*3 ing system before exiting patrol car, his HEANEY, Before BOWMAN and and all events and conversations during KOPF,1 Circuit and Judges, District the stop were recorded. He approached Judge. the stopped vehicle requested and that the driver, Molina, Estaban provide his license BOWMAN, Circuit Judge. registration. and He informed Molina that he had been stopped for speeding and During the routine of a vehicle for instructed him to step out of the vehicle speeding, a South highway patrol Dakota and to take a in seat the front of patrol officer discovered that Manuel Rodriguez- car. Trooper Koltz showed Molina the Arreola, a in passenger vehicle, was an speed that the radar had recorded and illegal alien. Rodriguez was detained and informed Molina that he going to issue 1326(a) later charged under § 8 U.S.C. him a ticket. ticket, While preparing the 1998) (Supp. IV with being an illegal alien Trooper Koltz asked Molina a variety of present in the United deporta- States after general questions, after which he asked tion.2 Rodriguez filed a motion to sup- Molina whether he awas United States press all evidence obtained the traf- citizen or a resident alien. Molina first fic stop, arguing that his status as an answered he was neither a United illegal alien was through ques- discovered States citizen nor a resident alien. tioning that violated his Fourth Amend- order to confirm Molina’s admission that rights. ment granted Court District alien, he was an illegal Rodriguez’s motion to suppress and the asked Molina whether he green had a government appeals. We reverse. card. After a somewhat confusing conver- sation Molina Koltz, between and Trooper I. Molina was able to convey that he was a legal alien but that he had green left his While traveling west on South Da- card at home. Koltz Trooper then asked Highway kota Patrol Officer Christopher Molina whether passenger legal was a Koltz noticed a vehicle approaching from alien green and had a card. Molina an- the opposite direction. His radar recorded swered no.3 speed vehicle’s at eighty-six miles per hour —eleven per miles hour in of excess Koltz Trooper writing finished the ticket posted speed limit. Trooper Koltz sign Molina had it. He told Molina then crossed the interstate median and that he was going run a to check of his Q: 1. The Honorable Kopf, G. Richard your Chief up How about friend here that Judge, United States District Court with, for the you're traveling legal is he a alien? Nebraska, District sitting by of designation. green Does he have a card? (inaudible) A: No 2. The alleges one-count indictment further Q: He does or he doesn’t? Rodriguez qualifies for a sentence en- (inaudible) A: hancement based previous on his conviction States v. Oregon in an state court the delivery for of 21, 2000) 00-40071 (appendix A 1326(b)(2) (1994 heroin. See 8 U.S.C. & Magistrate Judge's Report and Recommen- 1998). Supp. IV dation). Koltz asked Molina: pro- car and patrol in the his canine back wait- that while radio
license over Rodri- check on a radio perform ceeded results, dog walk he would ing on the contacted he also Through dispatch, guez. there were no make sure car to around Service and Naturalization Immigration Molina an Koltz instructed drugs.4 Trooper investigation an (INS) had him to assist agent car and patrol step out of and Rod- Troop- status Molina immigration the road. on the shoulder stand illegal to be suspected and mo- vehicle riguez, to the whom proceeded er pro- After only passenger responses. their Rodriguez, aliens due to tioned full names with the vehicle, agent After viding to exit. the INS in the asked vehicle, agent Koltz asked Rodriguez, exited the *4 regard- resident. He legal follow-up questions a he was Trooper him Koltz whether in- inability further to Trooper Koltz to his Due Rodriguez. no.5 ing answered Rodriguez possessed Spanish, Rodriguez to whether quired as with converse Rodriguez pro- to response, agent INS allowed the green a card. Trooper Koltz identifica- Washington State Following only Rodriguez. a directly duced with talk it, on but a name card with his Molina and tion the identities his check of v. Rodri- States Troop- card.6 See United green informed agent Rodriguez, the INS 00-40071, at 17 legal