The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING MOTION TO SUPPRESS NATURE AND PROCEDURE OF THE CASE
Defendant, Juan Lozano Munoz, is charged with illegal re-entry after deportation. Munoz has moved to suppress all evidence and statements obtained by authorities as a result of a traffic stop of a vehicle in which Munoz was a passenger. The motion was referred to a magistrate judge for the purpose of holding an evidentiary hearing.
On October 4, 2012, an evidentiary hearing was held before the magistrate judge. During the course of the hearing, the magistrate judge received testimony from John Badker, the police officer who investigated the matter, and Charla Aramayo, an agent with the Department of Homeland Security. The magistrate judge also received a DVD recording of the traffic stop and Officer Badker's written incident report. Based upon the testimony and exhibits received at the hearing, the magistrate judge issued a Report and Recommendation recommending denial of the motion to suppress because all of the evidence and statements obtained by authorities as a result of the traffic stop were within the proper scope of the stop and did not unreasonably prolong the stop. Munoz now objects.
Pursuant to 28 U.S.C. § 636(b)(1)(C), the court makes a de novo review "of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." See also Thomas v. Arn, 474 U.S. 140 (1985).
Munoz makes six objections to the facts as set forth by the magistrate judge in the Report and Recommendation. The court generally agrees with Munoz's objections and recites the pertinent facts as follows:
At about 10:20 p.m. on July 31, 2012, Officer Badker of the Mitchell Police Department stopped a vehicle for a traffic violation because the vehicle had a burned out taillight. There were three individuals in the vehicle, Munoz being a passenger in the back seat.
After approaching the vehicle and informing the driver of the reason for being stopped, Officer Badker asked the driver for his license and where the individuals were headed. The driver informed Officer Badker that they were headed to a motel, that they were from Omaha, and that they were in Mitchell for work as part of a roofing crew. The driver informed the officer that he did not possess a driver's license and instead provided him with a Mexican ID card.*fn1 Upon receiving the driver's Mexican ID card, Officer Badker asked Munoz and the other passenger for their "papers." The other passenger turned over a Honduran birth certificate, and Munoz attempted to give the officer a phone bill that included Munoz's identification. Officer Badker refused to look at the phone bill. At this point in Officer Badker's police report, he notes that "[n]one of the males had a passport or any other paperwork to prove that they were not illegal immigrants." Ex. A at 3.
Officer Badker next asked for vehicle registration and proof of insurance as well as for the driver to exit the vehicle. The driver complied with all requests, and he and the officer entered the patrol car. Once in the patrol car, Officer Badker had dispatch check the names of the three individuals in the vehicle to ensure that there were no warrants out for their arrests; no warrants were found.
While in the patrol car, the driver informed Officer Badker that the vehicle belonged to his employer and provided the officer his supervisor's name and phone number. He also told the officer that he was in the United States legally. Dispatch confirmed that the vehicle belonged to the person identified by the driver. Even though dispatch confirmed that the vehicle was not reported stolen, the officer proceeded to call the driver's supervisor. The supervisor confirmed that the individuals had permission to use the vehicle.*fn2 The majority of this phone conversation, however, pertained to whether the driver was in the United States legally. Apparently unsatisfied with the supervisor's responses, Officer Badker called a different person within the company. This conversation also dealt mostly with whether the driver was an illegal immigrant. Neither individual informed Officer Badker that the driver, or the other passengers, were illegal aliens. The officer then called the driver's wife and interrogated her over the phone. The wife corroborated what the driver and the two supervisors had already told the officer.
At this point in the police report, Officer Badker notes that he
called Immigration and Customs Enforcement (ICE) because he believed
that all three individuals were illegal immigrants.*fn3
In an initial phone conversation with ICE agent Aramayo,
Officer Badker provided her with the driver's name as well as the
other passenger's name. He then ended the phone conversation with
Aramayo so that he could go back to the vehicle to retrieve the name
of Munoz. After Munoz wrote his name and date of birth on a piece of
paper, Officer Badker returned to the patrol car and called Aramayo so
that he could relay Munoz's name to her. At this point in time,
Officer Badker testified that the only thing he knew about Munoz was
that "he was a passenger in the back seat
of the vehicle that was stopped, obviously, for a valid violation and
that the driver of the vehicle did not have a driver's license and
could not give me any ID to confirm that he was here legally." Docket
27 at 41.
Aramayo then informed Officer Badker that the driver was here legally but the other two passengers were illegal aliens.*fn4 Aramayo asked Officer Badker to detain the two passengers until she was able to travel to Mitchell. Officer Badker complied ...