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ELIZABETH A. STRANGE

First Assistant United States Attorney 

District of Arizona 

ANNA R. WRIGHT 

Colorado State Bar No. 41722 

NATHANIEL J. WALTERS 

Arizona State Bar No. 029708 

Assistant United States Attorneys 

United States Courthouse 

405 W. Congress, Suite 4800 

Tucson, Arizona 85701 

Telephone: 520-620-7300 

Email: anna.wright@usdoj.gov nathaniel.walters@usdoj.gov Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 vs. 

Scott Daniel Warren, 

 Defendant.

CR-18-00223-001-TUC-RCC (BPV) 

GOVERNMENT’S RESPONSE TO 

DEFENDANT’S OBJECTIONS TO THE 

REPORT & RECOMMENDATION 

The United States of America, by and through its undersigned attorneys, hereby

responds to the defendant’s Objection to Report and Recommendation. Doc. 120. On 

August 7, 2018, the Honorable Bernardo P. Velasco, United States Magistrate Judge, 

issued a Report and Recommendation recommending denial of the defendant’s Motion to 

Suppress Evidence Found as a Result of Illegal Search (Doc. 53). Doc. 110. For the 

reasons discussed below, the Government respectfully requests that the Court adopt the 

Report and Recommendation in full.1

 

1 The government incorporates by reference the arguments made in its responses to the 

motions and at oral argument on June 14, 2018 and July 13, 2018. See Docs. 83, 102; 

see also LRCiv 7.1(d)(2) (incorporated by reference by LRCrim 47.1) (permitting 

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I. Background 

a. Procedural Posture 

The Government charged the defendant by complaint on January 18, 2018, with 

harboring two illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). Doc. 1. On 

February 14, 2018, a grand jury charged the defendant in a three-count Indictment with 

conspiracy to transport or harbor illegal aliens in violation of 8 U.S.C. §§ 

1324(a)(1)(A)(v)(I), (a)(1)(A)(ii), and (a)(1)(A)(iii) (Count One), and harboring illegal 

aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) (Counts Two and Three). Doc. 26. Video 

depositions of the illegal aliens took place on March 7, 2018. Doc. 32. 

On April 19, 2018, the defendant filed a Motion to Suppress Evidence Found as a 

Result of Illegal Search. Doc. 53. The Government filed its Response on May 3, 2018. Doc. 

63. The Court held Part I of a suppression hearing on June 14, 2018, Doc. 83, and Part II 

on July 13, 2018. Doc. 102. In Part I, the defendant presented the testimony of Dr. Carol 

Johnson and the defendant, while the Government called United States Border Patrol Agent 

John Marquez. Doc. 83. In Part II, the defendant continued his cross-examination of Agent 

Marquez, and the Government called Border Patrol Agent Brendan Burns. Doc. 102. The 

parties then presented oral arguments on the motion. Id. At the close of argument, 

Magistrate Judge Velasco took the motions under advisement, and the Report and 

Recommendation recommending denial of the defendant’s motion issued on August 7, 

2018. Docs. 102, 110. 

 

incorporation by reference of “a previous pleading, motion or minute entry.”). 

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Trial is currently set to begin on November 14, 2018. Doc. 117. 

b. Summary of Testimony 

On January 17, 2018, Agents Marquez and Burns established surveillance on the 

Barn. TR 6/14 at 87:9-16. Before the agents established surveillance, local residents

complained to law enforcement agents of finding paraphernalia associated with illegal 

activity, such as black water jugs and carpet booties, in the immediate vicinity of the Barn. 

TR 7/13 at 43:17-46:6. Before the agents established surveillance, they also determined 

that the Barn was owned by Dr. Carol Johnson and listed as uninhabitable. TR 6/14 at 

87:15-21. 

At some point after establishing surveillance on January 17, the agents observed the 

defendant and two men standing outside the Barn. TR 6/14 at 89:8-10. They appeared to 

be engaging in conversation. Id. at 90:18-21. Although the agents could not hear the 

conversation between the defendant and the two men, it seemed to the agents that the 

defendant was giving the two men directions on how to travel further north into the United 

States. Id. at 90:18-91:6. Specifically, the agents saw the defendant pointing out landmarks 

to the north commonly used by illegal aliens to avoid a Border Patrol checkpoint and 

navigate north to a major highway. Id. at 90:18-91:6; 103:1-21; TR 7/13 at 55:9-56:15. 

