MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Defendant’s Motion and Memorandum Brief to Suppress Evidence Recovered From the Defendants’ [sic] Vehicle and Post-Arrest Statements of the Defendant, filed November 30, 2011 (Doc. 31)(“Motion to Suppress”). The Court held an evidentiary hearing on January 27, 2012. The primary issues are: (i) whether Defendant Julio Reyes-Vencomo’s continued detention, after providing officers his vehicle registration and proof of insurance, constituted an unlawful seizure under the Fourth Amendment to the United States Constitution; (ii) whether Taos, New Mexico Police Officer Virgil Vigil’s request for Reyes-Vencomo’s Social Security number exceeded the lawful scope of the traffic stop; and (in) whether the inventory search was valid. The Court will deny the Motion to Suppress. The Court finds that law enforcement officers lawfully detained Reyes-Vencomo to investigate and confirm his identity. The request for Reyes-Vencomo’s Social Security number did not exceed the lawful scope of the traffic stop, because Reyes-Vencomo could not provide his driver’s license and the officer was attempting to confirm his identity. Furthermore, the inventory search was conducted in compliance with standardized police procedures for a non-investigatory purpose.
FACTUAL BACKGROUND
Rule 12(d) of the Federal Rules of Criminal Procedure requires that the Court state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d) (“When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order are the Court’s essential findings for rule 12(d)’s purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual’s confession or consent to search. See United States v. Merritt,
1. On August 9, 2011, Vigil and Police Trainee Officer Stephen Ortega stopped Reyes-Vencomo while Reyes-Vencomo was operating his motor vehicle near his home in Taos. See Transcript of Hearing at 13:2-19 (January 27, 2012)(Torrez, Vigil)(“Tr.”).
2. Vigil and Ortega stopped ReyesVencomo and executed a traffic stop, because they observed Reyes-Vencomo failing to stop at a stop sign, and exceeding the posted speed limit. See Tr. at 13:2-19 (Torrez, Vigil); id. at 82:15-83:2 (Torrez, Ortega); State of New Mexico Uniform Traffic Citation for Failing to Complete a Stop (dated August 10, 2011)(Govt’s Ex. 2 at hearing)(“Stop Sign Citation”); State of New Mexico Uniform Traffic Citation for Going 40 Miles Per Hour in a 25 Miles per Hour Zone (dated August 10, 2011)(Govt’s Ex. 3 at hearing)(“Speeding Citation”).
3. This traffic stop was Ortega’s first stop where he would make contact with the driver. See Tr. at 14:13-19 (Torrez, Vigil).
4. While investigating the driver, Ortega, accompanied by Vigil, approached Reyes-Vencomo’s vehicle and, pursuant to standard police procedure, asked ReyesVencomo for his driver’s license, vehicle registration, and proof of insurance. See Tr. at 15:18-9 (Torrez, Vigil); id. at 83:16-21 (Torrez, Ortega); Grand Jury Testimony of Virgil Vigil at 5:17-23 (VigilXGovt’s Ex. 6 at hearing)(“Vigil GJ Testimony”).
5. Reyes-Vencomo provided the officers with his vehicle registration information and proof of insurance on the vehicle, informed the officers where he lived, and gave his full name, but indicated that he did not have a driver’s license or identifica
6. Vigil then asked Reyes-Vencomo to provide some form of identification, his name, date of birth, and Social Security number
7. Reyes-Vencomo then provided the officers with his date of birth and produced a Social Security card, giving it to Vigil. See Tr. at 18:24-19:8 (Torrez, Vigil); Vigil Incident Narrative at 1 (Def.’s Ex. A at hearing)(“Vigil Report”); New Mexico it Reyes, No. M-53-FR201100149, Statement of Probable Cause, dated August 11, 2011 (Def.’s Ex. B at hearing)(“Probable Cause”); Ortega Incident Narrative at 1 (Def.’s Ex. C at hearing)(“Ortega Report”).
8. Vigil noted that the card’s coloring and writing did not appear to be correct, and suspected that the card was fake. See Tr. at 19:12-19 (Torrez, Vigil); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
9. Vigil then stated to Reyes-Vencomo that he was not free to leave, as he was going to “run” — conduct a computer-assisted check on — the Social Security card. Tr. at 19:4-8 (Torrez, Vigil); id. at 37:17-23 (Juarez, Vigil).
11. The officers ran the card, and it could not be confirmed as a valid card. See Tr. at 20:2-3 (Torrez, Vigil); id. at 38:15-17 (Juarez, Vigil); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
12. Dispatch informed Vigil .that no record existed matching the Social Security number that Reyes-Vencomo provided. See Tr. at 20:2-3 (Torrez, Vigil); id. at 38:15-17 (Juarez, Vigil); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
13. Vigil then returned to Reyes-Vencomo’s vehicle and asked him where he got his Social Security Card, to which ReyesVencomo responded that he had received it in New Mexico, through the mail. See Tr. at 20:4-13 (Torrez, Vigil).
14. This answer set off a “red flag” for Vigil, because Vigil knew that an individual has to personally retrieve his or her Social Security card. Tr. at 20:13-14 (Vigil).
15. Vigil informed Reyes-Vencomo that he was going to detain him for further investigation, as he believed that ReyesVencomo was in possession of a fraudulent Social Security card. See Tr. at 20:15-20
(Torrez, Vigil); id. at 38:18-39:2 (Juarez, Vigil).
16. Reyes-Vencomo became frustrated and, without the officers’ prompting, exited his vehicle. See Tr. at 20:21-23 (Torrez, Vigil); id. at 33:2-33:9 (Juarez, Vigil); id. at 86:11-17 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at l.
17. As Reyes-Vencomo was exiting the truck, Vigil noticed a large machete in the vehicle’s cab and informed Reyes-Vencomo that he would be temporarily detained outside of the vehicle for officer safety. See Tr. at 21:6-18 (Torrez, Vigil); id. at 39:20^40:4 (Juarez, Vigil); id. at 58:14 (Torrez, Holfelder); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
18. Vigil was attempting to escort Reyes-Vencomo to his police vehicle when Reyes-Vencomo’s cellular telephone began to ring. See Tr. at 22:3-12 (Torrez, Vigil); id. at 86:24-87:6 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
19. For officer safety, Vigil instructed Reyes-Vencomo not to reach into his pock^ ets, but Reyes-Vencomo ignored the order and attempted to retrieve the telephone from his pocket. See Tr. at 22:8-23:3 (Torrez, Vigil); id. at 74:11-17 (Torrez, Reyes-Vencomo); id. at 87:12-20 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at l.
21. Reyes-Vencomo’s telephone and wallet fell out of his pocket, and remained on the ground while Vigil attempted to gain control of Reyes-Vencomo. See Tr. at 23:14-25 (Torrez, Vigil);Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
22. The Social Security card, which Vigil had retained, also fell to the ground. See Tr. at 23:14-20 (Torrez, Vigil); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
23. Reyes-Vencomo’s wife, Shirley Reyes, then arrived on the scene and, contrary to Vigil’s directions, picked up Reyes-Vencomo’s suspect Social Security card, tore it into pieces, and stuffed them into her shirt and mouth. See Tr. at 24:12-25:3 (Torrez, Vigil); id. at 75:15-18 (Torrez, Reyes-Vencomo); id. at 88:25-89:14 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
24. Vigil had previously met S. Reyes, but had not previously met Reyes-Vencomo. See Tr. at 36:6-17 (Juarez, Vigil).
25. Simultaneously, Reyes-Vencomo continued to resist Vigil’s attempt to restrain him and head-butted Vigil in the nose as he was attempting to place ReyesVencomo in the back of the police unit. See Tr. at 25:4-19 (Torrez, Vigil); id. at 89:23-90:10 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
26. While awaiting backup, the officers placed Reyes-Vencomo and his wife under arrest. See Tr. at 26:9-27:12 (Torrez, Vigil); id. at 90:11-18 (Torrez, Ortega).
