United States District Court, N.D. Iowa, Cedar Rapids Division
REPORT AND RECOMMENDATION
JON STUART SCOLES, Chief Magistrate Judge.
On the 18th day of December 2014, this matter came on for hearing on the Motion to Suppress (docket number 22) filed by the Defendant on December 3, 2014. The Government was represented by Assistant United States Attorneys Timothy L. Vavricek and Daniel C. Tvedt. Defendant Juan Pablo Jarquin-Espinoza appeared in person and was represented by his attorney, Rockne O. Cole.
II. PROCEDURAL HISTORY
On October 30, 2014, Defendant Juan Pablo Jarquin-Espinoza was charged by Indictment with unlawful use of an identification document (Count 1), misuse of a social security number (Count 2), and making a false claim to U.S. citizenship (Count 3). Defendant appeared on November 4 and entered a plea of not guilty. Trial was scheduled before Chief Judge Linda R. Reade on January 5, 2015.
On December 3, 2014, Defendant timely filed the instant motion to suppress. The Government filed its resistance on December 12. Because of the pending motion to suppress, the trial was continued to February 17.
III. RELEVANT FACTS
The facts underlying the instant motion are generally undisputed. At approximately 11:30 p.m. on September 27, 2014, Defendant walked into the Riverside Casino and presented a California identification card for admittance. The card identified Defendant as Hugo A. Salazar, with a California address. The employee who initially reviewed the card believed it was fake and called Jack Michael, the security shift manager. Michael also believed it was fake and he called for Special Agent Kevin Gould of the Iowa Division of Criminal Investigation ("DCI").
The DCI has an office in the back of the Riverside Casino. At that time, Agent Gould was working the 5:00 p.m. to 3:00 a.m. shift. Gould responded to the front of the casino and reviewed the California identification card. According to Gould, the electronic scanning device used at the Casino did not "react" to the ID card. In addition, the card appeared to be "washed out, " faded, printing on the card which was apparently intended to be holographic was not, in fact, holographic, there was no information on the back of the card, and what was supposed to be a magnetic strip on the back of the card was simply a black line. The identification card was also checked against a book of identification cards kept at the casino.
Agent Gould agreed that the identification card was likely a fake. Gould approached Defendant, identified himself and displayed his badge, and asked Defendant to accompany him to the DCI office at the back of the casino. Defendant agreed and walked with Gould through the casino to the DCI office. Gould and Defendant then sat in an interview room, measuring 10 feet by 12 feet, within the "main office." The interview room contained an L-shaped desk with a computer, a chair behind the desk, two chairs in front of the desk nearest the door, and a shelving unit. Gould testified that Defendant was not free to leave while his investigation was ongoing.
According to Agent Gould, the Riverside Casino is located 15-20 miles from the University of Iowa and it is not uncommon for underage students to use fake identification cards to enter the casino. Gould initially believed Defendant was likely an underage student attempting to gain entry. Other exhibits show Defendant was just a few days short of his 23rd birthday at the time of these events.
Initially, Defendant told Agent Gould that he was Hugo Salazar. Gould then "ran" the ID and was told that there was no record of Salazar either in California or Iowa. Gould learned, however, that the name may be associated with Texas. He then checked a Texas database and it came back to a person arrested for sexual assault in Texas. At that point, Gould believed Defendant may be a sex offender who had failed to register in Iowa.
Agent Gould asked Defendant if he had been arrested for sexual assault in Texas. According to Gould, Defendant's response was "slow" and he appeared to be "surprised, " but then he "kind of acknowledged yes." Gould did not have much experience with sex offenders, so he contacted Sergeant Kurt Bailey of the Washington County Sheriff's Office for assistance. Because he didn't believe Defendant was being truthful, Gould checked a Texas sex offender registry website and obtained a photo of the Hugo Salazar who was charged in Texas. The photo did not match Defendant. When Gould showed the photo to Defendant, he admitted that he was not Hugo Salazar.
At that time, Defendant gave what is believed to be his real name - Juan Pablo Jarquin-Espinoza. Defendant did not have any documents, however, showing what he represented to be his true name. Agent Gould ran the new name through an Iowa database, with no results. When Gould asked Defendant why he had lied about his name, Defendant said he was in the country illegally and did not want to be deported. Defendant told Gould that he entered the country on a temporary visa in 2008 and had overstayed. Defendant subsequently graduated from Washington High School in Cedar Rapids. To "corroborate his story, " Defendant gave Gould information regarding his Facebook page and said he worked as a cook at Heinz in Cedar Rapids.
