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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Andrew Paul Mize, et al. 

Defendants. 

No. CR-16-00219-TUC-JGZ (DTF)

ORDER 

 Pending before the Court is a Report and Recommendation (R&R) issued by 

United States Magistrate D. Judge Thomas Ferraro. Judge Ferraro recommends that 

Defendant Slayden’s Motion to Suppress (doc. 58) and Defendant Mize’s Motion to 

Sever (doc. 62) be denied. (Doc. 85.) After review of the record, including Defendant 

Slayden’s objections to the Report, the Court will adopt the R&R and order that the 

motions be denied. 

STANDARD OF REVIEW 

 The Court reviews de novo the objected-to portions of the Report and 

Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for 

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

// 

// 

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DISCUSSION

I. Defendants’ Motion to Suppress 

 Defendants1

 move to suppress evidence seized at the Border Patrol checkpoint 

following the search of Defendants’ vehicle on the grounds that the video of the “free air 

canine search does not show the canine alerting and that the agents therefore did not have 

reasonable suspicion to conduct the subsequent search of the vehicle. (Doc. 58, p. 9.) In 

the R&R, Judge Ferraro recommends denying Defendants’ Motion to Suppress on the 

grounds that the “collective knowledge” of the Border Patrol agents and the National 

Park Service ranger was sufficient to create a reasonable suspicion, prior to the time the 

canine unit was called to conduct the free air canine search. United States v. Villasenor, 

608 F.3d 467, 475 (9th Cir. 2010). Judge Ferraro found that the agents’ knowledge 

included the characteristics of the white utility truck, patterns of traffic to and from the 

Gringo Pass RV Park, evidence of foot traffic near a cut area of the border fence, and the 

behavior of Defendants when questioned by Agent Smith. (Doc. 85, pp. 6-7.) In his 

objection, Defendant Slayden argues that there was no reasonable suspicion prior to the 

canine search, or else the agents would not have waited 45 minutes for the canine unit to 

arrive. (Doc. 100.) 

 Having independently reviewed the evidence, this Court concludes that reasonable 

suspicion existed prior to the canine search. Agent Smith’s observations about the utility 

truck, including the “void” area positioned under the air compressor and the lack of a 

professional appearance to the vehicle; the agents’ familiarity with the Gringo Pass RV 

park; the evasive and inconsistent answers given by Defendant Slayden regarding 

electrical work being done there; and the information communicated to Agent Smith by 

Ranger Rinck and Agent Hughes, all give rise to an objective and reasonable inference of 

criminal activity that formed the basis of a particularized suspicion. See United States v. 

Villasenor, 608 F.3d 467, 473 (9th Cir. 2010) (“Reasonable suspicion “exists when an 

officer is aware of specific, articulable facts which, when considered with objective and 

 

1

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reasonable inferences, form a basis for particularized suspicion.”); see also United States 

v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013) (“totality of the circumstances may 

include 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”). 

The fact that the agents waited 45-50 minutes for the canine unit to arrive is irrelevant, as 

the test for reasonable suspicion is measured by the “objective reasonable man standard,” 

not by the subjective impressions of any particular officer. Gonzalez-Rivera v. I.N.S., 22 

F.3d 1441, 1445 (9th Cir. 1994). Accordingly, the Court rejects the Defendant’s 

objections and adopts the conclusions of the Magistrate Judge with regards to 

Defendants’ Motion to Suppress. 

II. Defendant Mize’s Motion to Sever 

 The Court finds no clear error in the Magistrate Judge’s conclusion that Defendant 

Mize has failed to show prejudice sufficient to justify severance under Fed. R. Crim. P. 

14. Even assuming that Defendant Slayden and Defendant Mize each argue that the codefendant is responsible for the crime, this is the type of conflicting defenses that can be 

remedied by jury instruction. Zafiro v. United States, 506 U.S. 534, 539-40 (1993) 

(rejecting co-defendants’ arguments that the very nature of their defenses, without more, 

prejudiced them); United States v. Mayfield, 189 F.3d 895, 903 (9th Cir. 1999) (defendant 

must show more than the co-defendants’ defenses merely “conflict” or are “mutually 

antagonistic”). Finally, the Court agrees with the Magistrate Judge that Defendant Mize 

has not explained how a severance would resolve any perceived inability to effectively 

cross-examine Slayden concerning the video recording or how a severance would allow 

him to obtain the contents of Slayden’s phone. See Zafiro, 506 U.S. at 539 (“[A] district 

court should grant a severance under Rule 14 only if there is a serious risk that a joint 

trial would compromise a specific trial right of one of the defendants, or prevent the jury 

from making a reliable judgment about guilt or innocence.”). 

// 

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CONCLUSION

 Accordingly, IT IS HEREBY ORDERED as follows: 

1. The Report and Recommendation (doc. 85) is ACCEPTED AND ADOPTED; 

2. Defendant Slayden’s Motion to Suppress (doc. 58) is DENIED; 

3. Defendant Mize’s Motion to Sever (doc. 62) is DENIED. 

 Dated this 8th day of November, 2016. 

Honorable Jennifer G. Zipps

United States District Judge

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