United States v. Lopez-Carillo , 536 F. App'x 762 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 19, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 12-6246
v. (D.Ct. No. 5:11-CR-00329-F-1)
(W.D. Okla.)
RAMON RUBEN LOPEZ-CARILLO,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Appellant Ramon Ruben Lopez-Carillo pled guilty to one count of being
illegally present in the United States, in violation of 8 U.S.C. § 1326(a), and one
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
count of being an unlawful alien in possession of a firearm, in violation of 18
U.S.C. § 922(g)(5). In pleading guilty, Mr. Lopez-Carillo reserved his right to
challenge the district court’s order denying his motion to suppress evidence. He
now appeals his convictions, claiming a violation of his Fourth Amendment rights
during the search of his home and statements he gave following that search. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Mr. Lopez-Carillo’s
convictions.
I. Factual and Procedural Background
The material facts surrounding the search of Mr. Lopez-Carillo’s home and
his statements are largely outlined in the district court’s order on his motion to
suppress and supported in the record on appeal. On September 17, 2011, five law
enforcement officers, connected with various agencies and acting as a team, went
to the Oklahoma City residence rented by Mr. Lopez-Carillo to execute an
administrative warrant for his arrest after learning of his illegal presence in the
United States and prior criminal convictions, as shown on certain law
enforcement databases. 1 On arrival at Mr. Lopez-Carillo’s house, Matt Daves, a
Sergeant with the Oklahoma County Sheriff’s Department, knocked on the front
door, after which Mr. Lopez-Carillo’s mother opened a side door to the house;
1
In searching a law enforcement database, known as Accurint, prior to the
search, officers also associated Mr. Lopez-Carillo’s mother, Maria Carillo, with
the same address, and Mr. Lopez-Carillo later admitted she stayed there as much
as a month at a time.
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Sergeant Daves and Jason Swihart, an agent with the United States Immigration
and Customs Enforcement Service (ICE), then walked to the side door to speak to
her. Agent Swihart conversed with her in Spanish in a normal tone in the
presence of Sergeant Daves, who does not speak Spanish. According to Sergeant
Daves, she seemed confused as to why they were there as well as a little scared or
nervous. After his conversation with her, Agent Swihart translated her statements
directly to Sergeant Daves and later to a Homeland Security Investigations agent,
Paul Masteller, explaining to them that Mrs. Carillo identified herself, confirmed
she was Mr. Lopez-Carillo’s mother, and stated her son was not there, but at
work, and to go ahead and look for him in the home. Mrs. Carillo also made a
gesture with her hand toward the house, after which Agent Swihart and Sergeant
Daves entered; thirty to sixty seconds later, Agent Masteller also entered.
According to two of the officers who later testified, Mrs. Carillo no longer
seemed confused, was not startled that the officers were entering the home, did
not attempt to stop them, and was not combative as they passed her at the
threshold of the house. Instead, she seemed calm, not upset, and “quite
cooperative.”
David Gomez, a Hispanic, Spanish-speaking agent with ICE, who was
stationed outside the home, proceeded toward the house after seeing Mrs. Carillo
gesturing to the others to come in; as he looked into the house through the
doorway, he identified himself to Mrs. Carillo, and she also gave him permission
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to enter. Up to and during this time, none of the agents drew their weapons or
acted in a threatening manner. Sergeant Daves was in his Sheriff’s uniform;
Agent Gomez wore army fatigue pants, a raid shirt and a placard saying “Police”
and “ICE”; Agent Swihart wore clothing similar to Agent Gomez, including a raid
shirt with “ICE” on it; and Agent Masteller had on blue jeans and an unidentified
shirt.
When Agent Masteller entered the house, Agent Swihart and Sergeant
Daves were standing in the entryway with Mrs. Carillo, but after Agent Gomez
entered, Mrs. Carillo stationed herself at or near the kitchen table. Almost
immediately, Mrs. Carillo offered Agent Gomez a seat, and they both sat down at
the table where they developed a rapport and conversed in Spanish in a normal
tone. During their conversation, the other agents were in and out of the kitchen
area, sweeping through the home one room at a time in search of Mr. Lopez-
Carillo.
