The opinion of the court was delivered by: Honorable M. James Lorenz
ORDER FOLLOWING EVIDENTIARY HEARING
Presently before the Court is Defendants Efrain Torres-Gonzalez and Manuel Marquez-Gutierrez' ("Defendants") Motions to Suppress Evidence Obtained as a Result of:
1) an Unconstitutional Vehicle Stop; 2) an Illegal Arrest; and 3) an Unconstitutional Warrantless Search of the Vehicle (collectively as "Motions to Suppress Evidence"). The central issues presented concern whether: 1) reasonable suspicion and/or probable cause to stop Defendants' vehicle was present; and 2) whether the use of a tire deflation device constituted an unlawful seizure. After consideration of all the evidence, the Court finds that: 1) reasonable suspicion was present when Border Patrol agents stopped Defendants' vehicle; 2) the use of a tire deflation device did not constitute an unlawful seizure; and 3) there was probable cause to arrest the Defendants. Accordingly, the Court DENIES Defendants' Motion s to Suppress Evidence.
The following testimony was elicited at the April 22, 2008, and May 15, 2008, evidentiary hearings. The facts presented occurred at the Imperial Sand Dunes Recreational Area ("area") in Imperial County. The area is a series of sand dunes, with the height of the largest sand dune measuring 350 feet. The entire area covers 60 miles, and is primarily used for recreation. The public utilizing the area must obtain a permit, safety equipment, and flags in order to traverse the dunes. The Mexican border is marked with monuments, and there are no barriers preventing exit or entry across the border.
Mexico is approximately seven miles from Interstate 8 ("I-8") across the sand dunes. There are only two exits that reach I-8, the Gordons Well Exit and the Grays Well exit.
The All American Canal, and a five to six feet tall barrier along the interstate, prevents vehicles from Mexico from exiting the dunes except through these two exits. The area also contains two sections known as "Buttercup Valley" and the "A-7 Valley." The two valleys lead into I-8 and contain the following campgrounds: 1) Buttercup Campground (near the Grays Well Exit to Interstate 8); Midway Campground; and 3) Greys Well Campground. There are also a number of worn paths, which lead to the sand dune area.
On September 10, 2007, Border Patrol Agents working with the Calexico Station's Smuggler Targeting Action Team ("STAT") (consisting of six members) arrived in the area at 8:00 a.m. Among the agents present were Border Patrol Agents Stephen Carter, Michael Harrington, and Jorge Vega-Torres. The agents were to conduct surveillance of the area so as to preclude smuggling. All three agents testified that they had extensive experience patrolling the Imperial Sand Dune Recreational Area, and collectively patrolled the area from two to six days a week to five to six days per week, respectively. Each of the agents have made numerous immigration and drug smuggling arrests. Agent Vega-Torres has been assigned in the area for 28 months and has arrested over 200 loads of smuggled aliens, as well as made over 60 narcotic arrests. Agent Carter has made approximately 20 to 25 narcotic vehicle arrests, and Agent Harrington has made between 30 to 40 arrests. Each of these arrests occurred in the Imperial Sand Dune Recreational Area, which include arrests involving vehicles traveling through the Buttercup and A-7 Valleys.
On September 10, 2007, the three agents individually patrolled the various campgrounds in their respective unmarked vehicles. The agents did not observe any recreational vehicles using the campgrounds on that day, which was noticeably hot. The only activity in the area involved Border Patrol field training at the A-7 Valley area. The training lasted for about four hours and terminated at approximately 3:30 p.m. At 4:30 p.m., the three agents were in surveillance at different locations watching the two exits, in the Buttercup and A-7 area.
Some members of the team set out on foot to watch from the North while other members were concealed on I-8. Agent Carter had been in position for about four hours when a sensor went off in the A-7 Valley. The sensor was about three miles from the interstate. Since he ascertained that a metallic object alerted the sensor, he radioed the team to expect a vehicle to emerge. The three agents testified that when the sensor went off it would take about seven minutes for a vehicle to reach I-8. The timing is estimated from the numerous past arrests of narcotic and alien smuggling vehicles, which passed through the A-7 Valley. Soon after, the agents observed a maroon Chevrolet Tahoe ("Tahoe") with four-wheel drive emerge from the A-7 Valley and proceed to I-8 following the barrier to the Grays Well Exit. The Tahoe did not have the requisite camping flag.
Agent Harrington, who was located at the rest area of Grays Well Exit, was standing outside of his unmarked vehicle, with his door open in the northeast area of the rest area. Agent Harrington observed the Tahoe enter I-8 in a westbound direction. The agent testified that he could see the driver and passenger even though the front and back windows of the Tahoe were tinted. Through the tinted windows, Agent Harrington saw something covered by a tarp, which also appeared to be "stacked" up. Agent Harrington testified that due to his past experience with vehicles involved in smuggling, which used the same method of crossing the sand dunes, he believed the Tahoe was engaged in smuggling. However, Agent Harrington admits that he could not see clearly and was not able to ascertain what the object was.
After the Tahoe passed Agent Harrington's location, he followed the Tahoe for about 15 to 20 miles and then observed the Tahoe cross the median and reverse direction. This unusual maneuver further alerted the agent. Agent Harrington radioed that the Tahoe had crossed the median to make a u-turn, and was now proceeding eastbound on I-8. The agent proceeded another mile before turning around himself. Agent Harrington had no further participation in the vehicle stop.
Agent Carter previously entered I-8 after the Tahoe first proceeded westbound. The agent was located a fair distance behind Agents Vega-Torres and Harrington and the Tahoe. Agent Carter heard the radio call that the Tahoe had reversed direction and was now traveling towards his direction. The agent testified that based on his experience, he believed all of the actions taken by the Tahoe demonstrated smuggling activity, which gave him reasonable suspicion to employ a tire deflation device. Agent Carter saw the Tahoe approaching him. Following closely behind the Tahoe was a California Highway Patrol ("CHP") vehicle.
The Court notes that Agent Carter's testimony was inconsistent as to whether the CHP vehicle's overhead lights and siren were actually activated. According to Agent Carter, the Tahoe failed to yield or stop for the CHP officer. Agent Carter testified that he parked his vehicle and prepared to employ the tire deflation device because of the Tahoe's failure to yield. However, the approaching Tahoe swerved onto the median evasively and then returned back onto the highway. Agent Carter did not have the opportunity to successively deploy the device due to the Tahoe's evasive action.
Agent Vega-Torres had been trailing behind Agent Harrington from a distance when he learned that the Tahoe had made the u-turn. Knowing that the Tahoe would soon be traveling to his location, he immediately made a similar u-turn. Agent Vega-Torres slowed his speed expecting the Tahoe to pass him, which it did. As the agent followed the Tahoe, he noticed that a CHP vehicle was parked at an overpass located at I-8 and Highway 98. As the Tahoe passed, the CHP fell in behind the Tahoe separating Agent Vega-Torres' vehicle from the Tahoe. At this point, Agent Vega-Torres was traveling behind the Tahoe and the CHP vehicle.
The CHP followed the Tahoe for approximately six to eight miles, and then pulled over once it passed Agent Carter's position (with his failed attempt to employ the spike strip). Agent Vega-Torres testified that he had radioed his station to inform the CHP station that he was following the Tahoe. Agent Vega-Torres was unable to contact the CHP vehicle directly due to different frequency channels. The agent testified that he observed the Tahoe avoid the tire deflation device by driving into the median. After the CHP vehicle disengaged, Agent Vega-Torres allegedly activated his light and siren on his unmarked vehicle (a white Ford ...