Agent Marquez testified that the two men wore “ill-fitting clothing,” they “appeared to be 

extremely anxious and nervous, they looked out of place, they were at heightened alert,” 

and they were constantly looking around the area. TR 6/14 at 90:15-17. Based on their 

observations, the agents believed that the two men were illegal aliens. Id. at 90:11-17. 

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Shortly after seeing the defendant give northbound directions to the two suspected 

illegal aliens, the agents approached the Barn. Id. at 92:8-11. As Agents Marquez and 

Burns approached the Barn, which is on a large lot near open desert, Agent Burns made 

contact with the defendant in the driveway of the property. TR 6/14 at 86:19-87:8; TR 7/13 

at 64:7-11. Agent Burns informed the defendant that he was there to investigate illegal 

alien activity on the property. TR 7/13 at 65:12-13. Agent Burns asked the defendant if he 

was the owner of the property, a question the defendant refused to answer. Id. at 65:17-19. 

Agent Burns then advised the defendant he was going to approach the Barn to speak with 

the owner. Id. at 66:1-3. The defendant responded to Agent Burns by stating he would 

follow him to the Barn. TR 6/14 at 48:11-12; 66:3-4. 

While Agent Burns spoke with the defendant, Agent Marquez continued towards 

the Barn along a well-worn path to a door later identified as the main entrance to the Barn.

Id. at 93:5-6. As he approached the Barn and while still on the path, he saw one of the men 

he previously saw with the defendant, later identified as Kristian Perez-Villanueva, through 

a window on the north side of the Barn. Id. at 93:17-96:24. Through the window, Agent 

Marquez observed Perez-Villanueva fleeing to the south side of the property through the 

structure. Id. at 96:15-17. Agent Marquez pursued Perez-Villanueva to the east side of the 

property as he believed Perez-Villanueva was attempting to escape. Id. at 97:7-11. When 

Agent Marquez arrived at the east side of the property he saw and heard a door slam shut. 

Id. at 97:17-21. Agent Marquez then knocked on the door and announced himself as a 

United States Border Patrol Agent. Id. at 98:8-9. Agent Marquez then asked PerezCase 4:18-cr-00223-RCC-BPV Document 121 Filed 09/04/18 Page 4 of 13
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Villanueva to open the door, and instructed Perez-Villanueva to show him his hands and 

sit down, which Perez-Villanueva did. Id. at 98:14-23. 

Within seconds, Agent Burns and the defendant also came around the corner of the 

Barn and saw Perez-Villanueva sitting in the open doorway. TR 7/13 at 69:3-15. Agent 

Burns then determined that Perez-Villanueva was an alien illegally present in the United 

States. Id. at 70:4-6. Agents then arrested Perez-Villanueva and the defendant. TR 6/14 at 

100:17-19. 

After Perez-Villanueva’s and the defendant’s arrests, Agent Burns entered the Barn 

and located the second man previously seen with the defendant, later identified as Jose 

Arnaldo Sacaria-Godoy, hiding in the shower. TR 7/13 at 73:3. Agents later determined 

that he also was an alien illegally present in the United States and arrested him. Id. at 74:1-

2. 

Based on these events, the defendant was charged by complaint on January 18, 

2018. Doc. 1. During later evidentiary hearings, the defendant presented testimony 

regarding his activities at and knowledge of the Barn. Specifically, on June 14, 2018, at an 

evidentiary hearing regarding the instant motion, Dr. Carol Johnson testified that she 

purchased the Barn approximately ten years ago, and that the defendant was “the liaison 

person that makes sure that all the rules are obeyed, stays – just supervises especially the 

young people who are using the Barn for me.” TR 6/14 at 7:9-10, 8:1-4. She also testified 

that the defendant sometimes spends the night, performs maintenance, pays the electric 

bill, and has permission to allow or exclude people from the property. Id. at 8:19-21; 9:8-

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9; 9:18; 9:20-10:1. The defendant testified that Johnson shows him the electric bill and he 

pays out of his pocket, but he expects to be reimbursed. Id. at 37:19-25, 66:18-21. 

