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, 

v. 

Eduardo Vasquez Durazo, 

Defendant.

No. CR-15-01868-001-TUC-JGZ

ORDER 

On February 26, 2016, Magistrate Judge Bernardo P. Velasco issued a Report and 

Recommendation (“R&R”) (Doc. 57) in which he recommended that Defendant Eduardo 

Vasquez Durazo’s Motion to Suppress evidence obtained as a result of a traffic stop 

(Doc. 24) be denied and that Defendant’s Motion to Suppress evidence obtained as a 

result of a vehicle search (Doc. 25) be granted.1

 Both Defendant and the government 

filed Objections to the R&R. (Docs. 60, 61.) For the reasons stated herein, the Court 

adopts the R&R with respect to Doc. 24 and rejects the R&R with respect to Doc. 25. 

STANDARD OF REVIEW 

The Court reviews de novo the objected-to portions of the R&R. 28 U.S.C. § 

636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to 

 

1

 The R&R also recommended that Defendant’s Motion to Suppress evidence of 

Defendant’s prior arrest for alien smuggling be granted. Neither party objected to that portion of the R&R and the Court finds no clear error in that portion of the R&R. Therefore the Court will adopt the recommendation of the Magistrate Judge with respect to the Defendant's prior arrest as a preliminary ruling as to the admissibility of that evidence. 

Case 4:15-cr-01868-JGZ-BPV Document 69 Filed 04/29/16 Page 1 of 8
- 2 - 

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 

portions of the R&R. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); 

see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998). If the Court rejects 

the credibility findings of the magistrate judge, a de novo hearing is required. United 

States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir. 2002). 

FACTUAL BACKGROUND 

 The factual background contained in Magistrate Velasco’s R&R (Doc. 57) is 

adopted as supplemented by the additional facts stated in this Order. United States 

Border Patrol Agent Eric Jaramillo was the sole witness to testify at the evidentiary 

hearing on the motions. The Court notes that while the parties dispute the legal 

significance of Agent Jaramillo's observations, they do not dispute the veracity of his 

observations. 

DISCUSSION 

The Defendant objects to the Magistrate Judge’s finding that Agent Jaramillo had 

reasonable suspicion to stop Defendant’s vehicle on September 22, 2015. The 

Government objects to the Magistrate Judge’s finding that Agent Jaramillo’s search of 

the vehicle exceeded the scope of the search to which Defendant had consented. The 

Court concludes that Agent Jaramillo's stop of Defendant's vehicle was supported by 

reasonable suspicion. The Court further finds that Agent Jaramillo’s search did not 

exceed the scope of Defendant’s consent and that, regardless of Defendant’s consent, 

Agent Jaramillo had probable cause to search Defendant’s vehicle. Accordingly, the 

Court will deny Defendant's Motions to Suppress. 

1. Agent Jaramillo had reasonable suspicion to stop Defendant’s vehicle 

A border patrol agent may conduct “brief investigatory stops” without violating 

the Fourth Amendment “if the officer's action is supported by reasonable suspicion to 

believe that criminal activity may be afoot.” United States v. Valdes-Vega, 738 F.3d 

1074, 1078 (9th Cir. 2013) (citing United States v. Arvizu, 534 U.S. 266, 273 (2002)). 

Reasonable suspicion is defined as “a particularized and objective basis for suspecting the 

particular person stopped of criminal activity.” Id. (citation omitted). The reasonableCase 4:15-cr-01868-JGZ-BPV Document 69 Filed 04/29/16 Page 2 of 8
- 3 - 

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 

suspicion standard is not a particularly high threshold to reach. Id. “Although ... a mere 

hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to 

the level required for probable cause, and it falls considerably short of satisfying a 

preponderance of the evidence standard.” Arvizu, 534 U.S. at 274. When reviewing a 

border patrol officer's reasonable suspicion, the Court must consider the totality of the 

circumstances, including characteristics of the area, proximity to the border, usual 

patterns of traffic and time of day, previous alien or drug smuggling in the area, behavior 

of the driver, appearance or behavior of passengers, and the model and appearance of the 

vehicle and the agent’s training and experience. See Valdes-Vega, 738 F.3d at 1079 

(citing United States v. Brignoni–Ponce, 422 U.S. 873, 884–85 (1975)). Not all of these 

factors must be present or highly probative in every case to justify reasonable suspicion. 

