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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Ernesto Alonso Ayala-Garcia, 

Defendant. 

No. CR-18-00298-001-TUC-RM (DTF)

ORDER 

 Pending before the Court is Defendant’s Motion to Suppress (Doc. 35) and 

Magistrate Judge D. Thomas Ferraro’s Report and Recommendation (Doc. 73), in which 

he recommends that the Court grant in part and deny in part the Motion.1

 Judge Ferraro 

held three days of hearings on the Motion to Suppress (see Docs. 52, 54, 66). Defendant 

has objected to portions of the Report and Recommendation (Doc. 74) and the 

Government responded to those objections (Doc. 79). The Court will adopt the Report 

and Recommendation in part, and grant the Motion to Suppress in its entirety. 

I. Factual Background2

Defendant is charged with one count of Conspiracy to Possess with Intent to 

Distribute Fentanyl (21 U.S.C. § 846) and one count of Possession with Intent to 

Distribute Fentanyl (21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vi)). (Doc. 7.) Defendant’s 

arrest and subsequent indictment resulted from a Drug Enforcement Agency High 

 

1

 Also pending is the Government’s Motion in Limine (Doc. 37), to which Defendant has 

responded (Doc. 42). The Court will resolve this Motion separately. 

2

 These facts were taken primarily from testimony provided during the hearings before Judge Ferraro. 
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Intensity Drug Trafficking Areas Task Force (“HIDTA”) investigation to locate a white 

Jeep Liberty. (Doc. 59 at 23-24.) On February 1, 2018, investigators spotted the Jeep 

Liberty heading northbound on Interstate 19, and followed it to a Food City parking lot. 

(Id. at 24-27, 72.) At the Food City parking lot, Defendant was seen getting into the Jeep 

along with a woman and a young girl, and together they rode to a Wal-Mart parking lot a 

few miles away. (Id. at 73-74.) Then, Defendant drove the Jeep from the Wal-Mart 

parking lot, by an indirect route along side streets, (Id. at 28, 75) to Araceli Hughes’s3

home at 5231 S. Via Noche Buena in a nearby subdivision, where he parked it in the 

garage. (Id. at 11-12.) 

 Defendant left the Jeep in the closed garage and, along with his wife and Ms. 

Hughes (Doc. 59 at 12), departed the house in a silver Chrysler Sebring (Doc. 60 at 9-10, 

17). At around 6:00 p.m. that evening, Officers encountered Defendant, his wife, and Ms. 

Hughes with the Sebring stopped on the side of the road; Officers pulled up next to them 

to conduct a wellness check.4

 (Id. at 10-12.) The two women informed the Officers they 

did not require assistance, and Defendant’s wife, after being questioned, stated that she 

owned the Sebring. (Id. at 12-13.) Defendant’s wife and Ms. Hughes also provided the 

officers with identification; there were no outstanding warrants on either. (Id. at 32-33.) 

Officers determined that none of the occupants (Defendant, Defendant’s wife, or Ms. 

Hughes) were the registered owner of the Sebring, and proceeded to ask follow-up 

questions, which the three answered in an evasive manner. (Id. at 13-15, 23.) Without 

objection,5

 the officers conducted a canine sweep and search of the Sebring; nothing of 

note was found.6

 (Id. at 17.) Nevertheless, and after remaining with the Sebring and its 

occupants for one and a half hours (id. at 37), officers handcuffed Defendant, patted him 

 

3

 Ms. Hughes is Defendant’s wife’s cousin. 

4

 Although an officer at the scene testified his primary purpose was the wellness check (Doc. 60 at 11-12), he also testified that he had been instructed to stop the car in order to assist with the ongoing HIDTA investigation into the Jeep Liberty. (Doc. 60 at 64-65.) 5

 Officers informed the canine handler that the encounter was consensual, and he 

specifically sought consent from one of the women to conduct the canine sweep; he did not, however, bother asking her name. (Doc. 60 at 76, 86.) 

6

 The canine alerted to the trunk of the vehicle, but a physical search did not reveal any contraband. (Doc. 60 at 77.) 
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down, and put him in an unmarked law enforcement vehicle; at no point was he 

Mirandized.7

 (Id, at 20-21, 55-56.) 

 Ms. Hughes, who remained along the side of the road with Defendant and his 

wife, was separated from the group by two of the five law enforcement officers at the 

scene. (Doc. 60 at 47-49, 97.) There, separated from her travel companions, she was 

asked for consent to search her home, to which she agreed. (Id. at 98.) Ms. Hughes was 

then placed in the back of a squad car and escorted back to her home. (Id. at 98-99.) 