At that same hearing, the defendant testified that he did not live at the Barn and that 

his primary residence is in the “town center” of Ajo, Arizona. Id. 6/14 at 62:20-23. The 

defendant testified that in his role at the Barn as a liaison, he would welcome groups of 

volunteers to the Barn, and those volunteers would sometimes stay at the Barn for weeks. 

Id. at 32:17-21, 34:5-7. He further testified that even though he was aware of and had 

access to various locks for the property, he had never locked the gate to the property. Id.

at 33:14-21, 34:21-23. Dr. Johnson testified that the door to the bathroom is never locked, 

but that the door to the living quarters “are kept locked whenever there is not someone 

there.” 

The defendant also testified that, on average, he spends about 40 hours a week at 

the Barn, and he spends much of that time “cleaning and organizing and taking care of the 

space and making sure it’s running properly.” 2

 Id. 6/14 at 36:18-22, 38:21-23. He also 

testified that he sometimes spends the night at the Barn in order to “organize and feed” the 

groups of volunteers that use the Barn, and that he did not sleep at the Barn in the two or 

 

2 Contrary to the defendant’s claims, he previously testified that on the date of his arrest, 

he did not know the Barn’s address and had never known the Barn to have an address. 

See TR 6/13 at 70:9-15; TR 5/11 at 56:23-57:4. In addition, the defendant also previously 

testified that he was not was not “generally familiar” with the contents of the sheds on 

the property and could not say whether certain photographs were accurate depictions of 

the Barn because “The Barn is constantly changing with different groups that organize it 

in different ways for their purposes.” TR 74:20-25, 77:8-17. 

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three days prior to his arrest. Id. at 36:23-37:16, 40:4-9, 63:17-23. The defendant further 

testified that he keeps some personal property at the Barn; however, anyone who has access 

to the Barn could have access to his personal property because he does not lock it away or 

place it in a safe. Id. at 37:6-16, 40:25-41:3, 81:2-6, 81:24-82:3. 

II. Discussion 

a. The defendant does not have standing to challenge any constitutional 

violation at the Barn. 

The defendant “has no expectation of privacy and no standing to challenge the 

warrantless entry into” the Barn. Doc. 110 at 7:25-26. To establish standing to seek 

suppression of unlawfully seized evidence, the defendant is required to demonstrate that 

he had a legitimate expectation of privacy in the place searched at the time of the search. 

Minnesota v. Olson, 495 U.S. 91, 95-96 (1990); Rakas v. Illinois, 439 U.S. 128, 143 & n.12 

(1978); Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); see also United States v. Padilla, 

508 U.S. 77, 82 (1993). A defendant has a legitimate expectation of privacy if (1) he has a 

subjective expectation of privacy, and (2) society is prepared to recognize that expectation 

as reasonable. See Smith v. Maryland, 442 U.S. 735, 740 (1979) (citing Katz v. United 

States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). Whether an expectation of 

privacy is reasonable depends on the totality of the circumstances, see Rawlings, 448 U.S. 

at 104, and receives more weight than the defendant’s subjective expectation of privacy, 

see Hudson v. Palmer, 468 U.S. 517, 525 n.7 (1984).

In this case, as noted by Magistrate Judge Velasco, the totality of the circumstances 

makes clear that the defendant is merely a caretaker at the Barn who must share his “most 

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private space” at the property “with any humanitarian that wants clothing for 

undocumented migrants.” T/R 6/14 at 7:3-26. The evidence demonstrates that the Barn is 

not a home, that the defendant’s residence is elsewhere in the small town of Ajo, and that

his role at the Barn is to supervise the groups of volunteers who pass through and to protect 

the interests of the actual owner of the property. The defendant is not the owner, tenant or 

occupant of the Barn. See Doc. 110 at 7:13-19. Rather, he was a guest and agent with 

limited authority from the owner who shared the space with visiting groups of volunteers 

and illegal aliens. Doc. 110 at 7:13-19.This is insufficient to establish an expectation of 

privacy that society is prepared to recognize as reasonable. 

