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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Anthony Delbert Jones, Jr.,

Defendant. __________________________________

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CR 18-00032-TUC-JAS (EJM)

REPORT AND RECOMMENDATION

Pending before the Court is the defendant's motion to suppress evidence obtained from

an illegal traffic stop. [Doc. 21.] The defendant first argues that Border Patrol agents did not

have a reasonable suspicion of alien smuggling to stop his vehicle. The defendant also

maintains that the Border Patrol agents had no authority to stop the vehicle based only on

state traffic violations, especially given that agents never intended to issue a traffic citation;

moreover, even if they had that authority, they lacked a reasonable suspicion for a stop on

that basis. 

The government argues that because the Border Patrol agents involved in the traffic

stop were cross-certified as Arizona peace officers, the agents had the authority to stop the

defendant based only on their reasonable suspicion of traffic infractions. The government

also argues that agents had a reasonable suspicion of alien smuggling. [Doc. 25.] 

The Court concludes that the agents did not have a reasonable suspicion of alien

smuggling to justify the stop of the defendant's vehicle. However, the Court concludes the

cross-certification of the Border Patrol agents as Arizona peace officers provided these

agents with the authority to stop the defendant based on the suspected traffic infractions; and

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that authority existed regardless of whether the agents intended to issue a traffic citation.

Because there was a reasonable suspicion for the stop based on the traffic infractions, it is

recommended that the motion to suppress evidence be denied.

FACTUAL BACKGROUND

On June 5, 2017, a criminal complaint was filed against the defendant charging him

with the felony offense of being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). [Doc. 1.] The criminal complaint sets forth the following facts

that form the basis for this charge. On March 31, 2017, the defendant was driving a vehicle

that was stopped by law enforcement for traffic violations. When asked if any weapons were

in the vehicle, the defendant stated that he had a firearm, which belonged to him, hidden in

the center rear seat. Because the defendant had a prior felony conviction, he was prohibited

from possessing a firearm. Agents with the Bureau of Alcohol, Tobacco, and Firearms

(“ATF")” confirmed that this firearm traveled in interstate commerce. 

On January 3, 2018, a federal grand jury sitting in Tucson, Arizona returned an

Indictment against the defendant charging him with a violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2). [Doc. 3.] The defendant had his Initial Appearance on February 7, 2018, and

was temporarily detained pending his detention hearing and arraignment on February 9,

2018. At that hearing, the defendant was detained pending trial. 

On August 10, 2018, the defendant filed the instant motion to suppress evidence

obtained as a result of the traffic stop. As noted above, the defendant argues that Border

Patrol agents did not have a reasonable suspicion of alien smuggling to stop his vehicle. The

defendant also argues that the Border Patrol agents had no authority to stop the vehicle based

only on state traffic violations, and even if they had that authority, they lacked a reasonable

suspicion for a stop on that basis. The government argues that because the Border Patrol

agents involved in the traffic stop were cross-certified as Arizona peace officers, the agents

had the authority to stop the defendant based only on their reasonable suspicion of traffic

infractions. The government also argues that agents had a reasonable suspicion of alien

smuggling. 

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28 1

 Citation to “9/19/18 Tr.” followed by the page number is to the transcript of the

suppression hearing held on September 19, 2018. 

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An evidentiary hearing on the motion to suppress was held on September 19, 2018.

The government called two witnesses: retired Border Patrol Agent Peter Hermansen, Jr., and

Border Patrol Agent Christopher Bullock. The defense also called two witnesses: Jack Lane

and Martin Pesqueira. The testimony of these witnesses is set forth below.1

1. Peter Hermansen, Jr.

Mr. Hermansen testified as follows on direct examination. Mr. Hermansen is a retired

Border Patrol agent who currently works as a SETA (Science, Engineering, and Technical

Advisor) contractor under the assistant secretary of defense. (9/19/18 Tr. at 26.) He was

hired for his current position in June of 2017; he testified that he obtained that position

because of the work he did while in the Border Patrol. (Id.) He was a Border Patrol Agent

for 21 years prior to his retirement. (Id.)

Mr. Hermansen started his career as a reserve officer for the city of East Detroit,

Michigan. (Id. at 27.) He was in that position for three years and then joined the Border

Patrol. (Id.) During his career with the Border Patrol, he was stationed in El Paso, Texas;

Washington, D.C.; Douglas, Arizona; Casa Grande, Arizona; and Tucson, Arizona. (Id.) 

 In his time with the Border Patrol, he served with their national tactical team (BORTAC),

including being the director of that organization, as well as serving in Central and South

America. (Id.) 

When he retired from the Border Patrol, his title was Patrol Agent in Charge for the

Tucson Sector Intelligence Unit. (Id.) In that position, he ran the sector intelligence

program for the State of Arizona. Specifically, that unit gathered information and produced

intelligence for agents in the field to use in their patrol duties. (Id.) In terms of his

day-to-day duties, he had a leadership role which was probably five to six levels removed

from agents in the field. (Id.) Nevertheless, he still was involved with the day-to-day “boots

on the ground operations of the Border Patrol.” (Id. at 28.)

Mr. Hermansen's testimony then turned to the cross-certification of Border Patrol

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28 2 Mr. Hermansen testified that he did not request cross-certification for himself in the

March 1, 2017 letter, but he was cross-certified in Pima County, Pinal County, and Maricopa

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agents as state peace officers. (Id.) He explained that the Border Patrol obtains

cross-certifications for its agents with many sheriff's departments across the State of Arizona

so agents can work cases with state and county law enforcement. (Id.) He testified that the

Border Patrol does not seek cross-certifications in order to enforce state law per se. (Id.) He

explained that counties offered the Border Patrol “ticket books” to cite for violations of the

Arizona Revised Statutes, but the Border Patrol declined the offer. (Id.) Mr. Hermansen

testified that the cross-certification furthers the mission of the Border Patrol because agents

can work with state law enforcement generally as well as on task forces. (Id. at 29.) But he

emphasized that the Border Patrol's primary mission is “to defend the homeland.” (Id.) 

Mr. Hermansen was personally involved with the process of obtaining

cross-certification of Border Patrol agents. (Id.) Specifically, he would request the

cross-certification of agents assigned to task forces from sheriff's departments. (Id.) He

explained that his superiors restricted the cross-certification requests to agents “assigned to

task forces or agents in critical positions at stations that wanted to work and interact with

state, local agencies at the time.” (Id. at 30.) In terms of the cross-certification process, he

testified that he would complete a memorandum requesting cross-certification of certain

agents and submit it to the sheriff's department. (Id.) As part of that process, he would

ensure that the agents requested for cross-certification are federal peace officers that are in

good standing with the Border Patrol. (Id. at 31.) The sheriff would review the request and

then decide whether to authorize the cross-certification. (Id. at 30.) 

