1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

vs. 

Jaciel Corral-Cinco, 

Defendant. 

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CR 15-02312-TUC-CKJ(LAB)

REPORT AND RECOMMENDATION

The District Court referred this case to the Magistrate Judge for a hearing on the 

defendant=s motion to suppress evidence and statements. The defendant, Jaciel 

Corral-Cinco, argues that all evidence obtained as a result of his illegal stops on November 

30, 2015 must be suppressed because he was stopped without reasonable suspicion and 

arrested without probable cause, in violation of his Fourth Amendment rights. (Doc. 25). 

An evidentiary hearing was held on July 26 and 27, and August 12, 2016. United 

States Border Patrol (USBP) Agents Justin Sanders and Samuel Schultz, and the 

defendant, each testified. Government’s Exhibits 1 through 5 and 8, and Defendant’s 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 1 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 2 -

Exhibits 2 and 5 through 8, were admitted for purposes of this hearing only.1 

Charge:

The defendant is charged in a two count indictment with conspiracy to possess with 

intent to distribute, and possession with intent to distribute, 50 kilograms or more of 

marijuana, in violation of 21 U.S.C. '' 841(a)(1) and 841(b)(1)(C). 

Motion to Suppress:

The defendant argues that his Fourth Amendment rights were violated when he was 

stopped twice by police without reasonable suspicion, and ultimately arrested without 

probable cause, on November 30, 2015. He asserts that any evidence obtained as a result 

of the illegal stops and arrest must be suppressed. 

The Court concludes the initial seizure was a valid Terry stop. After the defendant and 

his companion were released, they were stopped a second time based on reasonable 

suspicion. This second stop ripened into an arrest based on probable cause. The search 

of the defendant’s pocket was a search incident to an arrest. The defendant’s statements 

were made after valid Miranda warnings, and subsequent to a lawful arrest. The evidence 

should be admitted at trial. 

EVIDENCE:

Justin Sanders

Justin Sanders is a USBP agent with seven years’ experience. He has been stationed in 

Nogales, AZ during his seven-year tenure, working in various units. Sanders testified 

that on 11/30/15 he was working in the community policing unit with USBP Agent 

Schultz. Sanders received a call from Nogales Police Department dispatch advising him 

that a concerned citizen called regarding people hiding in the brush on the west side of 

Target Range Road and Industrial Park Avenue, about one mile north of the international 

 

1 Government’s Exhibit 8 consists of two DVDs which the Court reviewed in chambers after the hearing. The DVDs 

have limited value due to the grainy quality of the images. No testimony was presented to explain what the DVDs 

depict. The Court was unable to identify specific people and had difficulty identifying locations and specific vehicles. 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 2 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 3 -

border. That is an area where interdiction of drugs and undocumented people is common. 

It is near a small cluster of buildings, small businesses and warehouses. Agent Sanders 

was given no description of the people, or information about the number of people seen. 

Sanders testified that when he and Schultz arrived in the area of Industrial Park Avenue 

and Target Range Road in a marked Border Patrol vehicle, Sanders saw two people try to 

“hide” behind a brick pillar, out of the agents’ view. That characterization is not entirely 

credible based on the agents’ testimony that the men were taller than the pillar and were 

looking at the agents. The court concludes that the men were simply trying to make 

themselves look less conspicuous. Sanders testified that there were no other people near 

the businesses. Government’s Exhibit 1 shows the area where the defendant and his 

companion were first seen by the agents. 

Government’s Exhibit 8 is a video taken of the opposite side of the building. It shows a 

fair amount of traffic, people coming and going from the daycare center, and a couple of 

pedestrians in the area. Apparently there were people in the general vicinity but not in the 

agents’ immediate area. 

Government’s Exhibit 2 shows a warehouse with bay doors. The building is in an “L” 

shape. The bay doors are not visible from the street. 

According to Sanders’s testimony, the agents got out of their vehicle and identified 

themselves as USBP agents. Agent Schultz spoke to the defendant and his companion in 

Spanish. Both agents were in uniform and were armed. Sanders observed the two men 

look at each other before answering questions. They were fidgety, shuffling their feet, and 

making no eye contact. In Agent Sanders’s experience, some people legally in the 

country are nervous and fidgety when they have contact with border patrol agents. 

