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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America, 

Plaintiff, 

vs.

Mariah Yolanda Rizzo,

Defendant. 

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No. CR 17-1724-TUC-CKJ (JR)

ORDER

On February 4, 2019, Magistrate Judge Jacqueline M. Rateau issued a Report and

Recommendation (“R&R”) (Doc. 129) in which she recommended the Motion to Suppress

(Doc. 82) filed by Mariah Yolanda Rizzo ("Rizzo") be denied. Rizzo has filed an Objection

to the Report and Recommendation (Doc. 132); the government has filed a Response (Doc.

136). 

Standard of Review

The standard of review that is applied to a magistrate judge’s report and

recommendation is dependent upon whether a party files objections – the Court need not

review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140,

150 (1985). However, the Court must “determine de novo any part of the magistrate judge’s

disposition that has been properly objected to. The district judge may accept, reject, or

modify the recommended disposition; receive further evidence; or return the matter to the

magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)
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(“A judge of the court shall make a de novo determination of those portions of the report or

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

Report and Recommendation – Factual Background

In her factual summary, Rizzo includes argument as to inferences and conclusions

regarding the evidence presented at the evidentiary hearing. For example, Rizzo points out

that Border Patrol Agent Christopher Troxell (“Troxell”) testified that “the vehicle swerved

lanes into the turn lane to turn onto SR 82, though he conceded that he never mentioned it

in his initial report.” Objection. (Doc. 132, p. 2) (citing R&R, p. 4; TR1:23-24, 25, 47-49).

Rizzo asserts Border Patrol Agent Kathleen June (“June”) “contradicted Troxell on that

point, testifying that she did not recall any sudden movement from the Navigator.” Id. (citing

R&R, p. 4; TR1:77, 93). While not recalling any sudden movement does not necessarily

mean it did not occur and that June contradicted Troxell, the Court accepts such arguments

as simply arguments, not specific objections to the R&R.

Rizzo asserts the magistrate judge made a factual determination regarding Rizzo’s

crossing history without any supporting evidence in the record. Specifically, Rizzo points

out the government did not demonstrate that Rizzo was the driver of each of the prior

crossing occasions involving the Lincoln Navigator that Rizzo was driving when she was

stopped on October 12, 2017. However, Rizzo does acknowledge that the magistrate judge

“noted at the September 27, 2018, suppression hearing that it was the vehicle with recorded

crossings, and not necessarily Ms. Rizzo.” Id. at 7 (citing TR1:33, 8-14). Rizzo states,

“Thus, for the Magistrate Court now to find Ms. Rizzo’s driving behavior suspicious due to

her strong crossing pattern is contradictory from its previous findings.” Id. The Court

overrules this objection in part. While the specific evidence does not conclusively

demonstrate Rizzo was driving during each of the crossings, the vehicle was registered in her

name and a reasonable inference may be made that Rizzo was driving the vehicle during

some or all of the border crossings. 
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Reasonable Suspicion – Initial Stop

Rizzo argues the border patrol agents lacked reasonable suspicion to make the initial

stop of Rizzo. Because Rizzo has argued there is no evidence Rizzo was driving the vehicle

during the prior border crossings, Rizzo argues the legal u-turn made by Rizzo alone cannot

provide the basis for reasonable suspicion. However, the evidence does establish that the

vehicle driven by Rizzo on the date of the incident had made multiple crossings in the prior

two months. A reasonable inference may be made that Rizzo may have been driving this

vehicle during those prior crossings. See e.g. United States v. Raygoza-Garcia, 902 F.3d

994, 999–1001 (9th Cir. 2018) (totality of circumstances approach allows agents to draw on

experiences and specialized training to make inferences). The Court finds this circumstance

is appropriately considered in determining whether reasonable suspicion existed to stop

Rizzo.

The legal u-turn was not the only basis for a finding of reasonable suspicion.

Furthermore, as pointed out by the magistrate judge, this fact may considered when

combined with other factors in determining reasonable suspicion. United States v.

