United States v. Lopez-Moreno

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 11, 2005
August 8, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
______________
No. 04-30633
______________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ELEUTERIO LOPEZ-MORENO, also known as Eleuterio Lopez
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.
KING, Chief Judge:
Defendant-Appellant Eleuterio Lopez-Moreno was convicted of
transporting undocumented aliens in furtherance of their illegal
presence in the United States. 8 U.S.C. §§ 1324(a)(1)(A)(ii),
1324(a)(1)(A)(v)(II), and 1324(a)(1)(B)(i) (2000). He now
appeals the district court’s decision to: (1) deny his motion to
suppress evidence against him; (2) deny his motion in limine
challenging the admission of documents contained in the
passengers’ A-files; and (3) deny his motion for acquittal based
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on the insufficiency of the evidence against him. We AFFIRM.
I. BACKGROUND
A. Factual Background
1. Preliminary Matters
On the morning of August 21, 2003, Earlton John Parker, a
police officer with the Greenwood Police Department in Greenwood,
Louisiana, was on a routine traffic patrol. At 2:36 a.m.,
Officer Parker pulled over a white van because neither of its
side brake lights was functioning. Only the van’s center window
brake light was operating.1 Officer Parker testified in court
that he believed the non-functioning brake lights violated LA.
REV. STAT. ANN. § 32:306A (West 2002), which in 2003 required all
motor vehicles registered and operating in Louisiana to have at
least two functioning brake lights. Before he initiated the
stop, Officer Parker turned on the dashboard-mounted camera in
his police cruiser. The entire stop was thus videotaped (with
sound). Before pulling over the van, Officer Parker also called
in the van’s Texas license plate number to the police dispatcher.
The van that Officer Parker pulled over was owned by
Faustino Martinez, the proprietor of El Cadete Autotransportes
(“El Cadete”). El Cadete is what is known colloquially in parts
1
Lopez-Moreno claims that only the left-side brake light
was not operating on the morning of August 21, and that the
district court clearly erred in finding otherwise. We consider
this issue below.
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of the South Texas Hispanic community as a camioneta. Camionetas
are van services that provide point-to-point transportation
within the United States and to destinations in Mexico. On the
morning in question, the van was driven by Lopez-Moreno, a
Mexican citizen and lawful permanent resident of the United
States. He had left Houston a few hours earlier with nine
passengers who were destined for Atlanta and other locations on
the East Coast.
2. Events Before the Warrant Check Came Back Clean
As soon as Lopez-Moreno pulled over, Officer Parker
requested his driver’s license. Officer Parker then explained
that he had pulled over the van because of problems with the
brake lights. Officer Parker next proceeded to ask Lopez-Moreno
various questions about the nature of his trip. Officer Parker
first asked Lopez-Moreno about his destination. Lopez-Moreno
told him that he was going to Atlanta. Officer Parker next asked
him who he worked for, to which Lopez-Moreno responded that he
worked for the company named on the door of the van. Officer
Parker then started questioning Lopez-Moreno about the
passengers, including how many there were, who they were, and
where they were from. Lopez-Moreno was not certain how many
passengers there were and did not know their names, but he told
Officer Parker that they were from various places.
With these questions asked, Officer Parker began questioning
Lopez-Moreno about the immigration status of his passengers.
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When asked by Officer Parker if they were present legally in the
United States, Lopez-Moreno told him “I guess, I don’t know,” and
“I just work for the company.” At that point, Officer Parker
again asked Lopez-Moreno where he was taking the passengers.
Lopez-Moreno told Officer Parker that he was taking the
passengers to various destinations. Parker then asked if they
were being taken to work. Lopez-Moreno said that they were going
to work at their destinations. Based on these responses, Parker
stated to Lopez-Moreno, “Some of them probably ain’t legal.”
Although not readily discernible on the videotape, Officer Parker
has testified that Lopez-Moreno responded by saying either
“might” or “might be.”
At 2:40 a.m., Officer Parker went back to his police cruiser
to request a backup officer. He also called in Lopez-Moreno’s
driver’s license number to run a check on his license and to see
if he had any outstanding warrants. He then went back and
continued to question Lopez-Moreno about the details of his trip.
While this next round of questioning was proceeding, the
dispatcher radioed back to Parker at 2:43 a.m. to tell him that
the driver’s license was valid and that she was still checking to
see if Lopez-Moreno had any outstanding warrants.
After the dispatcher radioed back, Officer Parker asked
Lopez-Moreno about the immigration status of the passengers for
either the third or fourth time. Officer Parker stated: “None of
them are legal. Be honest with me.” This time, rather than
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offer a verbal response, Lopez-Moreno shrugged. In response to
the shrug, Parker stated “probably not.” Lopez-Moreno then
volunteered to go back to the van and retrieve the passenger
manifest.
At 2:44 a.m., while Lopez-Moreno was going back to the van,
the dispatcher called back and told Parker that there were no
outstanding warrants. Parker told the dispatcher to hold onto
Lopez-Moreno’s information.
3. Events After the Warrant Check Came Back Clean
When Lopez-Moreno returned from the van, he went over the
manifest with Officer Parker to ascertain how many passengers
were in the van. They determined that there were nine
passengers. This conversation was interrupted at 2:48 a.m., when
the backup officer arrived.
Once the backup officer arrived, Officer Parker called
United States Bureau of Immigration and Customs Enforcement
(“BICE”) Special Agent Craig Griffin. Agent Griffin was the
Resident Agent in Charge of BICE’s Texarkana, Arkansas office.
