UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4275
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GUILLERMO SANTIAGO-FRANCISCO,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Thomas S. Kleeh, District Judge. (1:19-cr-00012-TSK-MJA-1)
Submitted: May 22, 2020 Decided: July 23, 2020
Before AGEE, WYNN, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished opinion. Judge Quattlebaum wrote the majority opinion, in which Judge Agee joined. Judge Wynn wrote a dissenting opinion.
L. Richard Walker, Senior Litigator, Clarksburg, West Virginia, Kristen Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Powell, United States Attorney, Martinsburg, West Virginia, Brandon S. Flower, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. QUATTLEBAUM, Circuit Judge:
Federal and local officers in Clarksburg, West Virginia executed a Terry stop of a
vehicle based on their suspicion that one of the passengers had illegally reentered the
United States, in violation of 8 U.S.C. § 1326. During the stop, the officers encountered
Guillermo Santiago-Francisco, another passenger. After patting down Santiago and the
other occupants, the officers took them to the local police station. There, Santiago executed
a Miranda waiver form, admitted lacking the necessary documentation to live and work in
the United States and consented to a search of his bedroom, during which the officers
discovered fraudulent identification documents. As a result, Santiago was charged with
possessing fraudulent documents in violation of 18 U.S.C. § 1546(a). Santiago moved to
suppress evidence of the documents by challenging the constitutionality of the initial stop.
The district court denied the motion finding the officers possessed a reasonable suspicion
of criminal activity sufficient to conduct a Terry stop. We conclude that under the facts
presented in this record, the stop did not violate the Fourth Amendment. Accordingly, we
affirm.
I.
In October 2018, Special Agent Christopher Robert Holmes of the Department of
State Diplomatic Security Service (“DSS”) and Clarksburg police began a joint
investigation into Daniel Domingo Perez and Juan Carlos De Leon Zanas, Mexican
2 nationals who were persons of interest in a previous local kidnapping incident. 1 While
investigating that incident, local officials came to suspect Perez and Zanas were violating
federal immigration laws. Thus, they referred the immigration matters to federal officials,
who, in turn, obtained an arrest warrant for Zanas.
From his investigation, Special Agent Holmes believed Perez and Zanas resided at
901 Tiano Lane in Clarksburg and worked at a local Mexican restaurant called El Rey.
Holmes contacted Gary Olcott, an Enforcement and Removal Officer with Immigration
and Customs Enforcement (“ICE”), to investigate possible links between the Tiano Lane
address and immigrants in the ICE database. Holmes also established a surveillance
platform of the Tiano Lane residence.
After searching the ICE database, Olcott found no connection between Perez or
Zanas and the Tiano Lane address, but learned that there were two other individuals
associated with that address who were also suspected of immigration violations. Relevant
here, one of those individuals was Javier Rosario-Azamar, a previously deported Mexican
national. Olcott reported this information to Holmes. Thus, based on his conversations with
Olcott, Holmes believed Rosario was previously deported and currently in violation of 8
U.S.C. § 1326, under which illegal reentry into the United States is classified as a felony.
1 The facts presented here are in the light most favorable to the government since it prevailed on the motion to suppress. United States v. Lull, 824 F.3d 109, 114–15 (4th Cir. 2016) (explaining that, when reviewing the trial court’s ruling on a motion to suppress, this Court “must construe the evidence in the light most favorable to the prevailing party and give due weight to inferences drawn from those facts by resident judges and law enforcement officers” (internal quotation marks omitted)).
3 Holmes and Olcott also exchanged a series of emails through which they shared
photographs from the ICE database and photographs Holmes took from a surveillance
platform at the Tiano Lane residence. Holmes and Olcott felt some of the surveillance
photographs strongly resembled Zanas and possibly resembled Perez.
The agents later met to surveil the El Rey restaurant. While doing so, they observed
a man leave the restaurant two times to take out the trash. After comparing the surveillance
photographs to the ICE database photographs, Holmes believed the man taking the trash
out was Rosario. That evening, the agents also observed a gold Toyota Camry arrive at the
restaurant, pick up several people and proceed to 901 Tiano Lane.
The next morning, Holmes returned to the Tiano Lane residence. While conducting
surveillance, he saw four men leave the house and get into the Camry. Holmes “could
readily identify Javier Rosario-Azamar,” but did not recognize the other men. J.A. 77.
Believing Rosario to be in violation of 8 U.S.C. § 1326, and having identified Rosario as
one of the car’s passengers, Holmes instructed local police officers to stop the Camry. Two
patrol officers effectuated the stop and directed the driver and the passengers to exit the
vehicle.
Neither Perez nor Zanas were in the car. But Rosario, along with Santiago and two
others, were. The driver provided “a fake identification card” to the officers. J.A. 56. The
officers then patted down all the occupants for weapons and, after determining that none
of them had a valid driver’s license, towed the vehicle to the police department for an
inventory search, which yielded approximately $15,000 in cash.
