457 F.3d 928 (9th Cir. 2006), 05-30186, United States v. Manzo-Jurado

Docket Nº:05-30186.
Citation:457 F.3d 928
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sergio MANZO-JURADO, Defendant-Appellant.
Case Date:June 20, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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457 F.3d 928 (9th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Sergio MANZO-JURADO, Defendant-Appellant.

No. 05-30186.

United States Court of Appeals, Ninth Circuit.

June 20, 2006

        Argued and Submitted April 5, 2006.

        Amended July 31, 2006.

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        Anthony R. Gallagher, Assistant Federal Defender, Federal Defenders of Montana, Great Falls, MT, for the defendant-appellant.

        William W. Mercer, United States Attorney, and Elizabeth Horsman, Assistant United States Attorney, United States Attorney's Office, Helena, MT, for the plaintiff-appellee.

        Appeal from the United States District Court for the District of Montana, D.C. No. CR-04-00169-SEH, Sam E. Haddon, District Judge, Presiding.

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        Before: William C. Canby, Jr., Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

        ORDER AMENDING OPINION AND AMENDED OPINION

        BEA, Circuit Judge.

        ORDER

        The disposition filed on June 20, 2006 and available at 452 F.3d 1028, 2006 WL 1679413 is AMENDED as follows. At page 2, note 3 of the opinion, the following sentence shall be deleted in its entirety:

At oral argument, the Government conceded that Manzo-Jurado was seized within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, so as to require reasonable suspicion.

        At page 2, note 3 of the disposition, the following sentences shall be inserted to replace the deleted sentence:

Manzo-Jurado was seized within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because Kaul's "show hands order [to the truck occupants] was a 'meaningful interference' with [Manzo-Jurado's] freedom." See United States v. Enslin, 327 F.3d 788, 795(9th Cir.2003) (quoting United States v. Jacobsen, 466 U.S. 109, 113 n. 5, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). On cross-examination, Kaul agreed that he had ordered the truck occupants to show their hands when he had "first approached" the truck. Therefore, the order to show hands took place before Manzo-Jurado admitted to being in this country illegally. We find "[a] reasonable person in [Manzo-Jurado's] situation would not have felt free to ignore the request of [Kaul]." See id.

        With this amendment, a majority of the panel votes to deny the petition for rehearing. Judge Gould votes to grant the petition for rehearing.

        Appellant United States' petition for rehearing is DENIED.

        IT IS SO ORDERED.

        OPINION

        We revisit the important issue of when information available to officers creates a reasonable suspicion that an individual is in the United States illegally so as to justify an investigatory stop. Given the particular facts of this case— individuals' appearance as a Hispanic work crew, inability to speak English, proximity to the border, and unsuspicious behavior—law enforcement lacked reasonable suspicion that Appellant and his co-workers were in this country illegally.

        I.

        On November 20, 2004, Manzo-Jurado and five of his co-workers attended the high school football state championship game between Havre High School and Billings Central High School in Havre, Montana. Manzo-Jurado and his co-workers stood together by a fence and conversed in Spanish.

        During the second half of the game, a Havre police officer, Officer Robinson, noticed Manzo-Jurado and his co-workers. Thinking they might be illegal aliens, Robinson called the United States Border Patrol. Border Patrol Agent David Bischoff responded to the call and drove his patrol unit into the stadium. The Border Patrol dispatcher informed Bischoff that the group was not creating any problems and did not appear to be doing anything illegal.

        Robinson also spoke with Border Patrol Agent Arlin Kaul who, while off duty, was watching the game with his wife. Kaul had not noticed the men until Robinson brought them to his attention. When Bischoff

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arrived at the stadium, Kaul and Bischoff walked behind the bleachers, glanced quickly at the Hispanic men, and decided to conduct a field interview in a more private setting than the football game. Bischoff (uniformed, and on duty) and Kaul (not in uniform, and off duty) then parted ways.