Agent Griffin had earlier requested the Greenwood Police
Department to call them if they suspected that they had
undocumented aliens at a traffic stop. Parker explained to Agent
Griffin that he had pulled over the van and that Lopez-Moreno was
paid to drive the passengers to various destinations. Because of
a bad connection, Agent Griffin said that he would call back in a
few minutes. While Officer Parker was waiting for Agent Griffin
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to call him back, he can be heard speaking with the other officer
about an earlier episode when Officer Parker had participated in
a traffic stop of a van of undocumented aliens. He mentioned
that the driver of the van in that previous stop had been
arrested for transporting illegal aliens. At 2:54 a.m., Agent
Griffin called back. Officer Parker again explained the
circumstances. While Officer Parker had Agent Griffin on the
phone, he handed the phone over to Lopez-Moreno and Agent Griffin
spoke briefly with Lopez-Moreno. Agent Griffin asked a few
questions, including where Lopez-Moreno was born, where the
passengers were from, and what immigration documentation he had
on him. Lopez-Moreno told him that he was born in Tampico,
Mexico, he did not know where the passengers were from, and he
did not have any immigration documents. Based on his
conversation with Lopez-Moreno, as well as what Officer Parker
had told him, Agent Griffin told Officer Parker to detain Lopez-
Moreno and the passengers until he could arrive from about an
hour away.
When Agent Griffin arrived on the scene, he first
interviewed Lopez-Moreno and then interviewed the passengers.
Lopez-Moreno again stated that he was from Mexico. However, at
this point he produced a resident alien card, i.e., a green card.
Griffin then spoke with the passengers. Because neither Officer
Parker nor his backup officer spoke Spanish, Agent Griffin was
the first law enforcement officer actually to interact with the
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passengers. Agent Griffin asked them their names, their place of
birth, their country of citizenship, their date and place of
entry into the United States, the status of their entry, and
their current place of residence. Based on their responses to
his questions and the other circumstances he observed, Agent
Griffin suspected that they were not present legally in the
United States. As a result of Agent Griffin’s investigation, his
interview with Lopez-Moreno, and the passengers’ responses, Agent
Griffin arrested Lopez-Moreno for suspicion of transporting
undocumented aliens. Officer Parker issued him a ticket for
failing to comply with Louisiana’s brake lights statute, LA. REV.
STAT. ANN. § 32:306A, and for failing to have a vehicle
registration slip, in violation of LA. REV. STAT. ANN. § 47:506
(West 2002).2 BICE also detained the van’s passengers on
suspicion of being present in the United States illegally.
B. Procedural Background
On August 27, 2003, a federal grand jury issued a nine-count
indictment against Lopez-Moreno charging him with transporting
undocumented aliens and with conspiracy to transport said aliens,
in furtherance of their illegal presence in the United States and
for commercial advantage knowing that they were illegally
present, or in reckless disregard of the fact that they were
2
At some point after the warrant check came back clean,
Officer Parker discovered that Lopez-Moreno did not have the
van’s registration with him.
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illegally present, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii),
1324(a)(1)(A)(v)(II), and 1324(a)(1)(B)(i). The nine counts
corresponded to each of the nine passengers in the van.
Immediately after his arraignment on August 27, Lopez-Moreno
made several oral motions. In the first motion, Lopez-Moreno’s
attorney stated: “I would ask that the Court maintain in custody
the [passengers] until I have had a time, a chance to question
these people, take their depositions if need be.” The court did
not act on the motion but, on the understanding that the
passengers would be in custody for some time before being
deported, directed Lopez-Moreno’s attorney to confer with the
Assistant United States Attorney about the logistics of visiting
and deposing the passengers. In response, the Government stated:
“[W]e have not asked for material witness warrants on these
individuals. They are presently in the Miller County jail in
Arkansas.” Lopez-Moreno’s attorney then stated: “I would at
least like to know that for the next week they will be maintained
in the Miller County jail. After that amount of time, if I
discover it is no longer necessary to have them detained and I am
satisfied . . . that we have no fear in letting them be released,
then I can certainly so advise the Court . . . .” In the end,
the court directed the Government “to do everything that you can
to make sure that [the defense is] notified before the
individuals named in the indictment are moved from Miller County
jail.” On October 3, 2003, seven of the passengers were
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deported. Although Lopez-Moreno’s attorney knew their location
up to that point, she made no attempt to depose them. The eighth
passenger was a minor and was staying with a family member
pending his deportation hearing.3 The ninth passenger was
released on an immigration bond but failed to appear at her
deportation hearing. She was ordered deported in absentia.
On September 12, 2003, Lopez-Moreno filed a motion to
suppress all the evidence against him on the grounds that his
brake lights were working on the morning of August 21, and thus
there was no basis for the initial stop. On October 22, 2003,
Lopez-Moreno filed a supplemental motion to suppress, in which he
argued that even if the brake lights were not working, the
evidence should still be suppressed because: (1) the stop was
without legal justification, since the statute that formed the
basis of Officer Parker’s stop applied only to vehicles
registered in the State of Louisiana; (2) Officer Parker had no
authority to enforce immigration laws; (3) Lopez-Moreno was not
given his Miranda warning until after the BICE agents arrived on
the scene; and (4) Lopez-Moreno did not consent to the detention
until after the BICE agents arrived on the scene.
On February 11, 2004, a federal magistrate judge issued a
report and recommendation on the motion to suppress, which
recommended denial of the motion in all respects. The magistrate
3
As of the time of trial, the juvenile had not yet been
deported.
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judge found that the inapplicability of the Louisiana brake light
statute was irrelevant because at the time the stop began,
Officer Parker had no way of knowing that the van was registered
in Texas. The magistrate judge concluded that Miranda warnings
were not required because an officer may ask a few questions as
part of a traffic stop without first arresting a motorist. The
magistrate judge also found that Lopez-Moreno’s claim as to
Officer Parker’s authority to enforce immigration laws did not
survive a simple reading of the relevant federal statutes.
Finally, the magistrate judge stated that Lopez-Moreno’s consent
was unnecessary because Officer Parker had a reasonable basis to
suspect that immigration laws had been broken. On February 23,
2004, the district court accepted the magistrate judge’s
recommendation and denied the motion to suppress.
