U.S. v. Al Nasser

• Decision Date: 20 March 2007
• Docket Number: No. 05-10466.,05-10466.
• Citation: 555 F.3d 722
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Karim Hussein Al NASSER, aka Karim Hussein Al-Nasser, Karim H. Al Nasser, Kram Nseelt, Karim H. Alaassar, Defendant-Appellant.

555 F.3d 722

UNITED STATES of America, Plaintiff-Appellee, v. Karim Hussein Al NASSER, aka Karim Hussein Al-Nasser, Karim H. Al Nasser, Kram Nseelt, Karim H. Alaassar, Defendant-Appellant.

No. 05-10466.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 2006.

Filed March 20, 2007.

Amended February 4, 2009.

Appeal from the United States District Court for the District of Arizona; Neil V. Wake, District Judge, Presiding. D.C. No. CR-03-01122-NVW.

James Sun Park, Park Law Office, PLC, Phoenix, AZ, for defendant-appellant Karim Hussein Al Nasser.

Gary M. Restaino, Assistant U.S. Attorney, Phoenix, AZ, for the plaintiff-appellee.

Before: STEPHEN S. TROTT, ANDREW J. KLEINFELD, and N. RANDY SMITH, Circuit Judges.

ORDER AND AMENDED OPINION ORDER

The opinion filed on March 20, 2007, and appearing at 479 F.3d 1166 is amended and the dissent is withdrawn. The superseding opinion will be filed concurrently with this order.

The parties may file an additional petition for rehearing or rehearing en banc. All other pending motions are denied as moot.

OPINION

KLEINFELD, Circuit Judge:

In this amended opinion,¹ we address the applicability of the Fourth Amendment when the police intend not to stop someone, but that person nevertheless stops. We affirm.

FACTS

A Border Patrol agent was patrolling a stretch of highway running north from the Mexican border in Arizona through the Tohono O'odham Nation Indian reservation. He stopped a pickup truck (not the car driven by the defendant, Al Nasser) around nine at night which he suspected was carrying illegal aliens. It turned out that there were no illegal aliens in the truck, but there was alcohol, which was illegal on that part of the reservation. The Border Patrol agent called the Tohono O'odham Nation Police Department, which sent a tribal police officer to take charge of the alcohol violators. The other Border Patrol agent working on that stretch of highway came too.

Meanwhile, a sedan (also not driven by Al Nasser) drove toward the spot where the pickup truck, tribal police vehicle, and two Border Patrol vehicles were stopped. The Border Patrol agent shined his flashlight at the sedan so he would be seen, despite the darkness and his dark clothing. When he did, he saw people hiding in the back seat (he is six feet nine inches tall, and had a good view down toward the floor of the car as it passed). This second vehicle appeared to be an alien smuggling car, so the Border Patrol agent gestured the driver to stop and pull over. The sedan responded by pulling off the road in front of the pickup truck. The agent then took the driver's keys, and determined that this second vehicle was indeed carrying illegal aliens.

Now there were five vehicles stopped on the road, three law enforcement vehicles with light bars flashing on two of them, plus the pickup truck carrying alcohol and the sedan carrying illegal aliens. The vehicles were pulled over on the side of the road, partially blocking the northbound lane of the two-lane highway. The southbound lane remained clear. Al Nasser drove up. The tall Border Patrol agent again shined his flashlight so he would be seen and not hit. He thought Al Nasser's car probably had illegal aliens in it, which he mentioned to the other Border Patrol agent. But he decided not to stop it, because the Border Patrol agents already had their hands full. They were still processing the illegal aliens in the sedan, and the tribal officer was still processing the people carrying the alcohol in the pickup truck. Though they thought Al Nasser was carrying illegal aliens, the agents were just too busy for another carful of illegal aliens and were going to let Al Nasser go to avoid the safety problem of having to control too many people.

