Opinion
No. CR-19-2298 JAS (LCK)
11-13-2019
United States of America, Plaintiff, v. Meggin Jahell Robinson, Defendants.
REPORT AND RECOMMENDATION
Pending before the Court is Defendant Robinson's Motion to Suppress (Doc. 20). The government responded in opposition (Doc. 31) and Defendant Robinson replied (Doc. 32). These matters came before the Court for a hearing and a report and recommendation as a result of a referral, pursuant to LRCrim 57.6. Evidence and argument were heard on October 8, 2019. (Doc. 39.) These matters were submitted following oral argument at the conclusion of the hearing.
Defendant alleges there was no reasonable suspicion to extend the traffic stop for additional questioning of the driver of the vehicle and Defendant passenger, that ultimately resulted in a drug-sniffing dog alerting to illegal aliens in the trunk; therefore, the evidence obtained as a result of the seizure should be suppressed. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motion to suppress.
I. FACTUAL BACKGROUND
Department of Public Safety (DPS) Trooper Jeffrey Richardson has been with DPS for 17 years and has spent his entire career in the Bisbee/Douglas area on patrol. (RT 10/08/19 at 6-8.) Of that time, he has spent significant time patrolling the State Route 92 area. (RT at 8-9.) Trooper Richardson has experience with alien smuggling investigations through traffic stops where undocumented aliens have been apprehended, trainings by Homeland Security, working with the Southern Arizona Border Region Enforcement, tracking aliens with Border Patrol, and receiving intelligence briefings from Border Patrol on common trends, locations of smuggling and types of vehicles used. (RT at 9-10.)
"RT" refers to the Reporter's Transcript of the October 8, 2019 hearing. (Doc. 46.)
On August 7, 2019, Trooper Richardson was patrolling the area of SR-92 near Milepost 335. (RT at 11.) Trooper Richardson testified this is a rural area approximately 3 miles from the United States/Mexico border. (RT at 12.) In addition to the area being in close proximity to the border, the San Pedro River runs through this area with no barriers making an easy access point for aliens to cross and walk up towards the highway. (RT at 12-14.) Trooper Richardson testified to making multiple traffic stops resulting in contact with illegal aliens in vehicles in this same location. (RT at 12.)
At approximately 5:30 p.m., Trooper Richardson stopped an older model sedan with a temporary license plate not property affixed and flapping in the wind. (RT at 11, 14-15.) Trooper Richardson testified that based on his training and experience, a common trend for alien smuggling is the use of older model vehicles with temporary tags or newer plates. (RT at 14-15.) The driver of the sedan pulled over without incident. Trooper Richardson approached the passenger side of the sedan and asked the driver for her license, registration and insurance. He also asked the passenger for identification. (RT at 15.) For safety reasons, he asked the driver to get out of the car and come back to his patrol vehicle. (RT at 15.) He asked the passenger (Defendant) to remain in the car. Trooper Richardson told the driver the reason he pulled her over was because her license plate was not properly taped down. (RT at 26.) In running the driver's registration and license, Trooper Richardson learned the vehicle and registration was out of Goodyear, Arizona along with the driver's license, while the passenger's identification listed Tucson as her residence. (RT at 16.) Trooper Richardson thought it significant that neither the driver nor passenger were from Cochise County but were traveling in the area on a weekday. (RT at 16.) Specifically, he testified that the location, type of vehicle, temporary tags, and the fact that both the driver and passenger were out of county was "leading" him towards suspicion. (RT at 16.)
Trooper Richardson continues with what he describes as "conducting his enforcement action" with the intent of issuing the driver a warning for the traffic violation. The driver was concerned about getting a ticket and Trooper Richardson assured her that he was only going to write her a warning. While conducting his enforcement action, including registration and license checks and filling out the warning document, he asked the driver a series of questions which he acknowledged was not directly related to the actual traffic violation. (RT at 16-17; 26, 31.) Trooper Richardson recalled asking the driver where they were coming from and where they were going. (RT at 17.) When the driver responded they had been visiting a friend, Trooper Richardson asked the name of the friend and where the friend lived, however the driver could not give him a location, only indicating "about 15 minutes up the road". (RT at 17.) Trooper Richardson continued to ask her questions about the time of day they left Tucson (10:00 a.m.), what they did while at the friend's house, what they ate at Panda Express in Sierra Vista, what the Defendant had to eat, etc. (RT at 17-18.) During these series of questions, Trooper Richardson found it suspicious that the driver could not give a more exact location for the friend they were visiting and, also noted that the driver looked back at her vehicle twice while talking to him. (RT at 18.) Trooper Richardson testified that at this point he felt the driver was giving him incomplete information and he was "starting to question" if there was anything in the vehicle based on the "typical trends" for the area. (RT at 19.) He then asked the driver if there was anything illegal in the car, and specifically mentioned certain contraband to include various drugs, illegal aliens, cash and bombs. (RT at 31-32.) Trooper Richardson testified that when he asked about "illegal aliens" in the trunk he noted the driver "kind of smirked". (RT at 19.) To each question, the driver denied anything in the vehicle. During this conversation with the driver, Trooper Richardson is continuing to fill out the warning document. (RT at 19.) Trooper Richardson clarified that by the time he asked the driver specific questions about drugs, aliens, etc., in the car he believed he had reasonable suspicion. (RT at 41-42.)
