United States v. Soto-Cervantes

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 13, 1998
• Docket: 97-2019
• Status: Published

Opinion

F I L E D United States Court of Appeals Tenth Circuit PUBLISH MAR 13 1998 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 97-2019

GUADALUPE SOTO-CERVANTES,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D. Ct. No. 96-CR-277-JP)

Jerry A. Walz, Albuquerque, New Mexico, for Defendant-Appellant.

Fred J. Federici, Assistant U.S. Attorney (John J. Kelly, United States Attorney, and James D. Tierney, Assistant U.S. Attorney, on the briefs), Office of the United States Attorney for the District of New Mexico, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before TACHA, HENRY, and LUCERO, Circuit Judges.

TACHA, Circuit Judge.

Defendant Guadalupe Soto-Cervantes was charged in the United States

District Court for the District of New Mexico with reentering the United States after being deported subsequent to conviction of an aggravated felony, in

violation of 8 U.S.C. §§ 1326(a) and 1326 (b)(2). Defendant filed a motion to

suppress documentary evidence (specifically, a resident alien card) and/or dismiss

the indictment. The district court denied the motion. The defendant entered a

conditional guilty plea, reserving the right to appeal the district court’s denial of

his motion to suppress. We exercise jurisdiction under 28 U.S.C. § 1291 and

affirm.

BACKGROUND

At approximately 12:45 p.m. on May 9th, 1996, Bernalillo County Sheriff’s

Deputies Mickey Phalen and Dave West were dispatched to 517 Sunnyslope

Southeast on the basis of an anonymous tip that drug distribution activity was

occurring at that location. The anonymous caller had stated that the drug activity

involved Mexican nationals and a grey pickup truck. The 500 block of

Sunnyslope and the surrounding area is known for drug activity; Deputy West

himself had assisted in the execution of a search warrant in that block in the

previous month. At the scene, the two deputies observed a group of four or five

individuals scattered around an adobe wall and four vehicles, including a grey

truck, parked in the street nearby. As the deputies arrived, one of the individuals

(not the defendant) quickly walked behind the wall and then returned moments

later. Deputy Phalen looked behind the wall but found nothing. Two more

-2- deputies, Ross Baca and Louis Holguin, arrived. Deputy Holguin patted down

each of the individuals for weapons. No weapons or contraband were found on

the defendant. The officers asked the men to produce identification. The

defendant and one other individual produced alien registration cards, while two

individuals said they did not have identification on them. One of the individuals

without identification told Deputy Holguin that he was in the United States

illegally. 1 The defendant and his companions appeared nervous while they were

being questioned about their identification. The officers ran an NCIC check on

defendant’s identification card. That check came back negative, showing that

there were no outstanding warrants for his arrest. In Deputy Holguin’s

experience, approximately 50 percent of alien registration cards shown to him

have turned out to be fake. Deputy Holguin recommended that immigration

officers be called in, and at about 1:08 p.m., one of the deputies placed a request

for Immigration and Naturalization Service (INS) agents to come to the scene.

INS Agent Joseph Garcia arrived approximately twenty minutes later, at about

1:30. In the meantime, the deputies continued to search the immediate area and

found a scale, three heroin cookers, several baggies, and a used syringe. Some of

1 The defendant argues that none of the individuals admitted being in the country illegally until later, when the INS agent arrived on the scene. As we discuss later in this opinion, however, we do not rely on the individual’s alleged admission of illegal status in determining that the officers had reasonable suspicion for detaining the defendant. Thus, any factual dispute on this point is irrelevant.

-3- these items appeared to have been there for a while—at least since the previous

day. The deputies did not make any drug arrests. After Agent Garcia arrived, he

examined the defendant’s identification card and noticed a suspicious discrepancy

between the numbers on the front and back of the card. He became more

suspicious upon noticing that the card had been issued three times, suggesting that

the defendant previously had been deported. Agent Garcia previously had

received reports that there were “drop houses”—that is, houses where illegal

aliens stay temporarily after crossing the Mexican border—in the area of the 500

block of Sunnyslope. He ran an immigration check and discovered that the

defendant previously had been deported following a conviction for an aggravated

felony. The defendant was arrested between 1:45 and 1:50.

DISCUSSION

The defendant seeks the suppression of the alien registration card, arguing

that it was the fruit of an illegal detention. On appeal from the denial of a motion

to suppress, we accept the factual findings of the district court unless they are

clearly erroneous. See United States v. Botero-Ospina, 71 F.3d 783, 785 (10th

Cir. 1995) (en banc). “The ultimate determination of reasonableness under the

Fourth Amendment, however, is a question of law which we review de novo.” Id.

We agree with the district court, and with the parties, that the detention

here should be treated as an investigative detention. See United States v. Davis,

-4- 94 F.3d 1465, 1468 (10th Cir. 1996) (describing investigative detention as a

seizure “of limited scope and duration”). To determine whether an investigative

detention was constitutionally permitted, we must ask both “whether the officer’s

action was justified at its inception, and whether it was reasonably related in

scope to the circumstances which justified the interference in the first place.”