4 Holmes and other federal agents arrived at the scene and transported all the
occupants of the Camry to the Clarksburg Police Department. With respect to Santiago,
the agents took his fingerprints and, after he signed a Miranda waiver form in Spanish,
interviewed him. Santiago admitted that he did not have proper documentation to live and
work in the United States and consented to the search of his bedroom at the Tiano Lane
residence. During the subsequent search, federal agents found a fraudulent Lawful
Permanent Resident card and Social Security card.
A federal grand jury indicted Santiago for fraud and misuse of documents, in
violation of 18 U.S.C. § 1546(a). Before trial, Santiago moved to suppress the documents
found at the Tiano Lane residence. He argued that the officers and agents lacked a
reasonable, articulable suspicion for conducting the investigative stop because (1) there
was no identified traffic infraction; and (2) the suspected illegal presence of one
individual—Rosario—was not a sufficient basis for stopping the Camry and questioning
all of its occupants. Santiago also argued that the officers improperly induced him to
consent to the search of the Tiano Lane residence, rendering his consent involuntary. But
at the motion hearing, he withdrew all arguments except his challenge to the legality of the
initial stop. Specifically, he did not challenge the questioning and pat down he received
during the stop, the validity of his Miranda waiver or his consent to the government’s
search of his bedroom.
At the hearing, the government called Holmes and the two Clarksburg patrol officers
who conducted the traffic stop as witnesses. Neither patrol officer testified that they
independently knew or suspected that one of the vehicle’s occupants had engaged in
5 criminal activity that would have supported the stop. Instead, they stated that they stopped
the vehicle after receiving instructions from Holmes. Holmes testified that he authorized
the stop because he suspected Rosario had illegally reentered the United States.
Specifically, based on information from Olcott, Holmes stated that he believed Rosario
was previously deported and had unlawfully reentered the United States, in violation of 8
U.S.C. § 1326.
In response, Santiago argued that the officers lacked either reasonable suspicion or
probable cause for the stop. Specifically, he maintained the government was required to
investigate Rosario’s immigration status before relying on a suspected violation of 8 U.S.C.
§ 1326 to stop a vehicle that was not being operated illegally or being used to transport
other individuals suspected of criminality. He contended, because Holmes had not verified
Rosario’s prior deportation and did not have any information about his “actual immigration
status,” the prior record of Rosario’s deportation was insufficient to support the stop. J.A.
149–50, Santiago further challenged Holmes’ method for confirming that Rosario was the
individual in the ICE database, suggesting mere photographic review was insufficient, and
that more sophisticated techniques should have been employed.
The district court denied Santiago’s motion to suppress. It noted that, based on the
information he received from Olcott, Holmes suspected Rosario was “a Mexican national
believed to have no legal status and a prior history of deportation. He was believed to have
reentered the country illegally, a felony under 8 U.S.C. § 1326(a). Holmes testified that he
was aware of Rosario-Azamar’s criminal history prior to the traffic stop at issue.” J.A. 169.
6 The district court also rejected Santiago’s criticism of Holmes’ identification of
Rosario. On this point, the court emphasized that during the surveillance of the El Rey
restaurant the day before the stop, Holmes twice got clear looks at Rosario’s face.
According to the district court, this, coupled with the similarities between the photographic
materials, allowed Holmes to identify Rosario as one of the men entering the gold Camry
departing 901 Tiano Lane. It further emphasized that Holmes noted several distinctive
physical attributes—including Rosario’s mustache—which aided his identification.
The district court also found that, under the collective knowledge doctrine, Holmes
passed his information about Rosario’s possible criminal conduct to the patrol officers,
providing them with sufficient reasonable suspicion to conduct the stop.
For these reasons, the district court concluded that Holmes reasonably suspected
that Rosario was “in the country illegally with a prior deportation in violation of federal
law” and was in the Camry at the time of the stop. J.A. 174. It found that the agents were
not required to do anything more to confirm Rosario’s identity prior to the Terry stop.
Lastly, recognizing the general rule that the “police may conduct an investigatory
stop when they have reasonable, articulable suspicion that any crime is occurring[,]” the
district court determined that the agents “did not need to know beyond a reasonable doubt
that it was Rosario-Azamar who exited the home on Tiano Lane and entered the Toyota
Camry.” J.A. 175. Instead, the court explained Holmes “had reasonable suspicion that
Rosario-Azamar, someone law enforcement believed to be violating immigration laws,
entered the vehicle.” J.A. 175–76. It thus ruled that the Terry stop was permissible under
7 the Fourth Amendment and that the evidence seized during the ensuing search of the Tiano
Lane residence was admissible.
Following the denial of his motion, Santiago entered a guilty plea conditioned on
his ability to appeal the district court’s admission of the challenged evidence. He timely
appealed, and we have jurisdiction of the appeal under 28 U.S.C. § 1291.
