U.S. v. Chavez, 01-20845.

• Decision Date: 04 February 2002
• Docket Number: No. 01-20845.,01-20845.
• Citation: 281 F.3d 479
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jacobo Isaias CHAVEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

281 F.3d 479

UNITED STATES of America, Plaintiff-Appellant, v. Jacobo Isaias CHAVEZ, Defendant-Appellee.

No. 01-20845.

United States Court of Appeals, Fifth Circuit.

February 4, 2002.

COPYRIGHT MATERIAL OMITTED

Katherine L. Haden, Asst. U.S. Atty. (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellant.

Roland E. Dahlin, II, Fed. Pub. Def., Brent Evan Newton, Asst. Fed. Pub. Def. (argued), Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, HIGGINBOTHAM and CLEMENT, Circuit Judges.

CLEMENT, Circuit Judge:

The government appeals from the district court's order granting the defendant's motion to suppress and dismissing the indictment with prejudice. For the following reasons, we reverse the district court's suppression ruling, vacate the district court's order of dismissal, and remand for further proceedings consistent with this opinion.

I.

In the early morning hours of May 19, 2001, Jacobo Isaias Chavez was working as a uniformed and visibly armed security guard stationed outside of the Fiesta Latina Nightclub ("the club") in Houston, Texas. At approximately 4:00 a.m., law enforcement agents converged at the club in connection with "Operation Bar Fly," a multi-agency investigation of nightclubs engaged in the unlawful after-hours sale of alcoholic beverages.¹ After undercover Texas Alcohol Beverage Commission ("TABC") agents entered the club and were served alcohol in violation of Texas liquor laws,² two Harris County sheriff's deputies approached Chavez and, speaking in English, requested to see his driver's license and security officer's commission (which confers authority to carry a firearm). Chavez complied with the officers' request.

While retaining Chavez's license and commission, but without taking his gun, the officers instructed Chavez to accompany them to a location across the club's parking lot, allegedly because the deputies had trouble communicating with Chavez in English and needed translation assistance. They brought Chavez to Immigration and Naturalization Service ("INS") agent Richard D. Perez,³ who, speaking in Spanish, identified himself as an INS agent and asked Chavez two questions relative to his immigration status. Chavez readily responded that he was a Mexican national in the United States illegally. Immediately thereafter, agents with the Bureau of Alcohol, Tobacco and Firearms arrested Chavez and seized his firearm.

Chavez was indicted on one count of being an alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). Thereafter, he moved to suppress his statements and the firearm, advancing several alternative theories: (1) that he was seized without reasonable suspicion in violation of the Fourth Amendment; (2) that he was not apprised of his Miranda rights in contravention of the Fifth Amendment; and (3) that his arrest was the result of a racial profiling scheme violative of Fourteenth Amendment equal protection guarantees.

After a hearing, the district court granted Chavez's motion to suppress on Fourth Amendment grounds.⁴ The court observed that the initial encounter in which the officers requested to see Chavez's license and commission was constitutionally permissible, but found that Chavez was "temporarily detained to ascertain whether he was legally carrying a permit for the firearm." Finding that there was no sufficiently particularized reason to further question Chavez once he provided the requested documentation, the court concluded that the officers lacked reasonable suspicion to continue their questioning. On this basis, the court entered an order dismissing the indictment with prejudice. The government timely filed a notice of appeal. Counsel for Chavez conceded in his brief and at oral argument that the district court's dismissal of the indictment was erroneous.

II.

A.

In considering a ruling on a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions, including its ultimate conclusion as to the constitutionality of the law enforcement action, de novo. United States v. Carreon-Palacio, 267 F.3d 381, 387 (5th Cir.2001). We view the evidence in the light most favorable to the party that prevailed in the district court — in this case, Chavez. United States v. Jordan, 232 F.3d 447, 448 (5th Cir.2000).

1.

The government contends that Chavez's entire encounter with law enforcement authorities, including his interaction with agent Perez, was merely a police-citizen encounter that did not rise to the level of a Fourth Amendment seizure. Chavez conceded in the district court that his initial encounter with the deputies in which they asked him for his license and commission did not offend the Fourth Amendment. However, Chavez urged, and the district court agreed, that the encounter was transformed into a detention subject to Fourth Amendment protection when the deputies, after receiving satisfactory proof of his identification and authority to carry a weapon, took Chavez to agent Perez for further questioning.

Not every encounter between a citizen and a police officer implicates the Fourth Amendment. INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). Generally, police questioning, by itself, does not fall within the ambit of Fourth Amendment protections. Id. at 216, 104 S.Ct. 1758. However, an initially consensual encounter may ripen into a seizure requiring reasonable suspicion or probable cause if an officer, by means of physical force or show of authority, restrains the liberty of a person. Id. at 215, 104 S.Ct. 1758.

Chavez's encounter with police occurred while he was working as a security guard. As the Supreme Court observed in INS v. Delgado, 466 U.S. at 218, 104 S.Ct. 1758, "when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers' voluntary obligations to their employers." Where movement is restricted by a factor independent of police conduct, the proper inquiry is "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). We must consider all the circumstances surrounding the encounter and ask whether the officers' conduct would have caused a reasonable person to believe that he was not free to ignore the police presence and go about his business. Id. at 437, 111 S.Ct. 2382. The "reasonable person" test presupposes an innocent person. Id. at 438, 111 S.Ct. 2382.

In support of his contention that he was seized, Chavez relies on the Supreme Court's plurality decision in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). There, two plain-clothes airport detectives approached Royer on an airport concourse and requested to see his airline ticket and driver's license. Without returning the ticket and license, the detectives asked Royer to accompany them to a small room approximately 40 feet away, and Royer complied. The Supreme Court found the officers' initial conduct in requesting Royer's ticket and license was permissible, but concluded that the encounter ripened into a detention for the purposes of the Fourth Amendment "when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart." Id. at 501, 103 S.Ct. 1319.

Royer is factually similar to this case in that the officers brought Chavez to another location while retaining his documentation. But Royer is readily distinguishable from the other facts of this case. Here, the entire encounter took place in a public setting; unlike Royer, Chavez was not taken to a small room outside of the public's view, but remained in a crowded parking lot at all times. In addition, Chavez was never told that he was suspected of criminal activity. To the contrary, there is some indication in the record that because of the apparent language barrier between Chavez and the deputies, Chavez was brought to agent Perez merely for translation assistance, not to "hold" Chavez for a criminal investigation.

This case presents another fact not present in Royer: Throughout the encounter, Chavez remained in control of his firearm despite the officers' knowledge that he was armed. Notably, at no time prior to his formal arrest did the officers attempt to remove his gun from him. We find the suggestion that a reasonable person would believe that he was not free to leave while he remained visibly armed with a firearm untenable.

Further, there is no record evidence that the officers' conduct was accompanied by any coercive show of authority (e.g., use of a commanding tone of voice, physical contact with Chavez, etc.). Chavez testified that none of the officers had their guns drawn at any time during the incident and that no one told him that he was not free to leave. We also observe that Chavez was working as a security guard at the time of his alleged seizure. Chavez acknowledged that in his capacity as a security guard, he routinely dealt with law enforcement officers. This fact necessarily factors into our analysis, for it follows that a reasonable person working as a security guard would not be inclined to find this type of contact with law enforcement coercive.

Considering all the circumstances surrounding this encounter, we find that a reasonable person in Chavez's position would have felt free to ignore the officers' questioning. On balance, the evidence does not reveal a coercive atmosphere; rather, the record indicates that Chavez, an armed security guard accustomed to dealing with law enforcement, voluntarily answered agent Perez's brief questions....