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United States v. Hernandez-Hernandez

United States District Court, E.D. Kentucky, Central Division, Frankfort

December 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERTO HERNANDEZ-HERNANDEZ, Defendant.

          MEMORANDUM OPINION & ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         The 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.

         I.

         Sometime 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.[1] Id. Here they waited.

         At 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.[2] 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.

         What 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 testimony.

         In the 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. Id.

         Conversely, 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.

         Regardless 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.

         Hernandez 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.

         II.

         A.

         The 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).

         A law 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; ...


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