U.S. v. Becerra-Garcia

Decision Date02 February 2005
Docket NumberNo. 03-10654.,03-10654.
Citation397 F.3d 1167
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Efrain BECERRA-GARCIA, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Lee Tucker, Tucson, AZ, for the defendant-appellant.

Erik J. Markovich, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CR-02-00062-RCC-BPV.

Before MESKILL,* TROTT, and McKEOWN, Circuit Judges.

OPINION

McKEOWN, Circuit Judge.

Efrain Becerra-Garcia challenges the district court's denial of his motion to suppress evidence, namely the discovery by tribal rangers of illegal aliens in his van while crossing the Tohono O'odham Nation. Although the scope of the rangers' authority and the location of the stop on reservation land inform our analysis, this case boils down to a determination whether the rangers' stop of Becerra-Garcia was reasonable. We conclude that it was and thus affirm.

BACKGROUND

The setting of this case is the Tohono O'odham Indian Reservation, which covers a sprawling 90 miles across southern Arizona. The Tohono O'odham Police Department includes a division of tribal rangers, officers who have less power than fully-authorized tribal police officers. The rangers are authorized to patrol the reservation and report suspicious activity to tribal police officers or the United States Border Patrol. According to the testimony of two rangers and a tribal police officer, rangers do not have authority to stop suspicious vehicles. Vehicles that stop voluntarily may be detained until the arrival of officials who have authority to arrest. If a suspicious vehicle does not voluntarily stop and instead exits tribal land, the rangers must let the car go. A ranger may make an arrest at the direction of a tribal police officer. Thus, the rangers' primary duties are to patrol, looking for suspicious activity, to report to the police department and other authorities (usually the Border Patrol), and to detain suspects who voluntarily stop.

Tribal Rangers Andrew Ruiz and Denver Calabaza were patrolling on a remote dirt road on the reservation when they saw a van heading north. They were about twenty miles from the nearest highway and three miles from the nearest village, Queens Wells. The tribal police department had, in the preceding weeks, received complaints of unidentified vehicles driving through the area. Because trespassing is a significant problem and only local ranchers typically use the roads in this vicinity, the rangers make a practice of calling in the license plate numbers for all unknown vehicles transiting that area. The rangers did not recognize the van, which did not have a reservation license plate, and, in keeping with their standard practice, they followed it in order to report the license plate number. When the rangers turned on their emergency hazard lights, the van stopped.

Almost immediately after the van stopped, the driver, Becerra-Garcia, got out and walked toward the rangers, leaving the van door open. Both of the rangers had already stepped out of their jeep. Ranger Calabaza asked Becerra-Garcia for identification to determine whether he was trespassing, but Becerra-Garcia did not speak English. Ranger Calabaza tried asking in Spanish. In response, Becerra-Garcia motioned toward the van, and Ranger Calabaza went to the van to retrieve Becerra-Garcia's identification. As Ranger Calabaza approached the van, he saw through the open door more than twenty undocumented aliens stuffed inside.

The rangers called the Tohono O'odham Police Department, and the police contacted the U.S. Border Patrol. At the direction of the police department, the rangers detained Becerra-Garcia and put him in the back seat of their jeep until the Border Patrol and tribal police officers arrived about thirty minutes later.

Becerra-Garcia was later charged with conspiring to transport illegal aliens and with transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). The district court denied Becerra-Garcia's motion to suppress the evidence of the illegal aliens. Becerra-Garcia then entered a conditional plea of guilty, preserving his right to appeal the denial of his motion to suppress.

DISCUSSION

We review de novo a district court's denial of a motion to suppress. United States v. Garcia, 205 F.3d 1182, 1186 (9th Cir.2000). We also review de novo whether an encounter between a police officer and an individual amounts to a seizure, United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997), and whether an investigatory stop was proper, United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1083-84 (9th Cir.2000).

At issue in this appeal is the intersection of a tribal policy and the Fourth Amendment in the context of a motion to suppress evidence stemming from a traffic stop. Ironically, the parties each argue that the Fourth Amendment does not apply. Even more ironically, both are correct, but not for the reasons they offer.