After speaking with the driver, he asked for consent to search the car and the driver declined. (RT at 19.) Prior to fully completing the warning document, Trooper Richardson then walked back to the car to speak with the Defendant where the Defendant gave a completely different name for the friend they were visiting, and when asked what time they left Tucson together, the Defendant indicated she didn't leave Tucson with the driver, that she had already been in the Sierra Vista area for court and the driver was taking her back to Tucson. (RT at 19-20.) Based on the inconsistent stories from the Defendant and the driver, Trooper Richardson requested a K-9. (RT at 20.) The K-9 and handler arrived approximately 40 minutes later and alerted to the trunk where two illegal aliens were found.
Trooper Richardson's patrol car dashcam and body audio microphone were activated during the entire time of the stop, questioning, K-9 alert and retrieval of the illegal aliens. (Exhibit 5.) A review of the dashcam video reveals that after Trooper Richardson pulled the car over, he asked the driver for her license, registration and insurance, asked Defendant for her identification and then asked the driver to get out the car and meet him near his patrol car. (Exhibit 5 at approximately 0:58-1:42.) At that time, Trooper Richardson told the driver the reason he pulled her over was that her temporary paper license plate was not secured properly. (Exhibit 5 at approximately 1:54-2:02.) She expressed concern about getting a ticket and he assured her that he was only going to write her a warning. (Exhibit 5 at approximately 2:03-2:15.) While Trooper Richardson is conducting his investigation to include running her license and registration, he asked the driver the following series of questions (Exhibit 5, starts at approximately 2:17):
The summary of questions/answers is not verbatim and only reflects what the Court was able to hear and see in its review of Exhibit 5.
Where you guys going? (Tucson)
Where are you coming from? (inaudible)
Visiting a friend where? (I forgot the street)
What town? (over there; 15 minutes away . . .)
What's your friend's name? (Meggin)
Meggin what? (I'm not sure, you'll have to ask her)
Have to ask who? (driver points to car)
Have to ask Meggin?
So you don't know Meggin's last name?
But your friend's name is Meggin?
Trooper Richardson testified here there was confusion between he and the driver as to whether they were talking about the passenger (Defendant) or the friend that the driver and Defendant was visiting. It appears that the driver believed he was asking about the passenger when Trooper Richardson was asking about the friend they were visiting. (RT at 27-28.)
So you came down to pick her (Defendant) up? Is that what you're doing? (I picked her up in Tucson . . . inaudible),
Who is the friend you just went and saw? (her friend)
What's her friend's name? (Jesse)
Justin? Jesse? (Jesse)
How long were you guys down here for? (inaudible)
You guys just hung out at Jesse's house? (nods head yes)
You guys go anywhere? Do anything? (inaudible)
At this time, the driver asks about the temporary license plate and Trooper Richardson explains that she needs to tape it down where it stays while driving.) (Exhibit 5 at approximately 3:33 to 3:41.)
Trooper Richardson testified that only after asking the driver all the above questions, did he have dispatch run the plate on the car. (RT at 28-29.) At this point in the video, there is a brief lull while Trooper Richardson is working on his computer and/or receiving information on the radio. As Trooper Richardson testified at the hearing, the driver looks towards the back of her car twice. (Exhibit 5 at approximately 3:42; driver looks back at approximately 3:49 and 4:00; RT at 18.)
The questioning by Trooper Richardson then continues as follows:
Do you work in Tucson? (No) (Exhibit 5 at approximately 4:04)
Go to school? (Yes)
What are you going to school for?
At this point in the video, the radio dispatcher provides information that the car is registered out of Goodyear.
So you live in Tucson? (Yes) (Exhibit 5 at approximately 4:20)
So why is the address saying Goodyear? (my parents address)
How long has Meggin known Jesse? (inaudible) (Exhibit 5 at approximately 4:41)
So you know Jesse as well? (Yes)
How did you guys meet? (through/at a Club)
Through a Club? Where at, down here? (in Tucson)
Is Jesse male or female? (male)
Trooper Richardson tells the driver he cannot find a record of her license, but he may have typed her name in wrong. (Exhibit 5 at approximately 5:14; RT at 29.)