Mr. Hermansen testified that shortly before his retirement, he submitted a memo dated

March 1, 2017 to Sheriff Napier requesting cross-certification of sixty Border Patrol agents.

(Id. at 32-33; Def. Ex. 53.) That request for cross-certification included Agent Christopher

Bullock. (Id. at 33.) In a letter dated March 10, 2017, Sheriff Napier granted the request for

the cross-certification of these sixty Border Patrol agents pursuant to A.R.S. 13-3875. (Id.

at 34-35; Def. Ex. 53.) The cross-certification was effective for one year. (Def. Ex. 53.) 2

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County. (Id. at 35.) He explained that Border Patrol management felt that an individual

should not make the cross-certification determination for themselves. (Id.) So his superior(s)

would have submitted the cross-certification request. (Id.)

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Mr. Hermansen's testimony then turned to the traffic stop on March 31, 2017. (Id. at

36.) He testified that on that date, he was working as part of a Disrupt team that goes into

the community and looks for illegal activity based on “verbal reporting or intelligence-type

information.” (Id.) On or around March 31, 2017, Border Patrol received information from

the Tucson Police Department and the South Tucson Police Department about “a lot of

activity in those areas in relation to aliens and narcotics.” (Id.) He testified that Border

Patrol's authority to investigate alien and drug cases extends beyond the border and into

communities like South Tucson. (Id. at 37.) He explained that alien and drug activity

permeates into urban centers and, as a result, investigations by Border Patrol agents extend

into the Tucson area. (Id.) Mr. Hermansen testified that he and Agent Bullock wanted to

go into the South Tucson area in an unmarked vehicle before sending marked Border Patrol

units to the area because Border Patrol is often seen in a negative light by individuals in that

area. (Id. at 38.) He testified that the specific area they were looking at was the Santa Rita

Skate Park on Curtis and Euclid Streets. (Id. at 40.) 

On March 31, 2017, Mr. Hermansen and Agent Bullock were conducting surveillance

near the park. (Id. at 41.) They had arrived at the park around noon. (Id.) They were in an

unmarked Chevy Tahoe and Agent Bullock was driving. (Id. at 42.) Both agents were in

plainclothes, but Agent Bullock was wearing a Border Patrol vest and Mr. Hermansen had

on a jacket that said “CBP” with a badge on the front and “police” across the back. (Id. at

43.) He described the area around the park as a residential area, “people walking around,

stores, businesses on some of the roads, and vehicular traffic in the area as well.” (Id. at 41.)

 At about 1 p.m., Agent Bullock slowed the vehicle down “to take a look at some

subjects in the park and a vehicle approached from behind . . . and honked its horn and then

sped around us.” (Id.) He testified that the vehicle then slowed at a stop sign but

immediately sped across the intersection; “that piqued a concern . . . because it was either

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attempting to evade us or attempting to get out of the area.” (Id. at 43.) Agent Bullock sped

up and started following the vehicle in order to get the license plate. (Id. at 44.) After the

vehicle sped through the stop sign, the agents were able to get the license plate. They called

the plate number in to dispatch via the radio; the vehicle was a rental. (Id.) Agents

continued to follow the vehicle which went into a residential area; the vehicle was exceeding

the posted speed limit of twenty-five miles per hour and continued to roll through stop signs.

(Id. at 44-45.) The vehicle eventually did a quick U-turn at a T intersection at the end of the

street; the vehicle also made quick turns and rolled through stop signs, which he interpreted

as attempts to evade law enforcement. (Id. at 47.) He also noticed the subject in the vehicle

making suspicious furtive movements; movements behind, movements to the side, looking

like he was attempting to hide something. (Id. at 47.) Mr. Hermansen estimates that they

observed this erratic driving behavior for about three to five minutes. (Id. at 48.)

Mr. Hermansen testified that he and Agent Bullock had safety concerns based on the

driving behavior, given that they were in a residential area and there were people in the area.

(Id. at 45.) He testified that Border Patrol agents are still responsible for the safety of the

public even though they are federal officers tasked with enforcing federal immigration and

narcotics laws. (Id. at 45.) Based on these concerns, agents decided to stop the vehicle. (Id.

at 47.) Eventually, Agent Bullock activated the emergency lights on his vehicle. (Id. at

47-48). The driver of the vehicle did not immediately stop; he “continued to drive at a higher

speed going through stop signs.” (Id. at 49.) Agent Bullock had to pull along side the

vehicle, activate the siren, and roll down his window to instruct the driver to pull over to the

side of the road. (Id. at 49-50.) Ultimately, the driver pulled the vehicle over to the side of

the road. (Id. at 50.)

Once the vehicle stopped, Agent Bullock approached the vehicle to speak with the

driver, and Mr. Hermansen approached the passenger side of the vehicle. (Id. at 50.) Agents

noticed a small child in a car seat in the backseat of the vehicle. (Id. at 51.) The defendant

was the driver of the vehicle. Both the defendant and his passenger were very animated as

to why they were pulling them over. (Id. at 50.) The defendant was very nervous, and the

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passenger kept demanding to know why they were pulled over. (Id. at 51.) Agent Bullock

asked the defendant to exit the vehicle, and they went to the back of the vehicle. (Id. at 51.)

Agent Bullock advised Mr. Hermansen that there was a weapon in the vehicle. (Id. at 52.)

The defendant provided his consent for agents to search the vehicle. (Id.) Mr. Hermansen

searched the vehicle and found a firearm underneath the back seat where the child was

seated. (Id.) The firearm was a revolver which was loaded with ammunition. (Id. at 53.) 

The defendant told officers he had prior convictions and that he had drugs on him and in the

vehicle. (Id. at 53-54.) Agents found what they believed was heroin hidden in the defendant's

underwear and in the vehicle. Agents could not immediately determine if the defendant was

a convicted felon, although he admitted as much, so they told him that he would have to

come to the station so they could run a records check. (Id. at 54.) 

In response to the prosecutor's question about why the vehicle was stopped, Mr.

Hermansen testified that a stop was performed because of “the notoriety of the area, the

manner and travel of the vehicle, the furtive movements of the subject, and the record checks

coming back to it being a rental vehicle, which is very common in narcotics and alien

smuggling events.” (Id. at 60.) He further testified that it is common for alien and drug

smuggling subjects to disobey traffic laws. (Id. at 61.)

