United States v. Alvarez-Becerra ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
FEB 8 2002
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-2149
(D.C. No. CR-00-1590-LH)
APOLONIO ALVAREZ-BECERRA, (D. N.M.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE , ALARCÓN , ** and ANDERSON, Circuit Judges.
Apolonio Alvarez-Becerra appeals from the denial of his motion to
suppress evidence obtained as a result of a traffic stop. He seeks reversal of the
judgment of conviction on the ground that the district court erred in concluding as
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Arthur L. Alarcón, Senior United States Circuit Judge for
the Ninth Circuit, sitting by designation.
a matter of law that evidence of a defendant’s name and identity is not
suppressible in a criminal proceeding even if it was obtained in violation of the
Fourth Amendment. After independently reviewing the record, we affirm without
resolving this legal question because it is undisputed that Alvarez-Becerra was
detained because he was driving a vehicle with a cracked windshield.
I
On December 26, 1999, Officer Gary Reed of the Albuquerque Police
Department stopped Alvarez-Becerra because of a crack in the windshield of the
blue Ford Probe he was driving. The officer asked Alvarez-Becerra his name and
birth date. When Alvarez-Becerra first responded, he stated that his name was
Alfonso Alvarez . When Officer Reed asked him to disclose his birth date,
Alvarez-Becerra hesitated, and then stated he was born on July 27, 1958. Officer
Reed told Alvarez-Becerra to stop lying and tell the truth. Alvarez-Becerra then
told the officer his true name and birth date. Based on that information, the
officer conducted a computer check through the National Crime Information
Center. The computer check revealed that Alvarez-Becerra was a previously
deported alien who had a detainer placed on him by the Immigration and
Naturalization Service because of a felony conviction in Arizona. Officer Reed
arrested Alvarez-Becerra for concealing his identity. Alvarez-Becerra was
subsequently indicted for re-entering the United States as a deported alien
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previously convicted of an aggravated felony in violation of 8 U.S.C.
§ 1326(a)(1) & (2) and § 1326(b)(2). 1
On January 12, 2001, Alvarez-Becerra filed a motion to suppress all
information obtained as a result of the stop and detention. In setting forth the
factual background of the stop, Alvarez-Becerra admitted that “[t]he automobile
driven by defendant had a cracked windshield.” In support of the suppression
motion, Alvarez-Becerra argued that Officer Reed did not have reasonable
suspicion to stop and detain him for violation of state or local traffic laws because
the crack in his windshield did not impair his vision.
In its response to the suppression motion, the Government asserted that
Officer Reed had reasonable, articulable suspicion to stop and detain Alvarez-
1
8 U.S.C. § 1326 provides in relevant part:
(a) . . . any alien who–
(1) has been denied admission, excluded, deported, or removed or
has departed the United States while an order of exclusion,
deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in the United
States . . . shall be fined under Title 18, or imprisoned not more than
2 years, or both.
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a) of this section, in the case of any
alien described in such subsection–
...
(2) whose removal was subsequent to a conviction for commission of
an aggravated felony, such alien shall be fined under such Title,
imprisoned not more than 20 years, or both;
...
8 U.S.C. § 1326 (1999).
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Becerra because he was driving a vehicle with a cracked windshield in violation
of state and local traffic laws. See N.M. Stat. Ann. § 66-3-846 (Michie 1978);
Albuquerque, N.M., Code Ordinances § 8-6-7 (2001) (effective 1974).
Alternatively, the Government contended that “even if the stop of defendant’s
vehicle is found to be invalid, neither defendant’s identity nor Immigration and
Naturalization Service files are suppressible.”
At the outset of the suppression hearing, the district court judge stated, “I
will assume for the purposes of this motion that you are correct in your position
that it was an illegal stop.” The Government informed the court that it would not
concede that the traffic stop was illegal and argued that “the Court needs factual
testimony before making the determination as to whether or not the stop in this
case was legal.” The court informed counsel that presentation of evidence that
would support the legality of the stop was unnecessary “for the decision in this
case.” Neither side presented any evidence. The court made no factual findings.
Instead, the court concluded as a matter of law that a defendant’s identity is not
suppressible in a criminal proceeding.
II
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In his opening statement, defense counsel informed the jury that Officer
Reed detained Alvarez-Becerra because his vehicle had a cracked windshield.
Officer Reed was called as a witness at trial. He testified that he detained
Alvarez-Becerra because he was driving a vehicle that had a “significant crack” in
the windshield.
The jury found Alvarez-Becerra guilty as charged. He was sentenced to
serve 100 months in person, two years of supervised release, and a $100.00
special penalty assessment.
