United States v. Tamayo-Baez

• Citation: 820 F.3d 308
• Decision Date: 11 April 2016
• Docket Number: No. 15–2063.,15–2063.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Ismael TAMAYO–BAEZ, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

820 F.3d 308

UNITED STATES of America, Plaintiff–Appellee

v.Ismael TAMAYO–BAEZ, Defendant–Appellant.

No. 15–2063.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 16, 2015.

Filed: April 11, 2016.

Rehearing and Rehearing En Banc Denied May 31, 2016.^*

Daniel C. Tvedt, AUSA, argued, Cedar Rapids, IA, for Plaintiff–Appellee.

Rockne Ole Cole, argued, Iowa City, IA, for Defendant–Appellant.

Before WOLLMAN, LOKEN, and BYE, Circuit Judges.

BYE

, Circuit Judge.

Ismael Tamayo–Baez pled guilty to illegal reentry by a removed alien in violation of 8 U.S.C. § 1326(a)

. As a condition of his guilty plea, Tamayo–Baez reserved the right to appeal the district court's¹ denial of his motion to suppress and motion to dismiss the indictment. Tamayo–Baez argues the district court erred in denying his motion to suppress because law enforcement violated his Fourth Amendment rights by performing a traffic stop without reasonable suspicion. He also asserts the district court erred in denying his motion to dismiss the charge of illegal reentry by a removed alien because his final order of removal in 2004 was not adequately explained to him in Spanish and therefore violated his due process rights. We find law enforcement had reasonable suspicion to perform a traffic stop and that Tamayo–Baez's rights were adequately explained to him in Spanish. We affirm.

I

Tamayo–Baez illegally entered the United States in 1997. In 2002, Tamayo–Baez married an American citizen and subsequently filed paperwork to obtain lawful status. Tamayo–Baez and his wife resided in Hampton, Iowa.

In February 2004, Tamayo–Baez was convicted of domestic abuse assault and two counts of making false licenses in the Iowa District Court for Franklin County. That same month, Tamayo–Baez received three immigration forms: (1) Notice of Rights and Request for Disposition (Notice of Rights); (2) Notice to Appear before an Immigration Judge (Notice to Appear); and (3) a Stipulated Request for Removal Order and Waiver Hearing (Stipulation for Removal). The Notice of Rights, which was printed in Spanish and English, alleged Tamayo–Baez was in the United States illegally and had the right to a hearing before the Immigration Court to determine if he could remain in the United States. On this form, Tamayo–Baez checked and initialed the box written in Spanish indicating he admitted he was in the United States illegally, he wished to return to Mexico, and that he waived his right to a hearing before the Immigration Court. Both Tamayo–Baez and an immigration officer signed and dated the Notice of Rights form which stated Tamayo–Baez had read the form in Spanish and that the form was also read to him by the immigration officer in Spanish. Second, the Notice to Appear set forth Tamayo–Baez's rights at a removal hearing. An immigration agent certified that an immigration officer read the Notice to Appear form to Tamayo–Baez in Spanish. Tamayo–Baez signed the form. Lastly, the Stipulation for Removal was printed in both English and Spanish and stipulated that Tamayo–Baez waived his right to a removal hearing and instead requested the Immigration Judge (IJ) issue an order based on the written record. In this form, Tamayo– Baez waived his right to appeal the IJ's decision. Tamayo–Baez filled out the Stipulation for Removal in Spanish and English by circling responses. He signed the Stipulation for Removal which indicated he read and understood the form and that his decision to stipulate was voluntarily, knowingly, and intelligently made.

On March 9, 2004, an IJ ordered Tamayo–Baez be removed from the United States. One week later, Tamayo–Baez was removed to Mexico.

In the fall of 2014, Immigration and Customs Enforcement (ICE) agents were investigating the fraudulent use of social security numbers by illegal immigrants by checking vehicle registrations at worksites in Iowa. During the investigation, ICE agents found a 1997 black Jeep Cherokee registered to Tamayo–Baez's wife, Andrea Tamayo, with a Hampton, Iowa, address. Immigration officers performed a computer check of the Hampton residence and Ismael Tamayo–Baez's name was associated with that address. Immigration officers then conducted a criminal history check on Tamayo–Baez and the search revealed he had been convicted of domestic abuse assault in 2009—after he was removed—in Franklin County, Iowa.² Further, a social media inquiry revealed a photo of Tamayo–Baez in front of the black Jeep Cherokee. Accordingly, ICE Agent Kevin Taylor testified he believed Tamayo–Baez unlawfully reentered the United States.