On cross-examination, Mr. Hermansen agreed that 8 CFR § 287.5 denotes the Border

Patrol's authority, which includes the authority to investigate and make immigration arrests,

as well as execute immigration warrants. (Id. at 63.) Mr. Hermansen conceded that this

code provision does not give Border Patrol agents authority to stop someone for a traffic

violation. (Id. at 63-64.) He also agreed that Border Patrol agents normally do not stop

individuals for traffic violations, and this stop did not occur on federal land. (Id. at 64.) 

With respect the cross-certification as an Arizona peace officer, Mr. Hermansen

agreed that he did not have a citation pad or a radar gun because that is not his job. (Id.)

And he had no intention of writing the defendant a ticket for speeding, blowing through a

stop sign, or making a U-turn. (Id.) In fact, Mr. Hermansen has never cited someone for a

traffic infraction while working as a Border Patrol agent. (Id. at 65.) 

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As to the safety concerns about the defendant's driving behavior, Mr. Hermansen

agreed that Agent Bullock pulled to the side of the road to let the defendant pass; that Agent

Bullock sped up to get behind the defendant's vehicle; that the defendant was driving about

40-45 miles per hour and Agent Bullock was driving faster than that through a residential

area to catch up to the defendant; and that the Chevy Tahoe that Agent Bullock was driving

is a big vehicle. (Id. at 65-66.) Mr. Hermansen testified that both the driver and passenger

“took a long look” (about five seconds) at him and Agent Bullock as they passed them. Mr.

Hermansen got a good look at the passenger who was an African-American female in her

30's and heavier set; he only got a glimpse of the driver. (Id. at 67-68.) Mr. Hermansen

reiterated that he and Agent Bullock thought it seemed out of the ordinary for the driver to

speed up after he passed them and looked at them, so they decided to follow the vehicle. (Id.

at 68.) Mr. Hermansen did not see anyone get into or out of the defendant's vehicle, and the

vehicle did not have Mexican plates. (Id. at 68, 70.) He also agreed that the defendant was

pulled over about a block from Tucson Auto Rentals, which is where the vehicle was

registered. (Id. at 70.) 

The testimony then turned to the cross-certification under A.R.S. 13-3875. Mr.

Hermansen agreed that certain steps are required for a federal agent to be cross-certified by

a sheriff. (Id. at 73.) Mr. Hermansen also agreed that the first step is that the federal agency

has to write a letter to the sheriff; the second step is that you have to submit evidence that the

federal agents are certified as federal peace officers; the third step is that the federal agency

has to submit evidence that the agents have been authorized under federal law to engage in

or supervise the prevention, detection, investigation, or prosecution of a violation of federal

law; and lastly, that the agent is authorized by federal law to make arrests, serve warrants,

and carry firearms. (Id. at 73-74.) Mr. Hermansen confirmed that the only information that

was sent to Sheriff Napier was the March 1, 2017 letter. (Id. at 74-75; Def. Ex. 53.) 

Defense counsel asked Mr. Hermansen whether he submitted any evidence that Agent

Bullock is authorized to make arrests, serve warrants, investigate violations of federal law,

or carry firearms; Mr. Hermansen testified that he only submitted the letter. 

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With respect to the initial encounter with the defendant, Mr. Hermansen testified that

Agent Bullock brought the vehicle to almost a complete stop at the time the defendant

honked the horn and passed the agents. (Id. at 76.) He does not know how fast the defendant

was going when he passed the agent's vehicle; he only heard an acceleration of the engine.

(Id.) 

Finally, Mr. Hermansen agreed that most undocumented individuals that he

encounters are generally identifiable as Hispanic. (Id. at 77.) He also agreed that most of

the undocumented aliens that he encounters are not African-American. (Id. at 78.) 

On re-direct examination, Mr. Hermansen explained that he encounters individuals

who are engaged in alien or drug smuggling who are not undocumented and/or Hispanic. 

(Id. at 78-79.) In fact, he has encountered African-American individuals engaging in those

crimes. (Id. at 79.) And these criminal violations are within the purview of the Border

Patrol. (Id. at 79.) 

Mr. Hermansen reiterated that he requested that Sheriff Napier cross-certify sixty

Border Patrol agents as Arizona peace officers. (Id. at 79-80.) He testified that in submitting

this letter, he was certifying that all of these agents were in compliance with A.R.S. 13-3875.

Mr. Hermansen acknowledged that Agent Bullock was speeding to catch up to the

defendant's vehicle. But he does not believe that Agent Bullock put the public at risk

because agents are trained to drive at speeds greater than normal. (Id. at 81-82.) He also

believes that their “duty to catch up to the vehicle and ascertain what was going on with that

vehicle was more important.” (Id. at 82.) He testified that the defendant put the public at

risk by his driving behavior. (Id.) 

2. Border Patrol Agent Christopher Bullock

Agent Christopher Bullock testified on direct examination as follows. Agent Bullock

is the Deputy Patrol Agent in Charge for the Border Patrol at the Tucson Sector Intelligence

Unit. (Id. at 87.) He has been in that position since November 2014. Agent Bullock has

been employed by the Border Patrol for twenty years. (Id. at 88.) He has also been stationed

in El Centro, California; Brownsville, Texas; and Imperial Beach, California. (Id.) 

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Agent Bullock is cross-certified as a Deputy Sheriff with the Pima County Sheriff's

Department. (Id. at 89.) That cross-certification was valid on March 31, 2017. (Id.) He

testified that the purpose of cross-certification was so that agents could work on task forces

with state law enforcement. (Id.) He testified that agents who are cross-certified are not

seeking to enforce violations of state law, but rather, the same type of offenses that Border

Patrol agents enforce in their federal capacity. (Id. at 89-90.) 

Agent Bullock's testimony then turned to information that he received in March 2017

about suspected alien and narcotics smuggling in South Tucson. (Id. at 90.) He described

Tucson and South Tucson as notorious staging locations for illegal aliens and narcotics to be

transferred to other locations in the United States. (Id.) As a result, Border Patrol agents

regularly investigate drug and illegal alien activity in these areas of Arizona. (Id. at 91.) 

Agent Bullock testified that he did not “have any specific information that led us

specifically” to the Santa Rita Skate Park on March 31, 2017. (Id.) Agent Bullock and Mr.

