U.S. v. Ortiz-Hernandez

• Decision Date: 27 October 2005
• Docket Number: No. 03-30371.,No. 03-30355.,No. 03-30356.,03-30355.,03-30371.,03-30356.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jose Luis ORTIZ-HERNANDEZ, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Jose Luis Ortiz-Hernandez, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Jose Luis Ortiz-Hernandez, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 567

427 F.3d 567

UNITED STATES of America, Plaintiff-Appellant, v. Jose Luis ORTIZ-HERNANDEZ, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Jose Luis Ortiz-Hernandez, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Jose Luis Ortiz-Hernandez, Defendant-Appellee.

No. 03-30355.

No. 03-30371.

No. 03-30356.

United States Court of Appeals, Ninth Circuit.

Argued July 14, 2004.

Submitted and Filed October 27, 2005.

COPYRIGHT MATERIAL OMITTED

Kent S. Robinson, Office of the United States Attorney, Portland, OR, for the appellant.

Paul Papak, Federal Public Defender's Office, Portland, OR, for the appellee.

Appeal from the United States District Court for the District of Oregon; James A. Redden, District Judge, Presiding. D.C. Nos. CR-00-00071-JAR, CR-02-00550-JAR.

Before: REAVLEY,^* W. FLETCHER, and TALLMAN, Circuit Judges.

PER CURIAM:

The government charged defendant-appellee Jose Luis Ortiz-Hernandez with illegally re-entering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). The government also charged Ortiz-Hernandez with violating the terms of his supervised release from a prior federal drug conviction by this illegal reentry. The two proceedings were consolidated in the district court. The district court suppressed fingerprint evidence in both the criminal case and the supervised release proceeding. United States v. Ortiz-Hernandez, 276 F.Supp.2d 1113 (D.Or.2003). The district court then denied the government's motion to compel new fingerprint exemplars in the criminal case. United States v. Ortiz-Hernandez, 276 F.Supp.2d 1119 (D.Or.2003).

The government appeals both the suppression orders and the denial of its motion to compel fingerprint exemplars. In Ortiz-Hernandez's criminal case, we affirm the suppression order but reverse the denial of the government's request to compel another set of fingerprint exemplars. In Ortiz-Hernandez's supervised release case, we dismiss the appeal based on United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir.2004).

I. Background

We rely for our factual narrative on the district court's view of the evidence and on uncontroverted evidence in the record. See United States v. Vesikuru, 314 F.3d 1116, 1119 (9th Cir.2002) (findings of fact underlying the district court's ruling on a motion to suppress are reviewed for clear error). Most of the narrative is based on the testimony of Portland Police Bureau Detective Sergeant Dirk Anderson. The remainder is based largely on the testimony of Sergeant John Eckhart and Officer Jeffrey Becker.

Defendant-appellee Jose Luis Ortiz-Hernandez was arrested on November 12, 2002 in Portland, Oregon, by Detective Anderson on suspicion of drug dealing. Detective Anderson and his partner were eating lunch at a McDonald's restaurant in Portland when they saw the defendant and another man, later identified as Selmo Valenzuela, walking north on 82nd Avenue from Stark Street. Detective Anderson testified that he "believed" Ortiz-Hernandez was wearing a "purple shirt or sweatshirt of some type." Several minutes later, Detective Anderson thought he saw the same two men drive past the McDonald's in a red Toyota 4-Runner. He testified that he saw two Hispanic-appearing men in the Toyota, and that he "believe[d] there was purple clothing in there as well." Detective Anderson saw the Toyota circling around the area of 82nd Avenue and Washington Street in a manner that led him to believe that the two men might be involved in drug sales.

After lunch, Detective Anderson and his partner were driving north on 82nd Avenue when they observed the Toyota parked in a Safeway grocery store parking lot. Detective Anderson saw Ortiz-Hernandez and Valenzuela walking toward the Safeway, away from the parked Toyota. Detective Anderson did not see them get out of the Toyota. Detective Anderson saw Ortiz-Hernandez and Valenzuela speak to "another Hispanic male," later identified as Wilfredo Alvarez-Quintana. Alvarez-Quintana then got into the Toyota. The driver and a Hispanic male passenger then drove the Toyota out of the parking lot.

