United States v. Mendez-De-Jesus

• Court: Court of Appeals for the First Circuit
• Decided: May 30, 1996
• Docket: 95-2063
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit

                                 ____________________


No. 95-2063



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                           JOSELYN ANTONIO MENDEZ-DE JESUS,



                                Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jose Antonio Fuste, U.S. District Judge]
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                                 ____________________


Before



                               Torruella, Chief Judge,
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                            Coffin, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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Vilma Maria Dapena, Assistant Federal Public  Defender, with
               __________________

          whom  Benicio Sanchez  Rivera,  Federal Public  Defender, was  on
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          brief for appellant.

               Jose  F. Blanco-Torres,  Assistant  United States  Attorney,
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          with  whom Guillermo  Gil, United  States Attorney,  and Jose  A.
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          Quiles, Senior Litigation Counsel, were on brief for appellee.
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                                 ____________________



                                     May 30, 1996

                                 ___________________



COFFIN,  Senior Circuit  Judge.   Defendant Jocelyn  Antonio
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          Mendez-de  Jesus entered  a  conditional plea  of  guilty to  re-



          entering  the United States after being  deported subsequent to a



          felony conviction,  8 U.S.C.    1326(a)  & (b)(1), reserving  his



          right  to appeal  the district  court's denial  of his  motion to



          suppress his  identification and immigration record.   Finding no



          error below, we affirm.



                                      BACKGROUND



               Three  boats  carrying  illegal aliens  from  the  Dominican



          Republic landed in  the vicinity  of Rincon, Puerto  Rico in  the



          late hours of December  12 and early hours of December  13, 1994.



          On the morning of  December 13, two private citizens  brought the



          defendant  and an unknown female to the police station in Rincon.



          Border  Patrol   Agent  Hector   Lugo  of  the   Immigration  and



          Naturalization  Service  (INS)  was  there already  in  order  to



          interview persons  who had been  picked up  from the boats.   The



          citizens  reported to Lugo  that the defendant  and his companion



          were not known to them and appeared to be lost.



               Lugo  suspected that  the  female passenger  was an  illegal



          alien:  she had damp and dirty clothing, ragged hair, and an odor



          associated  with urine and defecation  on boats.   Mendez, on the



          other hand,  did  not  give the  impression  of  having  recently



          arrived   illegally  via   boat.     He  appeared   tidy,  denied



          understanding Spanish and told  Lugo that "I'm from here."   Lugo



          commenced  questioning  the  woman,  who,  instead of  answering,



          continually  looked at Mendez.  Lugo asked if she knew Mendez and


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she responded  affirmatively.   Mendez also  acknowledged knowing



          the  woman,  saying that  they  met  in the  Dominican  Republic.



          Eventually,  the  woman admitted  that  she  entered Puerto  Rico



          illegally that morning.  



               At that time, Lugo asked  Mendez for identification and  was



          given his  resident alien registration  card.  He  brought Mendez



          inside  the  station  and,  while awaiting  verification  of  the



          registration card, began interrogating  him.  Shortly thereafter,



          he received information that Mendez had previously been deported.


The district court denied  Mendez's motion to suppress, but,



          on  his  motion  for  reconsideration,  found  that  Lugo  lacked



          probable  cause to  further  detain or  interrogate Mendez  after



          receiving his  alien registration card and, therefore, suppressed



          all statements  made thereafter.   The court refused  to suppress



          the card itself or the corresponding  INS records that documented



          his previous deportation.   



                                      DISCUSSION



          A.   Standard of Review 
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               Our review of a district court's decision to grant or deny a



          suppression motion  is plenary.   United States  v. McCarthy,  77
                                            _____________     ________



          F.3d 522, 529 (1st Cir. 1996).  We scrutinize the court's factual



          findings, including credibility determinations, for  clear error,



          United States v.  Valle, 72  F.3d 210, 214  (1st Cir. 1995),  and
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          will  uphold a denial  of a motion to  suppress if any reasonable


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view  of the evidence  supports it.   United States v.  de Jesus-
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          Rios, 990 F.2d 672, 677 (1st Cir. 1993).  
          ____


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B.   Fourth Amendment Claims
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               In an effort  to invoke the exclusionary  rule, Lugo alleges



          two  violations of the Fourth Amendment.  First, he contends that



          he  was illegally  arrested and  brought to  the  police station.



          Second,  he argues  that  Lugo's request  for his  identification



          constituted an unconstitutional seizure.



