Arizona Cases March 18, 2022: United States v. Al Zoubani

Case Description

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REPORT AND RECOMMENDATION

HONORABLE LESLIE A. BOWMAN, UNITED STATES MAGISTRATE JUDGE.

The District Court referred this case to the Magistrate Judge for a Report and Recommendation on Defendant's Motion to Suppress Evidence, filed on 1/06/22. (Doc. 30) The defendant, Anas Mamoun Al Zoubani, argues that a United States Border Patrol (USBP) agent stopped him from walking away from his vehicle without reasonable suspicion, in violation of his Fourth Amendment rights.

The government filed its response on 1/27/22. (Doc. 36) Its position is that there was reasonable suspicion to stop Mr. Al Zoubani, based on the totality of the circumstances. The defendant filed a reply on 2/03/22. (Doc. 39)

An evidentiary hearing was held on 2/25/22. USBP Agents Brian S. Campbell and Todd Ogiba testified for the Government. The defendant called no witnesses. Defense exhibits 100 through 118 were admitted by stipulation, as were government's exhibits 1 through 10. Defense Exhibit 126 is an audio recording of the radio transmissions during the event that was admitted without objection and was reviewed by the Court in chambers.

Charge :

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The defendant is charged in a four-count indictment with conspiracy to transport undocumented aliens for profit and transportation of undocumented aliens for profit, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(I) and 1324(a)(1)(B)(i). (Doc.11)

Motion to Suppress Evidence :

The defendant argues that his Fourth Amendment rights were violated because there was no reasonable suspicion to justify restricting Mr. Al Zoubani's freedom of movement. He parked his vehicle in a hotel parking lot, exited the driver's side door and began to walk away. USBP Agent Todd Ogiba activated his emergency lights and yelled at Mr. Al Zoubani to get back into the car. The defendant complied. This occurred after the agent followed the vehicle for a period of time and made several observations. Mr. Al Zoubani claims that the factors relied on by the government do not rise to the level of reasonable suspicion.

The Magistrate Judge recommends that the District Court, after its independent review, DENY Defendant's motion to suppress evidence. There was reasonable suspicion for a brief investigatory stop.

Facts :

Brian S. Campbell testified that he has been a USBP agent for approximately 13 years. (RT 18:22, 24) He works in the intelligence unit at the Willcox station. (RT 19:17) His unit gathers information related to alien smuggling activities. (RT20-21:24-25, 1) That information is disseminated to the field and other stations. (RT 21:3)

Agent Campbell took part in this investigation on 5/5/21. (RT 21:7-9) He was working at his computer when he received an automated email alert from the license plate reader system. (RT 21:18-19) The alert stated that a blue BMW with a particular Arizona license plate number was seen in the past trying to load up with suspected undocumented people. (RT 21:20-22) Agent Campbell relayed the information to the people in the radio room, including the time of the license plate hit, the vehicle description, the license plate

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number, the direction of travel and the location. (RT 21:24-25; 27:5-12) The license plate reader was located on State Route (SR) 80, north of Tombstone and was focused on traffic heading northbound toward I-10. (RT 26:14-20) The information was broadcast over the radio within a few minutes. (RT 27:16-21)

The license plate reader sends an alert if a specific license plate number was previously entered into the system. (RT 28:15-19) In this case, the previous entry was made on 3/2021 when an off-duty corrections officer (CO) observed the vehicle involved in suspicious activity near Douglas. (RT 28-29:21-23, 3-5); (RT 29:8-9) The CO saw people run up to the car and then run back into the desert before the car took off. (RT 29:10-11) The CO described the vehicle as a blue BMW and provided the license plate number. (RT 29:19-21) The information became a BOLO (be on the lookout). (RT 31:14-16)