On February 23, 2004, the Government indicated its intent to
present certain documents drawn from each of the passengers’ “A-
files” as evidence at trial. An A-file is the Government’s
official file on each alien for whom it has information. The
Government acknowledged that the A-files contained sworn
statements from the passengers, but the Government was explicit
that it had no intention of introducing the statements into
evidence. The same day, Lopez-Moreno filed a motion in limine
arguing that the court should not admit any documents drawn from
the A-files. Lopez-Moreno claimed that “the use of such
documents (which are clearly hearsay) to prove the alienage
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element of the crime violates his rights to Due Process under the
Fifth Amendment, as well as his Right to Confrontation as set
forth in the Sixth Amendment . . . .”
On February 24, 2004, immediately before the trial started,
the court heard oral arguments on Lopez-Moreno’s motion in
limine. In court, Lopez-Moreno’s attorney reiterated the
arguments made in the motion and memorandum. His attorney
stated: “I filed this motion in limine to ask the Court to deny
the Government’s use of the A-files, as well as any of the other
documents that are incorporated into the A-files which might have
been previously executed or created by the government agents.”
In response, the Government acknowledged that the A-files
contained certain documents such as witness statements and
interview notes, but it again stated that it would not introduce
them at trial. The court ruled that the A-files were admissible,
with the exception that the admissibility of any documents
containing inculpatory statements by the passengers would be
addressed later if the Government sought to introduce them.
Later that same day, February 24, Lopez-Moreno’s trial
began. The Government’s chief witnesses against Lopez-Moreno
were Officer Parker and Agent Griffin. At trial, Lopez-Moreno
had a standing objection against the introduction of any
materials from the A-files. With one exception, each time a
document from an A-file was introduced, Lopez-Moreno objected on
the grounds stated in the motion in limine, i.e., that
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introduction of documents from the A-files violated the rule
against hearsay and his right to confront the witnesses against
him. The district court overruled the standing objection each
time it was made.
On February 25, the Government rested, and Lopez-Moreno made
an oral motion for a judgment of acquittal, which the district
court denied. On February 26, the jury began its deliberations,
and the next day it returned a guilty verdict on all counts. On
March 5, 2004, Lopez-Moreno filed a written motion for judgment
of acquittal or, in the alternative, a new trial based on his
allegation that the prosecution failed to offer admissible
evidence that could support a finding of guilt beyond a
reasonable doubt. In this motion, he largely restated the
arguments made in his motion in limine. On June 4, 2004, the
motion for acquittal was denied. On June 10, 2004, Lopez-Moreno
was sentenced to eighteen months imprisonment, followed by two
years of supervised release.
On June 24, 2004, Lopez-Moreno filed the instant appeal. On
appeal, Lopez-Moreno argues that the district court committed
reversible error in denying his motion to suppress because: (1)
the traffic stop was illegal from its inception; (2) even if the
stop was initially valid, Officer Parker illegally expanded the
scope of the detention; and (3) the stop was an instance of
“ethnic profiling” and thus violated Lopez-Moreno’s right to
equal protection under the law. Additionally, Lopez-Moreno
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argues that the district court improperly denied his motion in
limine of February 24, 2004 (stating that documents from the A-
files should not be admitted at trial) and improperly denied his
motion for acquittal based on the insufficiency of the evidence.
II. ANALYSIS
A. The Fourth Amendment Motion to Suppress
1. Standard of Review
In reviewing a district court’s denial of a motion to
suppress, we review the district court’s findings of fact for
clear error and its conclusions of law de novo. United States v.
Hicks, 389 F.3d 514, 526 (5th Cir. 2004). In reviewing findings
of fact, we view the evidence in the light most favorable to the
party prevailing below, which in this case is the Government.
United States v. Shelton, 337 F.3d 529, 532 (5th Cir. 2003). If
this review leads us to the “definite and firm conviction that a
mistake has been committed[,]” then the district court’s factual
finding must be deemed clearly erroneous. Payne v. United
States, 289 F.3d 377, 381 (5th Cir. 2002). Also, the trial
court’s determination that the facts provided reasonable
suspicion or probable cause is reviewed de novo. Ornelas v.
United States, 517 U.S. 690, 699 (1996). However, in carrying
out this de novo review, we must “give due weight to inferences
drawn from those facts by resident judges and local law
enforcement officers.” Id.
2. Doctrinal Framework for Analyzing Suppression Claims Related
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to Traffic Stops
The Fourth Amendment protects individuals “against
unreasonable searches and seizures.” U.S. CONST. amend. IV.
Traffic stops are deemed seizures for the purposes of the Fourth
Amendment. United States v. Valadez, 267 F.3d 395, 397 (5th Cir.
2001). The legality of a traffic stop is analyzed under the
framework articulated in Terry v. Ohio, 392 U.S. 1 (1968). See
Knowles v. Iowa, 525 U.S. 113, 117 (1998); Berkemer v. McCarty,
468 U.S. 420, 439 (1984). Under the two-part Terry reasonable
suspicion inquiry, we ask whether the officer’s action was: (1)
“justified at its inception”; and (2) “reasonably related in
scope to the circumstances which justified the interference in
the first place.” Terry, 392 U.S. at 19-20.
a. The First Prong of the Terry Test
For a traffic stop to be justified at its inception, an
officer must have an objectively reasonable suspicion that some
sort of illegal activity, such as a traffic violation, occurred,
or is about to occur, before stopping the vehicle. See United
States v. Breeland, 53 F.3d 100, 102 (5th Cir. 1995). The
Supreme Court has stated that in making a reasonable suspicion
inquiry, a court “must look 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.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). We
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have stated previously that reasonable suspicion exists when the
officer can point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant the search and seizure. See, e.g., United States v.
