The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTIONS TO SUPPRESS EVIDENCE AND STATEMENTS
This is a prosecution based on an indictment containing two counts against each Defendant for importation of marijuana and possession of marijuana with intent to distribute.
Pretrial motions brought by Defendants Luis Gilardo Payon-Valenzuela and Pedro Moytez-Pineda to suppress evidence and statements have generated several rounds of evidentiary hearings and filings. On May 10, 2007, U.S. Border Patrol agents Mark Battaglini, Jorge Vega-Torres (Vega), Jesus Salazar, and David Blake testified primarily on their observations and stop of the vehicle in which Defendants were occupants. Their testimony largely concerned Defendants' motion to suppress evidence on the grounds of insufficient legal cause to stop the vehicle and the manner in which the vehicle was stopped. The next evidentiary hearing occurred on June 1, 2007 and focused on the motion to suppress statements. Drug Enforcement Administration Special Agent Michael Ortiz, who conducted the post-Miranda interviews of the Defendants, testified. The defense called Border Patrol agent (BPA) Jesus Salazar as well as a defense investigator. Yet a third evidentiary hearing was conducted on July 26, 2007. This hearing was occasioned by a declaration filed by BPA Salazar following the second evidentiary hearing of June 1. Because Salazar's declaration was inconsistent with his June 1 testimony on material points, this court ruled it was appropriate to afford Defendants the opportunity to cross-examine Salazar further in lieu of striking his declaration. At the third and final evidentiary hearing, Defendant Moytez-Pineda also testified.
The Imperial Sand Dunes (Dunes) known by the United State Border Patrol to be a smuggling corridor for illegal aliens and drugs, in the Southern District of California, straddles the United States and Mexico, and is situated approximately nine miles from the Andrade Port of Entry and approximately 35 miles from the Calexico Port of Entry. An area known as Buttercup Valley extends from Mexico on the south in a northward direction across the international border. Buttercup Valley is a relatively flat valley surrounded by the Dunes that rise to approximately 200 feet. Because the topographic severity of the Dunes in the area of the border acts as a natural barrier, there is no man made barrier separating the United States from Mexico. Spaced, concrete monuments in the sand delineate the international boundary. Buttercup Valley extends northward, bordered by tall dunes, ultimately toward the Buttercup campground area. The Buttercup Campground area in turn is accessible to Interstate 8 at a point approximately 15 miles west of Yuma, Arizona.
Conventional vehicles, including those with four-wheel drive and sport utility vehicles cannot traverse the tall dunes. The only path of travel for such a vehicle traveling from the Mexican Buttercup to the Buttercup campground area on the United States side is through the lower middle dunes into a small trail leading into the Buttercup campground area.
On September 20, 2006, a U.S. Border Patrol anti-smuggling unit known as the Smuggling Target & Action Team (STAT), operating out of the Calexico station of the U.S. Border Patrol, was conducting surveillance of the Buttercup campground and surrounding area for the purpose of detecting smuggling activity. Agent Michael Harrington arrived at approximately 8:00 a.m., drove into Buttercup Valley to insure there were no "legitimate vehicles" inside the valley and then exited the valley to assume a point of surveillance at the north end of Buttercup Valley. Agent Harrington maintained constant visual surveillance of the valley and surrounding dunes. When supervising Border Patrol Agent Marc Battaglini assumed Agent Harrington's observation position at approximately 12:30 p.m., Agent Harrington reported that there had been no vehicular traffic at all in the surveillance area that day.
Upon assuming his concealed surveillance position, Agent Battaglini observed that there were no vehicles or people present in the Buttercup Valley and the surrounding dunes. After maintaining constant surveillance of the area, however, circumstances changed at approximately 4:00 p.m. when Agent Battaglini and other STAT members noticed certain vehicles engaged in "looping" activity between two freeway exits of Interstate 8 "in front of the Buttercup area". Agent Battaglini, based on his substantial enforcement experience in the area, recognized this activity as "common scouting behavior by the narcotics smugglers" designed to detect marked and unmarked law enforcement vehicles. Based upon Agent Battaglini's observations and experience, he, as well as other STAT agents, suspected a load of narcotics would be coming through the Dunes.
After observing the suspicious "looping activity" of certain vehicles on the freeway, Agent Battaglini then noticed an all-terrain vehicle (ATV) rider riding out of Buttercup Valley to a higher point in the sand dunes where he parked in a partially concealed manner. Agent Battaglini had, on more than a dozen occasions, observed ATV riders utilized in this manner to scout for law enforcement vehicles in advance of a vehicle smuggling narcotics across the border. A short time later, Agent Battaglini observed a silver Honda SUV drive out of the Buttercup Valley. The Honda SUV had "blacked out" windows, missing a front license plate, and bore no "flag" as required for off-road vehicles traversing the sand dunes. The Honda SUV thereafter traversed the paved frontage road by Interstate 8 and then entered eastbound Interstate 8 at the Gray's Well on-ramp. Prior to September 20, 2006, Agent Battaglini had been involved in numerous arrests for marijuana smuggling in this area based upon similar observation of looping scout vehicles on the freeway in advance of a marijuana load vehicle emerging from Buttercup Valley. Agent Battaglini immediately suspected the Honda SUV had illegally entered the United States and was smuggling marijuana.
Based upon the observations and substantial experience of Agent Battaglini and his fellow STAT members, a decision was made to stop the Honda SUV and detain its occupants. A controlled tire deflation device (CTDD), also known as a "spike strip," was ultimately utilized. As explained by Agent Battaglini, a CTDD consists of a plastic strip containing small hollow steel tubes. When a vehicle passes over a deployed strip, one or more of the tubes will dislodge from the strip, embed in a tire, and cause air to escape at a controlled rate of deflation. A driver is able to retain control of the vehicle while tire deflation takes place and may continue driving for some distance. On the approximately 100 prior occasions Agent Battaglini had personally deployed or witnessed the deployment of a CTDD, he had never observed a device cause an accident.*fn1
After allowing for normal freeway traffic to clear and the Honda SUV to pass by points along eastbound I-8 where load vehicles had attempted to elude authorities in the past*fn2 , the agents deployed a CTDD was deployed to stop the Honda SUV. Once the CTDD was successfully deployed Agents Blake and Salazar, who had been following the Honda SUV, activated the lights and sirens on their unmarked vehicles and the Honda SUV quickly pulled to the shoulder of the freeway just west of Yuma.
Agents Salazar and Blake, respectively, approached the passenger and driver sides of the stopped Honda SUV from the rear and with their service firearms drawn*fn3 . When the passenger, Defendant Moytez-Pineda open the passenger door, a strong odor of marijuana was detected by Agent Salazar. As Defendant Moytez-Pineda stepped out of the vehicle, Agent Salazar observed bundles behind the seat which he believed to contain marijuana. Agent Blake noticed a strong odor of marijuana when the driver, Defendant Payan-Valenzuela, opened his door. Both Defendants were placed on the ground and handcuffed. Each Defendant was questioned regarding immigration status without being Mirandized and admitted, in essence, to being a Mexican ...