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United States v. Milne

United States District Court, D. New Mexico

October 16, 2017




         On June 23, 2017, Border Patrol agents arrested Defendants John Leroy Milne and Manuel Pavon-Rodriguez. Mr. Milne had been driving a car with tinted windows and no visible license plate on a stretch of road notorious for drug smuggling. The car carried several burlap backpacks filled with about 111.8 kilograms of marijuana. Mr. Pavon, an undocumented alien, was hiding in the car.

         On August 22, 2017, Mr. Milne filed a motion to suppress evidence obtained from the events of June 23, 2017. (Doc. 29.) Mr. Pavon initially filed a motion to join Mr. Milne's suppression motion. (Doc. 40.) Mr. Pavon subsequently acquired new counsel, and Mr. Pavon filed a motion to withdraw the joinder motion, without prejudice to raising the issue after his new counsel conducted due diligence. (Doc. 42.) On October 5, 2017, after his attorney had a chance to review the record and the transcript of Mr. Milne's evidentiary hearing, Mr. Pavon filed a motion to suppress, adopting the arguments that Mr. Milne set forth in his motion to suppress and in the evidentiary hearing. (Doc. 57.)

         The Court grants Mr. Pavon's motion to withdraw joinder (Doc. 42). Before the Court are Messrs. Milne and Pavon's motions to suppress evidence from the day of their arrests (Docs. 29 and 57). Based upon the following Findings of Fact and Conclusions of Law, the Court denies the motions to suppress.


         Federal Rule of Criminal Procedure 12(d) provides that the Court must state its essential findings on the record when factual issues are involved in deciding a motion. See Fed. R. Crim. P. 12(d). To determine the disputed facts, the Court held an evidentiary hearing at the request of Mr. Milne. Mr. Milne's co-defendant, Mr. Pavon, has indicated that, besides three proposed findings of fact, he does not seek to introduce any additional oral argument or evidence beyond that received at Mr. Milne's evidentiary hearing. (Doc. 57 at 2.) The Court makes the following factual findings based on the evidence adduced at the evidentiary hearing and on its scrutiny of the witnesses as they testified.

         1. The Border Patrol agents are more credible than Mr. Milne, and the Court resolves any factual disputes in favor of the Border Patrol agents' testimony.

         Background and Initial Encounter

         2. Highway 80 originates in Douglas, Arizona, a border town, and runs north-south, ending after it merges into Interstate 10 in New Mexico. There are no Border Patrol checkpoints from Highway 80's origin in Douglas up to Interstate 10. For this reason, many smugglers of contraband use Highway 80 to circumvent Border Patrol checkpoints in Arizona. (See Tr. I at 8:14-18; 9:10-23.)[1]

         3. Matthew Defayette is an agent with the United States Border Patrol, Department of Homeland Security. Mr. Defayette has been an agent for over ten years-he was stationed at the Eagle Pass South Station for approximately nine years and in Lordsburg for about a year. (Tr. I at 7:3-11.)

         4. From his time with Border Patrol, Agent Defayette grew familiar with Highway 80, the areas surrounding Highway 80, and the local traffic on Highway 80. (See Tr. I at 7:19- 25; 8:1-4, 22-25; 9:1-2; 12:4-11; 13:11-17.)

         5. On June 23, 2017, Agent Defayette was on duty from 6 a.m. to 2 p.m. He was parked on State Line Road and Highway 80 in his marked patrol vehicle. (See Tr. I at 7:14-18; 10:17-18; 38:19-39:2.)

         6. Just before 8:00 a.m., Agent Defayette saw a brown, four-door Ford Explorer (Explorer) heading north on Highway 80. Agent Defayette did not recognize the Explorer as a local vehicle, and through the Explorer's tinted windows, Agent Defayette saw a single male driver-Mr. Milne-but he could not see if there were other passengers. (See Tr. I at 10:5-16; 10:25-11:4.)

         7. In the normal course of his duties, Agent Defayette runs records checks on license plates, but there was no license plate on the Explorer, nor could Agent Defayette see a temporary sticker. Agent Defayette decided to follow the Explorer to investigate further. (See Tr. I at 11:5-17.)

         8. After following the Explorer for about 1.5-2 miles on Highway 80, the Explorer pulled into the parking lot of the Rodeo Tavern in Rodeo, New Mexico. Agent Defayette had not activated his lights or sirens at any point while he was following the Explorer. (Tr. I at 11:18-12:2; 13:2-7.)

         9. Mr. Milne parked his Explorer parallel to Highway 80, perpendicular to the parking spots. Agent Defayette parked his vehicle behind Mr. Milne's Explorer and turned on his rear-facing emergency lights for officer safety reasons (to warn oncoming traffic). Mr. Milne could not see Agent Defayette's rear facing lights, and there was nothing physically impeding Mr. Milne from driving off. (See Tr. I at 14:2-15:4.)

         10. Pursuant to Border Patrol policy, Agent Defayette attempted to radio dispatch to tell them that he was going to be conducting a welfare check. Because of a poor signal in the area, however, Agent Defayette was unable to reach dispatch. (Tr. I at 14:14-20; 42:25-43:9.)

         11. The area in which the encounter took place-where Agent Defayette observed Mr. Milne's Explorer and where Agent Defayette and Mr. Milne parked-was only 55-60 miles from the Mexico border. (See Tr. I at 9:24-10:2.)

         12. After parking his Explorer, Mr. Milne exited his vehicle and walked straight towards the driver's side of Agent Defayette's Border Patrol vehicle. For officer safety reasons, Agent Defayette exited his vehicle and met Mr. Milne in front of the hood of the Border Patrol vehicle. (Tr. I at 15:7-18.)

         13. Agent Defayette asked Mr. Milne if everything was okay, to which Mr. Milne replied that he was stopping for something to drink. Agent Defayette thought this was odd because the Rodeo Tavern was not a grocery store, nor was it open that early in the morning. (See Tr. I at 15:21-16:2.)

         14. Next, Agent Defayette asked Mr. Milne where he coming from and where he was heading. Mr. Milne answered that he was heading from Benson to Phoenix. Agent Defayette found this answer to be odd because Benson, Arizona, and Phoenix, Arizona, are connected by Interstate 10, and ...

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