II.
Our standard of review is well-settled. In considering the district court’s denial of a
motion to suppress, this Court reviews its legal conclusions de novo and its factual findings
for clear error. United States v. Kolsuz, 890 F.3d 133, 141–42 (4th Cir. 2018).
As he did before the district court, Santiago challenges only the validity of the initial
traffic stop. Santiago asserts that evidence of a prior deportation, standing alone, fails to
constitute reasonable suspicion of criminal activity sufficient to support a traffic stop. In
turn, he insists that allowing officers to justify an investigative stop based on a reasonable
suspicion of an individual’s prior deportation—without more—is unconstitutional and
would run afoul of prior decisions of this Court and the Supreme Court, which prohibit
police investigations and conduct based on a suspect’s race, legal status and/or national
origin.
Santiago also argues Holmes did not exercise sufficient diligence to uncover the
details of Rosario’s prior deportation, including when it occurred and whether Rosario’s
presence in the United States contravened 8 U.S.C. § 1326. According to Santiago, Holmes
“grossly oversimplified the legal and factual matters at hand[,]” suggesting that “[a]
8 reasonable federal agent with even a rudimentary understanding of immigration law would
know that a prior deportation does not, by itself, create reasonable suspicion that someone
is guilty of illegal reentry by a previously removed alien because official consent to reenter
is a robust and very viable possibility under the law.” Appellant’s Br. at 18, 21.
III.
To address Santiago’s arguments, we begin with the basics of a Terry stop. In Terry
v. Ohio, 392 U.S. 1 (1968), the Supreme Court first recognized that an officer may stop
and search a person without probable cause in limited circumstances. Following Terry, this
Court has held that, consistent with the Fourth Amendment, “[a]n officer may stop and
briefly detain a person ‘when the officer has reasonable, articulable suspicion that the
person has been, is, or is about to be engaged in criminal activity.’” United States v.
Montieth, 662 F.3d 660, 665 (4th Cir. 2011) (quoting United States v. Hensley, 469 U.S.
221, 227 (1985)). To justify such an investigative stop, “the police officer must be able to
point to specific and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21. “Thus, a court must
look to the totality of the circumstances in determining whether the officer had a
particularized and objective basis for suspecting criminal activity.” United States v. Foster,
634 F.3d 243, 246 (4th Cir. 2011). “While such a detention does not require probable cause,
it does require something more than an ‘inchoate and unparticularized suspicion or
hunch.’” United States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997) (quoting Terry, 392
U.S. at 27).
9 Importantly, traffic violations are not required to justify Terry stops. United States
v. Hassan El, 5 F.3d 726, 729–30 (4th Cir. 1993). Instead, Terry and its progeny require
only that the officer has “a reasonable suspicion, based on specific and articulable facts, of
unlawful conduct.” Id. And in explaining the reasonable suspicion standard, the Supreme
Court recently stated “[t]he reasonable suspicion inquiry ‘falls considerably short’ of 51%
accuracy[.]” Kansas v. Glover, 140 S. Ct. 1183, 1188 (2020) (quoting United States v.
Arvizu, 534 U.S. 266, 274 (2002)). “[A]s we have explained, ‘[t]o be reasonable is not to
be perfect[.]’” Id. (quoting Heien v. North Carolina, 574 U.S. 54, 60 (2014)). Under this
standard, we agree that the record supports the district court’s finding that the agents
possessed reasonable, articulable suspicion to support the stop.
While Santiago correctly points out that we have not previously determined the
degree of reasonable suspicion necessary to support a stop based on facts like those
presented here, we disagree with Santiago’s assertion that Santos v. Frederick Cty. Bd. of
Comm’rs, 725 F.3d 451 (4th Cir. 2013) controls our decision. There, police officers
approached Santos, a restaurant worker, while she was taking a break on the back steps.
After asking Santos for her identification, the officers learned of an outstanding civil
warrant for her deportation. Then, before confirming the warrant remained active, they
apprehended her. Id. at 457–58. Santos subsequently brought a 42 U.S.C. § 1983 (2018)
civil rights action, claiming a police officer’s “knowledge that an individual has committed
a civil immigration violation does not constitute reasonable suspicion or probable cause of
a criminal infraction . . . .” Id. at 470. While we upheld the dismissal of the action against
the defendants in their individual capacity on other grounds, we allowed the claims against
10 the defendants in their official capacity to go forward, holding a Terry stop requires
reasonable suspicion of criminal activity—which a civil warrant, like the one at issue in
Santos, could not provide. Id. at 460–61.
But the facts here differ from those in Santos. Holmes did not apprehend Rosario
based on a civil warrant. Instead, he possessed reasonable suspicion, based on specific and
articulable facts, of a criminal violation of 8 U.S.C. § 1326(a). Specifically, § 1326(a)
criminalizes
any alien who has been deported . . . and thereafter enters, attempts to enter, or is at any time found, in the United States unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission . . . .
8 U.S.C. § 1326(a). In turn, as the district court properly noted, Holmes’ suspicion of
Rosario’s § 1326(a) violation was based on information from ICE Agent Olcott that
Rosario was “in the country illegally with a prior deportation in violation of federal law.”
J.A. 174. Based on this information from ICE regarding Rosario’s illegal reentry and his
identification of Rosario through photos and surveillance, Holmes possessed sufficient
reasonable suspicion to stop the car in which Rosario was a passenger.
Further, we find Santiago’s criticism of the extent of Holmes’ investigation into
Rosario’s immigration status unpersuasive. Holmes was not required to rule out the
possibility that Santiago had legally reentered the country. See Glover, 140 S. Ct. at 1188
(finding reasonable suspicion where a police officer inferred that the owner of a vehicle,
whose driver’s license has been revoked, was driving the vehicle without ruling out the
possibility someone else was driving). With no evidence from Olcott that Rosario’s
11 deportation history contained any authorization for him to reenter the United States, and
based on his previous identification of Rosario, Holmes possessed reasonable and
articulable suspicion that the individual he had identified as Rosario was engaging in
criminal activity.
We also note that our decision here is consistent with the other circuits that have
addressed the issue. In United States v. Lopez-Tubac, 943 F.3d 1156, 1159 (8th Cir. 2019),
local authorities notified an ICE agent of their arrest for driving under the influence of an
alien, who they suspected might be illegally in the United States. Through his investigation,
the ICE agent learned the alien had been previously deported and the vehicle he was driving
was not registered to him, a tactic, according to the ICE agent, common for individuals
who illegally reenter the country. Id. at 1159. After locating an individual who matched
the alien’s description, officers conducted a traffic stop based on their suspicion the alien
was currently committing the crime of illegal reentry into the United States after
deportation. Id. at 1158. In response to a challenge to the stop, the Eighth Circuit held,
based on the totality of circumstances, that the stop was permissible because the officer
reasonably suspected that the alien was “committing a crime—being illegally present in
the United States.” Id. at 1159. 2 The Eighth Circuit did not require the officers to confirm
the alien was in the country illegally.
2 See also United States v. Spencer, 646 F. App’x 6, 9 (2d Cir. 2016) (holding agents had sufficient reasonable suspicion of alien’s criminal conduct “based on their independent review of his immigration file and immigration databases” and corroborating an anonymous tip by personally observing “a man fitting [the defendant’s] description driving” the target vehicle “shortly before the stop”); United States v. Salas-Avalos, 459 F.
12 Finally, we agree with the district court that Holmes’ identification of Rosario from
a comparison of photographs and from his first-hand surveillance was sufficient. To be
sure, there are more advanced and sophisticated identification tools than visual photograph
comparisons. But we know of no authority, and indeed Santiago points us to none, that
indicates the use of such techniques is required to justify a Terry stop. To reiterate what
the district court properly explained, the officers needed only a reasonable suspicion of
criminal activity, not proof beyond a reasonable doubt.
IV.
According to our colleague in dissent, the traffic stop is akin to, if not worse than,
stopping an individual based solely on prior criminal history. We disagree. Our decision
today does not conflict with the general principle that a criminal record, standing alone, is
insufficient to create reasonable suspicion. Far from that, Rosario was suspected of the
current crime of reentering the United States illegally after a prior deportation. Through his
investigation, Holmes confirmed Rosario’s prior deportation. While prior deportation is
not itself a crime, it is one of the two elements of the suspected crime. As to the second
element, his illegal reentry, Holmes had evidence that Rosario had reentered. All he lacked
App’x 318, 320 (5th Cir. 2012) (holding that law enforcement had reasonable suspicion “to detain the [target] vehicle at least long enough to identify its occupants” when the agents could link defendant’s home address “with a telephone number that was used in an alien smuggling scheme,” and the agents were on the lookout for a truck “believed to be used in alien smuggling,” which later arrived at defendant’s residence and “shortly after stopped and discharged four to six passengers”).
13 was confirmation that Rosario had not legally reentered. But on that issue, Holmes testified
that his suspicion that Rosario was in the country illegally arose from his communication
with ICE Agent Olcott following Olcott’s review of the ICE database. Although Holmes
did not specifically testify that he confirmed Rosario had no legal status, it was reasonable
for Holmes to infer that if Rosario was legally in the United States, such information would
have been contained in the ICE database and Olcott would have indicated to Homes that
Rosario was authorized to be in the United States. Requiring further investigation into
whether Rosario had entered legally under this record would be tantamount to requiring
officers rule out the possibility of innocence. The Supreme Court’s recent Glover decision
makes clear that is not required. Holmes had more than enough evidence to satisfy the
standard that is required—that there was a reasonable suspicion of criminal activity.
