REPORT AND RECOMMENDATION
JACQUELINE M. RATEAU, Magistrate Judge.
On August 30, 2012, a federal grand jury returned a one-count indictment alleging Defendant Luis Richard Siqueiros was a convicted felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). By Minute Entry order dated September 6, 2012, this matter was referred to Magistrate Judge Rateau for all pretrial matters. On January 24, 2013, Siqueiros filed a Motion to Suppress (Doc. 22) based on an illegal seizure in violation of the Fourth Amendment. The Government filed a response (Doc. 27) and Siqueiros filed a reply (Doc. 30). The Motion was heard by Magistrate Judge Rateau on May 14, 2013. Defendant Siqueiros was present at the hearing and was represented by counsel. The Government presented the testimony of Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Special Agents Creighton Brandt and Lorena Martinez. The witnesses were examined, cross-examined, and questioned by the Court. Having considered the matter, the Magistrate Judge submits the following Findings of Fact and Conclusions of Law and recommends that Defendant Siqueiros's Motion be granted.
I. FINDINGS OF FACT
On March 24, 2012, a group of approximately seven ATF agents and fourteen Tucson Police Department officers were working together in a joint operation at the McMahon's Roadrunner Gun Show at the Tucson Community Center ("TCC"). The agents and officers, all dressed in street clothes, were working together in an attempt to identify persons illegally purchasing, possessing, or transferring firearms. They were specifically looking for individuals who might be purchasing guns and ammunition to traffic into Mexico. Included as a target were "straw purchasers" buying weapons on behalf of those who are prohibited from possessing weapons.
At approximately 4:00 p.m., ATF Agent Frank Occhipinti was stationed in a conference room overlooking the TCC showroom and noticed a male (later determined to be Defendant Siqueiros) and a woman (later identified as Siqueiros's wife, Brandy Siqueiros) at the Burl's Gun Sales vendor table. Agent Occhipinti took notice of the pair because he saw Defendant Siqueiros handle weapons at the table, but saw Ms. Siqueiros get the attention of the vendor and point towards a firearm (later determined to be a Sig Sauer, model 250, .50 caliber pistol). Soon after, Agent Occhipinti observed Ms. Siqueiros completing ATF Form 4473, Firearms Transaction Record Part I - Over-the-Counter. Form 4473 provides information to Federal Firearms Licensees to perform a background check of a potential purchaser through the FBI's National Instant Criminal Background Check System ("NICS").
Upon being told of Agent Occhipinti's suspicions, Agent Brandt went to the Burl's Gun Sales table intending to listen in on the conversation between Siqueiros and his wife. While Agent Brandt was standing at the table, Siqueiros wandered away from the table a few times. Two or three minutes after Brandt's arrival, Ms. Siqueiros sat down in a chair at the table and began completing Form 4473. Shortly thereafter, Siqueiros sat down next to his wife and appeared to be texting on his cellular phone while his wife filled out the required paperwork. See Exhibit 1 (photograph showing Siqueiros and his wife seated at the Burl's table with Agent Brandt standing to their left).
Agent Brandt remained standing approximately 5 to 7 feet away from the Siqueiroses for about 10 minutes, but he was unable overhear anything that was said or to determine what or to whom Mr. Siqueiros was texting. He did see that it was Ms. Siqueiros who paid for the weapon with a red credit or debit card. Once the purchase was complete, the seller put the gun into a gun box which he placed in a plastic bag that he then handed to Ms. Siqueiros. After being at the Burl's table for a total of 13 to 15 minutes, Siqueiros and his wife got up from the table and walked behind Agent Brandt, who was still standing at the table. Not wanting to alert them of his presence, the agent did not immediately follow.
Agent Occhipinti moved from the observation room above the showroom floor and went down to the floor. Approximately five minutes later, Occhipinti informed Brandt that, after they left the Burl's table, Siqueiros and his wife went to a nearby ammunition vendor where Siqueiros made a purchase. At that point, the agents and TPD officers decided to follow the couple to see if Ms. Siqueiros would transfer the weapon to Siqueiros. The transfer never happened. The Siqueiroses then walked to the north exits and went upstairs to the main level of the TCC and proceeded to exit the building to the west. With approximately six agents and officers following, they proceeded south toward Cushing Street and, after walking a short distance eastward on the north side of Cushing Street, crossed over mid-block to the south side.
At that point, TPD Officer Robert Orduno, who was walking with the group of law enforcement officers, held up his badge and said, "Can we talk to you?" Flanked by two other officers, Agent Brandt then showed his ATF credentials to Siqueiros while Agent Lorena Martinez and TPD Detective Mark Cassel separated Ms. Siqueiros from her husband. When they made contact with the couple, Siqueiros was holding the plastic bag containing the ammunition and Ms. Siqueiros was still holding the plastic bag containing the Sig Sauer pistol in the gun box. See Exhibits 2, 3, and 4 (plastic bags and their contents).
Standing around Siqueiros were Agents Brandt, Occhipinti, and Jim Black, and TPD Officer Orduno. Also present, but further behind the group, was Agent Paul Brotsko. Agent Brandt then obtained Siqueiros's identification and read him his Miranda rights. After Siqueiros indicated he understood his rights, Brandt began questioning him, asking him first if he had ever been in trouble with the law. Siqueiros indicated that he had "a long time ago, " and the agents ran his background from his identification and found he had a criminal history.
After talking with Siqueiros for five to seven minutes, they seated him on the steps next to the El Minuto Cafe (Exhibit 5) and then spoke to Ms. Siqueiros for another five to seven minutes. She also was advised of her Miranda rights and was asked if she knew the type of weapon she had purchased. She did not know the type of gun and, when asked why Siqueiros had purchased the ammunition, stated it was because he knew what type of ammunition it needed. Agent Brandt then returned to talk to Siqueiros, who when confronted with what Ms. Siqueiros had told the agent, admitted to purchasing the ammunition.
II. CONCLUSIONS OF LAW
A. Terry Stop
The Fourth Amendment prohibits "unreasonable searches and seizures" by the government. Terry v. Ohio, 392 U.S. 1, 9 (1968). To justify an investigatory stop under Terry, an officer must point to specific and articulable facts which, taken together with rational inferences, reasonably warrant the intrusion. Id. In making reasonable suspicion determinations, courts must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. United States v. Cortez, 449 U.S. 411, 417-418 (1981). This process allows an officer to rely on his own experience and specialized training to make inferences from and ...