United States District Court, D. New Mexico
MEMORANDUM ORDER ADOPTING MAGISTRATE JUDGE'S
PROPOSED FINDINGS OF FACT AND RECOMMENDED
matter comes before the Court upon Defendant's Motion to
Suppress (“Motion”), filed July 28, 2017. (Doc.
31). The United States filed an opposition response on August
11, 2017. (Doc. 34). In accordance with 28 U.S.C. §
636(b)(1)(B), the matter was referred to Magistrate Judge
Kevin R. Sweazea. Judge Swezea held a hearing on September
27, 2017, and entered Proposed Findings of Fact and a
Recommended Disposition (“PFRD”) on October 2,
2017. (Doc. No. 46).
Sweazea recommended denying the Motion and notified the
parties of their right to file written objections within
fourteen days pursuant to 28 U.S.C. § 636(b)(1)(C). The
objection deadline expired no later than October 17, 2017.
(Doc. 46) at 25. Defendant filed his objection on October 18,
2017. (Doc. No. 47). The Court would be well within its
rights to disregard the objection as untimely. See,
e.g., Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991) (holding that “the failure to make
timely objection to the magistrate's findings or
recommendations waives appellate review of both factual and
legal questions”). However, in the interest of deciding
the issue on the merits, and because the objection does not
change the result, the Court will address Defendant's
Standard of Review
party has filed objections to a Magistrate Judge's PFRD,
the Court must consider those objections de novo.
Fed. R. Crim. P. 59(b)(3). After completing this review,
“[t]he district judge may accept, reject, or modify the
recommendation, receive further evidence, or resubmit the
matter to the [M]agistrate [J]udge with instructions.”
PFRD, Judge Sweazea found that United States Border Patrol
Agents Murillo, Velarde, and Tagle had a reasonable suspicion
to stop Defendant for an immigration inspection. Judge
Sweazea applied the factors set forth in United States v.
Brignoni-Ponce, 422 U.S. 873 (1975), as amplified and
defined by Tenth Circuit case law. Those factors include:
(1) [the] characteristics of the area in which the vehicle is
(2) the proximity of the area to the border;
(3) the usual patterns of traffic on the particular road;
(4) the previous experience of the agent with alien
(5) information about recent illegal border crossings in
(6) the driver's behavior, including any obvious
attempts to evade officers;
(7) aspects of the vehicle, such as a station wagon with
concealed compartments; and
(8) the appearance that the vehicle is heavily loaded.
United States v. Monsisvais, 907 F.2d 987, 990 (10th
Cir. 1990) (citing Brignoni-Ponce, 422 U.S. at
PFRD points out, courts consider the “totality of the
circumstances” in applying the Brignoni-Ponce
factors. United States v. Sokolow, 490 U.S. 1, 8
(1989). The circumstances should “be viewed through the
eyes of a reasonable and cautious police officer on the
scene, guided by his experience and training.”
United States v. Leyba, 627 F.2d 1059, 1063 (10th
Cir. 1980). Courts must “accord deference to an
officer's ability to distinguish between innocent and
suspicious actions.” United States v.
Williams, 271 F.3d 1262, 1268 (10th Cir. 2001). Further,
“[w]hen evaluating an [agent's] decision to stop a
vehicle, a court may not engage in a ‘sort of
divide-and-conquer analysis' by evaluating and rejecting
each factor in isolation.” United States v.
Cheromiah, 455 F.3d 1216, 1221 (10th Cir. 2006).
Although certain factors “by themselves, may be
‘consistent with innocent travel' [they] may
collectively amount to reasonable suspicion.”
Defendant concedes that Judge Sweazea's fact findings are
correct but objects to his ultimate legal conclusion that the
stop was supported by reasonable suspicion. Specifically,
Defendant challenges the conclusion that Agent Tagle
rationally inferred Defendant was using State Road 9 as an
indirect route from Las Cruces to evade the immigration
checkpoint on Interstate 10. (Doc. 46) at 21. Defendant
argues Agent Tagle was merely speculating about his starting
point (and therefore choice of route) based on the fact that
the vehicle was registered in Las Cruces, New Mexico.
is correct that that the registration city does not
conclusively establish a starting point, nor would such
information support reasonable suspicion in isolation.
See, e.g., United States v. Ortiz-Gualajara, 2017 WL
1906950 (D.Ariz. April 14, 2017) (noting “how little
suspicion is raised by the [mere] presence of a vehicle
registered in Phoenix traveling the highway near [southern
Arizona]”). However, is it not appropriate to test the
reasonableness of Agent Tagel's inference based on a
single fact (i.e., the vehicle registration city).
Such inquiry would amount to precisely the “sort of
divide-and-conquer analysis” prohibited by the Tenth
Circuit. Cheromiah, 455 F.3d at 1221.
a number of courts have considered the vehicle's
registration city -including the possibility that the driver
was taking in indirect route - as part of the totality of the
circumstances supporting reasonable suspicion. See United
States v. Arvizu, 534 U.S. 266, 277 (2002) (“It
was reasonable for [the agent] to infer from his
observations, his registration check, and his experience as a
border patrol agent that respondent had set out from Douglas
along a little-traveled route used by smugglers to avoid the
191 checkpoint”); United States v.
Olivares-Pachecho, 633 F.3d 399, 404 (5th Cir. 2011)
(holding that “the fact that a car was registered in [a
city of 100, 000 people], yet was taking an indirect route to
[that city] which was less-heavily patrolled, added to
reasonable suspicion”); United States v.
Bautista-Villanueva, 524 Fed.Appx. 476, 479 (11th Cir.
July 25, 2013) (considering, as part of the
Brignoni-Ponce analysis, fact that “the sedan
was registered … out of … a known hub for alien
with this approach, Judge Sweazea considered the registration
city along with other indicia of Defendant's suspicious
and evasive behavior and concluded that the sixth
Brignoni-Ponce factor weighed against suppression.
The Court agrees that, based on the totality of the
circumstances, the agents reasonably inferred Defendant was
using State Road 9 to avoid immigration checkpoints and had
reasonable suspicion for the stop. Defendant was driving in a
high capacity vehicle on an isolated road less than two miles
from the United States border; the vehicle was unusually
clean compared to local traffic; the vehicle was travelling
on a less direct, desirable route from Las Cruces (the
registration city); the area was a known ...