Sanders identified the defendant in court as one of the men. 

The men each provided a B1/B2 visa when asked if they were in the United States (U.S.) 

legally. That type of visa does not allow the holder to work in the U.S. Nevertheless, the 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 3 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 4 -

men said they were looking for work. The defendant, however, said he did not know what 

kind of work he was looking for. In Agent Sanders’s experience, people looking for work 

usually know the names of the companies where they plan to look for work. The agents 

spoke in friendly voices. The encounter lasted about two minutes, and then Sanders 

returned the visas and told the men they were free to leave. The men walked south on 

Industrial Park Avenue, toward the border. The two agents went in separate directions. 

Agent Sanders suspected the men of scouting for drug or alien smugglers, although he 

never saw them communicating with anyone else. He walked to the east side of the 

building by the bay doors of the warehouse because he had found illegal aliens hiding there 

in the past. Sanders approached a white pickup truck, depicted in Government’s Exhibit 

3, parked with its bed against the warehouse door. He smelled the odor of marijuana 

coming from the bed. Sanders lifted the cover and saw bundles of marijuana. He 

removed the bundles and searched the cab. The marijuana-laden truck was discovered 

about 100 feet and a one minute walk from where the defendant was first contacted. 

Sanders notified Agent Schultz of his discovery by radio and asked Schultz to re-contact 

the defendant and his companion. 

Schultz re-contacted the men about five to seven minutes after the first encounter. He 

transported both men back to the pickup truck in the back seat of his Tahoe, which has a 

secured metal cage. When Sanders approached the Tahoe, the men were out of the vehicle, 

one on each side. He can’t remember if they were handcuffed. 

Other agents arrived on scene before Agent Schultz returned. Agent Sanders witnessed 

Agent Schultz read the defendant his Miranda rights. The statement that followed was not 

recorded. The defendant took a key out of his pocket and gave it to Schultz, who gave it to 

Sanders, who started the truck with it. 

Agent Sanders testified he originally made contact with the defendant because of recent 

smuggling trends in the area, the call from dispatch, the men’s nervous and evasive 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 4 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 5 -

behavior, and because there was no one else in the area. He does not remember if the 

defendant had a cell phone. He did not see the defendant communicating with anyone by 

phone. 

Samuel Schultz

Samuel Schultz has been a Border Patrol agent for ten years at the Nogales Border Patrol 

station. During that time he has written about ten to twenty investigative reports. He 

never received any training in report writing. Agent Schultz is fluent in Spanish. He 

testified that on 11/30/15 he was working in the community policing unit, on the west side 

of the DeConcini Port of Entry near the international border. Schultz was patrolling in 

uniform, in a marked Chevy Tahoe. He was working with USBP Agent Sanders. 

At about 7:00 a.m. or 7:30 a.m. Agent Schultz received a radio call from dispatch 

regarding sensor activity in the brush on the west side of Industrial Park Avenue, near 

Target Range Road. There are interdictions of drugs or undocumented aliens in that area, 

as depicted in Government’s Exhibit 4, every month or two. In his experience, scouts are 

placed in that area before loads of drugs or undocumented people arrive. The scouts are 

usually on cell phones. When the agents received the call from dispatch, they went to the 

area and walked in the wash and through the trees, but they didn’t encounter anyone. Half 

an hour later, there was more sensor activity. Ten minutes later, dispatch advised the 

agents that a daycare center in the area received a call about people hiding in the brush 

nearby. 

The agents responded and saw two people near Bustamante Refrigeration. They were 

not talking on cell phones. Agent Schultz testified that they were the only people in the 

area. 

When the agents arrived, he saw two people walk behind the little pillar on the right of 

the photograph in Exhibit 1 and position themselves behind a white wall that Schultz 

estimates is 5 to 6 feet tall. Agent Schultz couldn’t remember how visible the men were 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 5 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 6 -

once behind the wall, but they appeared to hide when the agents approached. Agent 

Schultz found that suspicious. 

The agents approached the two men and identified themselves as USBP agents. Agent 

Schultz determined that the men spoke Spanish and asked if they were U.S. citizens. They 

responded that they were not. When Schultz asked for identification, each man presented 

a B1/B2 visa. They said they were here to work, but they did not know what type of work 

they were looking for. They said they were not looking for work at Bustamante’s. Agent 

Schultz spoke in a normal tone of voice. He stood about four to five feet from the men. 