        Upon leaving Bischoff, Kaul approached the group of Hispanic men to get a better look. Whereas Robinson had mentioned six men, Kaul noticed only four. Kaul observed the men speaking in Spanish to each other. They did not mingle with the other attendees, they were unaccompanied by family members, they appeared to comprise a work crew, and they did not cheer for one team or the other. While Kaul was observing the men, Bischoff returned to his Border Patrol car and positioned it on a street near the stadium.

        Sometime before Kaul approached the group to get a better look, with about ten to twenty minutes left in the game, Manzo Jurado and another member of his group, Pedro Santos, had left the game to get out of the cold. As they left the stadium, they walked past their vehicle—a truck owned by Polaris, their employer—and passed Bischoff's marked Border Patrol car. About one block later, they turned around and headed back, again passing the Border Patrol car. Manzo-Jurado and Santos noticed Bischoff's Border Patrol car both times they passed it. They found where they had parked, got in the truck, started it, turned it around, and remained on the same street with the engine running.

        Fifteen or twenty minutes later, Manzo-Jurado and Santos were joined by their four remaining co-workers. At that point, Kaul approached the driver's-side door of the truck while FBI Agent Stacy Smiedala1 walked to the back of the truck, drew her gun from her ankle holster, and approached the passenger-side door.2 kaul first addressed the passengers in English but, when he received no verbal response, he identified himself in Spanish as a Border Patrol agent, using the slang term "la migra." At some point, Kaul reached into the truck and turned off the engine. Kaul also told the men, in Spanish, to keep their hands where the agents could see them. Kaul asked the men where they were from and whether they had immigration documents. Whereas five members of the group stated that they were from El Salvador and had immigration documents, Manzo-Jurado stated that he was from Mexico and did not have such documents.

        The agents immediately placed Manzo-Jurado under arrest. Several other Border Patrol vehicles arrived on the scene and, after Bischoff learned from Kaul that Manzo-Jurado was illegal, Bischoff took over the investigation. Manzo-Jurado was taken to the station for processing.

        About a week after Manzo-Jurado's arrest, Border Patrol agents contacted Polaris and received copies of documents that Manzo-Jurado had used to gain employment. Further investigation revealed that Manzo-Jurado's social security card was counterfeit, and a criminal complaint was filed against him, charging him with misuse of a social security number in violation of 42 U.S.C. § 408(a)(7)(B). Manzo-Jurado

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was arraigned in district court on December 21, 2004.

        On January 12, 2005, Manzo-Jurado filed a motion to suppress all evidence derived from his arrest. He argued that the agents had lacked reasonable suspicion to justify the investigatory stop that had revealed his illegal status. The district court held a hearing on February 9, 2005, and denied Manzo-Jurado's motion. The district court held that Manzo-Jurado had not been subjected to full-blown arrest until after admitting his illegal status, and that reasonable suspicion had justified the investigatory stop. In addition, the district court found that, even if the agents had lacked reasonable suspicion to stop Manzo-Jurado, Manzo-Jurado's motion would fail because identity evidence is not suppressible.

        The parties agreed to a trial by stipulated facts, which took place on February 22, 2005. The district court found Manzo-Jurado guilty and sentenced him to time served, followed by two years of supervised release. This timely appeal followed.

        II.

        The reasonable suspicion inquiry is a question of mixed law and fact, and we review it de novo . United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2001).

        III.

        The Fourth Amendment requires that, before officers conduct an investigatory stop of an individual, they must have reasonable suspicion the individual has, or is about to have, committed a crime.3 United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court in Brignoni-Ponce held that, "when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion." 422 U.S. at 881, 95 S.Ct. 2574. In United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), the Supreme Court's most recent opinion regarding the reasonable suspicion standard for investigatory stops, the Court explained:

[W]e have said repeatedly that [reviewing courts] must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. This process allows officers to draw on their own experience...

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