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United States v. Lopez-Tubac

United States District Court, N.D. Iowa, Central Division

August 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MISAEL SAQUEO LOPEZ-TUBAC, Defendant.

          ORDER ON REPORT AND RECOMMENDATION

          LEONARD T. STRAND, CHIEF JUDGE.

         This matter is before me on a Report and Recommendation (R&R) (Doc. No. 29) in which the Honorable C.J. Williams, Chief United States Magistrate Judge, recommends that I deny defendant's motion (Doc. No. 22) to suppress evidence stemming from a traffic stop on May 8, 2018. Defendant Misael Saqueo Lopez-Tubac (Lopez-Tubac) filed timely objections (Doc. No. 39) on August 8, 2018.

         I. BACKGROUND

         A. Procedural History

         On June 6, 2018, the grand jury returned an indictment (Doc. No. 2) charging Lopez-Tubac with four counts of unlawful use of identification document in violation of 18 U.S.C. § 1546(a) and four counts of misuse of a social security number in violation of 42 U.S.C. § 408(a)(7)(B). On July 5, 2018, Lopez-Tubac filed a motion (Doc. No. 22) to suppress evidence obtained as a result of a traffic stop on May 8, 2018. The Government filed a resistance (Doc. No. 24) on July 12, 2018. Judge Williams held a hearing on July 18, 2018. At the hearing, the Government presented testimony from Deportation Officer (DO) Bryce Callison with Immigration and Customs Enforcement (ICE). Doc. No. 25. Judge Williams admitted six Government exhibits. See Doc. Nos. 24-2 through 24-7. Lopez-Tubac asserted an additional basis for the motion at the hearing and the parties were allowed to submit supplemental briefing on the issue. Doc. Nos. 26, 27.

         Judge Williams issued his R&R (Doc. No. 29) on July 26, 2018. Lopez-Tubac filed timely objections (Doc. No. 39) on August 8, 2018. Lopez-Tubac has entered a conditional plea of guilty to Count 1 of the indictment. See Doc. No. 33.

         B. Relevant Facts

         Judge Williams summarized the following relevant facts in his R&R based on the exhibits and testimony presented during the suppression hearing:

In January, 2017, authorities in Bremer County, Iowa alerted immigration officials to the presence of an immigrant (target) who was present in the country illegally. The target had been previously removed from the United States in 2011. From the target's past removal record, Immigration and Customs Enforcement (ICE) Deportation Officer (DO) Bryce Callison was able to obtain the target's height, weight, eye color, hair color, and a booking photograph from 2011. The record indicated that the target was sixty-three inches tall, weighed 187 pounds, had brown eyes, and brown hair. Bremer County authorities alerted ICE that the target had been arrested for drunk driving. No. photograph from the January 2017, arrest was provided. The address on the vehicle registration matched the address the target provided at the time of his arrest. The address was to a home in a mobile home court located in Waterloo, Iowa.
In February 2017, DO Callison completed the required paperwork to allow him to conduct surveillance and arrest the target. DO Callison made contact with the manager of the mobile home court shortly thereafter and inquired as to whether the target lived in the mobile court. After viewing the photograph from the target's 2011 removal, the manager confirmed that the target lived in the mobile home court at the address the target gave officers at the time of his January 2017 arrest.
Between February, 2017 and May, 2018, ICE agents attempted to locate and arrest the target multiple times. In March of 2018, ICE agent conducting surveillance of the target residence identified the vehicle associated with the target from the previous drunk driving arrest. On the morning of May 8, 2018, DO Callison again conducted surveillance of the target's residence, backing his vehicle into a parking spot so that the front of his vehicle was facing the direction of the target's home, although DO Callison did not have a direct view of the home. At approximately 6:20 AM on May 8, 2018, while conducting surveillance at the target residence, DO Callison observed a vehicle arrive and park on a street in front of the target residence. DO Callison was positioned such that the vehicle stopped in front of DO Callison with the front of that vehicle facing to DO Callison's right. The target residence was on the far side of the vehicle. DO Callison observed defendant approach the recently arrived vehicle from the direction of the target residence. Defendant crossed behind the recently arrived vehicle, passed between the recently arrived vehicle and DO Callison, and entered the recently arrived vehicle on the passenger side. DO Callison estimated that defendant passed within 30 feet of him.
DO Callison believed defendant to be the target. DO Callison believed defendant matched the approximate height and weight of the target, and that his face appeared similar to the target.
DO Callison followed the recently arrived vehicle as it departed the area of the target residence. DO Callison radioed for assistance and initiated a stop of the vehicle after following defendant for approximately ten minutes. Once stopped, DO Callison approached the driver-side of the target vehicle. DO Callison identified himself as an immigration officer and spoke directly to defendant, who was seated on the passenger side. DO Callison initially spoke English, but switched to speaking Spanish when he realized defendant could not understand him well enough to answer questions. DO Callison requested defendant's name, asked defendant what his country of citizenship was, and inquired as to whether defendant had permission to be in the United States. During this time, the supporting agents arrived on scene. Defendant identified himself as Misael Saqueo Lopez-Tubac, stated that he was a citizen of Guatemala, and stated that he did not have permission to be in the United States. A supporting agent asked to see defendant's identification. Defendant produced a Guatemalan consular identification card. The consular identification card matched the name defendant gave to DO Callison. To confirm that defendant was not the target, supporting agents took defendant's fingerprints and input them into ICE's computerized system. The system confirmed that defendant was not the target, but indicated that defendant had been previously charged with an immigration offense. Defendant was administratively arrested and taken to the ICE office in Cedar Rapids, Iowa, for further processing.
While defendant was fingerprinted, DO Callison questioned the driver. The driver was a Hispanic male and did not resemble the target. The driver indicated that he and defendant were on their way to work. The driver identified their place of employment as a business in Shell Rock, Iowa. ...

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