a guez-Arreola, while Molina Koltz that er 2000) (transcript of motion (D.S.D. radio the alien, was not. After Rodriguez hearing). any out- failed to disclose Molina check on warrants, gave Koltz Trooper standing join Rodriguez then had allowed speeding ticket Molina the of the road so shoulder on the INS, request of go. At the him to the vehi- to search canine could his use Rodriguez into custo- Trooper placed Koltz failed vehicle his search cle. After jail facility nearest him to the dy and took Trooper put Koltz drugs,7 any to discover Q: green card? your Where's highway patrol’s canine han- one of the 4. As something (defendant from produces dlers, job the detec- A: Trooper included Koltz's wallet) drugs. illegal tion of Q: your green Where's a card. That's not Rodriguez questioning Trooper Koltz’s 5. green card? proceeded follows: head) (inaudible-shaking A: Q: English, you do well understand How Q: talking Yeah, I'm you know what sir? one, ya? do don't have about. You A: Nada. head) (shaking A: No. Q: Nada, you I bet do. Do need I’ll huh? Q: legally you? are not here No. You're phone? get to INS on head) (shaking A: confused) (inaudible-seemingly A: (appen- No. CR 00-40071 Rodriguez-Arreola, Q: INS? Judge’s Report and Rec- Magistrate to dix B A: Huh? ommendation). Q: INS? (inaudible). A: pres- to alerted four times 7.The canine Q: going play to Okay, is that how we're the vehicle. drugs on exterior ence of a resident of you legal ... a it? Are alerts, Trooper Koltz had Based on these country? again alert- it the interior where canine sniff (inaudible) A: No. proceeded to search Trooper then Koltz ed. (appen No. 00-40071 CR to locate but was unable hand the interior Report Judge's Magistrate Rec dix B ommendation). CR Rodriguez-Arreola, No. any drugs. See (transcript of motion at 19-20 questioning of Koltz's hearing). continued: processing by Viewing INS. legal ultimate conclusions drawn from the immigration part detention as of an admin- Tavares, facts. States v. 223 F.3d procedure, Cir.2000). istrative neither the INS nor We will not re- informed of his verse the District Court’s decision regard- rights during Miranda the traffic stop.8 ing a suppress motion to “unless it is not supported by substantial evidence on the trial, Rodriguez Prior to sup moved to record; it reflects an erroneous view of the press “all evidence and statements ob law; applicable upon review of the en- tained” during stop, particularly the traffic record, tire appellate court is with left evidence and statements pertaining the definite and firm conviction that a mis- identity. v. Rodriguez-Ar United States take has been made.” United States v. reola, No. CR00-40071 Oct. Layne, Cir.1992), 2000) (Motion Suppress). argued He cert, denied, 113 S.Ct. that the evidence and statements ob were through tained an illegal search sei zure that violated Fourth Amendment II.
rights. Magistrate Judge held hear *5 ing and subsequently recommended that Initially we note that aspects two of the the grant Rodriguez’s District Court mo stop First, are in dispute. not Rodriguez tion. Rodriguez-Ar See States v. does not argue that the initial stop of the reola, (D.S.D. 00-40071, No. at 19 CR Nov. vehicle for speeding improper. was Sec- 2000) 21, (Magistrate Judge’s Report and ond, government the does not challenge Recommendation). The District Court suppression the of the incriminating state- adopted Magistrate Judge’s the Report ments made Rodriguez during his tele- granted Recommendation and the mo phone conversation with the INS agent tion to based on suppress its conclusion Trooper from patrol Koltz’s car.9 The Dis- that Rodriguez’s Fourth Amendment trict Court’s suppression of all other evi- rights were violated. government The dence obtained during stop appears the interlocutory filed an appeal challenging in dispute. be ruling pursuant the to 18 U.S.C. 3731 government The argues that Trooper (1994). Koltz did not violate the Fourth Amend- review the
