386 F.3d 953 (10th Cir. 2004), 03-4218, United States v. Esparza-Mendoza

Docket Nº:03-4218.
Citation:386 F.3d 953
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jorge ESPARZA-MENDOZA, also known as Adame Amalia, also known as Jorge Espinoza, Defendant-Appellant, American Civil Liberties Union Immigrants' Rights Project, ACLU of UtahNational Association of Federal DefendersNational Association of Criminal Defense Lawyers, Amici Curiae.
Case Date:October 14, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 953

386 F.3d 953 (10th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jorge ESPARZA-MENDOZA, also known as Adame Amalia, also known as Jorge Espinoza, Defendant-Appellant,

American Civil Liberties Union Immigrants' Rights Project, ACLU of UtahNational Association of Federal DefendersNational Association of Criminal Defense Lawyers, Amici Curiae.

No. 03-4218.

United States Court of Appeals, Tenth Circuit

October 14, 2004

Page 954

[Copyrighted Material Omitted]

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

Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States Attorney, District of Utah, with him on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Michael S. Kwun, Keker & Van Nest, LLP, San Francisco, CA, with Lucas Guttentag and Cecillia D. Wang, ACLU Immigrants' Rights Project, Oakland, CA, Counsel for Amici Curiae American Civil Liberties Union Foundation Immigrants' Rights Project, ACLU of Utah, and National Association of Federal Defenders, and David M. Porter, Sacramento, CA, for Amicus Curiae National Association of Criminal Defense Lawyers, on brief for Amici Curiae in support of Defendant-Appellant.

Before SEYMOUR, BRISCOE, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Jorge Esparza-Mendoza appeals his conviction on one count of violating 8 U.S.C. § 1326, which prohibits previously deported aliens from reentering the United States. Esparza-Mendoza has not contested that he had been previously deported following a felony conviction for possession of cocaine in 1999, that he did not have the express consent of the Attorney General to return, and that his presence in this country was thus in violation of § 1326. Esparza-Mendoza's only argument has been that the evidence used to support the charge and conviction was obtained in violation of the Fourth Amendment and should have been suppressed.

The district court heard his motion to suppress and rejected it. In an extensive memorandum opinion, the court analyzed legal, social, and political precedent from colonial times to today, and came to the conclusion that previously deported felons cannot assert Fourth Amendment suppression claims. 1 See United States v. Esparza-Mendoza, 265 F.Supp.2d 1254, 1271 (D.Utah 2003) (ruling that previously deported alien felons do not have a "sufficient connection to this country" and therefore "stand outside 'the People' covered by the Fourth Amendment").

Esparza-Mendoza then entered a conditional guilty plea and the district court sentenced him to seventeen months imprisonment followed by thirty-six months of supervised release. Esparza-Mendoza timely appealed, and we have jurisdiction under 28 U.S.C. § 1291. We conclude that Esparza-Mendoza's encounter with police was consensual and thus did not implicate the Fourth Amendment. Therefore we affirm without having the opportunity to decide whether we agree with the district court's comprehensive analysis of who are "the people" protected by the Fourth Amendment.

I. Background

A. The Facts

As noted by the district court, the facts of this case are essentially undisputed. Esparza-Mendoza illegally entered the United States from Mexico around March 1997. On April 19, 1999, he was convicted in Utah state court of a felony cocaine possession charge. The United States Immigration and Naturalization Service ("INS") subsequently gave Esparza-Mendoza notice it was bringing a deportation action against him. Esparza-Mendoza did not contest the deportation, and on May

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20, 1999, the INS ordered his deportation, warning him that reentry without permission would be a criminal offense. On May 22, 1999, he was deported to Mexico.

On October 27, 2002, Deputy Tracey Cook of the Salt Lake County Sheriff's Office responded to a call reporting an altercation between two sisters at a residence in Kearns, Utah. When she arrived at the scene, Deputy Cook encountered two women. One was standing outside the home and the other in the doorway. The two confirmed they were sisters and had been involved in a verbal dispute. One added that the other had thrown a brick at a car parked in the driveway. The woman told Deputy Cook that the car belonged to her boyfriend, but that "he didn't want anything done about it." R. Vol. II at 15. Deputy Cook told the woman she needed to speak to the boyfriend to ask about the damage and to verify that he was the owner. The woman said he was inside the residence and that she would get him.

The boyfriend came outside onto the porch to speak with Deputy Cook. He told Deputy Cook that the car was not his but belonged to a sibling. Deputy Cook testified at the suppression hearing that she then "stated I needed to get some identification from him and run the information on the vehicle...." The boyfriend responded by telling her that "he didn't want anything done about the damages to the vehicle." Id. at 16-17. Deputy Cook testified that she told him she found it strange that he would not want the damage investigated since the owner would probably be upset when he returned the vehicle damaged. She reiterated that she "needed" to see the boyfriend's identification, and this time he provided her with an identification card that identified him as Esparza-Mendoza. Id. at 16-17, 28-29.

Deputy Cook called in Esparza-Mendoza's information to a dispatch officer, who advised her that Esparza-Mendoza was a deported felon and the subject of a fugitive warrant. In order to confirm that she was indeed dealing with the person named in the warrant, Deputy Cook contacted the INS. The...

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