The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are: 1) the motion to dismiss the indictment on the grounds that the Government released material witnesses with exculpatory evidence (Doc. # 23) filed by Defendant Toga-Gomez and 2) the motion to suppress all evidence resulting from unlawful investigatory stop and suppress suggestive identification (Doc. #34) filed by Defendant Mendez-Sierra.
On Monday January 25, 2010, Border Patrol Agents Sean Dillon and Richard Hernandez were assigned to the El Centro Border Patrol Station and conducting field intelligence operations. Agents from the El Centro Border Patrol Station had received information earlier in the day to be on the look out for a white van bearing Illinois license plate 71317T. The notice to be on the look out was generated by Special Agent Ryan Beckhelm of Immigration and Customs Enforcement. Special Agent Beckhelm, assigned to the human smuggling and human trafficking group, was conducting an investigation involving Gilbert Gutierrez. Agent Beckhelm knew that Gutierrez had crossed the international border in a white panel van 15 to 20 times. After each crossing, Gutierrez parked the van next to the Port of Entry, and walked south into Mexico through the pedestrian lane.
On January 16, 2010, Agent Beckhelm was notified that Gutierrez had crossed at the Port of Entry in a white panel van. Agent Beckhelm initiated surveillance on the van. Gutierrez parked the van in a parking lot and walked south into Mexico. Agent Beckhelm identified the white panel van in the parking lot as bearing Illinois license plate 71317T and placed a tracking device on the van. Based upon his investigation, Agent Beckhelm initiated an alert for Gutierrez and for the white panel van bearing Illinois license plate 71317T.
On January 24, 2010, Agent Beckhelm was notified by agents of Customs and Border Patrol that the same white van with the same license plate had crossed from Mexico into the United States and that Gutierrez was the driver of the van. Agent Beckhelm instructed border patrol agents to release the van and Gutierrez north. Agent Beckhelm initiated the tracker on the van. Agents at the El Centro Border Patrol Station were notified early in the day on January 25, 2010 to be on the lookout for the white panel van bearing Illinois license plate 71317T. Agent Hernandez and Agent Dillon saw the alert when they came to work the swing shift on January 25, 2010.
At approximately 8:15 p.m., Agent Dillon received a call from Agent Beckhelm notifying him that the van had been tracked from San Diego to an apartment complex in El Centro and that the van was moving again. Agent Beckhelm told Agent Dillon that the van was traveling westbound on Interstate 8 and asked Agent Dillon if he could attempt to follow the van.
At approximately 8:30 p.m., Agent Dillon observed a large white van traveling westbound on Interstate 8. Agent Dillon contacted his partner Agent Hernandez for assistance in confirming the license plate of the van. As Agent Dillon contacted Agent Hernandez, the van exited Interstate 8 and began traveling north on Forrester Road. Agent Hernandez observed the van merge north through the intersection of Forrester Road and Highway Old 80. The van continued northbound on Forrester until the van reached Worthington Road, where it began traveling west. Agent Hernandez continued mobile surveillance at a distance and was able to verify that the van was bearing Illinois license plate 71317T.
Agent Dillon and Agent Hernandez continued mobile surveillance at a distance in order to avoid detection. The van continued to travel westbound and turned onto New River Road. Agent Dillon made a U-turn and came back by the van while he was traveling east on New River. At this point, Agent Hernandez observed the van stop at an access dirt road on New River Road south of Worthington Road and turn off its lights. The New River Road area is known to the agents as an area where illegal aliens using river access into the United States load into vehicles. Agent Hernandez proceeded eastbound on New River Road.
Agent Dillon resumed surveillance on the van going west on Worthington Road. The van appeared to the Agent Dillon to be heavily laden in the rear at this point. The van ended up on Forrester Road and Agent Hernandez took over primary surveillance. Agent Hernandez continued at a distance and observed the van making random U-turns in an apparent effort to veer off an agent who may be following. Agent Hernandez drove past the van a second time stopped on Kruger Road and observed "10 plus" people exiting the van. Agent Hernandez was not prepared to stop the van at that point and drove on. Shortly after, Agent Hernandez parked facing eastbound on Bannister Road. Agent Hernandez called Agent Dillon and the agents set up with the intention to stop the van.
At approximately 9:10 p.m., the agents requested assistance from El Centro Sector Air Operation (Air Support). Air support arrived at approximately 9:20 p.m. As Agent Dillon and Agent Hernandez approached the van, the van had started moving again northbound on Kruger Road. At the point that the agents were approximately 200 yards from the van, the van stopped abruptly and a large number of individuals exited from the van running in different directions.
With assistance of air support, Agents Dillon and Hernandez were able to locate twenty-eight individuals who were determined to be citizens of Mexico with no immigration documents. All twenty-eight individuals were transported to the Border Patrol station in El Centro. Agent Beckhelm arrived at the El Centro Border Patrol Station with his team to process the individuals apprehended. Agent Beckhelm conducted a pre-screening interview with all twenty-eight individuals. During the interview, Agent Beckhelm drew a number on the back of the hand of each of the individuals apprehended around the van and took each individual's photograph. During the screening interview, Agent Beckhelm asked each individual if he could identify the guides and/or the driver. Three individuals in the pre-screening interview indicated that they could identify the driver and two of the same three individuals stated that they could identify the guide. Agent Beckhelm made the decision to retain these three individuals as material witnesses.
Agent Beckhelm conducted a recorded interview with each of the three retained material witnesses separately. During the interview, Agent Beckhelm asked again if the witness could identify the guides and/or driver and the witness indicated that he could. Agent Beckhelm showed each of the three witnesses the twenty-eight photos taken of each of the individuals apprehended. Three of the witnesses identified Defendant Mendez-Sierra as the driver of the van and two of those three witnesses identified Defendant Toga-Gomez as a foot-guide. Defendants were arrested and twenty-three individuals were returned voluntarily to Mexico. Each of ...