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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Lonnie Ray Swartz, 

Defendant. 

No. CR-15-01723-001-TUC-RCC (DTF)

ORDER 

 Currently pending before the Court is Defendant’s Motion to Suppress Statements 

(Doc. 33). The Court has reviewed the same, together with the Government’s response 

opposition in thereto (Doc. 37) and the Defendant’s reply (Doc. 43). Oral argument on 

this motion was held before this Court on August 23, 2016. For the following reasons, 

Defendant’s motion is GRANTED. 

FACTS 

 Lonnie Ray Swartz (“Swartz” or “Defendant”) is charged with one count of 

second degree murder in violation of 18 U.S.C. § 1111(a) & (b) in relation to a shooting 

that occurred on October 12, 2012. Shortly after the shooting Swartz was approached by 

his supervisor, Leo Cruz-Mendez (“Mendez”). 

 Mendez made the following statements to Swartz: 

 Hey, just – just relax. Take it easy. Everyone’s doing okay. I’m going to 

ask you a couple questions[.] Just purely eight – you know, eight 

questions I’m going to ask you, and just limit yourself to that. 

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 Hey, per policy, I have to ask you eight questions. These eight 

questions are not incriminatory. They’re just basic information that I 

need so I can pass on to my supervisors ... You’re not in trouble. You’re 

not – you didn’t do anything wrong. Just – I’m going to wait for ta 

union steward to come to – to – and witness me reading you these – 

these question. 

 Doc. 33, Ex. C at 48411

. 

 The policy Mendez referenced was incorporated in Chapter Five, Article A(2)(c)-

(d) of the U.S. Customs and Border Protection’s 2011Use of Force Policy, Guidelines 

and Procedures Handbook [hereinafter “CBP Use of Force Handbook”], which states: 

(c) Any Authorized Officer/Agent who participates in or observes a 

reportable use of deadly force incident shall orally report the incident to a 

supervisor in accordance with the requirements of this chapter. 

(d) Unless the employee is physically incapacitated or otherwise unable, the 

oral report shall be made within one (1) hour of the time the incident occurs 

or within one (1) hour of the time the employee becomes aware of the 

incident. 

The oral report shall be made either in person, or via radio or telephone, 

and shall be comprised of the following information, if known: ... 

Doc. 33, Ex. 1 at 3. 

 Thereafter, as part of subsection (d), 8 questions are listed (“the 8 questions”). Id. 

at 3-4. 

 After approaching Swartz and making the aforementioned statements, Mendez 

“pulled [Swartz] to the side in a secure area” where they awaited the arrival of a union 

steward. Doc. 33, Ex. C at 4842. Later, in the presence of the steward, Mendez 

proceeded to ask Swartz the 8 questions. Id. at 4844. During the questioning, Mendez 

reiterated that “the questions were not incriminatory” and assured Swartz “they were just 

going to be basic questions, information that I need to provide to my supervisors.” Id. at 

4845. By and through the instant motion Swartz seeks to suppress the use of the 8 

 

1

 All page number references to Doc. 33, Ex C shall refer to the bates stamped page number, and not the grand jury transcript page number. 

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questions and his answers thereto in this criminal matter. 

 At the evidentiary hearing on this motion Swartz testified he became aware of the 

use of force policy and its 8 questions during his training at the border patrol academy 

and that the policy was reiterated to him by way of a power point presentation during at 

least one training session he attended after he entered the field. Swartz also testified he 

understood the policy to be mandatory, and that failure to comply therewith could result 

in discipline. Finally, Swartz testified that, prior to the shooting, he had been issued a 

card-sized copy of the policy (including the 8 questions) that he carried in the field and 

had on his person at the time of the shooting. 

 Swartz’s testimony that the use of force policy is mandatory, such that an agent 

must, upon penalty of discipline, answer the 8 questions posed to him by a supervisor 

whenever he or she participates in a deadly force incident, was corroborated by two other 

border patrol agents called to testify at the evidentiary hearing. One, Peter Hermansen, 

was personally involved in the development of the use of force policy. The other, Arturo 

Del Cueto, is the local union president and a national union vice president. 

 U.S. Customs and Border Protection, Table of Offenses and Penalties [hereinafter 

“CBP Table of Offenses and Penalties”], Sec. E(2) states that, a first time “offense” of 

“willful and intentional refusal to obey a proper order of a superior, a regulation, policy, 

rule or procedure” exposes an employee to sanctions ranging from a 5-day suspension to 

removal. Doc. 33, Ex. 2 at 3. 

 Finally, and importantly, the CBP Use of Force Handbook contains a cautionary 

warning. Under the “Incident Investigation Section” the following passage appears: 

Ensure that supervisory investigative officers involved in the investigation 

of a deadly force incident are aware that any information provided by any 

employee under threat of disciplinary action by CBP or through any other 

means of coercion cannot be used against such employee in any type of 

action other than administrative actions. 

See Doc. 53 at 23-24 (citing Defense Ex. 2 at 23). 

