Opinion
Case No. 2:02CR657DAK
March 6, 2003
ORDER
This matter is before the court on Defendant Manuel Aguilar-Juarez's Motion to Suppress Evidence Based on Illegal Detention and Arrest, which seeks suppression of defendant's identity, any statements and any fingerprint evidence obtained and dismissal of the Indictment as a result of the allegedly illegal detention. An evidentiary hearing on the motion was held on January 31, 2003, and closing arguments were held February 25, 2003. At the hearings, Defendant appeared and was represented by Benjamin A. Hamilton. Plaintiff was represented by Bill Ryan. The court has carefully considered all pleadings, memoranda, and other materials submitted by the parties as well as the law and facts relating to these motions. Now being fully advised, the court renders the following Order.
FINDINGS OF FACT
On October 4, 2002, at 12:47 a.m., Utah Highway Patrol Trooper Chad C. Hecker pulled over Defendant because he did not have a license plate light on his vehicle. Trooper Hecker an odor of alcohol coming from the vehicle. Defendant identified himself to Trooper Hecker as Antonio Acosta-Aguilar and presented a Mexican driver's license in that name. Trooper Hecker concluded that this license was false because Defendant could not give his age or date of birth. Trooper Hecker indicated that he did not perceive any difficulties in communicating with Defendant.
After failing a sobriety test, Trooper Hecker arrested Defendant for driving under the influence, giving false information, using a false driver's license, and having no license plate light on his vehicle. Trooper Hecker took Defendant to the Salt Lake County Jail for booking. Trooper Hecker turned Defendant over to a booking officer at 2:18 a.m. Karrie Hamilton, a supervisor of the court liaison office at the Salt Lake County Jail testified that the booking and processing of an inmate routinely takes eight to twelve hours.
The records indicate that the booking officer ran a National Crime Information Center (NCIC) criminal record search on Defendant under the name Antonio Acosta-Aguilar. This search revealed seven aliases used by Defendant, one of which was Manuel Aguilar-Juarez. The report also stated that Defendant was a previously deported illegal alien felon. The NCIC report stated that under federal law, "a state or local law enforcement official may arrest and detain the subject but only after the alien's status is confirmed with INS. If permitted within your jurisdiction, or if subject has been arrested or detained on other grounds, contact (877) 999-5372 to confirm hit."
After the NCIC search is completed, an inmate is taken to a booking clerk who asks general questions. Defendant was taken to a booking clerk at 3:21 a.m. During this process, the booking clerk ascertained that Defendant was born in Mexico, had only been in the United States for two months, and did not have a social security number. Defendant also could not provide a specific address, only the name of the street on which he lived. Defendant was then required to wait to have his picture and fingerprints taken. When that was completed, Defendant met with someone at pretrial services. As a result of Defendant's answers to the booking questions, Defendant did not qualify for release on his own recognizance and had to post a bond.
Defendant was taken to a waiting area to arrange for a bond. At 6:47 a.m.. the results of Defendant's fingerprint check came back, confirming his identity and criminal record. Defendant's fingerprints also matched someone booked in 1994 charged with possession of controlled substances. Meanwhile, Ms. Hamilton's subordinate court liaison clerk, Louise (who no longer works for Salt Lake County Jail), attempted to contact INS. It is unknown how many efforts were made to contact INS by telephone. However, there is a record of fax from the jail to INS at 12:00 p.m. The fax had a Post-it note attached to it stating "He is trying to bond out now. No detainer."
INS agent Jeff Weisend testified that he received the fax at 12:00 p.m. Agent Weisand ran Defendant's name through the INS Central Index System (CIS) and discerned that Defendant was a prior deported alien felon. Agent Weisand spoke on the telephone with jail officials, verified that Defendant was in custody, and informed the court liaison clerk that Defendant was a previously deported criminal alien and should be held in jail until an INS detainer could be lodged. Ms. Hamilton testified that the jail's policy is to hold a prisoner on a verbal notification by INS that a person is a previously deported alien felon.
Agent Weisand prepared and faxed a detainer to the jail at 1:09 p.m. The jail received the INS detainer, therefore, approximately eleven hours after Defendant arrived at the jail. This time frame was within routine time parameters for processing inmates.
Ms. Hamilton also testified that when there is a warning on an NCIC, inmates are detained until they hear from INS. Staff is trained not to let the person bond or bail out until they have received confirmation from INS. In this case, in considering whether to detain Defendant, jail personnel had a basis for believing Defendant was in violation of federal immigration laws for the following reasons: the NCIC report indicated Defendant was a previously deported criminal alien and the booking clerk learned that Defendant was born in Mexico, had only been in the United States two months, did not have a social security number, could not identify a specific address, had several aliases, and he did not speak fluent English. In addition, when the fingerprint check came back it indicated that Defendant's fingerprints matched another person's name.
