United States v. Rosas-Herrera

• Decision Date: 07 October 2011
• Docket Number: No. 1:11CR160–1.,1:11CR160–1.
• Citation: 816 F.Supp.2d 273
• Court: U.S. District Court — Middle District of North Carolina
• Parties: UNITED STATES of America v. Teodoro ROSAS–HERRERA.

816 F.Supp.2d 273

UNITED STATES of America

v.Teodoro ROSAS–HERRERA.

No. 1:11CR160–1.

United States District Court, M.D. North Carolina.

Oct. 7, 2011.

Arnold L. Husser, Office of U.S. Attorney, Greensboro, NC, for United States of America.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Before the court is the motion to suppress filed by Defendant Teodoro Rosas–Herrera (“Rosas–Herrera”), who is charged here in a single-count indictment for illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b)(2). Rosas–Herrera contends that his arrest was unlawful and seeks to suppress all information law enforcement collected following his arrest that revealed his true identity. The Government opposes the motion. An evidentiary hearing was held October 4, 2011. For the reasons set forth below, the motion will be denied.

I. BACKGROUND

The Government presented the testimony of three witnesses. James Carter (“Detective Carter”) is a Detective with the Alamance County (North Carolina) Sheriff's Office (“ACSO”), with 16 years of law enforcement experience. Jeff Randleman (“Deputy Randleman”) has been employed as an ACSO Deputy Sheriff for 22 years. Edmund Thomas (“Agent Thomas”) is employed as an agent with the United States Immigration and Customs Enforcement agency (“ICE”) of the Department of Homeland Security in Charlotte, North Carolina. The court finds the testimony of each of these three witnesses to be credible and finds the following facts.

On February 6, 2011, Detective Carter was on duty driving his patrol car on Durham Street in Alamance County when he noticed a vehicle with its front windshield “completely iced over” except for a small 3? x 4? hole approaching at approximately 10 m.p.h. in the opposite lane. Detective Carter could not see inside the vehicle and thus could not determine the sex, ethnicity, or race of the driver. After the vehicle passed, Detective Carter turned his patrol vehicle around but found that the suspect vehicle had already turned left off the roadway into a driveway, where it had pulled up to a closed gate. Detective Carter pulled up behind the vehicle and, at least in part because he was unable to exit his vehicle from the roadway completely, activated his blue lights.

Detective Carter approached the stopped vehicle and asked the driver for his driver's license and registration. The driver did not have either but indicated that he had a Mexican driver's license, identified himself as Carlos Matias Ortiz (“Ortiz”), and provided a date of birth. Detective Carter returned to his patrol vehicle to run a check on the name and date of birth he had been given. As he was doing so, he observed Ortiz open his vehicle door and exit the vehicle. Detective Carter advised Ortiz to stay in the vehicle, but Ortiz fled. Detective Carter called for backup and chased Ortiz across the roadway, through a field, and into the woods nearly one-half mile for about 8 to 10 minutes. Ortiz eventually stumbled and fell, and Detective Carter secured and arrested him for resisting a public officer.

By the time Detective Carter returned to his patrol car with Ortiz, two other officers had arrived on the scene with a drug-sniffing canine. Ortiz was placed in a patrol vehicle. One of the officers walked the canine around Ortiz's vehicle, and the canine alerted on the driver's side where the driver's door had remained open since Ortiz fled from the vehicle. In examining where the canine had alerted, Detective Carter observed a firearm “sticking under the seat.”

Detective Carter took Ortiz to the Alamance County jail, where he was presented to a magistrate. Ortiz again gave his name as Carlos Matias Ortiz. His Conditions of Release and Release Order notes that he was charged with the offenses of “resisting public officer” and “carrying a concealed weapon” and was released on a $5,000 secured bond.¹ (Gov't Ex. 1.) Up to this point in time, Detective Carter stated, he had no reason to believe the Defendant's name was anything other than Ortiz.

Shortly thereafter, Deputy Randleman, who is assigned to the ASCO's “287G unit” charged with interviewing and processing non-US born defendants, was advised that Ortiz had stated he was foreign born and would need to be processed.² Consequently, Deputy Randleman interviewed Ortiz to complete an “ICE Interview” form based on Ortiz's responses. (Gov't Ex. 2.) In the interview, Ortiz first stated that his name was “Carlos Matias Ortiz.” But when Ortiz's fingerprints were taken as part of the booking process, the fingerprinting equipment automatically matched them to fingerprints for “Theodoro Rosas–Herrera.” (Gov't Ex. 7.) Ortiz admitted that while he had also used the name Carlos Matias Ortiz, his real name was Teodoro Rosas–Herrera. This process was completed by 10:18 a.m. Deputy Randleman also learned that Rosas–Herrera had previously been deported from the United States and provided him his consular notification (informing Rosas–Herrera of his right to have his country's local consulate notified of his detention and the basis for his arrest). (Gov't Ex. 3.) According to Deputy Randleman, by this point the process was purely “routine administrative booking” and “biographical” in nature. According to Deputy Randleman, every defendant brought to the Alamance County jail who reports that he or she is foreign born is subjected to this same process.