Becerra-Garcia claims that the tribal officers were acting in a private capacity and therefore state law on citizen's arrest, not the Fourth Amendment, comes into play. The Government counters that Becerra-Garcia stopped voluntarily and thus there is no Fourth Amendment unreasonable seizure consideration. Both are wrong. The tribal officers were government agents, not private actors, and the stop was not voluntary. Yet the Fourth Amendment does not apply because the constitution does not directly apply to the conduct of tribal governments. Even so, a federal statute imposes precisely the same constraints on tribal governments as the Fourth Amendment, so Fourth Amendment law comes into play.

I. THE APPLICABLE LAW

At the outset, this case presents a thorny issue because the stop was made by tribal rangers on tribal land, although the arrest was made by federal officers. The wrinkle is that, while both parties have briefed this appeal as a Fourth Amendment case, the Fourth Amendment does not directly govern the conduct of tribal governments. United States v. Manuel, 706 F.2d 908, 911 n. 3 (9th Cir.1983) (noting that the Fourth Amendment does not directly apply to Indian tribes) (citing United States v. Wheeler, 435 U.S. 313, 329, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978)). Nonetheless, the Indian Civil Rights Act ("ICRA") imposes an "identical limitation" on tribal government conduct as the Fourth Amendment.1 Id.; see also United States v. Strong, 778 F.2d 1393, 1397 (9th Cir.1985). Thus, we analyze the reasonableness of the stop under well developed Fourth Amendment precedent, which nets the same result as an analysis under ICRA.

We assume, as have courts before us, that suppression of evidence in a federal proceeding would be appropriate if the rangers' conduct violated ICRA. See United States v. Male Juvenile, 280 F.3d 1008, 1023 (9th Cir.2002) (considering suppression of evidence based on argument that confession was wrongfully obtained by tribal investigators); Strong, 778 F.2d at 1396-97 (considering suppression of evidence based on argument that search violated ICRA); Manuel, 706 F.2d at 911-12 (considering suppression of evidence based on argument that arrest by tribal officers violated ICRA).2

Becerra-Garcia would have us avoid analyzing this appeal through the Fourth Amendment lens, not because the rangers are tribal officers, but because they acted in their capacity as private citizens. Becerra-Garcia suggests that, because the tribal rangers lack the authority to stop cars, they were not acting in their capacity as government actors. Instead, he argues that citizen's arrest law, not the Fourth Amendment, controls the analysis. See State v. Chavez, 208 Ariz. 606, 96 P.3d 1093, 1094 & n. 1 (2004) (applying citizens' arrest framework to a stop conducted by tribal rangers for the San Xavier Indian Reservation). He further contends that there is no state law basis for a citizen's arrest in these circumstances.

This approach, while creative, misses the mark. For Fourth Amendment purposes, an individual is a government agent if the government knew of and acquiesced in the officer's activities, and the party performing a seizure intended to assist law enforcement and did not act to further his own ends. United States v. Reed, 15 F.3d 928, 931 (9th Cir.1994) (citing United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982)). Here, two different government entities — the Tohono O'odham Police Department and the Border Patrol — acknowledged and endorsed the patrol activities of the rangers. Indeed, the function of the rangers is to assist the tribal police department and Border Patrol by policing the remote corners of the reservation. The rangers stopped Becerra-Garcia to enforce the criminal trespass laws of the tribal nation, not to effect a personal benefit. Thus, because ICRA and the Fourth Amendment impose equivalent restrictions and because the rangers are government actors, we apply Fourth Amendment law to resolve this appeal.

II. THE STOP — A SEIZURE UNDER FOURTH AMENDMENT STANDARDS

The threshold question is whether there was a stop by the rangers or whether Becerra-Garcia voluntarily stopped his van. The government takes the position that the Fourth Amendment is not implicated because Becerra-Garcia stopped his van voluntarily, not as a result of government intrusion.

Becerra-Garcia testified that he stopped because the rangers flashed their emergency lights whereas the rangers claimed that they activated their lights only after the van had stopped. The district court weighed this conflicting testimony and sided with Becerra-Garcia, finding that the rangers effected a stop of the van.

We review the district court's factual findings for clear error, and we do not disturb those findings unless "they are without foundation." United States...

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