United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Defendant's
Motion to Suppress [Doc. 11]. The Court held an evidentiary
hearing on the Defendant's motion on November 8, 2019.
The parties filed supplemental briefs on November 22 and
November 27, 2019, respectively. [Docs. 29, 31].
The Defendant's Arrest
otherwise noted, the following is a summary of the factual
findings made by the Magistrate Judge in his Memorandum and
Recommendation following the suppression hearing held in
Criminal No. 1:18-cr-00086-MR-WCM. In adopting the Magistrate
Judge's Memorandum and Recommendation, this Court adopted
these factual findings as a whole. As conceded by the
Defendant [see Doc. 12 at 1], the parties are now
precluded from relitigating these factual issues.
spring or early summer of 2017, law enforcement began
investigating the Defendant for suspected trafficking and
distribution of methamphetamine. As of a year later, no
arrest had been made and no search warrant had been requested
for the Defendant's residence.
7, 2018, deputies from the Macon County Sheriff's Office
observed the Defendant leaving his residence in a vehicle.
Shortly thereafter, the deputies conducted a lawful traffic
stop of the Defendant for speeding, driving left of center,
and driving without a valid driver's license. [Criminal
No. 1:18-cr-00086-MR-WCM, Doc. 44: Memorandum and
Recommendation at 3, 20]. A deputy smelled marijuana as he
approached the driver's side window. [Id. at 6].
The Defendant admitted that he did not have a North Carolina
driver's license because of his immigration status, but
instead produced Mexican identification documents or an
international driver's license. [Id. at 6;
Id., Doc. 34: Transcript at 66, 113]. The Defendant
admitted that he had recently “hit the marijuana pipe,
” and the deputy seized a marijuana vape pen from the
Defendant following a lawful, consensual search of his
person. [Id. at 7, 24-25]. The Defendant asked a
deputy if he was in trouble for the marijuana they found,
and, at that time, the deputy responded that the Defendant
was not under arrest for it. [Id. at 8].
conversation continued, during which the Defendant offered to
allow the deputies to search his home to prove that there
were no drugs there. [Id. at 9-10]. The deputies
traveled with the Defendant to his home located about a mile
away from the site of the vehicle stop and searched it after
obtaining written consent. [Id. at 10-13]. The
officers found and seized additional marijuana vape pens and
several firearms. [Id. at 13].
the search of his home, the deputies arrested the Defendant
and charged him with state drug law violations for the drug
paraphernalia and marijuana seized from both his person and
his home. [Id.]. The Defendant was transported to
the Macon County Detention Center, where he was fingerprinted
as part of the routine booking process. [See Doc.
24-1; Doc. 28 at 44, 46-47, 69].
Josh Stewart contacted Department of Homeland Security
Special Agent Klarisa Zaffark (“SA Zaffark”) to
investigate the Defendant's immigration status. [Doc. 28
at 49]. Detective Stewart told SA Zaffark that “he had
an individual in custody who had stated he was not a citizen
of the United States.” [Id. at 87]. Detective
Stewart placed the Defendant on the speakerphone at the Macon
County Detention Center so that SA Zaffark, who is a fluent
Spanish speaker, could ask the Defendant about his
immigration status. [Id.].
Zaffark did not advise the Defendant of his Miranda
rights. [Id. at 86, 87, 88]. SA Zaffark asked the
Defendant where he was born, and he told her that he was born
in Mexico. [Id. at 73]. SA Zaffark asked the
Defendant if he was a United States citizen, and he said that
he was not and that he did not have any legal immigration
status. [Id.]. SA Zaffark asked the Defendant if he
had ever come in contact with an immigration officer, and he
stated that he had. [Id. at 89]. SA Zaffark then
lodged an Immigration Detainer with respect to the Defendant.
[Id. at 90; see also Def. Ex. 5:
The Defendant is Charged in Federal Court
8, 2018, the Defendant was charged in a Criminal Complaint in
this Court with possession of a firearm by an illegal alien,
in violation of 18 U.S.C. § 922(g)(5), and the petty
offense of illegal entry, in violation of 8 U.S.C. §
1325(a). [No. 1:18-mj-00067-DLH, Doc. 1: Complaint]. That
same day, the Defendant was arrested and made an initial
appearance. At that time, the Defendant was processed by the
United States Marshals for booking, and his fingerprints were
taken. On June 13, 2018, preliminary and detention hearings
were conducted. Probable cause was found, and Defendant
waived his right to a detention hearing.
20, 2018, the Grand Jury returned a one-count Bill of
Indictment charging the Defendant only with the firearms
violation under 18 U.S.C. § 922(g)(5). [Criminal No.
1:18-cr-00086-MR-WCM, Doc. 9]. The Defendant ...