United States v. Franco Antonio Alarcon-Gonzalez

America, UNITED STATES of

Plaintiff-Appellee, ALARCON-GONZALEZ,

Franco Antonio

Defendant-Appellant.

No. 95-1209. Appeals,

United States Court of

Tenth Circuit. 4, 1996.

Jan. to denying suppress

district court his motion questioning by evidence. contends the He Immigration and Naturalization Service (INS) agents to his a led arrest was unsupported suspicion. seizure agree, and and We reverse remand with directions.

Alarcon-Gonzalez, and a native citizen of Salvador, El convicted of sale trans- and portation of cocaine California deported agents to El Salvador. INS on arrested Alarcon-Gonzalez November working as a while he was roofer on Aurora, job site Colorado. building inspectors

Aurora in- code had they suspected formed INS that several roof- city ing companies working in the had em- ployed illegal inspectors aliens because the speak had encountered roofers who did not English spoke or with an who accent. The inspectors provided companies a list of those to INS. was also informed that some INS job vehicles at sites had Texas license plates. agents regarded this as INS a factor indicating illegal presence of aliens be- major after cause hail storm sever- roofing companies illegal al local had hired plates. aliens whose vehicles had Texas planned “Operation Shingle,” INS in which of teams and Aurora offi- INS roofing companies cers would contact in the to if employing area determine illegal limit the scope aliens. INS did not of investigation roofing compa- of its to the list Szekely, Assistant Federal Public Charles provided by building inspec- nies Aurora (Michael Defender, Denver, Colorado G. go job tors. The instructed to teams were to Katz, Defender, him Federal Public with on permission sites and foremen for to ask brief). speak immigration about their workers Graf, Attorney, Gregory Assistant U.S. C. Agents speak status. were instructed to Denver, (Henry Solano, L. Colorado regardless apparent all workers nationali- brief). Attorney, him on the with ty ethnicity inqui- and to make no further ry permission if a foreman refused or a roof- BRISCOE, SETH, LUCERO, Before questions. “Operation er refused to answer Judges. Circuit Shingle” approximately teams contacted people on November arrested BRISCOE, Judge. Circuit Hispanic appearance. all of whom were Franco Antonio Alarcon-Gonzalez entered reentering plea guilty morning “Op- On the of November the United deportation felony Shingle” for a eration team saw States after convic- Alarcon-Gonzalez (8 1326(a) man, Careamo-Perez, (b)(1)), § tion re- and another Cesar U.S.C. standing by driveway in the right appeal served a truck order compa appeal In an being reroofed.1 The from the denial of a that was home truck, suppress, motion to view ny on the side of the “CLM we the evidence named company in the Roofing,” light government was not a included most favorable to the building roofing companies findings the Aurora and we review the district court’s list of only However, inspectors given had to INS. The team fact for clear error. stopped its two INS vehicles and one Aurora court’s conclusions as to seizure oc car, eight police patrol supported by and four to armed and curred and whether it was rea got ap suspicion out and sonable uniformed team members are reviewed de novo. The ultimate determination proached the two men. of reasonableness un Fourth der the Amendment is also reviewed reaching into the Careamo-Perez Carhee, de novo. United States v. Apparently shingle gun. to unload a truck 1493, 1496-97 believing weapon, it to be a one of the team commanded Carcamo-Perez members Alarcon-Gonzalez contends he was “freeze,” complied. and he Alarcon-Gonza- subjected to a Fourth Amendment seizure lez understood the command to be directed yelled when one of the team “freeze” as the Carcamo-Perez, not feel free to at but did approached team and asked Carcamo-Perez leave; away from Car- he was five feet immigra and Alarcon-Gonzalez about their agents approached and camo-Perez. INS government argues tion status. The the en put equipment asked Carcamo-Perez to implicate counter was consensual and did not down, did, slowly. agent An asked which he the Fourth Amendment at all. if it item that he was an Carcamo-Perez The district court did not hold that normally roofing. Agents use while encounter was consensual. The court ruled themselves and asked Carca- then identified the command to “freeze” was de minimis about their mo-Perez Alarcon-Gonzalez personal liberty intrusion on that did not immigration status. Carcamo-Perez convert encounter into an unconstitution- they El replied Alarcon-Gonzalez were from seizure, al and concluded there was reason- and that their documents were at Salvador suspicion questioning able for the brief check, The in a records home. called Alarcon-Gonzalez. revealed that had which Alarcon-Gonzalez deported sought previously been and had not government’s argument The that permission country. Both reenter questioning that followed the command to the men were arrested and taken INS to “freeze” was consensual is without merit. weap- office. The did not draw their officers police A brief encounter with an individual time, any no ons at and there was evidence can be a detention under the Fourth Amend they touched either Alarcon-Gonzalez or ment if “the circumstances of the encounter placed until Careamo-Perez under intimidating that a are so as to demonstrate arrest. person would have believed he denying suppress, respond not free to leave if he had not the motion to the was rejected Immigration district court Alarcon-Gonzalez’s ar- ed.” & Naturalization Service 210, 216, gument Delgado, that the command to “freeze” con- v. A

