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United States v. Escobar

United States District Court, S.D. Texas, Corpus Christi Division

November 28, 2017

UNITED STATES OF AMERICA
v.
ANTONIO ESCOBAR v.

          ORDER DENYING MOTION TO SUPPRESS

          NELVA GONZALES RAMOS, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Antonio Escobar's motion to suppress evidence (D.E. 15). Escobar is charged by indictment (D.E. 9) with one count of possession with intent to distribute more than five kilograms of cocaine. The Government filed a response to the motion (D.E. 16), and the Court held a hearing on October 24, 2017. For the following reasons, the motion (D.E. 15) is DENIED.

         FACTS

         On August 8, 2017, border patrol agents Damien Guerrero and Gregorio Reyes were manning a United States Border Patrol checkpoint on Highway 77 near Sarita, Texas. Agent Reyes was working with his canine partner, Maya.

         Around 7:16 p.m., Escobar, who was driving a gold Kenworth tractor-trailer, stopped at the checkpoint. Agent Guerrero, who has approximately nine years' experience as a border patrol agent, testified that Escobar immediately seemed nervous or “antsy” when Agent Guerrero approached his truck. Asked about his cargo and destination, Escobar responded that he was bound for Oklahoma, and that he picked up his load, which he believed to be windows, in Brownsville, Texas. Agent Guerrero thought it “very unusual” that Escobar was uncertain as to what he was hauling, which, along with Escobar's nervousness, aroused Agent Guerrero's suspicions.

         Agent Guerrero then asked to see Escobar's bill of lading. According to Agent Guerrero, Escobar's hands shook as he handed over the bill of lading, parts of which were marked over with white-out and which had handwriting on the seal and a handwritten trailer number. Agent Guerrero testified that it was “very uncommon” in his experience to see white-out and handwriting on a bill of lading, and that he knew of other instances where commercial drivers carrying forged bills of lading were in fact transporting contraband or illegal aliens.[1]

         Agent Guerrero then waved Agent Reyes over to the truck so that Maya could conduct a “free air” sniff around the trailer. Agent Guerrero testified that by this point (approximately 45 seconds into the stop, according to a video recording of the primary checkpoint area), he had already decided to refer Escobar to the checkpoint's secondary inspection area, whether or not Maya alerted to the trailer.

         Over the next minute, Agent Guerrero accompanied Agent Reyes and Maya as they circled the trailer, but Maya did not alert. Approximately two minutes into the stop, Agent Guerrero returned to the cab and, after checking the interior to see whether anyone was hiding inside, resumed his discussion with Escobar. He asked Escobar if he would allow him to check both the tractor and the trailer. Escobar agreed, on the condition that the agents provide him with documentation confirming they had opened the trailer. At that point, Agent Guerrero asked Escobar if he was a United States citizen, which he is. The initial inquiry complete, Agent Guerrero pointed Escobar to where to park in the secondary area of the checkpoint, and approximately three minutes into the stop, Escobar drove the truck to secondary.

         Once the truck was in the secondary inspection area, Agent Reyes and Maya conducted a “free air” sniff around the tractor and trailer. This time, Maya alerted to the tractor cab. The ensuing search produced approximately 13 bundles of cocaine that were found under the bed in the cab of the truck. Escobar was arrested and now moves to suppress the fruits of the search.

         ANALYSIS

         A. The Detention Was Not Unlawfully Prolonged

         The Fourth Amendment generally prohibits law enforcement from stopping motorists absent “individualized suspicion of wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). However, the Supreme Court has exempted immigration checkpoints from this rule because of the public interest in stemming the flow of illegal immigration and the brief, nonintrusive nature of these checkpoints. See United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976). “[T]he brevity of a valid immigration stop was a principal rationale for the Supreme Court's conclusion in Martinez-Fuerte that immigration checkpoints are constitutional.” United States v. Machuca-Barrera, 261 F.3d 425, 433 (5th Cir. 2001).

         Ordinarily, “[t]he permissible duration of an immigration checkpoint stop is . . . the time reasonably necessary to determine the citizenship status of the persons stopped.” Id.; see also Id. at 434 n.29 (“[W]hile a border patrol agent may refer a car to secondary for any reason (or no reason at all), . . . the length of the detention is still limited by the immigration-related justification for the stop.”). Thus “the length of the detention, not the questions asked” determines the constitutionality of an immigration checkpoint stop. Id. at 432.

         However, “if the initial, routine questioning generates reasonable suspicion of other criminal activity, the stop may be lengthened to accommodate its new justification.” Id. at 434. To justify extending the stop, “officers must have a ‘reasonable suspicion'- that is, ‘specific and articulable facts . . . taken together with rational inferences from those facts'-that ‘criminal activity [is] afoot.'” United States v. Escamilla, 852 F.3d 474, 480-81 (5th Cir. 2017) (quoting Terry v. Ohio, 392 U.S. 1, 21, 30 (1968)). In assessing reasonable suspicion, the Supreme Court has “said repeatedly that [courts] must look at the ‘totality of the circumstances' of each case to see whether the detaining officer has ...


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