27. Reyes-Vencomo and S. Reyes were both placed in police vehicles. See Tr. at 90:15-22 (Torrez, Ortega).
28. Vigil issued citations to Reyes-Vencomo for: (i) driving without a driver’s license, under N.M.S.A.1978, § 66-5-2; (ii) failing to come to a complete stop, under N.M.S.A.1978, § 66-8-116; and (in) and driving forty miles per hour in a twenty-five miles-per-hour zone, under N.M.S.A. 1978, § 66-7-301. See Tr. at 27:20-28:10 (Torrez, Vigil); Stop Sign Citation at 1; Speeding Citation at 1; License Citation at 1.
30. Taos Police Department Policy provides:
1. When the operator of a vehicle is arrested and there is no one immediately available whom they want to take charge of the vehicle, it will be towed. This decision shall be noted in the narrative of the report, which is completed.
2. In the event the vehicle is towed, the adopted procedures for tow rotation will be followed.
3. A vehicle inventory will be completed and attached to any associated reports. If there is an Offense/Incident report completed, place the case number on the top right corner of the inventory.
Taos Police Department Towing Policy at 4-5 (Govt’s Ex. 5 at hearing).
31. Pursuant to standard police procedure, Taos Police Department officers conducted a search of Reyes-Vencomo’s vehicle before towing and inventoried the items in the vehicle. See Tr. at 53:24-56:7 (Torrez, Holfelder); Taos Police Department Towing Policy at 5; Taos Police Department Towing Authorization and Inventory at l(Govt’s Ex. 4 at hearing)(‘Tnventory”).
32. When Detective Barry Holfelder, the officer who conducted the search of Reyes-Vencomo’s vehicle, arrived, the only individuals at the scene were two sheriffs deputies, five Taos police officers, and Reyes-Vencomo, who was in the back of a police vehicle. See Tr. at 63:2-14 (Juarez, Holfelder); id. at 55:8-19 (Torrez, Holfelder).
33. Holfelder arrived at the scene between 12:30 p.m. and 12:35 p.m., and the traffic stop took place “quite awhile” before he arrived. Tr. at 50:22-23 (Torrez, Holfelder).
34. Holfelder understood the “immediately available” requirement in the Taos Police Department Towing Policy to refer to another vehicle occupant or an individual traveling in tandem with the stopped vehicle. See Tr. at 55:16-23 (Torrez, Holfelder).
35. The purpose of the Taos Police Department Towing Policy is to remove the vehicle from the roadway, to inventory the items within the vehicle to protect the Taos Police Department and the Town of Taos, and to provide a document noting what the vehicle held at the time that it was towed. See Tr. at 53:24-54:10 (Torrez, Holfelder).
36. The Taos Police Department Towing Policy is a uniform standardized policy to do a complete inventory search of a vehicle when a vehicle will be towed, because the owner is under arrest and no one is immediately available to take possession of the vehicle. See Tr. at 53:24-54:10
37. Holfelder noticed that a young woman, whom he believes was Reyes-Vencomo’s stepdaughter, arrived some point after he began his inventory search. See Tr. at 63:17-18 (Juarez, Holfelder); id. at 65:25-11 (Torrez, Holfelder).
38. Holfelder testified that he saw Gutierrez having a conversation with Vigil through the driver’s door of Reyes-Vencomo’s vehicle. See Tr. at 66:3-11 (Torrez, Holfelder)
39. At some point after the tow truck had been called, Betty Gonzales and Claudia Gutierrez, S. Reyes’ daughter, asked Vigil whether they could drive Reyes-Vencomo’s truck home. See Tr. at 43:16-44:7 (Juarez, Vigil).
40. Vigil left the scene, because paramedics advised that he proceed to the hospital for X-rays. See Tr. at 30:8-11 (Torrez, Vigil); Vigil Report at 1-2; Probable Cause at 1-2.
41. Holfelder was not aware that anyone had offered to drive the vehicle to Reyes-Vencomo’s home. See Tr. at 51:14-18 (Torrez, Holfelder).
42. After his arrest, Reyes-Vencomo was placed in the back of a locked police car, with the windows rolled up, and made no contact with anyone at the scene. See Tr. at 55:2-57:4 (Torrez, Holfelder); id. at 90:15-91:3 (Torrez, Ortega).
44. Reyes-Veneomo is a citizen of Mexico and is unlawfully present in the United States. See Tr. at 78:6-10 (Torrez, ReyesVencomo).
45. Vigil and Ortega prepared narrative summaries of their encounter with Reyes-Vencomo, but did not note the decision to tow. See Tr. at 32:16-18 (Juarez, Vigil); id. at 64:22-65:4 (Juarez, Holfelder); id. at 91:20-22 (Juarez, Ortega); Vigil Report at 1; Ortega Report at 1.
PROCEDURAL BACKGROUND
On September 27, 2011, a federal grand jury in the District of New Mexico returned an indictment against Reyes-Vencomo, charging him with being an Alien in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). See Doc. 16. On October 6, 2011, Reyes-Vencomo appeared for arraignment and entered a not guilty plea. See Magistrate Clerk’s Minutes of Arraignment at 1, filed October 6, 2011 (Doc. 21).
On November 30, 2011, Reyes-Vencomo filed a motion to suppress certain evidence, specifically the firearms and ammunition he is accused of possessing and any statements he made to law enforcement officers. See Motion to Suppress at 1. ReyesVeneomo moves the Court to suppress all evidence recovered from his motor vehicle and all post-arrest statements that he made to law enforcement in connection with and as a result of his arrest on August 9, 2011. See Motion to Suppress at 1. He asserts that he was unconstitutionally detained after Vigil and Ortega pulled him over for running a stop sign. See Motion to Suppress at 3. Reyes-Vencomo asserts that, under Terry v. Ohio,
Reyes-Vencomo argues that his involuntary detention never ceased, because Vigil never concluded the investigation of the traffic offense despite the lack of reasonable, articulable suspicion of criminal activity. See Motion to Suppress at 6. He asserts that he had already provided sufficient identification, and that Vigil had no right to request his Social Security number or card. See Motion to Suppress at 6-7. Reyes-Vencomo further contends that the officers’ questions exceeded the scope of a lawful stop under New Mexico and federal law. See Motion to Suppress at 7. He argues that Vigil and Ortega were bound by New Mexico law as Taos police officers making a stop in New Mexico, and that he is entitled to the protections of New Mexico law. See Motion to Suppress at 7. He asserts that the Court should honor his protections against unreasonable searches and seizures as established under
On December 19, 2011, Plaintiff United States of America timely filed, pursuant to rule 45(c) of Federal Rules of Criminal Procedure and rule 5(b)(2)(E) of the Federal Rules of Criminal Procedure, its Response to Defendant’s Motion to Suppress (Doc. 40)(“Response”). The United States characterizes Reyes-Vencomo’s Motion to Suppress as advancing two arguments: (i) that his continued detention after providing officers with his vehicle registration and proof of insurance constituted an unlawful seizure under the Fourth Amendment; and (ii) that Vigil’s request for Reyes-Vencomo’s Social Security number exceeded the lawful scope of the traffic stop. See Response at 4.
