U.S. v. Perez–partida

• Decision Date: 28 March 2011
• Docket Number: No. 10–CR–2473 MV.,10–CR–2473 MV.
• Citation: 773 F.Supp.2d 1054
• Parties: UNITED STATES of America, Plaintiff,v.Pedro PEREZ–PARTIDA, Defendant.
• Court: U.S. District Court — District of New Mexico

773 F.Supp.2d 1054

UNITED STATES of America, Plaintiff,

v.Pedro PEREZ–PARTIDA, Defendant.

No. 10–CR–2473 MV.

United States District Court, D. New Mexico.

March 28, 2011.

Norman Cairns, United States Attorney's Office, Albuquerque, NM, for Plaintiff.Margaret E. McLean, Santa Fe, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

MARTHA VAZQUEZ, District Judge.

THIS MATTER comes before the Court on Defendant's Motion to Suppress Evidence Obtained as a Result of Violations of the Fourth Amendment [Doc. 17]. The Court conducted a hearing on the Motion on February 3, 2011. After considering the Motion, the Government's Response [Doc. 20], Defendant's Reply [Doc. 24], the relevant law, the evidence and arguments presented at the hearing, and being otherwise fully advised of the premises, the Court finds the Motion should be GRANTED for the reasons stated herein.

BACKGROUND

I. Defendant's Arrest and the Subsequent Discovery of his Identity

The relevant facts of this case are not in dispute. On May 26, 2010, the Albuquerque police department received an anonymous tip regarding possible drug activity at the intersection of San Mateo Boulevard Northeast and Palo Duro Avenue Northeast. The caller told police that someone in a gold Chevrolet Cavalier was “meeting with” drivers in other vehicles. Doc. 20 at 2. Albuquerque Police Detective Dennis Tafoya and another detective established surveillance in the location described by the tipster. They observed a gold Chevrolet Cavalier parked behind another car. A man got out of the front car and entered the gold Cavalier, and then quickly left and returned to his car.

Shortly thereafter, both cars left the area. Detective Tafoya followed the Cavalier for three miles, after which he requested that another officer, Detective Rogers, assist him in making a traffic stop. The officers stopped the vehicle and the driver, later identified as Defendant, gave them a Mexican drivers license. Detective Tafoya spoke to Defendant in broken Spanish. The parties have stipulated that the defense's transcription of this exchange, as well as its translation into English, are accurate. The relevant parts of this exchange are as follows: ¹

Officer: Ok. Like I'm saying, I've been wat ... I'm uh watching you for one day. You drive all here in Albuquerque ok.... I know that y ... that there is smack inside car, derstand? Do you understand?

Defendant: Yes, yes I understand you.

Officer: Ok, uh. You gives me. You give me me ... of your permission for check the car right! ... I can't hear you. Yes or no? ... You do give me permission right!

Defendant: Yes.

Officer: Ok, uh. You know that that ... if you don't ... I have a dog. Imma come in a little while. If he comes and he he find it, you go straight to the the jail first and then immigration. Do you understand? It's that it's ... you want that?

Doc. 17, Attach. B. After Defendant gave what the officers interpreted as his consent to search the vehicle, they discovered cocaine and heroin in the vehicle, and subsequently arrested Defendant.

The officers transported Defendant to the Albuquerque Prisoner Transport Center. Pursuant to Mayor Richard Berry's immigrant policy, ICE agents interviewed Defendant, and he admitted that he was illegally present in the United States. The agents took his fingerprints and discovered his immigration file (hereinafter referred to as Defendant's “A-file”), which named him as Pedro Perez–Nava, aka Pedro Perez–Partida. The agents discovered that Defendant had been previously deported following a drug conviction, and they lodged a federal detainer. Defendant now faces charges for illegally reentering the United States following a conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) & (b).

II. City of Albuquerque Prisoner Transport Center Policy and Partnership with ICE

Shortly after taking office, Mayor Richard Berry of Albuquerque issued an address at the dedication of the newly built Albuquerque Prisoner Transport Center (“PTC”), titled “Ending Sanctuary for Criminals.” Doc. 17, Attach. D. In his address, he explained the overarching goal of the PTC: “[T]o expand our capabilities and to create efficiencies by bringing multiple agencies together in one location with the overall goal of reducing costs and improving public safety.” Id. at 1. The “multiple agencies” involved include local and state law enforcement agencies as well as Immigration and Customs Enforcement (“ICE”). Id. Mayor Berry listed the following primary functions of the PTC: (1) it reduces the transport time of the average arrestee's trip to jail; (2) it saves arresting officers driving and processing time; (3) it allows Albuquerque to process multiple prisoners at one time; (4) it allows for the fingerprinting of “every prisoner that walks through these doors” for purposes of screening for immigration violations; (5) the facility's added space permits pretrial services to process and screen prisoners, securing the immediate release of those who meet certain criteria; and (6) the opening of the PTC has allowed for ICE to work out of the facility. Id. at 1–2. The mayor clarified that ICE would be screening every arrestee, regardless of their nationality, race, or the language they speak. Id. at 3.