III
This action arises under 8 U.S.C. § 1326. The district court had
jurisdiction over the action pursuant to 18 U.S.C. § 3231. We have jurisdiction
over Alvarez-Becerra’s timely appeal from the final judgment pursuant to
28 U.S.C. § 1291.
IV
Alvarez-Becerra contends that the district court erred as a matter of law in
ruling that illegally-obtained evidence of a defendant’s identity may not be
suppressed in a criminal prosecution. On appeal from a motion to suppress, we
review a district court’s conclusions on questions of law de novo . United States
v. Minjares-Alvarez , 264 F.3d 980, 983 (10th Cir. 2001).
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The instant case arose out of a traffic stop. “A traffic stop, however brief,
constitutes a seizure within the meaning of the Fourth Amendment, and is
therefore only constitutional if it is ‘reasonable.’” United States v. Callarman ,
273 F.3d 1284, 1286 (10th Cir. 2001) (citation omitted). “[A] traffic stop is valid
under the Fourth Amendment if the stop is based on an observed traffic violation
or if the police officer has reasonable articulable suspicion that a traffic or
equipment violation has occurred or is occurring.” United States v. Botero-
Ospina , 71 F.3d 783, 787 (10th Cir. 1995) (en banc); see Callarman , 273 F.3d at
1286 (quoting Botero-Ospina and holding that “[w]hile either probable cause or
reasonable suspicion is sufficient to justify a traffic stop, only the lesser
requirement of reasonable suspicion is necessary.”).
When faced with a motion to suppress evidence obtained as an incident to a
traffic stop, the Government must present evidence to show that the traffic stop
was justified by a reasonable, articulable suspicion of illegal activity. Proof of
“the likelihood of criminal activity need not rise to the level required for probable
cause, and it falls considerably short of satisfying a preponderance of the
evidence standard.” United States v. Arvizu , 2002 WL 46773, at *5 (U.S. Jan.
15, 2002.).
We also review de novo whether the Government has presented sufficient
facts to demonstrate that a traffic stop was based on reasonable articulable
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suspicion. Callarman , 273 F.3d at 1287. “Our sole inquiry . . . is whether this
particular officer had reasonable suspicion that this particular motorist violated
‘any one of the multitude of applicable traffic and equipment regulations’ of the
jurisdiction.” Id. (citation omitted); see also Arvizu , 2002 WL 46773, at *5
(stating that reviewing courts should make reasonable-suspicion determinations
by looking at the “‘totality of the circumstances’ of each case to see whether the
detaining officer has a ‘particularized and objective basis’ for suspecting legal
wrongdoing.”) (citation omitted).
In reviewing a district court’s denial of a motion to suppress, this court is
“not limited to considering only the evidence introduced at the suppression
hearing. This court may also consider any evidence properly presented at trial,
even though that evidence might not have been introduced at the pretrial hearing.”
United States v. Rios , 611 F.2d 1335, 1344 n.14 (10th Cir. 1979) (citing United
States v. Smith , 527 F.2d 692, 694 (10th Cir. 1975)); see also United States v.
Corral , 970 F.2d 719, 723 (10th Cir. 1992) (stating that “[a]s a reviewing court,
we are not confined simply to the evidence adduced during the suppression
hearing. In evaluating the correctness of the district court’s rulings, the appellate
court may consider the entire record developed from the trial even though such
evidence may not have been presented during the suppression hearing.”) The
record shows that Alvarez-Becerra conceded in the motion to suppress and in his
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opening statement to the jury that Officer Reed stopped him because his
windshield was cracked. “Though statements in briefs or during oral argument
are not necessarily binding admissions, we may consider them as such at our
discretion.” See Towerridge, Inc. v. T.A.O., Inc. , 111 F.3d 758, 769 (10th Cir.
1997); Guidry v. Sheet Metal Worker’s Int’l Assn., Local No. 9 , 10 F.3d 700, 716
(10th Cir. 1993) (stating that “[j]udicial admissions are formal admissions . . .
which have the effect of withdrawing a fact from issue and dispensing wholly
with the need for proof of the fact.”) (internal quotations and citation omitted).
