United States v. Jose Del Carmen Vasquez-Ortiz

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10196 ELEVENTH CIRCUIT
SEPTEMBER 16, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00348-CR-CC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DEL CARMEN VASQUEZ-ORTIZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 16, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Jose Del Carmen Vasquez-Ortiz appeals his conviction and 46-month
sentence imposed for re-entry into the United States by an alien previously
removed subsequent to a conviction for commission of an aggravated felony, in
violation of 8 U.S.C. § 1326(a) and (b)(2). Vasquez-Ortiz filed a motion to
suppress evidence, which the district court granted as to his post-arrest custodial
statements and denied as to the rest of the evidence. Vasquez-Ortiz subsequently
pled guilty pursuant to a written plea agreement, wherein he waived his right to
appeal his conviction and sentence, except that he reserved the right to appeal:
(1) a sentence higher than 57 months’ imprisonment and (2) the district court’s
order resolving his motion to suppress.
On appeal, he argues that his detention and arrest were not supported by
reasonable suspicion and probable cause, respectively, such that the district court
erred when it denied his motion to suppress. Accordingly, he asserts that his other
statements, fingerprints, photographs, alien file, and any other evidence should be
suppressed. Furthermore, he argues that his sentence was unreasonable, but
concedes in his reply brief that in his plea agreement he waived his right to appeal
his sentence.
I. Motion to suppress
We review a district court’s denial of a defendant’s motion to suppress under
a mixed standard of review, reviewing the district court’s findings of fact for clear
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error and the district court’s application of law to those facts de novo. United
States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). The court’s factual
findings are construed in the light most favorable to the prevailing party. United
States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006). Additionally, we give the
district court’s credibility determinations great deference. United States v. Clay,
376 F.3d 1296, 1302 (11th Cir. 2004) (internal quotation marks and citation
omitted).
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated. . . .” U.S. Const. amend. IV. Generally, any
evidence obtained by unconstitutional searches and seizures is inadmissible in
court. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961). In
addition to the illegally obtained evidence, the defendant may suppress
incriminating evidence that was derived from that primary evidence, i.e., “fruit of
the poisonous tree.” United States v. Terzado-Madruga, 897 F.2d 1099, 1112
(11th Cir. 1990) (citation omitted).
There are three categories of police-citizen encounters contemplated within
the Fourth Amendment: “[(1)] police-citizen communications involving no
coercion or detention; [(2)] brief seizures or investigatory detentions; and [(3)]
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full-scale arrests.” United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.
1989) (citations omitted). The first category does not implicate Fourth
Amendment scrutiny. Id.As to the second category, law enforcement officers may briefly detain a
person for an investigatory stop if they have a reasonable, articulable suspicion
based on objective facts that the person has engaged, or is about to engage, in
criminal activity. See Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85
(1968). Reasonable suspicion requires “more than a hunch”; it requires that the
totality of the circumstances create, at least, “some minimal level of objective
justification” for the belief that the person engaged in unlawful conduct. United
States v. Diaz-Lizaraza, 981 F.2d 1216, 1220-21 (11th Cir. 1993) (citation
omitted).
“[A] person is ‘seized’ only when, by means of physical force or a show of
authority, his freedom of movement is restrained.” United States v. Mendenhall,
446 U.S. 544, 553, 100 S. Ct. 1870, 1877 (1980). The Supreme Court has
indicated that the proper inquiry is whether, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not
free to leave. Id. at 554, 100 S. Ct. at 1877.
As to the third category, “when the totality of circumstances indicate that an
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encounter has become too intrusive to be classified as a brief seizure, the encounter
is an arrest and probable cause is required.” United States v. Espinosa-Guerra, 805
F.2d 1502, 1506 (11th Cir. 1986) (citation omitted). “Whether or not an arrest has
occurred depends on the particular facts involved in an incident. No formal words
are required stating that an individual is under arrest and it is not necessary that a
formal arrest record be filed.” United States v. Ashcroft, 607 F.2d 1167, 1170 (5th
Cir. 1979) (citation omitted)1 . We have recognized a non-exclusive list of factors
that may indicate an arrest: “the blocking of an individual’s path or the impeding
of his progress; the display of weapons; the number of officers present and their
demeanor; the length of the detention; and the extent to which the officers
physically restrained the individual.” Hastamorir, 881 F.2d at 1556. Of course,
“[o]nce a Terry stop exceeds its carefully circumscribed limits, the police must
observe the probable cause requirement.” United States v. Mosquera-Ramirez, 729
F.2d 1352, 1356 (11th Cir. 1984) (citation omitted).