verted the encounter into an unconstitutional 80 L.Ed.2d 247 seizure oc seizure, holding justified response it was a curs when consideration of all the circum perceived safety surrounding and a mere de the encounter shows threat stances liberty personal police minimis intrusion into the that the conduct would have communi Alarcon-Gonzalez and Carcamo-Perez. The cated to a reasonable that he or she police requests not free to decline the officer’s court also concluded the encounter was Flori with Alarcon-Gonzalez was based on reason- or otherwise terminate the encounter. Bostick, 429, 434, 439, suspicion able that he was involved crimi- da v. (1991); activity. nal evidence, truck 1. The record does not establish whether the ted into which indicated the had argument, plates. photographs plates. truck had Texas At oral coun- Colorado These were not appeal. photographs sel stated of the truck were admit- included in the record on Lambert, an illegal cion Alarcon-Gonzalez Cir.1995). Although a Fourth court found that offi- alien. district 1067-68 simply reasonably not yelled does occur Amendment seizure cer who “freeze” believed approaches an indi- reaching weapon. officer for a because a Carcamo-Perez was questions, that was argues vidual and asks few that in the absence Alarcon-Gonzalez what here. shingle gun, occurred describing the of evidence determining the is no basis for reasonable- may not have intended the team that the belief tool was a ness officer’s nonconsensual detention questioning to be a weapon. seizure, of all the cir consideration that a compels conclusion cumstances However, or not the whether command to po person Alarcon-Gonzalez’s reasonable justified immaterial “freeze” was is because free have felt to leave after sition not its effect was to turn the encounter that eight to and the of four armed approach It followed into a nonconsensual seizure. agents and police uniformed officers INS must have that been obvious Carcamo-Perez An the order to freeze command to “freeze.” roofing gun a not a had tool and when the to suspects that are not free communicates Agent questioning began. Castillo described to leave effect a seizure. and is sufficient large staple gun,” it “a “equipment” as 54, Stanley, F.2d 56 v. 915 United States and did question not Carcamo-Perez further (1st Cir.1990). by police A a offi command asking roofing it him if it was a about after intimidating. It carries cer to “freeze” is “freeze,” Following tool. the command to to use force if the implied with it an threat agents say anything or do did not to disobeyed. command is communicate to Carcamo-Perez and Alar- Although knew the com- Alarcon-Gonzalez they go, that were free to con-Gonzalez directed at Carcamo- mand to “freeze” was attempt otherwise to undo the effect Perez, free to leave. The two he did not feel Instead, they command to “freeze.” imme- apart, feet and were five roofers were diately began questioning the men two together. obviously working Under these immigration their about status. See United circumstances, the command would communi- Gonzalez, v. 763 F.2d States 1133 persons cate that were not free to both (10th Cir.1985) (consent given by to search encounter. See United terminate the grounds for detained driver after detention (10th King, F.2d 1556 States v. 990 dissipated had where held invalid officer did Cir.1993). person in A Alarcon- reasonable not inform free to driver he was leave be- not he position would have believed Gonzalez’ consent). obtaining fore Cf. questioning was that fol- free to leave. (10th Werking, v. 1408-09 was not result of a lowed the command Cir.1990) (continued questioning after officer encounter, Delga- seizure. consensual returning by terminated detention driver’s do, distinguishable in that supra, is because consensual). registration license and was given no questioned case were the workers agents restricting reason to believe concern that The initial Carcamo significant any way. The their freedom might gun justify Perez have a could not an nothing agents coercive Delgado did as investigatory questioning for detention about intimidating as the command to “freeze” immigration investigatory An status. deten case. this reasonably in scope tion must related be justified the stop the circumstances which contends his deten Alarcon-Gonzalez place. Sharpe, the first States v. See United immigration his questioning tion about for 1568, 1574-75, 470 U.S. by supported reasonable sus status was Ohio, (1985); Terry v. picion, argues he was and he detained 1, 19-20, 1868, 1878-79, 20 L.Ed.2d questioned Hispanic solely because his gun The concern about was appearance. government argues that completely dispelled questioning questioned he before was because Alarcon-Gonzalez which, justified roofer, began. the reason that was with information Once INS, stop dispelled, initial further un- by provided suspi- detention known reasonable suspicion detaining supported Hispanic appearance reasonable violates all roofers of questioning for immigration the Fourth Amendment. See United States on their status. McSwain, They 561-62 Cir. all intended encounters with roofers 1994). An be consensual. unusual combination of simply circumstances turned this encounter The determinative issue is not nothing into a seizure. There was whatsoev- jus the command to “freeze” was whether give er could the INS a reason- tified, was but whether suspecting able basis for that Alarcon-Gon- suspicion to detain Alarcon-Gonzalez and particular might illegal zalez be an alien. questioning Carcamo-Perez for about their There activity. was no visible criminal Nei- immigration status. Facts insufficient ther Alarcon-Gonzalez nor Carcamo-Perez probable may establish cause establish rea anything suggested did that could have he suspicion. probability sonable A fair illegal engaged alien or was otherwise contraband or evidence of a crime will be activity. in criminal The officer’s belief that However, unnecessary. found is therefore reaching weapon Carcamo-Perez was for a must be able to articulate some dispelled questioning began, before the thing unparticu than more an inchoate and nothing and there is at all suspicious about suspicion hunch. There larized or must be unloading roofing roofer tool from a truck objective justification. minimal of some level job at a site. Sokolow, 1, 7-8, United States v. 490 U.S. 1581, 1585-86, 1 109 S.Ct. 104 L.Ed.2d Working totally as a roofer is consistent (1989). with innocence. There was no evidence of any objectively suspicious by act Alarcon- Only stops checkpoints at fixed Compare Gonzalez. United States v. Ledes suspicion is some amount of individualized (10th Cir.1995) ma-Dominguez, 53 F.3d 1159 required investigatory for a brief deten (“masking typically by drug odor” used Massie, tion. See United States v. 65 F.3d smugglers vehicle), supported stop of with 843, Otherwise, 847 there Fernandez, 874, United States v. suspi must be a and reasonable articulable (10th Cir.1994) (no suspi 878-81 reasonable engaged cion that the seized is cion; odor, action, masking no evasive or activity. totality criminal Based on the of contraband). objective other indication of circumstances, detaining the the officers There was no evidence that either Alarcon- particularized objective must have and ba visibly Gonzalez or Carcamo-Perez was ner suspecting person stopped sis for of crim the gave Compare vous or a false name. Reid v. Cortez, activity. inal v. United States 449 438, 440, 2752, Georgia, 448 100 U.S. S.Ct. 411, 417-18, 690, 694-95, U.S. 101 S.Ct. 66 2753-54, (1980), 65 L.Ed.2d 890 with Soko (1981), 923, L.Ed.2d 621 cert. denied 455 U.S. low, supra, Royer, and Florida v. 460 U.S. 1281, (1982); 102 S.Ct. 71 L.Ed.2d 464 Lam 1319, 1326-27, 103 S.Ct. 75 L.Ed.2d bert, supra, at 1069. 229 Nor was there that evidence Here, totality of the circumstances they attempted escape ap or hide when gave agents the INS a reasonable basis for team, proached by “Operation Shingle” suspecting might illegal that some roofers be they displayed anger disgust or that or aliens, give but did not them a reasonable they Compare were detained. United States suspecting basis for that Alarcon-Gonzalez in (10th Lopez-Martinez, v. 25 F.3d 1481 Cir. particular might of be one them. See United 1994), Martin, v. 15 F.3d Brignoni-Ponce, 422 States U.S. 95 Cir.), reh’g on 18 F.3d 1515 aff'd (1975) (apparent S.Ct. 45 L.Ed.2d 607 — U.S. -, 187, 130 cert. denied 115 S.Ct. ancestry occupants Mexican of of car did not Fernandez, (1994), 121 L.Ed.2d with provide suspicion they reasonable were at 878-81. Because there was no visible aliens). illegal activity any objectively suspicious criminal or circumstance, The INS themselves did not believe act or we conclude the deten illegal supported the information had about tion of aliens Alarcon-Gonzalez was not Reid, employed justify supra, as suspicion. roofers was sufficient to 294 2753-54; Supreme opinions The at Lam- Court the several at

