United States v. Guijon-Ortiz

• Decision Date: 10 November 2011
• Docket Number: No. 10–4518.,10–4518.
• Citation: 660 F.3d 757
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Saul GUIJON–ORTIZ, a/k/a Daniel Gaitan, a/k/a Saul Ortiz–Guijon, a/k/a Daniel Juatan, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

660 F.3d 757

UNITED STATES of America, Plaintiff–Appellee,

v.Saul GUIJON–ORTIZ, a/k/a Daniel Gaitan, a/k/a Saul Ortiz–Guijon, a/k/a Daniel Juatan, Defendant–Appellant.

No. 10–4518.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 23, 2011.Decided: Nov. 10, 2011.

ARGUED: Jonathan D. Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. Erik S. Goes, Office of the United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, George H. Lancaster, Jr., Assistant Federal Public Defender, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Charleston, West Virginia, for Appellee.

Before GREGORY and DAVIS, Circuit Judges, and Damon J. KEITH, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.

Affirmed by published opinion. Judge DAVIS wrote the opinion, in which Judge GREGORY and Senior Judge KEITH joined.

OPINION

DAVIS, Circuit Judge:

Saul Guijon–Ortiz appeals his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a), (b)(2).

Guijon–Ortiz was a back-seat passenger in a pickup truck during a routine traffic stop. After the officer asked him for identification, Guijon–Ortiz provided a fraudulently made Lawful Permanent Resident Identification Card that contained his photograph. The alien registration number (“A-number”) on the card did not match the name on the card. The officer learned of the mismatch when he called the local office of the Bureau of Immigration and Customs Enforcement (“ICE”) and inquired into the validity of the ID card. Guijon–Ortiz argues that during the time it took the officer to call ICE, he was subjected to an unconstitutional seizure, because calling ICE unlawfully prolonged the stop. Thus, he appeals the district court's denial of his motion to suppress his fingerprints, which were obtained when he was later transported to an ICE office and questioned. Because we conclude, under the totality of the circumstances, that the officer's call to ICE did not unreasonably prolong the seizure, we affirm.

I.

A.

On the afternoon of April 29, 2009, Cpl. Fred Flowers of the Kanawha County, West Virginia Sheriff's Office was assigned to highway patrol just outside Charleston, West Virginia. With his radar, he clocked a passing Dodge pickup truck at 66 miles per hour on a stretch of highway with a posted limit of 65 miles per hour. Flowers testified that the driver braked when he saw Flowers with his radar gun, and that the driver and front passenger turned their heads down (away from Flowers) as they passed. Flowers pulled off the shoulder and began to follow the truck.

Flowers testified that the truck slowed to 55 miles per hour and, when he attempted to pull up alongside it, it would either speed up or slow down. Flowers then began to follow at a distance. He observed that the truck had a Georgia license plate and saw the truck “cross over into the emergency lane several times.” J.A. 27. He stopped the vehicle because “[i]t was giving indicators of someone probably impaired or doing suspicious activity.” J.A. 28. At 2:11 p.m., Flowers pulled the truck over.

There were three people in the truck. As Flowers would eventually learn, the driver was Juan Lopez–Villafuerte, the front-seat passenger was Juan's brother, Noe Lopez–Villafuerte, and the back-seat passenger was Guijon–Ortiz, a close friend of both Juan and Noe who also worked with Juan for a gas company. The three men had been in Charleston to buy shoes, and were returning to the hotel where they were living at the time.

Upon stopping the truck, as Juan testified, Flowers told him that he had observed the truck crossing onto the shoulder, and that “when you go on the line, ... it could be because you are under the influence or you could have been drinking alcohol.” J.A. 130. Flowers asked Juan for his driver's license, the vehicle's registration, and proof of insurance. He also asked for identification from the front- and back-seat passengers. Flowers testified that he “frequently” asks all occupants of a vehicle to provide identification, in order to “make sure they are not wanted out of another state or here locally in West Virginia.” J.A. 29. The two men in the front seat complied, handing him Georgia identification cards, but Guijon–Ortiz did nothing. Flowers then asked Juan if Guijon–Ortiz spoke English; Juan replied that he did not. Flowers asked Juan to repeat the request in Spanish, which he did. At that point, Guijon–Ortiz handed Flowers a Lawful Permanent Resident Card (“LPR card” or “green card”) in the name of Daniel Gaitan (the “Gaitan ID”).¹ Flowers testified that Guijon–Ortiz appeared “very nervous” and “was shaking” as he did so. J.A. 32.