Later that afternoon, at approximately 2:00 p.m., Deputy Randleman served Rosas–Herrera with his notification of rights, notifying Rosas–Herrera that procedures would be in place to reinstate a prior order of removal to deport him. (Gov't Ex. 4.) He was also advised of his rights under Miranda. ³ (Gov't Ex. 5.) Thereafter, Rosas–Herrera refused to provide any additional information. (Gov't Ex. 6.)

Finally, Agent Thomas, whose duties include conducting prosecutions and deportations for ICE, identified Rosas–Herrera's “A-file”, which is a record of an individual's interactions with ICE. (Gov't Ex. 8.) Rosas–Herrera's A-file indicates that he was deported and removed from the United States on November 17, 2008, at Laredo, Texas, and has not been given permission to return.

Rosas–Herrera now moves to suppress all information garnered by law enforcement that revealed his true identity (e.g., his name and fingerprints) on the ground that the information was obtained in violation of the Fourth Amendment to the United States Constitution.

II. ANALYSIS

Rosas–Herrera argues that his arrest was unlawful and under United States v. Oscar–Torres, 507 F.3d 224 (4th Cir.2007), law enforcement's subsequent collection of information about his true identity must be suppressed. More specifically, he contends that he was stopped by Detective Carter without any reasonable, articulable suspicion of any traffic law violation, noting that no charge of reckless driving was ever assessed against him. He also contends that his flight from the scene was permissible insofar as, he contends, his initial stop was unlawful, and he argues that there was no basis for the charge of carrying a concealed weapon because the firearm was seized in violation of Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The Government contends that Rosas–Herrera was lawfully questioned and arrested and that, nevertheless, officers collected his identification information solely as an administrative matter during “routine booking” and at no time was his arrest motivated in any way by an investigative purpose.

In Oscar–Torres, law enforcement officers stationed themselves at the entrance of an apartment complex where they were targeting street gang members illegally present in the United States. Every vehicle that entered or left the complex was stopped and its occupants questioned. Eventually, Oscar–Torres was stopped in this fashion. In response to officers' questions, he admitted to being an illegal alien and, at their request, lifted his shirt to display a tattoo the officers believed signified gang membership. Without any warrant, the officers arrested Oscar–Torres and transported him to ICE headquarters where he was fingerprinted, photographed, and interrogated. Some seven hours after his arrest, he was given his Miranda warnings. Oscar–Torres moved to suppress a fingerprint exemplar obtained from him as well as any records obtained as a result. The Government conceded that Oscar–Torres had been stopped “without ‘reasonable, particularized suspicion of illegal activity,’ let alone probable cause,” but argued that identification information could never be suppressed. Oscar–Torres, 507 F.3d at 227. The district court denied the motion, but on appeal the Fourth Circuit reversed.

The Fourth Circuit stated that “[w]hen police officers use an illegal arrest as an investigatory device in a criminal case ‘for the purpose of obtaining fingerprints without a warrant or probable cause,’ then the fingerprints are inadmissible under the exclusionary rule as ‘fruit of the illegal detention.’ ” Id. at 230–31 (quoting United States v. Olivares–Rangel, 458 F.3d 1104, 1114–16 (10th Cir.2006)). The court went on to note that “when fingerprints are ‘administratively taken ... for the purpose of simply ascertaining ... the identity’ or immigration status of the person arrested, they are ‘sufficiently unrelated to the unlawful arrest that they are not suppressible.’ ” Id. (alterations in original) (quoting Olivares–Rangel, 458 F.3d at 1112–13). The court concluded, therefore, that “fingerprints do not constitute suppressible fruit of an unlawful arrest or detention unless the unlawful arrest ‘was purposefully exploited in order to develop critical evidence of criminal conduct to be used against [the d]efendant’ in a criminal proceeding”. Id. (alteration in original) (quoting Olivares–Rangel, 458 F.3d at 1113). The Fourth Circuit remanded the case for further determination by the district court whether, in obtaining the fingerprints...