So you left Tucson what time? (10:00 a.m.) (Exhibit 5 at approximately 5:35)
And then did you drive straight to Jesse's house or do something else? (ate)
Where did you eat at? (Panda Express)
What did you have? (chicken)
Which Panda Express? (inaudible)
One in Sierra Vista?
What did Meggin have? (don't know you'd have to ask her)
Then you went to Jesse's house?
Trooper Richardson testified that by this point, the driver's registration had come back valid, he now had her correct license information, and he did not need any additional information to complete the warning. He also admitted that none of the questions directly related to the license plate violation warning. (RT at 30-31.) On the video, the driver then asks Trooper Richardson why he is asking so many questions. Trooper Richardson responds "I'm asking you questions, because we're down here in close proximity to the southern border. I'm not saying you're engaged in illegal activity, but we have a lot people engaged in illegal activity down here whether it be transporting illegals or drugs. So, I'm asking you all these questions, because I'm going to go up and ask Meggin the exact same questions and if her answers don't match, we're going to have a problem.") (Exhibit 5 at approximately 6:08 - 6:38.) Trooper Richardson continues the questioning:
Is there anything illegal in the car, do you know? (No) (Exhibit 5 at approximately 6:41)
No marijuana in the vehicle? (No, shakes head)
No heroin in the vehicle? (No, shakes head)
No cocaine in the vehicle? (No, shakes head)
No methamphetamine in the vehicle? (No, shakes head)
No illegal aliens in the trunk? (No, shakes head)
Trooper Richardson said at this answer, the driver smirked (RT at 19), however, the video does not show the driver's mouth. (Exhibit 5 at approximately 6:50.)
Large amounts of cash? (No, shakes head)
Bombs, anything like that? (No, shakes head)
Do you give me consent to search the vehicle? (No) (Exhibit 5 at approximately 6:56)
Trooper Richardson spent approximately 4 minutes and 40 seconds questioning the driver. (Exhibit 5.) After the driver's denial of consent, Trooper Richardson goes to ask the Defendant a series of questions and acknowledged that none of the questions he asked Defendant related to the traffic warning. However, once Trooper Richardson received contrary information from Defendant, he requested a K-9 on scene. (RT at 33.) Additionally, Trooper Richardson testified that prior to asking the driver about drugs, aliens, etc., he believed he already had reasonable suspicion. (RT 41-42.)
II. DISCUSSION
All parties agree that the initial stop of the sedan was based on a legal traffic violation. Defendant seeks to suppress all evidence seized by government agents as a result of what she alleges was an unreasonably long detention after the valid traffic stop. The government responds that the detention was supported by reasonable suspicion. / / / / / /
The driver, Ashley Nicole Fawcett, pled guilty and was sentenced to five years' probation in CR 19-2209 RM LCK. As indicated above, Defendant was a passenger in the car. Just as a driver, a passenger is seized from the moment the car comes to a stop on the side of the road as a result of a law enforcement stop. Therefore, a passenger has standing to challenge the constitutionality of the stop. Arizona v. Johnson, 555 U.S. 323, 332, 129 S.Ct. 781, 787 (2009), citing Brendlin v. California, 551 U.S. 249, 256-259, 127 S.Ct. 2400, 2406-2408 (2007) --------
Rodriquez v. United States
In Rodriquez v. United States, 575 U.S. ___, 135 S.Ct. 1609 (2015), the Supreme Court held that the police may not extend an otherwise completed stop, absent reasonable suspicion in order to conduct a K-9 sniff. Defendant argues that Rodriguez extends to a prolonged stop where questions are asked unrelated to the traffic stop. In Rodriguez, the Supreme Court held it was unreasonable to prolong a traffic stop even for seven minutes to conduct a dog sniff absent independent reasonable suspicion for the detention. Id. at 1614-16. The Court so held because the purpose of a traffic stop is to address the traffic violation, which is not served by a dog sniff aimed at detecting general criminal activity (drug trafficking). Id. at 1615. Like a Terry stop, the acceptable duration of police interrogation in a traffic stop is determined by the purpose to address the violation that warranted the stop and attend to safety concerns. Id. at 1614 (citations omitted). While the Fourth Amendment does permit certain unrelated investigations that do not lengthen the stop and detention, the Supreme Court likewise cautioned that a traffic stop "can become unlawful it is prolonged beyond the time reasonably required to complete the mission" of issuing a traffic citation or warning. Id. at 1614-1615, citing Johnson, 555 U.S. at 327-328, 129 S.Ct. 781; Illinois v. Caballes, 543 U.S. 405, 406-408, 125 S.Ct. 834 (2005); See also United States v. Evans, 786 F.3d 779, 786 (9th Cir. 2015.). Therefore, the seizure is lawful "so long as the [unrelated] inquiries do not measurably extend the duration of the stop." Rodriguez, 135 S.Ct. at 1615, citing Johnson, 555 U.S. at 333.
