United States v. Cortez

UNITED STATES OF AMERICA, Plaintiff, v. RAQUEL CORTEZ and JOSEFINA REYES-MORENO, Defendants.

Cr. No. 18-2639 KG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

November 16, 2018

MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon Defendants' Joint Motion to Suppress Evidence and Statements (Motion to Suppress), filed September 27, 2018. (Doc. 66). The United States filed a response on October 18, 2018, and Defendants filed a reply on October 23, 2018. (Docs. 71 and 80). On October 25, 2018, the Court held an evidentiary hearing on the Motion to Suppress. At the hearing, Luis Martinez and Samuel Williams represented the United States, Bernadette Sedillo and Meghan McLoughlin represented Defendant Raquel Cortez, and Stephen Hosford represented Defendant Josefina Reyes-Moreno. Both Defendants were present. Having considered the Motion to Suppress, the accompanying briefs, the evidence admitted at the October 25, 2018, hearing, and the argument of counsel at the hearing, the Court denies the Motion to Suppress.

I. Findings of Fact¹

On May 1, 2018, New Mexico State Police Officer Christopher Alvarez was working Operation Stonegarden overtime between 1:00 p.m. and 6:00 p.m. Under Operation Stonegarden, New Mexico State Police Officers notify Border Patrol of suspicious activities subject to the Border Patrol's jurisdiction.

On the afternoon of May 1, 2018, Officer Alvarez was parked next to New Mexico State Police Sergeant Gomez along the west side of State Road 80 near mile marker 26, facing south. State Road 80 is a two-lane highway running north-south. It is primarily used for smuggling contraband and undocumented aliens from Mexico because it does not have a permanent Border Patrol checkpoint. The speed limit between mile marker 25 and 30 on State Road 80 is 55 miles per hour.

At 4:07 p.m., Officer Alvarez was running a stationary speed radar. At that time, he observed a northbound pickup truck with an extended cab speeding at 66 miles an hour. Officer Alvarez proceeded to make a U-turn in his patrol unit to stop the truck for a traffic violation. In doing so, Officer Alvarez initiated the lights on his vehicle and his vehicle's dash cam. The truck stopped at mile marker 27. Officer Alvarez saw that the truck had an Alabama license plate.

After stopping behind the truck, Officer Alvarez entered the license plate in his Computer Aided Dispatch (CAD). Tr. at 18. He then approached the passenger's side door to speak with the driver, identified as Defendant Cortez. Officer Alvarez identified himself and told Cortez thereason for the stop. Officer Alvarez then asked Cortez for her license, insurance, and registration. Officer Alvarez noticed a female passenger, later identified as Defendant Reyes-Moreno, and a child both sitting in the front seat. Officer Alvarez did not notice anyone sitting in the rear seat.

Next, Officer Alvarez asked Cortez to exit the truck and stand near the right front area of his patrol unit. Officer Alvarez asked Cortez questions about her travel plans and who was traveling with her. Cortez responded that they were traveling from Douglas, Arizona, to Alabama, and that she was traveling with her sister and nephews. Officer Alvarez asked Cortez other questions about her niece and nephew, where she was staying, who she was staying with, and whether she was working. Officer Alvarez also asked Cortez who owns the truck. While speaking with Cortez, Officer Alvarez ran Cortez's Alabama driver's license on CAD to check for any warrants. Tr. at 18. Officer Alvarez testified that he engages drivers in conversation to assess officer safety.

Officer Alvarez then went back to the truck to check the VIN on the windshield to make sure it matched the registration. While he was at the truck, Officer Alvarez asked Reyes-Moreno questions about where she was coming from and how long she and Cortez had been in Douglas. At that time, he noticed two adult males seated in the rear seat of the truck with a child in between them. Consequently, Officer Alvarez asked Reyes-Moreno who was in the truck. She stated that her niece and nephew were in the truck and two men. Reyes-Moreno further stated that she did not know the men and that she and Cortez had picked them up at a gas station. Officer Alvarez then asked the men for identification, which they did not have. Officer Alvarez noted that they did not look directly at him.

Officer Alvarez then returned to his patrol unit to request a Border Patrol agent to check the legal status of the men. About seven minutes elapsed from the time the truck stopped until the time Officer Alvarez radioed for a Border Patrol agent.²

Officer Alvarez then questioned Cortez about whether she and Reyes-Moreno are biological sisters and if there are lakes in Alabama. Apparently, Cortez's driver's license or the registration had an address referring to a lake. Officer Alvarez testified that while he was conversing with Cortez he was in the process of writing the citation. Officer Alvarez apparently ran Reyes-Moreno's driver's license on CAD at that time. Tr. at 61.