The United States argues that the traffic stop, detention, and arrest of ReyesVencomo was based on reasonable. suspicion and probable cause that he was engaged in criminal activity. See Response at 4. The United States asserts that the initial traffic stop was based on an observed traffic violation, because ReyesVencomo failed to come to a complete stop at a stop sign. See Response at 5. It contends that the continued Reyes-Vencomo’s detention was based on probable cause that he was driving without a valid driver’s license. See Response at 5. The United States argues that requesting identification and running a check for warrants is lawful under such circumstances. See Response at 5. The United States asserts that Reyes-Vencomo had no driver’s license and was driving the vehicle in violation of N.M.S.A.1978, § 66-5-2. See Response at 5. It argues that Vigil had probable cause to arrest Reyes-Vencomo and that an officer may arrest a defendant for a misdemeanor if a crime occurs in the officer’s presence. See Response at 5. The United States asserts that New Mexico law requires persons to identify themselves when a law enforcement officer asks them to do so. See Response at 6 (citing N.M.S.A.1978, § 30-22-3). It argues that Vigil asked Reyes-Vencomo for his Social Security number, because Reyes-Vencomo had indicated he had no other form of identification and that Vigil was trying to determine, consistent with state law, who Reyes-Vencomo was. See Response at 6. The United States contends that Vigil had á reasonable suspicion that Reyes-Vencomo was concealing his identity in violation of N.M.S.A.1978, § 30-2-3, which provides that:
Concealing identity consists of concealing one’s true name.or identity, or disguising oneself with intent to obstruct the due execution of the law or with intent to intimidate, hinder or interrupt any public officer or any other person in a legal performance of his duty or the exercise of his rights under the laws of the United States or this state.
Whoever commits concealing identity is guilty of a petty misdemeanor.
Response at 6-7 (quoting N.M.S.A.1978, § 30-2-3). It asserts that an officer may question a detainee during a stop to dispel or confirm his or her suspicions and that, through his questioning, Vigil was able to confirm his suspicions about Reyes-Vencomo’s identity. See Response at 7. It argues that, when Reyes-Vencomo failed to produce a valid identifying document, Vigil had reasonable suspicion that Reyes-Vencomo might not be who he stated he was. See Response at 7. The United States further asserts that, when dispatch informed Vigil that there was no record of the Social Security number Reyes-Vencomo gave, Vigil had probable cause to believe that Reyes-Vencomo was concealing his identity. See Response at 7.
With respect to the inventory search, the United States asserts that a law enforcement agency may conduct an invento
Finally, the United States argues that the Fourth Amendment permits officers to make a protective search of a vehicle which may contain a weapon. See Response at 9. The United States asserts that the machete, which Vigil observed'inside the vehicle, constituted probable cause to believe that the vehicle contained weapons. See Response at 10. It argues that a protective sweep of the vehicle was thus permissible under the Fourth Amendment. See Response at 10.
On January 2, 2012, Reyes-Vencomo filed his Reply to Memorandum Brief in Opposition to Motion to Suppress Evidence Recovered from the Defendants’ [sic] Vehicle and Post-Arrest Statements of the Defendant. See Doc. 41 (“Reply”). Reyes-Vencomo asserts that the officers could only detain and release him pursuant to N.M.S.A.1978, §§ 66-8-122 and 66-8-123 for the traffic infraction or for driving without a license. See Reply at 3. ReyesVencomo cites State v. Bricker,
With respect to the search, Reyes-Vencomo asserts that the inventory search violated his rights, because the officers had no occasion to arrest him in the first place and, therefore, no basis to impound his vehicles. See Reply at 4. He also contends that, at the time the search was conducted, he was restrained and in the back of a police unit. See Reply at 4. Reyes-Vencomo asserts that, because he no longer presented a danger, the protective search was invalid under Arizona v. Gant,
The Court held an evidentiary hearing on January 27, 2012. In opening remarks, Reyes-Vencomo asserted that it is the United States’ burden to show that the warrantless search did not violate the Fourth Amendment. See Tr. at 4:7-11 (Juarez). Reyes-Vencomo stated that he does not contest that the initial stop was valid. See Tr. at 4:13-15 (Juarez). Reyes-Vencomo suggested that, the moment Vigil asked Reyes-Vencomo for his Social Security information, he ventured into the realm of trying to enforce federal immigration Jaw, which he has no jurisdic
In its opening remarks, the United States asserted that it would not address whether Reyes-Vencomo has presented a novel question of law, because that question was not raised in the briefing. See Tr. at 6:19-22 (Torrez). The United States argued that this case involves a “run-of-the-mill” traffic stop and that, when Reyes-Vencomo indicated that he did not have a driver’s license, the officers had a reasonable, articulable suspicion of criminal activity under N.M.S.A.1978, § 66-5-16. See Tr. at 7:3-6 (Torrez). The United States represented that the Court addressed a similar issue in United States v. Jacquez,
Reyes-Vencomo argued that this case is about a Social Security card. See Tr. at 98:8-11 (Juarez). He asserted that the testimony is clear that there was a traffic stop and that, when asked for his Social Security information, he produced one. See Tr. at 98:11-25 (Juarez). He contended that the traffic stop then went awry, but that all of the documents surrounding the truck are legitimate. See Tr. at 99:1-2 (Juarez). Reyes-Vencomo asserted that
With respect to the inventory search, Reyes-Vencomo asserted that two people were immediately available to drive the truck back to his house and that Vigil admitted this fact. See Tr. at 101: 19-21 (Juarez). He argued that Vigil knew Gonzales and Gutierrez. See Tr. at 101:22-102:3 (Juarez). Reyes-Vencomo additionally argued that both women asked Vigil whether they could drive the truck home, such that, under the Taos Police Department policy, someone was immediately available to take the vehicle. See Tr. at 102:5-9 (Juarez). Reyes-Vencomo asserted that the only way to establish whether someone is immediately available to take the vehicle is to ask, and Holfelder had no contact with him. See Tr. at 102:10-103:1 (Juarez). Moreover, Reyes-Vencomo contended that no officer noted in their report that no one was available to take the vehicle as required under the Taos policy. See Tr. at 103:1-7 (Juarez). Reyes-Vencomo argued that, even if the Court finds that the arrest was valid, the Court should grant the Motion to Suppress, because of the failure to follow the proper inventory-search procedure. See Tr. at 103:8-14 (Juarez).
The Court asked Reyes-Vencomo whether it would need to make a credibility determination to resolve the issues before it. See Tr. at 103:20-24 (Court). Reyes-Vencomo responded that he did not believe that the Court would need to make a credibility determination with respect to the inventory search question, because Vigil admitted that he recognized Gutierrez as S. Reyes’ daughter and that she asked to take the vehicle home. See Tr. at 104:1-7 (Juarez).
The United States represented that the Court needs to answer four questions: (i) whether an officer may detain a driver following a failure to produce a driver’s license; (ii) whether an officer may ask a driver for a Social Security number in the absence of a driver’s license; (in) whether an officer may detain a defendant for officer safety in the presénce of a knife or weapon; and (iv) whether, following a lawful arrest, law enforcement officers may conduct an inventory search of the defendant’s vehicle before having it towed. See Tr. at 104:17-105:4 (Torrez).
The United States contended that the Court addressed the first question in United States v. Jacquez. See Tr. at 105:5-9 (Torrez). It asserted that the Court found
The United States contended that driving without a license is a misdemeanor and that Vigil could have arrested Reyes-Vencomo for that offense, without violating the Fourth Amendment, when Reyes-Vencomo stated that he did not have a license. See Tr. at 108:23-109:2 (Torrez). It argued that Vigil asked Reyes-Vencomo for his Social Security number to try to confirm his identity. See Tr. at 109:3-7 (Torrez). The United States asserted that, when Reyes-Vencomo gave Vigil a false Social Security card, the officers had reasonable suspicion of criminal activity, that being a violation of N.M.S.A.1978, § 30-22-3, concealing identity from an officer. See Tr. at 109:7-11 (Torrez). It represented that State v. Andrews,
The Court noted that the United States was not arguing that this encounter was consensual. See Tr. at 111:7-8 (Court). The United States agreed that it was not making that argument. See Tr. at 111:9 (Torrez). The Court then asked the United States at what point it believes an arrest occurred. See Tr. at 111:10-11 (Court). The United States responded that Reyes-Vencomo was detained, but not arrested, up until the moment his cellular telephone began ringing, when Vigil issued the order not to answer the cellular telephone, and when Reyes-Vencomo began to resist. See Tr. at 111:12-21 (Torrez). The Court asked whether the United States was asserting that the encounter was still an investigative stop when Vigil began taking him to the police vehicle. See Tr. at 111:22-24 (Court). The United States asserted that it was an investigative stop and a detention, but not a “full-blown” arrest, until Vigil issued the order and ReyesVencomo resisted the order. Tr. at 111:24-112:7 (Torrez). The Court asked for what offense Vigil had probable cause to arrest Reyes-Vencomo at that point. See Tr. at 112:8-9 (Court). The United States responded that the officers had probable cause to arrest him for resisting arrest because he disobeyed a lawful command given for officer safety. See Tr. at 112:10-19 (Torrez). The United States asserted that the officers did not know for what Reyes-Vencomo was reaching in his pocket. See Tr. at 112:19 (Torrez). The United States suggested that the Court should decline Reyes-Vencomo’s invitation to hold that he had a right to resist the arrest, because it was an unlawful arrest. See Tr. at 113:13-19 (Torrez). It argued that Reyes-Vencomo does not have that right; his right is to appear before a court to redress that violation. See Tr. at 113:19-114:2 (Torrez).