bert, person” as supra, at 1069-70. wherein the “reasonable doctrine applied been as discussed to seizure has REMANDED with di- REVERSED and presents separate unusual number guilty rections to vacate Alareon-Gonzalez’s opinions example, in Flori in each ease. For plea. 491, 103 Royer, da v. 460 U.S. S.Ct. (1983), opinions. are five concurring: SETH, Judge, Circuit 210, 104 Delgado, INS v. and remand of this I concur the reversal (1984), majority the first L.Ed.2d would, majority. by the I case as ordered However, opinion using the doctrine. however, following: place on the reversal separate opinions number not necessar do place This encounter took residential ily dispositions conclude that different be Aurora, Colorado, driveway in a lead- area of made. a house set from ing from street to back recurring opinions In these there are Apparently there were no other the street. terms include the of a which consideration officers, present except the De- persons authority,” threatening pres- “show “the fendant, fellow worker. De- Defendant’s officers,” “weapons,” ence of a number roofing helping fendant was to unload com- “uniforms,” “intimidation”, halt,” “an order to four to six officers pany truck. There were generalities as to location. “Circum- driveway up street to the who had come intimidating” stances of the encounter are so obviously police were two cars and what language indicate use of tone of voice Immigration three and Naturalization Ser- compliance might compelled. be officers in uni- vice cars. obviously group armed. form and were considering “totality of the circum- made was a “team” creat- up of officers what conditions, impact stances” the of these listed working interrogate in as ed to men the area examined, present, together if is with the a “roofers.” The connotes cohesive team itself, question whether conduct function, group, a with all each member with person, communicated to a together. the “team” to act This is which leave, person cause a free to such feel up driveway the toward walked the Defen- respond no or to cooperate, feel need to It a dant. must be considered have been feel that he could terminate the encounter. authority.” of It must a “show have been The where took location the encounter presence. must threatening This be taken place always or continued is a factor. Per se by an in together with the shout officer the consequences as to certain locations have “freeze” to be team of intended directed Bostick, 501 been excluded. See Florida v. Defendant) (not who had his the the 2382, 111 115 L.Ed.2d 389 S.Ct. removing stapling hand in the truck a device (1991), Also, passengers. to bus our court as handgun but which looked like a was soon in opinion an excluded what was en banc recognized as a tool. harmless per developing to be a se rule as to encoun- Taking together all circumstances the train passenger ters roomettes or com- there was no consensual encounter at the Little, partments. F.3d United States v. 18 intimidating outset but instead was an chal- 1499 lenge by appearance, the its num- “team” ber, movements, arms, Any obviously gone, the per uniforms and the ver- se rule is challenge. group person” a alive and bal the arrived “reasonable doctrine is still When tool, although may men- question was about the directed well have been asked “seizure,” tioned which to Defendant’s fellow worker. No answer a new definition semantics, may only was received. states that the be one of but indicates The record himself, County captain physical aspect. more team “introduced” but the Brower warmly Inyo, does not “in- 103 record reveal how this 489 U.S. Little, questions apply troduction” We howev- was received. er, physical no here. began with all above because we have seizure apparently then Ward, 961 F.2d present. mentioned We consider United States v.