That the defendant does not have standing in this case is supported by the Ninth 

Circuit’s analysis of similar facts in United States v. $40,955.00 in U.S. Currency, 554 F.3d 

752 (9th Cir. 2009). In that case, the Ninth Circuit held that, although an adult daughter 

had a key and free access to her parent’s house where she kept some personal property, she 

did not have standing to challenge the search of her parents’ home because she did not own 

the home or live there at the time of the search. Id. at 757-58. Like the adult daughter in

$40,955.00 in U.S. Currency, the defendant did not live at or own the Barn, and although 

he stored some personal items there, the storage alone does not confer a Fourth Amendment 

interest in the area searched. See id.; see also United States v. Reyes-Bosque, 463 

F.Supp.2d 1138 (S.D. Cal. 2006) (even though the stash house/apartment was “technically 

a residence” the defendant did not have standing to challenge its search because he was 

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merely a caretaker, and that his use of the stash house “was purely commercial in nature” 

and “he was supervising the merchandise.”).

The holding in United States v. Byrd, 138 S.Ct. 1518 (2018), does not require a 

different result. In Byrd, the Supreme Court held only that “the mere fact that a driver in 

lawful possession or control of a rental car is not listed on the rental agreement will not 

defeat his or her otherwise reasonable expectation of privacy.” 138 S.Ct. at 1531. As the 

Court noted, the right to exclude is but one factor in the totality of circumstances to 

determine whether a person has a reasonable expectation of privacy, and the right to 

exclude does not equate to an expectation of privacy. For example, a gas station attendant 

may exclude unruly people from the gas station; the person collecting tickets at a sporting 

event may exclude someone from the stadium without a ticket; and a hospital patient may 

exclude someone from her room, but none of those individuals would have an expectation 

of privacy in the location to which they hold the authority to exclude. See Doc. 110 at 

7:20-23. In this case, although the defendant may have had some authority to exclude, 

other factors demonstrate the defendant did not have an expectation of privacy. 

As discussed above, the totality of the circumstances demonstrates that the 

defendant was a mere caretaker of the Barn and, as such, did not have a reasonable 

expectation of privacy in the Barn during the events of January 17. Accordingly, the Report 

and Recommendation should be adopted regarding this issue. 

/// 

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b. No Fourth Amendment violation occurred during the events at the Barn 

on January 17, 2018. 

Even if the defendant did has standing, the agents’ actions on January 17 were 

lawful. The agents were not required to obtain a warrant to enter the property or to search 

the Barn, because while they were engaged in a knock-and-talk, exigent circumstances and 

probable cause to believe that a crime was occurring arose such that the agents were 

justified in entering the Barn to locate Perez-Villanueva and Sacaria-Godoy. 

As an initial matter, “no Fourth Amendment violation occurs when an officer, 

without a warrant, crosses the curtilage to knock on the front door to ask questions of the 

resident.” United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001); see also United 

States v. Lundin, 817 F.3d 1151, 1160 (2016); United States v. Perea-Rey, 680 F.3d 1179, 

1187 (9th Cir. 2012). In this case, the agents acted as any member of the public would by 

passing through the open gate and walking toward the Barn. See TR 6/14 at 93:17-96:24. 

Second, exigent circumstances and probable cause to search arose almost 

immediately and while the agents’ were still in areas open to members of the public.

Specifically, while walking on a path that led towards the Barn, Agent Marquez saw PerezVillanueva run away from him towards the south side of the Barn. Id. at 93:17-96:24. When 

Perez-Villanueva bolted for the rear of the house, this created an exigent circumstance 

because agents were compelled to give chase and secure Perez-Villanueva before he had 

an opportunity to escape into the open desert or the residential neighborhoods adjacent to 

the Barn. See Randolph, 126 S.Ct. at 1525; Struckman, 603 F.3d at 743. In addition, based 

on the agents’ prior knowledge of the Barn, their observations while conducting 

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surveillance that day, and Perez-Villanueva’s flight, the agents also had probable cause to 

believe that a crime was being committed in the Barn. See District of Columbia v. Wesby, 

138 S.Ct. 577, 587 (2018) (citing Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) 

(unprovoked flight upon noticing the police is certainly suggestive of wrongdoing and can 

be treated as suspicious behavior that factors into the totality of circumstances); Sibron v. 