Santiago, 310 F.3d 336, 340 (5th Cir. 2002). In evaluating the
totality of the circumstances, a court may not consider the
relevant factors in isolation from each other. Arvizu, 534 U.S.
at 274. In scrutinizing the officer’s basis for suspecting
wrongdoing, it is clear that the officer’s mere hunch will not
suffice. Terry, 392 U.S. at 27. It is also clear, however, that
reasonable suspicion need not rise to the level of probable
cause. Arvizu, 534 U.S. at 274.
b. The Second Prong of the Terry Test
As for the second prong of the Terry inquiry, generally, the
“detention must be temporary and last no longer than is necessary
to effectuate the purpose of the stop . . . .” United States v.
Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc). In the
course of effectuating the stop, a police officer may permissibly
examine the driver’s license and registration and run a computer
check on them to investigate whether the driver has any
outstanding warrants and if the vehicle is stolen. Id. at 507-
08. An officer may also ask the driver about the purpose and
itinerary of his trip. Id. at 508. Indeed, the officer’s
questions need not even be related to the purpose of the traffic
stop, since “[d]etention, not questioning, is the evil at which
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Terry’s second prong is aimed.” Id. (quoting United States v.
Shabazz, 993 F.2d 431, 436 (5th Cir. 1993)).
Although an officer’s inquiry may be wide-ranging, once all
relevant computer checks have come back clean, there is no more
reasonable suspicion, and, as a general matter, continued
questioning thereafter unconstitutionally prolongs the detention.
Brigham, 382 F.3d at 510; see also Santiago, 310 F.3d at 341-42;
United States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000); United
States v. Dortch, 199 F.3d 193, 200 (5th Cir. 1999). A
recognized exception to this rule is that if additional
reasonable suspicion arises in the course of the stop and before
the initial purpose of the stop has been fulfilled, then the
detention may continue until the new reasonable suspicion has
been dispelled or confirmed. See Brigham, 382 F.3d at 507;
United States v. Grant, 349 F.3d 192, 196 (5th Cir. 2003).
3. Application of the First Prong of the Terry Test
In the instant case, Lopez-Moreno claims that the first
prong of the Terry test was not met since the stop was
unjustified at its inception. The Government contends that the
van’s non-functioning brake lights furnished Officer Parker with
two objectively reasonable bases for the initial stop.
The Government first claims that the non-functioning brake
lights provided Officer Parker a reasonable basis to believe that
Lopez-Moreno was violating LA. REV. STAT. ANN. § 32:306A. At the
time of the traffic stop, this statute mandated that “[n]o person
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shall . . . operate on the highways of this state any motor
vehicle registered in this state . . . unless it is equipped with
at least two stop lamps . . . .” LA. REV. STAT. ANN. § 32:306A
(emphasis added).4
The Government also contends that the non-functioning brake
lights provided Officer Parker with a reasonable basis to believe
that Lopez-Moreno was violating LA. REV. STAT. ANN. § 32:53A (West
2002). This statute states: “No person shall drive . . . on any
highway of this state, at any time, any vehicle or combination of
vehicles which is in such unsafe condition as to endanger any
person or property . . . .” LA. REV. STAT. ANN. § 32:53A. The
Government claims that the most direct route from Greenwood to
Atlanta would have required Lopez-Moreno to spend at least three
more hours driving on Louisiana highways. The Government
contends that by doing this driving in the dark without
functioning brake lights, the van posed a danger. Lopez-Moreno
offers two arguments in reply. First, he claims that § 32:53A
cannot be used to justify the stop because it was not Officer
Parker’s true motivation. Second, he claims that the district
court committed clear error in finding that two, rather than one,
of the brake lights were not working. With two of the three
brake lights working, Lopez-Moreno claims that the van did not
4
In 2004, the phrase “registered in this state” was
deleted from the statute. See LA. REV. STAT. ANN. § 32:306A (West
2002 & Supp. 2005).
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pose a danger.
We find that § 32:53A serves as an objectively reasonable
justification for initiating the stop. For this reason, we do
not reach the issue of whether § 32:306A also justifies the stop.5
As an initial matter, we find that it was objectively reasonable
for a police officer to suspect that the two non-functioning
brake lights posed a danger to people and property. Especially
considering that the van was a larger-than-normal vehicle
traveling in the dark at highway speeds, the lack of functioning
brake lights could be seen as increasing the risk of collision
from behind. As for Lopez-Moreno’s contention that only one
brake light was not operating, we have reviewed the videotape of
the arrest at length. Based on our review, we find that the
district court’s conclusion that both side brake lights were non-
functioning was not clearly erroneous. Thus, had Officer Parker
initially cited § 32:53A as the reason for the stop, the stop
unquestionably would have been permissible.
We are now left with Lopez-Moreno’s contention that § 32:53A
may not serve as a post hoc rationalization for the stop.
Supreme Court and Fifth Circuit precedent has made clear that an
officer’s subjective intentions have no impact on analyzing
reasonable suspicion or probable cause because they are both
5
See generally United States v. Lopez-Valdez, 178 F.3d
282, 289 (5th Cir. 1999); United States v. Whaley, 781 F.2d 417,
421 (5th Cir. 1986).
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considered to be based on an objective test. More than twenty-
five years ago, the Court stated: “[T]he fact that the officer
does not have the state of mind which is hypothecated by the
reasons which provide the legal justification for the officer’s
action does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action.” Scott
v. United States, 436 U.S. 128, 138 (1978).
More recently, the Court again has made clear that an
officer’s subjective motivations are irrelevant in determining
whether his or her conduct violated the Fourth Amendment.
Devenpeck v. Alford, 125 S. Ct. 588, 594 (2004) (“Our cases make
clear that an arresting officer’s state of mind . . . is
irrelevant to the existence of probable cause. [H]is subjective
reason for making the arrest need not be the criminal offense as
to which the known facts provide probable cause.” (internal
citation omitted)); Whren v. United States, 517 U.S. 806, 813
(1996) (“We think these cases [citing, inter alia, Scott]
foreclose any argument that the constitutional reasonableness of
traffic stops depends on the actual motivations of the individual
officers involved.”).