For the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.
14 WYNN, Circuit Judge, dissenting:
The Fourth Amendment requires officers to have a reasonable suspicion that
criminal activity is afoot before they stop a car.
Here, law enforcement officers in West Virginia stopped four men carpooling to
work, contending that one of the men, Javier Rosario-Azamar, had violated 8 U.S.C. §
1326(a), which requires proof of two elements: a previous deportation and an illegal
reentry. But the officers only knew that Rosario-Azamar had previously been deported
which satisfied the first element but not the second element because simply being in the
United States after a previous deportation is not a crime. In short, the officers’ reasonable
suspicion determination rested on the single inference that the mere presence of a
previously deported person in the United States shows illegal reentry. That’s not the law.
Accordingly, I respectfully dissent.
The events leading to the stop began when Diplomatic Security Service Agent
Holmes and Immigration and Customs Enforcement (ICE) Officer Olcott were searching
for Daniel Domingo Perez and Juan Carlos De Leon Zanas for violating immigration laws. 1
The search led the officers to a house at 901 Tiano Lane in Clarksburg, West Virginia
where they suspected they could find Perez and Zanas. After running the address through
1 The majority opinion notes that Perez and Zanas were “persons of interest in a previous local kidnapping incident.” Majority Op. at 3. To be clear, the district court’s findings of fact stressed that “Defendant [Santiago-Francisco] has not been associated with any of these [kidnapping] allegations in any way whatsoever.” J.A. 168.
15 an ICE database, Olcott sent Holmes emails that contained photographs of two men staying
at the house, Mateo Delunas and Javier Rosario-Azamar, and noted they had past
“immigration encounters.” 2 J.A. 70. Based only on this past immigration information from
Olcott, with no information about Rosario-Azamar’s current immigration status, Holmes
believed that Rosario-Azamar illegally reentered the country, in violation of 8 U.S.C. §
1326(a). Through subsequent surveillance, the officers connected Rosario-Azamar and the
others at the house to a local Mexican restaurant where they worked, and to a gold Toyota
Camry that they used to carpool.
On the morning of December 12, 2018, Holmes arranged for local police to stop the
Camry on its way to the restaurant. Staking out the house, Holmes identified Rosario-
Azamar and saw him, along with three other men, get into the Camry to go to work. Holmes
then called the local police, who were lying in wait, and they initiated the stop. At the time
of the stop, the officers had not observed any traffic violations and only stopped the vehicle
because Holmes instructed them to. The officers believed the stop “had something to do
with illegal immigration,” J.A. 46-47, and “there were illegal immigrants in the vehicle,”
J.A. 60. The officers told the men to get out of the car, and among them were Rosario-
Azamar and Defendant Santiago-Francisco.
2 The majority opinion describes Olcott as “learn[ing] that there were two other individuals associated with that address who were also suspected of immigration violations.” Majority Op. at 3. The district court’s findings of fact describe Olcott as sending Holmes “two names of individuals with prior immigration encounters.” J.A. 169.
16 Subsequently, officers Mirandized the four men and took them to a local police
station. At the station, Santiago-Francisco gave officers permission to search 901 Tiano
Lane in order to bring him his immigration paperwork. During their search, the officers
found a counterfeit green card and a counterfeit Social Security card. Based on those
counterfeits, the Government indicted Santiago-Francisco for one count of fraud and
misuse of a document, 18 U.S.C. § 1546(a). Santiago-Francisco moved to suppress the
documents, challenging the legality of the traffic stop. The district court denied the motion
to suppress and this appeal followed.
The Fourth Amendment allows a law enforcement officer to detain a person for a
brief investigatory stop if the officer “possess[es] ‘a reasonable, articulable suspicion that
criminal activity is afoot.’” United States v. Williams, 808 F.3d 238, 245 (4th Cir. 2015)
(quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). To have such a reasonable
suspicion, the officer “must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant [the] intrusion.”
Terry v. Ohio, 392 U.S. 1, 21 (1968). Thus, when a defendant challenges a stop, “it is the
government’s burden to articulate facts sufficient to support [a] reasonable suspicion.”
United States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000) (emphasis added). When a
district court upholds a stop, this Court reviews the district court’s factual findings for clear
error and its legal conclusions—including whether the facts satisfy the constitutional
standard—de novo. United States v. Hylton, 349 F.3d 781, 785 (4th Cir. 2003).
17 Here, the district court’s findings of fact initially describe Rosario-Azamar as
“believed to have no legal status” and “believed to have reentered the country illegally.”
