623 F.3d 526 (8th Cir. 2010), 09-1764, United States v. Villa-Gonzalez

Docket Nº:09-1764.
Citation:623 F.3d 526
Opinion Judge:BYE, Circuit Judge.
Party Name:UNITED STATES of America, Appellant, v. Trinidad VILLA-GONZALEZ and Jose Manuel Villa-Gonzalez, Appellees.
Attorney:William C. Brown, argued, U.S. Department of Justice, Washington, DC, for appellant. Dana C. Bradford, III, argued, Omaha, NE, for appellee, Trinidad Villa-Gonzalez. Barbara Thielen, argued, Omaha, NE, for appellee, Jose Manuel Villa-Gonzalez.
Judge Panel:Before WOLLMAN, BYE, and MELLOY, Circuit Judges. WOLLMAN, Circuit Judge, dissenting.
Case Date:November 01, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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623 F.3d 526 (8th Cir. 2010)

UNITED STATES of America, Appellant,


Trinidad VILLA-GONZALEZ and Jose Manuel Villa-Gonzalez, Appellees.

No. 09-1764.

United States Court of Appeals, Eighth Circuit.

November 1, 2010

Submitted: May 11, 2010.

Page 527

William C. Brown, argued, U.S. Department of Justice, Washington, DC, for appellant.

Dana C. Bradford, III, argued, Omaha, NE, for appellee, Trinidad Villa-Gonzalez.

Barbara Thielen, argued, Omaha, NE, for appellee, Jose Manuel Villa-Gonzalez.

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

BYE, Circuit Judge.

Brothers Trinidad Villa-Gonzalez (Trinidad) and Jose Villa-Gonzalez (Jose) were indicted in 2008 on various criminal charges after police discovered methamphetamine, guns, money, and scales during a search of the brothers' residence. The district court 1 granted the brothers' motion to suppress the physical evidence discovered during the search of their residence, as well as certain incriminating statements they made to police. The government appeals, arguing the district court erred by concluding (1) Trinidad's initial encounter with the police was not consensual and statements he made during the encounter were involuntary, and (2) the evidence discovered during the search of the brothers' residence was inadmissible fruit of the poisonous tree. We affirm.


Keith Bignell, a drug investigator with the Nebraska State Patrol, received information in February 2008 that Trinidad and Jose Villa-Gonzalez were selling methamphetamine out of their trailer residence on 61st Avenue in Columbus, Nebraska. While driving by the trailer on the morning

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of May 29, 2008, Bignell saw a vehicle at the trailer and a person standing near the trailer. Bignell decided to attempt a " knock and talk" consensual contact at the residence. Bignell was driving an unmarked sedan at the time and was accompanied by Investigator Molczyk of the Columbus police. Bignell was armed with a pistol in a holster visible on his belt; he was wearing blue jeans, a t-shirt, and a vest displaying a badge emblem and marked with the word " police." Molczyk was wearing plainclothes with no visible weapon.

Before he approached the trailer, Bignell called for assistance and was joined by a uniformed officer, Trooper Dain Hicks, who was driving a marked patrol car. Trooper Hicks was visibly armed. As Bignell and the other officers approached the trailer, Bignell saw an individual later identified as Esau Valenzuela-Machado standing near the trailer. Bignell asked Valenzuela-Machado for identification, and Valenzuela-Machado provided a Mexican voter registration card. Bignell asked Valenzuela-Machado to accompany Trooper Hicks to the front of the trailer. Hicks then placed Valenzuela-Machado in the rear seat of his police cruiser and stood in the driveway near the front of the trailer.

Bignell and Molczyk approached the main door of the trailer and knocked. Jose answered the door. Bignell, standing on a deck outside the main door of the trailer, identified himself as a police officer, and he asked Jose for " some identification." Bignell also asked if he could come inside the trailer. Jose did not answer, but Trinidad came to the door and told Bignell he could not come inside. Bignell asked Trinidad for identification, and Trinidad responded by closing the door partially and leaving the doorway area. Trinidad then returned with a Nebraska identification card. Bignell and Trinidad then engaged in a brief conversation on the deck during which Trinidad told Bignell that he lived in the trailer along with his brother Jose. Jose returned to the door with his identification-a State of Washington driver's license-handed the ID to Trinidad, and returned once again inside the trailer. Trinidad handed over his and Jose's ID cards to Bignell. Trinidad asked Bignell what he wanted, and Bignell explained that he believed Trinidad and Jose were drug dealers. Trinidad denied the accusation. In response to a few more questions from Bignell, Trinidad stated that he was born in Mexico and that he did not have any additional forms of identification. Bignell asked Trinidad a second time for permission to search the trailer, and Trinidad again declined to consent to a search.

