U.S. v. Esparza-Mendoza

• Decision Date: 29 May 2003
• Docket Number: No. 1:02-CR-00099 PGC.,1:02-CR-00099 PGC.
• Citation: 265 F.Supp.2d 1254
• Parties: UNITED STATES of America, Plaintiff, v. Jorge ESPARZA-MENDOZA, Defendant.
• Court: U.S. District Court — District of Utah

265 F.Supp.2d 1254

UNITED STATES of America, Plaintiff, v. Jorge ESPARZA-MENDOZA, Defendant.

No. 1:02-CR-00099 PGC.

United States District Court, D. Utah, Northern Division.

May 29, 2003.

Laurie J. Sartorio, Salt Lake City, UT, for Plaintiff.

Benjamin A. Hamilton, Salt Lake City, UT, for Defendant.

MEMORANDUM OPINION DENYING MOTION TO SUPPRESS

CASSELL, District Judge.

The defendant, Jorge Esparza-Mendoza, has been charged in a one-count indictment with illegal reentry by a previously removed alien.¹ The government has also filed a notice of sentencing enhancement, alleging that Esparza-Mendoza has been previously convicted of felony possession of cocaine.² Esparza-Mendoza has filed a motion to suppress evidence, alleging that his Fourth Amendment rights were violated. The court held an evidentiary hearing on this motion on February 4, 2003, at which both sides were well represented by counsel. The court received supplemental briefing following the hearing. Having fully considered the evidence and the briefs, the court DENIES the motion to suppress. The court concludes that as a previously-removed alien felon, Esparza-Mendoza cannot assert a violation of the Fourth Amendment because he is not one of "the People" the Amendment protects.

BACKGROUND

The facts surrounding the issue are largely undisputed. Around March 1997, Esparza-Mendoza illegally entered the United States from Mexico. He is a Mexican national and never attempted to legalize his status. On April 19, 1999, he was convicted in state court in Utah of a felony. Shortly after this conviction, the Immigration and Naturalization Service ("INS") notified him that he would be removed from the United States because of the conviction.³ Esparza-Mendoza was given an opportunity to contest the deportation, which he waived. Accordingly, on May 20, 1999, INS ordered that Esparza-Mendoza be removed. He was instructed that he was not to re-enter the country and warned of the criminal consequences of attempting to do so.⁴ On May 22, 1999, Esparza-Mendoza was deported to Mexico.

At some later point, Esparza-Mendoza again illegally entered this country. On October 27, 2002, he was in Kearns, Utah, when the events subject to the motion to suppress took place. At that time, Officer Tracey L. Cook of the Salt Lake Sheriffs Office responded to a call reporting a domestic dispute between two sisters. When the officer arrived, she saw three neighbors standing outside, who said they had called in the complaint, and two women at the residence in question. Officer Cook questioned one of the women outside the residence about what had happened. The woman said that she had a verbal dispute with her sister and that her father was coming to pick her up. Officer Cook then questioned the other woman. This Woman related a consistent story, except she said that during the dispute her sister threw a brick at a car. When Officer Cook questioned her further about the car, the woman stated that it belonged to her boyfriend and that "he didn't want anything done about it."⁵ Officer Cook told the woman that she needed to speak with him to verify some information from him and question him about the damage that was done. The woman told Officer Gook that her boyfriend was inside the residence and she would get him.

Pursuant to Officer Cook's request, Esparza-Mendoza then came outside to the front porch. Officer Cook asked Esparza-Mendoza if the vehicle belonged to him. Esparza-Mendoza stated that it was not actually his car, but that it belonged to his sister or brother. Officer Cook stated that she needed to get some identification from him to make sure that everything checked out properly. Esparza-Mendoza responded that he did not want to be involved and did not want to provide his identification.⁶ Officer Cook then asked a second time for his identification, stating that she "needed" to see it.⁷ It was not put in terms that Esparza-Mendoza had an option to do this, but rather in terms that he was directed to do so. Officer Cook also testified that she had no belief at this time that Esparza-Mendoza had committed any crime.

Pursuant to Officer Cook's direction, Esparza-Mendoza produced an identification card. Officer Cook checked his name with a dispatch officer, who advised that Esparza-Mendoza was a deported felon and that there was fugitive warrant on him. Officer Cook then contacted an INS agent in order to verify that she was detaining the correct person. Esparza-Mendoza spoke with the agent on the phone for some time. The INS agent ultimately told Officer Cook that Esparza-Mendoza was the correct person on the warrant. Officer Cook thereafter detained Esparza-Mendoza, and the United States charged him with illegal reentry.

