United States v. Soto-Cervantes

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 13 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 97-2019
GUADALUPE SOTO-CERVANTES,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D. Ct. No. 96-CR-277-JP)
Jerry A. Walz, Albuquerque, New Mexico, for Defendant-Appellant.
Fred J. Federici, Assistant U.S. Attorney (John J. Kelly, United States Attorney,
and James D. Tierney, Assistant U.S. Attorney, on the briefs), Office of the
United States Attorney for the District of New Mexico, Albuquerque, New
Mexico, for Plaintiff-Appellee.
Before TACHA, HENRY, and LUCERO, Circuit Judges.
TACHA, Circuit Judge.
Defendant Guadalupe Soto-Cervantes was charged in the United States
District Court for the District of New Mexico with reentering the United States
after being deported subsequent to conviction of an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a) and 1326 (b)(2). Defendant filed a motion to
suppress documentary evidence (specifically, a resident alien card) and/or dismiss
the indictment. The district court denied the motion. The defendant entered a
conditional guilty plea, reserving the right to appeal the district court’s denial of
his motion to suppress. We exercise jurisdiction under 28 U.S.C. § 1291 and
affirm.
BACKGROUND
At approximately 12:45 p.m. on May 9th, 1996, Bernalillo County Sheriff’s
Deputies Mickey Phalen and Dave West were dispatched to 517 Sunnyslope
Southeast on the basis of an anonymous tip that drug distribution activity was
occurring at that location. The anonymous caller had stated that the drug activity
involved Mexican nationals and a grey pickup truck. The 500 block of
Sunnyslope and the surrounding area is known for drug activity; Deputy West
himself had assisted in the execution of a search warrant in that block in the
previous month. At the scene, the two deputies observed a group of four or five
individuals scattered around an adobe wall and four vehicles, including a grey
truck, parked in the street nearby. As the deputies arrived, one of the individuals
(not the defendant) quickly walked behind the wall and then returned moments
later. Deputy Phalen looked behind the wall but found nothing. Two more
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deputies, Ross Baca and Louis Holguin, arrived. Deputy Holguin patted down
each of the individuals for weapons. No weapons or contraband were found on
the defendant. The officers asked the men to produce identification. The
defendant and one other individual produced alien registration cards, while two
individuals said they did not have identification on them. One of the individuals
without identification told Deputy Holguin that he was in the United States
illegally. 1 The defendant and his companions appeared nervous while they were
being questioned about their identification. The officers ran an NCIC check on
defendant’s identification card. That check came back negative, showing that
there were no outstanding warrants for his arrest. In Deputy Holguin’s
experience, approximately 50 percent of alien registration cards shown to him
have turned out to be fake. Deputy Holguin recommended that immigration
officers be called in, and at about 1:08 p.m., one of the deputies placed a request
for Immigration and Naturalization Service (INS) agents to come to the scene.
INS Agent Joseph Garcia arrived approximately twenty minutes later, at about
1:30. In the meantime, the deputies continued to search the immediate area and
found a scale, three heroin cookers, several baggies, and a used syringe. Some of
1
The defendant argues that none of the individuals admitted being in the country
illegally until later, when the INS agent arrived on the scene. As we discuss later in this
opinion, however, we do not rely on the individual’s alleged admission of illegal status in
determining that the officers had reasonable suspicion for detaining the defendant. Thus,
any factual dispute on this point is irrelevant.
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these items appeared to have been there for a while—at least since the previous
day. The deputies did not make any drug arrests. After Agent Garcia arrived, he
examined the defendant’s identification card and noticed a suspicious discrepancy
between the numbers on the front and back of the card. He became more
suspicious upon noticing that the card had been issued three times, suggesting that
the defendant previously had been deported. Agent Garcia previously had
received reports that there were “drop houses”—that is, houses where illegal
aliens stay temporarily after crossing the Mexican border—in the area of the 500
block of Sunnyslope. He ran an immigration check and discovered that the
defendant previously had been deported following a conviction for an aggravated
felony. The defendant was arrested between 1:45 and 1:50.
DISCUSSION
The defendant seeks the suppression of the alien registration card, arguing
that it was the fruit of an illegal detention. On appeal from the denial of a motion
to suppress, we accept the factual findings of the district court unless they are
clearly erroneous. See United States v. Botero-Ospina, 71 F.3d 783, 785 (10th
Cir. 1995) (en banc). “The ultimate determination of reasonableness under the
Fourth Amendment, however, is a question of law which we review de novo.” Id.We agree with the district court, and with the parties, that the detention
here should be treated as an investigative detention. See United States v. Davis,
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94 F.3d 1465, 1468 (10th Cir. 1996) (describing investigative detention as a
seizure “of limited scope and duration”). To determine whether an investigative
detention was constitutionally permitted, we must ask both “whether the officer’s
action was justified at its inception, and whether it was reasonably related in
scope to the circumstances which justified the interference in the first place.”
