CINDY K. JORGENSON, District Judge.
On September 6, 2016, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (Doc. 51) in which she recommended that the Motion to Suppress (Doc. 25) filed by Jasiel Corral-Cinco ("Corral-Cinco") be denied. Corral-Cinco has filed an objection (Doc. 55) and the government has filed a response (Doc. 56).
On October 28, 2016, this Court heard additional testimony and argument regarding the surveillance videos (Ex. 8). During the hearing, Corral-Cinco requested this matter be remanded to the magistrate judge for further review in light of the additional evidence.
The Court has reviewed the Motion to Suppress (Doc. 25), the response (Doc. 30), the Report and Recommendation ("R & R") (Doc. 51), the exhibits, the Notice of Disclosure (Doc. 38), the Notice — Video Footage Timestamps (Doc. 40), the Defendant's Notice of Video Footage Time Stamps and Authority (Doc. 47), the transcripts of the hearing held before the magistrate judge (Docs. 48, 49, 50), the objections (Doc. 55), the response (Doc. 56), and the additional evidence and argument presented to this Court. The standard of review that is applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections — the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472-73, 88 L.Ed.2d 435 (1985). However, the Court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction." Fed. R. Civ. P. 72(b)(3); see also 288 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.").
While Corral-Cinco has objected to conclusions reached by the magistrate judge, no specific objection has been made to the magistrate judge's summary of evidence. The Court, therefore, adopts those findings. Additionally, the magistrate judge stated:
R & R, p. 2, n. 1. While the Court agrees it is unable to identify specific people, the Court did make some relevant observations.
At approximately 8:27:30 a.m., Camera 1 shows two persons walking. It does not adequately show whether the person looked toward the intersection of Tangent Range Road and Industrial Park Avenue. It appears that one person may have made a half-body turn to look towards the intersection area, but the Court does not place any significance on this observation because it could simply be a matter of fluctuations in the pixelation. The videos do not show the view the agents may have had of the intersection of Tangent Range Road from the side of the daycare center or from the back lots. A review of Ex. 4 indicates a line of sight between the side of the daycare center and some area in the back/side lots and the intersection of Tangent Range Road and Industrial Park Avenue, depending on the foliage. Camera 4 shows part of Tangent Range Road can be seen through the foliage. While the Court does not find this establishes that the agents saw Corral-Cinco and Gabriel Antonio Quijada-Quijada ("Quijada-Quijada") walking south on Tangent Range Road, the Court finds it does establish that the agents may have been able to see them turning onto or walking on this road.
At 8:37:32 a.m., Camera 1 shows two persons exited the first Border Patrol vehicle. One person exited from the front driver's side door and the other person exited from the front passenger's side door. The two persons moved freely about and neither person appeared to restrict the other's movements. This vehicle was subsequently moved and the Court did not observe any other persons exiting from this vehicle. Moreover, the videos do not appear to show any person, other than a driver when it was moved, get into this vehicle. While the Court does not find this establishes Quijada-Quijada was not in this vehicle, Quijada-Quijada was not removed from this vehicle, or Corral-Cinco was not told to get into this vehicle as stated in Corral-Cinco's testimony, the Court considers this along with other evidence.
The Court agrees with Corral-Cinco that, at 8:51:31 a.m., Camera 1 shows a person appears to open the rear driver's side door of the Border Patrol vehicle with its lights flashing. However, the Court cannot tell if at that time, or any other time, the rear passenger's side door is opened. The Court does not find this conclusive, but considers the video footage does not definitively establish whether a second person was in the rear seat of the Border Patrol vehicle with its lights flashing. Specifically, as to Border Patrol Agent Samuel Schultz's testimony that he separated the men by placing Quijada-Quijada in another marked vehicle after arriving at the back lot, the videos do not confirm or dispute this statement.
The Court's review of the relevant time portions of the videos does not show any other two persons that agents could have reasonably concluded were not the subjects of the reported tip (e.g., single person in the back area, apparent parent or guardian accompanying child into the daycare). While the Court does not find this establishes Corral-Cinco and Quijada-Quijada triggered the earlier sensor activity in the area or were the persons referenced to in the report from the dispatcher, the Court considers this along with other evidence.
Corral-Cinco objects to the magistrate judge's conclusion as to the first encounter because, he argues, the agents had neither reasonable suspicion nor probable cause for the first encounter with Corral-Cinco and Quijada-Quijada. Objections (Doc. 55), p. 4. Corral-Cinco also objects to the magistrate judge's conclusion as to the second encounter because, he again argues, the agents had neither reasonable suspicion nor probable cause for the second encounter with Corral-Cinco and Quijada-Quijada. Objections (Doc. 55), p. 4.
The magistrate judge concluded Border Patrol Agent Justin Sander's characterization that Corral-Cinco and Quijada-Quijada were trying to hide was "not entirely credible based on the agents' testimony that the men were taller than the pillar and were looking at the agents. The court concludes that the men were simply trying to make themselves look less conspicuous." R & R (Doc. 51), p. 3. The magistrate judge also stated:
Id. at 8. The magistrate judge also stated, as to Corral-Cinco's testimony:
Id. at 9.