New York, 392 U.S. 40, 66 (1968) (“deliberately furtive actions and flight at the approach 

of...law officers are strong indicia of mens rea.”); see also United States v. Struckman, 603 

F.3d 731, 739-40 (9th Cir. 2010). 

Nevertheless, the defendant argues that, because there were several agents on site, 

Perez-Villanueva’s escape was unlikely and did not create exigent circumstances. Doc. 120 

at 9:16-10:13. The defendant’s argument is contrary to the holding in United States v. 

Ojeda, 276 F.3d 486, 487 (9th Cir. 2002). In Ojeda, the Ninth Circuit found no Fourth 

Amendment violation when agents entered a garage without a warrant to prevent the escape 

of additional suspects in the garage, even though multiple officers were present for the 

execution of another warrant on a residence at the same property. Id. at 488-89. 

The defendant’s argument that no exigency existed because agents could have 

obtained a warrant is similarly without merit. Relying on United States v. Manfredi, 722 

F.2d 519 (9th Cir. 1983), the defendant argues that no exigent circumstances existed 

because the government could have “easily guarded the building with the migrant inside 

while they obtained a warrant.” Doc. 120 at 10. However, this argument is contrary to the 

undisputed testimony of Agents Marquez and Burns. Agent Marquez testified that a 

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significant amount of area around the Barn is open desert. TR 6/14 at 86:19-87:8. If PerezVillanueva had escaped the Barn, it would have been difficult for the agents to track him 

in the desert. More importantly, Agent Marquez also testified about the residential 

neighborhoods adjacent to the Barn, which presented a dangerous situation were PerezVillanueva to attempt to enter one of the residences to elude capture. Id. Finally, Agent 

Burns testified that the agents approached the Barn at approximately 5:35 p.m.. and that he 

was concerned that it would be dark soon. TR 7/13 at 54:15-24, 58:25-59:1, 61:18-24. As 

Agent Marquez testified, he had concerns about any illegal aliens running into the 

surrounding desert, because “It’s just easier for people to escape from us in the dark.” Id.

at 58:25-59:1. Based on these factors, immediate action to prevent Perez-Villanueva’s 

escape was imperative. 

Third, the agents’ entry into the Barn’s bathroom to locate Sacaria-Godoy was a 

search incident to arrest and a reasonable protective sweep. In this case, agents searched 

and found Sacaria-Godoy in the bathroom, which immediately adjoined the area of PerezVillanueva’s arrest. See United States v. Lemus, 582 F.3d 958, 962-64 (9th Cir. 2009); see 

also United States v. Murphy, 516 F.3d 1117, 1120-21 (9th Cir. 2008) (protective sweep 

of storage unit valid because storage unit renter, who had outstanding arrest warrant, 

unaccounted for at time of arrest), abrogated on other grounds by Fernandez v. Cal., 134 

S. Ct. 1126, 1134 (2014). In addition, agents had reason to fear for their safety because 

they knew there was at least one more person hiding in the Barn. See Maryland v. Buie, 

494 U.S. 325, 335 (1990). 

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Based on the totality of the circumstances, the Court correctly found that the exigent 

circumstance of escape coupled with probable cause allowed entry into the Barn. The later 

search to locate Sacaria-Godoy was a search incident to arrest and a reasonable protective 

sweep. Accordingly, the Report and Recommendation should be adopted regarding these 

issues. 

III. Conclusion 

For the reasons discussed above, the defendant’s Motions to Suppress Evidence 

Found as a Result of Illegal Search is meritless. Accordingly, the Government respectfully 

requests that the Court adopt the Report and Recommendation in full. 

Respectfully submitted this 4th day of September 2018. 

 ELIZABETH A. STRANGE

First Assistant United States Attorney 

 District of Arizona 

 /s/ Anna R. Wright

 ANNA R. WRIGHT 

 Assistant U.S. Attorney 

 /s/ Nathaniel J. Walters

 NATHANIEL J. WALTERS 

 Assistant U.S. Attorney 

Copy of the foregoing served electronically or by 

other means this 4th day of September 2018, to: 

All ECF participants 

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