United States v. Pacheco-Alvarez

• Decision Date: 29 December 2016
• Docket Number: Case No. 16–cr–140
• Citation: 227 F.Supp.3d 863
• Parties: UNITED STATES of America, Plaintiff, v. Martin Ivan PACHECO–ALVAREZ, Defendant.
• Court: U.S. District Court — Southern District of Ohio

227 F.Supp.3d 863

UNITED STATES of America, Plaintiff,

v.Martin Ivan PACHECO–ALVAREZ, Defendant.

Case No. 16–cr–140

United States District Court, S.D. Ohio, Eastern Division.

Signed December 29, 2016

Timothy D. Prichard, United States Attorney, Columbus, OH, for Plaintiff.

Amy Melissa Bittner, Edward Dennis Muchnicki, Columbus, OH, for Defendant.

OPINION & ORDER

ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE

This is a story about law-enforcement officers who take shortcuts in their zeal to make arrests and the Fourth and Fifth Amendments to the United States Constitution, which prohibit them from doing so.

The defendant, Martin Ivan Pacheco–Alvarez, was entitled to Miranda warnings before immigration officers interrogated him on the side of the highway. Their failure to provide those warnings requires suppression of any statements he made about his immigration status. Pacheco's warrantless arrest, which was not supported by probable cause, also requires suppression of derivative evidence the officers later discovered concerning Pacheco's possession of firearms. For these reasons, the Court GRANTS Pacheco's motion to suppress evidence.

I. BACKGROUND¹

In April 2016, a special agent with United States Immigration and Customs Enforcement ("ICE") received a tip that Pacheco, a Mexican national, was dealing cocaine and firearms in Ohio. (Doc. 40, PageID 161). According to Agent Myers, an informant saw Pacheco carrying drugs and guns several times and heard him "brag" about selling both. (Doc. 41, PageID 459). The informant provided Pacheco's name, address, and photo to Agent Myers (id. at 455–56), and also claimed that Pacheco was living in the United States unlawfully (Doc. 40, PageID 165).

At first, Agent Myers testified that he viewed this information as highly credible:

THE COURT: And I take it this was a confidential source with whom you had dealt before?

[MYERS]: With whom I—Enforcement Removal Operations had dealt with before.

THE COURT: In other words, this is a source who, in your experience as an agent for ICE, you would have relied upon, is that right?

[MYERS]: Yes, Your Honor.

THE COURT: Did the confidential source give you information which you believe was correct and accurate?

[MYERS]: Yes, Your Honor.

(Doc. 41, PageID 455). Agent Myers, therefore, had several options.

First , he could have sworn out an affidavit and taken the information to a magistrate judge to obtain a search warrant. Law-enforcement officers may , depending on their relationship with an informant, obtain a valid search warrant without further corroboration or evidence. See United States v. Allen , 211 F.3d 970, 976 (6th Cir. 2000) (en banc). Depending on the contents of the affidavit, the magistrate might have issued a warrant, and Agent Myers could have been on his way to search Pacheco's residence. At the very worst, the magistrate would have told Agent Myers that he needed more evidence before obtaining a warrant, thus fulfilling the central promise of the Fourth Amendment by placing a neutral judge between the overwhelming (and sometimes overzealous) power of the government and the liberty interests of the individual. See Johnson v. United States , 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (explaining purpose behind warrant requirement and the need for judges to make those decisions).

Alternatively , if, as Agent Myers later testified, he harbored doubts about the accuracy of his informant's tip or the likelihood of obtaining a warrant (Doc. 41, PageID 456–57), he could have gone to the United States Attorney's Office to determine what additional steps he should take. That office could have informed him that more investigative work, like "police surveillance" which showed "heavy traffic around [Pacheco's] residence" might "corroborate [ ] the informer's information sufficiently to find probable cause." See United States v. Williams , 224 F.3d 530, 533 (6th Cir. 2000). Or that the best course would be to arrange a "controlled buy" at Pacheco's home—whether from this confidential informant or, if the informant was too reluctant, from someone else.² See United States v. Ray , 803 F.3d 244, 277 (6th Cir. 2015). After all, Agent Myers testified that Pacheco was "selling [cocaine and] firearms to gang members and other people around town." (Doc. 41, PageID 459).

Finally , Agent Myers could have performed some, or all, of this routine investigative work himself, without first applying for a warrant or contacting the U.S. Attorney's Office. American history and pop-culture are filled with examples of law-enforcement agents doing the gritty but necessary legwork to build their cases. Eliot Ness, the Treasury Agent who brought down Al Capone, exemplified this dogged, upright police work. And fictionalized heroes like Joe Friday, Starsky and Hutch, and Crockett and Tubbs come to mind too. At bottom, a special agent with Myers's years of training and experience surely should have recognized that he had options when it came to establishing probable cause necessary to obtain a search warrant.