Hermansen were in the area of the skate park that day based on information that South

Tucson “was notorious for illegal activity and stash houses.” (Id. at 91-92.) 

On March 31, 2017, Agent Bullock was driving an unmarked Chevy Tahoe and

patrolling the area near the skate park along with Mr. Hermansen. (Id. at 92-93.) The

purpose was to “surveil the area” based on information that they got about illegal activity

in the Tucson area. (Id. at 92.) As they were driving slowly on a road adjacent to the park,

a vehicle approached from behind and the driver honked the horn. (Id. at 93.) Agent Bullock

pulled to the side of the road to allow the vehicle to pass. (Id.) He testified that the vehicle

passed “very slowly and the driver and passenger very obviously looked hard” at the agents

in an apparent attempt to identify who they were. (Id.) He further testified that immediately

after it passed them, it accelerated significantly at a speed higher than the posted speed limit

in this residential area. (Id.) Agent Bullock decided to follow the vehicle and “had to

exceed the speed limit in order to catch up to the vehicle in order to acquire the license plate

to run the tag through dispatch.” (Id. at 93-94.) As Agent Bullock got closer to the vehicle,

he observed the driver making furtive movements (e.g., “leaning over” and “looking in the

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mirror to see what we were doing”) and “then accelerat[ed] through stop signs without

stopping in an apparent attempt to evade.” (Id. at 94.) He also testified that “[t]here were

times where [the vehicle] came to intersections and made abrupt turns as if to have made the

decision to turn at the last moment prior to the turn.” (Id. at 94.) The vehicle also made an

unlawful U-turn at a high rate of speed. (Id. at 95.) Agent Bullock testified that the vehicle

was traveling at a speed that he considered reckless; he was concerned that the driver would

lose control of the vehicle and strike a pedestrian or another vehicle. (Id. at 95.) Agent

Bullock testified that there was not an excessive amount of people in front of the homes that

day, but there were people in the park and vehicle traffic in the area. (Id. at 96.) 

Agent Bullock testified that he decided to stop the vehicle because the defendant's

driving behavior was endangering the public. (Id. at 96-97.) Additionally, Agent Bullock

testified that the driver’s behavior was consistent with people who try to evade law

enforcement because they are engaged in illegal activity or there is something they want to

hide, like an outstanding warrant. (Id. at 97.) Agent Bullock testified that after the driver

performed the U-turn, he activated his vehicle’s emergency lights because he had decided

that the driving behavior needed to be stopped. (Id. at 97-98.) The driver did not

immediately stop his vehicle; “[h]e continued to drive erratically, running stop signs, making

abrupt turns.” (Id. at 98.) Agent Bullock continued to follow the vehicle with the emergency

lights on and eventually activated the siren. (Id. at 98.) Agent Bullock testified that it took

the driver “a long time to stop even after I turned on my siren.” (Id.) Agent Bullock

estimates that the entire encounter -- from the honk until the stop -- took “a matter of a few

minutes.” (Id. at 98.)

Once the vehicle stopped, Agent Bullock made contact with the driver, who was

identified as the defendant, as well as a front seat passenger and a toddler in the back seat.

(Id. at 98-99.) Both the defendant and the passenger were yelling out their open windows

that they were not doing anything wrong and questioned why they were stopped. (Id. at 99.)

The defendant appeared to be nervous -- he kept questioning why he was being stopped,

denied that he did anything wrong, and appeared to be hiding something between the seat and

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center console. (Id. at 99-100.) Agent Bullock was concerned that the defendant might have

been reaching for or hiding a weapon, so he asked the defendant to exit the vehicle. (Id. at

100.) The defendant complied and admitted that he had a firearm in the vehicle. (Id.) The

firearm was found under the rear seat cushion, under the toddler's seat. (Id.) Narcotics were

also found on the defendant and in the vehicle. (Id. at 101.) 

Agent Bullock reiterated that he stopped the defendant's vehicle because of the

“excessively reckless manner in which he was driving” and the risk that the driving behavior

would hurt someone. (Id. at 102.) Agent Bullock also testified that “[w]e were building

suspicion to stop the vehicle.” The defendant took a “hard look” at the agents when he passed

and Agent Bullock was wearing a law enforcement vest with a big yellow badge on it. (Id.

at 102.) Agent Bullock testified that he assumes that the defendant “was able to see that and

after seeing that, speeding off, it immediately made me suspicious that he may have been

doing something that he didn't want me to know about.” (Id.) 

On cross- examination, Agent Bullock agreed that 8 CFR § 287.5 (which enumerates

the powers of Border Patrol agents) does not give Border Patrol agents the authority to

exercise authority as a state peace officer. (Id. at 105.) Agent Bullock has never issued a

traffic citation or referred a case for prosecution based on a traffic infraction. (Id.) In the

case at hand, Agent Bullock did not call the Tucson Police Department or the Pima County

Sheriff's Department to come and issue a traffic citation. (Id. at 105-106.) Agent Bullock

testified that although he is cross-certified as a Pima County Deputy Sheriff, he is not

familiar with that department's policy on pursuits. (Id. at 106.) Agent Bullock agreed that

as a Border Patrol agent and as a cross-certified state peace officer, he is “required to radio

in or communicate, for example, location, speed, or direction of travel of an individual that

[he is] pursuing.” (Id. at 108.) Mr. Hermansen was responsible for radio communication

on March 31, 2017. (Id.) 

Agent Bullock confirmed that he did not activate his vehicle's emergency lights until

the defendant had committed several traffic infractions. (Id. at 111.) He agreed that the

Chevy Tahoe that he was driving sits higher up than the sedan that the defendant was driving.

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(Id.) He confirmed that after the defendant honked the horn, he pulled the Tahoe to the side

of the road. (Id. at 112.) Agent Bullock testified that he was driving slowly, maybe less than

the speed limit. (Id. at 113.) He brought his vehicle to a complete stop while the defendant

passed the Tahoe. (Id.) He testified that his window was partially open and the occupants

of the sedan looked at him when they passed; he cannot recall if the sedan’s windows were

open. (Id. at 114.) 

Agent Bullock confirmed that the defendant eventually stopped his vehicle after the

emergency lights were activated. (Id. at 116.) He reiterated that the entire incident took only

a few minutes. (Id. at 117.) Agent Bullock confirmed that the defendant’s vehicle was

registered to Tucson Auto Rental; but he was not aware that this company was located a few

blocks from where the traffic stop occurred. (Id. at 118.) He also confirmed that he did not

see anyone enter or exit the defendant’s vehicle, and the vehicle did not seem to be “riding

low.” (Id. at 118.) Agent Bullock conceded that his report does not indicate whether he told

the defendant the reason he was stopped; although it does reflect that he asked the defendant

if there were any illegal people, drugs, or weapons in the vehicle. (Id. at 119-120.) 