Defendant testified that he called a friend, Francisco Soto-Aguilar, to obtain bail when he was taken to the waiting area to arrange for a bond. Defendant estimated that this call occurred sometime around 2:00 or 3:00 am. However, Defendant was not even at the jail until after 2:00 a.m. and was not taken to a booking clerk for questioning until 3:21 a.m. Defendant's call would have occurred after the questioning was complete, he had his picture and fingerprints taken, and met with someone at pretrial services, who determined whether he qualified to be released on his own recognizance. The process would suggest that Defendant did not make the call until well after 3:21 a.m. In any event, Defendant testified that his friend could not go to obtain a bond until the bonding company was open several hours later. Defendant testified that he called and spoke with his friend, or friend's wife, sometime after 12:00 noon, and learned that the bail bond company would not post a bond because there was an INS detainer.
CONCLUSIONS OF LAW
Defendant claims that he was illegally detained and held beyond the time allowed by federal statute. Defendant asserts that the jail violated 8 U.S.C. § 1252c, which provides:
Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who —
(1) is an alien illegally present in the United States; and
(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.
Defendant argues that the jail improperly prevented Defendant from bailing out prior to obtaining confirmation from the INS of Defendant's status. There is no dispute that Defendant needed to post a bond to bail out. Defendant spoke to a friend about obtaining a bond sometime after 3:21 a.m. His friend told him that he would try to obtain a bond as soon as the bond company opened. There is no evidence as to when the bond company opened or when his friend actually went to the bond company. Although it is clear from the evidence that Defendant was attempting to get a bond and the jail knew of this when it sent its fax to the INS indicating such, there is no evidence as to when Defendant actually could have had a bond issued or had a bond issued. Defendant testified that after his early morning telephone call to his friend, he did not make another call to his friend to find out the status of the bond until sometime after noon. There is no evidence that his friend obtained a bond and presented it to the jail at any time. Therefore, there is no evidence that the jail detained Defendant after a proper bond had been posted.
There is also no evidence that the jail interfered with the issuance of a bond before a proper INS retainer was issued. The INS retainer was issued verbally sometime between 12:00 noon and 1:09 p.m. There is no evidence that Defendant's friend attempted to get a bond and attempted to bail Defendant out before this time. The only evidence is that, at some point in the afternoon, Defendant called his friend and was informed that a bond could not be posted. Therefore, there is no evidence that the jail violated 28 U.S.C. § 1252c.
Even if the jail had violated 28 U.S.C. § 1252c, the Tenth Circuit has recognized that state and local police may detain and arrest individuals for suspected federal immigration violations. United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). In Vasquez-Alvarez, the defendant filed a motion to suppress on the grounds that § 1252c prohibits a state or local officer from arresting an illegal alien before INS has confirmed that the alien has previously been convicted of a felony. Id. at 1295. The court concluded that § 1252c does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws. Instead, § 1252c merely creates an additional vehicle for the enforcement of federal immigration law." Id. In fact, the court found a "clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws." Id. at 1300.
In United States v. Santana-Garcia, 264 F.3d 1188, 1192 (10th Cir. 2001), the Tenth Circuit reaffirmed Vasquez-Alvarez, and concluded that a state police officer had probable cause to arrest the defendants for suspected violations of federal immigration laws even though the officer subjectively believed he had no authority to arrest defendants. Id. at 1193. The court noted another case in which it has found that state law enforcement officers have a "general investigatory authority to inquire into possible immigration violations," and that in determining probable cause, it is not controlling whether an officer knows with certainty that there was a violation of the immigration laws. Id. (quoting United States v. Salinas-Calderon, 728 F.2d 1298, 1301-02 n. 3 (10th Cir. 1984)).
Defendant argues that these cases are distinguishable because they each involved defendants that admitted to being illegal. However, the controlling inquiry discussed by these cases is whether the officer had probable cause. The officers at the jail had several bases for suspecting Defendant had violated federal immigration laws. The NCIC report indicated Defendant was a previously deported criminal alien and the booking clerk learned that Defendant was born in Mexico, had only been in the United States two months, did not have a social security number, could not identify a specific address, had several aliases, and he did not speak fluent English. In addition, when the fingerprint check came back it indicated that Defendant's fingerprints matched another person's name. The court concludes that these facts, viewed in their totality, established probable cause to detain Defendant for possible violations of federal immigration laws.
Both parties also assert constitutional issues. The government argues that a previously deported alien felon, such as Defendant, does not have a Fourth Amendment right to bring a motion to suppress. Defendant argues that the jail's policy of treating an NCIC warning as an automatic retainer is a violation of his due process rights and a systemic violation of due process. Because the court concludes that in this case there was probable cause to detain Defendant, there is no need to reach these additional constitutional issues.
CONCLUSION
Based on the above reasoning, Defendant's Motion to Suppress Evidence Based on Illegal Detention and Arrest is DENIED.