United States v. Cota-Herrera

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 6 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 02-1556
v.
(No. 02-CR-90-M)
(D. Colorado)
CONRADO COTA-HERRERA,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
Convicted of illegal reentry following a prior deportation for an aggravated
felony in violation of 8 U.S.C. § 1326(a), Conrado Cota-Herrera appeals the
district court’s denial of his motions to suppress evidence. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
I
On the morning of January 24, 2002, on an interstate highway in the city of
Fruita, Colorado, State Trooper Oreolt observed a white van drifting into the
shoulder. Judging from the compression on the rear suspension, Oreolt noted that
the van was likely carrying large quantities of cargo or passengers. After the van
failed to timely signal as it turned off the highway, Oreolt followed the van off
the exit and into the parking lot of a fast-food restaurant. Between the freeway
exit and the parking lot, the van committed another traffic violation when it drove
straight through a right-hand turn lane.
As he walked toward the van in the parking lot, Oreolt noticed that the
vehicle had California license plates and tinted windows, and that many
passengers were crowded in the back. In English and broken Spanish, he
communicated to the driver, Cota-Herrera, the reason for the stop. When Oreolt
requested Cota-Herrera’s driver’s license, registration, and insurance, he saw that
there were approximately fifteen passengers of Mexican or Central American
descent in the van, but could not detect any luggage or clothing. Cota-Herrera
was unable to produce proof of insurance, but he provided the officer with a
driver’s license and the vehicle registration; the name on the registration did not
match the name on the license. Cota-Herrera explained that the owner of the van
was not present, but that he had permission to drive it. Oreolt then asked Cota-
-2-
Herrera, in English and then in Spanish, whether all of the passengers were
properly documented, at which point Cota-Herrera’s English-language skills
faltered. Based on the large number of passengers, their tired appearance, their
failure to provide documentation, the absence of luggage, and a smell emanating
from the van that he associated with long journeys, Oreolt contacted the
Immigration and Naturalization Service (“INS”) reporting a possible alien-
smuggling load. While waiting, Oreolt retained Cota-Herrera’s driver’s license
and registration. In addition to his suspicions regarding the immigration status of
the occupants, Oreolt testified that he had a secondary reason for detaining the
vehicle—for lack of insurance and proof of lawful possession of the van.
When INS agents White and Cooper arrived fifteen to twenty minutes later,
Oreolt handed over the driver’s license and registration to the agents and issued a
verbal warning to Cota-Herrera for the traffic violations. White, with his INS
badge displayed and a firearm at his waist, approached the vehicle. After briefly
speaking with Cota-Herrera, White proceeded to open the sliding door of the van,
and noticed between twelve and fifteen passengers cramped, without seat belts,
inside. In accordance with standard INS procedure, White identified himself as
an immigration agent and asked the passengers in Spanish whether they were in
the United States illegally. He received affirmative responses from some of the
passengers, and no negative responses. Based on these responses, Agent White
-3-
moved the entire group, including Cota-Herrera, into INS vans and transported
them to the INS facility for further investigation.
Once the group was in administrative custody at the INS office, the INS
collected the group’s property for tagging, at which time Cota-Herrera identified
himself to officials with a different name. Before being advised of their rights or
being placed under arrest, each individual in the group was asked a series of
routine biographical questions from a “213” form. (2 R. at 57.) This form is
completed for all aliens in administrative custody and is used to initiate
deportation and removal proceedings. As part of this inquiry, INS agents asked
Cota-Herrera when, where, and how he entered the United States. Everyone in
the group was then processed through a fingerprint-identification system, which
identified the driver’s name as Cota-Herrera. Upon identifying him, the INS read
Cota-Herrera his rights under Miranda v. Arizona, 382 U.S. 436 (1966), after
which time Cota-Herrera refused to answer any further questions. INS officials
ordered Cota-Herrera’s “A-file,” received a few days later, which revealed that he
had previously been deported. (3 R. at 27.)
On February 25, 2002, Cota-Herrera was indicted for illegally reentering
the United States after previously being deported pursuant to a felony conviction,
in violation of 8 U.S.C. § 1326(a). He filed two motions to suppress evidence
resulting from the allegedly unlawful detention of the van and its passengers and
-4-
the statements he made prior to being informed of his Miranda rights. Rejecting
both motions on June 24, 2002, the district court found that the detention was
permissible under the Fourth Amendment, and that the motion to suppress Cota-
Herrera’s statements was moot because the government did not intend to submit
the statements at trial. Subsequently, Cota-Herrera filed a third motion to
suppress, again arguing that his statements to law-enforcement officers were
obtained in violation of Miranda, which was also denied. Following a jury trial,
Cota-Herrera was convicted of illegal reentry after deportation, and sentenced to
sixty-three months’ imprisonment. We consider Cota-Herrera’s direct appeal
from the denial of his suppression motions.
II
In reviewing the denial of a motion to suppress, “we accept the district
court’s factual findings unless clearly erroneous, and view the evidence in the
light most favorable to the government. However, we review de novo the
ultimate determination of the reasonableness of the search under the Fourth
Amendment.” United States v. Bustillos-Munoz, 235 F.3d 505, 511 (10th Cir.
2000) (quotation omitted). In claiming a violation of his Fourth Amendment
rights, Cota-Herrera challenges both (1) Trooper Oreolt’s initial detention of the
van and its passengers, and (2) the INS’s detention of the group.