On the morning of October 23, 2014, Agent Taylor drove to the house in Hampton where he believed Tamayo–Baez resided. Shortly after arriving at the residence, Agent Taylor testified that he saw a male matching Tamayo–Baez's description get into a black Jeep Cherokee and drive away. Agent Taylor followed the Jeep and at around 5:50 a.m., he stopped the Jeep as it was heading out of town.

Agent Taylor testified that he asked the driver for his name and that the driver stated his name was Ismael Tamayo or Ismael Tamayo–Baez. Agent Taylor also asked Tamayo–Baez what country he was from and he responded he was from Mexico. Agent Taylor testified he asked Tamayo–Baez if he had any papers to be in the country legally and he said no. At that point, Agent Taylor told Tamayo–Baez to step out of the vehicle and that he was under arrest for violating immigration law. Agent Taylor took Tamayo–Baez to the Franklin County Sheriff's Office and fingerprinted him for identification purposes. The fingerprint results confirmed Tamayo–Baez's identity.

A grand jury charged Tamayo–Baez in an indictment with one count of illegal reentry by a removed alien in violation of 8 U.S.C. § 1326(a)

. Tamayo–Baez filed a motion to suppress alleging Agent Taylor lacked reasonable suspicion to perform a traffic stop. After an evidentiary hearing on the motion, the magistrate judge issued a Report and Recommendation recommending the district court deny the motion to suppress. The district court adopted the Report and Recommendation and denied the motion to suppress.

Tamayo–Baez also filed a motion to dismiss the indictment based upon a collateral attack of the final removal order. The district court held an evidentiary hearing on the motion where Tamayo–Baez testified that he did not understand the forms he had signed because he is functionally illiterate and the immigration officer only explained his rights to him in English. The district court found Tamayo–Baez's testimony not credible and denied the motion to dismiss.

Following the district court's denial of Tamayo–Baez's motion to suppress and motion to dismiss, Tamayo–Baez entered a conditional plea of guilty. Tamayo–Baez reserved the right to appeal the district court's denial of his motion to suppress and motion to dismiss. The district court sentenced Tamayo–Baez to a term of eight months' imprisonment, and Tamayo–Baez timely filed this appeal.

II

A

Tamayo–Baez argues Agent Taylor lacked reasonable suspicion to conduct a traffic stop because he improperly relied on an inchoate hunch as to the identification of the driver prior to the traffic stop. Tamayo–Baez therefore claims the traffic stop was unlawful and the district court erred by not suppressing the evidence obtained as a result of his unlawful stop. We disagree.

“We review the denial of a motion to suppress de novo but the underlying factual determinations for clear error, giving due weight to inferences drawn by law enforcement officials.” United States v. Hurd, 785 F.3d 311, 314 (8th Cir.2015)

(quoting United States v. Clutter, 674 F.3d 980, 982 (8th Cir.2012) ). The Fourth Amendment permits investigative traffic stops when law enforcement has reasonable suspicion of criminal activity. Navarette v. California, ––– U.S. ––––, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014). “Reasonable suspicion exists when an ‘officer is aware of particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.’ ” United States v. Givens, 763 F.3d 987, 989 (8th Cir.2014) (quoting United States v. Hollins, 685 F.3d 703, 706 (8th Cir.2012) ). “While reasonable suspicion must be more than an inchoate hunch, the Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory stop.” United States v. Fuse, 391 F.3d 924, 929 (8th Cir.2004) (internal quotation marks omitted). We must evaluate whether the officer had “reasonable suspicion of criminal activity” in light of “the totality of the circumstances.” United States v. Walker, 555 F.3d 716, 719 (8th Cir.2009).

We find Agent Taylor had reasonable suspicion to perform a traffic stop on Tamayo–Baez. Immigration officers had information to believe Tamayo–Baez had illegally reentered the United...