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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Scott Daniel Warren,

Defendant. _________________________________

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NO. CR 18-00223-TUC-RCC(BPV)

REPORT AND RECOMMENDATION

ON DEFENDANT'S MOTION TO

SUPPRESS

On April 19, 2018, Defendant filed a Motion to Suppress Evidence Found as a Result

of Illegal Search [Doc. 53] and on May 3, 2018, the Government filed its Response [Doc.

63]. Defendant filed his Reply [Doc. 73] on May 17, 2018.

The Court held an Evidentiary Hearing on the matter on June 14, 2018, and July 13,

2018. The Defendant called as witnesses Dr. Carol Johnson and Defendant Scott Daniel

Warren. The Government called as witnesses Border Patrol Agents John Marquez and

Brendan Burns.

The Court, having considered the briefing, arguments, and evidence presented,

recommends that the District Judge, after his independent review and consideration, enter an

order DENYING Defendant's Motion to Suppress [Doc. 53].

FACTS

The Barn is a property located in Ajo, Arizona. The owner is Dr. Carol Ann Johnson,

who uses the land for her orchard. The buildings on the property include a residence (the

Barn) and a storage shed referred to as the Barnlet.

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Dr. Johnson is conflicted by the current immigration policy and its enforcement by

the Border Patrol. She is sympathetic to the plight of undocumented migrants in their trek

through the desert into the United States. She, consequently, makes her property available

as a base camp for any group that has as one of its goals assisting people traversing the

desert. This means groups may use the property, including sleeping at the property, in the

performance of their humanitarian objectives in locales away from her property.

Dr. Johnson, however, is concerned that her property not be damaged by the activities

of these well-meaning groups. Dr. Johnson has allowed Defendant Scott Daniel Warren,

Ph.D., use of the property, provided he serve as a liaison/caretaker/handyman whenever he

or volunteer groups are using the property. Dr. Johnson requires, through Defendant Warren,

the various groups using the property to pay the electric bill. Defendant Warren pays Dr.

Johnson, who, more often than not, is reimbursed by No More Deaths (NMD).

Dr. Johnson will allow undocumented persons to stay on the premises if they appear

to be in medical distress and if the person granting permission to the undocumented persons

calls the on-call doctor for his/her opinion, presumably for a determination that the person

is in distress. The Court assumes the on-call doctor would prescribe the method of treatment

and duration of recovery time at the Barn.

If the medical distress protocol is not utilized, permission to use the premises is not

authorized by Dr. Johnson. In this case, there is no evidence the protocol was used by

Defendant Warren.

The Barnlet appears to be secured at all times from entry. The Court so finds because

Defendant Warren keeps his sleeping bag and other personal items in that location until he

is on the property and intends to remain overnight.

The material witnesses in this case were already at the Barn when they first met

Defendant Warren on the first day of their stay. The material witness Zacarias Godoy said

he was taken to the Barn and told to wait for someone to arrive. Defendant Warren arrived

on the scene and gave them access to the house. The entry door and bathroom were unlocked

at the time of the material witnesses’ arrival. Defendant Warren did not ask any questions

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about the two men’s medical needs. They either asked him if they could stay one to two days

or told him they would leave in two days. They were there three days and two nights.

Once all three were together, they all used the property without a care in the world

until the third day. On that day, Border Patrol Agents Marquez and Burns set up surveillance

north of the property.

When the agents set up their surveillance, they had already determined that the Barn

belonged to Dr. Carol Johnson. They had set up at the location because of information from

at least one local resident that there were a few “illegals” from Central America in the Ajo

area. The Court concludes the agents believed the Barn was a good place to start an

investigation.

From their vantage point, the agents observed three men outside the Barn. The taller

man was pointing in the direction of various locations north of the Barn. In the agents’

opinions, based upon their observation of two shorter men in shabbier clothing, these men

were the persons previously identified as being illegally in the country. They also surmised

that the directional gestures suggested the two smaller men were leaving the area. The agents

decided to investigate the matter before the suspects left the area.

At that point, they decided to conduct a Knock & Talk at the Barn. They used a radio

to call in for back-up support. As Agents Burns and Marquez were walking towards the

Barn, other agents arrived on the scene. Some marked vehicles were stationed on Snyder

Road near the entrance to the Barn. At least three vehicles entered the property and drove

down the driveway towards the residence. Two of the agents who drove onto the property

were named Barbosa and Sandoval. They met Defendant Warren west of the residence near

the Barnlet.