Terry v. Ohio, 392 U.S. 1, 20 (1968). A law enforcement officer may stop and
briefly detain a person for investigative purposes “if the officer has a reasonable
suspicion . . . that criminal activity ‘may be afoot.’” United States v. Sokolow,
490 U.S. 1, 7 (1989). Once the concern that justified the initial stop is dispelled,
further detention will violate the Fourth Amendment unless the additional
detention is supported by a reasonable suspicion of criminal activity. See United
States v. Alarcon-Gonzalez, 73 F.3d 289, 292-93 (10th Cir. 1996). In other
words, reasonable suspicion must exist at all stages of the detention, although it
need not be based on the same facts throughout.
An officer must be able to point to “specific and articulable facts” to
support a finding of reasonable suspicion; an “inchoate and unparticularized
suspicion or ‘hunch’” is insufficient. Terry, 392 U.S. at 21, 27. “Whether . . . an
investigative detention is supported by an objectively reasonable suspicion of
illegal activity does not depend on any one factor but on the totality of the
circumstances.” United States v. Soto, 988 F.2d 1548, 1555 (10th Cir. 1993).
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Like the district court, we address the defendant’s detention in three stages.
1. Initial Detention on Suspicion of Drug Activity (12:45 - 1:08)
The defendant first argues that the officers lacked the requisite reasonable
suspicion to justify his initial detention, which lasted approximately twenty
minutes while the officers investigated possible drug activity. We concur with
the district court’s conclusion that the officers had reasonable suspicion for this
period of the detention. We disagree, however, with the district court’s reasoning
on this point.
The officers had received a tip that included several specific pieces of
information. The tip named a particular address, described a group of men, and
identified a particular vehicle. When the officers arrived at that address, they
verified the presence of the men and the vehicle described by the tipster. While
the verification of those facts may have increased the officer’s confidence in the
tipster’s information, it did not provide enough reasonable suspicion by itself to
justify the stop. We disagree with the district court’s statement that “since the
tipster’s assertions [about the men and the car] were substantially corroborated,
the claim regarding participation in criminal activity was probably also true.”
United States v. Soto-Cervantes, No. 96-277-JP, slip op. at 9 (D.N.M., Sep. 2,
1996). The district court cited Alabama v. White, 496 U.S. 325 (1990), and
United States v. Elkins, 70 F.3d 81 (10th Cir. 1995), for its conclusion. In Elkins,
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“several weeks of observation and independent investigation” by detectives
corroborated the information in the tip, Elkins, 70 F.3d at 83, while in White, the
tip was deemed reliable largely because the tipster accurately predicted a third
party’s future actions, see White, 496 U.S. at 332. These critical circumstances
were not present in this case.
The tip here was too general to support reasonable suspicion by itself. “A
confidential tip may justify an investigatory stop if under the totality of the
circumstances the tip furnishes both sufficient indicia of reliability and sufficient
information to provide reasonable suspicion that criminal conduct is, has, or is
about to occur.” United States v. Leos-Quijada, 107 F.3d 786, 792 (10th Cir.
1997) (citing White, 496 U.S. at 328-330, and Elkins, 70 F.3d at 83) (emphasis
added). The verification of facts readily observable to anyone on the street,
without more, is insufficient to support a reasonable suspicion that criminal
conduct is occurring. The fact that the tipster accurately described a particular
group of men does not, as the district court suggested, mean that the tipster also
was correct that the men were engaged in drug dealing. On the other hand, police
are not required to ignore allegations of criminal activity. Although the tip in this
case was not sufficiently reliable to support reasonable suspicion by itself, we
will treat the tip as a factor to be considered. At minimum, the tip allowed the
officers to identify the men before them as those alleged to be dealing drugs. The
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tip, when combined with other factors, justified the officers in a brief
investigation detention to investigate the allegations of drug activity.
Looking at the totality of the circumstances, then, we find that the requisite
reasonable suspicion was present. Deputy West knew that drug activity was not
uncommon in the neighborhood. While the fact that an individual is in a
neighborhood known for drug activity is not sufficient by itself to support a
reasonable suspicion that the individual himself is engaged in criminal activity,
see Brown v. Texas, 443 U.S. 47, 52 (1979), it can support a finding of
reasonable suspicion when combined with other factors. See United States v.
Gutierrez-Daniez, 131 F.3d 939, 942-43 (10th Cir. 1997). Moreover, as the
deputies approached, they saw one of the men briefly disappear behind the wall.
Although the officers did not observe the man drop anything behind the wall, we
agree with the district court that the action could support an inference that the
man had left to hide something upon spotting the officers. The tip, the
neighborhood’s reputation, and the man’s action combined to give the officers
reasonable suspicion to detain the men long enough to determine whether they
were in fact engaging in drug activity.
Our next inquiry then, is whether the officers detained the men longer than
necessary to confirm or dispel their suspicions regarding drug activity. See Terry,
392 U.S. at 19-20 (stating that scope of investigative detention must be
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reasonably related to circumstances which justified interference in the first place).