During this time, Agent Gomez attempted to put Mrs. Carillo at ease by
talking to her; he told her who he was and the reason he was there, and she
confirmed Mr. Lopez-Carillo was her son and that he, her husband, and she lived
there. She also told Agent Gomez her son was at work and her husband was
undocumented and presented the I-94 card she received on entering the country,
which Agent Gomez determined was valid, both on examination and after
contacting the ICE dispatch office by cell phone. According to Agent Gomez, she
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produced the I-94 card within a minute of their seated conversation.
Early in their encounter with her, Agent Gomez and Agent Swihart also
asked Mrs. Carillo to call her son, which she did, telling Mr. Lopez-Carillo,
“immigration [is] here and would like to talk to you.” She then handed the phone
to Agent Gomez, who identified himself, told Mr. Lopez-Carillo he was at his
house, and said he would like to talk to him. Mr. Lopez-Carillo hung up, and
even though Mrs. Carillo attempted to phone him at least two or three more times,
he did not answer.
Sometime during Agent Gomez’s conversation with Mrs. Carillo, she told
him on her own volition to search the house, including Mr. Lopez-Carillo’s room,
and waved her arm toward the other rooms, stating something to the effect of,
“there is his room, search the house, I’ve got nothing to hide.” Agent Gomez
admitted she appeared nervous but that she also began opening doors, again
stating, “go ahead and search, look for him, he’s not here.” While Mrs. Carillo
was never told she could refuse consent and was not given a consent to search
form, at no time during her entire encounter with the officers did she ask them to
stop searching or limit their search, and she even got up and opened a door for
one of the agents. In addition, during her conversation with Agent Gomez and the
search of the house by the other officers, Mrs. Carillo made coffee, obtained
cigarettes and her medication located in the kitchen, and put a load of clothes in
the washer. According to Agent Masteller, Mrs. Carillo did not “seem upset at
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all.”
In the meantime, the last room Agent Swihart and Sergeant Daves searched
was Mr. Lopez-Carillo’s unlocked bedroom, which contained his belongings.
When Agent Swihart walked around the bed, he saw a shotgun in plain view on
the floor by the bed’s edge, after which Sergeant Daves picked it up and secured
it; the firearm contained ammunition in its chamber as well as five additional
rounds. Agent Gomez later testified the gun was found in Mr. Lopez-Carillo’s
room after Mrs. Carillo told him they could search the house and that she verified
the bedroom, where the gun was found, belonged to Mr. Lopez-Carillo.
Agent Gomez then conversed with a female neighbor and ex-relative who
Mrs. Carillo told him might have some information on her son’s job location;
Agent Gomez explained to the neighbor who they were and why they were there.
The neighbor then left to get Mr. Lopez-Carillo and returned with him in her
vehicle. Agent Gomez initiated contact with him in the driveway, speaking
Spanish to him; at that time, Agent Gomez identified himself and asked Mr.
Lopez-Carillo for his name and nationality, if he knew why they were there,
whether he spoke English, and if he had ever been deported. Mr. Lopez-Carillo
gave his name and date of birth and confirmed he had previously been deported
and that he spoke a little English. At that time, Agent Gomez arrested him and
read him his Miranda rights in Spanish, and Mr. Lopez-Carillo stated he
understood his rights. During this encounter, Agent Gomez did not raise his
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voice or display a gun, and Mr. Lopez-Carillo appeared to know what was going
on. Sergeant Daves then took possession of Mr. Lopez-Carillo, and, after he
placed him in his patrol car, he read him his Miranda rights in English, which Mr.
Lopez-Carillo said he understood. At that time, Mr. Lopez-Carillo confirmed in
English he lived in the house and verified the location of his bedroom.