With respect to the second question, the United States asserted that it was unable to find, either in Reyes-Vencomo’s briefings or in its own research, any federal or state statute that prohibits a law enforcement officer from requesting a Social Security number or card. See Tr. at 114:5-11 (Torrez). The United States argued that the closest case that Vencomo-Reyes cites in his briefing is People v. Farley,
The United States then moved to the next two questions it posed. The United States asserted that an officer has the right to detain a driver for officer safety when in the presence of a weapon, when the driver is agitated, and when the driver is unable to identify himself. See Tr. at 115:16-19 (Torrez). The United States contended that Reyes-Vencomo has cited no authority establishing that an officer could not detain a driver in those circumstances. See Tr. at 115:19-116:2 (Torrez). With respect to the inventory search, the United States argued that an inventory search must be conducted in accordance with standard criteria and for a purposes other than investigation of criminal activity. See Tr. at 116:4-9 (Torrez). The United States asserted that Reyes-Vencomo never told the officers that he wished for Gutierrez or Gonzales to take his vehicle to his home. See Tr. at 116:16-117:5 (Torrez). It argued that the officers should not have to wait to see who might show up to take possession of an arrested individual’s vehicle. See Tr. at 117:21-118:1 (Torrez). The United States asserted that Gutierrez and Gonzales showed up at some point, but that the tow truck had already been called and, if the inventory was already underway, then the bell had already rung, because the officers had found the weapons. See Tr. at 118:1-6 (Torrez). It contended that the officers acted in good faith, because, when they began the inventory search, no person was immediately available at the scene. See Tr. at 118:7-13 (Torrez). The United States asserted that the officers were under no obligation to wait to see if anyone would become available and that the inventory search was conducted according to policy. See Tr. at 118:14-25 (Torrez).
Reyes-Vencomo reiterated that it is the United States’ burden to establish that the defendant’s rights were not violated. See Tr. at 119:11-12 (Juarez). He emphasized that Gutierrez and Gonzales were at the scene before the tow truck arrived. See Tr. at 119:13-18 (Juarez). He asserted that the United States did not pursue that line of questioning with its witness. See Tr. at 119:21-23 (Juarez). Reyes-Vencomo argued that the officers were supposed to reflect whether someone is available to take possession of the vehicle and that none of the police reports contain a reference to that policy. See Tr. at 119:24-120:6 (Juarez). He contended that the United States failed to meet the inventory search exception. See Tr. at 120:7-9 (Juarez). Reyes-Vencomo asserted that Atwater v. City of Lago Vista and Virginia v. Moore stand for the proposition that the Fourth Amendment is paramount when analyzing an arrest, and that it is important for the Court to look closely at whether a violation of N.M.S.A.1978, §§ 66-5-16 or 66-5-2 is a crime. See Tr. at 120:9-16 (Juarez). He argued that, if violations of those statutes are not crimes, then the arrest was invalid under the Fourth Amendment, because Atwater v. City of Lago Vista and Virginia v. Moore provide that an officer may arrest an individual for any petty offense, so long as that offense is a crime. See Tr. at 120:19-25 (Juarez). Reyes-Vencomo contended that there is no crime here and that those provisions are mere policy statements without a penalty. See Tr. at 121:1-10 (Juarez). He asserted that it would be nice to believe that Vigil was investigating identity concealment, but that the testimony did not support such a suggestion. See Tr. at 121:11-16 (Juarez). Reyes-Vencomo contended that, for whatever reason, Vigil became fixated with the fraudulent Social Security card and detained him. See Tr. at 121:16-22 (Juarez). He argued that the question is not where the arrest occurred, but when the detention exceeded the scope of the stop. See
RELEVANT FOURTH AMENDMENT LAW
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. Const, amend. TV. For Fourth Amendment purposes, the Supreme Court has identified- three categories of police-citizen encounters: (i) consensual encounters, which are not considered “seizures” within the meaning of the Fourth Amendment, and therefore need not be supported by suspicion of criminal wrongdoing; (ii) investigative stops, in which an officer may briefly detain a person based on reasonable suspicion of criminal activity; and (iii) arrests, which are justified only if the officer has probable cause to believe that the subject has committed a crime. See, e.g., Florida v. Bostick,
1. Investigative Detentions and Reasonable Suspicion.
An encounter that is not consensual may nevertheless be constitutional as an investigative detention. An investigative detention occurs when an officer stops and briefly detains a person “in order to determine his identity or to maintain the status quo momentarily while obtaining more information.” Oliver v. Woods,
“For reasonable suspicion to exist, an officer ‘need not rule out the possibility of innocent conduct;’ he or she simply must possess ‘some minimal level of objective justification’ for making the stop.” United States v. Winder,
An officer may “stop and frisk” an individual under the Fourth Amendment if a reasonably prudent person “in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio,
These stop-and-frisk principles apply with equal weight to motorists and to pedestrians. See Michigan v. Long,
Terry has come to stand for two distinct propositions — an investigative detention (‘stop’) in which a police officer, for the purpose of investigation, may briefly detain a person on less than probable cause, ... and a protective search (‘frisk’) which permits an officer, in the course of an investigative detention, to conduct a limited search for weapons for his or her own protection.
United States v. King,
In United States v. Johnson,
In United States v. Ceballos,
A review of the totality of the circumstances shows Gallegos was not acting on an unparticularized hunch; during his testimony he articulated specific facts that caused him to suspect Ceballos intended to assault or abduct the teenage pedestrian. Specifically, at the time Gallegos initiated the traffic stop, he had observed Ceballos slow his vehicle as he passed a teenage girl walking alone late at night. He then observed Ceballos alter his route by making a U-turn and following the girl down a narrow, nearly deserted residential street. Ceballos pulled alongside the girl, who he did not know, and asked her if she wanted a ride. She refused, telling him she lived up the street. Ceballos then drove further down the road, pulled into a driveway as if to turn around and return to the main road, but instead backed out and drove a few feet further east, in the same direction the girl was walking. He parked in a dark location and turned off his lights.
We agree with the Government that Officer Gallegos had reasonable suspicion to stop and detain Ceballos. Ceballos showed an interest in a teenage girl he did not know, to the point that he changed his route to follow her down a dark street, offered her a ride, and then parked where the girl would be required to walk past him as she continued to her home. The facts found by the district court, viewed in totality, amply support the constitutionality of the investigative detention.
United States v. Ceballos,
“A traffic stop is a ‘seizure’ within the meaning of the Fourth Amendment.” United States v. Harmon,
assess the reasonableness of a routine traffic stop under the principles laid out for investigative detentions in Terry v. Ohio,392 U.S. 1 ,88 S.Ct. 1868 ,20 L.Ed.2d 889 ... (1968), considering “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified it in the first place.”
