Lead Opinion
Jose Hernandez-Mandujano (“Hernandez”) was indicted for and pled guilty to unlawful re-entry
I.
On April 18, 2011, shortly after 10:00 a.m., U.S. Border Patrol Agents Brett Sullivan and Jeremy Taylor stopped Hernandez as he was driving eastbound on Interstate 10 near Lake Charles, Louisiana, approximately 450 miles from the nearest United States-Mexico border crossing. When Hernandez first drove past the agents, they noticed his hands were “locked” on the steering wheel of his white Ford Explorer SUV; his grip was tight and his arms were straight out, and he allegedly did not display the relaxed nature of most drivers. Because the agents believed Hernandez was exhibiting nervous behavior, they began to follow him. As they followed, they noticed Hernandez’s speed dropped from around 70 miles per hour (the posted speed limit) to about 60 miles per hour. Furthermore, when the agents were behind Hernandez, they noticed him talking to the person in the passenger’s seat, but when they pulled alongside Hernandez, the conversation ceased — only to resume again when the agents dropped back.
The agents additionally noticed the car had a Tinkerbell steering wheel cover and, upon checking the vehicle’s license plates, learned the car was registered to a woman, but was not reported stolen, had no out
Thus, based on this stop, Hernandez was charged with one count of re-entry without permission by an alien deported after conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Hernandez filed a motion to suppress all evidence deriving from the war-rantless stop, arguing it did not comport with the definition of an “extended border search” and that the agents lacked reasonable suspicion under Terry v. Ohio,
Hernandez then pled guilty, specifically preserving his right to appeal the district court’s ruling regarding the motion to suppress. He was sentenced to 33 months of imprisonment and three years of supervised release, and was ordered to pay a $100 special assessment. He timely appealed.
II.
In this appeal, we must address whether the agents violated the Fourth Amendment in stopping Hernandez, and, if so, whether we may grant Hernandez’s motion to suppress.
A.
The first question we consider is whether the agents had reasonable suspicion of illegal activity when they stopped Hernandez. In resolving this question, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Soto,
When conducting roving patrols, border patrol agents may temporarily stop a vehicle “only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle’s occupant is engaged in criminal activity.” Id. (quoting United States v. Jacquinot,
The government relies primarily upon the following in arguing that Hernandez’s motion to suppress was properly denied: (1) the agents’ experience; (2) Hernán-
This Court’s decision in United States v. Moreno-Chaparro is particularly instructive in analyzing the case now before us. In Moreno-Chaparro, officers stopped Moreno after he drove past a temporarily closed immigration checkpoint in a black Chevrolet pickup truck. As he passed the checkpoint, Moreno “slowed and appeared surprised to see the patrol car alongside the checkpoint,” but did not make eye contact with the agent. Id. at 631. The agent ran a license cheek and learned the car was registered to a woman in El Paso, Texas. Id. He then stopped Moreno and proceeded to question him and investigate the vehicle. Id.
The court first found the agent lacked reasonable grounds to believe Moreno had come from the border, as the stop occurred 60 miles north of the Mexican border. Id. at 632. It went on to note that, generally, whether a driver looks at an officer should be accorded little weight, because to find otherwise “would put the officers in a classic ‘heads I win, tails you lose’ position.” Id. (quoting United States v. Escamilla,
Moreover, the court declined to conclude the agent had reasonable suspicion because Moreno was driving a Chevy. The court stated that although “the Border Patrol carefully watches ‘Chevys in general,’ it would be manifestly unreasonable to target every Chevrolet pickup truck driven on Texas highways.” Id. Indeed, the court ultimately found the vehicle was “just an average pickup truck,” noting the “agent could not point to anything suspicious about [it].... It contained no visible passengers, it had not been modified in an obvious way, and it was not riding low to the ground as if it were loaded down with people or contraband; it was neither particularly clean nor particularly dirty.” Id. at 632-33 (emphasis in original).
