UNITED STATES COURT OF APPEALS September 16, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2027

SERGIO RUIZ,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:21-CR-01389-KG-1) _________________________________ Amanda Skinner, Assistant Federal Public Defender (Imtiaz Hossain, Assistant Federal Public Defender; and Margaret A. Katze, Federal Public Defender, with her on the brief), Office of the Federal Public Defender, Las Cruces, New Mexico, for Defendant-Appellant. Joni Autrey Stahl, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with her on the brief), Office of the United States Attorney, Las Cruces, New Mexico, for Plaintiff-Appellee. _________________________________ Before TYMKOVICH, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________ BALDOCK, Circuit Judge. _________________________________

United States Customs and Border Patrol (CPB) Officers seized Defendant Sergio Ruiz at the Columbus, New Mexico port of entry with 20.8 kilograms of methamphetamine and an active GPS tracker concealed inside his pickup truck’s spare tire. To prove Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 2

Defendant’s knowledge of the drugs, the Government put on a confidential informant’s testimony identifying Defendant as “Señor de Llanta,” or in English, “Tire Man,” a courier with a twenty-year history of concealing and transporting narcotics in spare tires. Defendant argues the identification should have been suppressed because it was based on a purportedly suggestive pretrial photo array. Setting aside the photo array procedure, we conclude there was no substantial likelihood of misidentification under the totality of the circumstances, where the informant met with Defendant for three separate drug transactions—including a ten-minute face-to-face conversation—and provided consistent, detailed, and accurate descriptions of Defendant before identifying him in the photo array. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

A.

Defendant Sergio Ruiz lived in the border town of Columbus, New Mexico, and crossed into Mexico nearly every day. On the afternoon of April 28, 2021, Defendant entered the Columbus port of entry from Mexico alone in his Chevrolet Silverado pickup. CBP officers recognized him as a regular crosser. But this time was different— Defendant’s truck bed was loaded with cinderblocks, rebar, and two 55-gallon drum barrels. Defendant told officers he had purchased the materials to build a wall at his home. The primary investigating officer, Adrian Alvarado, suspected Defendant’s cargo might be a “commercial load” that he would have declare to customs. Officer Alvarado phoned his supervisor to confirm. During their phone call, Officer Alvarado’s supervisor advised him

2 Appellate Case: 23-2027 Document: 83-1 Date Filed: 09/16/2024 Page: 3

there was a “Be on the Lookout” (BOLO) for someone matching Defendant’s name and physical description for possible narcotics trafficking.

Officer Alvarado referred Defendant to the secondary inspection area for further investigation. There