Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, )
) No. CR 06-01864-TUC-RCC [CRP] Plaintiff, )
)
vs. )
) REPORT AND RECOMMENDATION DIANE ANTONE, aka Diana Antone, )
) )
Defendant. )
_______________________________ )
Defendant filed a Motion To Suppress Evidence [Dkt 16] , arguing that a Border Patrol agent violated her Fourth Amendment rights when he stopped her vehicle. The Government opposes the motion. Because this Court finds that there was reasonable suspicion to support the stop of Defendant's vehicle, it is recommended that the District Judge, after his independent review and consideration, enter an order denying the motion.
F ACTS
On September 17, 2006, Border Patrol Agent Adolfo Illas began his shift at the Casa Grande station at 6:00 p.m. From the station, he was driving southbound on Federal Route 15, "...to the line, to the work area I was assigned that day." RP 5-6. [1] As Agent Illas was driving to his assigned area, he heard "radio traffic" about a convoy of three or four vehicles heading north on FR 15. Based on that information, Agent Illas pulled off the road near milepost 15 to check the northbound traffic. [RP 9].
Defendant Antone drove by Agent Illas, headed north, in a 1994 Chrysler Concorde. As the vehicle passed, Agent Illas noted that the vehicle was "riding heavy" even though only one passenger [the driver] was visible. Id. While the vehicle was not part of a caravan of vehicles, [RP 23], Agent Illas thought "it was worth looking." [RP 9].
After pulling in behind the Defendant's vehicle, Agent Illas observed it slowed down from the speed limit, 55 mph, to about 35-40 mph. [RP 10]. Illas also noticed that the car was "jumping" over bumps in the road, possibly because it was heavy. Id. Agent Illas was riding in a marked Border Patrol Chevrolet Tahoe, which rides somewhat high. [RP 24]. Because of the slow speed, Agent Illas was able to drive quite close to Defendant's vehicle, and he observed "palm prints elbow prints on the trunk lid." [RP 12].
Agent Illas called in for a registration check and stolen vehicle check on the 1994 Chrysler Concorde. The vehicle was not reported stolen. The registered owner was listed as Mary Christine Antone of Sells, Arizona. [Ex. 2, p.2; RP 28-29].
After receiving the registration check, Agent Illas decided to stop the vehicle Defendant was driving. Illas testified his reasons for stopping the car were:
Based on the — — the weight, that is sitting low and it was jumping and I saw palm prints, only one passenger, and the car was heavy, so I decided to activate my emergency equipment and the vehicle stopped.
[RP 13]. In his police report, Agent Illas stated his reasons for stopping Defendant as follows:
Having knowledge about the heavy traffic of human smuggling in this area, observing that the vehicle was riding low, the hand prints on the top of the truck, and the registered owner information, I decided to initiate a vehicle stop.
Ex. 2, p.2.
A NALYSIS
The analysis of this motion is guided by the Supreme Court opinion in United States v. Arvisu , 534 U.S. 266, 122 S. Ct. 744 (2002). In , the Court reiterated the long-held doctrine that the Fourth Amendment applies to vehicle stop cases, and that an officer must have "reasonable suspicion" of criminal activity before temporarily stopping a vehicle. Arvisu , 534 U.S., at 273, 122 S. Ct., at 750. Reasonable suspicion is less than probable cause and considerably less than a preponderance of the evidence, but must be more than a mere "hunch." Id. at 274, 122 S.Ct., at 751. Instead, the officer's judgment must be based on "particularized and objective" facts that support the suspicion that criminal misconduct is presently, or soon to occur. Id. , at 273, 122 S.Ct. at 750.
The holding of reiterated that the court must apply a "totality of the circumstances" test in considering whether facts support a determination of reasonable suspicion of criminal conduct. Id. , at 273, 275-278, 122 S.Ct., at 750, 752-753. In other words, facts may individually be subject to innocent explanation, but in their totality support the determination of reasonable suspicion. Id. , at 277-278, 122 S.Ct., at 753.
Earlier, the Supreme Court had described a non-exclusive list of factors that an officer could consider when determining whether to stop a care, including:
1. Characterization of the area, including proximity to the border; 2. Information about recent activity in the area;
3. Driver's behavior, including erratic driving or attempts to elude police officers; 4. Characteristics of the vehicle, including whether it appears heavily loaded; and 5. Characteristics of the people in the vehicle.