United States v. Wilson,
Requesting the driver’s identification and running a check for warrants is unlawful under some circumstances. In United States v. Hensley,
3. Arrests.
A seizure that exceeds the investigative detention’s limited scope or duration may nevertheless be justified as an
“Probable cause to arrest exists only when the ‘facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’ ” United States v. Valenzuela,
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
Alabama v. White,
Probable cause is measured against an objective standard. See Beck v. Ohio,
4. Inventory Searches.
An inventory search undertaken pursuant to impoundment or the authority to impound “constitutes a well-defined exception to the warrant requirement.” Illinois v. Lafayette,
*1331 In applying the reasonableness standard adopted by the Framers, [the] Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. Thus, the justification for an inventory search does not rest on probable cause and the absence of a warrant is immaterial to the reasonableness of the search.
A warrantless inventory search is proper when the search is conducted pursuant to standard police procedures for the purpose of protecting the car and its contents. See United States v. Moraga,
If an inventory search is conducted pursuant to department policy, to find the inventory search unconstitutional, the officers must have acted out of bad faith, for the sole purpose of investigation. See Colorado v. Bertine,
RELEVANT LAW ON THE EXCLUSIONARY RULE
When evidence is obtained in violation of a person’s constitutional rights, the police will be prohibited from using that evidence in a criminal prosecution of that person. See United States v. Calandra,
ANALYSIS
In support of his motion, Reyes-Vencomo advances three arguments: (i) his continued detention after providing the officers his vehicle registration and proof of insurance constitutes an unlawful seizure under the Fourth Amendment; (ii) Vigil’s request for Reyes-Vencomo’s Social Security number exceeded the lawful scope of the traffic stop; and (iii) the inventory search was conducted in an unlawful manner. The Court finds that law enforcement officers lawfully detained ReyesVencomo to investigate and confirm his identity. The request for Reyes-Vencomo’s Social Security number did not exceed the traffic stop’s lawful scope, because Reyes-Vencomo could not provide his driver’s license and the officer was attempting to confirm his identity. Furthermore, the inventory search was conducted in compliance with standardized police procedures and was for a non-investigatory purpose.
I. MOST OF THE DISPUTED FACTS ARE NOT MATERIAL.
At the hearing it was apparent that some of the facts are in dispute. While the Court has resolved those disputes in its factual findings pursuant to rule 12(d), the Court notes that most of the facts at issue were not material for the purposes of this Memorandum Opinion and Order.
The first two factual disputes are not material to the ultimate question whether the stop violated the Fourth Amendment, because: (i) whether Vigil asked for a Social Security card or number presents the same issue about exceeding the scope of the stop; and (ii) whether Vigil yelled slurs against does not effect the legality of the stop, because there is no question of consent. The second two factual disputes both go to whether the inventory search was properly conducted and whether Reyes-Vencomo directed that someone immediately available at the scene take his vehicle to his home. Two police officers testified that Reyes-Vencomo was locked in the back of a police vehicle and that they did not observe him communicating with anyone at the scene. See Tr. at 55:2-57:4 (Torrez, Holfelder); id. at 90:15-91:3 (Torrez, Ortega). Reyes-Vencomo, however, asserted that he asked an officer to permit S. Reyes or Gutierrez to take the vehicle and that his stepdaughter was on the scene immediately. See Tr. at 69:17-20 (Juarez, Reyes-Vencomo); id. at 77:8-78:5 (Torrez, Reyes-Vencomo). During their testimony, the officers were calm and their statements consistent, both internally and with each other. In contrast, ReyesVencomo was much more animated on the witness stand, his statements were not always internally consistent, and some of his assertions, such as stating that the police officer never asked for a driver’s license, were not credible. Based on the Court’s careful observation of the testimony and review of the evidence submitted, the Court found the officers statements more credible. With respect to the order of persons arriving at the scene, the Court also needs to make a credibility determination. Reyes-Vencomo testified that his stepdaughter was immediately on the scene. See Tr. at 77:8-78:5 (Torrez, Reyes-Vencomo). Holfelder testified, however, that no one arrived until after he began his inventory search. See Tr. at 63:17-18 (Juarez, Holfelder); Tr. at 65:25-11 (Torrez, Holfelder). Vigil also testified that Gonzales arrived “way after” the arrest and after the tow-truck had been called. See Tr. at 43:18-22 (Juarez, Vigil). Reyes-Vencomo argued that the United States did not establish whether Gonzales or Gutierrez were there before the inventory search. See Tr. at 119:11-18 (Juarez). The Court finds, however, that the testimony of Holfelder is credible, and established that he arrived and began his inventory before Gutierrez or Gonzales arrived at the scene.
II THE TRAFFIC STOP, DETENTION, AND ARREST OF REYESVENCOMO WAS BASED ON REASONABLE SUSPICION AND PROBABLE CAUSE THAT REYES-VENCOMO WAS ENGAGED IN CRIMINAL ACTIVITY.
Vigil and Ortega lawfully stopped Reyes-Vencomo’s vehicle. They observed Reyes-Vencomo fail to come to a complete stop at a stop sign and saw him traveling at fifteen miles per hour above the posted speed limit. Reyes-Vencomo’s continued detention was justified, because the officers had probable cause to arrest him for driving without a driver’s license or, alternatively, reasonable suspicion of criminal activity.
The first step in analyzing the reasonableness of a routine traffic stop is determining “whether the officer’s action was justified at its inception.” United States v. Wilson,
Reyes-Vencomo does not dispute that he was stopped for a minor traffic infraction. See Tr. at 1. Vigil and Ortega testified at the evidentiary hearing that Reyes-Vencomo failed to come to a complete stop and was speeding. See Tr. at 12:24-13:13 (Torrez, Vigil); id. at 82:15-83:2 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1. The citations issued to Reyes-Vencomo indicate that he was stopped for a failure to come to a complete stop, in violation of N.M.S.A.1978, § 66-8-116, and traveling forty miles per hour in a twenty-five miles-per-hour zone, in violation of N.M.S.A. 1978, § 66-7-301. See Stop Sign Citation at 1; Speeding Citation at 1. Vigil and Ortega were justified in stopping ReyesVencomo’s vehicle because they observed two traffic infractions. “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation.” United States v. Williams,
Reyes-Vencomo does not dispute that the officers had reasonable suspicion and, indeed, probable cause to stop him. Accordingly, because the officers observed two traffic infractions, their initial stop and detention of Reyes-Vencomo did not violate his rights under the Fourth Amendment.
B. REYES-VENCOMO’S CONTINUED DETENTION WAS BASED ON PROBABLE CAUSE THAT HE WAS DRIVING WITHOUT A VALID DRIVER’S LICENSE AND REASONABLE SUSPICION OF CRIMINAL ACTIVITY.
Reyes-Vencomo contends that all evidence that the officers obtained, and all statements elicited from him, stem from his unconstitutional continued detention. See Motion to Suppress at 5. He asserts that when “the investigation of the traffic offense is complete ... the driver must be allowed to proceed without further delay.” Motion to Suppress at 5 (citing United States v. Elliott,
At the hearing, Reyes-Vencomo asserted that Vigil has consistently testified that the only reason he detained Reyes-Vencomo was to further investigate the Social Security information. See Tr. at 99:15-18 (Juarez). He argued that, at that moment, Vigil exceeded the scope of the stop, violating his rights, and illegally detaining him from that moment onward. See Tr. at 99:23-100:1 (Juarez). Reyes-Vencomo contended that he could not be arrested for driving without a license and cited Atwater v. City of Lago Vista for support. See Tr. at 100:2-5 (Juarez). Reyes-Vencomo argued that, under N.M.S.A.1978, § 66-5-16, driving without a license is not a criminal offense and, thus, is not a violation for which he can be arrested. See Tr. at 100:15-20 (Juarez). He also asserted that using a false Social Security card as identification during a traffic stop is not a crime or at least not one for which that Vigil could arrest him. See Tr. at 100:22-101:4 (Juarez). The United States represented that the Court found that an officer could lawfully detain an individual driving without a license based on that violation. See Tr. at 105:24-106:4 (Torrez). The United States further asserted that the Tenth Circuit precedent, established in United States v. Galindo-Gonzales and United States v. Zubia-Melendez, supports the Court’s decision in United States v. Jacquez. See Tr. at 106:7-11 (Torrez). The United States argued that there are two provisions in the vehicle code which reference unlicensed driver, but that another provision in the New Mexico traffic code states that violations that are not otherwise penalized are considered misdemeanors. See Tr. at 106:23-107:1 (TorrezXciting N.M.S.A.1978, § 66-8-7).