Todd Ogiba testified that he has been a USBP agent since 8/2007. (RT 34:5, 7) He was on duty on 5/5/21. (RT 34:23-25) He arrested Defendant Anas Al Zoubani, whom he identified in the courtroom. (RT 35:3-4, 11-13) On May 5 , Agent Ogiba was assigned to Highway 80 in the Willcox station area of responsibility. (RT 35:18-19) He patrolled that route routinely once or twice a week from 4/19 until 5/5/21. (RT 36:3-4, 7-8) Highway 80 does not connect directly to the international border but it heads toward Douglas, which is near the border. (RT 37:15-19) Highway 80 connects to Interstate 10 north of the checkpoint. (RT 37:20-25) Of the three major routes in the area, Highway 80 is the most direct route from the border to I-10. (RT 38:3-6) It is a major egress route for contraband load vehicles from Naco and Douglas. (RT 56:24-25)

On 5/5/21 Agent Ogiba was driving a fully marked Border Patrol vehicle when he heard a radio announcement at about 12:10 p.m. (RT 36:11-13, 19-20) According to defense exhibit 126, the BOLO was broadcast at 12:04 p.m. The BOLO identified a blue BMW traveling northbound from the Highway 80 checkpoint. (RT 36:20-22) It included a specific Arizona license plate number. (RT 37:2) The BOLO was issued for a vehicle that was possibly transporting undocumented people and was last seen at the Highway 80 checkpoint, which was closed that day. (RT 37:5, 8-9; 57:1) The checkpoint is

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approximately 30 or 35 miles from the U.S.-Mexico border. (RT 37:13-14) Agent Ogiba was near Benson when he received the alert. (RT 38:11-12) He was on Highway 80 about 20 miles north of the checkpoint. (RT 38:11-19) The drive from Benson to the checkpoint takes about 15 or 20 minutes. (RT 38:23-25)

When he heard the BOLO, Agent Ogiba turned around and traveled south toward to last known location of the BMW. (RT 39:1-3) He encountered the BMW about 10 minutes later as it traveled northbound on Highway 80. (RT 39:4-11, 21-23) Defense exhibit 126 places Agent Ogiba behind the BMW at 12:13 pm, approximately nine minutes after the BOLO. The BMW had Arizona plates, but the agent was only able to see and call in the plate number after ordering the driver to return to his vehicle in the motel parking lot. (RT 39:12-13; 107:4-6) Prior to the encounter in the parking lot, the agent saw the driver and a front seat passenger in the vehicle. (RT 39:16-18) He could not see into the rear seat because the window tint was very dark. (RT 39:19-20) Agent Ogiba spotted the BMW within the time he would expect to see a vehicle traveling from the checkpoint to that location. (RT39-40:25, 1-3) It is unusual to see luxury vehicles like BMWs in the area. (RT 40:4-6)

After Agent Ogiba saw the BMW, he made a U-turn and started following the vehicle. (RT 43:8-10) He observed the BMW accelerating and passing other vehicles. (RT 43:22-25) It is common for people transporting illegal aliens to try to create distance between themselves and law enforcement officers. (RT 44-45: 23-25, 1) The agent saw the BMW make a quick left-hand turn into the south entrance of the Sahara Motel. (RT 45:16, 22-23) He had been following the vehicle for less than five minutes, a distance of about 3.7 miles. (RT 45-46:24-25, 1, 6-7) By the time Agent Ogiba was able to slow down enough to turn into the motel parking lot, he turned into the north entrance. (RT 48:4-6) He continued to observe the blue BMW as he pulled in. (RT 50-51:25, 1-3)

The BMW pulled into a parking spot. (RT 51:6-7) The driver stayed in the vehicle until Agent Ogiba parked. (RT 52:4) About five seconds after the agent stopped, the driver got out of the BMW and started walking away. (RT 52:11-14, 17-19) The passenger

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remained in the vehicle. (RT 52:22-23) The driver walked in the opposite direction from the motel office. (RT 53:15-17, 22) Agent Ogiba has encountered alien smugglers who abandon their vehicles. (RT 53:12-14)

