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Molina v. Perez

United States District Court, Tenth Circuit

November 19, 2013

Jacob Molina, Plaintiff,
v.
Agents Greg Perez and Karl Timmons, in their individual capacities, Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, JUDGE

This case stems from two law enforcement officers confusing an innocent man with a criminal suspect because of his similar name, a mistake that is apparently all too common.[1] The court has before it a Motion for Summary Judgment (Dkt. 18) by defendants Greg Perez and Karl Timmons. Plaintiff Jacob Molina has filed a motion requesting a hearing on the motion. See Dkt. 31. The court is prepared to rule on both motions.

I. Undisputed Facts

Plaintiff Jacob Molina is a pastor who lives with his wife on Barron Road in Wichita, Kansas. The couple owns a home located at 2216 S. White Cliff Road, also in Wichita. Mr. Molina lets his brother-in-law live at the White Cliff house. Mr. Molina’s brother-in-law and father-in-law share the same name: Jose Florencio Flores-Euceda.

Defendant Perez has been employed by ICE and its predecessor agency, Immigration and Naturalization Service, since May 1997. He is currently a Deportation Officer (DO) under the ICE Office of Enforcement and Removal Operations (ERO). Defendant Timmons has been employed by ICE for approximately 19 years. He is currently employed as a DO with the ICE ERO, Fugitive Operations Team in Wichita. Both defendants have training on the proper use of force by law enforcement officers.

On July 1, 2011, the defendants received information about an individual named Jose Antonio Flores-Hernandez, a citizen of Honduras with an outstanding warrant of removal that was issued in August 2005. Through a search of available databases, Timmons determined that a male with the target’s name and date of birth possibly resided at 2216 S. White Cliff Road, Wichita, Kansas 67207.

Timmons conducted surveillance at the target address twice in August 2011. He ran registration checks on the license plates of vehicles parked at the target address and discovered who owned the vehicles. One of the license plates was registered to Jacob Molina, whose address was shown as 9130 E. Barron Road, Wichita, Kansas 67207. From his records check, Timmons learned that Jacob Molina had been arrested by the Wichita Police Department for unlawful discharge of firearms on August 11, 1992, but the misdemeanor complaint had been dismissed. Timmons also checked the driver’s license photographs to determine whether Mr. Flores-Hernandez was using “Jacob Molina” as an alias. Jacob Molina’s photograph established that he was not Mr. Flores-Hernandez.

On August 17, 2011, Perez and Timmons went to the White Cliff address to conduct additional surveillance, hoping to locate and apprehend Mr. Flores-Hernandez. At approximately 6:30 a.m., Timmons observed the gray Honda licensed to Jacob Molina in the drive way of the target residence, along with a new vehicle: a green Honda SUV. Timmons called for a records check of this license and learned that the vehicle was registered to a Jose Flores living at 2216 S. White Cliff Lane, Wichita, Kansas 67207. Timmons believed that this information matched the target’s name and address he had previously found.

Timmons and Perez decided to wait for Mr. Flores to depart the residency. After no activity at the house, the defendants decided to approach the house to talk with the occupants. Neither officer was wearing an official law enforcement uniform. Timmons was wearing civilian attire with his badge on a neck chain displayed outside his shirt and body armor. Perez was wearing trousers and a blue polo shirt. He also had a tan vest over his body armor, which displayed a “POLICE” patch and a patch depicting an ICE badge. He wore his badge on a neck chain outside his vest.

Between 7:45 and 7:50 a.m., Timmons knocked on the front door of the residence and rang the doorbell. No one answered the door. He knocked and rang the doorbell again but received no answer. Two dogs came to the window and barked. Timmons stayed near the front door, periodically knocking and ringing the doorbell, believing the occupants might still be sleeping or just awakened and could be getting dressed.

At approximately 7:55 a.m., Molina’s brother-in-law, Jose Florencio Flores-Euceda, answered the door but did not introduce himself. He stayed inside with the storm door closed and talked to Timmons through the glass. Timmons introduced himself as an officer with DHS/ICE. Jose asked Timmons what he was doing there. Timmons looked at the target’s photo and saw that the man who answered the door was not the target. Timmons said he was looking for Jose Flores, the man who drove the green SUV. Jose said that was his father. Timmons knew that the Jose Flores he was looking for was too young to be this man’s father, so he asked the man in the doorway whether he was Jose Flores. The man said that he was not.

Timmons asked if the defendants could come in and talk with the man. Jose paused, asked if he could have a minute, and closed the door. The defendants waited about ten minutes before Timmons knocked and rang the doorbell again, but no one responded.

After shutting the door on the defendants, Jose called Jacob Molina and told him two men were at the house. Molina immediately drove to the house, arriving at approximately 8:05 a.m. When Molina got out of his car, Timmons recognized him from the photograph he had seen on Molina’s driver’s license during his investigation.

Timmons identified himself as an ICE agent and called out the name “Jacob Molina.” Molina acknowledged that this was his name. Perez also introduced himself as an ICE agent and asked whether Molina lived at the White Cliff residence. Molina replied that it was his property, but he did not say that he lived at the residence.

Molina asked the defendants why they were there, and they said that they were investigating. Molina asked them whether they had a warrant to search the property and the defendants replied that they did not. They told Molina that if he was the landlord and not the resident of the house, they were not interested in him. Molina suggested that, as the property owner, he could tell them to leave if they did not ...


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