On re-direct examination, Agent Bullock testified that the purpose of

cross-certification is to be able to pursue state law violations; however, if state law violations

are pursued, they are still related to border crime (e.g., drugs and firearms violations). (Id.

at 121-122.) Agent Bullock also made clear that 8 CFR § 287.5 is not the only source of

authority for Border Patrol agents; there are other federal statutes that provide this authority.

(Id. at 122.) He testified that when Border Patrol agents are cross-certified, they are not

given any limitations on their ability to enforce state law. (Id.) He confirmed that he could

see in the defendant’s vehicle even though the Tahoe is higher off the ground than a sedan.

(Id. at 123.) Finally, while he does not recall if he told the defendant why he was being

stopped, his practice is “to first ask about immigration and take it from there.” (Id.)

3. Jack Lane

The defense called Jack Lane as the Custodian of Records for AZPOST. The defense

sought to admit an exhibit that reflected that AZ POST did not have records of Sheriff

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Napier’s cross-certification of Border Patrol agents on March 10, 2017. (Def. Ex. 68.)

Because the government objected to the relevancy of this document, it was agreed that

government counsel would question Mr. Lane first about his duties and the document at

issue. 

Mr. Lane spent over thirty-five years with the Arizona Department of Public Safety.

(Id. at 9-10.) He is currently the executive director for the Arizona Peace Officers Standards

and Training Board (“AZPOST”). (Id. at 8.) That organization is responsible for setting

standards for all Arizona peace officers that are certified under state statutes. (Id. at 8-9.)

Specifically, he testified that AZPOST has several functions: (1) setting minimum standards

for basic academy training and advanced training; (2) auditing of background investigations

for peace officers; and (3) handling officer misconduct cases. (Id. at 9.) The best analogy

he can draw is that his organization is “kind of the state bar for the police officers in

Arizona.” (Id. at 9.) 

Mr. Lane is familiar with the various regulations and Arizona state statutes that govern

the conduct of peace officers as well as organizations such as police departments and sheriff's

departments. (Id. at 9.) He explained that AZPOST does not have oversight over a law

enforcement agency's policies, but it has oversight over each individual peace officer's

certification in the state. 

Mr. Lane is familiar with Arizona Revised Statute 13-3875, which allows each county

sheriff to cross-certify federal peace officers as Arizona peace officers for a one-year term.

(Id. at 11; Gov. Ex. 3.) Mr. Lane explained the requirements for a federal peace officer to

become cross-certified by a sheriff's department. (Id. at 12.) A federal officer must have “at

least completed their law enforcement academy or training required for their federal job;” a

request for cross-certification is made to the sheriff and “then the sheriff handles that from

his end.” (Id. at 12.) Mr. Lane believes “the last requirement is just that [the sheriff] send

[AZPOST] notification of who they have cross-certified.” (Id.) Mr. Lane explained that

AZPOST has no involvement in cross-certifying federal officers other than maintaining the

records that are sent to AZPOST from the sheriff's department. (Id. at 13.) 

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Mr. Lane testified that AZPOST retains the physical letters from the sheriff's

department granting cross-certification, but it does not maintain any electronic database of

everyone who has ever been cross-certified. (Id.) The physical letters are purged after one

year because that is how long the cross-certification is allowed by statute. (Id.) Mr. Lane

testified that some sheriff's departments do not provide AZPOST with the cross-certification

letters. But he has never had a problem with the Pima County Sheriff's Department doing

so; they are probably one of the better agencies in that respect. (Id. at 14.)

Mr. Lane testified that, to his knowledge, if a sheriff fails to provide AZPOST with

notification of federal officers who have been cross-certified, that failure does not negate

those peace officers having cross-certification. (Id. at 15.) That portion of A.R.S. 13-3875

just deals with record-keeping, and had nothing to do with the cross-certification process

with the sheriff. (Id. at 15.) He testified that the sheriff has the sole authority to

cross-certify federal peace officers; AZPOST has no authority to confer or revoke such a

certification. (Id. at 15-16.)

Mr. Lane testified that he was served with a subpoena on September 17, 2018,

requesting records relating to the cross-certification of Border Patrol Agents Bullock and

Hermansen on March 10, 2017. (Id. at 16.) He testified that AZPOST did not have any

responsive records. (Id.) He explained that AZPOST most likely did not have any such

records because the March 10, 2017 cross-certification occurred over a year before the

request made in the subpoena. (Id. at 16-17.) The absence of documents does not suggest

that the cross-certification was not granted; rather, AZPOST “probably purged that record

after the one-year period.” (Id. at 17.) Mr. Lane testified that the sheriff could best handle

the question of whether cross-certification occurred. (Id.) 

On cross-examination, Mr. Lane confirmed that he prepared an affidavit in response

to the subpoena which represented that AZPOST did not have records associated with the

March 10, 2017 cross-certification by Sheriff Napier. (Id. at 17-18; Def. Ex. 68.) Mr. Lane

agreed with defense counsel that it is not easy to become a certified Arizona state peace

officer; there are certain standards that must be met, trainings to be completed, and

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certifications to be obtained. (Id. at 18-19.) Mr. Lane conceded that the process for a federal

agent to be cross-certified as an Arizona peace officer is easier; however, he pointed out that

he is not familiar with the requirements to become a federal agent. (Id. at 19-20.) And he

testified that any federal officer who applies for cross-certification also must have completed

all the federal requirements to become a peace officer. (Id. at 23.) 

In terms of record retention, Mr. Lane is not familiar with the specific record retention

law that allows AZPOST to purge cross-certification records after a year. (Id. at 21.) But

he is also not aware of any law that prevents AZPOST from purging these records after a

year. (Id. at 23.) He also has no idea why AZPOST is charged with maintaining the

cross-certification records given that it has no role in the cross-certification process. (Id. at

22.) 

4. Martin Pesqueira

Mr. Pesqueira has worked as a criminal investigator for the Federal Public Defender's

Office for the past three-and-a-half years. (Id. at 125.) Previously, he was a Tucson Police

Officer ("TPD") for over 25 years. (Id. at 126.) While employed by TPD, Mr. Pesqueira

spent the majority of his time patrolling the south side of Tucson. (Id. at 126.) 

