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U.S. v. CHRISMAN

June 28, 2002

UNITED STATES OF AMERICA,
V.
MAXWELL EDWARD CHRISMAN, DEFENDANT.



The opinion of the court was delivered by: Furgeson, District Judge.

ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS AND MOTION TO SUPPRESS STATEMENTS

After Defendant Maxwell Edward Chrisman's flight from the scene of a roving patrol stop and subsequent apprehension, United States Border Patrol agents discovered 565.16 pounds of marijuana in his vehicle. Defendant was charged with possession with the intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii).

Before the Court are Defendant's Motion to Suppress and Motion to Suppress Statements, filed on March 22, 2002, in the above-captioned matter. After careful consideration, the Court is of the opinion that the Border Patrol agents had reasonable suspicion to pull over Defendant and acted in compliance with the Fourth Amendment. Further, the Court concludes that the Drug Enforcement Agency ("DEA") agents, in whose custody Defendant made an incriminating statement, did not violate his Fifth Amendment rights. Accordingly, the Motions should be DENIED.

BACKGROUND

Early in the morning of January 20, 2002, Border Patrol Agents Rafael Ramirez and Elizabeth Hettenhouser were inspecting a levy road approximately ten miles west of the Fort Hancock Port of Entry. Around 12:15 a.m., the Agents received a signal that a seismic sensor, placed along the Rio Grande, which serves as the U.S.-Mexico border in Texas, had been activated.

The sensor is positioned approximately seventeen miles east of the Fort Hancock Port of Entry and two miles south of I-10. The only way to access the terrain around the sensor, from north of the border, is on the old Wander Ranch Road ("the Road"). The Road is winding, unpaved, and full of washouts. Driving its length at night, without four-wheel drive, could take over twenty minutes because of its poor condition.

The area surrounding the Road is isolated and uninhabited. There are no homes or businesses near the sensors, and the closest establishments to the Road are a motel, approximately five miles to the east, and a truck stop, approximately five miles to the west.

The Agents proceeded directly toward the area of the sensor upon receiving its signal. An estimated twenty-five minutes elapsed between the time of the sensor alert and the time of the Agents' arrival at the point where the Road intersects Interstate 10 ("I-10"). While en route, they received an alert from a second seismic sensor that is located to the north of the first sensor. This sequence of sensor hits indicated that the pedestrian traffic was northbound.

Upon arriving in the area, the Agents began to position themselves immediately north of the point where the Road and I-10 meet. At this time, they received a signal from a magnetic sensor, located along the Road, that indicated the presence of a vehicle traveling south towards the Rio Grande.

The seismic sensor hits along the river combined with the magnetic sensor hit indicating a southbound vehicle roused the Agents' suspicions. Such a pattern often connotes illegal immigration or drug smuggling into the United States. In this scenario, the southbound vehicle meets the illegal immigrants or drug smugglers after they cross the Rio Grande and transports the immigrants or narcotics away from the border.

Simultaneous to the magnetic sensor activity, the Agents saw a light, glowing south of 1-10, that appeared to be coming from a vehicle's headlights. The Agents believed that if they drove south to investigate the source of the light, anyone in the area would have fled to Mexico. Because the Road is the only way to access the area of the sensor activity, they knew that the southbound vehicle would have to return towards their position north of 1-10. Content to wait, the Agents scanned the area south of the interstate with their binoculars.*fn1

The Agents did not want to stop the van immediately upon seeing it because of construction on I-10 that narrowed the interstate to one westbound lane. Instead, they followed it for approximately fifty miles, through several construction zones, and finally pulled it over near mile marker forty-seven.

Agent Ramirez exited his vehicle and approached the van. When he reached the rear of the van, Defendant sped away, crossing the westbound lanes, median, and eastbound lanes of the interstate. Defendant drove into an arroyo to the south of I-10, where the van became immobilized in the sand. He fled from the vehicle and, after a short chase, was apprehended and handcuffed by Agent Ramirez. Inside the van, Agents found 565.16 pounds of marijuana.

Border Patrol Agent Daniel Govea, who had arrived at the scene, read Defendant his Miranda rights, and Defendant invoked his right to remain silent. The Agents transported Defendant to the Fort Hancock Port of Entry where, several hours later, DEA Special Agents Jaime Ordonez and Michael Stevens took custody of him. Agent Ordonez advised Defendant of his Miranda rights a second time, and once again, Defendant invoked his rights and refused to give a statement.

Agents Ordonez and Stevens transported Defendant in their pickup truck from Fort Hancock to El Paso. Defendant sat, handcuffed and silent, between the two Agents while they conversed about the National Football League playoffs. At one point, Agent Stevens told Defendant he should smuggle dope during the week, instead of on weekends, because the Agents do not get paid to work on Sundays and having to work interrupts their football viewing. Defendant responded that, indeed, he does smuggle drugs on weekdays but had never been caught. The Agents did not say anything else to Defendant during the ride.

Defendant filed the instant Motions on March 22, 2002, and the Government replied on April 2, 2002. The Court held a hearing on the Motions on May 28, 2002.

DISCUSSION

Defendant alleges that (1) the Border Patrol Agents stopped his vehicle without reasonable suspicion, in violation of the Fourth Amendment, and (2) the DEA Agents interrogated him after he had invoked his rights to counsel and to remain silent, in violation of the Fifth Amendment. The Court discusses the issues separately below.

I. The Stop

Defendant contends that Border Patrol Agents Ramirez and Hettenhouser based their decision to stop him solely on a hunch that Defendant's vehicle had triggered the sensors on the Road. Defendant argues that because "there were no other objective, articulable facts on which to base a reasonable suspicion," the seizure and subsequent search of the van violated his constitutional rights.

The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of a vehicle.*fn2 An investigatory stop must be justified by an objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.*fn3

An agent has reasonable suspicion if, based on the totality of the circumstances, he has a particularized and objective basis for suspecting criminal wrongdoing.*fn4 The totality of the circumstances test allows officers to draw upon their experience and specialized training to make inferences from and deductions about the information available to them.*fn5 Although an officer's reliance on a mere hunch does not amount to reasonable suspicion, "the likelihood of criminal activity need not rise to the ...


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