342 F.3d 462 (6th Cir. 2003), 02-5491, U.S. v. Vite-Espinoza

Docket Nº:02-5491
Citation:342 F.3d 462
Party Name:U.S. v. Vite-Espinoza
Case Date:August 25, 2003
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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342 F.3d 462 (6th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,


Mario Joaquin VITE-ESPINOZA; Jose Martinez-Rivera (02-5492), Defendants-Appellants.

Nos. 02-5491, 02-5492.

United States Court of Appeals, Sixth Circuit

August 25, 2003

Argued: Oct. 15, 2002.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 21, 2003.

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[Copyrighted Material Omitted]

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Hilliard H. Hester (argued and briefed), Asst. U.S. Attorney, Nashville, TN, for Plaintiff-Appellee.

Sumter L. Camp (argued and briefed), Federal Public Defender's Office, Nashville, TN, Paul J. Bruno (argued and briefed), Bruno, Haymaker & Heroux, Nashville, TN, for Defendants-Appellants.

Before: BOGGS, SUHRHEINRICH, and CLAY, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. CLAY, J. (pp. 471-475), delivered a separate opinion concurring in the outcome reached by the majority.


BOGGS, Circuit Judge.

Defendants Mario Joaquin Vite-Espinoza and Jose Martinez-Rivera appeal the district court's denial of their motion to suppress, on Fourth Amendment grounds, firearms found in their possession and statements they made as they were taken into custody. A joint federal, state, and local police task force investigating the counterfeiting of immigration and identification

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documents executed a valid federal search warrant on a house in Springfield, Tennessee, owned and occupied by a third party. During the course of that raid, the defendants were found outside the house, but on the premises. It emerged that the defendants were aliens illegally in this country, the police discovered a concealed handgun on Martinez-Rivera and another concealed handgun in Vite-Espinoza's truck in the house's driveway, and the defendants were taken into custody of the Immigration and Naturalization Service ("INS"). After denial of their motions to suppress the handguns, each defendant pleaded guilty to being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5)(A), but reserved the right to appeal the district court's denial of the motion to suppress. It is this appeal that is now before the court. We affirm.


On July 5, 2001, following up on intelligence that the house was being used to produce and sell counterfeit immigration documents and social security cards, as well as deal large quantities of marijuana, the United States Secret Service retrieved trash left for collection outside the house. In the trash were found "stems, seeds and remnants of marijuana" and Mexican birth certificates. On this evidence, a federal search warrant was issued for the house. Prior to execution of the warrant, the law enforcement agents involved, about fifteen officers from the INS, the Secret Service, and Tennessee state and local police agencies, agreed to question all persons found on the premises regarding their immigration status, on the basis that persons found in a location where counterfeit immigration documents are dealt could reasonably be suspected of being illegal aliens, and to perform Terry stops-and-frisks, on the basis that persons involved in drug deals are frequently armed and dangerous.

The police raided the house and executed the search warrant that same day. Four men and a woman, among them the defendants, were found in the back yard of the house and immediately handcuffed and patted down. The pat-down of Martinez-Rivera uncovered a handgun in his waistband. Vite-Espinoza's search uncovered no weapons, but the officers took documents and a billfold from his pocket. Upon questioning, both Vite-Espinoza and Martinez-Rivera admitted to being in the country illegally. The officers also found another handgun lying on the ground, which another of the men present admitted dropping. At this point, the officers decided to search the vehicles in the driveway of the house. Under the floorboard of a truck owned by Vite-Espinoza, the police discovered another handgun, which Vite-Espinoza admitted to owning. The defendants were taken into custody by the INS. James Grant, a Tennessee Highway Patrol officer assigned to the raid, determined that Vite-Espinoza's truck was leased and that other vehicles on the premises also registered to Vite-Espinoza had title and licensing irregularities. Grant impounded the truck, took an inventory, and returned it to the lien-holder. The search of the house itself uncovered "several identification documents, [a] Polaroid camera, a typewriter, ... large quantities of ammunition, ... blank Mexican birth certificates," and more marijuana remnants, but no bulk marijuana.

On July 25, 2001, the defendants were indicted for being illegal aliens in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5)(A), possession of false social security cards, in violation of 18 U.S.C. § 1028(a)(6), and using false social security numbers, in violation of 42 U.S.C. § 408(a)(7)(b). After arraignment and unsealing of the search warrant, the defendants

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moved to suppress the firearms, on the grounds that the guns were seized without a warrant or an applicable warrant-requirement exception. They also moved to suppress their statements incident to arrest, on the ground that they were products of the unconstitutional seizure. The district court denied the motions to suppress, finding that while the defendants and the truck were not covered by the search warrant and there was insufficient evidence that the defendants had consented to the search, the police performed a valid Terry stop-and-frisk on the defendants and the gun in the truck would inevitably have been discovered pursuant to an inventory search of the truck following its impoundment under a Tennessee statute. Subsequently, the defendants pleaded guilty to the firearms charge in return for a dismissal of the other charges, but reserved their right to appeal the denial of their motions to suppress. Vite-Espinoza was sentenced to ten months of incarceration, followed by two years of supervised release, and Martinez-Rivera to twelve months of incarceration, also to be followed by two years of supervised release. Both timely appealed the denial of their motions to suppress to this court and we consolidated their appeals.


The generally applicable principles of search and seizure jurisprudence are well-known and settled. The United States Constitution bars "unreasonable searches and seizures." U.S. Const. amend. IV. A stop for questioning is reasonable if the police officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion" as measured by an objective standard. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Moreover, when the officer is "justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a search "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others." Id. at 26-27, 88 S.Ct. 1868. In finding reasonable suspicion, "the totality of the circumstances the whole picture must be taken into account." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

The exclusionary rule bars the admission of items seized during an unconstitutional search, Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and of testimony concerning knowledge acquired during such a search, Silverman v. United States, 365 U.S. 505, 509, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). However, "evidence may be admitted if the government can show that the evidence inevitably would have been obtained from lawful sources in the absence of the illegal discovery." United States v. Leake, 95 F.3d 409, 412 (6th Cir. 1996) (citing Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). "The burden of proof is on the government to establish that the tainted evidence 'would have been discovered by lawful means.' " Leake, 95 F.3d at 412 (quoting Nix, 467 U.S. at 444, 104 S.Ct. 2501). "[T]he government can meet its burden of showing that the tainted evidence inevitably would have been discovered through lawful means 'by establishing that, by following routine procedures, the police would inevitably have uncovered the evidence.' "

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United States v. Kennedy, 61 F.3d 494, 500 (6th Cir. 1995) (quoting United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989)).

However, as straightforward as the Terry standard is, its application to the facts of a given case remains, outside the limits of a few bright-line rules, to a considerable degree indeterminate. The court faces a question of first impression unless there is precedent finding reasonable suspicion in a factual situation that in every relevant respect was no more suspicious, or finding no such suspicion in a factual situation that in every relevant respect was no less suspicious. See Illinois v. Gates, 462 U.S. 213, 238 n. 11, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (stating that in the course of adjudicating the existence of reasonable suspicion, "one determination will seldom be a useful 'precedent' for another"). Given the near-infinite variety of factual circumstances in which Terry stops-and-frisks occur, it is unsurprising that neither party can present such precedent, but that both must instead rely on cases which are merely similar in one or more particular...

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