The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
Presently before the Court is Defendant Jennifer Christina Hall's ("Defendant") Motion to Suppress Evidence Obtained from an Unlawful Immigration Stop ("Motion to Suppress Evidence"). After consideration of all the evidence, the Court finds: 1) that reasonable suspicion was not present when Border Patrol agents stopped Defendant's vehicle; and 2) there was no probable cause to arrest the Defendant. Accordingly, the Court GRANTS Defendant's Motion to Suppress Evidence.
The following testimony was elicited at the July 3, 2007, evidentiary hearing. On March 3, 2007, Border Patrol Agent Craig Allen was standing on the shoulder of the westbound lanes of Interstate 8 approximately one half mile east of the Ribbonwood off-ramp.
At that time, Agent Allen was assisting other agents with an unrelated stop. He observed what he believed to be a blue Toyota minivan traveling westbound on Interstate 8. Agent Allen testified that the vehicle seemed to be struggling up the hill due to the noise it was making. Agent Allen looked at both the vehicle and the vehicle's driver. He noticed the driver was staring straight ahead with both hands on the steering wheel, which seemed unusual because the agents he was assisting on the side of the road had vehicles whose emergency lights were activated. Also, Agent Allen observed that all of the other traffic in the area appeared to acknowledge the other agents' as their emergency lights were shining on the side of the road.
Agent Allen specifically testified that "the sound that the vehicle was making, it seemed like it was carrying some weight." He noticed that the minivan exited at the Ribbonwood off-ramp and made a u-turn. The vehicle then proceeded back on the eastbound lanes of Interstate 8. Based on that activity, Agent Allen radioed in his observations noting there was a suspicious vehicle, which had just passed his location struggling up the hill, and had changed its direction of travel from westbound to eastbound on Interstate 8.
Agent Allen then began transporting the vehicle from the prior unrelated stop to the Border Patrol Station in a westbound direction on Interstate 8. Again, he observed the minivan vehicle, which was now traveling eastward on Interstate 8, opposite Agent Allen. He described the driver as a "white female with shoulder length hair" and believed the hair to be a bobbed haircut.
Agent Donald White and Supervisory Border Patrol Agent Mark Hansen heard Agent Allen's radio call. Agent White and Agent Hansen's vehicle were parked opposite one another, approximately one hundred yards south on Ribbonwood Road. Agent Hansen's vehicle was faced northbound and Agent White's vehicle was faced southbound. Agent Hansen immediately proceeded one hundred yards onto the Interstate in an attempt to locate the minivan. Agent White fell behind since he had to turn his vehicle around to get to the freeway entrance.
After traveling at a high rate of speed, Agent Hansen located the minivan. Agent Hansen was in civilian cloths in an unmarked Government vehicle. He testified that he pulled alongside the vehicle, but due to the fact that he was lower than the minivan, he was unable to see past the driver. He observed, however, that the driver of the minivan was intently looking into her rearview and side-view mirrors. Agent Hansen testified that the driver appeared nervous, but he could not see any other bodies in the vehicle since his sedan was lower than the minivan. Agent Hansen then proceeded ahead in order to lay down spikes, should that procedure become necessary.
During that time, Agent White's marked patrol vehicle was approaching the Defendant's vehicle from the rear, about a quarter mile back. Agent White testified that as he approached closer, he ran the plates and proceeded to pull up alongside the vehicle.
Agent White testified that since his truck was about two feet higher than the minivan, he was able to see into the passenger side and rear view tinted windows. Agent White testified that he saw the driver and a front seat passenger who appeared to be crouching down between the seat and the dash area. Agent White further testified that he could see in the back of the minivan and observed through the rear windows the bench area where several individuals were laying down in and between the seats.
Agent White activated his overhead lights and the driver pulled over and stopped. Agent White asked the driver (later identified as the Defendant) if she knew the occupants and she responded "no." According to Agent White, the Defendant stated "that she had picked them up." When asked where, the Defendant allegedly pointed south. Agent White asked if the Defendant ever picked up unknown individuals before. The Defendant apparently stated that she had been arrested a couple times prior for alien smuggling. She was subsequently placed under arrest.
Although the above stated facts were pursuant to the testimony from the July 3, 2007, evidentiary hearing, subsequent dispatch tapes relating to the stop must be reconciled with the hearing testimony if reasonable suspicion is to be found. The tapes indicate that Agent White, as he approached the minivan was not sure whether he had the right vehicle because it appeared white instead of blue. Additionally, Agent White was instructed by Agent Hansen, who was located further ahead, ...