The Court agrees with these credibility determinations. This conclusion is supported not only by the evidence as summarized by the magistrate judge, but also the observations this Court made from the videos.
Additionally, the magistrate judge summarized a portion of Corral-Cinco's testimony as follows:
Id. at 9. The Court does not find this testimony to be credible. In addition to the conclusion Corral-Cinco's testimony is not credible regarding the agents simply not finding the key during an alleged initial search, the slim inferences that can be gleaned from the videos lead to a conclusion that Corral-Cinco's testimony as to being handcuffed prior to transport and being transported separately from Quijada-Quijada is not credible.
The magistrate judge concluded the initial encounter is properly characterized as an initial inquiry and a brief investigatory detention and found the agents had reasonable suspicion to justify this initial detention. The magistrate judge stated:
R & R (Doc. 51), p. 10.
Corral-Cinco states:
Objections (Doc. 55), p. 5. The Court disagrees with Corral-Cinco's characterization. Corral-Cinco and Quijada-Quijada were initially seen by the agents "near" the daycare center. Similarly, whether a person reporting seeing people hiding in "brush" is referring to a certain type of vegetation cannot be ascertained; moreover, such a report could have been referring to a nearby area with different types of vegetation. The agents saw two men, with no indication any other two persons or group of people were seen by the agents, close to a daycare center that had reported people hiding in the brush nearby. Indeed, Agent Schultz testified they were the only people in the area.
Furthermore, this occurred in an area known for drug and human trafficking and there had been sensor activity in the area earlier. Additionally, Corral-Cinco and Quijada-Quijada were attempting to make themselves appear less conspicuous, causing the agents to speculate they were trying to hide.
The Court agrees with the magistrate judge that the agents had reasonable suspicion to conduct a brief, investigatory stop of Corral-Cinco and Quijada-Quijada.
The magistrate judge concluded the second encounter was a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and was supported by reasonable suspicion with the encounter culminating in an arrest supported by probable cause. The magistrate judge stated:
R & R (Doc. 51), pp. 11-12.
Corral-Cinco asserts, however, even if the agents' version of events occurred, the first prong favors a finding he was under arrest before or during the transport and that agents did not have probable cause to arrest Corral-Cinco. As previously stated, the Court agrees with the magistrate judge's credibility determinations and has made further credibility determinations; in other words, the Court finds the agents to be credible. Nonetheless, Corral-Cinco points out that agents were swarming the area, he was not asked for permission to be transported, and there was nothing to indicate where he was being taken, how long he was being transported nor what was happening to him. Further, Corral-Cinco also argues Agent Schultz is not credible because during the July 25, 2016, hearing before the magistrate judge, his testimony made the second contact with Corral-Cinco sound consensual compared to his testimony during the hearing before this Court where Agent Schultz testified he believed he turned the overhead flashing lights on when he made contact with Corral-Cinco and Quijada-Quijada prior to transporting them. The Court, however, does not find this testimony to be inconsistent; indeed Agent Schultz was not asked before the magistrate judge if the vehicle's flashing lights were on.
Further, in determining whether reasonable suspicion existed for the second encounter, the Court considers Agent Schultz testified that Corral-Cinco and Quijada-Quijada were separated when they returned to the area behind the daycare center. Agent Schultz also testified he read Corral-Cinco his Miranda rights and asked him some questions. Corral-Cinco admitted he knew marijuana was in the truck and that he came from Mexico to transport the marijuana. Agent Schultz then handcuffed Corral-Cinco, searched him, and found the key to the truck; Agent Sanders testified Corral-Cinco took a key out of his pocket and give it to Agent Schultz.
Here, the agents' observations were grounded in objectively identifiable facts, and the totality of the circumstances of the second encounter make clear that the agents had reasonable suspicion to stop Corral-Cinco and Quijada-Quijada for further investigation. They were found in an area frequented by drug and human traffickers and in which a truck loaded with marijuana was found, were possibly the persons that had been reported as hiding in the brush, had acted nervously and evasively, had stated they were looking for work although the B1/B2 visas they possessed did not permit the holders to work in the United States, and had headed in the direction of the border. The Court agrees with the magistrate judge that Corral-Cinco and Quijada-Quijada posed a risk for flight, justifying the arrival of additional agents without converting the initial part of the second encounter into an arrest.
Further, once Corral-Cinco admitted he had lied about looking for work, knew there was marijuana in the truck, had come from Mexico to transport the marijuana, and stated he had the key to the truck in his pocket, the agents had probably cause to arrest Corral-Cinco.
The agents had reasonable suspicion to conduct a brief, investigatory stop of Corral-Cinco and Quijada-Quijada during the initial encounter. Further, the second encounter was not converted into an arrest by the transportation of Corral-Cinco and Quijada-Quijada. Upon further investigation, the agents developed probable cause to arrest Corral-Cinco and Quijada-Quijada. The agents having lawfully stopped Corral-Cinco and Quijada-Quijada, any evidence seized from the lawful encounters is admissible.
Accordingly, after an independent review, IT IS ORDERED:
