The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
REPORT AND RECOMMENDATION
Defendant Cruz Hernan Porras-Palma is before the court on an indictment charging him with possession of a fraudulent immigration document in violation of 18 U.S.C. § 1546(a). Mr. Porras-Palma has filed a motion to suppress evidence obtained by police at a traffic stop in which he was involved. The government resists the motion. The district court, the Honorable Jeffrey L. Viken, referred this motion to this magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the court's standing order dated April 6, 2010.
An evidentiary hearing on this motion was held on May 20, 2010, at which Mr. Porras-Palma and his counsel, Monica Colbath were present. The government was represented at the hearing by its Assistant United States Attorney Jeremy Jehangiri. At the hearing, two witnesses testified: Fred Koester, Sheriff of Jones County, South Dakota; and Lyle Brabazon, of the United States Immigration and Customs Enforcement ("ICE") agency. From that testimony and the exhibits introduced at the hearing, the court makes the following findings of fact.
On March 16, 2010, the roads were icy, although the weather was clear and sunny. Temperatures that day were cold. Dispatch for Jones County had called Sheriff Koester with several reports of accidents. One such report was of a pick-up truck which had rolled over in the median on Interstate 90 three miles east of Murdo, South Dakota. Dispatch reported that there were two occupants of this vehicle.
Sheriff Koester reported to the location of the pick-up along with a tow truck driver and observed both occupants of the pick-up outside the vehicle. The pick-up had apparently been traveling at great speed as Sheriff Koester observed that it had rolled over twice and traveled a significant distance through deep snow in the median. The driver of the pick-up, Mr. PorrasPalma, was speaking on a cell phone at the time Sheriff Koester arrived at the scene.
Both occupants of the pick-up appeared to be unhurt. Sheriff Koester noted that neither occupant would make eye contact with him. This raised nonspecific suspicions in Sheriff Koester's mind. He testified that sometimes people are nervous around law enforcement because they just do not like law enforcement, but that sometimes their nervousness is because they have something to hide.
After ascertaining that the occupants of the pick-up were not hurt and that their vehicle was capable of being driven for a short distance, Sheriff Koester directed Mr. Porras-Palma to drive to a truck stop at Murdo and pull into the parking lot of that place of business to wait for him. Sheriff Koester had received a report of a second accident a short distance away and had not yet checked on that accident. Thus, he wanted to go to the second accident location and investigate before taking the time to complete an accident report on the Porras-Palma accident.
Sheriff Koester testified that the pick-up Mr. Porras-Palma had been driving was unsafe to travel on the highway for any significant distance, but that it was driveable. He chose not to have the pick-up towed because that would have entailed a delay of approximately 30 minutes and he wanted to travel to the scene of the second accident with all due speed. Mr. Porras-Palma got behind of the wheel of the pick-up and his passenger entered the pick-up also. Mr. Porras-Palma drove to the truck stop indicated by Sheriff Koester and pulled into the parking lot to wait. Sheriff Koester followed Mr. Porras-Palma for safety reasons and ensured that he made it into the parking lot safely before proceeding on to the scene of the second accident.
There was a lapse of approximately 20 minutes between the time Mr. Porras-Palma entered the truck stop parking lot and the time Sheriff Koester returned to that location to write up a report of the accident. During that time, Mr. Porras-Palma and his passenger were free to move about. No law enforcement officer or any other person restricted their freedom of movement in any way.
When Sheriff Koester returned to the truck stop parking lot, Mr. PorrasPalma was again on his cell phone. Sheriff Koester asked him to end his phone call so that he could visit with Mr. Porras-Palma to get the information necessary to complete his accident report.
Sheriff Koester then asked Mr. Porras-Palma for his driver's license, vehicle registration, and proof of insurance on the pick-up. Sheriff Koester took a seat behind the wheel of his patrol vehicle and indicated that Mr. Porras-Palma should sit in the front passenger seat of the patrol vehicle. Mr. Porras-Palma sat where Sheriff Koester had indicated. The door to the patrol vehicle was probably closed, but it was unlocked at all times.