However, an officer may still conduct certain unrelated inquiries during an otherwise lawful stop, even if it prolongs the stop, so long as there is reasonable suspicion to justify detaining the person. Id. at 1615. See also, United States v. Landeros, 913 F.3d 862, 866-867 (2019) (A traffic stop may be extended to investigate matters other than the original traffic violation if the officers have reasonable suspicion of an independent offense). The question in this case, is whether Trooper Richardson had reasonable suspicion to ask the additional questions.
Reasonable Suspicion
Similar to probable cause determinations, the reasonable suspicion analysis is "not 'readily, or even usefully, reduced to a neat set of legal rules'" but must consider the "totality of the circumstances." United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (citations omitted). The Fourth Amendment's prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle. See United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578 (1975). Therefore, an officer must have a "reasonable suspicion" that criminal activity may be afoot to stop or detain a motorist. United States v. Diaz-Juarez, 299 F.3d 1138, 1141 (9th Cir. 2002). When the Court makes reasonable-suspicion determinations, it must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for his or her suspicions about criminal activity. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750 (2002).
The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each ofwhich must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person.United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695 (1981).
. . . .
The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.
Hence, an investigatory stop must be based on facts, not the "mere subjective impressions of a particular officer," United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989), and the inferences drawn by the officer must be objective and reasonable, Cortez, 449 U.S. at 418. "The facts are to be interpreted in light of a trained officer's experience." United States v. Michael R., 90 F.3d 340, 346 (9th Cir. 1996); Cortez, 449 U.S. at 418. Under these circumstances, an officer may draw inferences from, and deductions about, the cumulative information based on experience and specialized training, which "might well elude an untrained person." Cortez, 449 U.S. at 418; see also Ornelas v. United States, 517 U.S. 690, 699 (1996) (reviewing court must give "due weight" to factual inferences drawn by local law enforcement officers).
In the context of stops made near a border, the Supreme Court has identified a non-exclusive set of factors that may be considered in determining whether reasonable suspicion exists: (1) characteristics of the area in which the car is traveling; (2) proximity to the border; (3) usual traffic patterns on the road; (4) prior experience with alien traffic; (5) recent illegal border crossings in the area; (6) erratic or evasive driving behavior; (7) vehicle characteristics; and (8) the behavior or appearance of persons in the car. Brignoni-Ponce, 422 U.S. at 884-85.
The Court finds that Trooper Richardson's observations were grounded in objectively identifiable facts, and the totality of the circumstances make clear that the officer had reasonable suspicion. When Trooper Richardson stopped the sedan, it was within 3 miles of the U.S./Mexico border. See United States v. Manzo-Jurado, 457 F.3d 928, 936 (9th Cir. 2006) (internal quotations omitted) ("Proximity to the border may be considered as a factor in the reasonable suspicion calculus.") (quoting United States v. Diaz-Juarez, 299 F.3d 1138, 1142 (9th Cir. 2002)); Brignoni-Ponce, 422 U.S. at 884. The area was known to Trooper Richardson as an easy access point for illegal aliens to cross and walk up toward the highway. See United States v. Tiong, 224 F.3d 1136, 1139-40 (9th Cir. 2000) (finding area contributed to reasonable suspicion because law enforcement articulated facts to support their knowledge of the area as one used for smuggling). See also United States v. Palos-Marquez, 591 F.3d 1272, 1277 (9th Cir. 2010) ("the notoriety of a road as an alien smuggling route has long been held by numerous courts, including the Supreme Court, as a relevant factor supporting reasonable suspicion"). Trooper Richardson testified to making multiple traffic stops resulting in contact with illegal aliens in vehicles in this same location. Additionally, the older model and temporary tag on the car raised suspicions based on the officers training and experience with similar cars being commonly used in smuggling. Further, once the sedan was stopped and Trooper Richardson had an opportunity to review the driver's and Defendant's documents, he learned they were not from Cochise County and thought it unusual to be in the area during mid-week. See Cortez, 449 U.S. at 418 ("Consideration of the modes or patterns of operation of certain kinds of lawbreakers" is permitted as part of the reasonable suspicion analysis).
With the information above, Trooper Richardson began asking the driver questions. During this time, Trooper Richardson is also observing the driver. He indicated that during the questions she turned back twice to look at the back of her car which eventually led him to ask if there was anything illegal in the car. Based on the answers to the questions, including the fact that she could not give him a general location of the friend they were visiting, other than "about 15 minutes up the road", coupled with the driver's reactions, Trooper Richardson acted with reasonable suspicion when he continued to question the driver and ultimately the Defendant.
III. RECOMMENDATION
It is recommended that, after its independent review of the record, the District Court deny Defendant's Motion to Suppress (Doc. 20).
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.
Dated this 13th day of November, 2019.
/s/_________
Honorable Lynnette C. Kimmins
United States Magistrate Judge