DISCUSSION

Esparza-Mendoza filed a timely motion to suppress under the Fourth Amendment, seeking to suppress his identification card and, as the fruit of that card, his identity and all information related to his prior deportation. Esparza-Mendoza also sought to suppress the incriminating statements that he made to Officer Cook and the INS agent. His argument is that he was detained and forced to present his identification without probable cause or even reasonable suspicion. The United States has raised several responses, including an unresolved constitutional issue in the Tenth Circuit—whether previously removed alien felons can raise Fourth Amendment challenges. Because of the complexity of this unresolved issue, the court will first determine whether that issue can be avoided by resorting to the United States' other contentions.

I. Consensual Encounter.

On the merits of Esparza-Mendoza's Fourth Amendment claim, the United States contends that he was not detained but rather was involved in a brief "consensual encounter" with the officer. To be sure, the amount of time involved in this transaction might appear to be de minimis—the total elapsed time during which the officer held Esparza-Mendoza's identification card could not have been more than a minute or two. The officer called on her radio from the porch.⁸ During that brief time, however, Officer Cook directed Esparza-Mendoza to produce his identification after he had declined to do so. Unlike such cases as Florida v. Bostick⁹ in which the questioned suspect was "free to decline the officer's request or otherwise terminate the encounter,"¹⁰ Esparza-Mendoza was forced to produce identification. Indeed, in I.N.S. v. Delgado (a case cited by the United States), the Supreme Court directly stated it would find a detention "if the [questioned] person[] refuses to answer and the police take additional steps ... to obtain an answer...."¹¹ Here, Esparza-Mendoza refused to answer and the police took the additional step of directing him to answer.

Of course, a detention can be justified if there is some reasonable suspicion by the police. Moreover, the shorter the detention, the less justification that is required. But in this case, the United States has not offered any reasonable suspicion that might justify the detention. At the suppression hearing, Officer Cook stated directly that she had no belief that the defendant had committed any crime. She did not advance any other reason for suspicion. Nor has the United States raised any other justification for requesting Esparza-Mendoza's identification (such as the need for record keeping regarding crime victimization). On this record, Esparza-Mendoza was detained—albeit briefly—without reasonable suspicion—and, therefore, in violation of his Fourth Amendment rights.

II. Identity of the Defendant as a Suppressible Fruit of a Fourth Amendment Violation.

The United States also maintains that Esparza-Mendoza's identity is not a suppressible fruit of any Fourth Amendment violation. As the United States candidly articulated in its brief, the circuits may be split on this issue. The Ninth Circuit, for example, has held that the "defendant's identity need not be suppressed merely because it is discovered as the result of an illegal arrest or search."¹² The Fifth Circuit has reached an identical conclusion.¹³ In contrast, the Eighth Circuit appears to disagree. The Eight Circuit takes the position that, while the defendant may be brought to court following an illegal search, any evidence resulting from the illegal search must be suppressed. Thus, the Eighth Circuit suppressed fingerprint evidence the government sought to use to establish a defendant's identity because the evidence came from an unlawful traffic stop.¹⁴ The Tenth Circuit does not appear to have addressed this question in a published opinion, although an unpublished opinion from the circuit can be read as indirectly suggesting it might find the views of the Ninth and Fifth Circuits persuasive.¹⁵

Even if this court followed the approach of the Ninth and Fifth Circuits, however, that would not entirely resolve Esparza-Mendoza's motion to suppress. The United States seeks to introduce not merely the identity of the defendant and but also incriminating statements made by him.¹⁶ While the Supreme Court will not suppress "the `body" or identity of a defendant" under the Fourth Amendment's exclusionary rule,¹⁷ other evidence—including incriminating statements—is suppressible.¹⁸ Therefore, determining whether the identity of the defendant escapes suppression will not fully resolve this case. The court thus must confront the threshold issue raised by the United States—whether Esparza-Mendoza has the capacity to raise these Fourth Amendment issues.

III. Coverage of Previously Removed Alien Felons by the Fourth Amendment.

The United States has argued that the defendant—as a previously removed alien felon—lacks standing to assert Fourth Amendment issues in his motion to suppress. Esparza-Mendoza responds that he possesses such standing. Both parties have characterized this issue as one of "standing." Such terminology is understandable, as it is frequently used by criminal law practitioners and leading law...