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United States v. Torres-Gonzalez

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 11, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
EFRAIN TORRES-GONZALEZ (1), MANUEL MARQUEZ-GUTIERREZ (2), DEFENDANTS.

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.

I. BACKGROUND

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 pickup-250) at Swingles Hill. Agent Vega-Torres testified that the Tahoe failed to yield so he radioed for a tire deflation device to be re-attempted and employed.

The Tahoe exited I-8 at Grays Well Exit, which was the entry point the Tahoe had first used to enter the interstate. The Tahoe decreased its speed at a "T-intersection." As the vehicle proceeded toward the Buttercup Campground, a tire deflation device was employed, which successfully deflated its tires. Despite the deflation, however, the Tahoe continued driving and turned onto a paved eastbound road. The Tahoe then exited the paved road and drove towards the A-7 Valley and entered the sand dunes. The vehicle finally stopped after traveling about 200 yards in the sand with flattened tires. Agent Vega-Torres was driving behind the Tahoe the entire time.

The doors of the Tahoe opened and one of the vehicle's occupants began to run northward and the and the other occupant ran towards I-8. Both individuals were later apprehended. The agents approached the Tahoe and for the first time smelled the pungent odor of Marijuana. Approximately 539.83 kilograms of Marijuana was found inside the vehicle covered by a black tarp.

II. ANALYSIS

As stated above, the central issues contained in Defendants' Motions to Suppress concern whether: 1) reasonable suspicion and/or probable cause to stop the Tahoe was present; and 2) whether the use of a tire deflation device constituted an unlawful seizure.

Defendants also contend that the alleged failure to yield to CHP cannot be a factor consideration in the determination of whether the stop was legal because the testimony presented by the Government was contradicted by the evidence.

Reasonable suspicion exists for an investigatory stop of a vehicle when the officer is aware of specific articulable facts which, taken 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, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (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, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

In order for the Court to evaluate the legality of Defendants' stop, the Court must first resolve several conflicts in the evidence to properly determine, which factors the court must actually consider.

A. Activation of Lights and Siren by the CHP Officer

The first issue is whether the Tahoe failed to yield to the CHP officer. On direct examination, both Agents Carter and Vega-Torres testified that the CHP employed its overhead lights, as well as, its siren in an attempt to stop the Tahoe. This testimony, however, is contradicted by Defendants' expert who analyzed the numerous radio dispatch tapes for the agents' vehicles. Agent Vega- Torres testified that he was located behind the CHP vehicle as it followed the Tahoe. However, no siren was detected on the dispatch tape during the many communications that took place between the units. Since the Government failed to offer a credible rebuttal to this fact, the Court concludes the evidence is accurate. Agents Vega-Torres and Carter changed their testimony upon cross-examination, and stated instead that the CHP did not have his siren activated. The CHP officer was not called as a witness. Therefore, the Court concludes both Agents Carter and Vega- Torres were not credible in their direct testimony, and were correct in their cross-examination when they both changed their testimony that no siren was activated.

The Court is left with the testimony that the CHP officer's overhead lights were on for the six to eight miles following the Tahoe prior to its disengagement. There is no testimony that the Tahoe increased its speed for those six to eight miles. In fact, after the Tahoe reversed its direction, the communication on the dispatch tape clearly indicates that the Tahoe had its lights on and was driving in a normal manner. Since the Court has determined that the testimony of the two agents during direct examination was not credible with respect to the siren, the Court finds it difficult to believe that a CHP officer would follow a suspect vehicle (who allegedly failed to yield for over six to eight miles) with its red overhead lights on without activating its sirens (or some other similar action) over such an exhaustive distance.

There is no direct testimony why the CHP disengaged, only an inference that it was related to Agent Vega-Torres' communication with his station regarding the CHP officer. The dispatch tape does confirm the agent's call regarding the CHP officer, but confirms nothing more. The Court is not convinced that the Government has proved by a preponderance of the evidence that the Tahoe failed to yield to the CHP, especially given that the CHP officer did not employ his siren, and the Tahoe did not increase its speed, or attempt to escape. The actions of the CHP vehicle of pulling over to the side reflects that the CHP officer terminated his interest in the Tahoe (even if stopping the Tahoe may have been the officer's original intent). Therefore, the Court declines to consider the CHP officer's action as evidence the Tahoe failed to yield.

