United States v. Mora

          MEMORANDUM OPINION AND ORDER

          REAGAN, CHIEF JUDGE ^[1] :

         This matter is before the Court on Defendant Mathias Mora's Motion to Suppress Evidence and Statements [Doc. 21]. The Court conducted a hearing on the motion on August 10, 2017.

         Mr. Mora's Motion to Suppress Evidence and Statements is DENIED in all respects. While it is a basic principle of Fourth Amendment jurisprudence that searches and seizures inside a home without a warrant are presumptively unreasonable (See Brigham City v. Stuart, 547 U.S. 390, 606 (2006)), the Government has provided compelling evidence that the carefully limited, short duration “sweep” of Mr. Mora's home was not unconstitutionally impermissible. The credible testimony of the officers ultimately responsible for conducting the sweep that the sweep was necessary, based upon exigent circumstances, due to the possibility that missing or possibly harmed undocumented immigrants might be in the home, carried the day for the Government.

         Furthermore, the Court concludes that the agents had probable cause to arrest Mr. Mora, that Mr. Mora was properly Mirandized, that the affidavits in support of search warrants for Mr. Mora's house and the tractor-trailer he drove established probable cause for issuance of the warrants, and that statements made by and evidence seized from Mr. Mora are admissible at trial in this case.

         I. Background

         Mr. Mora has been charged with seven counts of transporting illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and one count of felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

         On October 27, 2016, agents from the Department of Homeland Security (“HSI”) in Albuquerque received a call from Bernalillo County Sheriff's Office (“BCSO”) task force officers. The task force officers had fielded a call from a person reporting a semi-truck that was parked behind the Albertsons Market at the intersection of Rio Bravo and Isleta. The caller had seen between 30 and 60 people exiting the back of the semi-truck and walking around the parking lot. BCSO and HSI agents drove to the Albertsons, where they found 14 undocumented immigrants in the area. The semi-truck, however, was gone.

         Agents fanned out, searching for the missing vehicle. Shortly thereafter, it was located in the parking lot of the Walmart at the intersection of Coors and Rio Bravo. The cab was locked, but the rear trailer doors were not. Agents opened the doors of the trailer and found that it was empty except for a Sure Fine vegetable oil bottle filled with a yellow substance that smelled like urine. Based on the statement of the eyewitness and the evidence at the scene, agents believed that some of the people who had been inside the trailer were missing. Agents were able to determine from the license plate and the placards on the semi-truck that the truck belonged to Mr. Mora and the trailer belonged to Swingline Transport.

Surveillance video from the Walmart was obtained. It showed the semi-truck pulling into the Walmart parking lot and parking. An individual then emerges from the semi-truck, walks toward the store, and goes inside. Video from inside the store showed the individual pick up a 12-pack of Dos Equis beer, purchase the beer and a package of tortillas, exit the store, and walk toward the tractor-trailer before being picked up by a car.

         Based on information provided by Swingline Transport, HSI obtained Mr. Mora's home address and dispatched agents to his home. Shortly thereafter, Mr. and Mrs. Mora arrived home in a car that appeared to be the same car seen picking the individual up in the Walmart parking lot. The agents arrested Mr. Mora and detained Mrs. Mora. Mrs. Mora declined permission to search the house. Agents made a decision to conduct a sweep of the house for both security and humanitarian reasons. During the three-minute sweep, agents observed ammunition boxes and what appeared to be a gun safe. Later in the day, agents obtained and executed search warrants for the house and the semi-trailer. At the house, they found, inter alia, guns and ammunition.

         II. Motion to Suppress

         In support of his Motion to Suppress, Defendant asserts that agents did not have probable cause to arrest him, that he was improperly Mirandized, that the “protective sweep” of his house was unconstitutional and, therefore, any information gathered during the sweep could not be used to support the search warrant applications, that the affidavits submitted in support of the search warrants did not establish probable cause to search his house or trailer, and that any evidence seized from Defendant, including his post-arrest statements, must be suppressed as fruits of the poisonous tree.

         III. Analysis

         A. Probable Cause for Arrest

         Mr. Mora contends that agents did not have probable cause to arrest him. Specifically, he argues that there is no evidence that he was the person who drove the truck into the Albertsons parking lot, or that, if he was the driver of the truck, there is no evidence that undocumented immigrants had been in or emerged from the trailer while he was in control of it.

         “Probable cause” means “facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). Courts must “look at the ‘totality of the circumstances' of each case to see whether the detaining officer has a ‘particularized and objective basis' for suspecting legal wrongdoing.'” United States v. Ledesma, 447 F.3d 1307, 1316 (10th Cir. 2006) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Probable cause requires “only the probability, and not a prima facie showing, of criminal activity.” Spinelli v. United States, 393 U.S. 410, 419 (1969). Probable cause does not require that an officer's belief about the commission of a crime or that certain items may be useful as evidence “be correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983).