Here, the stop occurred 450 miles from the nearest international border crossing and, plainly, there are no reasonable grounds for assuming Hernandez had come from the border. See id. at 632. Although this factor alone is not controlling, it is vital, id., and, in its absence, “we examine the remaining factors charily.” United States v. Rico-Soto,
Hernandez was stopped on Interstate 10, which is a major corridor for illegal alien-smuggling between cities in Texas, such as Houston, and the East Coast. Rico-Soto,
Next, that Hernandez’s speed slowed considerably upon passing the border patrol agents is unpersuasive in this case. “This is the reaction of any cautious driver and due little weight.” United States v. Samaguey,
Further unavailing is the agents’ argument that Hernandez’s driving of a vehicle registered to a woman supports reasonable suspicion. First, we have previously noted “the obvious, i.e., that it is not unusual for a man to drive a vehicle registered to a woman.” Moreno-Chaparro,
Moreover, the type of vehicle Hernandez was driving was not suspect. Although Agent Sullivan testified that smugglers frequently use SUVs like the Ford Explorer, “it would be manifestly unreasonable to target every” SUV driving on highways between Texas and the East Coast. See Moreno-Chaparro,
Finally, the agents noticed only one passenger, seated in the front passenger’s side seat, who did not make eye contact with the agents and whose conversation with Hernandez stopped when the agents pulled alongside Hernandez, but resumed when the agents dropped back. This observation does not measurably contribute to reasonable suspicion in the absence of any other compelling evidence. We have previously held that “in the ordinary case, whether a driver looks at an officer or fails to look at an officer, taken alone or in combination with other factors, should be accorded little weight.” Id. at 632. Similarly, conversations are subject to natural variation, waxing and waning at irregular intervals. If there were other strong indicators of reasonable suspicion, this factor may help contribute, but it is necessarily a weak factor and of especially light weight in a case such as this.
Although we have found the agents clearly violated the Fourth Amendment in stopping Hernandez, our inquiry does not end here, for we must further ask whether we may grant his motion to dismiss. We note that we may affirm the district court’s denial of a motion to suppress on any basis established in the record. United States v. Aguirre,
This Court, however, has previously held that an alien’s INS file and even his identity itself are not suppressible. Roque-Villanueva,
AFFIRMED.
Notes
. 8U.S.C. § 1326(a) and (b)(2).
Concurrence Opinion
Specially Concurring.
While the majority’s affirmance is correct given our binding precedent, I respectfully submit that this precedent is based on a misapplication of the Supreme Court’s holding in I.N.S. v. Lopez-Mendoza,
In the time since we decided Roque-Villanueva, however, other circuits have attempted to answer the question of whether an alien’s identity may ever be suppressible, and have come to conflicting conclusions as to the proposition for which Lopez-Mendoza truly stands. Indeed, the Fourth Circuit recently noted that “[t]he meaning of the Lopez-Mendoza ‘identity statement’ has bedeviled and divided our sister circuits.”
I.
To explain the circuit split, it is useful first to consider the facts of Lopez-Mendoza itself. This case involved two defendants, Adan Lopez-Mendoza and Elias Sandoval-Sanchez.
Later, at a deportation hearing before an immigration judge, Lopez-Mendoza’s counsel moved to terminate the proceeding on the ground that Lopez-Mendoza had been unlawfully arrested. Id. The judge, however, ruled the lawfulness of Lopez-Mendoza’s arrest was irrelevant to his deportation. Id. On appeal, the BIA similarly found “[t]he mere fact of an illegal arrest has no bearing on a subsequent deportation proceeding,” and, furthermore, found Lopez-Mendoza had not objected to the admission of evidence in the Form I-213 or his affidavit. Id. at 1036,
Finally, the case reached the Supreme Court. It conducted a brief analysis of Lopez-Mendoza’s claim, which began with the “identity statement,” i.e., “[t]he ‘body or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.” Id. (emphasis added). The Court noted that, on that basis alone, Lopez-Mendoza’s claim failed. Id. at 1040,
Sandoval-Sanchez, the defendant in the companion case to Lopez-Mendoza, was similarly questioned and arrested by INS workers at his place of employment, and later admitted he had unlawfully entered the United States. He argued that he
The question before the Supreme Court was then “whether an admission of unlawful presence in this country made subsequent to an allegedly unlawful arrest must be excluded as evidence in a civil deportation hearing.”
II.