1. When Reyes-Vencomo Failed to Produce a Driver’s License, Vigil Could Detain Him for Violating N.M.S.A. 1978, §§ 66-5-2 and 66-5-16.
Requesting the driver’s identification and running a check for warrants is lawful under some circumstances. “[F]or example, the motorist may be detained for a short period while the officer runs a background check to see if there are any outstanding warrants or criminal history pertaining to the motorist, even though the purpose of the stop has nothing to do with such prior criminal history.” United States v. Holt,
In Virginia v. Moore, a driver was arrested for driving on a suspended license despite a state law providing that the officer should have issued a summons for the driver instead of arresting him. See 553 U.S. at 164,
Neither N.M.S.A.1978, § 66-5-2 nor N.M.S.A.1978, § 66-5-16, proscribe a penalty for its violation or otherwise categorize the offense. Accordingly, N.M.S.A.1978, § 66-8-7 applies. In State v. Trevizo,
“Although probable cause to arrest is not necessary to justify the extension of an investigative detention, it is sufficient.” United States v. Chavez,
2. Even if Vigil Was Not Entitled to Arrest or Detain Reyes-Vencomo for Failing to Produce a Driver’s License, His Request for the Social Security Number Did Not Exceed the Scope of the Traffic Stop and Gave Rise to Reasonable Suspicion of Criminal Activity.
An officer “conducting a traffic stop may request vehicle registration and a driver’s license, run a computer check, ask about travel plans and vehicle ownership, and issue a citation.” United States v. Zubiar-Melendez,
Once Vigil obtained the suspicious Social Security Card and was informed that there was no record of the Social Security number, he had reasonable suspicion of criminal activity and could detain ReyesVencomo for further investigation. Vigil testified that he continued to detain Reyes-Vencomo, because the Social Security card he was given appeared fraudulent and dispatch indicated that there was no record of the Social Security number. See Tr. at 20:15-20 (Torrez, Vigil). The Tenth Circuit has stated that it judges an officer’s “conduct in light of common sense and ordinary human experience, and ... accord[s] deference to an officer’s ability to distinguish between innocent and suspicious actions.” United States v. Ceballos,
Here, the facts known to Vigil were as follows: (i) Reyes-Vencomo was irate, see Tr. at 20:21-23 (Torrez, Vigil); (ii) ReyesVencomo had no driver’s license, see Tr. at 17:19-23 (Torrez, Vigil); id. at 85:22-86:7 (Torrez, Ortega); (iii) Reyes-Vencomo had presented him with a suspicious Social Security card, see Tr. at 19:12-19 (Torrez, Vigil); (iv) dispatch had informed him that there was no record of such a Social Security number, see Tr. at 20:2-3 (Torrez, Vigil); and (v) Reyes-Vencomo had stated
The United States contends that Vigil had reasonable suspicion to believe that Reyes-Vencomo was concealing his identity in violation of N.M.S.A.1978, § 30-22-3. See Response at 6. N.M.S.A.1978, § 30-22-3 provides
Concealing identity consists of concealing one’s true name or identity, or disguising oneself with intent to obstruct the due execution of the law or with intent to intimidate, hinder or interrupt any public officer or any other person in a legal performance of his duty or the exercise of his rights under the laws of the United States or this state.
Whoever commits concealing identity is guilty of a petty misdemeanor.
The totality of the circumstances available to Vigil establish that he had reasonable suspicion to believe that Reyes-Vencomo might be concealing his identity. ReyesVencomo presented no identification to the officers when he was stopped. He could not produce a driver’s license, turned over a possibly fraudulent Social Security card, and gave answer that set off a “red flag” when asked where the card came from. Tr. at 20:13-14 (Vigil). Vigil reasonably could have concluded that, if the Social Security card was fake, Reyes-Vencomo intended to conceal his identity to obstruct the due execution of the law, perhaps because a warrant existed for his arrest or that he had some other reason to hide his identity from law enforcement. The Court agrees that the suspect Social Security card warranted further investigation and that a reasonable officer would have reasonable suspicion that Reyes-Vencomo might be concealing his true identity. See United States v. Gonzalez,
Reyes-Vencomo argues that the officers never asserted that they were concerned whether Reyes-Vencomo was concealing his true identity. See Reply at 3. The Tenth Circuit, however, does not require that an officer state the basis of his reasonable suspicion. See United States v. Turner, 553 F.3d 1337, 1345 (10th Cir. 2009)(“[T]he probable cause inquiry is not restricted to a particular offense, but rather requires merely that officers had reason to believe that a crime — any crime — occurred.”); United States v. Ceballos,
Because Vigil had probable cause to arrest Reyes-Vencomo, as well as reasonable suspicion of other criminal activity, ReyesVencomo’s continued detention was justified.
3. Vigil Also Had Reasonable Suspicion of an Immigration Offense.
At the hearing, Reyes-Vencomo suggested that Vigil was attempting to enforce federal immigration law, which he has no jurisdiction to enforce. See Tr. at 4:21-5:2 (Juarez). Whether a police officer has jurisdiction to arrest for an offense, however, is not determinative in the Fourth Amendment analysis. See United States v. Gonzales,
In United States v. Turner,
The Court addressed a similar issue in United States v. Hemandez-Lopez,
C. OFFICER SAFETY CONCERNS JUSTIFIED DETAINING REYES-VENCOMO AWAY FROM HIS VEHICLE AND ORDERING HIM NOT TO REACH INTO HIS POCKET.
The Court notes that Reyes-Vencomo does not appear to challenge that Vigil, upon viewing the machete in the truck, could order that Reyes-Vencomo remain outside of the truck for the duration of the investigative detention. See Tr. at 21:6-18 (Torrez, Vigil). He also does not challenge that Vigil could order Reyes-Vencomo not to reach into a pocket for his cellular telephone. See Tr. at 22:8-23:3 (Torrez, Vigil). In any case, the Court finds that officer safety concerns justified both of Vigil’s actions.
The Court finds that it was reasonable for Vigil, out of concern for officer safety and after viewing a weapon, to order that Reyes-Vencomo step away from the truck and out of reach of the weapon while he conducted his investigation. In Pennsylvania v. Mimms,
It was also reasonable for Vigil to order Reyes-Vencomo to keep his hands out of his pockets and to prevent him from reaching' into the pockets. Vigil had already observed a machete in Reyes-Vencomo’s vehicle and did not know what Reyes-Vencomo might have in his pocket with the cellular telephone. Vigil testified that he had not searched Reyes-Vencomo, could not determine for what he was reaching, and was concerned for officer safety. See Tr. at 22:8-15 (Torrez, Vigil). He further testified that standard police policy is to order suspects to keep their hands out of their pockets, or to secure their hands so that they cannot pull out a knife or gun. See Tr. at 22:16-22 (Torrez, Vigil). The United States Court of Appeals for the Sixth Circuit, in United States v. Mays,
Accordingly, Vigil reasonably ordered Reyes-Vencomo away from his truck and to refrain from reaching into his pockets out of concern for officer safety. Furthermore, when Vigil attempted to restrain Reyes-Vencomo, Reyes-Vencomo intentionally head-butted Vigil in the nose.
III. HOLFELDER ACTED PURSUANT TO TAOS POLICE DEPARTMENT POLICY WHEN HE PERFORMED THE INVENTORY SEARCH OF REYES-VENCOMO’S VEHICLE.
The United States argues that the search of Reyes-Vencomo’s vehicle was a valid inventory search. See Response at 9. In the alternative, the United States asserts that it was a valid protective sweep under United States v. Chambers,
Because the inventory search was conducted in accordance with Taos Police Department Policy, it was a valid search in conformance with the Fourth Amendment. Because the search was valid, the Court will deny the Motion to Suppress on this basis.
