United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the motion to suppress (ECF No. 37) filed by the Defendant Jaime Jimenez.
On February 13, 2014, at approximately 12:50 p.m., Border Patrol Agent Edgar Aguirre was performing his assigned duties. The agent was walking along Old Highway 80 near mile marker 33.5, near the town of Jacumba, California, located 29 miles east of the Tecate Port of Entry and approximately 100 yards north of the United States/Mexico international border. This area is commonly used by illegal aliens to hide because the area is so close to the border and the area contains lot of brush. Border patrol agents patrol this area looking for signs of attempted illegal entries which occur on a daily basis. An unidentified man driving a Nissan Altima approached Agent Aguirre. The man informed Agent Aguirre that he had observed three individuals get into a blue S-10 pickup truck approximately one-half mile west of the agent's current location. The man reported that the truck had some kind of wood in the bed and that the truck continued traveling west after picking up the three individuals. The agent recalled that he had seen a blue Chevrolet S-10 pickup truck pass him a minute or two earlier.
Agent Aguirre immediately put out a dispatch informing other agents in the area that he had just talked to a citizen who said he saw possible illegal aliens jump into a truck and gave a description of the truck as a blue small Chevy S-10 or similar type of small work truck. Agent Paul Metts, conducting watch operations west of Jacumba utilizing high-powered binoculars, identified the vehicle heading west on old Highway 80 near mile marker 33.
After Agent Metts confirmed the location of the pickup truck, Agent Mitchell Stroud saw the vehicle approach his location. Agent Stroud observed the vehicle, a blue Chevrolet S-10 pickup truck pass his location with two individuals in the front seat. Agent Stroud driving a fully marked U.S. Border Patrol vehicle pulled in behind the blue pickup truck, followed it for a short time, and turned on his lights and sirens. The blue pickup truck continued traveling at the same pace westbound until the blue pickup truck caught up to a gold sedan and another border patrol agent traveling in front of the blue pickup truck. The blue pick-up truck then crossed over the double yellow line to go around two cars in front of it. Agent Stroud continued in pursuit. The next time that agent Stroud saw the blue pick up it had hit an embankment, and pulled over. Everyone in the vehicle had fled on foot.
On March 12, 2014, the grand jury returned an indictment charging Defendants Brigido Rameriz-Torres and Jaime Jimenez with three counts of transporting illegal aliens within the United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (v)(II).
CONTENTIONS OF PARTIES
Defendant moves to suppress statements and evidence on the grounds that the vehicle stop and seizure was illegal. Defendant asserts that his Fourth Amendment rights were violated when border patrol agents attempted to stop the vehicle in which he was a passenger. Defendant contends that the border patrol agents lacked specific articulable facts to form a reasonable suspicion to stop and seize the vehicle. Defendant contends that all evidence derived from the illegal stop and seizure must be suppressed.
The Government contends that the circumstances of the stop along with training and experience of the agents lead them to a reasonable suspicion that the vehicle may contain illegal immigrants. The Government contends that the anonymous tip was sufficient to create a particularized and objective basis to conduct an investigatory stop of the vehicle. The Government further contends that the flight of the vehicle created reasonable suspicion for the stop and seizure, even if the anonymous tip was not sufficient. The Government asserts that the Defendant was not seized for Fourth Amendment purposes at the attempted stop and that the flight from law enforcement created a basis for reasonable suspicion to seize the Defendant.
Border patrol agents have the authority to stop automobiles in areas near the Mexican border to question the occupants about their citizenship and immigration status upon "reasonable suspicion." United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975). "While reasonable suspicion' is a less demanding standard than probable cause and requires considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop." Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
Reasonable suspicion requires the agents making the stop be "aware of specific, articulable facts which, when considered with objective and reasonable inferences, form the basis for particularized suspicion." United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc). In the context of Border Patrol searches, the factors to be considered in determining whether "reasonable suspicion" exists to justify stopping a vehicle include, but are not limited to: 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. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997).
In this case, there is evidence that the area within 100 yards of the United States/Mexico border in which the encounter took place was commonly used by aliens to enter the United States illegally. The information received by Agent Aguirre from an unknown man stating that he had observed three individuals get into a blue Chevrolet S-10 pickup truck after the truck had pulled off of Old Hwy 80 would infer suspicion of illegal activities but may also be subject to an innocent explanation. Assuming the illegality of the initial attempted stop, the issue relevant to suppression is whether "the evidence to which instant objection is made has been come at by ...