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United States v. Payan-Valenzuela


September 14, 2007


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge


Procedural Background

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.

Factual Background

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 citizen with no authorization to be in the United States. Defendants were placed under arrest and transported separately in unmarked vehicles to the Calexico-U.S. Border Patrol station.*fn4

Advisal of Administrative and Miranda Rights

At the June 1, 2007 evidentiary hearing, Agent Salazar testified he was unable to recall whether he advised Defendants of their administrative removal rights (or whether he used Form I-826 in connection therewith), although he did testify it was his custom and practice to do so when encountering a deportable alien. The relevance of this line of questioning, vigorously pursued by counsel for Defendant Moytez-Pineda, was that if such an administrative advisal had been given before any Miranda warning, the administrative advisal that counsel could be present, but not at government expense, would conflict with the standard Miranda admonition thereby creating confusion for the Defendant. As such, counsel argued, the rule of United States v. San Juan-Cruz, 314 F.3d 384 (9th Cir. 2002) would come into play. (Holding that a Miranda advisement of the right to appointed counsel must be clear and not subject to any equivocation resulting from a prior or contemporaneous administrative advisal of the right to have an attorney present, but not at government expense.)

Later, at the July 26, 2007 evidentiary hearing, Agent Salazar testified that following the June 1 hearing he conducted further investigation into whether and when he provided any administrative removal rights to either Defendant. In fact, Agent Salazar was able to retrieve an I-826 form he utilized to advise each Defendant of his administrative rights. Agent Salazar further testified that the times entered on each form (6 p.m. for Defendant Moytez-Pineda and 7 p.m. for Defendant Payan-Valenzuela) reflected the times the forms were input into a computer and not when the administrate advisements were given. Agent Salazar then elaborated that it had always been his practice, without exception, to issue administrative rights after Miranda rights when the agent was aware, as in this case, that the case was being processed as a criminal case. Defendant Moytez-Pineda testified briefly that the Form I-826 was shown to him by Agent Salazar at approximately 6:00 to 6:30 p.m. and that he was later interviewed by DEA agents. Defendant Moytez-Pineda was able to identify his signature on the I-826 form. On cross-examination, Defendant Moytez-Pineda testified that he cannot read.

Agent Michael Ortiz of the Drug Enforcement Administration responded to the Calexico Border Patrol station at approximately 8:15 p.m. on September 20, 2006. At approximately 8:50 p.m., the Miranda admonition was provided to Defendant Moytez-Pineda by DEA agent Vasquez through the use of a standard "Miranda card". Defendant Moytez-Pineda acknowledged his Miranda rights and then agreed to speak whereupon he gave a statement.*fn5

Following the completion of Defendant Moytez-Pineda's interview, Agent Ortiz next advised Defendant Payan-Valenzuela of his Miranda rights. Defendant Payan-Valenzuela indicated he understood and waived his Miranda rights. He then provided a statement. The interview of Defendant Payan-Valenzuela then began at approximately 9:30 p.m. and concluded at approximately 10:00 p.m.


The parties in this case fundamentally disagree on how the threshold analysis for these motions to suppress evidence and statements should be structured. The government submits that only reasonable suspicion was required for Defendants' vehicle to be stopped and further that the use of a CTDD was justified under either a reasonable suspicion or probable cause standard. Defendants contend, alternatively, that probable cause at the very least was required for the stop and, moreover, given the use of the CTDD and drawn weapons, the more appropriate standard should have been one of clear and convincing evidence that narcotics were being transported in the vehicle.

Defendants further argue that the "field questions" asked of Defendants relating to citizenship status were impermissible due to the asserted unconstitutional stop of the vehicle and that later post-Miranda statements were tainted by the stop. The government responds that the "field questions" were proper and that neither the stops nor the field questioning render the post-Miranda statements inadmissible.

After careful consideration of all the evidence addressed regarding these motions as well as the written submissions and oral arguments, this court finds that although only reasonable suspicion was required for the stop of the vehicle in which Defendants were occupants, the stop was justified under either a reasonable suspicion or probable cause standard.