B. Activation of Lights and Siren by Agent Vega-Torres

The Court must also consider whether Agent Vega-Torres' is credible concerning his testimony that he activated his light and siren at Swingles Hill on I-8 and that there was an alleged failure to yield by Defendants. Agent Vega-Torres testified that after the CHP disengaged, Agent Vega-Torres activated his light and siren eastbound on I-8 at Swingles Hill in an attempt to induce the Tahoe to yield. The agent radioed his request for a tire deflation device to be employed at the Grays Well Exit, which leads to the Buttercup Campground and sand dune area. Agent Vega-Torres predicted that the Tahoe would try to make it back towards the A-7 Valley, the same way the Tahoe first entered the interstate. This is confirmed by the communication in the dispatch tapes regarding the location to place the spike strip on the frontage road. The Tahoe did in fact turn off I-8 at the Grays Well Exit. A spike strip was laid on the access road, which successfully deflated the Tahoe's tires. Despite the deflation attempt, the vehicle continued some distance on the paved road, then left the paved road and continued into the sand leading to the A-7 Valley where it eventually stopped (approximately 200 yards later). Agent Vega-Torres followed behind the Tahoe the entire time.

Testimony given by the defense expert Ben Solis, a computer litigation specialist, contradicted Agent Vega-Torres' testimony that the agent activated his siren while still on I-8 at Swingles Hill. Defendants' expert analyzed the dispatch tapes and determined no siren had been activated when the Tahoe exited I-8 towards the Buttercup Campground. The Court noted 5.9 seconds of communication between the agents that would have detected the sound of a siren, if it indeed was on. There was no wave pattern indicating a siren during that time period.

The first time a siren is detectable in the waive pattern is during a later dispatch where Agent Vega-Torres explained that the Tahoe was entering the sand and he was following the vehicle. The siren is confirmed by the audio portion of the dispatch tape when it can clearly be heard during the communication of Agent Vega-Torres. Review of the dispatch tapes also did not reflect any audio communication by Agent Vega-Torres that he was attempting to stop the Tahoe on I-8. Rather, the tapes indicated that his attempts to stop the vehicle did not occur until after the spike strip had deflated the Tahoe's tires, and the vehicle had proceeded toward the sand dunes.

Agent Vega-Torres testified on cross-examination that spike strips are sometimes employed without first trying to attempt a vehicle stop. Considering the testimony of the defense expert, coupled with the dispatch tapes, which clearly indicate a siren sound only after the spike strip was employed, the Court finds Agent Vega-Torres' testimony that he attempted to stop the Tahoe prior to its tires being spiked not to be credible.

Furthermore, the Government did not rebut the testimony of Ben Solis with any credible evidence. If there was an actual intent to stop the Tahoe by Agent Vega-Torres while he was still on I-8 prior to the turn off, surely the dispatch tapes would have reflected notification of this fact to the other agents. There is nothing in the dispatch tapes, which reflect this. Rather, the dispatch tapes reflect updates of the Tahoe and Agent Vega-Torres' locations as they passed by area landmarks, including the observation of the CHP and the request for a spike strip on the frontage road to Buttercup Campground.

Based on the totality of the evidence, the Court cannot find by a preponderance of the evidence that the Tahoe failed to yield prior to the spike strip's deployment. Therefore, if the stop is to be constitutionally upheld, it must be without the Government's contention that the Tahoe was failing to yield to either the CHP officer or to Agent Vega-Torres prior to the spike strip's successful deployment.

C. Factors Supporting the Stop of Defendants' Vehicle

The Supreme Court has established a nonexclusive list of factors that an officer may rely on in concluding if reasonable suspicion to stop a vehicle 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 passengers; 7) model and appearance of the vehicle; and, 8) officer experience. United States v. Olafson, 213 F.3d 435, 439 (9th Cir. 2000) (internal citation and quotation omitted). 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, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Despite the Court's exclusion of the factors discussed above, there are circumstances present that provide reasonable suspicion and/or probable cause to stop Defendants' vehicle. Those circumstances are noted as follows:

1) Agents Carter, Harrington, and Vega-Torres are all highly experienced agents with the STAT unit, and have been operating out of the Imperial Sand Dune Recreational Area as members of the special smuggling unit. Each of the three agents has extensive experience and training in apprehending smugglers, including the area where Defendants' apprehension took place. All three agents have worked this specific area three to six days-a-week, and have collectively made hundreds of arrests in this area.

2) The three agents are personally familiar with the A-7 Valley and Buttercup Valley. In their experience, smugglers use the sand dunes to enter the United States from Mexico in order to reach Interstate 8. The agents are familiar with the location of a sensor in the A-7 Valley, which is about 3 miles from I-8, which detects metallic objects such as vehicles. The agents are also aware through their experience that it will take approximately seven minutes for a vehicle to arrive from the valley once it has been identified by the sensor.