Shortly thereafter, a federal grand jury returned an indictment charging Mr.
Lopez-Carillo with one count of being illegally present in the United States, in
violation of 8 U.S.C. § 1326(a), and one count of being an unlawful alien in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). Mr. Lopez-Carillo
filed a motion to suppress the shotgun and the statements he made on his arrival
to his house, arguing law enforcement illegally searched his home and seized the
gun, making the resulting incriminating evidence tainted and “fruit of the
poisonous tree.” The government opposed the motion.
At an evidentiary hearing on the motion to suppress, the government
presented the testimony of Agent Masteller, Agent Gomez, and Sergeant Daves
but did not present the testimony of Agent Swihart, who was out of the country
escorting a foreign national back to Kenya. Agent Masteller testified as to what
Agent Swihart told him Mrs. Carillo said with respect to her initial consent to
enter and search the house but admitted he spoke limited Spanish, did not
participate in their conversation, and could not independently verify her consent.
Sergeant Daves, who was present during Agent Swihart’s conversation with Mrs.
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Carillo, similarly testified as to the consent statement Mrs. Carillo made, as
interpreted by Agent Swihart, but confirmed he did not speak Spanish either.
While the district court credited their entire testimony, it determined neither of
them understood the conversation in Spanish, and, therefore, that portion of their
testimony did not meet the evidentiary standard for the purpose of showing Mrs.
Carillo gave Agent Swihart voluntary consent to search the house. While the
district court made several findings of fact, as discussed hereafter, it asked the
parties to submit additional briefing on the issue of the validity of the second
consent. In its brief, the government provided the affidavit of Agent Swihart for
the purpose of establishing the initial consent given by Mrs. Carillo was valid and
argued that, even without Agent Swihart’s testimony, Mrs. Carillo’s later
spontaneous consent given to Agent Gomez purged any taint from the initial
consent because a break or attenuation occurred in the causal connection between
the two.
In denying Mr. Lopez-Carillo’s motion to suppress, the district court
determined Mrs. Carillo, who stayed at the home when she was in the United
States, had both actual and apparent authority to consent to the search. Next, it
determined the government failed to prove she gave Agent Swihart consent to
search but that any taint from such invalid consent was removed by the consent
Mrs. Carillo voluntarily gave Agent Gomez shortly thereafter. With respect to its
holding the initial consent given to Agent Swihart was invalid, the district court
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relied on our proposition in United States v. Taverna, 348 F.3d 873, 878 (10th
Cir. 2003), that consent to search must be established by “clear and positive
testimony that consent was unequivocal and specific and freely and intelligently
given.” It applied this in rejecting both the testimony of the non-Spanish-
speaking agents as to the initial consent translated to them and Agent Swihart’s
affidavit, which it determined was not subject to cross-examination and therefore
could not be relied on. In turn, the district court credited Agent Gomez’s
testimony concerning his conversation with Mrs. Carillo and found such
testimony established she validly consented to a search of the residence at or near
the time of her initial contact with him.
In determining the consent given to Agent Gomez was not tainted by the
preceding Fourth Amendment violation, it found Mrs. Carillo was not influenced
by the illegal search and her consent was sufficiently attenuated from the
government’s illegal conduct when considering the factors of temporal proximity,
intervening circumstances, and official misconduct. In finding she was not
influenced by the initial tainted search, it found nothing in the evidence suggested
Agent Swihart or anyone else intimidated her or that Mrs. Carillo’s consent was
the product of duress or coercion, but, rather, she gave her consent to Agent
Gomez with the view of getting all of the agents out of the house, knowing they
would not find her son there, and that she gave such consent on her own volition
as part of her cordial conversation with Agent Gomez. Finally, the district court
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applied the inevitable discovery exception in determining the valid consent given
Agent Gomez would have led to the inevitable discovery of the gun. It then
denied Mr. Lopez-Carillo’s motion to suppress. Thereafter, Mr. Lopez-Carillo
pled guilty, reserving his right to appeal the district court’s denial of his motion
to suppress evidence. Following a sentencing hearing, the district court sentenced
Mr. Lopez-Carillo to twenty-seven months imprisonment.