Probable cause exists “when the facts and circumstances within the officer’s
knowledge, of which he or she has reasonably trustworthy information, would
cause a prudent person to believe, under the circumstances shown, that the suspect
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In Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc),
the newly-formed Eleventh Circuit adopted as binding precedent all of the decisions of the
former Fifth Circuit handed down prior to the close of business on September 30, 1981.
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has committed, is committing, or is about to commit an offense.” United States v.
Lyons, 403 F.3d 1248, 1253 (11th Cir. 2005) (internal quotation marks and citation
omitted). “For probable cause to exist, an arrest must be objectively reasonable
based on the totality of the circumstances.” United States v. Street, 472 F.3d 1298,
1305 (11th Cir. 2006) (citation and ellipsis omitted). As such, the officer’s own
subjective opinions or beliefs about probable cause are irrelevant. Id.The Supreme Court’s “Fourth Amendment jurisprudence has consistently
accorded law enforcement officials greater latitude in exercising their duties in
public places.” Florida v. White, 526 U.S. 559, 565, 119 S. Ct. 1555, 1559 (1999).
“For example, although a warrant presumptively is required for a felony arrest in a
suspect’s home, the Fourth Amendment permits warrantless arrests in public places
where an officer has probable cause to believe that a felony has occurred.” Id.Under 8 U.S.C. § 1357, immigration officers are authorized, without a
warrant, “to interrogate any alien or person believed to be an alien as to his right to
be or to remain in the United States. . . .” 8 U.S.C. § 1357(a)(1). This authority,
however, is subject to the principles of the Fourth Amendment. United States v.
Rodriguez-Franco, 749 F.2d 1555, 1559 (11th Cir. 1985).
“Every alien . . . shall at all times carry with him and have in his personal
possession any certificate of alien registration or alien registration receipt card
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issued to him. . . .” 8 U.S.C. § 1304(e). A violation of this section is a
misdemeanor. Id.While Vasquez-Ortiz was sitting at the top of a staircase in a public location,
two law enforcement officers ascended the staircase and approached him. The law
enforcement officers, who were patrolling a public location known to be a hangout
for gangs with illegal alien membership, noted that Vasquez-Ortiz was dressed in
attire that indicated gang membership and appeared to have a tattoo that indicated
gang membership. As such, the officers has reasonable suspicion to conduct an
investigatory stop of Vasquez-Ortiz.
The officers neither drew their weapons, raised their voices, touched
Vasquez-Ortiz, nor directed him to do anything. Rather, consistent with an
investigatory stop, the officers asked Vasquez-Ortiz a series of questions. The
officers inquired into where Vasquez-Ortiz was from and whether he had
identification. Vasquez-Ortiz responded that he was from El Salvador and did not
have identification. Because the officers had a reasonable suspicion that Vasquez-
Ortiz was an alien based on his answers to their questions, they were then
authorized, without a warrant, to interrogate him about his right to be or remain in
the United States. 8 U.S.C. § 1357(a)(1). The officers then arrested Vasquez-
Ortiz, directing him down the staircase toward additional officers.
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Because the district court has already suppressed all evidence subsequent to
Vasquez-Ortiz’s arrest, with the exception of Vasquez-Ortiz’s spontaneous
statements, the only evidence at issue here is the evidence garnered from the
investigatory stop. The district court did not clearly err when it found that the
arresting officer credibly testified that he asked Vasquez-Ortiz where he was from
and whether he had identification during the first moments of their encounter.
Additionally, the district court properly found that Vasquez-Ortiz’s response–that
he was from El Salvador and did not have any identification– coupled with the
other surrounding circumstances, established reasonable suspicion and probable
cause to believe that he was violating 8 U.S.C. § 1304(e). Thus, the district court
did not err when it denied Vasquez-Ortiz’s motion to suppress. We affirm as to
this issue.
II. Sentence-appeal waiver
We review the knowing and voluntary nature of a sentence-appeal waiver de
novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). A sentence-
appeal waiver contained in a plea agreement, made knowingly and voluntarily, is
enforceable. Id. at 1350. To enforce the sentence-appeal waiver, the government
must demonstrate either that (1) the district court specifically questioned the
defendant about the waiver during the change-of-plea colloquy, or (2) the record
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clearly shows that the defendant otherwise understood the full significance of the
waiver. Id. at 1351.
Because Vasquez-Ortiz indicated that he signed and understood his plea
agreement, and the district court reviewed the sentence-appeal waiver with him at
his plea hearing, Vasquez-Ortiz entered into a valid, enforceable waiver. Since his
sentencing claims on appeal do not fall within the limited exception to the waiver,
as he concedes, we dismiss with prejudice as to this issue.
III. Conclusion
We affirm the district court’s denial of Vasquez-Ortiz’s motion to suppress,
and we dismiss with prejudice his challenge to his sentence.
AFFIRM in part; DISMISS WITH PREJUDICE in part.
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