With respect to the case at hand, Mr. Pesqueira went to the scene of the pursuit and

the traffic stop to try to determine the length of time to drive the entire route. (Id. at 127.)

In order to re-create the route traveled, he used the agent's reports provided by the

government and also spoke with the defendant. (Id. at 127-128.) He re-created the route

several times and ultimately filmed his final re-creation of the route. (Id. at 128.) He is

familiar with this area of town because he grew up in the area and patrolled the area while

with TPD. (Id. at 129-130.) 

Mr. Pesqueira testified about where he believes the agents first encountered the

defendant at the skate park, as well as the route to where the traffic stop occurred. (Id. at

142.) He testified that the speed limit in the area is twenty-five miles per hour. He further

testified that while traveling east bound, the defendant would have encountered stop signs

at three intersections prior to making a U-turn. (Id. at 143-146.) Mr. Pesqueira testified that

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there are no signs prohibiting U-turns at the T-intersection. (Id. at 145.) He testified that

Tucson Auto Rentals is about 120 yards from where the traffic stop occurred. (Id. at 146.)

Mr. Pesqueira then testified about the video of the route that he re-created. (Id. at

148.) He used vehicles similar in height to the subject vehicles to demonstrate whether the

defendant could see the clothes that the Border Patrol agents were wearing. (Id. at 148.) He

testified that the vehicle which was portraying the defendant's vehicle passed the would-be

Border Patrol vehicle at twenty-five miles per hour. (Id. at 153, 157.) The driver could only

see a man dressed in black in the would-be Border Patrol vehicle. The government pointed

out, and Mr. Pesqueria conceded, that Agent Bullock testified that the defendant passed his

vehicle slowly – it took about five seconds. (Id. at 155-156.) Mr. Pesqueira then described

the intersections that the defendant and the Border Patrol agents would have proceeded

through, as well as where the U-turn occurred. He testified that it would have been very

difficult for the defendant to "roll through the stop sign on Park Avenue" because traffic is

almost always heavy at that intersection. (Id. at 159.) He testified that he located the precise

location of the traffic stop because the GPS coordinates were specified in the Border Patrol

reports. (Id. at 160.) It took eight seconds to drive from the spot of the stop to Tucson Auto

Rentals. (Id.) He testified that his research revealed that Tucson Auto Rentals is a legitimate

business registered under the Department of State. (Id. at 161.) 

On cross-examination, Mr. Pesqueira agreed that it is a traffic infraction in Arizona

to proceed through a stop sign without coming to a complete stop. (Id. at 163.) He disputed

whether it is a traffic infraction to fail to use a turn signal when making a turn at an

intersection; he testified that traffic had to be affected for it to be a violation. (Id.) He agreed

that failure to stop at stop signs and making abrupt turns could be considered evasive driving

behavior. (Id. at 164.) He conceded that he did not know how fast the defendant was going

when he passed the Tahoe. (Id. at 165.) He also agreed that he does not know how fast

either vehicle was traveling while the defendant was being pursued by the agents. (Id. at

166.) Based on the video he created, he believes the length of the pursuit - - from the honk

to the stop - - took about three-and-a-half minutes. (Id. at 171.) 

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DISCUSSION

“The Fourth Amendment's prohibition against unreasonable searches and seizures

extends to the investigatory stop of a vehicle.” United States v. Sigmond-Ballesteros, 285

F.3d 1117, 1121 (9th Cir. 2002). The Fourth Amendment requires only reasonable suspicion

in the context of investigative traffic stops. United States v. Lopez-Soto, 205 F.3d 1101,

1105 (9th Cir. 2000). “‘Reasonable suspicion is formed by specific articulable facts which,

together with objective and reasonable inferences, form the basis for suspecting that the

particular person detained is engaged in criminal activity.’” Lopez-Soto, 205 F.3d at 1105.

 The reasonable-suspicion standard is not a particularly high threshold to reach.

Although a mere hunch is insufficient to justify a stop, the likelihood of

criminal activity need not rise to the level required for probable cause, and it

falls considerably short of satisfying a preponderance of the evidence standard.

 Reasonable suspicion is a commonsense, nontechnical conception that deals

with the factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act. 

United States v. Valdes-Vega, 738 F.3d 1074 (9th Cir. 2013) (internal quotations and

citations omitted). 

In reviewing a determination of reasonable suspicion, a court must look at the "totality

of the circumstances" surrounding the stop. Sigmond-Ballesteros, 285 F.3d at 1121;

Valdes-Vega, 738 F.3d at 1078. The approach "allows officers to draw on their own

experience and specialized training to make inferences from and deductions about the

cumulative information available to them that might well elude an untrained person."

Valdes-Vega, 738 F.3d at 1078. "It also precludes a ‘divide and conquer analysis’ because

even though the suspect's acts was perhaps innocent in itself . . . taken together, they may

warrant further investigation.” (Id.)

Officers on roving border patrols, like the one at issue here, may conduct “brief

investigatory stops” without violating the Fourth Amendment “if the officer’s action is

supported by reasonable suspicion to believe that criminal activity may be afoot.” United

States v. Arvizu, 534 U.S. 266, 273 (2002). However, “[a]s federal officers, Border Patrol

agents are limited to their statutory powers.” United States v. Juvenile Female, 566 F.3d

943, 948 (9th Cir. 2009); see Ortiz v. U.S. Border Patrol, 39 F. Supp.2d 1321, 1326 (D.N.M.

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1999) ("Border Patrol agents are not general law enforcement officers. Instead, . . . their

authority and duties are circumscribed by statute and limited in scope."); United States v.

Santa Maria, 15 F.3d 879, 881 (9th Cir. 1994) ("Section 1327(a)(3) only authorizes the

Border Patrol to have access to private lands, but not dwellings, for the purpose of patrolling

the border to prevent the illegal entry of aliens into the United States."); United States v.

Diamond, 471 F.2d 771, 773 (9th Cir. 1973) ("[C]ustoms agents are not general guardians

of the public peace, as are state and local police. Their powers . . . to search and arrest

persons are limited by statute."). "To hold otherwise would grant Border Patrol agents

unfettered discretion to investigate suspected violations of any and all cognizable criminal

laws[;] it would, in effect, give to the Border Patrol the general police power that the

Constitution reserves to the States." Juvenile Female, 566 F.3d at 948. 