II. Discussion
On appeal, Mr. Lopez-Carillo continues to argue law enforcement illegally
searched his home and seized the gun without obtaining either a search warrant or
valid consent, and therefore, the district court abused its discretion in holding the
consent Mrs. Carillo gave to Agent Gomez removed any taint from the initial
illegal consent and search. In making this argument, Mr. Lopez-Carillo claims no
required break or attenuation occurred in the connection between the invalid and
valid consents sufficient to remove the taint, as demonstrated by the close
temporal proximity between both consents. He also claims the government failed
to carry its burden to provide evidence to demonstrate his statements, both before
and after a reading of his Miranda rights, were not induced or influenced by the
illegal search or otherwise sufficiently attenuated from the government’s illegal
conduct, either by temporal proximity, intervening circumstances, or the purpose
and flagrancy of official misconduct. The government opposes the appeal.
We begin with the applicable principles and our standard of review. We
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review a district court’s denial of a motion to suppress evidence in the light most
favorable to the government and accept the court’s factual findings unless clearly
erroneous. See United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009).
We review de novo the reasonableness of the government’s actions under the
Fourth Amendment, keeping in mind the government bears the burden of proving
the reasonableness of a search or seizure. See United States v. Kitchell, 653 F.3d
1206, 1216 (10th Cir.), cert. denied, 132 S. Ct. 435 (2011). In turn, a defendant
must demonstrate his Fourth Amendment rights were violated and that a factual
nexus exists between the illegality which occurred and the challenged evidence.
See United States v. Torres-Castro, 470 F.3d 992, 999 (10th Cir. 2006). In other
words, the defendant must show the challenged seizure was illegal, and may do so
by establishing the “evidence sought to be suppressed would not have come to
light but for the government’s unconstitutional conduct.” Id. (internal quotation
marks omitted). In considering a motion to suppress, “[t]he credibility of
witnesses, the weight accorded to evidence, and the reasonable inferences drawn
therefrom fall within the province of the district court.” DeJear, 552 F.3d at
1200. In reviewing a district court’s ruling on a motion to suppress, we may
affirm “on any grounds for which there is a record sufficient to permit
conclusions of law, even grounds not relied upon by the district court.” Harman
v. Pollock, 586 F.3d 1254, 1259 (10th Cir. 2009) (quoting Lambertsen v. Utah
Dep’t of Corr., 79 F.3d 1024, 1029 (10th Cir. 1996)).
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While a warrantless search of a suspect’s home is presumed to be an
unreasonable violation of the Fourth Amendment, see Payton v. New York, 445
U.S. 573, 586 (1980), a warrantless search maybe reasonable if it fits within the
established consensual search exception to the warrant requirement, see Florida v.
Jimeno, 500 U.S. 248, 250 (1991). In cases involving a third party, he or she
must have actual or apparent authority to consent to the search, and the
consensual search must be freely and voluntarily given. See United States v.
Sanchez, 608 F.3d 685, 689 (10th Cir. 2010); Taverna, 348 F.3d at 878. Whether
a party freely and voluntarily gives consent to a search is a question of fact
determined from the totality of the circumstances. Sanchez, 608 F.3d at 689. For
consent to be voluntary, the government must receive either express or implied
consent. See United States v. Jones, 701 F.3d 1300, 1320-21 (10th Cir. 2012).