Terry v. Ohio, 392 U.S. 1, 20 (1968). A law enforcement officer may stop and

briefly detain a person for investigative purposes “if the officer has a reasonable

suspicion . . . that criminal activity ‘may be afoot.’” United States v. Sokolow,

490 U.S. 1, 7 (1989). Once the concern that justified the initial stop is dispelled,

further detention will violate the Fourth Amendment unless the additional

detention is supported by a reasonable suspicion of criminal activity. See United

States v. Alarcon-Gonzalez, 73 F.3d 289, 292-93 (10th Cir. 1996). In other

words, reasonable suspicion must exist at all stages of the detention, although it

need not be based on the same facts throughout.

An officer must be able to point to “specific and articulable facts” to

support a finding of reasonable suspicion; an “inchoate and unparticularized

suspicion or ‘hunch’” is insufficient. Terry, 392 U.S. at 21, 27. “Whether . . . an

investigative detention is supported by an objectively reasonable suspicion of

illegal activity does not depend on any one factor but on the totality of the

circumstances.” United States v. Soto, 988 F.2d 1548, 1555 (10th Cir. 1993).

-5- Like the district court, we address the defendant’s detention in three stages.

1. Initial Detention on Suspicion of Drug Activity (12:45 - 1:08)

The defendant first argues that the officers lacked the requisite reasonable

suspicion to justify his initial detention, which lasted approximately twenty

minutes while the officers investigated possible drug activity. We concur with

the district court’s conclusion that the officers had reasonable suspicion for this

period of the detention. We disagree, however, with the district court’s reasoning

on this point.

The officers had received a tip that included several specific pieces of

information. The tip named a particular address, described a group of men, and

identified a particular vehicle. When the officers arrived at that address, they

verified the presence of the men and the vehicle described by the tipster. While

the verification of those facts may have increased the officer’s confidence in the

tipster’s information, it did not provide enough reasonable suspicion by itself to

justify the stop. We disagree with the district court’s statement that “since the

tipster’s assertions [about the men and the car] were substantially corroborated,

the claim regarding participation in criminal activity was probably also true.”

United States v. Soto-Cervantes, No. 96-277-JP, slip op. at 9 (D.N.M., Sep. 2,

1996). The district court cited Alabama v. White, 496 U.S. 325 (1990), and

United States v. Elkins, 70 F.3d 81 (10th Cir. 1995), for its conclusion. In Elkins,

-6- “several weeks of observation and independent investigation” by detectives

corroborated the information in the tip, Elkins, 70 F.3d at 83, while in White, the

tip was deemed reliable largely because the tipster accurately predicted a third

party’s future actions, see White, 496 U.S. at 332. These critical circumstances

were not present in this case.

The tip here was too general to support reasonable suspicion by itself. “A

confidential tip may justify an investigatory stop if under the totality of the

circumstances the tip furnishes both sufficient indicia of reliability and sufficient

information to provide reasonable suspicion that criminal conduct is, has, or is

about to occur.” United States v. Leos-Quijada, 107 F.3d 786, 792 (10th Cir.

1997) (citing White, 496 U.S. at 328-330, and Elkins, 70 F.3d at 83) (emphasis

added). The verification of facts readily observable to anyone on the street,

without more, is insufficient to support a reasonable suspicion that criminal

conduct is occurring. The fact that the tipster accurately described a particular

group of men does not, as the district court suggested, mean that the tipster also

was correct that the men were engaged in drug dealing. On the other hand, police

are not required to ignore allegations of criminal activity. Although the tip in this

case was not sufficiently reliable to support reasonable suspicion by itself, we

will treat the tip as a factor to be considered. At minimum, the tip allowed the

officers to identify the men before them as those alleged to be dealing drugs. The

-7- tip, when combined with other factors, justified the officers in a brief

investigation detention to investigate the allegations of drug activity.

Looking at the totality of the circumstances, then, we find that the requisite

reasonable suspicion was present. Deputy West knew that drug activity was not

uncommon in the neighborhood. While the fact that an individual is in a

neighborhood known for drug activity is not sufficient by itself to support a

reasonable suspicion that the individual himself is engaged in criminal activity,

see Brown v. Texas, 443 U.S. 47, 52 (1979), it can support a finding of

reasonable suspicion when combined with other factors. See United States v.

Gutierrez-Daniez, 131 F.3d 939, 942-43 (10th Cir. 1997). Moreover, as the

deputies approached, they saw one of the men briefly disappear behind the wall.

Although the officers did not observe the man drop anything behind the wall, we

agree with the district court that the action could support an inference that the

man had left to hide something upon spotting the officers. The tip, the

neighborhood’s reputation, and the man’s action combined to give the officers

reasonable suspicion to detain the men long enough to determine whether they

were in fact engaging in drug activity.

Our next inquiry then, is whether the officers detained the men longer than

necessary to confirm or dispel their suspicions regarding drug activity. See Terry,

392 U.S. at 19-20 (stating that scope of investigative detention must be

-8- reasonably related to circumstances which justified interference in the first place).