Defendant was later driven to Ms. Hughes’ home, where officers were conducting 

a canine sweep of the garage and later a physical search of the Jeep while it was parked in 

the garage. (Doc. 59 at 100-01; Doc. 60 at 56-57.) While conducting a canine sweep of 

the garage, during which the canine did not penetrate the interior of the Jeep Liberty, the 

canine alerted to a large portion of the Jeep Liberty. (Id. at 80-81.) By the time agents 

began physically searching the interior of the vehicle, Defendant had been brought to the 

house and was visible to the agents searching the Jeep Liberty, which was still inside the 

open garage. (Id. at 105-06.) 

Agents found fourteen packages, or 15.44 kilograms, of fentanyl hidden inside the 

Jeep Liberty. (Doc. 60 at 107; Doc. 68 at 7-8, 16.) Defendant was asked about the drugs, 

but informed agents that he knew nothing about them, adding that he did not know what 

was happening and that he could call the person he was supposed to give “that” to. (Doc. 

60 at 108.) Later that evening, Defendant was brought to the Homeland Security 

Investigations Nogales office; the agent who interviewed him testified that Defendant 

was Mirandized for the first time upon arrival, at 9:09 p.m.8

 (Doc. 68 at 23, 36, 41.) 

While there, a U.S. Border Patrol Agent at the Nogales office sought Defendant’s consent 

to search the contents of his cellphone.9

 (Id. at 17.) Defendant signed a boilerplate 

 

7

 Officers at the scene did not believe they were placing Defendant under arrest, nor did they tell Defendant he was not free to leave, but concluded that he was in fact not free to 

leave. (See Doc. 60 at 48-49, 54, 61.) 8

 The agent also testified that he was unsure whether the Miranda warnings were given before or after Defendant signed a cellphone search consent form. (Doc. 68 at 27-28.) 9

 The cellphone was seized at around 7:00 p.m., but agents were not able to testify as to where the cellphone was seized. (Doc. 68 at 31, 37.) 
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Spanish-language consent form. (Id. at 18.) 

II. The Motion to Suppress & the Report and Recommendation 

Defendant filed a Motion to Suppress (Doc. 35) seeking suppression of “all 

evidence and statements the government obtained as a result of his unlawful detention, 

his unlawful arrest without administration of Miranda warning, and of the unlawful 

search committed on February 1, 2018.” (Doc. 35 at 1.) The Government responded 

(Doc. 43), and Defendant replied in support of his Motion (Doc. 46). Judge Ferraro held 

evidentiary hearings on the Motion on January 24, 2019 (Doc. 52), February 6, 2019 

(Doc. 54), and February 12, 2019 (Doc. 66). At the conclusion of the third day, Judge 

Ferraro instructed the parties to submit briefing regarding specifically what evidence the 

Government intended to offer, and what evidence Defendant sought to have suppressed. 

(See Doc. 68 at 74-75; Doc. 66.) Defendant’s supplemental brief indicates that he 

specifically seeks suppression of: (1) contraband seized from the Jeep Liberty; (2) any 

statements or gestures Defendant made on February 1, 2018 while detained along the side 

of the road with the Sebring and in the driveway at 5231 S. Via Noche Buena; (3) 

Defendant’s Nokia cellphone and any evidence obtained therefrom; and (4) evidence 

relating to a canine alert on the Sebring. (Doc. 63 at 1-2.) The Government submitted 

briefs indicating the evidence it sought to introduce (Docs. 62, 64) and a supplemental 

memorandum supporting denial of Defendant’s Motion to Suppress (Doc. 72). 

 On March 11, 2019, Judge Ferraro issued a Report and Recommendation 

recommending that this Court grant the motion to suppress as to: (1) all statements and 

gestures made while Defendant was detained with the Sebring and in the driveway at 

5231 S. Via Noche Buena; (2) evidence obtained from Defendant’s Nokia cellphone; and 

(3) evidence relating to the canine alert on the Sebring. (Doc. 73 at 12.) Judge Ferraro 

recommends that this Court deny the motion to suppress as to the narcotics discovered in 

the Jeep Liberty, despite finding that Defendant has standing to contest the search of the 

Jeep Liberty. (Id. at 10, 12.) Defendant filed an Objection10 (Doc. 74) to the Report and 

 

10 Defendant concurrently filed a Motion for Leave to File Excess Pages (Doc. 75), which the Court granted (Doc. 78). 
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Recommendation’s conclusion that the contraband seized from the Jeep Liberty should 

not be suppressed. The Government responded to the Objection (Doc. 79) arguing that 

Judge Ferraro properly applied the law in finding that evidence seized from the Jeep 

Liberty should not be suppressed and that, in any event, Defendant has no standing to 

challenge the search because he conceded that he had no privacy interest in the garage 

where the Jeep was parked (id. at 6-7). 