Implied consent to enter a home is no less valid than explicit consent. See
id. Consent “must be clear but it need not be verbal. Consent may instead be
granted through gestures or other indications of acquiescence, so long as they are
sufficiently comprehensible to a reasonable officer.” United States v. Guerrero,
472 F.3d 784, 789-90 (10th Cir. 2007). “The focus is not whether [one]
subjectively consented, but rather, whether a reasonable officer would believe
consent was given” as “inferred from words, gestures, or other conduct.” United
States v. Pena-Ponce, 588 F.3d 579, 584 (8th Cir. 2009). However, whether
consent is implied or express, it cannot be “coerced, by explicit or implicit means,
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by implied threat or covert force” and “is voluntary if there is no indication of
either force or intimidation.” United States v. Kimoana, 383 F.3d 1215, 1225
(10th Cir. 2004) (internal quotation marks omitted). Circumstances which may
indicate improper duress or coercion include “physical mistreatment, use of
violence, threats, promises, inducements, deception, trickery, or an aggressive
tone, the physical and mental condition and capacity of the [one consenting], the
number of officers on the scene, and the display of police weapons.” United
States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011) (internal quotation
marks omitted). In addition, other factors to consider include whether the officer
obtains consent pursuant to a claim of lawful authority or informs the person of
the right to refuse consent. See id.In this case, we agree with the district court that Mrs. Carillo had the
requisite authority to consent to the search. We disagree, however, with its
determination the government failed to meet its burden in proving Mrs. Carillo
gave Agent Swihart clear and unequivocal consent. In making this determination,
the district court relied on our decision in Taverna and the general proposition
that consent to search must be established by “clear and positive testimony that
consent was unequivocal and specific and freely and intelligently given.” 348
F.3d at 878 (internal quotation marks omitted). While Taverna provides the
general standard of proof required in consent cases, it does not discuss the
applicable hearsay rules.
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Generally, the Confrontation Clause restricts the admission of a testimonial
statement against a defendant if the declarant does not testify, unless the
defendant has had the opportunity to cross-examine the witness or the statement is
admitted for purposes other than to establish the truth of the matter asserted. See
United States v. Pablo, 696 F.3d 1280, 1287-88 (10th Cir. 2012). However, as
the government argued before the district court, the Supreme Court has made it
clear hearsay is admissible in suppression hearings. See United States v. Matlock,
415 U.S. 164, 172-77 (1974). See also United States v. Sanchez, 555 F.3d 910,
922 (10th Cir. 2009) (holding “the law is clear that hearsay evidence is admissible
at suppression hearings”); United States v. Miramonted, 365 F.3d 902, 904 (10th
Cir. 2004) (relying on Matlock for the proposition that “[r]ules of evidence
applicable in criminal jury trials do not govern at hearings before a judge to
determine pre-trial evidentiary matters, such as the admissibility of evidence at
trial”). As a result, the restriction in the Confrontation Clause against admission
of testimonial statements, like Agent Swihart’s affidavit, is not implicated here.
See Matlock, 415 U.S. at 174-75 (relying on McCray v. Illinois, 386 U.S. 300,
312-13 (1967), for the proposition use of hearsay at a suppression hearing does
not implicate a defendant’s right to confrontation under the Sixth Amendment and
Due Process Clause of the Fourteenth Amendment). In this case, the government
provided Agent Swihart’s affidavit for the purpose of attesting to the accuracy of
Agent Masteller’s testimony as to Mrs. Carillo’s consent, and Mr. Lopez-Carillo
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did not object to its submission in his reply. Under these circumstances and
pursuant to Matlock and our precedent, his affidavit constitutes admissible
evidence and clearly illustrates Mrs. Carillo’s consent to search the home for her
son was unequivocal, specific, and freely and intelligently given, as required by
Taverna. See 348 F.3d at 878.
Not only was Agent Swihart’s affidavit admissible for the purpose of the
suppression hearing, but the testimony of Agents Masteller and Daves was also
admissible and fully corroborated Agent Swihart’s affidavit. As a result, even if
their testimony constituted hearsay, the same rule allowing hearsay evidence in
suppression hearings applies. For these reasons, the district court erred in
refusing to consider the officers’ testimony and affidavit. See Miramonted, 365
F.3d at 905 (holding district court improperly excluded hearsay evidence in ruling
on motion to suppress). Despite this error, we may affirm the district court’s
denial of Mr. Lopez-Carillo’s motion to suppress based on such erroneously
excluded testimony and affidavit. See Harman, 586 F.3d at 1259.
