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United States v. Gomez-Robles

United States District Court, D. Arizona

November 28, 2017

United States of America, Plaintiff,
Carlos Gomez-Robles, Defendant.


          Honorable Jacqueline M. Rateau United States Magistrate Judge.

         Pending before the Court is Defendant Carlos Gomez-Robles's Motion to Suppress Statements and Evidence for Fourth Amendment Violation (Doc. 29). The Government filed a Response (Doc. 36) and the Defendant replied (Doc. 44). The parties also filed supplemental memoranda (Docs. 45, 46). Defendant is charged with one count of Illegal Reentry in violation of 8 U.S.C. § 1326(a) and enhanced by 9 U.S.C. § 1326(b)(1). (Doc. 7 (Indictment)). In his motion, Defendant seeks the suppression of all evidence obtained as a result of his alleged unlawful detention based on an immigration hold enforced upon his release from the Pima County Jail.[1]

         Pursuant to LRCrim. 5.1(a), this matter was referred to Magistrate Judge Rateau for an evidentiary hearing and a report and recommendation.[2] On November 7, 2017 the Court conducted an evidentiary hearing.[3] The Government called two witnesses, Department of Homeland Security, Immigration and Customs Enforcement Deportation Officers Martin Renteria and Roderick Norl. The Defendant did not call any witnesses. (Doc. 88 (Minute Entry)). Based on the pleadings, testimony, and arguments of counsel, the Court recommends that the District Court, after its independent review, deny Defendant's motion.

         I. Hearing Testimony

         Officer Renteria, the case agent in this case, is assigned to the Immigration and Customs Enforcement (“ICE”) Violent Criminal Alien Section (“VCAS”) where his duties include the review of alien administrative files. TR11, 37. Officer Renteria is the custodian of the Defendant's A-file and reviewed the file prior to the hearing. TR14-15. Defendant's A-file reflects that he was arrested by officers from the Tucson Police Department at approximately 11:00 p.m. on April 5, 2017 and charged with aggravated DUI, criminal damage, endangerment, and possession of drug paraphernalia. TR15-16. He was booked into the Pima County Jail on April 6, 2017. TR15.

         At approximately 6:00 a.m. on April 6, Deportation Officer Ricky Jackson from the ICE Enforcement and Removal Operations (“ERO”) Criminal Alien Program (“CAP”), whose duties are to review jail lists and identify and establish alienage and removability of individuals who are in state and federal custody, identified through a list on a specialized website that the Defendant was in custody at the Pima County Jail. TR12-13, 16-18, 22, 38, 45. The list included a photograph of the Defendant and reflected his country of citizenship, FBI number, and the criminal charges he was being held on. TR22-23. With that information, ICE ERO officers conducted a check through the Central Index System (“CIS”) to determine the Defendant's legal permanent resident status, any nonimmigrant status, naturalized United States Citizen status, and any prior immigration violations in the United States. TR19-20, 22-23. The check reflected that the Defendant had been previously removed from the United States and “had a final order of removal from an immigration judge.” TR23, 46.

         Based on the information obtained through the CIS, a Form I-247A Department of Homeland Security (“DHS”) Immigration Detainer was faxed to the Pima County Jail. TR20-21, 23-24, 26; Gov. Ex. 2 (Immigration Detainer). In relevant part, the detainer states that “DHS HAS DETERMINED THAT PROBABLE CAUSE EXISTS THAT THE SUBJECT IS A REMOVABLE ALIEN.” The form indicates that the determination of probable cause was based on “[a] final order of removal against the alien.” Gov. Ex. 2, p. 1. Based on that determination, the form requests that the Pima County Jail “Notify DHS as early as practicable (at least 48 hours, if possible) before the alien is released from your custody.” Id. The form further requests that the jail “Maintain custody of the alien for a period NOT TO EXCEED 48 HOURS beyond the time when he/she would otherwise have been released from your custody to allow DHS to assume custody.” Id. The detainer is signed by Deportation Officer Jackson. Id.

