United States District Court, S.D. California
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE [ECF NO. 47]
the Court is Defendant's motion to suppress evidence
seized as result of the stop of her vehicle at the Highway 86
Border Patrol checkpoint (ECF No. 47). The Court has
considered Defendant's motion, the Government's
response in opposition and supporting exhibits and
declaration (ECF Nos. 57 and 59), the supplemental briefings
submitted by each party following the evidentiary hearings
(ECF Nos. 67 and 69), the second supplemental documents
submitted by each party (ECF Nos. 70 and 71), and the
evidence and testimony presented at the evidentiary hearings
held on April 19 and 24, 2017. For the reasons set forth as
follows, the Court concludes that the stop of Defendant's
vehicle at the Highway 86 checkpoint was a permissible
immigration inspection and that the subsequent search was
supported by probable cause. Accordingly, Defendant's
Motion to Suppress Evidence will be denied.
10, 2016, at approximately 8:45 a.m., Defendant Lopez drove
her red 1990 Honda Accord to the Highway 86 Immigration
Checkpoint near Westmorland, California. Border Patrol Agent
Barragan and his canine partner “Pecky” were
inside the inspection booth where Agent Barragan was
monitoring approaching vehicles using a license plate reading
program. Pecky is a concealed human/narcotics
detection dog trained and certified by the canine program of
Customs and Border Protection (“CBP”).
Honda Accord driven by Defendant caught Agent Barragan's
attention as it approached the inspection station because it
appeared to be a 90's model vehicle with a newer-issued
plate. Using the license plate reader, Agent Barragan
determined that the vehicle had crossed from Mexico through
the Calexico West Port of Entry approximately one hour
earlier that morning.
Defendant's vehicle approached the inspection point,
Agent Barragan and Pecky exited the inspection booth and
Agent Barragan informed Border Patrol Agent Meza, the primary
inspection agent on duty, that Defendant's vehicle had a
recent border crossing. Agent Meza approached Defendant and
conducted an immigration inspection, asking her if she was a
U.S. citizen. Defendant handed Agent Meza a U.S. passport,
which Agent Meza inspected to determine whether it matched
her. Agent Meza then received a signal from Agent Barragan to
refer the vehicle to the secondary inspection station.
Agent Meza was conducting the immigration inspection, Agent
Barragan ran Pecky around the vehicle for 10 to 30 seconds
and Pecky alerted to the rear bumper of the vehicle. Agent
Barragan then signaled Agent Meza to send the vehicle to
secondary inspection. At the secondary inspection station,
Agent Barragan questioned Defendant briefly and asked for
permission to search the vehicle. Defendant was asked to exit
the vehicle and Pecky again alerted and indicated toward the
rear bumper. Agent Barragan searched the vehicle and
discovered a metal compartment box containing methamphetamine
beneath the bumper. Defendant was arrested and charged with
possession of methamphetamine with intent to distribute in
violation of 21 U.S.C. § 841(a)(1).
been long established, in the context of immigration control,
that “stops for brief questioning routinely conducted
at permanent checkpoints are consistent with the Fourth
Amendment” even in the absence of a search warrant or
individualized suspicion that the particular vehicle contains
illegal aliens. United States v. Martinez-Fuerte,
428 U.S. 543, 566 (1976). However, it is also well
established that checkpoints with the principal purpose of
thwarting ordinary criminal activity-as opposed to purposes
of policing the border-do not comport with the Fourth
Amendment. City of Indianapolis v. Edmond, 531 U.S.
32, 38 (2000). More recently, in United States v.
Soto-Zuniga, 837 F.3d 992, 999-1000 (9th Cir.
2016), the Ninth Circuit recognized that the
constitutionality of an immigration checkpoint turns on
“whether its “primary purpose” is to
control immigration, ..., or rather is to interdict drug
trafficking and other “ordinary criminal
wrongdoing.”” If a checkpoint's primary
purpose is to detect evidence of drug trafficking, then the
initial seizure of the vehicle and occupant would violate the
Fourth Amendment and require suppression of drug evidence as
fruit of the poisonous tree. Id.
case, Defendant contends that the Border Patrol agents
impermissibly used the border checkpoint to search Defendant,
a U.S. citizen, for drugs. Defendant argues that Agent
Barragan would have known that no smuggled human being could
have survived concealment in a trunk or compartment of
defendant's vehicle during the one hour drive from the
border to the checkpoint and the one hour average wait time
at the Calexico Port of Entry. In addition, Defendant
contends that no dog can be trained to detect concealed
humans in the conditions of the checkpoint because there is
no “concealed person” scent to fix them on.
Government responds that Defendant was lawfully stopped at a
constitutionally permissible immigration checkpoint. The
Government maintains that CBP trained dogs can be trained to
detect and alert to concealed humans and that Pecky's
alert was reliable and established probable cause for the
search of Defendant's vehicle. The Government further
argues that even if Pecky could not detect concealed humans,
but only drugs, the search would nevertheless be permissible
because the dog sniff did not extend the length of the
considered all of the evidence, the Court agrees that the
stop of Defendant's vehicle at the checkpoint was a
permissible immigration stop. The Court has been presented
with no evidence to suggest that the primary purpose of the
Highway 86 Checkpoint is not to control immigration. The
testimony established that typically all vehicles traveling
on the highway are funneled into the checkpoint and subjected
to an immigration inspection which involves questioning about
citizenship, review of immigration documents, and a look
inside the vehicle by agents in case someone might be hiding.
ECF No. 61 at 5-7. Then, if everything is clear, the vehicle
is free to proceed. Id. at 7.
Court has been provided with no arrest or search statistics
related to the Highway 86 Checkpoint, but in another case in
this District, a case cited by Defendant in support of her
motion, the Court found, for the period between 2012 and
2015, that there were approximately 1, 746 apprehensions at
the checkpoint, approximately 1, 579 were immigration related
and approximately 167 were drug related. United States v.
Summers, California Southern District Case No.
15CR717-WQH, ECF No. 47, Exhibit 2. Thus, the Court has no
reason to question that the primary purpose of the checkpoint
is other than immigration control.
the Court persuaded by Defendant's argument that the
agents in this case had no legitimate immigration related
purpose in conducting the stop and used the checkpoint merely
as a pretext to search for drugs. First of all, the agents
did not know Defendant was a U.S. citizen and that factor
alone supported her brief detention to determine her
immigration status. Defendant argues that because Agent
Barragan was able to determine the vehicle's crossing
history and registration information through the license
plate reader, he must have also known her citizenship status.
However, the evidence does not support this argument. Agent
Barragan testified that he did not know Defendant Lopez was a
U.S. citizen and that the license plate reader program does
not reveal this information. In the absence of any contrary
evidence, the Court finds this testimony to be credible. The
Court also rejects as speculative and lacking in foundation
Defendant's assertion that the failure of the United
States government to provide more detailed border crossing
information to agents inside inspection stations demonstrates
that checkpoint inspections are purposely designed to last
longer than necessary.
the suspicions harbored by Agent Barragan with respect to
Defendant's vehicle were applicable to both drug
smuggling and alien smuggling. Agent Barragan's
suspicions were first drawn to Defendant because she was
driving an older-model car with newer license plates, a
pattern Agent Barragan had observed in other apprehensions
involving both concealed humans and controlled substances.
Agent Barragan also was suspicious because the vehicle had
recently entered the United States from Mexico, another
indication to him of possible alien or narcotics smuggling.
Although, as Defendant argues, the odds of aliens being
concealed within the vehicle for a potential 2hour period on
a June morning may have been lessened due to the weather
conditions, this district has encountered numerous cases
involving aliens being ...