The men were detained for approximately twenty minutes while the officers

searched the area, patted them down, and asked for identification. 2 This length of

time was not unreasonable. See United States v. Sharpe, 470 U.S. 675, 686-88

(1985) (finding that 20-minute delay was not inherently unreasonable). There is

no evidence that the police took more time than was necessary to investigate the

suspected drug activity; they diligently pursued a means of investigation that was

likely to confirm or dispel their suspicions quickly.

2. Detention Until Arrival of INS Agent (1:08 - 1:30)

Although the defendant had produced an identification card, the deputies in

this case were justified in detaining him until they could verify that the card was

genuine, even though they no longer suspected him of illegal drug activity.

Deputy Holguin testified that he knew alien registration cards were easy to fake

and that he was aware of a high rate of fake documentation (approximately 50

percent, in his experience, turned out to be fake). He further testified that he did

not have the expertise to determine whether the defendant’s identification card

was genuine or fake, so he and the other deputies requested the assistance of INS

officers to determine whether the card was genuine. Under these circumstances,

2 The defendant conceded at the suppression hearing that the pat-down and the requests for identification were permissible if the court determined that the detention was supported by reasonable suspicion.

-9- the fact that the documentation did not appear to the deputies to be obviously fake

does not prevent them from calling in the INS agents to make a more experienced

evaluation. By calling INS agents to the scene, the officers were pursuing a

means of investigation that was likely to confirm or dispel their suspicions

quickly. The fifteen to twenty minute detention necessary to allow INS officers

to reach the scene was not unreasonable. See Sharpe, 470 U.S. at 686-88.

We agree with the government that other circumstances also supported a

reasonable suspicion that the defendant might be in the country illegally.

Specifically, the defendant’s presence in an area known to be frequented by

illegal aliens from Mexico, his nervousness upon being asked for identification,

and Deputy Holguin’s knowledge of the high rate of fake documentation gave the

officers reasonable suspicion that the defendant may have been in the country

illegally. A neighborhood’s reputation for housing illegal immigrants alone

cannot support a finding of reasonable suspicion as to an individual found in that

neighborhood, see Brown, 443 U.S. at 52, but it is a relevant factor to be

considered, see Gutierrez-Daniez, 131 F.3d at 942-43 (finding that police

officer’s knowledge that drug dealers and illegal immigrants congregated in a

particular area could be considered, along with more particularized factors, to

support reasonable suspicion). In the same vein, a defendant’s nervousness is not

enough, without more, to support a finding of reasonable suspicion, see United

- 10 - States v. Hall, 978 F.2d 616, 621-22 & n.4 (10th Cir. 1992), but it too is not

entirely irrelevant, see Gutierrez-Daniez, 131 F.3d at 943. Looking at the totality

of the circumstances, we find that the officers possessed the requisite reasonable

suspicion to detain the defendant for an immigration check even though their drug

inquiries were complete.

We note that the officers apparently decided to detain the entire group of

four or five individuals, including the defendant, to verify their identification and

immigration status in part because two of the men in the group lacked any

identification and one of them admitted that he was in the country illegally. We

decline to base the reasonableness of the defendant’s detention on the actions or

status of the other men in his group and rely instead on the circumstances

discussed above. See Whren v. United States, 116 S. Ct. 1769, 1774 (1996)

(noting that subjective intent of officer does not invalidate otherwise lawful

conduct).

Defendant argues that once the NCIC check came back negative, he

should have been allowed to leave. However, the NCIC report only informed the

officers that there were no outstanding warrants for the defendant. It did not

provide any information regarding immigration status. Therefore, the officers

were not required to let him go on the basis of the negative NCIC report.

- 11 - 3. Detention after the Arrival of the INS Agent (1:30 - 1:50)

Finally, the defendant contends that his continued detention after the arrival

of the INS agent was unreasonable. This claim also is without merit. Upon

arriving at the scene, the INS agent diligently pursued a means of investigation

that was likely to confirm or dispel their suspicions quickly, which made the brief

wait constitutionally acceptable. See Sharpe, 470 U.S. at 686-88. Upon arriving,

the agent examined the card and noted an apparent discrepancy. 3 The agent also

noted the card had been issued multiple times, which suggested that the defendant

previously had been deported. These factors justified further detention of the

defendant for a reasonable amount of time while his immigration status was

verified. The agent ran an immigration check, and the report of defendant’s

illegal status reached the agent within fifteen or twenty minutes. There is no

evidence that this INS immigration check took an unusual or unreasonable amount

of time.

CONCLUSION

For these reasons, we AFFIRM the district court’s denial of defendant’s

motion to suppress.

3 Agent Garcia testified that he later determined the card was invalid due to defendant’s earlier deportation, but it was not a fake. The fact that he ultimately learned it was not a fake, however, does not mean that the agent’s initial suspicions regarding the card were unreasonable.

- 12 -