3) All three agents testified that September 10, 2007, the day of Defendants' arrest, was a notably hot day, and that they arrived at 8:00 a.m. The agents, driving individually in their respective unmarked vehicles, searched the campgrounds for recreational vehicles and campground visitors. All three testified that there were no visitors or recreational vehicles in the area. This fact implied that if no civilians were using the area for recreational purposes, any unknown vehicles passing through the sand dunes would most likely be smugglers or illegal aliens.

4) Agent Carter was informed by radio that a sensor in the A-7 Valley was activated on September 10, 2007. The agents knew they could expect a vehicle appearing in approximately seven minutes. Accordingly, the agents deployed to different locations so they could wait. Similar to other investigations, a vehicle appeared heading toward the Grays Well Exit, one of only two exits available. The vehicle did not have the requisite flag required for vehicles using the dunes for recreational purposes.

5) Agent Harrington, who was in position at a nearby rest-stop observed the Tahoe enter I-8 westbound. The agent could see the Tahoe ahead of him over his parked vehicle's door. Agent Harrington observed the Tahoe's occupants, and further observed, through the tinted side back windows, what appeared to be something stacked and covered by a tarp. Agent Harrington followed the Tahoe westbound. After approximately 15 to 20 miles, the agent observed the Tahoe cross the median and reverse direction.

6) Agent Vega-Torres followed the Tahoe after he learned of the u-turn. The agent testified, based on his experience in patrolling the Imperial Sand Dune Recreational Area, that "almost every single time that we are engaged with a vehicle, whether [we have] already tried to stop them, whether they noticed we were following them, they make a u-turn back to Mexico." After following the Tahoe, Agent Vega-Torres observed a CHP unit enter the freeway between his vehicle and the Tahoe. The CHP officer followed the Tahoe for six to eight miles. Agent Vega-Torres observed Agent Carter's unsuccessful attempt to employ a spike strip, as well as the Tahoe's evasive action of avoiding the spike strip by going onto the median. Later, Agent Vega-Torres requested a second spike strip be employed at the frontage road off of the I-8 Grays Well Exit. Agent Vega-Torres believed, based on his experience and the factors he had thus far observed, that the Tahoe would attempt an escape by going back to Mexico the way it first came, which was the reason for placing the spike strip off of I-8 on the frontage road.

7) The Tahoe acted as predicted, the vehicle left I-8 and the tire deflation device successfully began to deflate the tires. When the Tahoe failed to stop, Agent Vega-Torres activated his siren. The Tahoe then continued onward in an attempt to escape. The Tahoe left the paved road and entered the sand leading to the A-7 Valley. The deflated tires ultimately caused the vehicle to become stuck in the sand. The driver and passenger then attempted to flee on foot.

The Court having reviewed the above factors believes that reasonable suspicion and/or probable cause to stop the vehicle was satisfied once the Tahoe left the interstate at Grays Well Exit, the location that it first entered the interstate. This is based on the agents' knowledge that Greys Well Exit is one of only two ways to return to Mexico. The Tahoe's actions were consistent with other smuggling cases in the Imperial Sand Dune Recreational Area. This vehicle came from the A-7 Valley, and there was no indication that the vehicle's occupants were camping in the campgrounds. The vehicle did not have the requisite flag required of recreational vehicles utilizing the area. As experienced agents, the three agents believed the vehicle came from Mexico and was engaging in illegal activity.

The STAT unit, arriving at 8:00 a.m., searched the campgrounds and found no campers or recreational vehicles in the area. It was a very hot day making it unlikely that campers would be in the hot sand dunes at that time. Training was being conducted in the A-7 Valley by the Government, and the agents did not leave the A-7 Valley until 3:30 p.m. Since no civilians were identified in the campground area all day, it was reasonable to believe that the vehicle approaching the A-7 Valley at 4:30 p.m. came from the unprotected Mexican border seven miles away. Given that there are barriers on all sides, including the All American Canal and I-8, the only way in or out of the area is through Mexico or the Grays Well or Gordons Well Exits to Interstate 8.

