U.S. v. Hernandez-Reyes

• Decision Date: 07 June 2007
• Docket Number: No. EP-07-CR-519-PRM.,EP-07-CR-519-PRM.
• Citation: 501 F.Supp.2d 852
• Parties: UNITED STATES of America v. Roberto HERNANDEZ-REYES, Defendant.
• Court: U.S. District Court — Western District of Texas

Page 852

501 F.Supp.2d 852

UNITED STATES of America v. Roberto HERNANDEZ-REYES, Defendant.

No. EP-07-CR-519-PRM.

United States District Court, W.D. Texas, El Paso Division.

June 7, 2007.

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Donna Svet Miller, Assistant U.S. Attorney, El Paso, TX, for Plaintiff.

Edgar H. Holguin, Public Defenders Office, El Paso, TX, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS

MARTINEZ, District Judge.

On this day, the Court considered Defendant Roberto Hernandez-Reyes's "Motion to Suppress," filed on March 29, 2007; the Government's "Response to Defendant's Motion to Suppress," filed on April 9, 2007; and the testimony and arguments offered at a Suppression Hearing held on May 3, 2007. After careful consideration of the evidence and briefs, the Court is of the opinion that Defendant's Motion to Suppress should be granted in part and denied in part for the reasons that follow.

I. FINDINGS OF FACT

On February 23, 2007, Border Patrol Agents Curtis Logan, Adrian Lorincz, Fernando Almanza, and Jose Craules (hereinafter referred to collectively as "the Agents") were traveling in an unmarked vehicle westbound near the intersection of Copia and Montana in central El Paso. Agent Logan, the Field Training Officer, was the driver of the vehicle. Agents Lorincz, Almanza, and Craules were all in training, having recently graduated from the Border Patrol academy in December 2006. Agent Lorincz was in the front passenger seat, Agent Almanza was sitting in the second row along with Jose Neri-Gonzalez,¹ and Agent Craules was sitting alone in the third row. The Agents were all wearing their green Border Patrol dress uniforms, and each carried a weapon.

Shortly after Neri-Gonzalez's arrest, the Agents passed Monterrey Business Plaza (the "shopping center"), a shopping center located at one of the north corners of the intersection of Montana and Dallas in central El Paso. Defendant and another individual, Conzumel Hernandez-Sanchez, were washing cars in the parking lot of the shopping center. Agent Logan, the driver. of the vehicle, recognized Hernandez-Sanchez as an individual whom he personally had previously apprehended for being in the United States illegally. Agent Logan made a U-turn on Montana and entered the parking lot of the shopping center.

When the Agents initially passed the shopping center, Agent Lorincz had observed various individuals outside the shops, but by the time the Agents turned around and pulled into the shopping center, Defendant and Hernandez-Sanchez were the only individuals in the parking lot or outside in the immediate area. Defendant and Hernandez-Sanchez were about ten feet apart; Defendant was on the south side of the parking lot, to the Agents' left, and Hernandez-Sanchez was on the north side, to the Agents' right. As the Agents pulled into the shopping center, Agent Lorincz saw Defendant look toward the Agents' vehicle, look away quickly, and then begin walking briskly toward the shopping center, crossing in front of the Agents' vehicle.

After the Agents' vehicle stopped in the parking lot, Agent Lorincz and Agent Almanza exited the vehicle. Agent Lorincz approached Hernandez-Sanchez, and instructed Agent Almanza to speak with Defendant. Agent Lorincz testified that he remembered instructing Agent Almanza to talk to Defendant; Agent Almanza testified that Agent Lorincz told him to "go question that guy [Defendant] before he leaves." Agent Almanza, at the time he exited the vehicle, also believed that Defendant should not be allowed to leave because of Defendant's physical proximity to Hernandez-Sanchez, a person Agent Logan knew had previously been in the United States illegally. Agent Almanza described Defendant as "the other subject" and stated that he was acting upon and following the instructions of Agent Logan.

At the time Agent' Almanza approached Defendant, he knew only that Defendant was with a person whom Agent Logan had apprehended previously for being in the United States illegally. At the time he was approached, Defendant was carrying a rag and walking in a direction away from Agent Almanza. Agent Almanza testified that he could not remember what he said to Defendant in order to get his attention, but believes it was something akin to "U.S. Border Patrol, can I speak to you?" Agent Almanza testified that he considered Defendant not free to leave from the moment Agent Almanza began speaking to him, and that had Defendant refused to answer his questions, he would, have taken him back to the station.

Agent Almanza initially informed Defendant in English that he was a Border Patrol agent; Defendant looked as if he did not understand Agent Almanza, so Agent Almanza repeated the information in Spanish. Agent Almanza testified that he did not feel safe in the area where he initially spoke to Defendant given the number of vehicles in that area. Agent Almanza told Defendant to put the rag down and asked Defendant to walk with him back to the Agents' vehicle. Agent Lorincz testified that Defendant looked as if he did not want to talk to Agent Almanza.

As Defendant and Agent Almanza began to walk back toward the vehicle, Agent Almanza asked Defendant in Spanish where he was from; Agent Almanza translated Defendant's Spanish response as "the other side."² When Agent Almanza and Defendant reached the Agents' vehicle, Agent Almanza asked Defendant if he had any documents that would allow him to be in the United States legally; Defendant replied that he did not. Upon hearing Defendant's response, Agent Almanza searched, handcuffed, and arrested Defendant. It is undisputed that Agent Almanza arrested Defendant without a warrant. The Agents then transported Defendant back to the El Paso Service Processing Center. On March 14, 2007, Defendant was charged in a one-count indictment with illegally reentering the United States, in violation of Title 8, United States Code, Section 1326.

II. STANDARD

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."³ U.S CONST. amend. IV. Furthermore, the protection of the Fourth Amendment extends beyond the home into a person's automobile and even out to the sidewalk. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (citing Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) ("[P]eople are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles."). The Fourth Amendment bars only unreasonable searches and seizures. See United States v. Brignoni-Ponce, 422 U.S. 873, 877, 95 S.Ct. 2574, 45' L.Ed.2d 607 (1975); United States v. Pierre, 958 F.2d 1304, 1308 (5th Cir.1992). The essential purpose of the Fourth Amendment is to impose a standard of reasonableness upon law enforcement agents. United States v. Laija-Garcia, 347 F.Supp.2d 350, 355 (W.D.Tex.2004), affd, 110 Fed.Appx. 411 (5th Cir.2004). The reasonableness inquiry is driven by a balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment, interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

"[I]nterrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure." INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). "So long as a reasonable person would feel free `to disregard the police and go about his business,' the encounter is consensual and no reasonable suspicion is required." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting California v Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). In other words, "the "police can be said to have seized an individual only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (internal quotation omitted).

Non-consensual investigative detentions are constitutionally permissible, provided that the detaining officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Border Patrol agents are authorized "to interrogate any alien or person believed to be an alien regarding his right to be or remain in the United States." 8 U.S.C. § 1357(a)(1); see 8 C.F.R. § 287.5(a). However, if an interrogation turns into an investigative detention, federal regulations provide that an investigative detention by an immigration officer must be based on "a reasonable suspicion, based on specific articulable facts, that the person being questioned is ... an alien illegally in the United States.'," 8 C.F.R. § 287.8(b)(2) (emphasis added).

"The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The movant satisfies his burden by "proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional." United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005). However, "warrantless searches and seizures are per se unreasonable unless they fall within a few narrowly defined exceptions." United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir.1993) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Therefore, "where a...