Montero-Camargo, 208 F.3d 1122, 1137 (9th Cir. 2000). The Court agrees with the

summary of the magistrate judge:

The agents testified that there are eleven turn-around points between the SR 90/SR

82 intersection and the SR 90 checkpoint. Yet, Rizzo used the final U-turn point

before the checkpoint which suggested to the agents that she might be carrying

contraband or scouting for others to see if the checkpoint was operational and fully

staffed. She might have dispelled at least some of the agents’ suspicions had she

returned to a nearby house or if she had proceeded to the gas station, but she did not.

Rather, after making the U-turn, Rizzo travelled back to the intersection and did not

continue toward the larger population centers around Sierra Vista, but turned left on

SR 82 toward Tombstone and bypassed the gas station. Thus, after making the

U-turn, none of Rizzo’s actions suggested an innocent reason for making the

last-second U-turn before the checkpoint. 

R&R, pp. 13-14. Further, the agents knew the vehicle was registered to a residence in Oro

Valley, yet knew the u-turn with a left turn on SR 82 meant the vehicle was driving away

from Oro Valley. 

Additionally, the agents reasonably surmised, given the multiple recent sightings of

the vehicle in the area, it was unlikely the driver was lost. Indeed, the analysis includes
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consideration of “the modes or patterns of operation of certain kinds of law-breakers.” R&R,

p. 11, 13 (citing United States v. Berber-Tinoco, 510 F.3d 1083, 1087-88 (9th Cir. 2007) (As

to stops by border patrol agents, the totality of circumstances may include the area

characteristics, the proximity to the border, usual traffic patterns and the time of day,

previous alien or drug smuggling in the area, the behavior of the driver, including obvious

attempts to evade officers, the appearance or behavior of passengers, the model and

appearance of the vehicle, and the experience of the officer). This includes the scouting of

the checkpoint by smugglers to determine whether the checkpoint is open, the checkpoint is

heavily staffed, or canines are present at the checkpoint. The Court agrees with the

magistrate judge reasonable suspicion existed for the initial stop of Rizzo.

Reasonable Suspicion – Second Stop

Rizzo argues the second stop relies solely on the fruits of the first stop. “Therefore,

if the District Court agrees that Border Patrol did not meet the legal standard to conduct the

first stop on Ms. Rizzo, then the Court cannot find that Border Patrol articulated suspicious

behaviors to warrant a second stop on Ms. Rizzo.” Objection (Doc. 132, p. 8). However, the

Court has found the initial stop of Rizzo was supported by reasonable suspicion.

In addition to the information that supported the initial stop, other information

supported the second stop. First, the initial stop had increased the suspicions. See R&R

(Doc. 129, p. 14). For example, Rizzo’s stories had changed when Agent Troxell was

speaking with her. Additionally, although one of Rizzo’s statements indicated she was taking

photos or videos in the area, photographic equipment was not observed in the vehicle.

Further, the vehicle appeared to avoid an open checkpoint between the two stops and, while

the vehicle did not have any passengers during the first stop, two passengers were later

observed in the vehicle. In other words, the agents were able to articulate additional

information to support the second stop. Rizzo’s reliance, therefore, on United States v.

Peters, 10 F.3d 1517 (10th Cir. 1993) (where the results of an initial stop dispelled
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reasonable suspicion, second stop without any new information was not supported by

reasonable suspicion), is misplaced. 

The Court agrees with the magistrate judge that reasonable suspicion existed to stop

Rizzo for the second time. Furthermore, even if the first stop was not supported by

reasonable suspicion and the information supporting the initial stop was excised, sufficient

additional information independently supports a finding that reasonable suspicion existed to

stop Rizzo a second time. That this additional information involves conduct that may be

innocent by itself, when taken together, the additional conduct warrants further investigation.

United States v. Arvizu, 534 U.S. 266, 272 (2002); Raygoza-Garcia, 902 F.3d at 999–1001

(quoting Valdes-Vega, 738 F.3d at 1078) (“‘under the totality of the circumstances, and even

though individual acts may be “innocent in [themselves] . . . taken together, they []

warrant[ed] further investigation”).

Accordingly, after an independent review, IT IS ORDERED:

1. The February 4, 2019, Report and Recommendation (Doc. 129) is ADOPTED.

2. The Motion to Suppress Evidence (Doc. 82) is DENIED.

DATED this 3rd day of April, 2019.