Considering the fact that a vehicle emerged from the desert, drove 15 to 20 miles westward, and then made a u-turn to travel in the opposite direction 15 to 20 miles only to return the way it had originally came, it is reasonable to believe that Defendants became aware of law enforcement's interest at some point along that circuitous route. Agent Carter's attempt to lay out the first spike strip, which led the Tahoe to take evasive action by entering the median would certainly have placed Defendants on alert. The CHP following the Tahoe for six to eight miles, while it may not have been planned by the agents, would also have certainly scared someone carrying a load of drugs, regardless. The Tahoe's return to the way it first entered the interstate is a key identifiable factor that would leave a reasonable officer to believe that Defendants were going to try and escape back through the sand dunes. Lastly and most notably, the Defendants' attempt to escape after the tire deflation device was employed fully established probable cause to arrest. If Defendants were able to reach the sand dunes, an escape to Mexico might likely have occurred. As Defendants had not been camping in the campgrounds, it was highly unlikely that they were returning to the area to camp. There was a solid reason for the agents to stop and check the vehicle. Had the vehicle continued eastward on I-8, and the spike strip had instead been employed on the interstate rather than on the frontage road leading to the dunes, the Court may have looked at the facts differently.

The Court did consider defense counsel's arguments that vehicles other than smugglers are sometimes in the sand dunes, and the sensor's identification of a vehicle does not mean it is a smuggling vehicle. The Tahoe did not drive at an excessive speed or exhibit unusual driving except for the u-turn and the evasive action taken to avoid the spike strip. Other than a tarp covering something in the back of the Tahoe, there was nothing suspicious about the vehicle. Defense counsel also pointed out the many legitimate reasons for a vehicle to return to the campground. The Court, however, was ultimately unpersuaded by defense counsel's position. Viewing the totality of the circumstances, the three agents based on their collective experience had a particularized and objective basis to believe that Defendants were involved in smuggling. The Court finds that there were sufficient factors present for reasonable suspicion to stop the vehicle after it left I-8. See e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

D. The Use of the Spike Strip

The analysis, however, does not stop at this juncture. A spike strip was used before the agents attempted to stop Defendants' vehicle. Defense counsel contends that a failure to yield must precede the use of a spike strip, and that the use of a spike strip in this case constituted an arrest and seizure without probable cause. The Court has determined that the agents had reasonable suspicion to stop the Tahoe at the point the tire deflation device was successfully deployed, but probable cause to arrest Defendants was not yet present. Probable cause attached after the Defendants refused to stop after the deflation device was successfully deployed. Defendants unsuccessfully attempted an escape back into the sand dunes in the A-7 Valley. Therefore, the Court must resolve whether a spike strip constitutes a seizure without probable cause in violation of the Fourth Amendment.

Defense counsel argues that there must be an attempt to stop a vehicle before spike strips can be employed. Since the Court has found that there was no attempt to stop Defendants' vehicle prior to the successful employment of the tire deflation device, the defense theory is appealing. The Government maintains that only "reasonable suspicion" is required for Defendants' vehicle to be stopped, and the agents' use of the tire deflation device was justified under either a reasonable suspicion or probable cause standard.*fn1

In light of the United States Supreme Court case of California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed. 2d 690 (1991), Defendants were not "seized" for Fourth Amendment purposes, by the use of the spike strip, since reasonable suspicion was present to stop the Tahoe. Hodari D. holds that no seizure occurs if a suspect does not yield in response to a show of authority; rather, seizure only occurs when either the suspect is physically subdued or submits to assertion of authority. 499 U.S. at 625-26, 111 S.Ct. 1547; Santamaria-Hernandez, 968 F.2d 980, 982-83 (9th Cir. 1992). In this case, Defendants were not seized until they were physically apprehended upon their escape into the sand dunes. The tire deflation device did not physically subdue Defendants, nor did it cause them to submit to the Agents show of authority.

The tire deflation, therefore, was not a seizure subject to the Fourth Amendment scrutiny as Defendants contend. The evidence indicates that past use of tire deflation devices does not result in a "blow out," but instead results in the slow and controlled reduction of air through small tubes. Furthermore, the device here was used at an escape route that leads to Mexico on a frontage road. This was an optimum location as it reduced the potential for escape, as well as minimized the risk to other traffic on the interstate. See United States v. Hernandez-Garcia, 284 F.3d 1135, 1140 (9th Cir. 2003) (holding no basis for invalidating an arrest or suppressing evidence where a tire deflation device was deployed). Defendants' flight after the use of the spike strip device is an important and definitive factor in determining that probable cause to arrest was present.*fn2 ...

CONCLUSION

For the above stated reasons, the Court DENIES Defendants' Motions to Suppress, and holds that no violation of the Fourth Amendment occurred during the arrest of the Defendants.

IT IS SO ORDERED.

M. James Lorenz United States District Court Judge


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