United States v. Alvarado-Martinez ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-28-2007
USA v. Alvarado-Martinez
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3781
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Recommended Citation
"USA v. Alvarado-Martinez" (2007). 2007 Decisions. Paper 181.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/181
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 06-3781, 06-3782
___________
UNITED STATES OF AMERICA
v.
HERIBERTO ALVARADO-MARTINEZ,
Appellant at No. 06-3781
___________
UNITED STATES OF AMERICA
v.
ROMEO NUNEZ-FLORES,
Appellant at No. 06-3782
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Nos. 06-cr-00144-1 and 06-cr-00150-1 )
District Judge: The Honorable Donetta W. Ambrose
___________
Submitted Under Third Circuit LAR 34.1(a)
October 31, 2007
Before: RENDELL and NYGAARD, Circuit Judges, and McCLURE,* District Judge.
*
Honorable James F. McClure, Jr., District Judge for the United States District
(continued...)
(Filed: November 28, 2007)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties
and the District Court are familiar with its operative facts, we offer only an abbreviated
recitation to explain why we will deny the appeals of Mr. Nunez-Flores, and Mr.
Alvarado-Martinez.1
Mr. Nunez-Florez and Mr. Alvarado-Martinez pleaded guilty to the possession of
false or altered permanent resident alien cards (“green cards”). The plea agreements
preserved the probable cause challenge that they both raised in pre-trial motions seeking
to suppress, inter alia, the green cards as fruits of an unreasonable search.
*
(...continued)
Court for the Middle District of Pennsylvania, sitting by designation.
1
The appeals were consolidated for disposition by Order dated December 12,
2006.
2
Appellants were passengers in a car driven by a man who was illegally present in
the United States. A police officer stopped the vehicle for speeding. The officer
observed that all of the men were Hispanic. He asked for a driver’s license from the
driver, and learned that he did not have one. He asked the driver if either passenger had a
license and he said that they did not. The officer then asked both passengers directly, in
English, to provide identification. Both men handed him a green card, and identification
cards written in Spanish.
The officer questioned the authenticity of one identification card from each
passenger, making him suspicious that he did not have accurate information. He ran a
check of the names and birth dates to learn if any of them had any valid identification or
any outstanding warrants. After the check did not produce any positive identification, the
officer instructed each man, in English, to get out of the car one at a time. They
complied.
The officer asked the men if they were illegally present in the United States. The
driver answered “yes,” and at the same time the two passengers immediately put their
heads down. The officer interpreted this movement of their heads to be a non-verbal
agreement with the driver’s answer. After relaying information about the stop to
Immigration and Customs Enforcement, the officer followed its instructions to transport
the men to the Allegheny County Jail.
The District Court concluded that the officer obtained the false green cards
pursuant to a lawful arrest. We agree. The District Court appropriately assessed the
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totality of the circumstances, noting: the lawfulness of the traffic stop; the lack of driver’s
licenses; the officer’s general concerns about a lack of positive identification; the various
indicia that led the officer to conclude that the men acknowledged their illegal presence in
the country; and, the instruction of Immigration and Customs Enforcement to detain the
men. United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002). We do not find any
error in the District Court’s judgment that, at the time of arrest, a reasonable officer in
these circumstances would find probable cause to arrest the men for violation of
immigration laws. Therefore, we will affirm the District Court’s Order of Conviction of
Mr. Nunez-Flores and the Order of Conviction and Sentence of Mr. Alvarado Martinez.
4