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United States v. Crespo

United States District Court, D. New Mexico

December 3, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HECTOR CRESPO JR., Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK, SENIOR U.S. DISTRICT JUDGE

         A Border Patrol agent pulled over Defendant Hector Crespo along New Mexico Highway 146 after noticing that his rental SUV was filled with adult males, driving northbound in a remote area near the Mexican border. Reasonably suspicious that the vehicle was smuggling illegal immigrants, the agent quickly ascertained at the stop that the passengers were not United States citizens and proceeded to arrest Crespo. He was subsequently charged with Conspiracy to Transport Illegal Aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). The totality of the factual circumstances weighs in favor of the agent having reasonable suspicion to stop Crespo's vehicle. Therefore, the Court will deny his Motion to Suppress Evidence.

         I. Background

         At a morning briefing on June 9, 2019, the Lordsburg Border Patrol was informed of an uptick of illegal border crossings in the area. Later that day, Agent Eric McCaffrey heard on his radio, that Border Patrol was tracking a group of illegal immigrants east of Hatchita, NM.[1] He then parked along Highway 146 until he noticed a crowded SUV drive past. (Doc. 1 (Compl.) at 1.) The Agent proceeded to follow the SUV for several miles. (Id. at 1-2.) In addition to the driver and passenger, the agent observed “what appeared to be multiple adults in the back seat and the third row seat.” (Id. at 2.) The crowded SUV seemed unusual to the agent, considering the lack of tourist attractions in the Lordsburg area. (Id.) In addition, the vehicle had an out-of-state license plate, and the driver repeatedly looked in his rearview mirror while the agent was nearby. (Id.)

         While continuing to watch the vehicle, the agent called dispatch to check the license plate. (Id.) It was owned by PV Holding Corp., a rental car company. (Id.) Under the circumstances, the agent pulled the vehicle over. (Id.) Defendant Crespo was driving, and his associate Joseph Castillo was in the passenger seat. (Id.) The passengers in the back did not speak English and required translation. (Id.) They claimed that they were heading to Deming, NM, having spent time in Mexico at a brothel. (Id.) The officer, however, understood this story to be false because the vehicle record check he had just completed indicated that it had not crossed the border in the last 72 hours. (Id.)

         Suspecting smuggling, the agent separated the passengers from the vehicle and performed an inspection. (Id.) Unable to present proper identification, the passengers in the back of the SUV were revealed to be Mexican nationals. (Id.) During the search, Castillo admitted to the officer that there was a gun in his backpack, and the agent found a second firearm during the search. (Id.) Additionally, agents who later arrived on the scene found a Marlboro cigarette pack with powder inside; testing revealed that it was approximately one gram of methamphetamine. (Id. at 3.)

         Defendant Crespo and Castillo were then arrested. (Id.) After receiving his Miranda warning, Crespo told police officers that he planned to pick up the passengers in the desert and drive them to Albuquerque, NM. (Id.) Crespo was charged with Conspiracy to Transport Illegal Aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). He then filed this Motion to Suppress Evidence related to the stop. (Doc. 33.)

         II. Legal Standard

         The defendant bears the burden of establishing that the stop or seizure implicates the Fourth Amendment. United States v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017); United States v. Long, 176 F.3d 1304, 1307 (10th Cir.1999). Stopping a vehicle is an example of a seizure. United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). If the defendant sufficiently meets this standard and the Fourth Amendment is implicated, the burden shifts to the government. If the seizure rises to the level of a temporary investigative detention, the government must show reasonable suspicion of criminal activity. See United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996) (quoting United States v. Davis, 94 F.3d 1465, 1467-68 (10th Cir. 1996)). Conversely, if there was an arrest, probable cause of criminal activity is required. See id.

         III. The Border Patrol Agent had Reasonable Suspicion to Stop Crespo's Vehicle.

         The Supreme Court of the United States has made clear that Border Patrol agents may not enforce traffic laws-that is, use traffic laws as pretext for stopping vehicles. United States v. Brignoni-Ponce, 422 U.S. 873, 883 n.8 (1975). Yet Border Patrol may briefly detain individuals when the agents have reasonable suspicion of criminal activity or immigration violations. Id. at 884. In determining whether reasonable suspicion exists in a border area, officers consider several factors:

(1) [the] characteristics of the area in which the vehicle is encountered; (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 traffic; (5) information about recent illegal border crossings in the area; (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) (quoting Brignoni-Ponce, 422 U.S. at 884-85); see also United States v. Cheromiah, 455 F.3d 1216, 1221 (10th Cir. 2006) (applying this test). Courts will not review each factor in a vacuum, but rather consider the “totality of the circumstances.” See Id. at 1221. “In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling.” Brignoni-Ponce, 422 U.S. at 885 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).

         Defendant argues that “[t]he agent had no legitimate reason for stopping Defendant on Highway 146.” (Doc. 33 at 4.) The officer, even before the stop, determined that “the vehicle was not stolen and Defendant had no outstanding warrants.” (Id.) And “[b]ecause at the time of the stop there was no reasonable suspicion that Defendant's vehicle contained undocumented immigrants, the continued detention for the purpose of investigating smuggling was illegal.” (Id. (citation omitted).) In sum, Crespo states that no evidence existed “at the initial stop sufficient to find that Defendant has committed or was committing an ...


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