The men were detained for approximately twenty minutes while the officers
searched the area, patted them down, and asked for identification. 2 This length of
time was not unreasonable. See United States v. Sharpe, 470 U.S. 675, 686-88
(1985) (finding that 20-minute delay was not inherently unreasonable). There is
no evidence that the police took more time than was necessary to investigate the
suspected drug activity; they diligently pursued a means of investigation that was
likely to confirm or dispel their suspicions quickly.
2. Detention Until Arrival of INS Agent (1:08 - 1:30)
Although the defendant had produced an identification card, the deputies in
this case were justified in detaining him until they could verify that the card was
genuine, even though they no longer suspected him of illegal drug activity.
Deputy Holguin testified that he knew alien registration cards were easy to fake
and that he was aware of a high rate of fake documentation (approximately 50
percent, in his experience, turned out to be fake). He further testified that he did
not have the expertise to determine whether the defendant’s identification card
was genuine or fake, so he and the other deputies requested the assistance of INS
officers to determine whether the card was genuine. Under these circumstances,
2
The defendant conceded at the suppression hearing that the pat-down and the
requests for identification were permissible if the court determined that the detention was
supported by reasonable suspicion.
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the fact that the documentation did not appear to the deputies to be obviously fake
does not prevent them from calling in the INS agents to make a more experienced
evaluation. By calling INS agents to the scene, the officers were pursuing a
means of investigation that was likely to confirm or dispel their suspicions
quickly. The fifteen to twenty minute detention necessary to allow INS officers
to reach the scene was not unreasonable. See Sharpe, 470 U.S. at 686-88.
We agree with the government that other circumstances also supported a
reasonable suspicion that the defendant might be in the country illegally.
Specifically, the defendant’s presence in an area known to be frequented by
illegal aliens from Mexico, his nervousness upon being asked for identification,
and Deputy Holguin’s knowledge of the high rate of fake documentation gave the
officers reasonable suspicion that the defendant may have been in the country
illegally. A neighborhood’s reputation for housing illegal immigrants alone
cannot support a finding of reasonable suspicion as to an individual found in that
neighborhood, see Brown, 443 U.S. at 52, but it is a relevant factor to be
considered, see Gutierrez-Daniez, 131 F.3d at 942-43 (finding that police
officer’s knowledge that drug dealers and illegal immigrants congregated in a
particular area could be considered, along with more particularized factors, to
support reasonable suspicion). In the same vein, a defendant’s nervousness is not
enough, without more, to support a finding of reasonable suspicion, see United
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States v. Hall, 978 F.2d 616, 621-22 & n.4 (10th Cir. 1992), but it too is not
entirely irrelevant, see Gutierrez-Daniez, 131 F.3d at 943. Looking at the totality
of the circumstances, we find that the officers possessed the requisite reasonable
suspicion to detain the defendant for an immigration check even though their drug
inquiries were complete.
We note that the officers apparently decided to detain the entire group of
four or five individuals, including the defendant, to verify their identification and
immigration status in part because two of the men in the group lacked any
identification and one of them admitted that he was in the country illegally. We
decline to base the reasonableness of the defendant’s detention on the actions or
status of the other men in his group and rely instead on the circumstances
discussed above. See Whren v. United States, 116 S. Ct. 1769, 1774 (1996)
(noting that subjective intent of officer does not invalidate otherwise lawful
conduct).
Defendant argues that once the NCIC check came back negative, he
should have been allowed to leave. However, the NCIC report only informed the
officers that there were no outstanding warrants for the defendant. It did not
provide any information regarding immigration status. Therefore, the officers
were not required to let him go on the basis of the negative NCIC report.
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3. Detention after the Arrival of the INS Agent (1:30 - 1:50)
Finally, the defendant contends that his continued detention after the arrival
of the INS agent was unreasonable. This claim also is without merit. Upon
arriving at the scene, the INS agent diligently pursued a means of investigation
that was likely to confirm or dispel their suspicions quickly, which made the brief
wait constitutionally acceptable. See Sharpe, 470 U.S. at 686-88. Upon arriving,
the agent examined the card and noted an apparent discrepancy. 3 The agent also
noted the card had been issued multiple times, which suggested that the defendant
previously had been deported. These factors justified further detention of the
defendant for a reasonable amount of time while his immigration status was
verified. The agent ran an immigration check, and the report of defendant’s
illegal status reached the agent within fifteen or twenty minutes. There is no
evidence that this INS immigration check took an unusual or unreasonable amount
of time.
CONCLUSION
For these reasons, we AFFIRM the district court’s denial of defendant’s
motion to suppress.
3
Agent Garcia testified that he later determined the card was invalid due to
defendant’s earlier deportation, but it was not a fake. The fact that he ultimately learned
it was not a fake, however, does not mean that the agent’s initial suspicions regarding the
card were unreasonable.
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