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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Kevin Ronnie Tungovia, 

Defendant. 

No. CR-17-01648-001-TUC-RM (LAB)

ORDER 

 Pending before the Court is Defendant Kevin Ronnie Tungovia’s Motion to 

Suppress (Doc. 48), joined in by Defendant Michaela Denise Ventura (Doc. 50).1

 In their 

Motion, Defendants argue they were arrested without probable cause and that all 

evidence stemming from their arrests should therefore be suppressed. On February 1, 

2018, Magistrate Judge Leslie A. Bowman held an evidentiary hearing (Doc. 61). On 

February 14, 2018, Judge Bowman issued a Report and Recommendation (Doc. 72), 

recommending that this Court deny the Motion to Suppress. Both Defendants filed an 

Objection (Docs. 78, 80). The Government filed a Consolidated Response (Doc. 93), and 

Defendant Tungovia filed a Reply (Doc. 96). 

I. Standard of Review 

A district judge “may accept, reject, or modify, in whole or in part, the findings or 

recommendations” of a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge must 

 

1

 Defendants also filed a Joint Motion to Dismiss (Doc. 51), for which there 

is a Report and Recommendation pending (Doc. 83). That motion will be addressed in a separate order. 
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“make a de novo determination of those portions” of a magistrate judge’s “report or 

specified proposed findings or recommendations to which objection is made.” Id. The 

advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure state 

that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no 

clear error on the face of the record in order to accept the recommendation” of a 

magistrate judge. Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition; see 

also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or 

only partial objection is made, the district court judge reviews those unobjected portions 

for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. 

Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and 

Recommendation). 

II. Background 

Defendants were arrested on October 19, 2017, at an immigration checkpoint 

located on State Route Highway 86 near Three Points, Arizona. (Doc. 1.) On October 

25, 2017, they were both indicted for knowingly or recklessly transporting an illegal alien 

in furtherance of the alien’s violation of law, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) 

and (a)(1)(B)(i), and with conspiracy to commit that offense, in violation of § 

1324(a)(1)(A)(v)(I), (a)(1)(A)(ii), and (a)(1)(B)(i). (Doc. 15.) They filed a Motion to 

Suppress on January 2, 2018, arguing they were arrested without probable cause and that 

all evidence obtained as a result of their arrests is inadmissible. (Docs. 48, 50.) The 

following recitation of facts is taken from Border Patrol Agent Luis Santiesteban’s 

testimony at the evidentiary hearing. 

 Agent Santiesteban has been a Border Patrol agent for approximately 17 years, 

stationed in Tucson, Arizona, during that time. (Doc. 69 at 11.) He estimated he has 

worked the Highway 86 checkpoint over 100 times during his career. (Id.) He is fluent 

in Spanish. (Id. at 12.) 

 The Highway 86 checkpoint is located approximately 45 miles north of the 

international border between the United States and Mexico. (Id. at 12–13.) That road is 
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the only egress between Tucson and Ajo. (Id. at 13.) Agent Santiesteban was working 

the graveyard shift at the checkpoint on October 19, 2017. (Id. at 12.) He was the only 

agent assigned to primary inspection at around 2:30 a.m., when he observed a silver 

minivan approach the checkpoint. (Id. at 12–13.) 

 There were three people in the vehicle: a male driver (Tungovia), a female 

passenger (Ventura), and a male passenger in the backseat (the material witness). (Id. at 

14.) Agent Santiesteban approached the vehicle, but before he asked any questions, 

Defendants (apparently anticipating questions) began stating their answers. (Id. at 13–

14.) Agent Santiesteban asked the vehicle occupants in English to “[p]lease state your 

citizenship.” (Id. at 14.) Defendants responded that they are U.S. citizens. (Id.) The 

material witness responded “yes” in a heavy accent that sounded more like “jes.” (Id. at 

14–15.) Agent Santiesteban asked the material witness the same question in Spanish, and 

the material witness again responded “yes,” although the question required a more 

substantive response. (Id. at 15.) The material witness was seated straight up and failing 

to make eye contact with Agent Santiesteban. (Id.) While Agent Santiesteban was 

questioning the material witness, Defendants attempted to answer the questions on the 

material witness’s behalf by stating that the witness is a U.S. citizen. (Id. at 15–16.) 