See id. 

Agent Jaramillo's testimony established that numerous factors are present in this 

case. On September 22, 2015, Agent Jaramillo was assigned to roving patrol because the 

Highway 191 Border Patrol checkpoint was closed due to rain. (Doc. 54, pg. 6.) In Agent 

Jaramillo’s eight years of experience and training, drug and alien smuggling operations 

use closed checkpoints as an opportunity to transport illegal loads. (Id., pgs. 4, 6, 9.) 

While on roving patrol, Agent Jaramillo observed a Ford F-250 truck with an amber light 

on the roof consistent with a commercial vehicle, but the truck did not have any other 

markings to suggest it was a commercial vehicle. (Id., pg. 11.) The license plate on the 

truck did not have letters typically assigned to commercial vehicles. (Id.) The truck had 

been newly-registered in Defendant’s name; Agent Jaramillo knew from his training and 

experience that smugglers often transport illegal cargo in newly-registered vehicles. (Id., 

pg. 16.) A newly-registered Jeep SUV was traveling 15-20 car lengths behind the F-250; 

the traffic on that day was light and, apart from the F-250 and the Jeep traveling close 

together, Agent Jaramillo had observed a car pass by only every few minutes.2

 The Jeep 

 

2

 The Court has not considered Agent Jaramillo’s testimony that he believed the vehicles were traveling together because they both passed the Dragoon Road turnoff, which is believed to be a short-cut to Tucson. At the time of the stop, Agent Jaramillo 

Case 4:15-cr-01868-JGZ-BPV Document 69 Filed 04/29/16 Page 3 of 8
- 4 - 

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 

had entered the United States through the Douglas Port of Entry that morning. (Id., pg. 

13.) Both the F-250 and the Jeep had Treasury Enforcement Communication System 

(TECS) alerts: the Jeep had been involved in narcotics smuggling and Defendant -- the 

registered owner of the F-250 -- had a prior arrest for alien smuggling. (Id., pgs. 13-17.) 

 Under the totality of the circumstances, Agent Jaramillo had reasonable suspicion 

to stop Defendant’s Ford F-250. At the time of the stop, Agent Jaramillo knew Defendant 

had a prior arrest for alien smuggling and was driving along a known smuggling route 

when smuggling was believed to be more likely due to the checkpoint closure. 

Defendant’s vehicle was traveling in close proximity with another vehicle that had 

recently crossed the border and was known to be involved in narcotics smuggling. The 

fact that the two vehicles were traveling together was inconsistent with the light traffic 

pattern at the time, suggesting that the vehicles were driving in tandem. Defendant’s 

vehicle and the Jeep were newly-registered vehicles; Agent Jarmillo knew from his 

training and experience that newly-registered vehicles such as Defendant’s were more 

likely to be used in smuggling operations. These factors, taken as a whole, formed an 

objective basis for Agent Jaramillo to reasonably suspect that Defendant was involved in 

illegal activity.3

 

2. Agent Jaramillo’s search did not exceed the scope of Defendant’s consent, but 

 even if it did, Agent Jaramillo had probable cause to search behind 

 Defendant’s back seat 

 The Magistrate Judge concluded that Agent Jaramillo’s search of Defendant’s 

vehicle exceeded the scope of Defendant’s consent because Defendant had only agreed 

that Agent Jaramillo could “look” in the backseat, and Agent Jaramillo discovered drugs 

 had no reason to believe the vehicles were traveling to Tucson as opposed to Willcox. (Id., pg. 12.) 

