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United States v. Paz Miralda

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

July 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS ENRIQUE PAZ MIRALDA, Defendant.

          REPORT AND RECOMMENDATION

          HELEN C. ADAMS, CHIEF U.S. MAGISTRATE JUDGE

         I. INTRODUCTION

         The matter before the Court is Defendant's Motion to Suppress filed on May 6, 2019 [20]. The Government filed a resistance on May 24, 2019 [29]. An evidentiary hearing was held by the undersigned on June 20, 2019 [34]. Attorney Melanie Keiper appeared for Defendant. Assistant United States Attorney MacKenzie Tubbs appeared for the Government [34]. The Government called two witnesses at the evidentiary hearing, Immigration and Customs Enforcement (ICE) Officers Jason Mulford and Stephen Gampp. The Court admitted Government's Exhibit 1 and Defense Exhibits A and B into evidence.

         The Government charged Defendant with illegal reentry into the United States following deportation [1]. See also (Def. Mot. to Suppress [20] ¶ 1). On February 12, 2019, at 11:30 a.m., in Des Moines, Iowa, ICE Officers Mulford and Gampp stopped the vehicle Defendant in which Defendant was a passenger. (Id. ¶ 2). Officers Mulford and Gampp stopped the vehicle in an effort to arrest a different target individual suspected of illegal reentry, Mario Figueroa. Defendant “moves to suppress all evidence obtained through the illegal stop of the vehicle in which he was a passenger, and his subsequent illegal seizure.” (Id. at 1). Defendant contends the ICE Officers lacked reasonable and articulable suspicion to initiate the traffic stop, and that once stopped, Officer Mulford elicited incriminating testimony from Defendant without first advising him of his Miranda rights. (Id. ¶ 2).

         II. FACTUAL AND PROCEDURAL HISTORY

         In January of 2019, Officer Mulford received information that an individual named Mario Figueroa had illegally re-entered the United States. (Tr. Mot. Hearing [35] at 10 ¶¶ 2-3). Officer Mulford was apprised of Mario Figueroa's reentry status while investigating a different ICE fugitive. (Id. ¶¶ 5-8). When investigating the address which the original ICE fugitive had provided, 1602 8th St. in Des Moines, Officer Mulford ran the license plate of a gray 2002 Chevy Trailblazer (“the SUV”) parked at the 8th St. residence. (Id. at 10-12). The SUV was registered to Figueroa, also listed as residing at the address of 1602 8th St. (Id. at 12 ¶¶ 12-25); see also (Gov. Resistance; Exhibit 1 [29-2]).

         Officer Mulford discovered that Figueroa previously had been removed and a records check revealed no indication that Figueroa subsequently had re-entered the country legally. (Tr. Mot. Hearing [35] at 11 ¶¶ 1-5). Through his records check of Figueroa, Officer Mulford obtained a color photograph of Figueroa from the ICE database. (Id. at 10 ¶¶ 19-24; 26 ¶¶ 9-11).

         Officer Mulford then surveilled the 1602 8th St. address a handful of times between initially learning about Figueroa and February 12, 2019. (Id. at 13 ¶¶ 1-7). To facilitate his surveillance of Figueroa, Officer Mulford compiled a Field Operations Worksheet (“FOW”). (Id. at 25 ¶¶ 3-13). The FOW was a one-page summary of information necessary to identify Figueroa, including among other things, Figueroa's: height, weight, eye color, hair color, complexion, age, sex, country of citizenship, and address. See (Id. ¶¶ 19-21). The photo of Figueroa obtained from the ICE database, although in black and white, also was included on the FOW. (Id. at 26 ¶¶ 21-22).

         In the early afternoon of February 12, 2019, Officer Mulford was performing surveillance of the 1602 8th St. residence. (Id. at 13 ¶¶ 8-12). He was within a block of the residence while conducting surveillance. (Id. at 15 ¶ 10). He was wearing plain clothes and was in an unmarked vehicle, the typical practice when conducting surveillance. (Id. at 13 ¶¶ 13-23). To identify himself as an ICE Officer, he wore his ICE badge on his left hip and carried his ICE credentials in his pocket. (Id. ¶¶ 18-21; 14 ¶¶ 20-24). After about an hour or two, Officer Mulford observed two males exit the back of the residence and enter the SUV, which was parked in the driveway of the residence. (Id. at 15 ¶¶ 3-4; 23 ¶¶ 4-6). Officer Mulford testified that both individuals matched the description of Figueroa: they shared similar height (between 5'6-5'8), weight, build, and stature. (Id. at 15 ¶¶ 5-7). Officer Mulford testified on cross-examination that Figueroa is 39 years old with black hair and Defendant is 54 years old and bald. (Id. at 23 ¶¶ 22-25; 24 ¶¶ 1-2; 29 ¶¶ 23-25; 30 ¶¶ 1-3). He testified that he was not 100% sure that either individual was Figueroa, but it was likely that one of them was based on the above shared characteristics and the link between Figueroa, the SUV, and the residence. (Id. at 29 ¶¶ 19-22).

