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United States v. Duenas-Ortiz

United States District Court, D. South Dakota

October 16, 2014



KAREN E. SCHREIER, District Judge.


Defendant, Jason Duenas-Ortiz, is charged with illegal reentry after deportation in violation of 8 U.S.C. §§ 1326(a) and (b). Duenas-Ortiz has moved to suppress all physical evidence, statements, and evidence of his identity as fruit of an unlawful entry and unlawful interrogation in violation of his Fourth and Fifth Amendment rights. Docket 25. The motion was referred to a United States magistrate judge for a report and recommendation.

An evidentiary hearing was held on July 22, 2014. During the hearing, testimony from three law enforcement agents was presented, and two exhibits were received into evidence. Subsequently, the magistrate judge issued a report and recommended the granting of Duenas-Ortiz's motion to suppress with respect to any statements made after law enforcement had called for another officer to book Duenas-Ortiz, but denying the remainder of the motion. Docket 34. Duenas-Ortiz objected to portions of the report and recommendation. Docket 41. For the following reasons, the court adopts in part and rejects in part the report and recommendation, grants the motion to suppress Duenas-Ortiz's statements to law enforcement, and denies the motion to suppress based on Fourth Amendment violations and the motion to suppress Duenas-Ortiz's fingerprints.


Pursuant to 28 U.S.C. § 636(b)(1)(C), the court should make a de novo review "of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." Accord United States v. Benitez , 244 F.App'x 64, 66 (8th Cir. 2007) ("If a party objects to the magistrate judge's report and recommendation with respect to a dispositive matter, the district court judge must conduct a de novo review of the disputed portion of the magistrate judge's report and recommendation."). Motions to suppress evidence are dispositive motions that require de novo review. Fed. R. Crim. P. 59(b)(1), (3). De novo review in the context of reviewing a magistrate judge's report and recommendation does not require a new evidentiary hearing and only means a district court "give[s] fresh consideration to those issues to which specific objection has been made by a party." United States v. Raddatz , 447 U.S. 667, 674-75 (1980) (internal quotations and citations omitted). The court has conducted a de novo review.


The pertinent facts are as follows:

On December 4, 2014, Yankton County law enforcement officials received a "Be on the Lookout" notice, or BOLO, from the Department of Homeland Security. The BOLO advised law enforcement that Homeland Security had received a tip that Duenas-Ortiz, having been previously deported, had illegally reentered the United States and was likely traveling to Yankton, South Dakota. The BOLO further indicated that a woman named Linda Judith Smith was transporting Duenas-Ortiz, and that Duenas-Ortiz would likely return to the residence of Maria Salinas, with whom Duenas-Ortiz had a child. The BOLO provided a description and the license plate number of Smith's vehicle and the address of Salinas's home.

After receiving the BOLO, Yankton local law enforcement regularly checked Salinas's residence for any sign of the vehicle described in the BOLO or Duenas-Ortiz himself. On December 16, 2013, Yankton County Chief Deputy Sheriff Mike Rothschadl and Yankton County Deputy Sheriff Dennis Klimisch observed a vehicle that was registered to Smith at Salinas's residence.[1] Rothschadl and Klimisch approached the residence and looked in through either a window next to the door or a window on the door itself. They observed a man sleeping on a couch in the living room who appeared to be the man in the BOLO. The deputies knocked on the door and the man, Duenas-Ortiz, answered. Both Rothschadl and Klimisch testified that they were in plain clothes but wore their badges and guns and identified themselves as law enforcement officers.

Upon making contact with Duenas-Ortiz, Rothschadl instructed Duenas-Ortiz to provide his identification.[2] Duenas-Ortiz turned and walked a short distance to a coffee table, which was next to the couch on which he had been sleeping, and retrieved his wallet. Duenas-Ortiz left the door open behind him. Both deputies testified that Duenas-Ortiz did not invite them in, but they simply followed him in through the open door. The deputies also testified that they entered the residence out of a concern for officer safety. The deputies did not have a search warrant or an arrest warrant.

Duenas-Ortiz handed the deputies an expired Mexican identification that did not match the person in the BOLO. Rothschadl testified as follows:

I checked his ID and saw that it was expired and the name didn't match the BOLO. I didn't believe him at this point because the picture looked just like him. So we were looking through some mail. After a few minutes of him denying who he was, I just showed him the BOLO, and he admitted that he was Jason Ortiz.

Tr. 9:21-10:1.[3] Rothschadl testified that after Duenas-Ortiz provided the fake identification, he asked Duenas-Ortiz to sit on the couch while Rothschadl remained standing and questioned him. Following the deputies' initial entry into the house, Klimisch performed a protective sweep of the trailer.[4] At least one officer searched through mail on the kitchen counter and in various kitchen cabinets. Eventually, another deputy arrived to transport Duenas-Ortiz to the sheriff's office, and a detective with the city of Yankton's police department also arrived and contacted Agent Charla Aramayo, a special agent with the Department of Homeland Security. Both deputies testified that the encounter was civil, Duenas-Ortiz was cooperative, and the conversations took place in English. Duenas-Ortiz did not appear to have difficulty understanding the deputies.[5] Law enforcement never performed a pat-down of Duenas-Ortiz, and no officer advised Duenas-Ortiz of his Miranda rights.

After Duenas-Ortiz admitted he was the person in the BOLO, he was detained and fingerprinted by the Yankton County Sheriff's Office. Those fingerprints were sent to Agent Aramayo. The next day, Agent Aramayo picked Duenas-Ortiz up and brought him to the Department of Homeland Security office where agents electronically fingerprinted him, which confirmed that Duenas-Ortiz was the same person who had been previously deported.


I. Factual Objections

A. Objection 1

Duenas-Ortiz objects to the report and recommendation's finding that Rothschadl "asked Duenas for identification." Docket 34 at 3 (finding in the report and recommendation); Docket 41 at 5 (objection). Instead, Duenas-Ortiz characterizes Rothschadl's statement as a command that he produce identification. Rothschadl testified that he could not remember whether he had phrased his statement to Duenas-Ortiz as a request or a command. Tr. 15:8-14. In his report, Rothschadl wrote that he told Duenas-Ortiz that he "need[ed] to see" his identification rather that asking "may I see your ID [?]" See Tr. 15:8-21. That language could be interpreted as a command, but it could also be interpreted as a request depending on such variables as the officer's tone or body language. Therefore, the phrasing noted in the report does not resolve the issue raised by Duenas-Ortiz's objection. Both deputies testified that their interactions with Duenas-Ortiz were civil and polite, and that Duenas-Ortiz was cooperative throughout. Tr. 15:13-14; Tr. 35:11-13. There is no other evidence that Duenas-Ortiz understood Rothschadl's statement as a command instead of a request. Based on the evidence in the record, Objection 1 is overruled.

B. Objection 2

Duenas-Ortiz objects to the report and recommendation's finding that law enforcement "asked Duenas to sit on the couch." Docket 34 at 3 (finding in the report and recommendation); Docket 41 at 6 (objection). Duenas-Ortiz's objection revolves around whether law enforcement requested that he sit on the couch or whether law enforcement instructed him to sit in a coercive manner.

As with Objection 1, the tone and manner of Rothschadl's statement are important to any distinction between a request and a command. There is no mention of Rothschadl's phrasing in the evidence presented at the suppression hearing. Again, both deputies testified that the entire ...

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