'S CONTENTIONS

         Mr. 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.

         In 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].

         THE GOVERNMENT'S CONTENTIONS

         The 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 suspicion.

         Next, 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.

         The 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 capacity vehicle.

         In 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 marker 96.

         PROPOSED FINDINGS OF FACT

         On 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 following findings.

         1. 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 credible witness.

         2. On 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.

         3. The 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 people.

         4. The 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.

         5. At 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.

         6. 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.

         7. 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.

         8. 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.

         9. Agent Murillo could only see one occupant, the driver, in the SUV.

         10. 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.

         11. Agent Murillo was suspicious that the driver of the SUV might be engaged in illegal activity.

         12. Agent Murillo knew that Agent Luis Velarde and Agent Tagle were then positioned to the west on State Road 9, near mile marker 96.

         13. 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, ...


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