Most clearly on point is our own prior statement that “[s]o
long as a traffic law infraction that would have objectively
justified the stop had taken place, the fact that the police
officer may have made the stop for a reason other than the
occurrence of the traffic infraction is irrelevant for purposes
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of the Fourth Amendment . . . .” Goodwin v. Johnson, 132 F.3d
162, 173 (1997) (citing Whren, 517 U.S. at 806).
Based on this line of precedent, we conclude that even if
Officer Parker’s subjective motivation for initiating the stop
was his mistaken view that Lopez-Moreno was violating § 32:306A,
the fact that it was objectively reasonable to suspect that
Lopez-Moreno was violating § 32:53A means that the initial stop
passes constitutional muster.
4. Application of the Second Prong of the Terry Test
Lopez-Moreno argues that, assuming the initial stop was
valid, the evidence against him nevertheless must be suppressed
because Officer Parker unconstitutionally prolonged the stop. He
claims that at the time the warrant check came back clean,
Officer Parker had no reasonable suspicion that the passengers
were undocumented aliens. According to Lopez-Moreno, it was only
after the stop was improperly prolonged that any inculpatory
evidence was obtained. The Government contends that several
factors created reasonable suspicion to justify Lopez-Moreno’s
continued detention after the warrant check came back negative.
First, the Government notes that in the months preceding August
21, 2003, there were several traffic stops in Greenwood that led
to the detention of vans of undocumented aliens. The Government
makes particular note of the fact that approximately one month
prior to Lopez-Moreno’s stop, Officer Parker had participated in
a stop of a van containing suspected illegal immigrants. Second,
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the Government highlights the fact that Lopez-Moreno did not know
the names of his passengers. Third, Lopez-Moreno answered
“might” when asked whether his passengers were present in the
United States illegally. Finally, when asked the same question
again, Lopez-Moreno shrugged, which, according to the Government,
indicated either agreement with Officer Parker or evasiveness.
We consider each of these factors in turn, mindful of the
proper nature of our review. We must consider whether these
factors constitute specific and articulable facts which, when
considered along with whatever reasonable inferences may be drawn
from them, would allow a reasonable person to suspect that Lopez-
Moreno was engaging in illegal activity. We must pay heed to the
Supreme Court’s admonition not to treat each factor in isolation,
but rather to give due regard to the totality of the
circumstances. Arvizu, 534 U.S. at 274. Additionally, in
drawing inferences from these facts, we must give due weight to
the inferences drawn by both the trial court and law enforcement
officers. Id. at 273; Ornelas, 517 U.S. 699.
It is clear that based on his prior experience, as soon as
Officer Parker saw that the van in question–-the same type of van
as was involved in the earlier undocumented alien traffic stop--
was full of passengers and was being driven by a Hispanic
immigrant, his suspicion was piqued. Also, the BICE agents’
standing request for the Greenwood Police to call them if they
had a traffic stop involving suspected undocumented aliens
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reflects that Officer Parker could have inferred that the prior
stop in which he took part was not an isolated incident.
Certainly, these considerations alone would not have provided
reasonable suspicion. Any of the other factors the Government
cites, taken on their own, also would not provide reasonable
suspicion. However, when all of the factors are viewed in
conjunction, we find that there was reasonable suspicion.
The fact that Lopez-Moreno did not know his passengers’
names and was not certain whether he had eight or nine passengers
was consistent with the view that Lopez-Moreno was not a
commercial driver offering a completely legitimate service.
Especially considering that Officer Parker already had reason to
believe that vehicles full of undocumented aliens were passing
through Greenwood, Lopez-Moreno’s concession that the passengers
might be present in the United States illegally clearly supported
the inference that they were, in fact, undocumented aliens.
Finally, Lopez-Moreno’s shrug, which Officer Parker reasonably
interpreted to reflect agreement with his statement that none of
the passengers were legal, provided further reason to suspect the
passengers’ alienage. Thus, we find that all of these factors,
taken together, provided Officer Parker with an objectively
reasonable basis to suspect that the passengers were undocumented
aliens. For this reason, the second step of the Terry test is
met. Accordingly, we conclude that the district court properly
denied Lopez-Moreno’s Fourth Amendment-based motion to suppress.
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B. The Fourteenth Amendment Motion to Suppress
In addition to his Fourth Amendment suppression argument,
Lopez-Moreno also argues that the evidence against him should
have been suppressed based on Officer Parker’s alleged violation
of his rights under the Equal Protection Clause of the Fourteenth
Amendment. Lopez-Moreno asserts that both his initial stop and
continued detention were instances of ethnic profiling. Lopez-
Moreno argues that such treatment violated his rights under the
Fourteenth Amendment and that the proper remedy is suppression.
We review this claim under the same standard of review as Lopez-
Moreno’s Fourth Amendment-based suppression claim.
In considering Lopez-Moreno’s claim, we note our prior
decision in United States v. Chavez, 281 F.3d 479 (5th Cir.
2002). In Chavez, we considered the defendant’s argument that
evidence against him should be suppressed because he was a victim
of ethnic profiling. We stated:
Neither the Supreme Court nor our Court has ruled that
there is a suppression remedy for violations of the
Fourteenth Amendment’s Equal Protection Clause, and we
do not find it necessary to reach that issue here.
For even if we assume arguendo that the Fourteenth
Amendment does provide such an exclusionary remedy, it
is plain that [the Defendant-Appellant] has failed to
offer proof of discriminatory purpose, a necessary
predicate of an equal protection violation.