Agent Santiesteban asked them to stop. (Id. at 16.) Since Agent Santiesteban was unable 

to establish whether or not the material witness is a U.S. citizen, he referred the vehicle to 

secondary inspection “for further inspection of the [rear] passenger.” (Id. at 16–17.) 

 Once the vehicle was in secondary inspection, Agent Santiesteban ran the license 

plate and learned that the vehicle was properly registered out of Tucson, but not to the 

vehicle’s occupants. (Id. at 17, 51.) Agent Santiesteban returned to the vehicle and 

continued to question the material witness regarding the witness’s citizenship. (Id. at 17.) 

Defendants attempted once more to answer the citizenship questions on the material 

witness’s behalf, so Agent Santiesteban removed the material witness from the vehicle. 

(Id. at 17–18.) After removal of the material witness from the vehicle, one of the 

Defendants told Agent Santiesteban they had picked the witness up by the “Coyote” and 
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that the witness had told them in English that he was a U.S. citizen. (Id. at 19.) Agent 

Santiesteban understood “Coyote” to refer to the Coyote Store, which is a known load-up 

point for undocumented aliens. (Id. at 24–25.) 

 Once outside the vehicle, Agent Santiesteban resumed questioning the material 

witness in Spanish. (Id. at 21.) The material witness responded in Spanish, giving his 

name and admitting that he is a Guatemalan citizen with no documents allowing him to 

be in the United States. (Id.) Agent Santiesteban then took the material witness into 

custody. (Id. at 22.) After securing the material witness, Agent Santiesteban returned to 

the vehicle and informed Defendants they were under arrest. (Id. at 25.) 

 In Agent Santiesteban’s experience, several common alien smuggling tactics were 

present in this case. (Id. at 23.) It is common for the smugglers to answer on behalf of an 

undocumented alien. (Id.) It is also a tactic to instruct non-English-speaking aliens to 

answer “yes” to questions posed by Border Patrol agents because some agents tend to ask 

questions requiring a “yes” or “no” answer, such as, “Are you a U.S. citizen?” (Id.) To 

thwart this tactic, Agent Santiesteban personally asks people to state their citizenship 

because it requires more than a “yes” or “no” answer. (Id.) Undocumented aliens also 

tend to exhibit the same rigid posture, nerves, and failure to make eye contact with 

agents. (Id. at 24.) 

 Agent Santiesteban agreed that the vehicle was obeying all traffic laws; that he 

noticed no suspicious driving, furtive gestures, or attempts to flee or evade inspection; 

and that he had not received any information from other agents or people regarding the 

vehicle. (Id. at 27–28.) He agreed that the material witness was not trying to conceal 

himself although there were places in the vehicle where a person could hide. (Id. at 29–

31.) He did not see a backpack or water bottle or notice any brush or other debris, which 

might indicate that the material witness had walked through the desert. (Id. at 65.) 

 Agent Santiesteban’s original report was written on October 19, 2017. (Id. at 31.) 

He wrote an amended report on January 29, 2018. (Id. at 33.) Agent Santiesteban wrote 

his amended report after meeting with the Assistant United States Attorney (“AUSA”) 
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and recounting the entire stop, answering questions that helped him recall information not 

contained in the original report. (Id. at 61, 70–71.) The AUSA did not tell him what to 

write. (Id. at 71.) The following information was included in the supplemental report but 

not the original report: the Coyote Store is a well-known smuggling location; the 

Defendants became nervous when referred to secondary inspection; the material 

witness’s new, overlarge sweatshirt was a significant factor in arousing Agent 

Santiesteban’s suspicion; and smugglers coach undocumented aliens to answer “yes” to 

questions posed by immigration authorities. (Id. at 53–54, 59–60, 62–63.) 