295 ‘[wjhere (10th Cir.1992), Bloom, States v. test place 1526 United the encounter takes ” (10th Cir.1992), factor, and United one but it is not the one.’ (10th Zapata, 997 F.2d 751 Cir. States v. 1503. at 1993), holding. impact of the Little after Powell, concurring Justice in the result in apparent It is that in those “train encounter Delgado, systematic stated that “the cases,” place in the fact that the incident took public [factory] survey nature of the serve[d] compartment a roomette or cannot be a de any fright to minimize part concern or on the mentioned, terminative factor. As the train employees.” of the lawful 466 U.S. at approaching per opinions were se rule. Supreme S.Ct. at 1767. The Court in Dimick, United States v. 990 F.2d 1164 McCarty, Berkemer v. Cir.1993). opinion The Little en banc made (1984), 82 L.Ed.2d 317 a Miranda all it clear that factors and circumstances case, importance considered the of an en- surrounding an encounter must be consid public place counter in the “reasonable any single being a ered without one determi person” analysis. “public place” A is of factor, relying quoting native on and Bostick place course where the individual is citing par Bloom. Bloom held that the persons view of other than the officers. In place ticular of the encounter is but one Zapata, specifically we stated gen- and as of totality factor of the circumstances. application: eral court Little the stated: “We consider a number factors in determining police-citizen whether a en- rejected explicitly any as “Just Bostick seizure; counter becomes a the location of categorical on the loca- distinctions based encounter, particularly whether the de- police-citizen tion of a encounter on a bus open public place fendant is ‘in an where (inside bus, bus, outside the or in the persons he within the [is] view other so, too, lobby), reject bus terminal we officers,’ Ward, than law enforcement argument that the location of encounter 1531; F.2d at ....” (outside train, public on a train in a roomette) coach, 997 F.2d at changed by 756. This was not private or in a is determi- Little. concurring See also Justice Powell Any question. impli- native of the seizure Delgado. private the result place contrary previous cation to the from our compared public place to a was held to be a opinions is overruled.” Ray, factor in United States v. 973 F.2d 840 (footnote omitted). Citing 18 F.3d at 1504 (10th Cir.1992), Ward, and United States v. Bloom, 975 F.2d at n. the Little court 961 F.2d 1526 again question noted the basic view, my In the location where the encoun- person “whether a would believe entirely place ter here took different from that he or she is unable to terminate the Delgado, that in and so different that it must encounter.” 18 F.3d at 1505. The Little importance be a factor of to be added to the court then held the trial court was in entire circumstances. “apparently gave error because it determina- view, my all the when circumstances are weight setting tive to both the roomette together appears it considered that there was specifically the failure to advise Ms. Little no consensual encounter at the In- outset. questions....” that she need not answer stead, by challenge presence there was a F.3d at 1506. team, its actions and the shouted The court Little did not decide whether “private place” command in a as the term is private place distinguished should be from opinions. nothing used the above There is public place, rejected the train original to demonstrate that circum- roomette as the reason for a distinction. Lit- changed during ques- stances before or point, tle cited Bostick on this and stated: tioning. was a “seizure” Thus there applied. the reasonable doctrine is explicitly particu- “Bostick held that the lar location encounter is but one I would order on remand to the trial court ‘totality factor in Suppress of the circumstances’ that Defendant’s Motion to be to withdraw and that he be allowed granted, plea. guilty