J.A. 169. The district court later summarily upgrades the officers’ beliefs to outright
knowledge, indicating Rosario-Azamar was “known by law enforcement to be in the
country illegally.” J.A. 174. 3 But neither the district court, nor the Government, nor the
majority here ever explain how either the officers’ “belief” or their “knowledge” follow
from the scant factual record, which only shows that Rosario-Azamar had previously been
deported. 4 This explanation is important because the reasonable suspicion inquiry is not
whether officers believed criminal activity was afoot, but why—a suspicion unsupported
by “specific and articulable facts” and “rational inferences” is not reasonable. Terry, 392
U.S. at 21 (emphasis added).
3 The majority opinion quotes this same sentence from the district court opinion to indicate that “the district court properly noted [that] Holmes’ suspicion of Rosario’s § 1326(a) violation was based on information from ICE Agent Olcott that Rosario was ‘in the country illegally with a prior deportation in violation of federal law.’” Majority Op. at 11 (quoting J.A. 174). What the district court noted was: “Holmes had reasonable, articulable suspicion to believe that Rosario-Azamar, who was known by law enforcement to be in the country illegally with a prior deportation in violation of federal law, was in the Toyota Camry.” J.A. 174. 4 The majority opinion notes that the district court also found that “Holmes testified that he was aware of Rosario-Azamar’s criminal history prior to the traffic stop.” Majority Op. at 6 (quoting J.A. 169) (emphasis added). This appears to be a reference to Rosario- Azamar’s deportation history. Although immigration violations and crimes are sometimes conflated, a “deportation history” is not a “criminal history” because deportation is a civil proceeding. See Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 467 (4th Cir. 2013) (“[T]he Supreme Court has long characterized deportation as a civil proceeding.”). Holmes did not testify, nor did the Government otherwise present any evidence, that Rosario-Azamar had a criminal record.
18 The Government asserts that the officers did not perform the traffic stop “merely
because Rosario-Azamar had a deportation history.” Response Br. at 11. Instead, the
Government argues that there were “sufficient facts” to support Holmes’s suspicion “that
Rosario-Azamar was in violation of 8 U.S.C. § 1326(a).” Id. As to what those “sufficient
facts” were, almost all of the Government’s contentions relate to Rosario-Azamar’s
physical appearance and the officers’ positive identification of him. See, e.g., Response Br.
at 13 (highlighting the “angle of [Rosario-Azamar’s] mustache”). But those facts do
nothing to link Rosario-Azamar to a violation of § 1326(a), and are thus irrelevant to the
reasonable suspicion analysis. See Florida v. J.L., 529 U.S. 266, 272 (2000) (merely
identifying a determinate person provides no basis to suspect illegal conduct). Rather, to
meet its burden, the Government must produce concrete facts suggesting that Rosario-
Azamar violated § 1326(a).
While the Government emphasizes a litany of irrelevant points about physical
identification, discussed above, the Government musters virtually nothing relevant to §
1326(a). This is doubtless because, on appeal, the record before this Court contains
virtually nothing relevant to § 1326(a). At best, the record indicates Holmes made a few
vague statements during the suppression hearing about a prior deportation. Specifically,
Holmes testified that Olcott indicated Rosario-Azamar “had immigration encounters in the
past,” and a “prior immigration deportation history.” J.A. 70. At another point, on re-re
direct examination, Holmes explained that the information from Olcott, that is, the
“immigration history,” contained “[Rosario-Azamar’s] photograph, and . . . a short graphic
19 that had some personal details about his immigration history.” J.A. 107. Holmes then
added, “[a]nd Gary Olcott and I had discussed it, that he was a previous deportee.” J.A.107.
None of these facts tell us anything concrete about whether Rosario-Azamar
violated § 1326(a). Nor, across all of his testimony, did Holmes ever explain what a “prior
immigration deportation history” is. Nor did the Government produce any other evidence
on this point.
Thus, when Holmes had local police officers stop the vehicle, he lacked any sound,
articulable facts explicitly linking Rosario-Azamar to a violation of § 1326(a), and instead
was armed only with the knowledge of Rosario-Azamar’s prior deportation. The entire
reasonable suspicion determination, therefore, rests on a single inference: that because a
person was previously deported, their presence in the United States suggests that they are
here improperly. 5
But knowledge of a previous deportation alone cannot give officers reasonable
suspicion that an individual has illegally reentered the country. Deportation only indicates
that a person was non-compliant with immigration laws in the past. It does not bar an
individual from later reentering the United States legally. 6 In fact, the very statute that the
5 Tellingly, the Government summarily describes Holmes’s information not as an “immigration history,” but instead as a “deportation history.” Response Br. at 12; see also Response Br. at 6 (“Holmes knew Rosario-Azamar to be in the United States illegally because of Rosario-Azamar’s prior deportations.”). Thus, the Government implicitly concedes Holmes did not have anything more substantial. 6 See 8 U.S.C. § 1158(a)(1) (“Any alien who is physically present in the United States or who arrives in the United States[,] . . . irrespective of such alien’s status, may apply for asylum in accordance with this section . . . .”); 8 U.S.C. § 1231(b)(3)(A)
20 officers suspected Rosario-Azamar was violating sets out how a person who has been
deported can legally reenter the country. 7 As such, the bare fact of being deported and then
found in the United States again is entirely indistinguishable from innocent behavior. It
follows that no reasonable officer could conclude that deportation alone suggests that
Rosario-Azamar was in violation of § 1326(a).