III. Discussion 

A. Moment of Arrest 

 As a threshold matter, the parties dispute the point at which Defendants were 

arrested. In their Motion, Defendants did not explain at what point in the encounter their 

arrests occurred. On the assumption the arrests occurred when Agent Santiesteban 

explicitly informed the Defendants they were under arrest, the Government argued in its 

Supplemental Response that any evidence obtained prior to that cannot be suppressed 

because it was not obtained as a result of the arrest.2

 In their Supplemental Reply, 

Defendants argued for the first time that they were arrested at the moment Agent 

Santiesteban ordered the material witness out of the vehicle. They contend they were 

arrested because Agent Santiesteban testified during the evidentiary hearing that they 

were not free to leave at the time he removed the material witness from the vehicle.3

 Generally, an arrest occurs when “a reasonable person would conclude that he was 

not free to leave after brief questioning.” Stevens v. Rose, 298 F.3d 880, 883 (9th Cir. 

2002) (quoting United States v. Del Vizo, 918 F.2d 821, 824 (9th Cir. 1990)). Whether an 

arrest has occurred depends on the totality of the circumstances. Id. Relevant factors 

 

2

 This evidence includes the material witness’s identity and citizenship; the Defendants’ identities; certain statements made by the Defendants at the checkpoint; and certain observations made by agents at the checkpoint. 

3

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include “(1) the language used to summon the individual; (2) the extent to which the 

defendant is confronted with evidence of guilt; (3) the physical surroundings of the 

interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to 

detain the individual.” United States v. Redlightning, 624 F.3d 1090, 1103 (9th Cir. 

2010) (quoting United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001)). An 

officer’s failure to explicitly tell a person that he or she is free to leave is not dispositive. 

Id. (citing United States v. Orman, 486 F.3d 1170, 1176 (9th Cir. 2007)). 

 Defendants argue there is no need to analyze whether a reasonable person would 

have felt free to leave because Agent Santiesteban testified during the evidentiary hearing 

that they were not free to leave. The determination, however, is made from the 

perspective of a reasonable person in the suspect’s position. Stevens, 298 F.3d at 883. 

Moreover, temporary detention during a brief investigation does not equate to an arrest. 

See, e.g., Dunaway v. New York, 442 U.S. 200, 210–11 (1979) (explaining that Terry 

stops are less intrusive than arrests and likening Terry stops to brief detentions at fixed 

checkpoints (citing United States v. Martinez-Fuerte, 428 U.S. 543 (1976)); United States 

v. Sowers, 136 F.3d 24, 26–28 (1st Cir. 1998) (upholding district court’s finding that 

defendants were not arrested although 30 minutes elapsed between vehicle stop and 

discovery of contraband, and one defendant was removed from the vehicle during that 

period). 

Under the principles set forth above, the Court finds that Defendants were not 

arrested until Agent Santiesteban expressly informed them they were under arrest. There 

is no sign in the record that, prior to that point, Agent Santiesteban indicated Defendants 

were under arrest, used harsh or threatening language, confronted them with evidence of 

guilt, or used an excessive degree of pressure to detain them. In fact, the testimony 

indicates that Agent Santiesteban was satisfied that Defendants were U.S. citizens and 

had moved on to investigating the material witness. (See Doc. 69 at 16–17.) When the 

material witness failed to provide sufficient evidence of U.S. citizenship, Agent 

Santiesteban advised Defendant Tungovia “to move over to secondary inspection for 
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further inspection of the passenger.” (Id.) Although Defendants make much of the fact 

they were not free to leave when the material witness was removed from the vehicle, that 

fact did not turn the encounter into an arrest. Their detention at that point was a 

byproduct of Agent Santiesteban’s investigation of the material witness. Cf. Sowers, 136 

F.3d at 28. 