The record of the trial proceedings reflects that Officer Reed testified that
he detained Alvarez-Becerra because he was driving a vehicle with a cracked
windshield. Under New Mexico law, a motor vehicle with a cracked windshield
may be stopped if the officer had reasonable grounds to believe that the crack in
the windshield made the vehicle dangerous. State v. Munoz , 965 P.2d 349, 353-
54 (N.M. Ct. App. 1998) (discussing N.M. Stat. Ann. § 66-3-801 which makes it a
misdemeanor to violate N.M. Stat. Ann. §§ 66-3-801 through 66-3-887); see also
N.M. Stat. Ann. § 66-3-846 (Michie 1978) (stating that windshields must be
unobstructed); Albuquerque, N.M., Code Ordinances § 8-6-7 (2001) (effective
1974) (stating that it is “unlawful for any person to drive a vehicle when the
windshield . . . [is] in such defective condition as to impair the vision of the
driver.”).
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Alvarez-Becerra maintains that the mere fact that he was driving a vehicle
with a cracked windshield does not demonstrate that there was a reasonable
suspicion that his vision was impaired. This Court has held that if an officer has
a “reasonable articulable suspicion” to believe that a windshield crack
substantially obstructed the defendant’s view of the street, “[i]t is irrelevant
whether the observed crack was, in fact, large enough to constitute a violation of
the law.” Callarman , 273 F.3d at 1287.
The United States Supreme Court has instructed that “[a] determination that
reasonable suspicion exists, however, need not rule out the possibility of innocent
conduct.” Arvizu , 2002 WL 46773, at *8. We are persuaded by our independent
review of the record that Officer Reed did not detain Alvarez-Becerra illegally in
attempting to determine whether the cracked windshield impaired his vision.
Assuming arguendo that the crack in the windshield was not excessive enough to
actually impair Alvarez-Becerra’s vision of road conditions, such proof would not
demonstrate that the detention to examine it was unreasonable.
We are free to affirm on any basis that is supported by the record. See
Griess v. State , 841 F.2d 1042, 1047 (10th Cir. 1988) (stating that the Tenth
Circuit is “‘free to affirm a district court decision on any grounds for which there
is a record sufficient to permit conclusions of law, even grounds not relied upon
by the district court.’” (citation omitted)). Because the record shows that Officer
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Reed had a reasonable, articulable suspicion that Alvarez-Becerra was operating a
vehicle in violation of the law, we need not decide whether the district court ruled
correctly that his identity would not have been suppressible in this criminal
proceeding even if the stop and detention were illegal.
AFFIRMED.
Entered for the Court
Arthur L. Alarcón
Circuit Judge
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No. 01-2149, United States v. Alvarez-Becerra
BRISCOE, Circuit Judge, concurring:
I agree that Alvarez-Becerra's conviction should be affirmed, but I would
arrive at that result by a different route. I would address the legal issue raised
rather than resolve a mixed question of law and fact in the first instance on
appeal. Here, the majority resolves for itself the question of whether the officer
had a reasonable articulable suspicion to stop Alvarez-Becerra. The majority
resolves this fact-sensitive question even though it was not addressed by the
district court and no evidence pertaining to the question was presented at the
suppression hearing.
The majority concludes that a reasonable articulable suspicion existed
based on the purported admission of Alvarez-Becerra's counsel that the
windshield of the car was cracked and the testimony of the officer at trial that the
crack was “significant.” In my view, this reasoning is problematic for two
reasons. First, the majority's analysis rests on evidence that was not presented at
the suppression hearing. Second, the evidence now relied upon does not support
the court's conclusion with regard to the legality of the stop, i.e., the court
assumed the stop was illegal; the majority concludes here that it was legal.
As the majority notes, when reviewing a district court's ruling on a motion
to suppress, we are not limited to considering only the evidence introduced at the
suppression hearing, but we may also consider evidence presented at trial. See
United States v. Corral , 970 F.2d 719, 723 (10th Cir. 1992). However, we have
also held that this rule is applicable only where the trial evidence supports the
district court's decision, and that we will not consider trial evidence which
undermines the court's decision unless it is of such a nature that the court should
have immediately realized its earlier ruling was in error. United States v. Parra , 2
F.3d 1058, 1065 (10th Cir. 1993). We have applied this rule when reviewing
rulings on motions to suppress where the district court determined the search at
issue was legal and further evidence adduced at trial buttressed the court's
determination. See Corral , 970 F.2d at 723; United States v. Smith , 527 F.2d 692,
693-96 (10th Cir. 1975). I question its application in a case such as this where
the district court made no determination that the search was legal, but instead
assumed the search was illegal.