Chavez, 281 F.3d at 486-87. Our earlier statement applies
equally well to Lopez-Moreno’s claim. He has offered no evidence
showing that Officer Parker’s actions were driven by a
discriminatory purpose. Accordingly, Lopez-Moreno’s Equal
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Protection-based suppression argument fails.
C. The Admissibility of Evidence of the Passengers’ Legal
Status
Lopez-Moreno next argues that the district court erred by
denying his motion in limine of February 23, 2004, and by
admitting at trial documents from the passengers’ A-files. In
his motion in limine, Lopez-Moreno argued that documents
contained in the passengers’ A-files were not admissible to prove
that the passengers were in the United States illegally because
their admission would violate the rule against hearsay found in
FED. R. EVID. 802 and his Confrontation Clause rights under the
Sixth Amendment. As Lopez-Moreno notes, to convict a defendant
of transporting an undocumented alien, the Government must prove
that: (1) the defendant transported or moved an alien within the
United States; (2) the alien came to, entered, or remained in the
United States in violation of the law; (3) the defendant was
aware, or in reckless disregard, of the alien’s illegal status;
and (4) the defendant acted willfully in furtherance of the
alien’s violation of the law. 8 U.S.C. § 1324(a)(1)(A)(ii)
(2000); United States v. Diaz, 936 F.2d 786, 788 (5th Cir.
1991). According to Lopez-Moreno, documents from the passengers’
A-files were inadmissible to prove that the passengers came to,
entered, or remained in the United States in violation of the
law.
We review the district court’s evidentiary decisions for an
abuse of discretion. General Elec. Co. v. Joiner, 522 U.S. 136,
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141 (1997); United States v. Wilson, 322 F.3d 353, 359 (5th Cir.
2003).
We note at the outset that the section of Lopez-Moreno’s
appellate brief dedicated to his evidentiary arguments is
essentially a copy of his motion in limine filed on February 23,
2004.6 Because virtually all of this section of his appellate
brief was drafted before the trial occurred, it raises issues
that are now moot. Specifically, in his motion in limine, and
thus in his appellate brief, Lopez-Moreno argues that documents
from the passengers’ A-files were inadmissible because they
contain personal statements made by the passengers that are
hearsay, the admission of which would violate his Sixth Amendment
right to confront the passengers at trial. However, no documents
containing the passengers’ hearsay statements were introduced at
trial. The record indicates that documents found in the A-files
did contain statements made by the passengers about their legal
status. For instance, each of the nine passengers signed
affidavits concerning his or her illegal entry into the United
States. While the government initially may have intended to
introduce these documents to prove the passengers’ legal status,
it ultimately chose not to do so. Accordingly, because these
documents were never introduced at trial, Lopez-Moreno’s
6
With a few minor exceptions (e.g., the inclusion of a
standard of review), Section II of Lopez-Moreno’s appellate
brief--the section pertaining to his evidentiary arguments--is a
verbatim copy of the motion in limine.
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objection to their introduction is moot.7
At trial, the Government only introduced three items from
the passengers’ A-files: (1) the passengers’ booking photographs;
(2) a photocopy of a Mexican voter identification card that one
of the passengers had in his possession; and (3) a computer
printout from BICE’s computer system for each of the seven
passengers who had been deported that showed the date on which he
or she was deported to Mexico. Lopez-Moreno’s appellate brief
does not specifically refer to any of these documents, although
he does generally assert that documents contained in the A-files
should have been excluded because their introduction would
violate the rule against hearsay and his Confrontation Clause
rights. After considering this argument as applied to the items
from the A-files that were admitted at trial, we conclude that
7
Although no documents containing the passengers’
statements were introduced at trial, Agent Griffin did testify at
trial that, as part of his investigation, he asked each of the
passengers: (1) his name; (2) his date and place of birth; (3)
his height and weight; (4) whether he had any scars or marks; (5)
whether he was married or single; (6) whether he was from Mexico;
(7) the date and place of his entry into the United States; (8)
the status of his entry; (9) his nationality; and (10) where he
currently resided. While Agent Griffin did not testify as to the
passengers’ answers, he subsequently testified that, based on his
investigation, he believed they were in the United States
illegally. Lopez-Moreno does not argue here, and did not argue
below, that by listing these questions and then offering this
opinion, Agent Griffin effectively introduced the passengers’
responses through the back door, possibly in violation of the
Confrontation Clause. Counsel’s delphic objection referred to
her motion in limine, which pertained only to the admissibility
of documents from the A-files. A proper objection would have
required considerably more development. In any event, we need not
decide this issue, which would be res nova in this circuit.
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these documents were properly admitted.
First, we need not address the admissibility of the
passengers’ booking photographs because Lopez-Moreno did not
object at trial to their introduction and does not challenge
their introduction on appeal.8 United States v. Bigler, 817 F.2d
1139, 1140 (5th Cir. 1987) (noting that we generally will not
consider issues that are not raised by the litigants on appeal).
Second, the admission of the photocopy of the Mexican voter
identification card did not violate the rule against hearsay or
the Confrontation Clause. The photocopy of the voter
identification card cannot be characterized as hearsay because it
is not, and does not contain, an assertion, or nonverbal conduct
intended to be an assertion, offered to prove the truth of the
matter asserted. See FED. R. EVID. 801(c) (defining “hearsay” as
“a statement, other than one made by the declarant while
testifying at a trial or hearing, offered in evidence to prove
the truth of the matter asserted”).9 Likewise, admission of the
photocopy of the Mexican voter identification card did not
violate the Confrontation Clause. The Confrontation Clause
8
At trial, Lopez-Moreno initially objected to the
introduction of the photographs on the ground that they had not
properly been authenticated. The Government responded by
eliciting testimony designed to authenticate them. After the
Government authenticated the photographs, Lopez-Moreno withdrew
his objection to their introduction.
9
FED. R. EVID. 801(a) defines a “statement” as “(1) an
oral or written assertion or (2) nonverbal conduct of a person if
it is intended by the person as an assertion.”