The majority attempts to sidestep the conspicuous absence of any fact other than the
prior deportation (and thus the Government’s failure to carry its burden) by stating that
Holmes was not required to rule out the possibility that Rosario-Azamar had legally
reentered the country. But the majority looks high when it should look low. An officer of
(explaining that the Attorney General may not remove an alien to a another country if the alien’s life or freedom would be threatened on account of a protected ground there); 8 U.S.C. § 1182(d)(5)(A) (“[T]he Attorney General may . . . parole into the United States temporarily under such conditions as he may prescribe . . . any alien . . . .”). 7 8 U.S.C. § 1326(a) provides: (a) In general Subject to subsection (b), any alien who— (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under title 18, or imprisoned not more than 2 years, or both. 21 course does not need to rule out all possibility of innocence. However, that observation is
irrelevant to the question of whether officers had a reasonable suspicion and therefore
cleared the constitutional minimum requirement for a stop. Without investigation into
Rosario-Azamar’s current immigration status, the previous deportation alone provided no
information regarding any ongoing wrongdoing. Therefore, Holmes’s failure to further
investigate Rosario-Azamar’s current immigration status is of pivotal importance: without
it there is no indication of criminal activity that would justify the stop.
Although the majority argues that Santos v. Frederick County Board of
Commissioners, 725 F.3d 451 (4th Cir. 2013), does not control the outcome of this case,
Santos speaks directly to the issue here. In Santos, two Maryland deputy sheriffs
approached Roxana Santos while she was sitting outside her place of work, eating a
morning sandwich, and asked for identification. Id. at 457-58. She provided the deputies
with her El Salvadoran national identification card and they discovered that she had an
outstanding ICE warrant for deportation. Id. at 458. Before receiving confirmation that the
warrant was still active, and without determining whether the warrant was civil or criminal,
the officers indicated to Santos that she was not free to leave, thus seizing her for the
purposes of the Fourth Amendment. Id. at 458, 462. In that case, because the warrant turned
out to be a civil warrant, and the state law enforcement officers had no authority to detain
or arrest individuals based solely on a suspected civil violation of federal immigration law,
we held the officers violated Santos’s rights. Id. at 465.
Of course, as the majority points out, Holmes (a federal agent) suspected Rosario-
Azamar of a criminal immigration offense (rather than the civil immigration offense at
22 issue in Santos). But that distinction is immaterial here because in Santos we went on to
reiterate the principle that, “because law enforcement officers, not detainees, are
responsible for identifying evidence justifying a seizure[,] . . . . when affirmative evidence
does not justify a seizure, the seizure violates the Fourth Amendment.” Id. at 467. Thus,
we explained that even if the record had been silent as to whether the warrant was criminal
or civil, the seizure would have been unconstitutional. See id. “[I]t was the deputies’
responsibility to determine whether the warrant was for a criminal or civil immigration
violation before seizing Santos.” Id.
Ultimately, the inquiry here is the same as the inquiry in Santos: did the information
available to the officers at the time of the stop support a specific and reasonable inference
of ongoing criminal activity by Rosario-Azamar? Holmes had no indication that Rosario-
Azamar was currently violating any laws. All he had was the outcome of a past civil
proceeding. Just as the deputies in Santos failed to investigate their warrant, Holmes failed
to investigate Rosario-Azamar’s current status, which would have told him something
about whether Rosario-Azamar was in the United States illegally. Without such
investigation, there is no indication that Rosario-Azamar was committing any crime by
being in the United States. Therefore, the stop here was unlawful for the same reasons as
in Santos.
Moreover, setting aside the majority’s attempt to distinguish Santos, the other cases
the majority cites as affirmatively supporting its conclusion do not support that conclusion.
Rather, examining those cases highlights the Government’s failure here to identify
articulable facts to justify the stop and carry its burden.
23 First, the majority erroneously concludes that United States v. Lopez-Tubac, 943
F.3d 1156 (8th Cir. 2019), is consistent with this case. In Lopez-Tubac, an ICE officer had
a reasonable suspicion an individual was illegally in the United States where the officer
knew, among other things, that the individual had been recently arrested while driving a
car that was registered in another person’s name, which, according to the ICE officer, was
a “common tactic of individuals who illegally reenter the United States.” Id. Here, there is
no evidence Rosario-Azamar had been arrested while driving someone else’s car, nor was
there any testimony at the suppression hearing linking any of Rosario-Azamar’s observed
behaviors to illegal reentry.
