94 F.3d 656 (10th Cir. 1996), 96-1004, U.S. v. Bojorquez-Gastelum

Docket Nº:96-1004.
Citation:94 F.3d 656
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marcos Manuel BOJORQUEZ-GASTELUM, Defendant-Appellant.
Case Date:August 16, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 656

94 F.3d 656 (10th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,


Marcos Manuel BOJORQUEZ-GASTELUM, Defendant-Appellant.

No. 96-1004.

United States Court of Appeals, Tenth Circuit

August 16, 1996

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA10 Rule 36.3 regarding use of unpublished opinions)

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


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.


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.


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....

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