The Taos Police Department Towing Policy provides that “[t]owing a vehicle may be necessary as a matter of public safety, to protect property, or to preserve evidence.” Taos Police Department Towing Policy at 3. The policy further states that: “When the operator of a vehicle is arrested and there is no one immediately available whom they want to take charge of the vehicle, it will be towed. This decision shall be noted in the narrative of the report, which is completed.” Taos Police Department Towing Policy at 4. Additionally, a “vehicle inventory will be completed and attached to any associated reports. If there is an Offense/Incident report completed, place the case number on the top right corner of the inventory.” Taos Police Department Towing Policy at 5. While it is possible that “this decision” could be construed as referring to the officer’s decision to tow, it is not the best interpretation. The Court construes the phrase “this decision” to refer to the driver’s decision to allow someone else to take possession of his vehicle. The Court believes that this construction is the appropriate reading of the policy, because the police officer has no decision to make; the policy provides that, if no one is immediately available, the vehicle “will be towed.” Taos Police Department Towing Policy at 4 (emphasis added). Accordingly, the police officer has no discretion and can make no decision. If no one is immediately available, the vehicle is towed. Holfelder’s construction of the policy supports the Court’s construction, see Tr. at 55:16-23 (Torrez, Holfelder); the policy has in mind people who are in the car — such as in a driving while intoxicated arrest — or when cars are driving in tandem, and there are additional drivers available. S. Reyes might have qualified, had she not also been under arrest. See Tr. at 26:9-27:12 (Torrez, Vigil); id. at 90:11-18 (Torrez, Ortega).
Holfelder testified that, when he arrived at the scene, another police officer suggested that he inventory Reyes-Vencomo’s truck. See Tr. at 50:24-51:13 (Torrez, Holfelder). He asserted that, when he
The Taos Police Department Towing Policy states that it is designed to protect public safety and to protect property. See Taos Police Department Towing Policy at 3. Holfelder testified to the administrative function of the Taos Police Department Towing Policy and described an inventory search as an exercise of the caretaker function. See Tr. at 53:24-54:10 (Torrez, Holfelder). See also Florida v. Wells,
The parties dispute whether someone was immediately available to take the vehicle. The officers undertook the search of Reyes-Vencomo’s vehicle pursuant to standard police procedures. See United States v. Lugo,
Reyes-Vencomo asserts that after the search was completed the officers were required to note the decision to tow in their reports, and that, because the officers failed to do so, the Court should suppress the evidence. See Tr. at 119:24-120:6 (Juarez). Holfelder conceded that Vigil and Ortega did not note the decision to tow in their narrative reports. See Tr. at 64:22-65:4 (Juarez, Holfelder); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1. The Court, however, construes the phrase “this decision” to refer to the driver’s decision to allow someone else to take possession of his vehicle, because the police officer has no decision to make; the policy provides that if no one is immediately available the vehicle “will be towed.” Taos Police Department Towing Policy at 4 (emphasis added). Accordingly, the decision to “be noted” is the defendant’s decision to permit another individual to take charge of the vehicle. Noting the defendant’s decision relieves the officer of liability if something then happens to the car and/or its contents. This construction is sound because it protects the police department from liability in the event that something happens to the car that the defendant has decided to let someone else driver away. Furthermore, whether Vigil and Ortega noted the decision to tow in the narrative of their police reports has no bearing on the reason for the requirement of standardization. A standardized policy is needed to ensure that inventory searches do not become “a ruse for general rummaging in order to discover incrimina
The officers initiated the search in compliance with standardized police procedures and the requirement that the officers make a post-search notation regarding the decision to search adds little to the protections that the Fourth Amendment and Supreme Court precedent seeks to impose. The Fourth Amendment is satisfied so long as an officer conducts an inventory search in good faith. See United States v. Battle,
The Court concludes that no one was “immediately available” to take charge of the vehicle when the inventory search began and that the minor notation deviation from policy does not undermine the good-faith basis for the search. Accordingly, the Court finds that the inventory search was reasonable, undertaken pursuant to a standardized policy, and does not violate the Fourth Amendment.
IT IS ORDERED that the Defendant’s Motion and Memorandum Brief to Suppress Evidence Recovered From the Defendants’ [sic] Vehicle and Post-Arrest Statements of the Defendant, filed November 30, 2011 (Doc. 31), is denied.
. Reyes-Vencomo testified that Ortega asked him for only his insurance card and did not request his driver’s license. See Tr. at 72:16-21 (Torrez, Reyes-Vencomo). Both Vigil and Ortega noted in their testimony that Ortega asked for Reyes-Vencomo's driver’s license, vehicle registration, and proof of insurance. See Tr. at 15:18-9 (Torrez, Vigil); id. at 83:16-21 (Torrez, Ortega). Furthermore, both their incident reports indicate that Ortega asked Reyes-Vencomo for his driver’s license, vehicle registration, and proof of insurance. See Vigil Incident Narrative at 1 (Def.'s Ex. A at hearing)(“Vigil Report”); Ortega Incident Narrative at 1 (Def.’s Ex. C at hearing)("Ortega Report”). Ordinarily, officers will ask a driver for a driver’s license so that they can confirm that the driver is licensed to drive the car and confirm the driver's identity. The Court does not believe that a trainee officer, who was on his first traffic stop, would likely fail to ask such a basic question. Furthermore, in Reyes-Vencomo’s recitations of the facts in his reply, see Reply to Memorandum Brief in Opposition to Motion to Suppress Evidence Recovered from the Defendants’ [sic] Vehicle and Post-Arrest Statements of the Defendant, filed January 2, 2012 (Doc. 41)("Reply”), he indicates that he "told the police officer that either didn’t have a driver’s license or did not have one in his possession, and that all other documents ... that were requested were produced.” Reply at 1. Thus, Reyes-Vencomo’s own recitation of the facts implies that the officers requested his driver’s license. Given that requesting a driver’s license is a routine request and necessary for other steps of a traffic stop, and given Reyes-Vencomo’s representations in his Reply, the Court credits the officers’ testimony that Ortega requested his driver’s license, vehicle registration, and proof of insurance.
. Reyes-Vencomo testified that Vigil yelled at him, “You Mexicans are all the same,’1 and ordered him out of the vehicle. Tr. at 71:6-9 (Torrez, Reyes-Vencomo). See id. at 77:2-7 (Torrez, Reyes-Vencomo). Ortega denied that Vigil made such disparaging remarks and stated that he would confront an individual if he or she made remarks like that in front of him. See Tr. at 84:7-4 (Torrez, Ortega). Reyes-Vencomo described Vigil as walking up to him and immediately began yelling at him. This scenario is inconsistent with Reyes-Vencomo's contention later in his testimony that it was Ortega, described as the nice officer, who came up to him and, after asking for his insurance information, ordered him out of the vehicle. See Tr. at 72:7-15 (Torrez, Reyes-Vencomo). At this point in his testimony, Reyes-Vencomo also asserted that Vigil was the first officer to speak to him. See Tr. at 76:25-77:1 (Torrez, Reyes-Vencomo). This statement is inconsistent with the officers’ testimony that Ortega approached Reyes-Vencomo to conduct his first traffic stop. See Tr. at 14:13-19 (Torrez, Vigil); id. at 83:16-18 (Torrez, Ortega). The Court finds Reyes-Vencomo's statement that Vigil immediately ordered him out of the vehicle unlikely. Officers are generally very conscious of their safety during traffic stops, and the Court finds it unlikely that an experienced officer would immediately order an unidentified driver out of his vehicle. For the same reason, the Court finds it unlikely that an officer would immediately begin yelling at an unknown person. The Court concludes that Reyes-Vencomo’s testimony on this fact was not credible, because of the internal inconsistencies in Reyes-Vencomo’s testimony and the improbable assertion that Vigil ordered him out of the car as well as the manner in which he testified. Accordingly, the Court finds that Vigil did not yell derogatory statements about Mexicans when he approached Reyes-Vencomo and did not order him out of the vehicle.