The Fourth Amendment prohibits "unreasonable searches and seizures" by the government and the reach of that protection extends to investigatory stops of people and vehicles that fall short of arrests. United States v. Arvizu, 534 U.S. 266, 273 (2002). Reasonable suspicion exists for an investigatory stop of a vehicle when the officer is aware of specific articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that the person to be detained has committed or is about to commit a crime. See United States v. Cortez, 449 U.S. 411, 417-418 (1981); United States v. Salinas, 940 F.2d 392, 394 (9th Cir. 1991). Facts are to be interpreted in light of the experience of a trained officer, and the entirety of relevant circumstances must be considered. United States v. Sokolow, 490 U.S.1, 7-8 (1989).

The Supreme Court has established a non-exclusive list of factors upon which an officer may rely in concluding reasonable suspicion exists: (1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including obvious attempts to evade officers; (6) appearance or behavior of the passengers; (7) model and appearance of vehicle; and (8) officer experience. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975). However, the "totality of the circumstances" of each case must be considered to determine whether the detaining officer has a particularized and objective basis for suspecting illegal activity. United States v. Arvizu, 534 U.S. 266, 273-274 (2002).

Here, the factors supporting reasonable suspicion to stop and detain Defendants' vehicle were numerous and compelling. The STAT unit conducting surveillance into the Buttercup area on September 20, 2006 consisted of several highly experienced Border Patrol agents familiar with smuggling activity in this area with close proximity to the border. These agents knew how to conceal themselves and what signs to look for indicating smuggling activity. Before September 20, 2006, the agents had become familiar with the looping maneuvers of scout vehicles on Interstate 8 adjacent to Buttercup, as well as ATV riders riding scout in the dunes in advance of a load vehicle emerging from Buttercup Valley into Buttercup campground. On September 20, 2006, after approximately eight hours of continuous surveillance, the STAT team detected suspicious scouting activity. Because no vehicular traffic had entered the Buttercup area earlier, the agents quickly and justifiably concluded that Defendants' vehicle, a Honda SUV, emerging from the dunes with blacked out windows, missing a front license plate as well as the customary flag required of off-road vehicles, was in fact, a narcotics load vehicle which had entered the United States by illegally crossing the border at the lower Buttercup area.

The scouting activity, the manner in which the Honda SUV was being operated, the vehicle's appearance all fit the familiar and specific profile for drug smuggling. The determination of the agents was buttressed by their experience in which virtually every vehicle of the many vehicles stopped under similar circumstances had been determined to be smuggling narcotics. Reasonable suspicion abounded to strip the vehicle on Interstate 8 and detain Defendants*fn6.

Defendants urge the court to conclude that the use of the CTDD and drawn weapons in this case was unreasonable and overly intrusive under the Fourth Amendment. Under the circumstances presented, however, neither the use of the CTDD before agents activated their emergency equipment, nor their use of firearms upon initial contact with Defendants constituted excessive force. The evidence before the court is that past use of this CTDD, or spike strip, had resulted in the slow and controlled reduction of air from a tire, rather than tire blow-outs or vehicle accidents. Moreover, the testimony of the agents supported the decision to wait until Defendants' vehicle had passed certain escape points used by past load vehicles and was clear of legitimate traffic. The tactical use of the CTDD allowed the agents to bring the vehicle to a point of rest at an optimum location while reducing the potential for escape and risk to other traffic. See United States v. Hernandez-Garcia, 284 F.3d 1135, 1140 (9th Cir. 2002). (Holding no basis for invalidating an arrest or suppressing evidence where a CTDD was deployed under similar circumstances).

Next, neither the use of drawn firearms in the approach of this vehicle, nor the initial use of handcuffs converted the stop into a custodial arrest or Fourth Amendment violation. United States v. Cervantes-Flores, 421 F.3d 825 (9th Cir. 2005) (Circumstances justified use of handcuffs in a Terry stop without converting the contact into an arrest); United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir. 1993)(permitting the display of firearms and the use handcuffs during a Terry stop when officers had reason to believe the suspect was dangerous). Here, the high probability that Defendants were smuggling a load of narcotics into the United States from Mexico justified the agents' decision to make a felony stop of the vehicle. The use of drawn weapons and handcuffs enhanced the ability of the agents to quickly control the scene, prevent escape, and retrieve risk of injury to the public as well as defendants.