Schultz testified that a B1/B2 visa does not confer work rights. It is for visitors and 

travelers. During this encounter, the defendant’s companion, Mr. Quijada-Quijada, was 

fidgety and avoided eye contact. The defendant smiled and avoided eye contact but was 

relaxed and seemed to be amused by the encounter. The conversation lasted two to three 

minutes, and then the men were told they were free to leave. Schultz identified the 

defendant in the courtroom. He admitted that the details of the contact with the defendant, 

which occurred nearly eight months ago, are not documented in his report. He testified 

that he did not remember whether Corral-Cinco had a cell phone. 

Agent Schultz told Agent Sanders that he suspected the men were scouts based on the 

visas, their answers to the questions, and their behavior. Scouts don’t always use cell 

phones. They can use hand signals, mirrors, lights or radios to communicate, although 

there was no testimony that any of that occurred in this case. Sanders walked behind the 

warehouse. The men walked south towards the border, which is about one-half mile away 

or about one mile if travelling on the roads to the DeConcini Port of Entry. Schultz saw 

both men turn and look at him. One of the men then turned and looked again. 

A couple minutes after the men walked away from the agents, Sanders called Schultz 

and told him to meet back near the warehouse because he had a white pickup truck loaded 

with drugs. He also asked Schultz to stop the men. Schultz got in his vehicle and drove 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 6 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 7 -

up next to the men. He got out of his vehicle and said he needed to ask them a few more 

questions because they found something. Schultz asked the men to get into his vehicle. 

He opened the door and the men got into the area with the metal cage, with doors that 

cannot be opened from the inside. Schultz shut the door. None of these details are in his 

report. Schultz testified that he did not place handcuffs on the men. He usually does not 

handcuff suspects or arrestees when transporting them, depending on the individuals. 

As he approached the men, Schultz called for more agents. Additional agents arrived 

as soon as the men were in the vehicle. Schultz drove the men for about 30 seconds and 

parked near the white truck. That was 100 to 200 feet from where the initial encounter 

occurred. 

Government’s Exhibit 8 (camera 1) shows four USBP vehicles arriving behind the 

warehouse within less than two minutes of each other, with at least one of the vehicles 

using its emergency lights. A number of people get out of the vehicles and are seen 

walking around the area. Presumably they are agents. Within five minutes, a dark SUV 

also arrives. It is unclear if that is a law enforcement vehicle. 

Agent Schultz testified that he separated the men by placing Quijada-Quijada in another 

marked vehicle. The defendant remained in the back of the Tahoe with the door open and 

his legs outside the vehicle. He read the defendant his rights from a card in Spanish. 

Agent Sanders witnessed the advisal. Schultz then asked the defendant why he was in the 

area. He asked whether Corral-Cinco’s response that he was there to work was the truth. 

The defendant shook his head “no.” He admitted that he knew there was marijuana in the 

white truck and that he came from Mexico to transport the marijuana. The defendant said 

that he had the key to the truck in his pocket. He stated that Quijada-Quijada also knew 

about the marijuana and came from Mexico to transport it. Schultz took the defendant out 

of the Tahoe and handcuffed him behind his back. He conducted a pat down, removed the 

key from the defendant’s pocket, and gave it to Sanders. Two to three minutes passed from 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 7 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 8 -

the time the defendant entered the Tahoe and when he was handcuffed. Schultz used no 

physical force, did not raise his voice and did not brandish his weapon during questioning. 

Jaciel Corral-Cinco

Jaciel Corral-Cinco testified that he crossed into the United States on foot on 11/30/15 at 

maybe about 7:00 a.m. with his friend, Quijada. The men walked to Bustamante’s and 

were standing by the door identified in Defendant’s Exhibit 8, talking to a lady, when the 

agents arrived. Corral-Cinco doesn’t remember the name of the lady and does not have 

her telephone number. She was an older lady. They spoke for three to five minutes about 

finding work. The lady told them she was not in charge and did not do the hiring. They 

were walking away when Corral-Cinco saw the agents approaching. They continued 

walking until the agents told them to stop. They did not try to hide. 