 Additionally, the physical surroundings do not support a finding that Defendants 

were under arrest prior to being informed so by Agent Santiesteban. The Supreme Court 

has recognized that although referral to secondary inspection at a permanent checkpoint 

“may involve some annoyance, . . . the stops should not be frightening or offensive 

because of their public and relatively routine nature.” Martinez-Fuerte, 428 U.S. at 560. 

Nor does the length of the stop—according to the parties, about 20 minutes—support a 

finding that Defendants were under arrest, especially given that the investigation was 

focused on the material witness. Cf. Sowers, 136 F.3d at 28; see United States v. Sharpe, 

470 U.S. 675, 683–87 (1985) (rejecting a bright-line rule concerning when an 

investigative stop turns into an arrest and finding a 20-minute detention reasonable). 

 Defendants’ objection regarding the time of arrest will be overruled. 

B. Probable Cause 

An arrest is “the quintessential ‘seizure of the person’” under the Fourth 

Amendment. California v. Hodari D., 499 U.S. 621, 624 (1991). All arrests must be 

supported by probable cause. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) 

(quoting Dunaway, 442 U.S. at 208). Probable cause “exists when officers have 

knowledge or reasonably trustworthy information sufficient to lead a person of 

reasonable caution to believe that an offense has been or is being committed by the 

person being arrested.” Sialoi v. City of San Diego, 823 F.3d 1223, 1232 (9th Cir. 2016) 

(quoting United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)). The probable 

cause determination is objective, made based on the totality of the circumstances and 

without consideration of an officer’s subjective motivations. Arkansas v. Sullivan, 532 

U.S. 769, 771–72 (2001) (per curiam); Velazquez v. City of Long Beach, 793 F.3d 1010, 
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1018 (9th Cir. 2015). “[A] probable cause determination can be supported entirely by 

circumstantial evidence.” United States v. Diaz, 491 F.3d 1074, 1078 (9th Cir. 2007). 

Although “an officer need not have probable cause for every element of the offense . . . 

when specific intent is a required element of the offense, the arresting officer must have 

probable cause for that element in order to reasonably believe that a crime has occurred.” 

Reed v. Lieurance, 863 F.3d 1196, 1205 (9th Cir. 2017) (quoting Blankenhorn v. City of 

Orange, 485 F.3d 463, 472 (9th Cir. 2007)). 

Defendants object to Judge Bowman’s finding that Agent Santiesteban had 

probable cause to arrest. They emphasize that Agent Santiesteban needed probable cause 

to believe they acted with specific intent, i.e., that they transported the material witness 

with intent to help him unlawfully remain in the United States. The Motion and 

Objections center on that element.4

 After independent review of the record, the Court 

finds that Agent Santiesteban had probable cause to arrest Defendants based on the 

following facts: at primary inspection, the material witness repeatedly responded “yes” to 

citizenship questions that required a more substantive answer; at primary inspection, 

Defendants attempted to answer citizenship questions on the material witness’s behalf 

once the witness failed to adequately respond, and Agent Santiesteban ordered them to 

stop; at secondary inspection, one Defendant informed Agent Santiesteban that the 

witness told Defendants in English that he is a U.S. citizen; at secondary inspection, 

Defendants attempted again to answer questions on behalf of the witness notwithstanding 

Agent Santiesteban’s earlier order not to do so; and, at secondary inspection, the witness 

admitted in Spanish that he is a citizen of Guatemala (his first adequate answer). The 

foregoing facts allow a reasonable person to infer that the Defendants had the specific 

intent required for the charged offense. That is, a reasonable person could infer that 

Defendants lied about speaking English to the material witness and attempted to interfere 

with Agent Santiesteban’s investigation of the witness because they were knowingly 

 

4

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satisfied. 
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transporting an undocumented alien and wanted to avoid apprehension. 