A. Unobjected-to Portions of the Report and Recommendation 

 Neither Defendant nor the Government has objected to Judge Ferraro’s 

recommendations that this Court (1) grant Defendant’s motion to suppress all of 

Defendant’s statements and/or gestures made while Defendant was detained with the 

Sebring and in the driveway at 5231 S. Via Noche Buena, (2) grant the motion to 

suppress as to the canine alert on the Sebring, (3) find that Defendant has standing to 

contest the search of the Jeep Liberty, and (4) grant Defendant’s motion to suppress the 

search of the Nokia cellular phone and the analysis of Nokia cellular phone’s content. 

(See Doc. 72 at 12; Doc. 74.) 

A district judge must “make a de novo determination of those portions” of a 

magistrate judge’s “report or specified proposed findings or recommendations to which 

objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee’s notes to Rule 72(b) 

of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, 

the court need only satisfy itself that there is no clear error on the face of the record in 

order to accept the recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b) 

advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 

F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the 

district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, 

CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for 

clear error unobjected-to portions of Report and Recommendation). 

 The Court finds that Defendant and the Government have waived their respective 

rights to de novo review of the above-described portions of Judge Ferraro’s Report and 
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Recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 

(en banc). Nevertheless, the Court has reviewed Judge Ferraro’s Report and 

Recommendation, the Parties’ briefs, and the record and finds that those portions are 

proper in all material aspects and will adopt them. 

B. De Novo Review

 The Court will conduct a de novo review of the Motion to Suppress as it relates to 

suppression of the evidence seized from the Jeep Liberty. 28 U.S.C. § 636(b)(1). 

Following its de novo consideration of the totality of the circumstances, the Court finds 

that the evidence from the Jeep Liberty must be suppressed; Defendant’s Motion will be 

granted. 

 The Court’s analysis with regard to the Jeep Liberty must start and end with the 

illegally extended detention of the Sebring and its passengers, for which Judge Ferraro 

found it necessary to suppress evidence of a canine alert and Defendant’s statements 

upon arriving at 5231 S. Via Noche Buena. Neither the Government nor Defendant has 

objected to suppression of the evidence obtained while law enforcement detained 

Defendant and his travel companions along the side of the road with the Sebring. The 

exclusionary rule “requires trial courts to exclude unlawfully seized evidence in a 

criminal trial[.]” Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016). “[T]he exclusionary rule 

encompasses both the ‘primary evidence obtained as a direct result of an illegal search or 

seizure’ and, ‘evidence later discovered and found to be derivative of an illegality,’ the 

so-called ‘fruit of the poisonous tree.’” Id. (quoting Segura v. United States, 468 U.S. 

796, 804 (1984)). 

All of law enforcement’s encounters and searches here temporally followed, and 

necessarily flowed from, the illegally extended detention. This is true even of Ms. 

Hughes’ consent, which was obtained only after extended detention, and that the Court 

will assume without deciding was voluntarily given.11 United States v. Washington, 490 

 

11 The Court notes that the voluntariness of her consent is tenuous at best. The totality of the circumstances are considered when determining whether consent to search was 

voluntarily given. United States v. Brown, 563 F.3d 410, 415 (9th Cir. 2009). The Court 

considers various factors, such as (1) whether the consenting individual was in custody; 
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F.3d 765, 776 (9th Cir. 2007) (explaining that even voluntary consent must be purged of 

the taint from the original illegality in order to be valid). None of the exceptions to the 

fruit of the poisonous tree doctrine apply here. See e.g. Murray v. United States, 487 U.S. 

533, 537 (1988) (independent source doctrine). Accordingly, all evidence obtained 

following the illegally extended encounter with the passengers of the Chrysler Sebring, 

including the evidence found in the Jeep Liberty, is fruit of the poisonous tree and must 

be suppressed. Defendant’s Motion to Suppress will be granted. 

IT IS ORDERED that Judge Ferraro’s Report and Recommendation (Doc. 73) is 

adopted in part and rejected in part, as set forth above. 

IT IS FURTHER ORDERED that Defendant’s Motion to Suppress (Doc. 35) is 

granted. 

Dated this 31st day of July, 2019. 

 (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the consenting individual was notified that she had a right not to consent; and (5) whether the consenting individual had been told a search warrant could 

be obtained, in assessing the totality of the circumstances. Id. The encounter was moved from a public space on the side of the road, to Ms. 

Hughes’ home, a private space, and although the request for consent was clearly framed as a question, there is no evidence that she was informed, or that the situation made clear, 

that Ms. Hughes could terminate the encounter. Ms. Hughes was never Mirandized. 

Lastly Ms. Hughes was asked repeatedly for her consent, but there is no evidence that she 

was told she could refuse consent. And, in light of the circumstances, for example that she was escorted to her home in a law enforcement vehicle, it cannot be assumed that Ms. 

Hughes knew of her right to refuse consent.