Once Defendants were removed from the vehicle it became quickly apparent to the agents from the strong odor of marijuana emanating from the vehicle and their observations of packages in the rear seat area that Defendants were smuggling marijuana. The continued detention of Defendants, as well as the roadside questioning of Defendants into their immigration status was entirely justified. Berkemer v. McCarty, 468 U.S. 420, 435-40 (1984) (roadside questioning of a motorist detained pursuant to a traffic stop does not constitute custodial interrogation for Miranda purposes); United States v. Galindo-Gallegos, 244 F.3d 728, 730-732, (9th Cir. 2001)(border patrol agents' apprehension of Defendant and their questioning of his immigration status was a proper Terry stop); United States v. Camargo, 177 F.3d. 1113, 1121-23 (9th Cir. 1999) (immigration questioning of detainee following vehicle stop did not amount to custodial interrogation). Any statements made by Defendants regarding their immigration status were properly obtained and admissible.

Next, Defendants urge this court to suppress later post-Miranda statements due to the manner in which the vehicle stop was conducted, the fact that the heads of Defendants were covered while they were transported to the Border Patrol station, and because Defendants were allegedly advised of their administrative rights in a manner that may have undermined the message of the Miranda advisement.

This court has already analyzed and approved the manner in which Defendant's vehicle was stopped and Defendants were arrested. The use of hoods or articles of clothing to cover Defendants' faces during transportation in order to protect the identity of the undercover vehicles appeared justified under the circumstances. There is no evidence before the court that this protective measure was pre-textual, coercive, or in any manner a factor in Defendants' decisions to provide post-Miranda statements. The motion to suppress statements, insofar as it is predicated upon the use of hoods or clothing to impair the vision of Defendants during transportation, is denied.

Finally, we reach the issue of whether Defendants' post-Miranda statements should be suppressed either because (1)the Miranda advisement was unclear due to the timing of the administrative advisement, or (2) the statements were involuntary.

Defendants urge this court to find that they were each advised of their administrative rights before their respective Miranda advisements or in such a way as to have created confusion of the type criticized in U.S. v. San Juan-Cruz, 314 F.3d 384, 388-89 (9th Cir. 2002) (a Miranda warning is defectively unclear when it is preceded by an advisal of administrative removal rights wherein the individual is informed there is no right to government provided counsel). The difficulty with Defendants' argument, however, is that it is dependent upon this court finding that their Miranda warnings were conveyed in the manner condemned by San Juan-Cruz. Although the initial testimony of Agent Salazar demonstrated his inability to recall whether he utilized a certain form (I-826) in providing to Defendants their administrative removal advisal, as well as other details, his subsequent investigation refreshed his memory on these points. Agent Salazar was later able to provide copies of the I-826 forms he used to process Defendants for administrative purposes and to testify as to his use of the forms. Agent Salazar was vigorously cross-examined on the I-826 forms he utilized for Defendants as well as on his refreshed memory that he provided administrative advisals after the post-Miranda interviews of Defendants conducted by DEA agents. Agent Salazar testified that in order to specifically avoid the prospect of an unclear Miranda warning (as discussed in San Juan-Cruz) it was his consistent practice to defer the giving of an administrative removal admonition until after the Miranda warnings and any interview into possible criminal wrongdoing. After Agent Salazar's testimony regarding the I-826 forms (including his explanation of the 6:00 p.m. and 7:00 p.m. posted times on the forms) and his custom and practice of deferring the administrative warning until after the Miranda interview period, this court finds that the weight of the evidence establishes no San Juan-Cruz error occurred*fn7 .

The preponderance of evidence before the court establishes that Defendants were each properly advised of their Miranda rights and that each knowingly, voluntarily, and intelligently waived those rights at the time they provided statements to DEA Agent Ortiz. Moreover, the evidence establishes that each of the Defendants was interviewed by Agent Ortiz in a non-coercive manner and environment.

For all of the foregoing reasons, the motions to suppress evidence and statements are denied in their entirety as to each Defendant.


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