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states that “[i]n all criminal prosecutions, the accused shall
enjoy the right
. . . to be confronted with the witnesses against him . . . .”
U.S. CONST. amend. VI. The applicability of this provision is
limited “to ‘witnesses’ against the accused--in other words,
those who ‘bear testimony.’” Crawford v. Washington, 541 U.S.
36, 51 (2004). As such, the Confrontation Clause applies only to
testimonial statements. Id. While the Supreme Court chose in
Crawford not to define precisely what is and is not a testimonial
statement, it is clear that the photocopy of the identification
card does not qualify as such because it in no way involves a
witness bearing testimony. See id. at 51, 56. Accordingly, the
district court did not abuse its discretion when it admitted the
photocopy of the Mexican voter identification card.
The admission of the computer printouts was also proper.
While the computer printouts conceivably could be viewed as
containing hearsay statements (statements regarding the
passengers’ deportations from the United States), they are
nevertheless admissible under FED. R. EVID. 803(8), which permits
the introduction of public records and reports containing hearsay
statements. FED. R. EVID. 803(8) covers:
Public records and reports. Records, reports,
statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of
the office or agency, or (B) matters observed pursuant to
duty to report, excluding, however, in criminal cases
matters observed by police officers and other law
enforcement personnel, or (C) in civil actions and
proceedings and against the Government in criminal cases,
- 28 -
factual findings resulting from an investigation made
pursuant to authority granted by law, unless the sources
of information or other circumstances indicate lack of
trustworthiness.
Under Rule 803(8), records, including computer records, made by a
public agency are admissible, regardless of whether they would
otherwise be excluded as hearsay. See United States v. Puente,
826 F.2d 1415, 1417-18 (5th Cir. 1987) (holding that under Rule
803(8), computer records maintained by the Customs Service that
showed when the appellant’s vehicle entered the United States
were properly admitted); United States v. Quezada, 754 F.2d 1190,
1193 (5th Cir. 1985) (holding that under Rule 803(8), a record of
deportation contained in an INS file was properly admitted);
United States v. Koontz, 143 F.3d 408, 412 (8th Cir. 1998)
(holding that booking records were properly admitted under Rule
803(8)); United States v. Smith, 973 F.2d 603, 605 (8th Cir.
1992) (holding that computer records of reported robberies in a
specified locality were properly admitted under Rule 803(8)). In
Quezada, we rejected the claim that the law enforcement exception
in Rule 803(8)(B) applied to exclude a document showing that the
appellant had been deported from the United States, stating that
Rule 803(8)(B) was directed at observations by law enforcement
officers at the scene of a crime or in the course of
investigating a crime and did not apply to “recording routine,
objective observations, made as part of the everyday function of
the preparing official or agency . . . .” Quezada, 754 F.2d at
1194. We further stated that because the official preparing the
- 29 -
form at issue in Quezada had no motivation to do anything other
than “mechanically register an unambiguous factual matter,” the
document was reliable and not excluded by the law enforcement
provision of Rule 803(8)(B). Id. The same reasoning applies in
the present case. BICE’s computer records of the passengers’
deportations are the type of public records that are admissible
under Rule 803(8), and they are not the sort of investigative
reports (i.e., police reports) that would be excluded under Rule
803(8)(B). See FED. R. EVID. 803(8); Quezada, 754 F.2d at 1194;
Puente, 826 F.2d at 1417-18. Accordingly, these computer records
were properly admitted under Rule 803(8). Additionally, the
admission of these computer records presents no Confrontation
Clause problems. In Crawford, the Supreme Court stated that
business records, which are analogous to public records, are “by
their nature . . . not testimonial” and not subject to the
requirements of the Confrontation Clause. Crawford, 541 U.S. at
51, 56; see also id. at 76 (Rehnquist, C.J., concurring in
judgment) (noting that “the Court’s analysis of ‘testimony’
excludes at least some hearsay exceptions, such as business
records and official records”). Furthermore, this court has
found that items in an alien’s immigration file akin to business
records were non-testimonial in nature and held that the
Confrontation Clause did not bar their admission. See United
States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005) (per
curiam); United States v. Gutierrez-Gonzales, No. 03-51253, 111
- 30 -
Fed. Appx. 732, 734 (5th Cir. Oct. 8, 2004) (per curiam)
(unpublished). The computer records at issue in the present case
are public records of this sort, and, as such, the district court
did not abuse its discretion by admitting them into evidence.
Accordingly, Lopez-Moreno’s argument that inadmissible documents
from the A-files were admitted at trial fails.
D. The Sufficiency of the Evidence
Finally, Lopez-Moreno claims that insufficient evidence
existed to prove that the passengers were in the United States
illegally, and he argues that, as a result, the district court
improperly denied his motion for acquittal based on the
insufficiency of the evidence. He does not challenge the
sufficiency of the evidence proving that he was aware of, or in
reckless disregard of, the aliens’ illegal status. When
reviewing a challenge to the sufficiency of the evidence, we
consider whether the evidence presented, viewed in the light most
favorable to the prosecution, would allow any rational finder of
fact to conclude that the prosecution proved the elements of the
crime beyond a reasonable doubt. United States v. Valentine, 401
F.3d 609, 615 (5th Cir. 2005); United States v. Brugman, 364 F.3d
613, 615 (5th Cir. 2004). We review the district court’s denial
of Lopez-Moreno’s motion for acquittal de novo, applying the same
standard as did the district court, i.e., whether any rational
trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Valentine, 401 F.3d at 615.