But Al Nasser stopped anyway, in the middle of the road. Though he testified at the suppression hearing, neither side asked him why he stopped and he never said. Coming upon the five stopped vehicles, he may have thought that he was supposed to stop, or thought that he ought to stop to avoid danger on the road. But we do not know whether Al Nasser thought the police were stopping him. He might have believed that the Border Patrol agents wanted him to stop, since he could see three law enforcement cars with flashing lights and two stopped vehicles. Or he might not have, since the southbound lane was clear. No one told him or signaled him to stop.²

The Border Patrol agent assumed Al Nasser was Mexican and spoke to him in Spanish after Al Nasser stopped. Al Nasser was Iraqi and could not understand Spanish. Now the Border Patrol agents had Al Nasser and his passengers even though they did not want him. The people hiding on the floor of Al Nasser's car had paid coyotes in Mexico $1,000 and $1,200 respectively to be smuggled into the United States. After Al Nasser stopped of his own accord and the tall Border Patrol agent had observed the smuggled aliens in his car, one of the Border Patrol agents came over and took his keys, and the illegal aliens in the car were apprehended. Al Nasser was subsequently convicted of knowingly transporting illegal aliens.³

ANALYSIS

On appeal Al Nasser raises two issues: (1) the statements made by the illegal aliens should have been suppressed as fruits of an unreasonable seizure, because he was stopped in the absence of reasonable suspicion;⁴ and (2) his sentence was based on an incorrect Guidelines calculation.

I. The Stop.

What if the police do not intend to stop someone, but a person thinks that he is being stopped? Must that unintended stop still be supported by reasonable suspicion in order to prevent suppression of its fruits? Does the "objective" examination of police conduct, as required in Whren v. United States⁵ for a vehicle stop brought about by police action undertaken to effect the stop, mean that if a reasonable person would think that he was being stopped, then the person is "seized" within the meaning of the Fourth Amendment, even if the police do not want the person to stop and intended for him to go on about his business without stopping?

There is language in some decisions⁶ that might arguably lend itself to such an interpretation, but we reject it. The Fourth Amendment⁷ protects people from unreasonable "seizures," and the Supreme Court "has ... consistently construed this protection as proscribing only governmental action."⁸ Al Nasser contends that he was unreasonably seized when one of the Border Patrol agents shone a flashlight towards and into Al Nasser's car as he drove by the scene described above because a reasonable person would think that he was being stopped.⁹ This argument skips a step. Before asking whether a reasonable person would have thought he was being stopped, a court must ask whether the police in fact stopped him. Usually the objective circumstances would prove a stop, but not always. The government does not violate a person's right not to be stopped when its agents do not effect the stop or the person voluntarily stops. We thus do not reach the objective inquiry of whether a reasonable person in Al Nasser's position would have believed he was free to go.

The question of whether to apply the objective test, whether a reasonable person would have thought he was being stopped, or also to require police intent as a sine qua non, is but another example of the inescapable philosophical problem of causation in the law.¹⁰ Fairly consistently, the law requires some sort of blameworthiness¹¹ in addition to "cause in fact," i.e., mere consequence in a factual causal chain.¹² A police officer may properly be blamed for violating a person's Fourth Amendment rights if he stops the person without reasonable suspicion. But it does not make sense to blame an officer for interfering with someone's liberty when a person stops of his own accord, particularly when the officer did nothing to effect the stop and did not intend to stop him.¹³ This distinction is practical, not just philosophical. The alternative would be to require the police affirmatively to communicate to people that they were not being stopped every time a person might think the contrary, on pain of otherwise being charged with violating constitutional rights. This is a dangerous requirement if the police already have their hands full with suspects they have stopped.

The Supreme Court held in Herring v. United States that "evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment."¹⁴ Thus, "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."¹⁵ There is nothing to deter when the police do not mean to stop someone.¹⁶ The fact that the person mistakenly thinks that he is being stopped does not require suppression of the fruits of the person's voluntary stop.

A. The District Court's Findings of Fact Are Not Clearly Erroneous.

The district court did not decide whether the alleged seizure in this case was reasonable. Rather, after an evidentiary hearing, it concluded that there was no seizure at all. We are bound by the district court's findings of fact unless they are clearly erroneous,¹⁷ and we review de novo whether on those facts there was what amounted legally to a seizure.¹⁸

At the evidentiary hearing, the two Border Patrol agents testified that they did nothing to stop Al Nasser's car. Indeed, they did not want to have anything to do with Al Nasser:

A. As he was passing by, I was thinking, "There goes another load of illegal aliens."

Q. So why not stop him?

A. We already had two vehicles stopped there, one with illegal aliens, one with alcohol, and I felt that was more than we could safely control at the time.

The tribal police officer, who was...