The men were asked for their documents, which they gave to the agents. The agents 

asked Corral-Cinco to remove all his belongings, advising him that he was going to be 

searched. He took his wallet, cell phone, and cigarettes out of his pockets but did not turn 

over the key to the truck because he forgot. The agent searched all his pockets, including 

his sweater pocket where the key was, but did not remove the key. The testimony about 

being asked to remove all belongings and being searched during the first encounter is not 

credible. A search would have revealed the key in Mr. Corral-Cinco’s pocket. It is not 

credible that Corral-Cinco forgot about the key which he likely knew was linked to a truck 

involved in criminal activity. Corral-Cinco testified he had no plan to drive the truck, but 

he received the key before entering the United States. He testified that he spoke with a 

woman about work, but his possession of the key indicates that he was not in the United 

States seeking legitimate work. 

The agents asked what the men were doing there. Corral-Cinco’s friend answered. The 

agents told the men to retrieve their belongings and that they were free to leave. 

Corral-Cinco testified that he made eye contact and was not nervous. The encounter was 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 8 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 9 -

brief. Corral-Cinco and Quijada left the area because Corral-Cinco was intimidated and 

thought he couldn’t be there because of the agent’s harsh tone of voice. Also, he didn’t 

see other places nearby to look for work. 

The men walked for about five minutes when the USBP car made a u-turn and stopped 

next to them. The agent got out of the vehicle, told the men to sit on the ground and 

handcuffed them once they were on the ground. That testimony is not credible in light of 

Agent Schultz’s testimony that he removed Corral-Cinco from the car so he could handcuff 

him from behind as he stood facing the vehicle, once they arrived back at the warehouse. 

Corral-Cinco testified that another car arrived and two or three more agents arrived on 

foot. Corral-Cinco was told to get up and get in the first agent’s car. His friend was told 

to get into another car. The men were driven to an area where there were several cars and 

officers waiting near a white truck with marijuana bundles. Corral-Cinco was left in the 

car. The agents walked around and then returned and told Corral-Cinco to get out of the 

car. He was still in handcuffs. They searched him again and took the key, which was given 

to another agent who used it to start the truck. The agents removed all his other 

belongings, threw them on the ground and placed Corral-Cinco back in the Tahoe. They 

read him his rights, which he understood. 

Corral-Cinco denies being questioned or making any statements. He doesn’t 

remember being asked if he had the key to the truck or if he knew about the truck. He did 

not try to hide when the agents arrived. He did not look back at the agent after he was free 

to leave. 

DISCUSSION: 

The Initial Encounter 

The defendant argues that he was stopped and questioned by police without reasonable 

suspicion, in violation of his Fourth Amendment rights. The government characterizes 

the initial contact as a consensual encounter lasting only a couple of minutes, in a public 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 9 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 10 -

place, free from threats or force, during which the defendant was free to leave and gave 

voluntary answers to questions. The Court disagrees with both parties. 

The stop here is properly characterized as an initial inquiry followed by a brief 

investigatory detention. To justify an initial inquiry and a brief investigatory detention, 

there must be reasonable suspicion that criminal activity may be afoot. Terry v. Ohio, 392 

U.S. 1, 30 88 S.Ct. 1868, 1884 (1968). That level of suspicion is considerably less than 

proof of wrongdoing by a preponderance of the evidence, and is less demanding than 

probable cause. United States v. Sokolow, 490 U.S. 1, 6, 109 S.Ct. 1581, 1585 (1989) 

(citations omitted). Yet, it is also more than an inchoate and unparticularized suspicion or 

mere hunch, and requires that the officer articulate facts supporting his suspicion. Id. 

USBP Agents Sanders and Schultz were investigating a report of individuals hiding in 

the brush near a preschool, less than a mile from the border, in an area known for drug and 

human trafficking. They were told that there was sensor activity in that area. They 

responded and found the defendant and his companion, who walked away when the agents 

arrived. No one else was in the area near the warehouse. 

The agents told the men to stop. They questioned the men, who provided answers that 

the agents found suspicious. The defendant’s companion was fidgety and nervous. The 

agents took their immigration documents, holding them until the men were free to leave. 

