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United States v. Cruz

United States District Court, D. Montana, Missoula Division

August 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RICARDO ORTIZ CRUZ, Defendant.

          ORDER

          DANA L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Defendant Ricardo Ortiz Cruz ("Cruz") has filed a Motion to Suppress evidence obtained from the search and seizure of his vehicle following a traffic stop that occurred in a rural area within two or three miles of the Canadian border. (Doc. 16.) Cruz is charged with being an illegal alien in possession of ammunition in violation of 18 U.S.C. § 922(g)(5)(A). Cruz argues that his search and seizure violated his Fourth and Fifth Amendment rights. On August 6, 2018, the Court held an evidentiary hearing on the motion and heard testimony from Border Patrol Officer Luis Granado ("Officer Granado"). Prior to the hearing, the Court reviewed all of the evidence filed by counsel. For the reasons explained below, the Court denies the motion.

         Background

         On the evening of May 14, 2018, Officer Granado was patrolling the area around West Kootenai, Montana-a rural community on the Canadian border approximately forty miles from the Eureka Border Patrol station. Officer Granado had been assigned this area because his supervisor was aware of recent illegal crossings in the area. At approximately 2:30 a.m., Officer Granado was driving along West Kootenai Road, which he estimated was two miles from the border, when he observed a white minivan speeding towards him in his rear-view mirror. Officer Granado pulled over to let the vehicle pass and noticed that the vehicle had a temporary Texas license plate. Officer Granado did not activate his lights, but decided to follow the vehicle which resumed a normal speed. However, within a few moments, the vehicle turned off onto Whitetail Lane, a poorly maintained gravel road. The vehicle rapidly gained speed, causing the Officer to believe that the vehicle was attempting to evade him. Officer Granado followed, but the van sent up a cloud of dust reducing visibility and the Officer lost sight of the vehicle. Searching for some sign of headlights or taillights, Officer Granado soon emerged from the cloud of dust and realized that the vehicle must have pulled off somewhere behind him. He turned around and within a hundred yards he noticed the white van parked approximately fifty yards up an unmaintained forest service road with its lights turned off.

         Officer Granado pulled in behind the van and activated his emergency lights. He approached the vehicle and asked the driver to roll down the window. Transitioning the conversation to Spanish, the driver responded that the window did not roll down. Officer Granado asked him to open the door and present his identification. The driver, Cruz, complied by opening the door and then reached for something to the right of the driver's seat and out of sight. Officer Granado was unable to see his hand and became afraid that Cruz was reaching for a gun.

         At once, he pulled his service weapon on Cruz and ordered Cruz to show him his hands. When the Officer asked what he was reaching for, Cruz answered something to the effect that he was reaching for his wallet. Officer Granado told him that he better not be reaching for a gun. Cruz stated that he was not reaching for a gun but admitted that there was a gun in the back of the car. With Officer Granado's permission, Cruz then slowly reached for his wallet and presented three forms of Mexican-issued documents, including a driver's license and voting card. Approximately ten seconds after pulling out his firearm, the Officer holstered his weapon and inspected the documents. Cruz did not present any immigration paperwork, and when asked whether he was lawfully in the country, Cruz responded that he was not. Sometime during this encounter, Officer Granado confiscated the keys to the vehicle.

         Officer Granado then radioed for backup. While waiting, he engaged Cruz in conversation, asking him where he worked, where he was from, and how he had entered the country. Cruz answered honestly, and described having crossed the border near a bridge by fording a river. At the hearing, Officer Granado described that this conversation seemed to calm both of them down. As they talked, Officer Granado opened the back of the vehicle and searched for the gun that Cruz had indicated would be there. He found it in the jack compartment along with ammunition. He then secured the gun in his patrol car.

         Shortly after, Agent Cantu arrived and read Cruz his Miranda rights before transporting Cruz to the Eureka Border Patrol station, leaving Officer Granado to secure the scene. He placed the gun back in the jack compartment, closed up the vehicle, and headed back to the station himself. The entire stop lasted approximately forty minutes.

         This is where the waters become muddied. At approximately 4:00 a.m., Officer Granado arrived in Eureka with the end of his shift in sight. He spent the next hour or two documenting Cruz's biographical information and obtained his finger prints and photographs for his report. Instead of completing the report himself, Officer Granado described the circumstances surrounding the stop to Agent Brenda Lapage to author on his behalf. The following day, Officer Granado signed the report, but "did not read it word-for-word," and consequently the report contained significant inconsistencies and omissions.

         Particularly, the May 14th report diverges from Officer Granado's subsequent account of the events at the point at which Officer Granado apprehended Cruz on the forest service road. His first report states that Officer Granado observed Cruz moving inside the vehicle and asked Cruz to put his hands outside the window, which is consistent with training protocols. The report contains no mention of Officer Granado having pulled his service weapon on Cruz and contains no indication that Officer Granado searched the vehicle or found the gun in the car at any time during the encounter. Instead, the report explains that Agent Cantu read Cruz his Miranda rights at the Border Patrol station at approximately 4:30 a.m. The report also indicates that the gun was found at the station only after Agent Salminen, a canine handler, conducted a "free air sniff' and the canine alerted to the back of the vehicle. (Doc. 17-1 at 3.) When asked about these discrepancies at the evidentiary hearing, Officer Granado explained that he did not tell anyone about having found the gun during an earlier search so that the weapon could be independently discovered during an inventory search.

         Meanwhile, Special Agent Bradford Bybee with Homeland Security Investigations ("Agent Bybee") began investigating Cruz in order to bring criminal charges. On May 15th, he interviewed Cruz and wrote up a criminal complaint relying on the information contained in Officer Granado's May 14th report. On May 18th, he interviewed Officer Granado. Presumably during this interview, Agent Bybee learned of some discrepancies between Officer Granado's stated version of events and the narrative contained in the report. The subsequent probable cause hearing in front of Magistrate Judge Jeremiah C. Lynch revealed other discrepancies causing Agent Bybee to interview Officer Granado yet again. Agent Bybee noted these discrepancies in his May 24th investigation report, in which he explained that the search was due to officer safety concerns. This assertion presents the third version of events surrounding the search.

         Nevertheless, on June 1st, at Agent Bybee's behest, Officer Granado revised his report to clarify the circumstances surrounding the search. This final report is consistent with the May 14th report as it concerns Officer Granado's initial encounter and pursuit of the vehicle, and is consistent with his testimony at both the probable cause hearing and the hearing on the motion to suppress. This version of events explains that Officer Granado pulled a service weapon on Cruz after Cruz's hand disappeared towards the passenger side floor of the vehicle, early in the encounter. The report clarifies that Officer Granado searched the vehicle in the field to secure the gun.

         Cruz moves to suppress the evidence of the gun and ammunition on the grounds that: (1) Office Granado's inconsistent testimony surrounding the initial stop of the vehicle dramatically undercuts his credibility to the point that the Court cannot objectively determine whether he had reasonable suspicion to Terry stop Cruz's vehicle; (2) the encounter became custodial when Officer Granado pointed his service weapon at Cruz, therefore requiring a Miranda warning prior to any further questioning; and (3) that Officer Granado's warrantless search of Cruz's vehicle violates Cruz's Fourth Amendment rights and does not meet any search warrant exception. The Court will address each issue below.

         Legal ...


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