         At that point, Officer Mulford notified another ICE Officer nearby, Officer Gampp, who was in a separate unmarked vehicle. (Id. at 15 ¶¶ 12-15). Officer Gampp had surveilled the 1602 8th St. residence on February 11, 2019, and had seen an individual matching Figueroa's description doing yardwork but did not make contact. (Id. at 42 ¶¶ 3-15; 50 ¶¶ 6-25; 51 ¶¶ 1-5). On February 12, 2019, Officer Gampp also was dressed in plain clothes. (Id. at 43 ¶¶ 23-24). He was armed, but his firearm was appended to his hip and was not visible. (Id. at 52 ¶¶ 22-25; 53 ¶¶ 1-3). Officer Gampp drove by the residence in time to see the individuals enter the SUV. (Id. at 44 ¶¶ 2-7). Officer Gampp had the FOW with him and had reviewed the photograph of Figueroa prior to this incident. (Id. ¶¶ 8-10; 51 ¶¶ 9-14). He also believed both individuals matched the description of Figueroa based on their height, weight, and hair. (Id. at 44 ¶¶ 11-16). Officer Gampp was not 100% positive either individual was Figueroa. (Id. at 54 ¶¶ 3-11). Officer Gampp then drove past the home in the direction he believed the SUV would travel to position himself to make a vehicle stop. (Id. at 44 ¶¶ 17-21).

         Officers Mulford and Gampp performed a vehicle stop of the SUV. (Id. ¶¶ 22-23). In making the stop, the officers turned on the emergency lights on their unmarked vehicles, which are generally in the grill and lights of the vehicles. (Id. at 32 ¶¶ 15-25). Because the officers were aware there was a passenger in the vehicle, to ensure officer safety Officer Gampp approached the driver's side of the SUV while Officer Mulford approached the passenger's side. (Id. at 34 ¶¶ 4-9). On the driver's side, Officer Gampp identified himself to the driver by his badge on his necklace and referred to himself as “Officer Gampp.” (Id. at 45 ¶¶ 12-18). He then asked the driver for identification. (Id. ¶ 18). The driver provided Officer Gampp with an identification card bearing the name of Mario Figueroa. (Id. ¶ 19-23). Officer Gampp knew that was the name of Officer's Mulford's target. (Id. ¶ 24-25; 46 ¶ 1). Officer Gampp then arrested the driver. (Id. at 46 ¶¶ 2-4).

         Simultaneously on the passenger's side, Officer Mulford identified himself to the passenger as an immigration officer, and believes he also showed the passenger his “credentials” which contains, inter alia, his badge and photograph. (Id. at 36 ¶¶ 8-22). Officer Mulford asked Defendant his name, and Defendant answered while simultaneously handing Officer Mulford a Honduran ID bearing his name. (Id. at 16 ¶¶ 10-12). Officer Mulford then asked if Defendant was a citizen of Honduras and if he had any permission to be in the United States. (Id. ¶¶ 13-16). Defendant responded that he was a citizen of Honduras and did not have permission to be in the United States. (Id. ¶¶ 17-19). At that point, Officer Mulford made an administrative arrest of Defendant. (Id. ¶¶ 20-25). Officer Mulford could not remember if he spoke in English or Spanish during this exchange, but testified that he speaks Spanish, and would have used whatever language Defendant was using. (Id. at 36 ¶¶ 23-25; 37 ¶¶ 1-6). Officer Mulford was not aware that the driver of the vehicle was indeed Figueroa until after the two suspects had been questioned in the vehicle. (Id. at 34 ¶¶ 10-25).

         Both Defendant and Figueroa were subsequently taken to the ICE Removal Office in Des Moines. (Id. at 17 ¶¶ 1-3). Agent Gampp took Defendant's fingerprints and asked him some biographical information. (Id. at 58 ¶¶ 18-25; 59 ¶¶ 1-10). Defendant was later Mirandized and subsequently gave a sworn statement admitting that he illegally reentered the United States. (Id. at 59 ¶¶ 8-15); see also (Def Exhibit A [21]).

         Officer Gampp authored a report of investigation as pertaining to Defendant. The report relayed in pertinent part that “two subjects closely matching the targeted subject's physical description entered an SUV.” (Id. at 53 ¶¶ 16-21). The report also included the phrase, “due to the early hour, lack of ambient lighting, and the officers' position on the street, a positive ID could not be made.” (Id. at 55 ¶¶ 4-6). Officer Gampp testified that the report about “the early hour, lack of ambient lighting, and the officers' position on the street” was a mistake, in that it was language carried over from a draft report of a different investigation. (Id. at 43 ΒΆΒΆ 5-12). Regarding the statement in the report that ...


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