Prior to being told they were free to leave, a reasonable person would not feel free “to 

disregard the police and go about his business.” California v. Hodari D., 499 U.S. 621, 

628 (1991). The encounter was not voluntary. It was a brief, investigatory detention 

based on reasonable suspicion. The initial stop was lawful. 

The Second Encounter 

 The government states that the second stop was either a Terry stop, justified by 

reasonable suspicion, or a lawful arrest supported by probable cause. The defendant 

argues that there was neither reasonable suspicion nor probable cause to stop the defendant 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 10 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 11 -

a second time. The Court finds that the stop was a Terry stop, and was based on 

reasonable suspicion. See Terry and Sokolow, supra. Only after the defendant was 

transported back to the warehouse and handcuffed was he under arrest. 

 The Fourth Amendment protects people against unreasonable searches and seizures 

and requires probable cause to support a warrantless arrest. Maryland v. Pringle, 540 

U.S. 366, 369-70, 124 S.Ct. 795, 799 (2003). Probable cause is based on the totality of the 

circumstances and exists when a reasonably cautious person could conclude that there is a 

fair probability that a specific person committed a crime. U.S. v. Ortiz-Hernandez, 427 

F.3d 567, 573 (9th Cir. 2001), cert. denied, 127 S.Ct. 358 (2006). The standard for 

probable cause is not terribly demanding. U.S. v. Collins, 427 F.3d 688, 691 (9th Cir. 

2005). Examining the totality of the circumstances requires a two-prong analysis. The 

Court must determine the intrusiveness of the stop from the defendant’s perspective, and 

the justification for the officer’s conduct from the law enforcement point of view. U.S. v. 

Edwards, 761 F.3d 977, 981 (9th Cir. 2014). 

 The Court in Edwards explains that in analyzing the first prong, the level of 

intrusiveness, the court must determine whether a reasonable, innocent person would feel 

free to leave after some brief questions under the circumstances under review. The basis 

for the second prong is that an officer should not have to fear for his safety during an 

investigation. It compels the court to decide whether there was a sufficient basis to justify 

an officer’s safety concerns and the level of intrusion employed to allay those fears. Id. 

 In the present case, the defendant was stopped on the side of the road, walking south 

toward the border. Agent Schultz told him and his companion that he had a few more 

questions because they found something. He asked the men to get into the back seat of the 

Tahoe. The men complied. They were not handcuffed. They got into the locked, 

caged area together. They were transported for 30 seconds. A reasonable, innocent 

person would believe he was going to be questioned briefly about whatever the agents 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 11 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 12 -

found in the area where the first encounter took place, and would then be free to leave, as 

had just occurred minutes earlier. The intrusiveness of the stop, the first prong, favors a 

finding that the defendant was not under arrest at that time. 

 Agent Schultz did not testify that he was in fear for his safety when he re-contacted the 

two men. He called for backup as he approached the men, presumably because there were 

two of them and only one agent. Multiple agents arrived at his location once the men were 

secured in the back of the Border Patrol vehicle. The reason Agent Schultz decided to 

secure and transport the men was because of the proximity to the border. He did not want 

the men to run across the border. The second prong is neutral. 

The analysis then turns to whether probable cause was developed between the first 

encounter and the arrest. Once the defendant admitted that he was not in the area looking 

for work, and that he had the key to the marijuana-laden truck, there was probable cause to 

arrest him. Agent Sanders discovered the white pick-up truck loaded with marijuana 

about 100 to 200 feet, and a one minute walk, from where the defendant and his companion 

were originally encountered. 

 Based on the totality of the circumstances, a reasonably cautious person could 

conclude that there is a fair probability that Defendant Corral-Cinco committed a crime.

 Any statements or evidence obtained as a result of the lawful arrest should be admitted 

at trial. 

RECOMMENDATION 

In view of the foregoing, it is recommended that, after its independent review of the 

record, the District Court DENY the motion to suppress evidence. (Doc. 25) 

Defense counsel may serve and file written objections within 14 days. If objections are 

not timely filed, the party=s right to de novo review may be waived. No reply to objections 

shall be filed unless leave is granted from the District Court. 

The Clerk of the Court is directed to send a copy of this Report and Recommendation to 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 12 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 13 -

all parties. 

DATED this 6th day of September, 2016. 

Case 4:15-cr-02312-CKJ-LAB Document 51 Filed 09/06/16 Page 13 of 13