We District rights Court’s ment of Rodriguez. govern- findings of fact for clear error. United ment questions that the posed contends 753, States v. Stephenson, 924 F.2d 758 Molina concerning alienage his were with- (8th Cir.), denied, cert. U.S. 112 in stop the they because S.Ct. We re suspicion were based a by on reasonable novo, however, view de the District Court’s Trooper government Koltz.10 The further Apparently, Rodriguez 10.Trooper received multiple Miranda listed Koltz as factors warnings pur- raising later when the INS suspicion: decided to his the nervousness Mo- of charges. sue criminal See Rodriguez; lina and Molina’s ner- continued at 67-68 being why vousness stopped told he was after 2000) (transcript hearing) of motion Trooper's and even after he learned of the ticket; decision to issue him a Molina and government 9. The argument Rodriguez conceded at oral traveling long were trip on a to- challenging suppression gether that it was not although the of significant- not related and of incriminating the ly un-Mirandized ages; statements different the reluctance of Rodriguez contact; made to the Rodriguez eye INS being official to make the car telephone conversation. extremely on the interior with clean de- no Koltz Trooper if Even rights. of Koltz’s tion Trooper if even that
contends Amendment Fourth Molina’s an uncon- violated constituted to Molina questions us—Rodri- not before seizure, ques- question rights search stitutional —a another the violation Fourth use guez cannot Molina’s violated only tions for his the basis own rights that Rod- as violation individual’s rights Amendment —-a challenge. assert. See Unit- standing to have not Fourth Amendment does riguez passenger that the Payner, stated U.S. After Molina ed States card, (1980) (“[A] green have a did not L.Ed.2d vehicle S.Ct. Trooper that argues under evidence government may not exclude court ask an suspicion it finds had reasonable unless Amendment Fourth Finally, the citizenship status. violated de- about or seizure unlawful search if that even argues rights.”). constitutional fendant’s own Fourth constituted questions Koltz’s a claim Rodriguez to establish order identity violation, Rodriguez’s Amendment Molina, he asked to questions on the based a matter law. suppressible is “challenged conduct must show priva- legitimate expectation invaded questions contends that party.” a third Id. that of rather cy than alienage Koltz about by Trooper posed expectation legitimate no Rodriguez has scope of the appropriate outside were knowledge that Rodri- in Molina’s privacy extended impermissibly stop and traffic in the United present illegally He guez beyond proper its duration. contest States, he cannot therefore questions these argues that Amendment statements.11 his Fourth Molina’s Koltz violated *6 searches illegal from free right be govern the Rodriguez asserts that ev- also contends
seizures.
that he
any argument
has waived
suppres-
as
ment
identity
equally
is
idence of his
challenge a Fourth
ability
the
lacks
evidence obtained
the other
sible as
rights be
Therefore,
that all
violation of Molina’s
argues
Amendment
stop.
the
raised the
never
traffic
the
during the
cause
obtained
evidence
Court. The
the District
poisonous fruit
before
argument
as the
excluded
should be
an
demonstrate
and seizure.
cannot
fact that
search
an unconstitutional
of
the statements
privacy in
of
expectation
A.
however,
Molina,
means that he
by
made
a
such
standing to assert
does not have
Rodriguez’s
of
dispose
first
.We
See United
violation.
Amendment
Fourth
rights
Fourth Amendment
that his
claim
58, 60
Stallings, 28 F.3d
v.
Trooper States
asserting that
were violated.
Cir.1994) (“In
standing to
to have
order
and sei
illegal search
an
performed
under the
or seizure
challenge a search
stop,
traffic
course of the
during the
zure
Amendment,
defendant must
Fourth
asked to
questions
on
Rodriguez relies
in
privacy
of
expectation
legitimate
a
a
have
establishing
viola-
for
basis
Molina
a
Rodriguez cannot
we hold that
bris;
11. Because
luggage visible on the interior
no
alienage posed
challenge
questions
about
long trip to
expected for a
be
vehicle as would
Molina,
govern-
we do not
Washington
consider
having
car
Chicago; and the
questions did not
argument
that the
ment’s
plates,
he considered
which
license
State
because, based
Amendment
Fourth
Rodriguez-Ar-
violate the
illegal drugs.
for
source state
they were
suspicions,
Trooper Koltz's
reola,
on
at 10-15
CR
No.
stop.
traffic
proper
6, 2000)
within the
hearing).