Next, the majority errs in citing United States v. Spencer, 646 F. App’x 6 (2d Cir.
2016) (unpublished summary order). In Spencer, the Second Circuit noted that an ICE
officer’s reasonable suspicion of illegal reentry was supported by his review of the
suspect’s immigration file and immigration databases. Id. at 8–9. Of course, the transcript
of the suppression hearing in that case included the following exchange between the
government attorney and the investigating ICE officer:
Q. Did you have an opportunity to review the paperwork contained in his immigration file? A. Yes. Q. And based upon your investigation, were you able to make any determination about his legal status? A. Yes. Q. And what was that? A. He has no status in the United States at this time. Q. Did you observe any removal or deportation paperwork in his alien file? A. Yes.
United States v. Spencer, 6:13-cr-06027, ECF No. 33, Tr. 41:2-12 (W.D.N.Y. 2014).
24 So, the officer in Spencer knew that the suspect had a previous deportation and no
present legal status, and the government established each of these facts individually rather
than inferring that a past deportation implies no present legal status. Accordingly, whether
the officer in Spencer made an unreasonable assumption of present criminal activity based
solely on deportation history was not before the Second Circuit. Moreover, the line of
questioning in Spencer also suggests that, in the underlying investigation, the ICE officer
even determined the suspect’s legal status separately from confirming a prior deportation,
which further supports that the Government in this case only carried half of its evidentiary
burden. For comparison, here is the same line of questioning between the Government’s
attorney and Holmes:
Q. Okay. Mr. Azamar is a Mexican national? A. Yes. Q. And did he have a prior immigration deportation history? A. Yes, he did. Q. So he had previously been deported? A. Yes, he was. Q. And you learned that information from Officer Olcott? A. Yes, I did. Q. Okay. And if Mr. Rosario-Azamar was in the United States, would that have any kind of legal implications? A. It would be a violation of 8 U.S.C. 1326, illegal reentry, which is a felony.
J.A. 70-71.
Finally, the majority cites United States v. Salas-Avalos, 459 F. App’x 318 (5th Cir.
2012), which has almost nothing in common with this case. The defendant in Salas-Avalos
was an alien who challenged a vehicle stop, but that is where the similarity with this case
ends. To begin, the ICE agents in Salas-Avalos had linked the defendant’s residence “with
a telephone number that was used in an alien smuggling scheme.” Id. at 320. And, unlike
25 the gold Toyota Camry in this case, which Holmes and Olcott had observed Rosario-
Azamar and others using to carpool to work at a restaurant, the automobile in Salas-Avalos
had been pulled over and found carrying two undocumented aliens a day prior to the
challenged stop. Id. And on the day of the stop, the ICE agents saw the truck, recognized
the driver, and watched the truck stop at defendant’s residence and later “discharge[] four
to six passengers.” Id. On those facts—none of which remotely resemble the facts in the
record before us—it is unsurprising that the Fifth Circuit held that it was reasonable to stop
the truck.
Rather than support the majority’s position, our precedent instead shows the dangers
of using a prior deportation to support “reasonable” suspicion. This Court has broadly held
that, in most instances, “[a] prior criminal record is not, standing alone, sufficient to create
reasonable suspicion.” United States v. Powell, 666 F.3d 180, 188 (4th Cir. 2011) (quoting
United States v. Foster, 634 F.3d 243 246-47 (4th Cir. 2011)) (alteration in original). This
is for good reason. “If the law were otherwise, any person with any sort of criminal record
. . . could be subjected to [an] investigative stop by a law enforcement officer at any time
without the need for any other justification at all.” Id. (quoting United States v. Laughrin,
438 F.3d 1245, 1247 (10th Cir. 2006)) (alteration in original).
That is what happened here. When the officers stopped Rosario-Azamar, they had
no concrete facts connecting him to any ongoing immigration violation. They simply knew
that he had been deported in the past and, from that single fact, concluded that he had
26 returned to the country illegally. The Government relies on that thin reed to carry its case,
but it is not enough.
Moreover, the problem here is even more acute than in the traditional case where
officers make unfounded assumptions based on criminal histories because deportation is a
civil proceeding. If we may not permit officers to conduct warrantless stops simply because
an individual has a criminal record, see Powell, 666 F.3d at 188, then surely we may not
permit officers to stop anyone with a civil deportation record. Indeed, if a deportation
history alone justifies stopping an individual, then there is nothing that person can do to
avoid being stopped. Rather, under the majority’s reasoning, individuals may be subject to
suspicionless stops for the rest of their lives simply because they were once subject to a
civil deportation order. That troubling result is why the Fourth Amendment requires a
particularized factual basis giving rise to a reasonable suspicion of ongoing criminal
activity with respect to an individual. The facts of this case simply do not meet that
standard, and therefore I must dissent.