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In the present case, there was compelling evidence that the
passengers were in the United States illegally. For instance,
the evidence showed, inter alia, that: (1) the passengers were
being transported in a camioneta van of the sort often used to
transport illegal aliens from Mexico to the United States and
from point to point within the United States; (2) none of the
passengers spoke English; (3) the passengers’ personal hygiene
reflected that they had been unable to bathe for quite some time,
which (in the opinion of the BICE agent) is typical of illegal
aliens in transit for extended periods; (4) none of the
passengers in the van had any luggage; (5) one passenger was
carrying a Mexican voter identification card; (6) other than the
passenger carrying the Mexican voter identification card, none of
the nine passengers had any identification; (7) according to
Officer Parker, when he stated to Lopez-Moreno that “some of them
probably ain’t legal,” Lopez-Moreno responded by saying either
“might” or “might be”; (8) when asked the same question later,
Lopez-Moreno’s body language indicated to Officer Parker that he
either agreed or was being evasive; (9) BICE records introduced
at trial showed that seven of the nine passengers subsequently
were deported from the United States;10 and (10) Agent Griffin
testified that, based on his investigation, the passengers were
10
We note that the computer record applicable to each
alien shows only the fact of deportation and does not, by itself,
evidence the different fact that such alien “has come to,
entered, or remains in the United States in violation of law,” as
required by 8 U.S.C. § 1324(a)(1)(A).
- 32 -
in the country illegally. While none of these factors alone is
definitive proof that the passengers were in the United States
illegally, when viewed together in the light most favorable to
the prosecution, they would allow a rational finder of fact to
conclude that the prosecution proved this element of the offense
beyond a reasonable doubt. See Valentine, 401 F.3d at 615;
Brugman, 364 F.3d at 615. Thus, Lopez-Moreno’s sufficiency
argument fails, and the district court properly denied his motion
for acquittal.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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KING, Chief Judge, specially concurring:
I write separately to note that while Lopez-Moreno
challenged the admission of documents from the passengers’ A-
files, he did not challenge at trial (and does not challenge on
appeal) the fact that Agent Griffin, who was not qualified as an
expert but rather testified as a lay witness, gave lay opinion
testimony regarding the illegal status of the passengers that was
explicitly based on his specialized training as a federal
immigration agent.
Specifically, at trial, the Government asked Agent Griffin,
“[I]n your training as a Border Patrol agent and as an
Immigration agent and now an Immigration and Customs Enforcement
agent, [did] you make a determination whether or not these
passengers are illegal aliens unlawfully in the country?” Agent
Griffin responded that he did make such a determination,
concluding that all nine passengers were in the United States
illegally. In providing this testimony, Agent Griffin was not
testifying as an expert witness pursuant to FED. R. EVID. 702, nor
was he testifying as a summary witness pursuant to FED. R. EVID.
1006. See FED. R. EVID. 702 & 1006. Rather, Agent Griffin was
testifying as a lay witness.
The opinion testimony of a lay witness is governed by FED. R.
EVID. 701, which was amended in 2000 to state, inter alia, that
such testimony may not be “based on scientific, technical, or
- 34 -
other specialized knowledge within the scope of Rule 702.”11
Prior to December 1, 2000, FED. R. EVID. 701 did not prohibit lay
opinion testimony based on specialized knowledge. According to
the advisory committee notes accompanying Rule 701,
Rule 701 [was] amended [in 2000] to eliminate the risk
that the reliability requirements set forth in Rule 702
will be evaded through the simple expedient of proffering
an expert in lay witness clothing. Under the amendment,
a witness’ testimony must be scrutinized under the rules
regulating expert opinion to the extent that the witness
is providing testimony based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.
. . . By channeling testimony that is actually expert
testimony to Rule 702, the amendment also ensures that a
party will not evade the expert witness disclosure
requirements set forth in FED. R. CIV. P. 26 and FED. R.
CRIM. P. 16 by simply calling an expert witness in the
guise of a layperson.
FED. R. EVID. 701 advisory committee’s note (internal citations
omitted). In applying the specialized training and experience he
has as a Border Patrol and Customs Enforcement agent to form this
opinion, Agent Griffin came dangerously close to applying
“scientific, technical or other specialized knowledge” that is
beyond the scope of what is known by ordinary laymen. See Duhon
v. Marceaux, No. 00-31409, 33 Fed. Appx. 703 (5th Cir. Feb. 25,
2002) (per curiam) (unpublished) (finding that police officer’s
11
FED. R. EVID. 701, as amended in 2000, states in full:
If the witness is not testifying as an expert, the
witness’ testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, (b)
helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
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opinion testimony exceeded the scope of permissible lay opinion
testimony under Rule 701); United States v. Garcia, --- F.3d ---,
2005 WL 1444146, at *10-12 (2nd Cir. June 21, 2005) (holding that
DEA agent’s opinion testimony was not admissible under Rule 701
because it was based on his specialized knowledge as a DEA
agent); United States v. Conn, 297 F.3d 548, 553-55 (7th Cir.
2002) (finding that ATF agent’s opinion, based on his training
and knowledge as an ATF agent, exceeded the scope of admissible
lay opinion testimony under Rule 701). See also FED. R. EVID.
803(8).
Lopez-Moreno, however, did not object to the fact that Agent
Griffin’s opinion testimony exceeded the scope of permissible lay
opinion testimony under Rule 701, nor does he raise this issue
now on appeal. We have repeatedly stated that we “will not
consider issues that are not raised by the litigants on appeal.”
United States v. Bigler, 817 F.2d 1139, 1140 (5th Cir. 1987);
Zuccarello v. Exxon Corp., 756 F.2d 402, 407-08 (5th Cir. 1985);
see also FED. R. APP. P. 28. Accordingly, we need not decide this
issue in the present case.
The Government normally attempts to prove the passengers’
illegal status in a § 1324 case by calling one or more of them to
testify. See also § 1324(d). Had it done so here, it likely
would not have perceived a need to introduce Agent Griffin’s
opinion testimony about the passengers’ legal status. Relying on
a case agent’s lay opinion of their legal status seems to me to
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be problematic.
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