About ten minutes into the stop, Officer Alvarez explained to Cortez the speeding citation and how to either plead guilty or not guilty to the citation. Cortez stated she wanted to pay the citation. Officer Alvarez noted that the fine would be in the 80s, suggesting that he had not yet completed the citation and so could not yet give an exact amount for the fine. He also explained to Cortez the different options for paying the fine. In fact, the traffic citation indicates that Officer Alvarez began filling out the citation at 4:18 p.m., 11 minutes after the stop began. Government Ex. 2. At about 12 minutes after the stop began, dispatch informed Officer Alvarez that a Border Patrol agent would arrive in 20 minutes.

Officer Alvarez continued typing up the citation. About 13 minutes into the stop, Sergeant Gomez arrived. After Sergeant Gomez arrived, Officer Alvarez asked Cortez more questions about Reyes-Moreno's stay in Douglas and about who was in the truck. Cortez responded that she picked up the men at a gas station and that they wanted a ride to New Mexico.At this point, Cortez's and Reyes-Moreno's driver's licenses were placed on the dashboard of Office Alvarez's patrol unit.

About 16 minutes after the stop began, Officer Alvarez informed Cortez that the penalty assessment for the traffic citation is $87. This evidence shows that Officer Alvarez had completed enough of the traffic citation to know the exact penalty assessment. Officer Alvarez and Sergeant Gomez continued asking Cortez questions about the men and who was in the back seat.

Approximately a minute or so after informing Cortez of the penalty assessment and the additional questioning about the men, Officer Alvarez asked Cortez how much she weighed and then went to the truck to check the registration to confirm the year of the truck's manufacture. According to Officer Alvarez, Cortez's weight from her Alabama driver's license and the year of the truck did not populate the required citation fields as he was trying to complete the citation form on the computer. It took Officer Alvarez about a minute to check the registration to confirm the year of the truck's manufacture and to walk back to his patrol unit.

The Border Patrol agent arrived about 18 minutes after the stop began. Before the Border Patrol agent approached Officer Alvarez, Officer Alvarez stated to Cortez that he checked the year of the truck's manufacture and that he would explain the citation. Before Officer Alvarez could explain the citation to Cortez, the Border Patrol agent came up to Officer Alvarez and Officer Alvarez briefly told the Border Patrol agent that Cortez had picked up two men at a gas station to give them a ride. Officer Alvarez then gave the citation to Cortez, instructing her to pay the $87 fine in 30 days. About a minute later, Officer Alvarez retrieved the driver's licenses from patrol unit dashboard, thereby ending the portion of the encounter related to the traffic citation. At that time, about 20 minutes had elapsed since the stop began.

Officer Alvarez testified that it could take between 10 and 20 minutes to complete a traffic citation. Tr. at 31. One factor for taking longer to complete a traffic citation was the "new system." Id. With this new system, the computer could go down requiring the officer to "mess with it" in order to fix the problem. Id.

The Court notes that the dash cam video contains multiple beeps on the audio coming from the patrol unit, especially near the beginning of the stop. The Court finds that the evidence does not adequately explain the meaning of specific beeps. As such, the Court cannot attribute any significance to the beeps.

II. Conclusions of Law

Defendants argue that Officer Alvarez violated their Fourth Amendment right to be free from unreasonable seizures as well as their Fifth Amendment right to have their Miranda rights read to them prior to a custodial interrogation. Defendants, therefore, move to suppress the identity of the two male passengers and the statements by Defendants and those males. The United States opposes the Motion to Suppress in its entirety.

A. Whether Officer Alvarez Violated the Fourth Amendment

Defendants claim that Officer Alvarez unlawfully seized them by unreasonably prolonging the traffic stop in order for the Border Patrol agent to arrive. The United States argues that Officer Alvarez did not unreasonably prolong the stop. Alternatively, Defendants claim that Officer Alvarez did not have a basis for extending the traffic stop. In response to this claim, the United States argues that Officer Alvarez could extend the traffic stop because he had reasonable suspicion to believe Defendants were transporting illegal aliens.

The Court recognizes that Defendants have the burden of proving whether the Fourth Amendment is implicated. United States v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 201...