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STANDARDS OF LAW 

 The Fifth Amendment guarantees that a defendant’s compelled statements will not 

be used against him in a subsequent criminal proceeding. U.S. Const., amend. V; see 

Garner v. United States, 424 U.S. 648, 653 (1976). Although the Fifth Amendment 

privilege is not ordinarily self-executing, United States v. Jenkins, 785 F.2d 1387, 1393 

(9th Cir. 1986), “where a state ‘compels testimony by threatening to inflict potent 

sanctions unless the constitutional privilege is surrendered, that testimony is obtained in 

violation of the Fifth Amendment.’” United States v. Anderson, 79 F.3d 1522, 1526 (9th 

Cir. 1996) (citing Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977)). The “classic 

penalty situation” arises where the state, “either expressly or by implication,” asserts that 

invocation of the privilege would lead to a penalty, such as job forfeiture or revocation of 

probation. Minnesota v. Murphy, 465 U.S. 420, 434-35 (1984). In such circumstances a 

defendant’s failure to assert the privilege is not considered waiver, and neither the 

compelled statements, nor the fruits thereof, may be admitted over the defendant's 

objection at trial. Id.; Garrity v. State of New Jersey, 385 U.S. 493 (1967); Salinas v. 

Texas, ____ U.S. ____, 133 SCt. 2174, 2180 (2013)(plurality opinion)(“[T]hreats to 

withdraw a governmental benefit such as public employment sometimes make exercise of 

the privilege so costly that it need not be affirmatively asserted.”). 

 If the court finds that incriminating statements were obtained under threat of 

removal from office, the court need not determine whether a defendant waived his 

privilege; the coerced statements are inadmissible in a criminal matter. United States v. 

Saechao, 418 F.3d 1073, 1076 (9th Cir. 2005); Aguilera v. Baca, 510 F.3d 1161 n.9 

(observing that, under such circumstances, the Fifth Amendment “is violated” where “a 

party actually makes an incriminating statement and the government then decides to use 

it in a criminal proceeding.”); see also, United States v. Goodpaster, 65 F.Supp.3d 1016, 

1026 (D. Or. 2014). 

ANALYSIS 

It is clear that United States Border Patrol agents are subject to and trained on 

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Chapter Five, Article A(2)(c)-(d) of the CBP Use of Force Handbook. It is equally clear 

that, by its own terms, compliance therewith is mandatory, and that an agent that fails to 

comply with the policy by not answering the 8 questions posed by a supervisor is 

exposed to penalty of discipline up to and including removal. 

 Mendez, Swartz’s supervisor, asked Swartz the 8 questions at issue in this motion 

in furtherance of an investigation of a deadly force incident. Mendez specifically and 

repeatedly led Swartz to believe any answers he gave to the 8 questions would not be 

used to incriminate him. According to the United States Border Patrol’s own, 

contemporaneous policy, any information provided by Swartz in response to those 

questions (where the government did not remove the threat of disciplinary action for 

failure to comply or, otherwise, employed any other means of coercion) could not be used 

against him in a criminal proceeding. 

 Based on the foregoing, and all of the evidence presented, the Court makes the 

following findings. First, that Swartz’s statements in response to the 8 questions were 

obtained under threat of removal of office and compelled by Mendez’s assurances that 

said statements would not be “incriminatory.” Second, that the 8 questions and their 

answers, which the government now seeks to introduce in this criminal matter, carried the 

risk of incrimination. These were asked and answered, on-scene, by an investigating 

government agent, of a person known to have had just discharged his firearm. The 

questions all concerned the circumstances surrounding said use of deadly force and called 

for Swartz to acknowledge and divulge his knowledge thereof and involvement 

therewith. Contrary to the government’s assertions, see Doc. 37 at 4, the shooting 

incident was not “routine” and, by extension, neither was the investigation it inspired. 

The threat of future criminal prosecution was both “reasonably particular and apparent.” 

See United States v. Bahr, 730 F.3d 963, 966 (9th Cir. 2013). Third, Swartz harbored a 

subjective belief that, if he did not answer the 8 questions posed by Mendez, he would 

face a disciplinary penalty. Fourth, that such a belief is and was objectively reasonable. 

Border Patrol policies state that, if he did not comply a policy and/or an order from his 

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supervisor, Swartz would be exposed to discipline up to and including removal. There is 

no evidence that Mendez, or any other representative of the government, prior to the 

posing of the 8 questions to Swartz, effectively retracted the threat of employment related 

penalty. In fact, by affirmatively asserting that the 8 questions would not be asked of 

Swartz until such time as the union steward arrived, Mendez reinforced the potential that 

any answers Swartz might give (or his refusal to answer) would implicate the 

employment-related threat. The threatened penalty was, therefore, both “sufficiently 

coercive” and “more than merely hypothetical.” See, Id. 

 By threatening to punish Swartz’s silence (and not removing that threat) and by 

otherwise compelling his responses to the 8 questions, the government donned the hat of 

employer. Its own Use of Force Handbook policy, the Constitution, and this Court hold 

the government to that choice. 

 For the foregoing reasons, the Court finds that the statements made by the 

Defendant in response to the 8 questions posed by Mendez on October 12, 2012 were 

compelled, coerced and involuntary. Accordingly, 

 IT IS ORDERED Defendant’s Motion to Suppress (Doc. 33) is GRANTED. 

 Dated this 23rd day of March, 2017. 

 

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