United States v. Brignoni-Ponce , 422 U.S. 873, 884-885, 95 S.Ct. 2574, 2582 (1975). The officer is entitled to consider these factors in light of his law enforcement experience. Id. , at 885, 95 S.Ct., at 2582; Ornelas v. United States , 517 U.S. 690, 700, 116 S.Ct. 1657, 1663 (1996).
This case presents a close question. Most important to Agent Illas was that the car, with only one visible passenger, was riding low, and the palm prints on the truck lid. [RP 13]. In his report, Illas also identified his knowledge of human smuggling activities in that area, and the car registration information.
In addition to the factors identified in his report, Agent Illas testified about his daily briefings and the fact that the activity occurred during a shift change. [RP 7]. If a fact can specifically and objectively support reasonable suspicion, it must be considered as part of the totality of the circumstances, even though those facts are susceptible to innocent interpretation. However, if the facts are not specific and objective support of the suspicion of criminal activity, even if considered with other facts, it need not be considered. The car registration and shift change arguments fall into this category.
The registration came back to a woman named Antone, living in Sells. The arrest occurred within twenty miles of Sells. This cannot be considered suspicious unless the agent knew specific information about Mary Christine Antone. Agent Illas did not testify about any specifics in that regard.
The shift change argument is frequently raised, usually with scant foundation. This case emphasizes the invalidity of the argument. Defendant was stopped at 8:55 p.m., five minutes short of exactly midway between the 6 pm and midnight shift changes. If the shift change argument has merit in this case, it creates a twenty-four hour a day shift change factor.
While the registration information and shift change factors may be disregarded, other factors support Agent Illas' decision to stop the vehicle. This Court determines that the following facts support a finding of reasonable suspicion:
1. the car was riding low;
2. the palm prints on the trunk lid;
3. the intel about smuggling activity in the area; and 4. the vehicle dramatically slowing down.
The car riding low with only one visible passenger leads to the conclusion the car may have something heavy in the trunk or below the windows. Ultimately, this conclusion was borne out when three adult women were found in the trunk.
The hand prints on the dusty trunk lid are not conclusive by itself, but are suspicious when considered with other factors. Given the slow speeds of the vehicles, allowing Illas to follow closely from his high perch in the Chevrolet Tahoe, Agent Illas' testimony on this point is credible.
Agent Illas testified about daily briefing, which advised concerning "intel about smuggling activity between shift change" around the town of Ak-Chin, near FR 15 at milepost 9. [RP 6-7-]. The specific characteristics of the area is an important factor identified in both Brinoni-Ponce , and . While Agent Illas testified incorrectly about the date of the arrest, perpetuating the mistaken date of September 27, 2006, used in the Government's Response, this was a mere mistake and did not detract from the credibility of the testimony concerning intelligence regarding alien smuggling activity in the area.
Finally, Agent Illas testified that when he followed the car Defendant was driving, she slowed from the speed limit to 35-40 mph. [RP 11]. While few of us are so pious as to not slow down when we see a law enforcement vehicle, such extreme slowing, 15 mph below the speed limit, is suspicious, particularly when considered with the other factors.
The Defendant cited United States v. Salinas , 940 F.2d 392 (9 th Cir. 1991), which appears to have similar facts to this case and concluded that reasonable suspicion did not arise. Comparing one case to another is usually of little assistance in these cases, because the totality of the circumstances test is so multifaceted. Ornelas , at 698, 116 S.Ct., at 1662. Here the intel about alien smuggling in the area and the driver's conduct in dramatically slowing down distinguishes this case from Salinas .
Therefore, the Court recommends that the District Judge, after his independent review and consideration, find that there was reasonable suspicion for the vehicle stop at issue in the motion and enter an order D ENYING Defendant's Motion To Suppress Evidence.
Pursuant to 28 U.S.C. § 636(b)(1)(B), the parties have ten (10) days from the date of this Report and Recommendation to file written objections to these findings and recommendations with the District Court. Any objections filed should be filed as CR 06- 01864-TUC-RCC.
DATED this 26 th day of March, 2007.
[1] "RP" stands for the Record of Proceedings of the Motion To Suppress Evidence hearing, March 2, 2007. The number indicates the page in the written transcript.