(transcript motion
searched.”).
places
objects
The Rodriguez
yet
had not
received a Miranda
government cannot
Rodriguez’s
waive
lack warning.12
Berkemer,
See
at
U.S.
of standing, and
any argument
therefore
(“The
on its
Lopez-Mendoza,
ty."
opin
Court's decision in
ar-
Id. at 422. The Ninth Circuit's
gues
gives
refusing
that "evidence of a defendant's identi-
ion
no indication that it was
ty
suppressible"
suppress specific physical
is not
and that the Dis-
evidence of
suppressing
any sort;
only
trict Court thus erred in
those
it
indicates that the court
Appellant's
items of evidence.
Br. at 16
suppress
simple
declined to
fact of who
(emphasis added).
reading
A close
of Lo-
the defendant was.14
pez-Mendoza
support
govern-
does not
interpretation.
ment's broad
The Court
reading
After a careful
of both the
Lopez-Mendoza
`body'
"[t]he
held in
that
District Court's order and the relevant
identity
respondent
or
of a defendant or
in
law,
apparent
govern
case
it is
that the
proceeding
a criminal or civil
is never itself
ment misunderstands the
of the Dis
suppressible as a fruit of an unlawful ar-
suppression
trict Court's
order and the
rest, even if it is conceded that an unlawful
import
Lopez-Mendoza
rely
and cases
arrest, search,
interrogation
occurred."
Thus,
ing upon
recently
it. As our Circuit
ob
Id. at
III. concludes, The majority on the basis of sum, we conclude that govern- United States v. Payner, ment did not Rodriguez’s violate Fourth cannot establish a violation of his Fourth rights. Amendment Except sup- for the rights Amendment because had he no le- pression of Rodriguez’s statements made gitimate expectation of privacy in Molina’s official, to the INS which knowledge that he illegally present in contest, does not we reverse the District States, the United and therefore cannot suppression Court’s order and remand the contest Molina’s statements. See United case for further proceedings consistent States v. Payner with opinion. S.Ct. This HEANEY, reasoning condones Trooper im- Judge, Circuit Koltz’s dissenting. proper expansion scope of the traffic I respectfully view, In my dissent. to elicit order incriminating infor- district court correctly held that mation Rodriguez’s about alienage, ig- Koltz’s immigration questions status un- nores Rodriguez’s right to challenge the reasonably expanded traf- scope and duration of the stop. fic stop reasonable, because he had no suspicion articulable activity. criminal itWhile is true that Rodriguez does not Therefore, all information obtained from standing have to contest the statements Rodriguez after inception ques- of this Molina, made can contest his own tioning suppressed. should be they if statements were the product of an During a lawful stop, traffic law enforce- unreasonably protracted stop. traffic ment officers may engage in an investiga- *9 right to be unnecessarily free from pro- tion reasonably to stop. related the See longed traffic stops applies both to drivers Ramos, v. 1160, States 42 Jones, F.3d passengers. and See U.S. v. 234 15. establishing The elements for a violation of entered proper per- United States the without (1) alien, § 1326 are "that Gomez-Orozco, defendant the is an mission.” United States v. (2) (3) deported, previously (7th Cir.1999). was and re- 188 F.3d has 425
620 no which there is (because for Cir.2001) violation connected (5th con- 234, 241 F.3d acceptable.”).16 is not objective basis passenger and driver of detention tinued questions failed after routine improper scope the expand justifiably To both were suspicion, reasonable to create required to Koltz was stop, Trooper traffic aas obtained suppress evidence to entitled objective facts particularized, observe search). A law subsequent a result of rational infer- which, with together taken unreasonably may official enforcement facts, reasonably war- from those ences stop traffic a routine the of expand being a crime was suspicion that ranted incriminating informa- Beck, in order to obtain v. States committed. See United with- of a vehicle passenger the Cir.1998). (8th tion about Trooper 1129, 1136 F.3d to right be passenger’s violating out support