               We  can  quickly dispose  of the  first  issue.   Mendez was



          brought to the police station by two private citizens.  While the



          seizure of Mendez may  have assisted the government, there  is no



          suggestion that  the government initiated or  participated in the



          citizen  action.   In  the absence  of  governmental action,  the



          Fourth  Amendment does not apply.   See Skinner  v. Railway Labor
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          Executives'  Ass'n, 489  U.S. 602,  614 (1989)  (Fourth Amendment
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          does not apply to  private action unless private party  "acted as



          an instrument  or agent  of the  Government");  United States  v.
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          Jacobsen, 466 U.S. 109, 113 (1984).
          ________



               Mendez's alternative claim fares no better.  He contests the



          court's finding  that Lugo's authority to  ask for identification



          derived  from 8  U.S.C.     1357(a)(1),  which provides  that  an



          immigration  officer may, without warrant, "interrogate any alien



          or person believed to  be an alien  as to his right  to be or  to



          remain in the United States."  In support, he cites the principle



          that an  individual  may not  be detained  for questioning  about



          citizenship  absent reasonable  suspicion that  the person  is an



          illegal alien, see United States v. Brignoni-Ponce, 422 U.S. 873,
                         ___ _____________    ______________



          884  (1975), and  points  to Lugo's  testimony  that he  had  the


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impression that Mendez was  a United States citizen.   While this



          particular argument concerning the  applicability of   1357(a)(1)



          is not  without force, it  is ultimately  unavailing because  the



          court's findings  clearly  demonstrate that  Lugo had  reasonable



          suspicion that Mendez was violating the immigration laws.



               It is well settled that, based on reasonable and articulable



          suspicion, an  officer may  make a  brief stop or  seizure of  an



          individual  to investigate  suspected  past  or present  criminal



          activity.    McCarthy, 77  F.3d at  529.1   The  determination of
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          whether  an  officer  acted  reasonably requires  two  subsidiary



          inquiries:   1) whether the officer's action was justified at its



          inception; and 2) whether the action taken was reasonably related



          in scope to  the circumstances justifying the interference in the



          first place.  Id. at 530 (citing Terry v. Ohio, 392 U.S. 1, 19-20
                        __                 _____    ____



          (1968)).    This  determination   demands  examination  into  the



          totality of the circumstances confronting the officer at the time



          of the stop.  Id.
                        ___



               Lugo testified that, at the time of his request for Mendez's



          identification, he was aware that 1) three boats carrying illegal



          aliens had  arrived in the area within  the previous 24 hours; 2)

                              
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               1  In INS  v. Delgado, the Court stated  that "interrogation
                     ___     _______

          relating to one's identity or a request for identification by the

          police  does  not,  by  itself,  constitute  a  Fourth  Amendment

          seizure."  466  U.S. 210, 216 (1984).   The Court added, however,

          that such an encounter  may constitute a detention or  seizure if

          "the  circumstances . . .  are so intimidating  as to demonstrate

          that a reasonable  person would have believed he was  not free to

          leave if he had not responded."  Id.  Though perhaps unnecessary,
                                           ___

          for  purposes of this case  we will assume  without deciding that

          the  circumstances surrounding Lugo's  request for identification

          constituted a seizure under the Fourth Amendment.  



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Mendez and a woman  had been brought  to the station by  citizens



          who reported that the  couple looked lost and unfamiliar;  3) the



          woman appeared to be an illegal alien, though  Mendez did not; 4)



          when  asked questions the woman looked to Mendez for guidance; 5)



          Mendez  and the  woman admitted  knowing each  other; and  6) the



          woman  admitted to  being  an illegal  alien.2   Lugo  maintained



          that, based on these  circumstances, he believed that  Mendez was



          assisting the woman in violation of the immigration laws.



               The  court  credited  this  testimony  and  determined  that



          "[t]hese  discoveries  and   observations  further  supported   a



          reasonable  suspicion of  alienage  and formed  the  basis for  a



          suspicion  of illegal assistance."   We agree.   In this context,



          Lugo's request  for identification  was a reasonable  and minimal



          intrusion directly related to his suspicions, and did not violate



          the  Fourth Amendment.    As such,  the  district court  properly



          denied  Mendez's  motion  to   suppress  his  identification  and



          immigration record.3

                              
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               2  Mendez lodged hearsay objections to Lugo's account of the

          woman  looking at  Mendez and  her statement  that she  knew him,

          which were  properly overruled.   The look was  nonverbal conduct

          not intended as  an assertion,  and both the  look and  statement

          were  offered  for their  effect on  Lugo's understanding  of the

          unfolding  events -- i.e., his reasonable suspicion -- and not to

          prove that  the woman and  Mendez actually  knew each other.   As

          such, his  account was not hearsay.   See Fed. R.  Evid. 801(a) &
                                                ___

          (c).



               3   The district court alternatively found that, even in the

          face of a Fourth Amendment violation, the "body" or identity of a

          defendant is never  suppressible.  See INS  v. Lopez-Mendoza, 468
                                             ___ ___     _____________

          U.S. 1032, 1039  (1984); United States  v. Orozco-Rico, 589  F.2d
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          433, 435 (9th  Cir. 1978).   Because we find no  Fourth Amendment

          violation, at least up  to the point that Lugo  received Mendez's

          alien registration card, we need not address this conclusion.



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Affirmed.
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