After listing these main functions, Mayor Berry concluded: “This agreement with ICE and its implementation will end Albuquerque's status as a sanctuary for criminals.” Id. at 2. The mayor proceeded to focus heavily on the issue of illegal immigration; indeed, the remainder of his remarks focus solely on this issue, rather than the other functions listed above. See id. at 2–5. Mayor Berry framed the opening of the PTC as an important reversal of Albuquerque's previous policy of restricting police officers' ability to check the immigration status of those individuals they arrested. See id. at 2. He stated that the policy ensures “that our police officers and the public know that anytime someone is arrested in Albuquerque for a crime their immigration status is always pertinent.” Id. at 3 (emphasis in original). However, he explained: “I have been clear from the start that for me this is not an immigration issue, this is about public safety.... Immigrants from any nation are welcome in Albuquerque—criminals are not.” Id. at 2–3 (emphasis removed). He then described ICE's function at the PTC: whereas ICE's sporadic presence at Albuquerque's Metropolitan Detention Center (“MDC”) does not permit it to screen every arrestee, at the PTC ICE efficiently screens every arrestee and further employs “biometric technology ... to quickly identify people using fictitious names that may be wanted for violent crimes.” Id. at 5.

III. Evidentiary Hearing Testimony

At the hearing on February 3, 2011, Detective Tafoya did not testify, nor did any other officer who was present or involved in Defendant's arrest. Albuquerque Police Officer Andrew Dominguez testified regarding the booking procedures at the PTC. His role is to take custody of and fingerprint prisoners after the arresting officer completes a form called a “pre-booker” as well as a criminal complaint. 2/3/11 Tr. at 9. He then copies the prisoner's identifying information from the pre-booker—including the name, date of birth, and place of birth—and inputs this information into the Department of Justice's Automated Fingerprint Identification System (“AFIS”). Officer Dominguez followed this procedure with Defendant following his arrest, and he then fingerprinted Defendant. The Government introduced Defendant's fingerprint card, and Officer Dominguez confirmed that he had completed it. On cross-examination, Officer Dominguez confirmed that he has nothing to do with the investigation into the offense of arrest, nor the arrestee's immigration status. He knows that ICE officers are federal immigration officers who are present at the PTC for the purpose of interviewing every arrestee, but he has no knowledge beyond this as to ICE's duties at the PTC.

Following Officer Dominguez's testimony, ICE Agent Nancy Rogers testified as to her duties at the PTC. She stated that she goes to jails “to interview everybody that's being arrested to determine their alienage.” 2/3/11 Tr. at 34. Prior to questioning prisoners, she does not give them any form of warnings nor does she tell them they are free not to talk to her; however, if they refuse to talk to her, she concludes the interview.

Agent Rogers explained that after the Albuquerque Police Department books a prisoner, she interviews the prisoner to determine his or her place of birth. If the prisoner claims to have been born in the United States, Agent Rogers proceeds to the next prisoner. If the prisoner states he or she was born outside the United States, Agent Rogers asks his or her immigration status. She then runs the individual through the immigration central index system to determine whether or not he or she is legally present. She takes the prisoner's fingerprints electronically, and they are stored in the Department of Homeland Security's Automated Biometric Identification System (“IDENT”). Agent Rogers described the IDENT system as “sophisticated” and she explained that once a prisoner's electronic prints are in the system, it returns information “immediately,” including that person's prior immigration arrests. Id. at 46–48.

If Agent Rogers's investigation indicates that a prisoner is illegally present in the United States, she further interviews the prisoner and lodges an immigration detainer. On cross-examination, she explained that the purpose of this investigation and interview is to determine whether or not the individual has committed an immigration crime. At no point during this interview does she administer Miranda warnings. Agent Rogers testified that in her twenty-two years as an ICE officer, never has she suspected an arrestee is lying when he or she claims to be a United States citizen.

Following Agent Rogers's testimony, ICE...