his Sanchez, Roger pro

Julian se. Solano, Attorney, Henry L. Paluch, Martha A. U.S. Attor- Assistant Roger SANCHEZ, Petitioner- Julian CO, Denver, ney, Respondent-Appellee. for Appellant, KELLY, TACHA, Before LOGAN Judges. Circuit PERRILL, Respondent- A. William Appellee. LOGAN, Judge. Circuit No. 95-1187. con Petitioner Julian Sanchez was Robert possession food victed in 1981 of unlawful Appeals, United States Court §§ stamps, in violation of 2012 and 7 U.S.C. Tenth Circuit. 2024(b). split sen He was sentenced to Jan. 1996. years suspended imprisonment, tence of five treatment-type months in a institu to four probation. After tion with the remainder on serving petitioner four months placed probation. on end of his Near the period probationary petitioner was convicted possession for and sentenced with intent marijuana.1 distribute Thereafter, petitioner’s probation on the stamp original food was revoked. conviction court judgment The district the revocation expressly prior proceeding noted the sen- imposed years imprison- tence it had “five ment, all but four which was to be months treatment-type served in a fol- institution eight probation years lowed of four months.” Addendum at 1. It then sen- petitioner as tenced follows: “The defendant hereby custody committed to the Attorney his General the United States or representative one authorized for a term of two, year counts one is to as to said term run concurrent to each consecutive other but imposed marijuana to the sentence [on this district.” Id. charge] out of issued sought Petitioner Bureau of to have the one-year Prisons calculate this sentence examining appellate argument. We 1. After rec- ordered submitted oral the briefs without ord, panel unanimously has this determined grant petitioner's pro- motion to be allowed materially argument oral assist the pauperis ceed in forma in order to reach Fed.R.App.P. appeal. determination this appeal. merits of his 34(a); 10th Cir.R. 34.1.9. The case is therefore

Case Details

Case Name: United States v. Franco Antonio Alarcon-Gonzalez

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jan 4, 1996

Citation: 73 F.3d 289

Docket Number: 95-1209

Court Abbreviation: 10th Cir.