By this time, Agents Burns and Marquez had reached the residence. Agent Marquez

had peeled off to the east, away from the driveway and to the far side of the house. As Agent

Marquez was walking to his left, he observed a man inside the house at a north-facing

window, rapidly moving away from the window. Agent Marquez continued east and turned

south at the corner of the house. By the time Agent Marquez was at the south end of the

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house, Agent Burns was with Defendant Warren and either Barbosa or Sandoval on the

southwest side of the Barn.

Agent Burns told Defendant Warren that he was there to investigate a report (of illegal

aliens) and that he wanted to speak to the owner. Defendant Warren interrupted the two

statements, asserting he was engaged in a humanitarian operation.

When Agent Burns asked if the owner was present, Defendant Warren responded he

was not going to answer and that Burns (and company) had no right to be there. Agent Burns

asserted he wanted to talk to the owner and had a right to walk up and ask. Defendant

Warren did not respond, to which Agent Burns said he was going to talk to the owner.

Defendant Warren responded, “I will go with you.” According to Defendant Warren, he told

Agent Burns that 1) they were on private property; 2) they did not have permission to be on

private property; and 3) they needed to leave that private property. Defendant Warren does

recall being asked if he was the owner and if the owner was on the property. He informed

them he was not going to answer any further questions. He also told the agent that he would

accompany him to the residence.

While this was going on, Agent Marquez had heard a bathroom door slam shut and

told the occupant to come out. One man came out and admitted he was illegally in the U.S.

Agent Marquez had the man sit in the breezeway between the bathroom and the house.

Agent Burns arrived, handcuffed Mr. Perez-Villanueva, who he turned over to another agent

to transport to an agency vehicle.

At this point, Defendant Warren was arrested and handcuffed by Agent Marquez.

Once the Defendant was secured, Agent Marquez did a protective sweep of the residence

with a firearm in one hand and a phone camera in the other. While doing the sweep, Agent

Marquez somehow had time to take photographs of the interior. Shortly after Agent

Marquez, Agents Burns and Barbosa entered the premises to conduct their own sweep.

Neither of the two took photographs. Agents Burns and Barbosa eventually entered the

bathroom and found Mr. Zacarias Godoy in the shower. He also was arrested for illegal

entry.

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Following the protective sweep and the arrest of Mr. Godoy, the agents were

instructed not to enter the Barn. No one did, presumably until a search warrant was obtained.

None of the agents who testified were conversant with telephonic search warrant applications

nor with the official Border Patrol Knock & Talk policy.

As a result of the Border Patrol’s efforts, the Government acquired at least the

following:

1) Two live witnesses illegally in the United States;

2) Printed instructions in English and Spanish on how to react to law enforcement

encounters at the residence;

3) Hand-drawn maps of the area;

4) Replacement clothing for migrants;

5) Cell phone photographs from the material witnesses; and

6) Photographs of items 2, 3, and 4, as well as of the interior spaces of the Barn.

DISCUSSION

The residential property at 1401 Snyder Road, Ajo, Arizona, is known as the Barn.

The Barn is not a continuously occupied residence.

The Barn is akin to something like a humanitarian aid group community center with

a storage structure or a barracks without secured foot lockers. Everything located within the

property is available to anyone who has access to the property. Anyone is defined as those

who participate in humanitarian group assistance for undocumented migrants. Persons who

wish to provide this assistance coordinate with and are given access to the Barn by Warren.

Warren’s relationship to the Barn is as follows:

1) Liaison to the various visiting aid groups, to include paying the electric bill for

them, subject to reimbursement;

2) Caretaker to prevent misuse by the aid group visitors. He may spend the night

when aid groups are in residence;

3) Handyman to perform routine repairs or maintenance as the need arises; and

4) Medical protocol host to undocumented migrants provided Warren complies

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with the conditions precedent required by Dr. Johnson.

In this case, Warren did not comply with the medical protocol required by Dr.

Johnson. As such, he had no authority to permit the material witnesses to remain on the

premises. By his inaction, he exceeded the authority granted him with respect to the

property. His conduct converted the Barn into a way station, which is exactly contrary to the

owner’s expectations and instructions. Whatever relationship, right, or authority Warren had

with the property, his conduct converted the migrants into trespassers and exceeded the grant

given him by Dr. Johnson. Warren is like a real estate agent, he may show the place, but

cannot allow anyone to temporarily reside there as he wishes.