-5-
As to Oreolt’s detention of the van and its passengers, Cota-Herrera does
not challenge the legality of the initial traffic stop. Rather, he claims that his
continued detention after he provided a license and registration was unjustified
under the Fourth Amendment. “We have consistently applied the principles of
Terry v. Ohio, 392 U.S. 1 (1968), to routine traffic stops.” United States v. Holt,
264 F.3d 1215, 1220 (10th Cir. 2001). During a routine traffic stop, the officer is
entitled to request a driver’s license and registration, but “once the motorist has
produced a valid license and proof that he is entitled to operate the car, he must
be allowed to proceed on his way, without being subject to further delay by police
for additional questioning.” Id. at 1221. “Further delay is justified only if the
officer has reasonable suspicion of illegal activity or if the encounter has become
consensual.” Id.In the instant case, Cota-Herrera provided Oreolt with his driver’s license
and the vehicle registration, but was neither able to prove that he was entitled to
operate the van, as the owner identified on the registration was not present, nor
able to produce proof of insurance. These facts alone created reasonable
suspicion for Oreolt to detain the van and the driver, notwithstanding Oreolt’s
testimony that these were not the sole reasons for the detention. See United
States v. Galindo-Gonzales, 142 F.3d 1217, 1224 (10th Cir. 1998) (holding that
driver’s failure to provide proof of lawful possession of the vehicle creates
-6-
reasonable suspicion that the car may have been stolen, even though the officer
“did not characterize his questioning about the passengers as part of an
investigation of a possible car theft”). The existence of reasonable suspicion is
particularly apparent when evaluating the lack of insurance and proof of lawful
possession in conjunction with the other facts observed by Oreolt: the van’s out-
of-state license plates, the large number of individuals in the van, their tired
appearance, the smell emanating from the van indicating a long trip, and Cota-
Herrera’s apparent inability to respond to Oreolt’s questions, posed in both
English and Spanish, regarding whether the passengers were documented. Taken
together, these facts establish the reasonable suspicion necessary to justify the
fifteen- to twenty-minute detention of the van and its passengers until INS
officials arrived.
Next, Cota-Herrera challenges the lawfulness of the detention once the INS
officials arrived at the scene and then transported the group to the INS facility.
Cota-Herrera complains that INS Agent White opened the door of the van and
questioned its occupants without making an independent inquiry as to whether
there was reason to suspect a violation of immigration laws. Given that Agent
White’s actions were informed by the call he received from Colorado State Patrol,
requesting his assistance in investigating the van and its driver for possible alien
smuggling, we hold that White’s decision to approach the van and open the
-7-
sliding door was justified. See 8 U.S.C. § 1357(a)(1) (authorizing INS officials
to interrogate, without warrant, “any alien or person believed to be an alien as to
his right to be or to remain in the United States”); United States v. Hensley, 469
U.S. 221, 229–33 (1985) (holding that a police officer may, in detaining and
questioning an individual, rely on a bulletin posted by another police department,
as long as the department that posted the bulletin possessed reasonable suspicion
to justify the stop and/or detention).
After asking the occupants about their legal status and receiving responses
confirming that at least some of the passengers were undocumented, while
receiving no responses indicating that anyone was properly documented, White
was justified in transporting the passengers to the INS facility for further
investigation and administrative processing. See United States v. Treto-Haro, 287
F.3d 1000, 1006 (10th Cir. 2002) (holding that an individual’s admission of
illegal-alien status creates probable cause for arrest); United States v. Santana-
Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001) (same). Based on the passengers’
responses, White also had probable cause to arrest Cota-Herrera for a violation of
federal immigration laws. See, e.g., 8 U.S.C. § 1324(a)(1)(A)(ii) (criminalizing
the transport of undocumented aliens). Thus, we agree with the district court that
“[t]he INS agents acted within their statutory and regulatory authority in taking
all of the van occupants into custody for the purpose of determining the legality
-8-
of their presence in the United States.” (1 R. Doc. 38 at 4.) For these reasons,
we affirm the district court’s conclusion that the detention did not violate the
Fourth Amendment.
III
Cota-Herrera also contends that his statements to law-enforcement officers
violated his Miranda rights. Miranda, of course, involved the admissibility of a
defendant’s statements. 384 U.S. at 439. In denying Cota-Herrera’s motions to
suppress, the district court concluded that the claim was moot as the government
did not seek to introduce into evidence any of Cota-Herrera’s statements taken
before he was informed of his Miranda rights. On appeal, Cota-Herrera proffers
no support for the contrary conclusion, and concedes that these statements were
not introduced at trial. See United States v. Minjares-Alvarez, 264 F.3d 980, 984
(10th Cir. 2001) (holding that because none of the defendant’s statements
obtained in violation of Miranda were submitted to the jury, “whatever
deprivation of rights [defendant] may have suffered at that point did not affect his
trial”). Further, there is no indication that evidence admitted at trial was derived
from Cota-Herrera’s statements taken before he was informed of his Miranda
rights under the fruit-of-the-poisonous-tree doctrine. Cf. United States v. Patane,
304 F.3d 1013, 1029 (10th Cir. 2002) (suppressing the physical fruits of a
-9-
Miranda violation), cert. granted, 123 S. Ct. 1788 (2003). Thus, we hold that the
district court acted properly in dismissing Cota-Herrera’s Miranda claim.
IV
The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
- 10 -