         ICE ERO CAP officers went to the Pima County Adult Detention Center on April 6 and, without providing any Miranda warnings, interviewed the Defendant and obtained biographical information such as his country of birth and citizenship. TR23-24, 39, 42; Gov. Ex. 5 (Form I-213 reflecting interview encounter); Def. Ex. 8 (interview sheet). Based on all the information, it was determined that the Defendant had previously been encountered and removed from the United States and that probable cause existed “for an administrative violation.” TR24. At 8:14 a.m., a Form I-200 warrant for the Defendant's arrest was faxed to the jail. TR25-26; Gov. Ex. 1 (Warrant for Arrest of Alien and fax confirmation sheet). The warrant is signed by an “authorizing eviction officer” who in this case was ICE Supervisor Detention and Deportation Officer Julia Ordaz. TR26, 47-48. The Form I-200 is a “check the box” form that offers five different potential probable cause bases for removal. Gov. Ex. 1. In this case, the probable cause basis selected states that:

biometric confirmation of the subject's identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the subject either lacks immigration status or notwithstanding such status is removable under U.S. immigration law;

Gov. Ex. 1.

         On Friday, April 14, 2017, the local charges against the Defendant were dismissed. TR27; Def. Ex. 1 (dismissal document). ICE was informed by telephone call placed at 2:21 p.m. and by an email sent at 2:27 p.m. by Leann Lopez of the Pima County Sheriff's Department that the local charges had been cleared and that the Defendant was available for pick-up and would be held until 4:10 p.m. TR28-29; Gov. Ex. 3 (copies of emails). The Defendant was subsequently picked up and transported to the Tucson ERO suboffice, arriving at approximately 5:06 p.m., for administrative immigration processing by CAP Deportation Officers who booked the Defendant into the ICE database and took his photograph, fingerprints and a sworn statement after being provided an administrative warning. TR30-31, 52-54, 67. The fingerprints were submitted to the FBI's Next Generation Identification System which provides a complete criminal history and an Interview Worksheet reflects the date and location the Defendant entered the United States without inspection. TR30-32, 57-58; Def. Ex. 8 (Interview Worksheet). The Defendant was then served with a reinstatement and because his case met the relevant prosecution criteria, it was referred to the VCAS unit for prosecution. TR30-32, 57, 69 (indicating that prior criminal convictions and last removal date are the main considerations in determining whether case is amenable to prosecution), 72.

         After the case was referred, the Defendant was read his Miranda rights and a probable cause statement, including a hold request, and an attached Form I-213 record of deportability/inadmissible alien, was emailed at 5:20 p.m. to the duty Magistrate Judge. TR32-35, 67, 73 (indicating that the purpose of the probable cause statement was to authorize a 48-hour hold of the Defendant for prosecution the following Monday), 76; Gov. Ex. 4 (probable cause statement and confirming e-mail); Gov. Ex. 5 (I-213). The probable cause statement includes information about how the Defendant came into ICE custody, his last entry and removal dates, citizenship information, criminal convictions, and alleges that he does not have any documents or permission to remain in the United States. TR33-34; Gov. Ex. 4. In the confirming email, the Magistrate Judge indicated that notification would be sent only if the court determined that there was a lack of probable cause. TR34, 60, 78; Gov. Ex. 4. After there was no response from the Magistrate Judge, the Defendant was transported to the Florence Detention Center. TR36, 78-79. On Monday, April 17, 2017, a sworn complaint was prepared charging the Defendant under 8 U.S.C. § 1326(b)(1). TR36, 81-82. The Defendant was then presented for an initial appearance. TR36-37.

         II. Discussion

         Defendant argues that his continued detention at the Pima County Jail based on the Form I-247A Immigration Detainer and the I-200 Warrant for Arrest of Alien violates the Fourth Amendment because neither the detainer nor the warrant were judicially authorized and did not confer probable cause ...

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