United States District Court, S.D. Iowa, Central Division
REPORT AND RECOMMENDATION
C. ADAMS, CHIEF U.S. MAGISTRATE JUDGE
matter before the Court is Defendant's Motion to Suppress
filed on May 6, 2019 . The Government filed a resistance
on May 24, 2019 . An evidentiary hearing was held by the
undersigned on June 20, 2019 . Attorney Melanie Keiper
appeared for Defendant. Assistant United States Attorney
MacKenzie Tubbs appeared for the Government . 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
Government charged Defendant with illegal reentry into the
United States following deportation . See also
(Def. Mot. to Suppress  ¶ 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).
FACTUAL AND PROCEDURAL HISTORY
January of 2019, Officer Mulford received information that an
individual named Mario Figueroa had illegally re-entered the
United States. (Tr. Mot. Hearing  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]).
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  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).
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).
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
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).
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).
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).
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 ).
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
¶¶ 5-12). Regarding the statement in the report