Based on the circumstances, Agent Ogiba suspected the driver was engaged in criminal activity. (RT 55:5-7) He yelled at the driver to get back in the vehicle and he activated his emergency lights. (RT 55:10-11) The driver complied. (RT 55:12-14) The agent approached the vehicle to speak with the driver. (RT 55:15-16) He identified himself as a USBP agent and questioned the occupants about their citizenship. (RT 55:18-19) The driver stated that he is a U.S. citizen. (RT 55:20-21) The front-seat passenger responded with a blank stare. (RT 55-56:25, 3-4) He was holding a Mexican voter ID card in his hand, so Agent Ogiba asked him in Spanish about his status in the United States. (RT 56:7-10) The passenger said he did not have permission to be in the country. (RT 56:9-12) Agent Ogiba arrested the driver. (RT 56:14-17)

This was the last stop and the last case Agent Ogiba had from the date of the stop until the evidentiary hearing. (RT 86:3-6, 11-13)

Law :

A law enforcement officer may make an investigatory stop of a person or a vehicle if there is “reasonable suspicion” to believe that criminal activity “may be afoot.” U.S. v. Arvizu , 534 U.S. 266, 273 (2002); Terry v. Ohio , 319 U.S. 1 (1968). The Fourth Amendment's protections apply to brief investigatory stops that fall short of a traditional arrest. Id . The Ninth Circuit has defined reasonable suspicion as “a particularized and objective basis for suspecting the particular person stopped of criminal activity. U.S. v. Valdes-Vega , 783 F.3d 1074, 1078 (9 Cir. 2013) (quoting Cotterman , 709 F.3d at 968).

Reasonable suspicion must be more than a mere “hunch,” but it is a low bar and does not require probable cause. Arvizu , 534 U.S. at 274. Reasonable suspicion requires considerably less proof of wrongdoing than that required to satisfy the preponderance of evidence standard. U.S. v. Sokolow , 490 U.S. 1, 7 (1989). “In determining whether a stop was justified by reasonable suspicion, we consider whether, in light of the totality of the

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circumstances, the officer had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.'” U.S. v. Berber-Tinoco , 510 F.3d 1083, 1087 (9 Cir. 2007) (quoting U.S. v. Cortez , 449 U.S. 411, 417-18 (1982)).

The totality of the circumstances includes, but is not limited to: (1) the characteristics of the area where the vehicle is encountered; (2) the vehicle's proximity to the border; (3) traffic patterns and information about previous illegal border crossings in the area; (4) whether certain types of vehicles are frequently used to transport contraband or undocumented people; (5) erratic behavior on the part of the driver or attempts to evade law enforcement; (6) whether the vehicle is heavily loaded or has an unusual number of passengers. U.S. v. Brignoni-Ponce , 422 U.S. 873, 884-885 (1972). Although each factor may be subject to an innocent explanation, a divide-and-conquer analysis was precluded by the Supreme Court in the Terry decision. U.S. v. Arvizu , 534 U.S. 266, 274 (2002)

An officer's training and experience may be considered in his or her assessment of the facts so long as inferences drawn are objectively reasonable. Arvizu , 534 U.S. at 273; Cortez , 449 U.S. at 418; U.S. v. Montero-Camargo , 208 F.3d 1122, 1131 (9 Cir. 2000, en banc ). The factors are often as equally subject to an innocent explanation as they are to supporting reasonable suspicion. In such cases, the Supreme Court instructs the Court “to give due weight to the factual inferences drawn by law enforcement officers.” U.S. v. Berber-Tinoco , 510 F.3d 1083, 1087 (9 Cir. 2007) (quoting U.S. v. Cortez , 449 U.S. 411, 417-18 (1981). “If the initial stop was unconstitutional, then all evidence seized as a result of the stop must be suppressed as the fruit of the poisonous tree.” U.S. v. Morales , 252 F.3d 1070, 1073 (9 Cir. 2001).

Discussion :

In the present case, USBP agents received a BOLO for a blue BMW with a particular license plate that had been seen in the past trying to load suspected undocumented noncitizens. On 5/5/21 there was an automatic alert generated by a license plate reader that the same vehicle was traveling on State Route (SR) 80, north of Tombstone, heading toward Interstate 10. Agent Campbell took the information to the radio control room to have it

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broadcast to the agents on duty.