Bignell returned to his car and used his cell phone to call Mike Becker, an Immigration and Customs Enforcement (ICE) officer with the Department of Homeland Security in Omaha, and asked him to run immigration checks based on the information provided by the three men at the trailer. Becker ran the requested checks and called Bignell back in " five minutes or less." At that time, Becker told Bignell he wanted to speak with each of the individuals on the cell phone. While Bignell was talking with Becker, Trinidad stood just " outside the trailer on the deck with Investigator Molczyk." Pursuant to Becker's request to speak with each of the three men, Bignell " approached Trinidad on the-on the deck and handed him the cell phone." The nature of the interaction between Bignell and Trinidad is disputed by the parties. The district court found that Bignell " told" Trinidad to talk on the phone with Becker. The government asserts that this finding is clearly erroneous, and suggests, instead, that Bignell merely handed the phone to Trinidad. If Bignell said anything to Trinidad when he handed

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Trinidad the phone, the record is silent on the point.

In a " short conversation," Trinidad told Becker he was from Mexico, that he had entered the United States on a visitor's visa in June 2007, and that his documents were in the trailer. After Becker finished speaking to Trinidad, Bignell then entered the trailer, without consent, and handed the phone to Jose. Jose admitted to his status as an illegal immigrant. Finally, Bignell handed the phone to Valenzuela-Machado, who also admitted to his status as an illegal alien. At the conclusion of Becker's cell phone conversation with the men, Becker told Bignell to administratively arrest all three men as suspected illegal aliens, on the basis of Jose and Valenzuela-Machado's admission of their illegal status, and Becker's failure to find any record in his immigration database corroborating Trinidad's statement that he entered the United States on a visitor's visa in June 2007.

At this point, Bignell handcuffed Trinidad and placed him under arrest. 2 The three detained men were taken to the Platte County jail where Becker and another ICE investigator promptly arrived from Omaha to interview them regarding their immigration status. With respect to Trinidad, the government's computer records did not support his claim that he had lawfully entered the country, but Becker wanted to interview him because " sometimes there can be errors in databases." Becker testified the general purpose of his interviews with suspected illegal aliens is to seek information for administrative removal from the United States. Becker testified he conducts an " identity interview" addressing the person's

name, date of birth, family's name, do they have kids, are they married, are they sick, where do they live, where were they born, and then we have their entry data, because under the Immigration and Nationality Act, how an alien enters the United States determines [ ] which course of action that you actually take in the administrative process ... for removal.

Becker does not typically give Miranda warnings at the outset of these interviews, and he did not do so when he interviewed Trinidad at the jail. When Becker interviewed Trinidad, he inquired about the names of Trinidad's parents and his exact address in Mexico. When Becker told Trinidad the government did not have a record of him coming into the United States with a passport and visa as he had claimed, Trinidad incriminated himself, admitting he used fraudulent documents to gain entry. Because Trinidad appeared to Becker to have admitted to committing a felony by fraudulently using another person's documents to enter the United States, Becker immediately stopped questioning Trinidad.

On the assumption Trinidad likely kept the fraudulently-used documents at his residence, Becker decided to seek a warrant to search for such documents in Trinidad and Jose's trailer. The government applied for and obtained a search warrant, with the probable cause showing for the warrant based principally on Trinidad's disclosure that he had fraudulently used another person's documents to illegally enter the United States, along with his earlier statement that he stored the documents in his trailer. The warrant affidavit also relied on the fact that both Jose and Valenzuela

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admitted to their status as illegal aliens.

The search warrant for the trailer was executed at around 6 p.m. on the same day, May 29, 2008, by Becker and other ICE agents, along with Bignell and Molczyk. In the residence, officers discovered about $32,000 in currency, two handguns, two scales, and a quantity of methamphetamine.

On June 18, 2008, a federal grand jury in the District of Nebraska returned a five-count indictment against Trinidad and Jose. Count One charged both Trinidad and Jose with conspiring to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Two charged both Trinidad and Jose with possessing methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Count Three charged both Trinidad and Jose with unlawful possession of firearms by an alien illegally in the United States, in violation of 18 U.S.C. § 922(g)(5)(A). Count Four charged Trinidad with unlawfully reentering the United States after having been deported following conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. Count Five was a forfeiture count under 21 U.S.C. § 853.

In September 2008, Trinidad and Jose filed motions to suppress all their statements to...

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