U.S. v. Soto-Cervantes, SOTO-CERVANTE

• Decision Date: 13 March 1998
• Docket Number: No. 97-2019,D,SOTO-CERVANTE,97-2019
• Citation: 138 F.3d 1319
• Parties: 98 CJ C.A.R. 1406 UNITED STATES of America, Plaintiff--Appellee, v. Guadalupeefendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1319

138 F.3d 1319

98 CJ C.A.R. 1406

UNITED STATES of America, Plaintiff--Appellee, v. Guadalupe SOTO-CERVANTES, Defendant--Appellant.

No. 97-2019.

United States Court of Appeals Tenth Circuit.

March 13, 1998.

Jerry A. Walz, Albuquerque, NM, 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, NM, 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 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 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, 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, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (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, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (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, 88 S.Ct. at 1880, 1883. "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).

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, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), and United States v. Elkins, 70 F.3d 81 (10th Cir.1995), for its conclusion. In Elkins, "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, 110 S.Ct. at 2417. 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 328-30, 110 S.Ct. at 2415-16, 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 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...