Flowers then returned to his patrol car. He checked the driver's license and the vehicle's registration, and they both came back as valid. He contacted his headquarters and asked them to search for outstanding arrest warrants for Juan, Noe and “Daniel Gaitan.” Someone at Flowers's headquarters entered the names into the National Crime Information Center (“NCIC”) database. “Within 30 seconds,” Flowers was informed that there were no outstanding warrants for the three individuals. J.A. 33, 46.

Flowers did not proceed to issue a citation for speeding or crossing onto the shoulder, however. Nor did he return the ID cards and allow the three to go on their way. Instead, he decided to call ICE “[j]ust to verify the status of the ... permanent resident card.” J.A. 33. Flowers was not asked and did not explain at the suppression hearing whether (a) he suspected the Gaitan ID was false or altered, or belonged to someone else; (b) he suspected that, regardless of the validity of the ID, the defendant or one of the others might have been in the country unlawfully; (c) he called simply as a matter of routine, because he is accustomed to checking the validity of ID cards and (presumably, because the record does not indicate) the only way (or the easiest way) to check the validity of an LPR card is to call ICE; or (d) he simply had a hunch. The only evidence that might explain Flowers's decision to call ICE was that, when the defendant handed Flowers the Gaitan ID, the defendant appeared “very nervous, was shaking as he was handing out the ID.” J.A. 32. In any event, he called ICE to verify the validity of the ID the defendant had handed to him, which also meant he was checking the immigration status of “Daniel Gaitan.”

Flowers did not have the phone number for ICE, so he called his headquarters and asked to be transferred to the local ICE office, where he spoke with Special Agent Gary Hilton. Hilton testified that he received Flowers's call at approximately 2:30 p.m., at which point Flowers explained that a passenger had presented an LPR card during a traffic stop and asked that he “run the name and number to confirm that it was issued to that person.” J.A. 59. Flowers gave Hilton the name and number on the Gaitan ID, which Hilton said he would “verify.” J.A. 34. Hilton put Flowers on hold for “[a] few minutes” while he ran the number through the Central Index System, which tracks A-numbers when they are assigned to people. J.A. 34. Hilton came back on the line, and asked Flowers to repeat the name and number. Hilton then informed Flowers that the A-number did not match that name. This “led [Hilton] to believe that the number was not actually his and that card wouldn't be his.” J.A. 60. Upon learning of the mismatch, Flowers had Hilton run Juan's and Noe's names through the Central Index System as well. The search showed that they were a naturalized U.S. citizen and a lawful permanent resident, respectively.

According to Flowers, it took “[j]ust a few minutes” for him to contact headquarters, for headquarters to run the names through the NCIC database and inform Flowers that there were no outstanding warrants, then for Flowers to call ICE, and for Hilton to run two searches of its database and inform Flowers that the information on the Gaitan ID did not match the ICE database. J.A. 33–34. Because the warrant check took just 30 seconds, it appears from the record that most of those “few minutes” were spent on the phone waiting for Hilton to verify the validity of the Gaitan ID.

After Hilton expressed his belief that the Gaitan ID was invalid, he asked Flowers to put the defendant on the phone, “to verify his name and who he was, [and to] see if he was in the country legally or not.” J.A. 60. Because Flowers was in an area with limited cell service, his cell phone only worked when plugged into a “cradle” in the patrol car. J.A. 35. So Flowers returned to the truck, had Guijon–Ortiz exit the truck and walk back to the passenger side of the patrol car, and handed the phone to Guijon–Ortiz. When Hilton realized he could not communicate with Guijon–Ortiz in English, he put an ICE agent on the phone who knew some Spanish, Agent Crystal Beveridge. Guijon–Ortiz admitted to Beveridge that he did not have a green card or other papers authorizing him to be in the United States, but he continued to state that his name was Daniel Gaitan. From these admissions, Beveridge concluded that there was probable cause to believe Guijon–Ortiz “was illegally in the United States.” J.A. 94. According to Beveridge, this conversation lasted “less than five minutes.” J.A. 94. Beveridge then explained to Hilton that the defendant had admitted being in the country illegally.

Hilton then spoke with Flowers again and told him that because the A-number did not match the name on the card, and because the defendant had admitted “being in the country illegally, [they] had probable cause to believe he was an illegal alien.” J.A. 63. Hilton then asked Flowers to bring Guijon–Ortiz to the ICE office. Flowers returned to the stopped vehicle and asked the driver to step...