3

 The Court disagrees with Defendant's assertion that Agent Jaramillo's observations amount to unfounded assumptions and broad profiles. Although some of the facts observed by Agent Jaramillo may also be indicative of innocent behavior, in 

combination, under the totality of the circumstances, they amount to reasonable suspicion. 

Case 4:15-cr-01868-JGZ-BPV Document 69 Filed 04/29/16 Page 4 of 8
- 5 - 

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 Defendant’s car after moving the back seat rest forward.4 (Doc. 57, pgs. 3-4.) In the 

pending Objection, the government argues that Agent Jaramillo’s search did not exceed 

the scope of Defendant’s consent, and that even if it did, Agent Jaramillo had probable 

cause to search the vehicle.5

 The Court agrees. 

“[T]he standard for measuring the scope of a suspect's consent under the Fourth 

Amendment is that of ‘objective’ reasonableness—what would the typical reasonable 

person have understood by the exchange between the officer and the suspect?” Florida v. 

Jimeno, 500 U.S. 248, 251 (1991). It is “objectively reasonable” for a police officer to 

believe that a consent to search a specific area authorizes the opening of “a closed 

container found within [the area] that might reasonably hold the object of the search.” Id. 

at 249. Failure to object to the continuation of a vehicle search after giving general 

consent to search “is properly considered as an indication that the search was within the 

scope of the initial consent.” United States v. Cannon, 29 F.3d 472, 477 (9th Cir. 1994). 

Here, a reasonable person would have understood that Agent Jaramillo’s request to 

“look” in the back seat could include moving the back seat rest forward in order to see 

the entire back seat area of the truck cab. Agent Jaramillo stopped Defendant based on a 

reasonable suspicion that Defendant was engaged in drug smuggling: it was objectively 

reasonable for Agent Jaramillo to also believe that Defendant’s consent authorized 

moving the back seat rest forward to look for drugs hidden behind it. Finally, Defendant 

did not object when Agent Jaramillo moved the back seat rest forward, which further 

indicates that Agent Jaramillo was operating within the scope of Defendant’s consent. 

See Cannon, 29 F.3d at 477 (search was within scope of consent where defendant did not 

protest when officer searched the interior of the car, including the glove compartment, or 

when officer walked around to the trunk and used defendant’s key to open it). 

 

4

 The Magistrate Judge did not address Defendant's argument that his consent was not voluntarily given. Defendant does not re-urge this argument in his objections and the Court considers the argument abandoned. 

5

 The government raised its probable cause argument in its response to Defendant’s Motion to Suppress evidence obtained as a result of the vehicle search, but 

the Magistrate Judge did not address that argument in his R&R. (Doc. 33, pgs. 6-7.) 

Case 4:15-cr-01868-JGZ-BPV Document 69 Filed 04/29/16 Page 5 of 8
- 6 - 

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 

 Regardless of whether Agent Jaramillo’s search was within the scope of 

Defendant’s consent, Agent Jaramillo’s search was supported by probable cause. Under 

the automobile exception to the Fourth Amendment's warrant requirement, the police 

may search an automobile and the containers within it where they have probable cause to 

believe contraband or evidence is contained. See United States v. Cervantes, 703 F.3d 

1135, 1139 (9th Cir. 2012) (citing California v. Acevedo, 500 U.S. 565, 580 (1991)). An 

officer will have probable cause to search if there is a fair probability that contraband or 

evidence of a crime will be found in a particular place, ‘based on the totality of 

circumstances. See id. (citing Dawson v. City of Seattle, 435 F.3d 1054, 1062 (9th Cir. 

2006)). If a law enforcement officer has probable cause to search a vehicle, that probable 

cause extends to all contents in the vehicle that could be connected to the suspected 

criminal activity. United States v. Ewing, 638 F.3d 1226, 1231 (9th Cir. 2011). 