Here, the Border Patrol agents clearly had the statutory authority to investigate alien

smuggling. However, as discussed below, the agents did not have a reasonable suspicion that

the defendant was engaged in alien smuggling. The more difficult issue is whether the

Border Patrol agents had the authority to conduct a stop based solely on state traffic

infractions when they had no intention of ever issuing a traffic citation. As discussed below,

the Court concludes that the agents had the authority to conduct a stop based on traffic

infractions because they were cross-certified as state law enforcement officers. The Court

also concludes that the stop was lawful based on the traffic infractions observed by the

agents, regardless of whether the agents intended to issue a citation. As such, the Court

recommends that the motion to suppress evidence be denied. 

A. There was no reasonable suspicion of alien smuggling.

In the context of Border Patrol stops, the factors to be considered in determining

whether "reasonable suspicion" exists to justify stopping a vehicle include: (1) the

characteristics of the area; (2) the proximity to the border; (3) usual patterns of traffic and the

time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver,

including attempts to evade officers; (6) appearance or behavior of passengers; (7) model and

appearance of the vehicle; and (8) officer experience. United States v. Garcia-Barron, 116

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F.3d 1305, 1307 (9th Cir. 1997). Not all of these factors must be present or highly probative

in every case to justify reasonable suspicion. United States v. Brignoni-Ponce, 422 U.S.

873, 885 (1975).

In the case at hand, the government argues that there was reasonable suspicion of alien

smuggling because Border Patrol agents had information of such activity at the park; the

defendant attempted to evade the agents; and the vehicle the defendant was driving was

rented from a company that regularly rents vehicles to alien smugglers. The defense points

out that this stop did not occur near the border, the agents did not have any specific

information about alien smuggling on the date in question, the agents did not see anyone

enter or exit the defendant's vehicle, and the rental company is a legitimate business catering

to low income individuals.

The Court concludes that the stop was based on a hunch and not on a reasonable

suspicion of alien smuggling. The traffic stop did not occur near the border or in an area

notorious for alien smuggling, the agents only had general information about undocumented

individuals at this park, and agents did not observe anyone enter or exit the vehicle or anyone

concealed in the vehicle. The only factor arguably weighing in the government's favor is the

defendant's purported attempts to elude law enforcement. But it is not even clear whether

the defendant actually knew that the agents were law enforcement. For these reasons, the

Court concludes that there was no reasonable suspicion for the stop based on alien

smuggling. 

B. The agents had the authority to perform a stop for traffic infractions and there

was a reasonable suspicion for the stop. 

As discussed above, Border Patrol agents do not have the unfettered discretion to

investigate suspected violations of any and all cognizable criminal laws. See Juvenile

Female, 566 F.3d at 948. Rather, Border Patrol agents are limited to their statutory powers.

(Id.) The government does not assert that there is any federal statutory authority for Border

Patrol agents to perform a vehicle stop for state traffic infractions. But the government

argues that the State of Arizona provided these specific Border Patrol agents with the

authority to perform such a stop when they cross-certified these agents under A.R.S.

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3

 Mr. Lane testified that AZPOST does not have a copy of Sheriff Napier’s March 10,

2017 letter as is required by ARS 13-3875(E). However, Mr. Lane also explained that the

absence of that letter does not mean that the Border Patrol agents were not cross-certified.

AZPOST is merely a document custodian and it is solely up to the sheriff to grant crosscertification. And he also testified that these cross-certification letters are purged after the

one-year cross-certification period expires, which, here, was on March 17, 2018 (six months

after the subpoena was issued to AZPOST). 

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13-3875. 

As set forth below, A.R.S. 13-3875 permits the sheriff of each county in Arizona to

cross-certify federal agents as peace officers who possess all the law enforcement powers as

state officers. A.R.S. 13-3875 provides as follows: 

A. The sheriff of each county shall develop and adopt a policy on

cross-certification of federal peace officers, including whether

cross-certification shall be permitted in that county. 

B. A federal peace officer who is employed by an agency of the United

States and who has completed the basic training curriculum for the officer's

agency shall possess and exercise all law enforcement powers of peace officers

in this state for one year, including, if directed by the officer's employer, the

capability to enforce the criminal laws of this state if the federal peace officer:

1. Submits to the sheriff a written request for certification as a peace

officer in this state. 

2. Submits evidence that the officer has been certified as a federal

peace officer, is authorized by federal law to engage in or supervise the

prevention, detection, investigation or prosecution of a violation of 

federal law and is authorized by federal law to make arrests, serve warrants 

and carry firearms. 

C. Each federal peace officer who requests cross-certification may submit

to the sheriff a written request for certification as a peace officer in this state

pursuant to subsection B. The cross-certification remains in effect for one year

from the date on which the certification was authorized by the sheriff. 

D. Neither the state nor any political subdivision is liable for any acts or

failure to act by a federal peace officer. 

E. The Arizona peace officer standards and training board shall maintain

records of all federal peace officers who are certified as peace officers in this

state.3

A.R.S. 13-3875.

In the case at hand, Border Patrol Agent Hermansen sent a letter dated March 1, 2017

to Pima County Sheriff Napier requesting the cross-certification of sixty Border Patrol

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4

 A similar conclusion was reached in Evans v. Solomon, 681 F. Supp.2d 233

(E.D.N.Y. 2010). In that case, the defendant argued that the U.S. Park Police had no

authority to stop him, search him, and issue traffic citations on a New York City street.

Evans, 681 F. Supp.2d at 241. The court found that New York state law expressly provided

the U.S. Park Police (and other federal agencies) with the powers of state peace officers,

including the authority to stop a motorist for a traffic infraction and issue a citation. (Id. at

241-242.)

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agents. (Def. Ex. 53 at Bates #58-60.) In a letter dated March 10, 2017, Sheriff Napier

granted the request and cross-certified the listed Border Patrol agents as Arizona Peace

Officers. (Def. Ex.53 at Bates #57.) The cross-certification was effective for one year from

the date of Sheriff Napier's letter. Agent Bullock was one of those agents cross-certified and

that cross-certification was effective on March 31, 2017, the date of the traffic stop. (Id.) 

At first blush, it appears odd that a state could enlarge the powers of a federal agent

and/or agency. However, the defense has not cited to, and this Court has not found, any

authority to support an argument that the Constitution or any federal law expressly prohibits

states from sharing their authority with federal agents. In fact, the lawfulness of a state

sharing its authority with federal agents is supported by the limited case law addressing this

issue. 

