U.S. v. Bojorquez-Gastelum

• Decision Date: 29 November 1993
• Citation: 94 F.3d 656
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 656

94 F.3d 656

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee, v. Marcos Manuel BOJORQUEZ-GASTELUM, Defendant-Appellant.

No. 96-1004.

United States Court of Appeals, Tenth Circuit.

Aug. 16, 1996.

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

ORDER AND JUDGMENT ^*

After entering a conditional plea of guilty to a charge of illegally reentering the United States after deportation for an aggravated felony, see 8 U.S.C. § 1326, defendant Marcos Manuel Bojorquez-Gastelum appeals the denial of his motion to suppress evidence obtained after an encounter with police at Denver International Airport (DIA). The encounter resulted in the arrest of Bojorquez on drug charges, which were later dropped. Defendant argued below that his encounter with police officers at DIA was a seizure unsupported by reasonable suspicion, that the officers lacked probable cause to arrest him, and that evidence of his identity and criminal record were tainted by the illegal detention. The district court denied his motion to suppress, holding that the encounter prior to the arrest was consensual, and that probable cause supported the arrest. We agree and affirm.

I.

Reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accepting the district court's factual findings if not clearly erroneous; if the Fourth Amendment is implicated by the encounter in question, we review the ultimate question of reasonableness de novo. United States v. Alarcon-Gonzalez, 73 F.3d 289, 291 (10th Cir.1996). A person is not seized within the meaning of the Fourth Amendment "simply because a police officer approaches an individual and asks a few questions." Florida v. Bostick, 501 U.S. 429, 434 (1991). An encounter with police is consensual if a reasonable person would have felt "free 'to disregard the police and go about his business.' " Id. ( quoting California v. Hodari D., 499 U.S. 621, 628 (1991). The test as to whether a seizure has occurred requires that we evaluate the totality of the circumstances; only rarely will a single factor be determinative. United States v. Little, 18 F.3d 1499, 1503-04 (10th Cir.1994) (en banc). Our inquiry is focused on whether the police used "physical force or show of authority" to restrain a person's liberty. Immigration and Naturalization Serv. v. Delgado, 466 U.S. 210, 215 (1984) ( quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)). Defendant argues that he was seized during his initial encounter with police on a DIA train platform, or later when he was taken to the Narcotics Unit Office. We examine these contentions in turn.

A.

On the date of the events in question, Detective Petersohn of the Denver Police Department and Special Agent Sanchez of the Drug Enforcement Administration (DEA) were working on narcotics interdiction detail at DIA. The officers wore casual civilian clothes. The officers observed defendant as he left the jetway, apparently arriving in Denver on a direct flight from Los Angeles. Defendant briefly made eye contact with Detective Petersohn, and then rapidly looked away. He then walked to the center of the concourse area and met with another passenger from the same flight.

Arriving passengers at DIA must board an underground train to proceed to the main terminal. Bojorquez and his companion looked back toward the area where the police officers stood, then proceeded quickly to the train platform. This behavior increased the officers' interest in defendant and his companion's activity, so the officers followed the pair down the escalator to the platform. Defendant made eye contact with the officers again as he traveled down the escalator and as he reached the train platform. He proceeded quickly to the doorway; Petersohn interpreted his behavior as an attempt to hide. The officers introduced themselves to Bojorquez and showed him police identification, but made no other display of authority. They proceeded to question defendant and his companion about their identity and itinerary, and received apparently truthful answers. Petersohn briefly held the driver's license Bojorquez presented, but returned it to him. As the train arrived, Petersohn asked if the pair would accompany them to the Narcotics Unit Office at DIA, and they agreed to do so. The officers did not inform defendant or his companion that they were free to decline their request.

Defendant argues that the circumstances of this encounter were so intimidating as to constitute a seizure, relying primarily on Alarcon-Gonzalez, 73 F.3d at 292, and United States v. Little, 60 F.3d 708, 713-14 (10th Cir.1995) (" Little III "). In Alarcon-Gonzalez, the defendant was seized when "four to eight armed and uniformed police officers and INS agents" approached him and ordered his companion to "freeze," thus implying that force would be used if the command was not obeyed. 73 F.3d at 292. In Little III, the defendant was seized when she was subjected to "accusatory, persistent, and intrusive" questioning in a confined, private area and was asked to accompany officers to the baggage area of the train after having declined to permit officers to search baggage in her train compartment. 60 F.3d at 713-14.

Nothing nearly as intimidating occurred here. The police approached Bojorquez and his companion in an open, public area, displayed police identification, and asked a few questions. There is no evidence that the officers used an accusatory or threatening tone, displayed weapons, or commanded defendant or his companion to do anything. Although the officers did briefly examine defendant's driver's license, they promptly returned it to him. See United States v. Houston, 21 F.3d 1035, 1037 (10th Cir.1994) (officer's brief examination and return of train ticket did not convert consensual encounter into seizure). The failure of the officers to inform defendant of his right to refuse to cooperate is certainly relevant to our inquiry, Little III, 60 F.3d at 713, but under the circumstances of this case we do not agree that this failure converted an otherwise consensual encounter into a seizure.

B.

After boarding the...