First, Tungovia objects to Judge Bowman’s finding that Defendants “interfered” 

with Agent Santiesteban’s investigation by attempting to answer citizenship questions on 

behalf of the material witness. He points out that Agent Santiesteban did not describe 

Defendants’ conduct as “interference” and argues their conduct actually weighs against 

the existence of probable cause because it shows their genuine belief that the material 

witness was indeed a U.S. citizen. However, a reasonable agent in the same 

circumstances would have had cause to be suspicious of the material witness’s 

citizenship, given the witness’s repeated failure to give an appropriate answer to 

substantive citizenship questions. Through that lens, it is more reasonable to interpret 

Defendants’ conduct as an attempt to interfere with the investigation by diverting 

attention away from the material witness. His objection to this finding will be overruled. 

Tungovia’s second and third objections are to Judge Bowman’s reliance on the 

vehicle registration, the time of day when the vehicle approached the checkpoint, and the 

location of the checkpoint. His objections are two-pronged. Tungovia argues it was error 

to rely on those facts because Agent Santiesteban never testified that he relied on them. 

Tungovia also argues that the facts are weak evidence of probable cause. The former 

argument is an incorrect application of the objective standard; although Agent 

Santiesteban never testified he relied on those facts, there is no dispute that he was aware 

of them. The probable cause analysis examines “‘whether these historical facts, viewed 

from the standpoint of an objectively reasonable police officer, amount to’ probable 

cause . . . .” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (emphasis added) (quoting 

Ornelas v. United States, 517 U.S. 690, 696 (1996)). Therefore, it is proper to consider 

all facts known to Agent Santiesteban. See United States v. Martin, 509 F.2d 1211, 1213 

(9th Cir. 1975) (explaining that the probable cause analysis requires consideration of “all

the facts known to the officers and . . . all the reasonable inferences that could be drawn 

by them before the arrest.” (emphasis added)).5

 The latter argument (that the facts are 

 

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weak evidence of probable cause) is also unpersuasive. Viewed in isolation, each fact 

would not support probable cause. However, the Supreme Court has expressly warned 

against engaging in a “divide-and-conquer analysis” whereby each factor is viewed in 

isolation; the proper analysis requires consideration of “the whole picture.” District of 

Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (citing United States v. Cortez, 449 U.S. 

411, 417 (1981); United States v. Arvizu, 534 U.S. 266, 274 (2002)). The facts viewed as 

a whole support a finding of probable cause. Tungovia’s second and third objections will 

be overruled. 

 Tungovia’s fourth objection is to Judge Bowman’s reliance on facts introduced in 

Agent Santiesteban’s supplemental report, which was written after the filing of 

Defendant’s Motion to Suppress.6

 Judge Bowman found that the amended report reflects 

poorly on Agent Santiesteban’s credibility and so found the probative value of the 

additional facts to be low.7

 After independent review, the Court does not agree that all

information added in the amended report should hold less weight or be discounted 

entirely. As the Government points out, the accuracy of some of that information 

depends on Agent Santiesteban’s memory of the encounter (e.g., the material witness 

wore overlarge, new clothing) and, therefore, that information should hold less weight 

than information in the original report because he only recalled it months later. However, 

some of the information is a product of his 17 years of experience and, therefore, its 

accuracy is not properly judged based on his memory of the encounter (e.g., the Coyote is 

a known location for smuggling activity). It is proper to consider information falling into 

the latter category. As explained above, the Court finds that Agent Santiesteban had 

 facts known to the arresting officers. Tungovia fails to cite (and the Court could not find) 

a single case indicating that “all” is limited to what the arresting officers personally found suspicious. 

6

 Specifically, Tungovia objects to reliance on the assertion that the Coyote store is a known pick-up spot for undocumented aliens. 

7

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probable cause even without considering the new information. The new information 

based on Agent Santiesteban’s experience only strengthens the finding of probable cause. 