In addition, even if we discount Agent Swihart’s affidavit or Sergeant
Daves’s and Agent Masteller’s testimony on Mrs. Carillo’s initial consent to
search the house, as the district court did in this case, the actions taken by Mrs.
Carillo demonstrate an implied consent to search the house. As previously
discussed, consent may be granted through gestures or other indications of
acquiescence, so long as they are sufficiently comprehensible to a reasonable
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officer, see Guerrero, 472 F.3d at 789-90, and “a reasonable officer would
believe consent was given” as “inferred from words, gestures, or other conduct,”
Pena-Ponce, 588 F.3d at 584. Certainly, even without Agent Swihart’s affidavit
as to his conversation with Mrs. Carillo or consideration of Sergeant Daves’s and
Agent Masteller’s testimony on the translation of that conversation, it is clear the
officers reasonably believed Mrs. Carillo gave her consent or acquiesced, as
demonstrated by her gesturing with her hand to enter the house following their
conversation and her other actions. These include the fact she no longer seemed
confused, was not startled by their entry into the home, did not attempt to stop
them from entering, and was not combative as they passed her at the threshold of
the house. Instead, she seemed calm, not upset, and quite cooperative.
Immediately thereafter, while she conversed with Agent Gomez, she did not
object to the other officers sweeping the house in search of her son or otherwise
retract her consent or ask them to stop searching or limit their search. Instead,
she got herself some coffee and cigarettes, got out her medication, put a load of
clothes in the washer, and answered all of Agent Gomez’s questions while the
other officers conducted their search. In addition, on her own volition, Mrs.
Carillo gave Agent Gomez, who was not present when she initially consented to
the search, express permission to search, waving her arm toward the other rooms
and stating, “there is his room, search the house, I’ve got nothing to hide.” She
even opened a door or two for at least one of the agents.
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Further, nothing in the record shows her consent was coerced, by explicit or
implicit means, or by implied threat or covert force, including physical
mistreatment, violence, threats, promises or inducements, deception, or trickery.
Similarly, nothing in the record demonstrates Mrs. Carillo lacked the physical and
mental condition and capacity to consent. While five officers were on the scene
in various types of uniform, including at least one in body armor, the record
establishes that none of the officers raised their voices or displayed their weapons
and that Mrs. Carillo seemed at ease as she sat at the kitchen table. See United
States v. Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993) (holding that even though
“the presence of more than one officer increases the coerciveness of an
encounter” the presence of five officers did not outweigh numerous other factors
indicating individual voluntarily consented to search of house). Finally, even
though it does not appear any of the officers informed Mrs. Carillo of her right to
refuse consent, we cannot say Mrs. Carillo’s consent, express or implied, was
obtained by impermissible means when all of the factors are considered.
For these reasons, Mr. Lopez-Carillo has not demonstrated the seizure of
his gun was illegal. As a result, we need not address the issue of inevitable
discovery or whether the express consent given to Agent Gomez was tainted by a
preceding illegal search or seizure as determined by temporal proximity,
intervening circumstances, or the purpose and flagrancy of official misconduct.
As to the incriminating statements Mr. Lopez-Carillo made to the officers,
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nothing in the record supports his claim officers violated his Fourth Amendment
rights. In this case, the officers knew he was in the country illegally prior to their
arrival at his house, as demonstrated by the information they obtained through a
law enforcement database and the administrative warrant they were serving for
his arrest. After they arrived, Mrs. Carillo called her son and told him,
“immigration [is] here and would like to talk to you” and then handed the phone
to Agent Gomez, who identified himself and told Mr. Lopez-Carillo he was at his
house and would like to talk to him. Despite receiving this information, Mr.
