United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
Defendant seeks to suppress evidence resulting from his stop
on June 5, 2018. [R. 10.] For the reasons stated below, the
Defendant's motion is DENIED.
before June 5, 2018, Immigration and Customs Enforcement
(ICE) received a tip that their target, Osbaldo
Roblero-Velazquez, would be at 204 Shelby Hall Drive and
drove a Ford F-150. [R. 10-1 at 2.] Acting on this
information, law enforcement began a surveillance and
targeted enforcement operation at the Shelby Hall Drive
apartment complex. Id. The officers found support
for the tip at the outset of the operation when they found an
F-150 parked in the shared driveway of units 202 and 204
Shelby Hall Drive. [R. 22.] Now, believing the target to be
inside, the officers began to stakeout the property.
Id. at 2. To prevent detection the officers
positioned themselves outside the view of the front of the
apartment. Id. However, from this vantage point the
front doors of the two adjoined apartment units, 202 and 204,
were obscured. Id. Here they waited.
approximately 6:30 a.m. Roberto Hernandez-Hernandez exited
202 Shelby Hall Drive and entered the green Ford F-150 parked
in the driveway. [R. 10-1 at 4.] After allowing Hernandez to
drive a short distance, Detention Officer Sherwood requested
Hernandez pull over. Id. at 2. Once Hernandez stopped,
Officer Sherwood approached the vehicle and identified
himself as an ICE Deportation Officer. Id. It was at
this time that Officer Sherwood realized that the driver,
Hernandez, was not Roblero, the target of the operation.
happened next is the subject of contention. The record shows
two potential scenarios: one in DO James Bugg's Report
Narrative and the second in Officer Sherwood's sworn
Narrative Report, Officer Sherwood began by questioning
Hernandez about his immigration status shortly after
approaching the vehicle. Id. Hernandez was asked-and
answered no-to whether he had permission to be in the United
States. Id. Officer Sherwood then requested
Hernandez provide a form of identification, and Hernandez
provided an expired Mexican driver's license.
Officer Sherwood testified during the suppression hearing
that he first requested a form of identification. Hernandez
then produced an expired Mexican driver's license and
Officer Sherwood became suspicious that Hernandez was not
authorized to be in the United States. On this suspicion
Officer Sherwood asked whether Hernandez had permission to be
in the country. Hernandez responded that he did not.
of the series of events, Hernandez was then taken into
custody and read his Miranda rights. At this point,
he refused to answer any questions. [R. 10-1 at 2-3.] Upon
arriving at the Louisville ICE office Hernandez's
fingerprints were scanned, and he was identified as having
been previously removed for committing an aggravated felony
in Georgia. Id.
now challenges the stop as a violation of his Fourth and
Fifth Amendment rights and a violation of 8 U.S.C §
1357. Id. He wishes to suppress all the evidence
that was gathered during or as a result of the stop which led
to his arrest.
Fourth Amendment bars unreasonable searches and seizures.
Terry v. Ohio, 392 U.S. 1, 20-21 (1968). Even a
brief detention short of a traditional arrest is a seizure
subject to Fourth Amendment protections. U.S. v.
Brignoni-Ponce, 422 U.S. 873, 878 (1975). Where there is
no probable cause that the suspect committed a traffic
violation, law enforcement must show reasonable suspicion of
ongoing crime to lawfully stop a vehicle. U.S. v.
Jackson, 682 F.3d 448, 453 (6th Cir. 2012).
enforcement officer must have articulable facts to support
his reasonable suspicion of criminal activity. United
States v. Cortez, 449 U.S. 411, 418 (1981). And, the
officer must know these facts before initiating the
stop-i.e., facts learned after the stop cannot
support reasonable suspicion. Id. The court must
evaluate the reasonableness of an officer's suspicion by
reviewing the “totality of the circumstances.”
U.S. v. Martin, 289 F.3d 392, 399 (6th Cir. 2012).
This test is less demanding than probable cause but requires
more than just “inarticulate hunches.”
Id. Based on this test, the facts of Hernandez stop
raise two questions: (i) whether the officers had reasonable
suspicion to pull him over in the first instance; ...