Even if we look at the evidence presented at trial and treat the statements of
defense counsel as judicial admissions that the windshield was cracked, we would
still have no basis for concluding the officer had a reasonable articulable
suspicion that a crime was being committed. See Terry v. Ohio , 392 U.S. 1, 29
(1968). The question is not whether the windshield was cracked, but the extent of
the crack. As the majority recognizes, New Mexico law allows the stop of a
motor vehicle with a cracked windshield if the officer has reasonable grounds to
believe the crack makes the vehicle dangerous to drive. See State v. Munoz , 965
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P.2d 349, 352-54 (N.M. Ct. App. 1998) (“Under our interpretation of [N.M. Stat.
Ann. §] 66-3-801(A), the law is violated by driving a vehicle that is in an unsafe
condition.”) Therefore, the stop was lawful only if the officer had a reasonable
articulable suspicion that the crack in the windshield made the vehicle dangerous
to drive.
The officer testified at trial that the crack was “significant.” This
testimony, if believed by the district court, may have allowed the court to
conclude the officer had a reasonable articulable suspicion which would justify
the stop. The problem is that the court did not hear this evidence at the
suppression hearing and made no such finding. As we did not hear the officer's
testimony, we are ill-equipped to resolve questions of credibility or weigh any
other evidence which may have been presented regarding the severity of the crack
in the windshield. At a suppression hearing, “the credibility of the witnesses and
the weight given to the evidence, as well as the inferences and conclusions drawn
therefrom, are matters for the trial judge.” United States v. Fernandez , 18 F.3d
874, 876 (10th Cir. 1994).
This court can affirm the district court's decision on any legal ground
supported by the record, even if that legal ground was not relied upon by the
district court. United States v. Sandia , 188 F.3d 1215, 1217 (10th Cir. 1999). In
this case, however, we cannot conclude as a matter of law that the officer had a
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reasonable articulable suspicion that the cracked windshield rendered the vehicle
dangerous to drive. Rather than resolve factual issues not addressed by the
district court, I would address the issue raised by Alvarez-Becerra – whether and
to what extent his identity is subject to suppression.
I note at the outset that it is not clear, either from the briefs or from oral
argument, whether Alvarez-Becerra seeks suppression of the fact of his identity or
simply his statement of his name to Officer Reed. If Alvarez-Becerra seeks
suppression of the fact of his identity, such that the government should have been
precluded from identifying him at trial, his contention must fail in light of the
decision in INS v. Lopez-Mendoza , 468 U.S. 1032, 1039 (1984) (“The 'body' or
identity of a defendant or respondent in a criminal or civil proceeding is never
itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an
unlawful arrest, search, or interrogation occurred.”). Although the Court's
statement was initially made in response to the jurisdictional argument that
respondent Lopez-Mendoza should not be subject to prosecution because his
arrest was illegal, the Court reiterated the statement when addressing respondent
Sandoval-Sanchez' evidentiary argument and the relative value of the
exclusionary rule in deportation proceedings. Id. at 1043. The clear import of the
Court's statement is that the “identity” of a defendant is not itself suppressible;
that is, the mere fact that a defendant was illegally brought before the court or
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that his or her identity was learned as the result of an illegal search or arrest does
not mean that the government will not be allowed to prove the defendant's
identity. See id. at 1039. Both the Fifth and Ninth Circuits have read the Court's
statement to mean that the defendant's identity is not suppressible in criminal
actions. See United States v. Roque-Villanueva , 175 F.3d 345, 346 (5th Cir.
1999); United States v. Guzman-Bruno , 27 F.3d 420, 421-22 (9th Cir. 1994).
If Alvarez-Becerra is arguing that his statement to Officer Reed regarding
his identity should have been suppressed, we are faced with a different question.
Tangible evidence of a defendant's identity, such as statements made by defendant
or fingerprints taken from defendant during an illegal arrest or stop are subject to
suppression. See United States v. Guevara-Martinez , 262 F.3d 751, 755-56 (8th
Cir. 2001). Thus, if the stop was illegal, as the district court assumed, Alvarez-
Becerra's statement regarding his identity would be subject to suppression.
However, suppression of Alvarez-Becerra's statement of his identity would not
have prevented the government from proving his identity by other means. Here,
the government proved his identity at trial by an INS agent's identification. Any
error by the district court in failing to suppress Alvarez-Becerra's statement of his
identity was harmless. See United States v. Espinoza , 244 F.3d 1234, 1240 (10th
Cir. 2001) (holding a trial court's decision to admit or exclude evidence is
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harmless absent a substantial influence on the outcome or “grave doubt” as to
whether it had such effect).
In the final analysis, it matters not whether Alvarez-Becerra is arguing that
the fact of his identity should have been suppressed or simply that his statement
of his identity should have been suppressed. I would affirm his conviction.
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