 At the time Agent Jaramillo pulled Defendant’s back seat forward, he knew, in 

addition to the information he observed before the stop, that Defendant claimed to be 

traveling from Douglas to Tucson to buy auto parts for the F-250, which he had 

purchased the week before. (Doc. 54, pg. 19.) Agent Jaramillo was aware that there is an 

auto parts store in Douglas and two other auto parts stores along the portion of Highway 

191 that Defendant had just traveled. (Id.) Agent Jaramillo asked if he could look in the 

back seat, and Defendant agreed, saying that the back seat contained only tools. (Id., pg. 

20.) When Agent Jaramillo opened the back door, he immediately detected a strong odor 

of axle grease, which he knew from his experience is used to mask the odor of narcotics. 

(Id., pg. 23.) Contrary to Defendant’s statement, there were no tools in the back seat.6

(Id., pgs. 23-24; see also Exhibit 5.) The back seat of Defendant’s F-250 had an 

obviously lumpy appearance, as though something was stuffed into the seat. (Id.) After 

pulling the back seat rest forward, Agent Jaramillo could see rectangular objects wrapped 

 

6

 Agent Jaramillo testified that he could not recall whether there were tools in the 

back seat. (Doc. 54, pg. 36.) No tools are visible in Exhibit 5. 

Case 4:15-cr-01868-JGZ-BPV Document 69 Filed 04/29/16 Page 6 of 8
- 7 - 

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 cellophane, which he recognized as marijuana, exposed from under the upholstery.7 

(Id., pgs. 24-25, 44; see also Exhibit 6.) 

The Magistrate Judge found that Agent Jaramillo’s search of Defendant’s vehicle 

began when Agent Jaramillo moved the back seat rest forward. (Doc. 57, pg. 3.) 

Assuming that to be true, the Court concludes that Agent Jaramillo had probable cause to 

search Defendant’s vehicle at that time. Agent Jaramillo had already stopped Defendant 

based on a reasonable suspicion that Defendant was engaged in smuggling. In addition to 

all the knowledge that contributed to the stop, Agent Jaramillo also knew that Defendant 

had provided an implausible explanation for his trip. Agent Jaramillo could smell a 

known masking agent emanating from the back seat. In addition, and most persuasive to 

this Court, the photo of Defendant’s back seat, admitted as Exhibit 5, shows the obvious 

lumps pushing against or underneath the back seat upholstery which have no logical 

place in a newly purchased, newly registered vehicle. The lumps compel the conclusion 

that the back seat rests have been stuffed with something. In light of the other 

circumstances surrounding Defendant’s stop, Agent Jaramillo had probable cause to 

conclude that the “something” within the vehicle upholstery was drugs. 

CONCLUSION 

 After an independent review of the pleadings, exhibits and transcript, IT IS 

HEREBY ORDERED that: 

1. The Report and Recommendation (Doc. 57) is ACCEPTED in part and 

REJECTED in part; 

2. Defendant’s Motion to Suppress evidence of Defendant’s prior arrest for alien 

smuggling (Doc. 23) is GRANTED; 

3. Defendant’s Motion to Suppress evidence obtained as a result of his traffic stop 

(Doc. 24) is DENIED; 

// 

 

7

 Exhibit 7 shows the marijuana in the back seat rest once the back seat cover has 

been pulled back, following Defendant’s arrest. Agent Jaramillo testified that he did not need to pull back the seat cover in order to see the marijuana. (Doc. 54, pg. 25.) 

Case 4:15-cr-01868-JGZ-BPV Document 69 Filed 04/29/16 Page 7 of 8
- 8 - 

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 

Defendant’s Motion to Suppress evidence obtained as a result of a vehicle search 

(Doc. 25) is DENIED. 

 Dated this 28th day of April, 2016. 

Case 4:15-cr-01868-JGZ-BPV Document 69 Filed 04/29/16 Page 8 of 8