Mr. Porras-Palma, who Sheriff Koester testified appeared to understand English well and spoke to Sheriff Koester ably in English, then produced a vehicle registration, showing that the pick-up was registered to a business in New Jersey, along with proof of insurance. However, instead of producing a driver's license, Mr. Porras-Palma gave Sheriff Koester a Mexican identification card for use by Mexican nationals while they are abroad. See Exhibit Nos. 4 and 5. Sheriff Koester again asked Mr. Porras-Palma for a driver's license. Mr. Porras-Palma told Sheriff Koester that he did not have a driver's license. Sheriff Koester than asked Mr. Porras-Palma if he had any other form of identification, to which Mr. Porras-Palma replied that he did not.
Sheriff Koester asked Mr. Porras-Palma how the accident had happened. Mr. Porras-Palma explained that he had just been driving along when he lost control of the pick-up on ice and rolled. At this point, Sheriff Koester testified that he believed Mr. Porras-Palma had committed at least two crimes: overdriving road conditions and driving without a valid driver's license. At this point, Sheriff Koester testified that he could have placed Mr. Porras-Palma under arrest, but chose not to do so. Sheriff Koester testified that he typically would not take a defendant into custody for either offense.
After Mr. Porras-Palma was unable to produce a valid driver's license or other identification, Sheriff Koester asked him if he was in the United States legally. Mr. Porras-Palma replied in the negative. Sheriff Koester then inquired whether the passenger was in the United States legally, and again, Mr. PorrasPalma replied in the negative. Sheriff Koester left the patrol vehicle at this point and approached the passenger, asking for his identification.*fn1 The passenger provided a Mexican identification card similar to the one Mr. PorrasPalma had provided. At the point in his interaction with Mr. Porras-Palma when Sheriff Koester inquired about his legal status in the United States, Sheriff Koester testified that he was not yet finished with his accident investigation because he had not yet been shown a valid driver's license. However, his initial written report on this matter indicates that he asked the question after he was finished with his investigation of the accident.
At this point, Sheriff Koester told Mr. Porras-Palma and the passenger that he would have to take them back to his office to make some phone calls. Sheriff Koester transported the two to his office. Mr. Porras-Palma rode in the front passenger seat next to Sheriff Koester and the passenger rode in the back seat. Neither man was restrained by handcuffs or any other device. Sheriff Koester never told either man that they were being placed under arrest.
Once at the Sheriff's Office, Koester called the ICE office. The agent in the ICE office asked Sheriff Koester to fax him a copy of both men's identification cards, which Sheriff Koester then did. After receiving the fax, ICE called Sheriff Koester back and advised him that ICE was placing a detainer on both men. Sheriff Koester accordingly held both men until an ICE agent came to Murdo to retrieve them.
Sheriff Koester impounded the pick-up Mr. Porras-Palma had been driving at the time of the accident. Prior to impounding the vehicle, Sheriff Koester performed an inventory search of the vehicle to document the contents of the vehicle and protect himself against later claims of theft. Some evidence pertinent to the current charges was discovered in that inventory search. Sheriff Koester testified that an inventory search would not typically be done in cases of a driver's license violation or overdriving road conditions.
Lyle Brabazon from the ICE office testified that he received a call and a fax from Sheriff Koester on March 16, 2010. He testified that he ran Mr. Porras-Palma's identification card through nine different data bases. He discovered that Mr. Porras-Palma had twice in the past been apprehended for being in the United States illegally and that he had twice been voluntarily removed back to Mexico. Agent Brabazon testified that the data bases did not show any indication that Mr. Porras-Palma had re-entered the United States legally after either of the prior deportations. He therefore called Sheriff Koester and lodged a detainer against Mr. Porras-Palma on behalf of ICE. Agent Brabazon testified that ...