         HSI Special Agent Steven Lopez testified at the suppression hearing that on the morning of October 27, 2016, HSI in Albuquerque took a call from task force officers at the Bernalillo County Sheriff's Office (“BCSO”), advising that BCSO had received a call from a person informing them there was a semi-truck parked behind the Albertsons at the intersection of Rio Bravo and Isleta. TR at 7. According to Agent Lopez, the caller reported that he had seen between 30 and 60 people getting down from the trailer area of the semi-truck and walking around the parking lot. TR at 7-8. The caller described the vehicle as a white semi-tractor with an Iowa license plate and a Halloween-type mask on the cab's passenger-side visor. TR at 13. BCSO and HSI agents, including Agent Lopez, drove to the Albertsons where they found 14 undocumented immigrants milling around the area. Id. Based on the discrepancy between the number of people the caller reported seeing and the number of people there when law enforcement arrived at the parking lot, the agents believed there were people missing. TR at 8. The 14 undocumented immigrants were taken to the HSI office and interviewed. TR at 14. None of the people interviewed could identify the driver of the semi-truck. Govt. Ex. 20 at p. 3, ¶ 8; Govt. Ex. 22 at p. 4, ¶ 7. Many of them stated that they were smuggled across the United States border and transported in the trailer of the semi-truck. Id. Some of the undocumented immigrants stated that when they were being loaded into the trailer, the driver hid behind the door of the truck and told them to get in. Id. Some stated that when they were released in the morning, the driver again hid behind the doors of the trailer and told them to run and not look back. Id. Agent Lopez admitted that during those interviews, no one indicated that someone might be injured or in distress at Mr. Mora's house. TR at 47-48. However, he also testified, based on his experience in interviewing hundreds of undocumented immigrants, that they are not normally forthcoming with information. TR at 56.

         The semi-truck was no longer at the Albertsons when agents arrived, and the Albertsons parking lot did not have a security camera. TR at 7, 27. After the eyewitness provided a description of the semi-truck, BCSO and HSI agents fanned out, searching the area for it. TR at 7. Soon thereafter, BCSO agents located a truck that fit the description approximately one to two miles from the Albertsons in the parking lot of a Walmart at the intersection of Coors and Bravo. TR at 7-8. The cab had a Halloween mask hanging from the passenger-side visor. TR at 13; Govt. Ex. 18. A placard on the driver's side of the vehicle bore the name “Swingline Transport, Cedar Rapids, Iowa.” TR at 8; Govt. Ex. 10. An intelligence resource specialist at HSI telephoned Swingline Transport and was given Mr. Mora's name and address as the driver and possible owner of the vehicle. TR at 11. The semi-trailer had other placards from which the agents determined that Mr. Mora did not own the trailer. TR at 11-12; Govt. Exs. 11-12.

         The agents were concerned that there might still be people in the trailer. TR at 15. They tried to open the doors of the cab, but they were locked. Id. Michael Bates, a technical enforcement officer at Homeland Security, opened the trailer's rear doors, which were unlocked. TR at 41-42. There were no people inside, and the only thing they found was a Sure Fine vegetable oil bottle filled with what smelled like urine. TR at 15-16; Govt. Exs. 16-17.^[2] Officer Bates told Agent Lopez that the trailer smelled like body odor. TR at 43. No other odd smells were noticed. Id.

         There was no food or water inside the trailer, it had no bathroom facilities, and it was not equipped with any passenger safety restraints. TR at 21. In Agent Lopez's opinion, the people in the tractor-trailer had been treated as cargo. TR at 22. Agent Lopez testified that in the past, Mexican cartels traditionally smuggled only narcotics, but, more recently, they had become involved in smuggling people. TR at 22-23. The cartels use guides to transport the undocumented immigrants from Mexico into the United States, crossing extremely dangerous areas through the desert without water. TR at 23. If people can't keep up, they are left behind. Id. Once they are in the United States, they are taken to “stash houses, ” where they are usually held by armed guards. TR at 23, 25. They are kept at the stash house until there are enough people going to a certain location, and then they “break people off, ” to that location. TR at 25. Agent Lopez testified that the undocumented immigrants stay in the stash houses from as little as one day to as long as three weeks. Id.

         According to Agent Lopez, human smuggling organizations usually provide a guarantee that the undocumented immigrants will get to their final destination. TR at 26. If the undocumented immigrants are picked up by Immigration and removed, the smugglers don't get paid. Id. The agent testified that this was “an extremely highly unusual investigation in that [the people] were dumped behind this Albertsons, ” and based on interviews with several of them, “it didn't seem like many, if [any] at all, were coming to Albuquerque.” Id. Instead, “[t]hey were going to various parts of the country.” Id. He testified that HSI had never seen this in Albuquerque before. Id.

         The unusual circumstances led Agent Lopez to believe “something went wrong” and as a result, “the driver dumped his cargo in a location that seemed to be perfect for doing this, because there was no cameras, there was not anything behind the location” and “[i]t just doesn't make sense to me whatsoever.” TR at 27. Based on his training and experience, and information he had from other districts, Agent Lopez knew that during smuggling operations, “[p]eople die in transit, whether it's in the desert, whether it's in tractor-trailers, whether it's in the back of a box truck, whether it's in a truck and they flip over.” Id. Agent Lopez testified that when he interviewed the immigrants, they indicated ...