Lopez-Carillo nevertheless accompanied his neighbor back to his house, where he
knew the officers were waiting for him. He was met by Agent Gomez in his
driveway, and, after Agent Gomez identified himself, Mr. Lopez-Carillo answered
his questions, including giving his name and date of birth as well as admitting he
had previously been deported when asked about his nationality and deportation
status. During this encounter, Agent Gomez spoke Spanish for the benefit of Mr.
Lopez-Carillo, who spoke only a little English, and Agent Gomez did not raise his
voice or display a gun. In turn, the evidence established Mr. Lopez-Carillo
appeared to know what was going on when he answered the questions.
Clearly, Mr. Lopez-Carillo’s encounter with Agent Gomez in his driveway
was consensual. “A consensual encounter is the voluntary cooperation of a
private citizen in response to non-coercive questioning by a law enforcement
officer.” United States v. Bradford, 423 F.3d 1149, 1158 (10th Cir. 2005)
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(internal quotation marks omitted). Consent is a question of fact determined by
considering the totality of the circumstances, see United States v. Patten, 183
F.3d 1190, 1194 (10th Cir. 1999), and during such a consensual encounter, “[a]n
officer is not required to inform a suspect that [he] does not have to respond to ...
questioning or that [he] is free to leave,” Bradford, 423 F.3d at 1158. In addition,
“[i]n the ordinary course a police officer is free to ask a person for identification
without implicating the Fourth Amendment” or ask questions “relating to one’s
identity.” Hiibel v. Sixth Judicial Dist. Ct. of Nevada, Humboldt County, 542
U.S. 177, 185 (2004). Moreover, asking one his or her name, date of birth, place
of birth, and immigration status does not violate the Fourth Amendment if these
questions reasonably relate to the reasons for the initial stop or detention. See
Muehler v. Mena, 544 U.S. 93, 96, 100-01 (2005) (holding officer’s questions on
woman’s name, date of birth, place of birth, and immigration status, where
woman was found in residence subject to search warrant and where officers knew
illegal immigrants were housed, did not require reasonable suspicion or otherwise
violate the Fourth Amendment).
It follows the same principle applies to the consensual encounter presented
here. Given the officers already knew Mr. Lopez-Carillo’s deportation status and
were serving an administrative warrant based on that status, it was not
unreasonable to ask Mr. Lopez-Carillo his name and date of birth to confirm his
identity and to pose a question as to his nationality and deportation status. This
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encounter did not violate the Constitution, and Mr. Lopez-Carillo’s statements on
his deportation status merely corroborate what officers already knew and supports
his conviction for being illegally present in the United States, in violation of 8
U.S.C. § 1326(a).
As to his contested conviction for being an unlawful alien in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(5), Mr. Lopez-Carillo made his
incriminating statement identifying his bedroom, where officers found his gun,
only after his arrest and a reading of his Miranda rights in both Spanish and
English. Because he intelligently waived those rights before providing his
inculpatory statement, officers did not violate his constitutional rights. Moreover,
even without the information he provided, his mother had previously confirmed
the location of his bedroom, as corroborated by the contents contained therein
which belonged to him, and Mr. Lopez-Carillo offered no contrary evidence at the
suppression hearing. This evidence is sufficient to support his firearm conviction.
Finally, because no prior taint occurred as a result of the search of his
home, the government was not required, as Mr. Lopez-Carillo contends, to prove
his statements were not induced or influenced by the illegal search or otherwise
sufficiently attenuated from the government’s illegal conduct. As a result,
nothing about the officers’ questions resulted in a Fourth Amendment violation
nor did any prior taint occur rendering Mr. Lopez-Carillo’s statements
constitutionally inadmissible.
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III. Conclusion
For the foregoing reasons, we AFFIRM Mr. Lopez-Carillo’s convictions.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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