. Although there was some dispute, in the briefing and the oral arguments, whether Vigil asked for Reyes-Vencomo's Social Security card or his Social Security number, the only evidence introduced at the hearing was Vigil's testimony that he asked for a Social Security number. See Tr. at 18:8-11 (Torrez, Vigil); id. at 32:2-8 (Juarez, Vigil); id. at 93:8-10 (Torrez, Ortega). Accordingly, the Court finds that Vigil asked for Reyes-Vencomo's Social Security number.
. In his Reply, Reyes-Vencomo asserts that Vigil asked questions about his immigration status. Motion to Suppress at 2; Reply at 1-2. During the evidentiary hearing, however, neither Reyes-Vencomo nor any other witness testified that the officers asked him questions regarding his immigration status. Accordingly, the Court will not find, by a preponderance of the evidence, that such questions were asked.
. Reyes-Vencomo testified that Ortega asked him to exit his vehicle. See Tr. at 72:7-15 (Torrez, Reyes-Vencomo). Vigil and Ortega testified, and their reports noted, that ReyesVencomo exited his vehicle without prompting. See Tr. at 20:21-23 (Torrez, Vigil); id. at 33:2-33:9 (Juarez, Vigil); id. at 86:11-17 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1. Ortega was a trainee conducting his first traffic stop, see Tr. at 14:13-19 (Torrez, Vigil), and the Court believes it unlikely that he would almost immediately ask Reyes-Vencomo to step out of the vehicle. Furthermore, Reyes-Vencomo was very agitated, animated, and at times inconsistent on the stand. In contrast, the officers' calmly presented testimony, which was both internally consistent and consistent with each other's testimony. Accordingly, the Court credits the officers’s testimony and finds that Reyes-Vencomo exited his vehicle without prompting.
. Reyes-Vencomo testified that, before his telephone started ringing, Vigil tackled him and started beating him. See Tr. at 73:1-6 (Torrez, Reyes-Vencomo). Vigil did not mention such an incident in his testimony, and, when asked, Ortega testified that there was no altercation or tackling before Reyes-Vencomo's telephone began to ring. See Tr. at 87:7-11 (Torrez, Ortega). Reyes-Vencomo's testimony presents an improbable scenario,
. During argument on the Motion to Suppress and in the Reply, Reyes-Vencomo's counsel, Santiago Juarez, suggested that Vigil knew who he was arresting. See Tr. at 99:1-6 (Juarez); Reply at 3-4. Vigil stated that he met Reyes-Vencomo that day and that he does not remember meeting him before. See Tr. at 36:6-17 (Juarez, Vigil). Additionally, Ortega testified that Vigil never indicated that he knew who Reyes-Vencomo was. See Tr. at 83:5-9 (Torrez, Ortega). There is insufficient evidence for the Court to find, by a preponderance of the evidence, that Vigil knew that the man he was arresting was married to S. Reyes before S. Reyes arrived at the scene. Accordingly, the Court will not find, by a preponderance of the evidence, that Vigil was aware of whom Reyes-Vencomo was before S. Reyes arrived at the scene.
. Holfelder testified that, when he arrived at the scene, he spoke to his partner, who was at the door of S. Reyes' vehicle. See Tr. at 51:7-9 (Torrez, Holfelder). There was, however, no testimony whether S. Reyes' vehicle was also towed and searched. Accordingly, the Court finds only that Reyes-Vencomo’s vehicle was searched and inventoried.
. None of the witnesses testified whether S. Reyes was still at the scene when Holfelder arrived and neither the United States nor Reyes-Vencomo argued that she was still at the scene. Accordingly, the Court cannot determine whether S. Reyes remained at the scene while Holfelder searched Reyes-Vencomo's vehicle. This fact is not material, however, because, even if she remained at the scene, she too was under arrest and was placed in the back of a police car. See Tr. at 25:4-9 (Torrez, Vigil); id. at 90:15-22 (Torrez, Ortega). She was thus not immediately available to take Reyes-Vencomo’s vehicle.
. Reyes-Vencomo testified that his stepdaughter arrived at the scene at the same time as his wife. See Tr. at 75:15-23 (Torrez, Reyes-Vencomo); id. at 77:8-16 (Torrez, Reyes-Vencomo). Holfelder testified that a woman, whom he believes to be Reyes-Vencomo’s stepdaughter, Gutierrez, arrived on the scene after he began his search. See Tr. at 63:17-18 (Juarez, Holfelder); id. at 65:25-11 (Torrez, Holfelder). Reyes-Vencomo’s testimony places Gutierrez on the scene at the time he was involved in the altercation with Vigil and when S. Reyes was arrested. None of the officers' reports or testimony, however, mention Gutierrez' presence at the scene. See Vigil Report at 1; Ortega Report at 1. Ortega testified that he does not recall ever seeing Gutierrez at the scene. See Tr. at 94:21-22 (Juarez, Ortega). If Gutierrez was at the scene when the altercation was going on or immediately thereafter, it seems unlikely that the officers would not note or have been aware of her presence. Given the reactions of Reyes-Vencomo and S. Reyes, it seems unlikely that the officers would not have taken notice of her at that point out of fear for their safety. The Court again notes that, during their testimony, the officers were calm and their statements consistent, both internally and with each other. In contrast, Reyes-Vencomo was much more animated on the witness stand, his statements were not always internally consistent, and some of his factual assertions, such as stating that Ortega never asked for a driver’s license, were improbable. Based on the Court’s careful observation of the testimony and review of the evidence submitted, the Court found the officers' statements more credible than ReyesVencomo on this issue. Accordingly, the Court finds that Gutierrez arrived after Holfelder began his search.
. Reyes-Vencomo testified that he asked an officer if his wife, S. Reyes, or stepdaughter, Gutierrez, could take his vehicle home before he was placed in the back of the police car. See Tr. at 69:23-70:1 (Juarez, Reyes-Vencomo). Reyes-Vencomo did not state whom the officer was or what the officer's reaction to his request was. The Court has already found that Gutierrez was not at the scene before Holfelder arrived, and Holfelder testified that Reyes-Vencomo was in the back of the police car when he arrived. See Tr. at 56:8-19 (Torrez, Holfelder). Ortega also testified that he did not see Reyes-Vencomo contact anyone about having his wife or stepdaughter take his car. See Tr. at 90:15-91:3 (Torrez, Ortega). Vigil, who admitted that Gutierrez and Gonzales asked to take the vehicle, see Tr. at 43:16-44:7 (Juarez, Vigil), did not mention that Reyes-Vencomo asked him or anyone else to allow someone else to take the vehicle. The Court finds that the officers' testimony is more credible in this respect and that ReyesVencomo made no contact with anyone at the scene to request that Gutierrez or S. Reyes take his vehicle home.
. Courts sometimes refer to an inventory search as an "administrative search.” United States v. Allen,
. Reyes-Vencomo has not briefed the "novel question of law” which he believes should be certified to the Tenth Circuit. The Court does not believe that he has clearly presented the issue of law that he wishes to be decided. The Tenth Circuit has held that " ‘the exclusionaiy rule is only concerned with deterring [federal] Constitutional violations.’ ” United States v. Le,
. Your Social Security Number and Card, SSA Publication No. 05-10002 (August 2011) available at http://www.ssa.gov/pubs/10002. html.
. The Court has not found any information to support this statement regarding the mailing practices of Social Security cards and does not put much weight on this fact in its analysis of reasonable suspicion.
. The United States Court of Appeals for the Ninth Circuit recently upheld, in United States v. Arizona,
. Because United States v. Hernandez-Lopez involved different factual circumstances, the Court need not decide whether it was correclly decided to determine the effect of an officer’s lack of jurisdiction would have, under the Fourth Amendment, in this case.