When Sergeant Bailey arrived at the casino, it was decided Defendant would be arrested for unlawful use of a license or non-operator's ID card. Agent Gould arrested Defendant, but Bailey transported him to the Washington County Jail, where he was fingerprinted, photographed, and released. At no time was Defendant ever given a Miranda warning.
Special Agent Benson of the DCI notified Special Agent Tyler Mower of Homeland Security Investigations, who notified Adam Autio, an immigration enforcement agent with Immigration and Customs Enforcement ("ICE"). Autio testified he retrieved Defendant's jail record (Government's Exhibit 2) and used the information to obtain Defendant's Visa application (Government's Exhibit 4). Autio then reviewed the DCI report and learned that Defendant worked at Heinz in Cedar Rapids. Autio then contacted Heinz and asked to review Defendant's I-9 form. In completing the form I-9, Defendant used the alias Hugo Salazar, together with Salazar's social security number. A warrant was then issued for Defendant's arrest.
Following Defendant's arrest on the federal warrant, Autio read Defendant a statement of his Miranda rights and Defendant signed a waiver. See Government's Exhibit 5. In the post- Miranda interview, Defendant admitted that he had purchased the documents bearing the name Hugo Salazar for $1, 000 in Chicago. He used those identifiers in filling out form I-9 so that he would be able to work in the United States.
In his motion to suppress, Defendant asserts that he was unlawfully seized and questioned without being Mirandized, in violation of the Fourth and Fifth Amendments. Accordingly, Defendant argues that any evidence obtained as a result of the unlawful interrogation must be suppressed. The Government argues Defendant was not "interrogated" as that term is used for Miranda purposes, and was not "in custody" in any event.
The Fourth Amendment protects persons "against unreasonable searches and seizures." However, not every contact between the police and the public constitutes a "seizure." The United States Supreme Court has stated repeatedly that a seizure does not occur when a law enforcement officer simply approaches an individual in public and asks questions. See, e.g., United States v. Drayton, 536 U.S. 194, 200 (2002) ("Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen."). A seizure does not occur if the contact remains consensual. Florida v. Bostick, 501 U.S. 429, 434 (1991) ("so long as a reasonable person would feel free to disregard the police and go about his business' the encounter is consensual and no reasonable suspicion is required.") (internal citation omitted). Here, Defendant seemingly concedes that he was not "seized" when he was initially approached by Agent Gould near the casino entrance.
Defendant argues, however, that he was seized when he accompanied Agent Gould to the DCI office in the back of the casino. "A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, ' terminates or restrains his freedom of movement." Brendlin v. California, 551 U.S. 249, 254 (2007) (quoting Bostick, 501 U.S. at 434). When Gould initially approached Defendant, he identified himself as a "state police officer" and displayed his badge. Gould then "asked Mr. Jarquin to follow me back to the DCI office." The record is silent regarding whether Gould returned the ID to Defendant before proceeding to the DCI office, but because Gould conducted additional checks in the back, it seems likely that he retained possession of the ID. Gould testified that if Defendant had attempted to "turn around and walk away, " Gould would not have let Defendant go. That is, according to Gould, Defendant was "detained for investigative purposes." I do not believe a reasonable person under those circumstances would have felt free "to disregard the police and go about his business." Bostik, 501 U.S. at 434. I believe Defendant was seized when Gould took him back to the DCI office.
It does not follow, however, that Defendant's seizure was "illegal" - as claimed by Defendant in his motion - or that it has any particular significance in this case. The Fourth Amendment permits brief investigative stops - so-called Terry stops - when the officer has "a particularized and objective basis for suspecting the particular person stopped of criminal activity." Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683, 1687 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
Police may conduct a brief investigative stop when they have reasonable, articulable suspicion that a person is committing or is about commit a crime. This standard requires that officers be able to point to specific, articulable facts justifying the seizure. Reasonable, articulable suspicion for a Terry stop requires less than probable cause of criminal activity, but the suspicion cannot be based on an "inarticulate hunch." The existence of reasonable, articulable suspicion is determined by the totality of the circumstances, taking into account an officer's deductions and rational inferences resulting from relevant training and experience.
United States v. Horton,
611 F.3d 936, 940 (8th Cir. 2010) (internal citations omitted). Here, Agent Gould was not acting on a mere hunch, but instead had information to suggest that Defendant was using a fake ID. Accordingly, Gould was permitted under the Fourth ...