In United States v. Samuels, 2004 WL 2823079 (S.D.N.Y. 2004), agents with the

Drug Enforcement Administration ("DEA") stopped the defendant for a traffic infraction and

found marijuana in the trunk of the vehicle. Samuels, 2004 WL 2823079, at *1-2. The

defendant moved to suppress this evidence arguing that New York law does not authorize

DEA agents to make warrantless arrests for traffic violations. (Id. at *2.) The court denied

the motion to suppress because New York law provided DEA agents the power to act as

peace officers, which included the power to make warrantless arrests for traffic infractions.

(Id. at *3.) The court noted that New York law expressly granted twenty-two types of federal

law enforcement officials the power to make arrests based on state law. (Id). Thus, the court

concluded that the traffic stop did not violate the Fourth Amendment because the DEA agent

had the authority under state law to stop the defendant's vehicle for a traffic infraction. (Id.)4

Samuels is obviously very similar to the case at hand. To be sure, unlike in Samuels,

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Arizona law does not expressly grant federal law enforcement agencies with the power of

state peace officers. However, Arizona law does provide a mechanism for local sheriffs to

grant state peace officer status to federal agents, specifically, A.R.S. 13-3875. Pursuant to

this state statute, Sheriff Napier bestowed peace officer status on Border Patrol Agent

Bullock three weeks prior to the traffic stop. As a result, Agent Bullock had the authority

under Arizona state law to stop the defendant for a traffic infraction. 

The defense argues that Sheriff Napier's grant of peace officer status to the Border

Patrol agents was deficient because the Border Patrol did not fully comply with A.R.S.

13-3875 by proving that the agents: (1) completed the basic training curriculum for the

officers' agency; (2) have been certified as federal peace officers and are authorized by

federal law to engage in or supervise the prevention, detection, investigation or prosecution

of a violation of federal law; and (3) are authorized by federal law to make arrests, serve

warrants and carry firearms. The defense has not demonstrated that the Border Patrol and/or

Sheriff Napier failed to comply with A.R.S. 13-3875. For instance, the defense did not offer

evidence that the Border Patrol agents lacked the federal law enforcement powers which are

prerequisites to cross-certification under A.R.S. 13-3875. Nor did the defense present

evidence from the Pima County Sheriff's Department that would show that the

cross-certification was defective under state law. Moreover, even if the cross-certification

was somehow defective under state law, suppression would not be warranted because the

Border Patrol agents relied in good faith on the validity of the cross-certification under ARS

13-3875; thus, the agents reasonably believed that they possessed all the powers of state

peace officers, including the power to stop a vehicle for traffic infractions. See Illinois v.

Krull, 480 U.S. 340, 349-350 (1987) (exclusionary rule does not apply when there is good

faith reliance on a state statute later declared unconstitutional). 

Additionally, contrary to the defense's contention, the fact that Agent Bullock never

intended to exercise his authority under state law and issue a citation for a traffic infraction

does not mean that the stop was unlawful, provided there was a legal basis for the stop. See

Whren v. United States, 517 U.S. 806, 813 (1996) (the constitutional reasonableness of

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traffic stops does not depend on the actual motivations of the individual officers involved).

The Ninth Circuit has held that Whren requires that "the officers have reasonable suspicion

to stop a driver for traffic infractions, not that the officers issue citations." United States v.

Willis, 431 F.3d 709, 717 (9th Cir. 2005). "Indeed, in Whren, the plainclothes officer who

stopped the defendant for a traffic infraction testified that ‘he did not intend to issue a ticket

to the driver for stopping too long at the stop sign, but he wished to stop the [vehicle] to

inquire why it was obstructing traffic and why it sped off without signaling in a school area.'"

Willis, 431 F.3d at 717 n. 8 (quoting United States v. Whren, 53 F.3d 371, 373 (D.C. Cir.

1995), aff'd 517 U.S. 806 (1996)). Thus, the fact that the agents never intended to issue a

traffic citation to the defendant does not, in itself, render the stop unlawful. 

The defense also argues that Whren leaves the door open for a court to invalidate

reasonable searches and seizures when there is extraordinary evidence of pretext. [Doc. 43

at 3.] The defense seizes on the Supreme Court's comment in Whren that the facts of that

case made it a "run-of-the-mine case," which presupposes that there is some set of cases

where a search and seizure cannot be justified on reasonable suspicion. However, the Ninth

Circuit has rejected that argument for two reasons. See United States v. Ibarra, 345 F.3d 711

(9th Cir. 2003). First, Whren foreclosed the possibility that a search or seizure may be

invalidated solely because of the subjective intentions of the officer. Ibarra, 345 F.3d at

714. Second, "the only set of cases the Supreme Court identified in Whren where probable

cause alone did not justify a search or seizure were those cases where ‘search or seizures

[were] conducted in an extraordinary manner, usually harmful to an individual's privacy or

even physical interests - such as, for example, seizure by means of deadly force,

unannounced entry into a home, entry into a home without a warrant, or physical penetration

of the body.'" (Id. at 715) (quoting Whren, 517 U.S. at 818.). Therefore, “it was this

category of cases to which the Supreme Court referred to as not ‘run-of-the-mine.’” (Id.) 

In the case at hand, the traffic stop was not conducted in "an extraordinary manner."

Indeed, the stop was akin to the pre-textual traffic stop in Whren. As such, the Court rejects

the defense argument that his is not a "run-of-the-mine" case. Thus, if the traffic stop was

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lawful, then evidence obtained as a result of that stop (i.e., the gun) is admissible in this

federal prosecution regardless of whether the agents intended to issue a traffic citation. 

Agent Bullock obviously needed to have a reasonable suspicion of a traffic infraction

in order for the stop to be lawful under the Fourth Amendment. The Court finds that the

credible and unrefuted testimony of Agent Bullock and Mr. Hermansen establishes a

reasonable suspicion of several traffic infractions, specifically, speeding and failure to

completely stop at stop signs. Because this traffic stop was lawful under the Fourth

Amendment, the evidence obtained as a result of that stop is admissible. Accordingly, it is

recommended that the motion to suppress evidence be denied. 

 Pursuant to 28 U.S.C. § 636(b) and Rule 59(b)(2) of the Federal Rules of Criminal

Procedure, any party may serve and file written objections within fourteen (14) days after

being served with a copy of this Report and Recommendation. No reply shall be filed unless

leave is granted from the District Court. If objections are filed, the parties should use the

following case number: CR 18-00032-TUC-JAS.

Failure to file timely objections to any factual or legal determination of the Magistrate

Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review. 

DATED this 5th day of October, 2018.

 

 

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