On 5/5/21USBP Agent Ogiba was on duty patrolling on SR 80, in his marked Border Patrol vehicle. He received the BOLO at about 12:04 p.m. It indicated that the vehicle was north of the checkpoint on SR 80, which was closed at the time. The checkpoint is about 30 to 35 miles north of the border and connects Douglas, AZ to I-10, a common smuggling route. Agent Ogiba was heading southbound when he saw a blue BMW with Arizona plates, traveling northbound on SR 80. He noticed the driver and one passenger, and that the window tint was very dark. Luxury vehicles are not commonly seen in the area. He pulled over to make a U-turn and followed the BMW. As he got behind the BMW it accelerated and began passing vehicles. Agent Ogiba testified that it is common for smugglers to put distance between themselves and law enforcement.

The BMW made a quick left hand turn into the south entrance of the Sahara Motel parking lot. Agent Ogiba entered the north entrance. The BMW was parked. When Agent Ogiba entered the lot and parked, the driver waited about five seconds and then exited the vehicle. He started to quickly walk away. The passenger remained in the BMW. Agent Ogiba activated his emergency lights and yelled at the driver to get back into the car, which he did. He spoke to the driver who advised that he is a United States citizen. The passenger did not respond to questions in English. He had a Mexican identification card in his hand. The passenger answered in Spanish that he was in the United States without authorization. Agent Ogiba arrested the driver.

The government argues that the following factors taken together, along with the reasonable inferences drawn by the agent, formed reasonable suspicion:

1. There was a BOLO describing the vehicle and a prior incident of attempted alien smuggling.

2. State Route 80 connects towns located very close to the international border with Mexico to I-10. It is a common smuggling route.

3. The checkpoint was closed.

4. The BMW was seen at the anticipated time based on the information from the

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license plate reader.

5. The BMW had very dark window tint.

6. The driver of the BMW reacted to the presence of the agent behind him by accelerating and trying to create distance between himself and the agent.

7. The driver abruptly turned into the hotel parking lot.

8. The driver exited the BMW and quickly walked away when the agent parked nearby, trying to distance himself from the vehicle.

9. The passenger remained in the BMW.

The defendant argues that the BOLO information from the prior encounter was stale and from an unidentified, possibly unreliable source. It related to the vehicle but not to the person driving the BMW. Only a driver and passenger were seen in the vehicle prior to the stop. Agent Ogiba was unable to confirm the license plate until after the stop. The fact that the vehicle was traveling on a known smuggling route is insufficient to establish reasonable suspicion. The driving behavior was innocent, not erratic and did not include any traffic violations.

Not all of the Brignoni-Ponce factors weigh in favor of the government. The BMW is not the type of vehicle commonly used in smuggling events. There were not an unusual number of people in the vehicle. The vehicle was not heavily weighted. However, the BMW was traveling close to the international border. It was on a common smuggling route. There was a BOLO that described a possible prior smuggling attempt involving the vehicle. The driver's behavior in trying to create distance between himself and the agent, as well as the abrupt turn into the motel parking lot drew suspicion. The driver reacted to the agent's presence by exiting the vehicle and quickly walking away, in the opposite direction from the motel office. The passenger remained in the vehicle. Even if Agent Ogiba had not ordered the driver to return to the vehicle, the agent could have approached and seen the passenger with the Mexican identification document in his hand. He would have been free to question the passenger about his citizenship.

Reasonable suspicion is a low bar. After considering the totality of the

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circumstances, the Court finds that there was reasonable suspicion for a brief investigatory stop of the defendant. The stop resulted in a determination that the passenger was in the United States without authorization and the eventual discovery of two more undocumented people who were not readily visible until after the stop and arrest.

Recommendation :

In view of the foregoing, it is recommended that, after its independent review of the record, the District Court DENY the defendant's motion to dismiss for lack of reasonable suspicion to stop (Doc. 30)

The defendant may serve and file written objections within 14 days. If objections are not timely filed, the party's right to de novo review may be waived. No reply to objections shall be filed unless leave is granted from the District Court.

The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.