In Warren’s roles as a liaison or caretaker, he had no role to perform because there

were no groups present for him to exercise his authority over or perform his duties. He did

have some visitors, but they had no contact with the migrants, performed no services for

them, and did not spend the night. Put another way, they did nothing, other than visit

Warren.

As a handyman, there was no evidence presented that Warren was performing any

such duties. In fact, a migrant testified he did not spend very much time at the Barn.

From an objective view, the Border Patrol agents knew that Dr. Carol Johnson owned

the property. They suspected there were Central Americans illegally in the United States and

that at least two of them may be at the Barn. They suspected that a man apparently familiar

with the area was giving them directions towards the north. They further suspected that,

because of the directional gestures, the two would soon be leaving the area.

In the process, prior to any questioning of the target suspects, Agent Marquez

observed a man at the north window in the residence make a rapid withdrawal into the

interior. Agent Marquez no doubt suspected this person was illegally in the United States.

This assumption was enhanced by the bathroom door slamming closed. 

At no time did Warren claim any derivative authority from the owner, Dr. Johnson,

to order the agents’ departure. Warren claims his rights, pursuant to the Fourth Amendment,

were violated when the Border Patrol entered the Barn and found the evidence it intends to

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submit at trial. He asserts that if one is charged with harboring, then it must follow that he

has a privacy interest in the property used to commit the offense. 

In deciding what rights Defendant Warren has, the Court needs to determine what

Warren is or is not at the Barn.

Defendant Warren is:

1) A liaison;

2) A caretaker;

3) A handyman;

4) An agent with restricted authority from the owner;

5) Someone who keeps his personal property locked away in the Barnlet until he

needs access to it; and

6) A guest with limited access to the property.

Defendant Warren is not:

1) An owner;

2) A tenant/occupant;

3) An unrestricted agent of the owner;

4) A possessor or user of a private space under his exclusive control; and

5) Someone who expressed that he possessed the owner’s authority to grant or

deny access to the property.

Housekeepers for hire have keys to many houses and can access them all. A hotel

desk clerk has keys and access to many rooms. Caretakers and handymen have keys and

access to various properties. None of the various roles or titles ascribed to Defendant Warren

give him anything more than access. The most private space he has is the Barnlet and he has

to share that with any humanitarian that wants clothing for undocumented migrants. Under

these circumstances, Defendant Warren has no expectation of privacy and no standing to

challenge the warrantless entry into the Johnson property on Snyder Road in Ajo, Arizona.

From the evidence presented, the U.S. Border Patrol, by the time they reached the

entrance to the property, had at least a reasonable suspicion that criminal activity was afoot

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at the Barn. The Border Patrol Knock & Talk procedure does not provide the Defendant any

rights in addition to those granted by the U.S. Constitution.

Assuming Defendant Warren has standing and an expectation of privacy in the Barn,

the Border Patrol agents had a reasonable suspicion to enter the property and approach the

residence.

When Agent Burns was talking to Defendant Warren about talking to the owner,

Agent Marquez observed a man within the residence flee from the window further into the

house. By the time Agent Marquez was rounding the corner and approaching the entry door,

he heard the bathroom door slam shut. This observed behavior created probable cause to

believe that criminal activity was occurring when considered in conjunction with their prior

knowledge. The migrants’ furtive behavior supported an exigent circumstance to believe an

escape by the migrants was possible. Agent Marquez’s order for the migrant to come out of

the bathroom was lawful. The migrant’s compliance with the order to come out was beyond

Defendant Warren’s expectation of privacy. By the time Defendant Warren and Agent Burns

arrived at the entrance to the house, one migrant was under arrest for illegal entry.

Because the agents suspected via observation that the Barn had two migrants, a

protective sweep of the property was also lawful, as was the arrest of the second migrant.

Subsequent to the arrest of the two migrants and Defendant Warren, the other evidence was

lawfully acquired and/or subject to inevitable discovery.

As an aside, the Court notes that, while body cameras may be used during a protective

sweep, a handheld camera is not a recommended technique.

CONCLUSION

It is the recommendation of this Court that the District Judge, after his independent

review and consideration, enter an Order DENYING Defendant's Motion to Suppress [Doc.

53].

Pursuant to 28 U.S.C. §636(b)(1)(B), the parties have fourteen (14) days from the date

of this Report and Recommendation to file written objections to these findings and

recommendations with the District Court. Any objections and Responses to objections filed

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should be filed as CR 18-00223-TUC-RCC. No Replies shall be filed unless leave is granted

from the District Court.

DATED this 6th day of August, 2018.

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