Agent Myers, however, took none of these steps in his quest to nab Pacheco. He did not apply for a search warrant. (Id. at 456–58).³ He did not ask the U.S. Attorney's Office for advice. And he did not conduct any additional investigative work with an eye toward establishing probable cause to obtain a warrant. (Id. at 479).⁴ Instead, Agent Myers orchestrated a dizzying chain of events more befitting an "issue-spotting" exam question for law students than old-fashioned police work. The Court will recount those events below.

A. The Warrantless Traffic Stop

Things began simply enough the morning of April 22, 2016. Pacheco, who is a painter by trade, met up with his neighbor, Gerardo Marroquin Perez ("Marroquin"), and Gerardo's brother, Hugo, to head to work for the day. (Id. at 390–91). The three men piled into Marroquin's white work van just outside Pacheco's house. (Id. at 390–91, 440–41). Unbeknownst to any of them, Agent Myers was watching from nearby. (Doc. 40, PageID 161 ("I—with a few other investigators, including uniform[ed] officers, set up on Mr. Pacheco's house and conducted surveillance to watch him depart his house that day.")).

Although Agent Myers testified that he could not arrange for surveillance of Pacheco's home in connection with seeking a warrant, he did arrange for a small task force the morning of April 22nd, all for the purpose of initiating a warrantless traffic stop that would net the same result, but without any judicial oversight. (Doc. 41, PageID 479–80).⁵ That task force consisted of ICE Agent Myers and Deportation Officer Matt Salmon, as well as Franklin County Sheriff's Deputies Johnathan Stickel and Robert McKee. (Doc. 40, PageID 170–71, 269–70, 274–75).

Agent Myers, who positioned himself outside Pacheco's home, notified the deputies that he suspected Pacheco was dealing drugs and firearms, and he relayed to them that Pacheco was traveling in a white Chevy work van bearing Ohio license plate number "GPA 3756." (Id. at 275–76). The deputies, who were waiting nearby, ran that plate and discovered that it was registered to a two-door Honda coupe, and not a Chevy van. (Id. at 162, 275–76).

Bingo. When Agent Myers learned that the license plate displayed on the van did not match its registration, he telephoned the deputies and directed them to initiate a traffic stop. (Id. at 168–70 (agreeing that he "had [Pacheco] stopped" for four reasons: (1) "the license plate"; (2) "he might have a gun"; (3) "he might be illegally in the country"; and (4) "he might be dealing cocaine")).

After receiving their orders from Agent Myers, Deputies Stickel and McKee stopped the van just a few minutes later, at 6:51 a.m. (Id. at 276). Agent Myers and Officer Salmon arrived roughly one minute later. (Id. at 163). Deputy Stickel approached the van and spoke with the driver, Marroquin. (Id. at 277–78). Agent Myers also approached the van and saw Marroquin, his brother Hugo, and Pacheco. (Id. at 163–64). Deputy Stickel asked Marroquin for his driver's license, but he replied that he did not have one. (Id. at 278). Deputy Stickel removed Marroquin from the van and took him to one of the sheriff's cruisers for further identification. (Id. at 277).⁶ Agent Myers and Officer Salmon then asked both passengers to depart the vehicle so that they could "address immigration concerns." (Id. at 164).

B. Pacheco's Roadside Detention and Pre–Miranda Questioning

Without providing any Miranda warnings, the ICE officers began investigating Pacheco's status as a suspected unlawful alien. (Id. at 171–73). Officer Salmon collected a set of fingerprints from Pacheco and ran them through a federal immigration database. (Id. at 171–73). Pacheco's record indicated that he was denied an immigration application in 2004 and that there was "no further paperwork in the system showing that he had any kind of legal status." (Id. at 171). The officers then began questioning Pacheco about his status. (Id. ). Pacheco presented a Mexican consular ID card and admitted that he was born in Mexico and did not have any documentation that would allow him to reside in the United States. (Id. at 171, 210–12, 297). Agent Myers decided to "detain" Pacheco due to the lack of paperwork and his admissions that he was here unlawfully. (Id. at 172–73). Agent Myers later discovered that the second passenger, Hugo, also was unlawfully in the United States. (Id. at 205). At this point, roughly twenty minutes had elapsed from the beginning of the traffic stop. (Id. at 174).

Upon learning that Pacheco and Hugo were in the United States unlawfully, Agent Myers decided to keep both men in custody. (Id. at 206–07). At some point during the traffic stop and questioning (the record is not clear on this point), Pacheco was placed in the back of Deputy Stickel's cruiser along with Marroquin, while Hugo was placed in the back of Officer Salmon's vehicle due to space constraints in Deputy McKee's cruiser. (Id. at 279–80).

C. ...