Accordingly, Tungovia’s fourth objection will be overruled.8

Next, Tungovia objects to Judge Bowman’s finding that Agent Santiesteban 

determined the material witness does not speak English and that the witness could not 

have, as Defendants claim, told Defendants in English that he is a U.S. citizen. Tungovia 

argues Agent Santiesteban did not make such a determination because he never directly 

asked whether the material witness speaks English. Although directly confirming that the 

material witness does not speak English would more clearly support probable cause, the 

facts as they are nevertheless support that finding. The material witness failed to give an 

appropriate response to citizenship questions posed in English, and once questioned 

outside the vehicle in Spanish he gave his first adequate response in Spanish, i.e., that he 

is a citizen of Guatemala. At that point, Agent Santiesteban had already been informed 

by one of the Defendants that the material witness spoke at least some English. It is a 

reasonable inference from these facts that the material witness does not speak English 

and that, accordingly, the Defendant had lied about the material witness’s ability to speak 

English. This inference is especially valid in view of Defendants’ prior attempts to 

answer citizenship questions posed to the material witness in English. Tungovia also 

takes issue with any suggestion that an inability to speak English is indicative of alienage. 

His argument ignores the full context of the checkpoint encounter and is therefore not 

persuasive. His fifth objection will be overruled. 

Ventura objects that the facts relied upon by Judge Bowman amount to no more 

than a “hunch” that Defendants were knowingly transporting an undocumented alien. In 

so arguing, she takes the same “divide-and-conquer” approach as Tungovia. She attacks 

Judge Bowman’s finding that Defendants “interfered” with Agent Santiesteban’s 

investigation by suggesting how a more thorough investigation might have clearly 

 

8

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revealed Defendants’ intent in answering on the material witness’s behalf.9 Although 

true, that does not require a finding that probable cause was lacking. See Tsao v. Desert 

Palace, Inc., 698 F.3d 1128, 1147 (9th Cir. 2012) (explaining that officers need not 

investigate further once probable cause is established (quoting Broam v. Bogan, 320 F.3d 

1023, 1032 (9th Cir. 2003))). Next, Ventura attacks Judge Bowman’s reliance on the 

vehicle registration and reputation of the Coyote store as an alien load-up location. As 

explained above, however, there was probable cause to arrest without reliance on those 

facts. Next, Ventura argues that it is improper to associate language with alienage and 

that the testimony establishes, at most, that the material witness was merely more fluent 

or comfortable speaking Spanish. She also argues that the agent’s discovery of the 

material witness’s citizenship has no bearing on whether Defendants knew the witness’s 

citizenship. These arguments are unpersuasive because they fail to take into account the 

totality of the circumstances. Ventura’s first objection will be overruled. 

Ventura’s second objection is that Judge Bowman conflated knowledge of 

alienage with intent to further the material witness’s unlawful presence in this country. 

She argues the Government still has to show Defendants intended to help the material 

witness avoid apprehension by immigration authorities and suggests that no crime was 

committed because Defendants presented the material witness for inspection at the 

checkpoint. However, as explained above, there was probable cause to believe 

Defendants had the requisite intent for the offense based on the material witness’s 

Guatemalan citizenship and apparent inability to speak English, one Defendant’s 

assertion that the material witness claimed U.S. citizenship in English, and the 

Defendants’ attempts to answer citizenship questions on the witness’s behalf despite 

being ordered to not do so. Ventura’s second objection will be overruled. 

. . . . 

. . . . 

 

9

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supplemental report. However, that fact was in the original report. (See Doc. 69 at 54.) 
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IT IS ORDERED:

1. Defendants’ Objections (Docs. 78, 80) are overruled. The Report and 

Recommendation (Doc. 72) is accepted and adopted in full. 

2. Defendants’ Motion to Suppress (Doc. 48) is denied. 

 Dated this 3rd day of April, 2018.