to factors listed several Koltz de- unnecessary governmental from activity, including: free criminal of suspicion Mesa, id.; v. 62 F.3d U.S. Rodriguez; See tention. and Molina the nervousness of (once Cir.1995) purpose the Rodriguez to and failure of Molina the completed, an stop traffic is an initial contact; of be- age difference eye make a vehicle detain cannot further officer the lack of a Rodriguez; and tween Molina oc- something that unless occupants its Molina relationship between familial stop generated during the curred traffic luggage devoid of Rodriguez, a car interior jus- to necessary suspicion reasonable from the debris, plates license added). detention) (emphasis a further I with the tify agree of Washington.17 State court and the district judge, magistrate Molina for stopped support do not factors judge, these nor Rodri- Molina’s Neither speeding. traffick- drug of suspicion Koltz’s Trooper was relevant immigration status guez’s suspi- they support his activity, nor ing do Therefore, without a this traffic violation. ille- Rodriguez were that Molina and cion of additional criminal suspicion reasonable gal aliens. Trooper stop and activity, the traffic Beck, factors such as investigation should have noted in As we Koltz’s attendant a interior luggage Molina or Rodri- before either absence concluded vehicle, presence of out-of-state immigration and the questioned about guez were are states “source” Restrepo, F.Supp. plates alleged from v. See U.S. issues. suspi- support reasonable (E.D.N.Y.1995)(“Unnecessarily insufficient Also, failing to id. at 1137-39. purpose cion. See traffic a prolonging questioning police a eye contact with make suspected information a un- about eliciting appeared that Molina Trooper Koltz stated a 17. to conduct entitled Koltz was eye contact to make nervous and failed investigation to the traffic related reasonable stop, after he was informed traffic even identity of stop by asking about the con stop. This cannot be reason for passenger questioning the passenger, and during the suspicious because traffic sidered by the provided driver. verify the information suspecting a stop, confronted Molina was Edmisten, 208 F.3d v. United States accompa who was officer law enforcement however, (8th Cir.2000). case dog. Although barking police by large nied to ask Molina about did not even bother may nervousness under certain circumstances identity. he first asked Rodriguez's Instead pre the facts suspicious, under considered be legal "a passenger was Molina whether here, was not nervousness unusu such sented alien”, passenger had "a and whether Beck, v. al. See United States Rodriguez-Ar green States card.” United Cir.1998)("It certainly be cannot reola, No. CR 00-40071 a motorist to exhibit unusual for deemed Judge’s Magistrate 2000)(appendix Re A to by a when confronted signs of nervousness Recommendation). port and officer.”). law enforcement *10 officer, traveling with an individual of
a different age and familial background,
does indicate that criminal activity is
afoot. The has failed cite
any authority, nor have I any, discovered support proposition fac- these adequate were provide
tors reasonable
suspicion. stop by The initial
Koltz in However, this case was proper.
should completed have stop by issuing
a citation for speeding and returning Moli-
na’s driver’s license. After point, needed reasonable articu- suspicion
lable to detain Molina and Rodri-
guez for additional investigation. The fac- by Trooper
tors cited providing suspicion, however,
reasonable do not dif-
fer from those that would be expected
from law abiding travelers. By the time
Trooper Koltz asked Molina about Rodri-
guez’s status, immigration
traffic stop had been impermissibly ex-
panded any information obtained af-
terwards could not be used to justify fur-
ther inquiry. I would therefore affirm the
judgment of the district court.
ST. PAUL FIRE AND MARINE INSUR COMPANY;
ANCE St. Paul Guardian Company, Insurance -Ap Plaintiff s
pellees, ENTERPRISES,
COURTNEY INC., Appellant.
Defendant -
No. 00-3236. Appeals, States Court of
Eighth Circuit. May
Submitted: 2001.
Filed: Oct.