In applying Lopez-Mendoza, other circuit courts have grappled with reconciling the broad language of the “identity statement” with the facts and issues presented in the case. The Fourth, Eighth, and Tenth Circuits — which concluded the “identity statement” was only a jurisdictional proposition — began their analyses of the case by noting that all of the cases to which the Court cited for the proposition that a defendant’s body or identity is not suppressible addressed a court’s jurisdiction over a defendant himself — not suppression of unlawfully obtained evidence relating to his identity. See, e.g., Oscar-Torres,
it significant that the Supreme Court didn’t distinguish between identity-related evidence and other types of evidence when discussing Sandoval-Sanchez’s evi-dentiary challenge.... If the Supreme Court meant to exempt identity-related evidence in a criminal proceeding from the “general rule,” we believe the Court would have said so while discussing the evidentiary challenge, not the jurisdictional challenge. Our belief is strengthened by the fact that the evidence that Sandoval-Sanchez challenged, INS Form 1-213, probably contained identity-related evidence.2
Id. The Fourth Circuit similarly reasoned that, “if the Court’s ‘identity statement’ truly prohibited suppression of any evidence relating to identity, surely the Court would have considered which of Sandoval-Sanchez’s statements were sufficiently identity-related to render them beyond the reach of the exclusionary rule and which were not.” Oscar-Torres,
The language in Lopez-Mendoza merely says that the defendant cannot suppress the entire issue of his identity. A defendant may still seek suppression of specific pieces of evidence (such as, say, fingerprints or statements) under the ordinary rules announced in Mapp [v. Ohio,367 U.S. 643 ,81 S.Ct. 1684 ,6 L.Ed.2d 1081 (1961) ] and Wong Sun [v. United States,371 U.S. 471 ,83 S.Ct. 407 ,9 L.Ed.2d 441 (1963) ]. A broader reading of Lopez-Mendoza would give the police carte blanche powers to engage in any manner of unconstitutional conduct to long as their purpose was limited to establishing a defendant’s identity. We do not believe the Supreme Court intended Lopez-Mendoza to be given such a reading.
Olivares-Rangel,
Contrary to the conclusions of these three circuits, this Circuit and the Third and Sixth Circuits have concluded that Lopez-Mendoza stands for the proposition that a defendant’s identity is never suppressible. See Roque-Villanueva,
III.
All the Circuits seem to agree that if a defendant sought only to suppress his identity itself, he would fail. This conclusion aligns with Lopez-Mendoza’s finding that Lopez-Mendoza’s claim failed, in part, because “he entered no objection to the evidence offered against him.”
The Fourth, Eighth, and Tenth Circuits, however, correctly distinguish between such a broad attempt to suppress one’s identity itself and an attempt to suppress evidence relating to one’s identity, such as statements made during an unlawful arrest. Indeed, the Supreme Court in Lopez-Mendoza seemed to suggest this analysis; it framed the issue in that case as “whether an admission of unlawful presence in this country made subsequent to an allegedly unlawful arrest must be excluded as evidence in a civil deportation hearing.” Id. at 1034,
On the other hand, the Sixth Circuit’s reasoning may be considered as suggesting that some of the alleged evidence is not independent from one’s identity, but is so inherently intertwined with one’s identity that it necessarily is tantamount to identity itself. Such evidence, it reasons, includes a person’s name and birthday. Other circuits have not addressed these particular associations with identity.
Finally, I should make reference to the odd suggestion of the Third and Sixth Circuits to the effect that we are not dealing with “egregious violations of [the] Fourth Amendment or other liberties that might transgress notions of fundamental fairness” in this criminal case.
IV.
Hernandez has moved to suppress all the evidence derived from the unlawful stop he endured, and not merely to suppress his identity. It is unclear from the record of this case whether Hernandez made statements to the agents, such as those Sandoval-Sanchez made in Lopez-Mendoza, that could potentially be suppressible. Therefore, the proper disposition of this case — but for our precedent— would be to remand for further development of the record. And as the Tenth Circuit noted, allowing our erroneous interpretation of Lopez-Mendoza to persist essentially affords law enforcement officers staggering authority to detain anyone they suspect of being an illegal alien, for so long as they retrieve only evidence related to that person’s identity, they will escape any ramifications for even grossly unconstitutional behavior. Thus, while precedent requires me to concur with the majority, I hope I have made clear that our precedent is an incomplete and erroneous reflection of the propositions for which Lopez-Mendoza stands.
. That court further noted the Ninth Circuit’s view does not even appear consistent.
. Note that the Supreme Court explicitly framed the issue in Lopez-Mendoza as “whether an admission of unlawful presence in this country made subsequent to an allegedly unlawful arrest must be excluded as evidence in a civil deportation hearing.”
. The Tenth Circuit did, in an unpublished opinion, interpret Lopez-Mendoza as preventing suppression of a defendant’s statement of his name to an officer. United States v. Cisneros-Cruz,
. Moreover, the Court noted "the INS has its own comprehensive scheme for deterring Fourth Amendment violations by its officers.”