Detective Anderson testified that despite a recent change eliminating the ability to "call back" on the public payphones at the Safeway, "there still are drug transactions that occur there daily." Detective Anderson testified that Ortiz-Hernandez and Valenzuela used the payphones "intermittently" at the Safeway. When a gray Jeep Cherokee arrived, Ortiz-Hernandez and Valenzuela spoke to the driver and passengers and got into the back seat. At that time, Detective Anderson still believed that Ortiz-Hernandez and Valenzuela had driven the Toyota to the Safeway and that Alvarez-Quintana and his passenger had then driven away in the same Toyota. This belief led Detective Anderson to conclude that the men in the Toyota were dealing drugs. He requested that an officer go to the Safeway to watch the Jeep Cherokee while he followed the Toyota.

When the Toyota stopped of its own accord at a nearby parking area, Detective Anderson got out to talk to the driver, who identified himself as Wilfredo Alvarez-Quintana. Alvarez-Quintana said he was the only one who had driven the Toyota. He also told Detective Anderson that he and his nephew had driven to Portland from The Dalles, a city about 80 miles east of Portland on the Columbia River, and that he was "kind of lost." Alvarez-Quintana told Detective Anderson that he had spoken briefly at the Safeway parking lot with someone he mistakenly thought he knew. Detective Anderson searched the Toyota with Alvarez-Quintana's consent and found nothing illegal. He then allowed Alvarez-Quintana and his nephew to go on their way.

Meanwhile, Sergeant Eckhart was watching the Jeep Cherokee at the Safeway. He broadcast on the police radio that he was watching the Jeep from the "handicap spot," and that the Jeep was "on the northeast corner, Safeway." Sergeant Eckhart saw the driver and passengers, including Ortiz-Hernandez, talking with each other. He reported over the police radio that they were "making some kind of deal in there." When the Jeep drove out of the Safeway parking lot, the driver failed to use a turn signal. Sergeant Eckhart radioed for a marked police car to stop the Jeep. Officer Becker responded and pulled the Jeep over in front of a coffee shop. Officer Becker asked the driver for her license, proof of insurance, and registration. The driver identified herself as Marie Lewis. Her driver's license had been suspended.

Detective Anderson heard over the radio that the Jeep had been stopped and returned to investigate. There were five people in the Jeep. Lewis and an adult man, Dennis Urban, were in the front seats. Ortiz-Hernandez, Valenzuela, and Lewis's three or four-year-old nephew were in the back seat.¹ When Detective Anderson arrived, he had a brief conversation with Lewis in which she referred to Ortiz-Hernandez as "Juan."

Detective Anderson testified, "After my brief conversation with [Lewis], Sergeant Eckhart had also told me, prior to contacting the individuals, that it appeared that the defendant had swallowed, which is real common for street-level deliverers." Detective Anderson explained that street-level dealers sometimes keep drugs in balloons in their mouths and swallow them in order to avoid being caught with the drugs. He testified, "[T]hey remove them and sell them one at a time. And if confronted, they'll just swallow the balloons."

After his initial conversation with Lewis, Detective Anderson asked Ortiz-Hernandez and Valenzuela to get out of the Jeep. Because it was raining, he had them move inside the coffee shop. He asked for their names and birthdays. Ortiz-Hernandez claimed his name was Ruiz Perez-Cota,² and said that he was born on May 6, 1968. Detective Anderson asked Ortiz-Hernandez his age, and Ortiz-Hernandez gave an age that was "a year off" from the birth date he had given. At the suppression hearing, Detective Anderson could not remember the actual age Ortiz-Hernandez had given. He could remember only that it was "off."

Detective Anderson then returned to the Jeep. Lewis admitted she was on methadone but sometimes "chipping" with heroin. According to Detective Anderson, this meant that she was "cheating a little and still using a little heroin." Detective Anderson asked her if she had just purchased heroin from the defendant. Lewis denied it but admitted to the officer that she had done so in the past. She said that she had not seen him for a while and that she thought he had been "down in Mexico." Urban, the adult front seat passenger, had needlemarks on his arms. He told Detective Anderson that he was a recovering heroin addict.

Detective Anderson went back into the coffee shop. He asked Ortiz-Hernandez if he had ever sold drugs. Ortiz-Hernandez said no. Detective Anderson then conducted a strip search of Ortiz-Hernandez in the coffee shop restroom and found no drugs or anything else that would have indicated that he was selling drugs. Detective Anderson examined the contents of Ortiz-Hernandez's wallet and found a Safeway card bearing the name of Miguel Valdez. Detective Anderson then formally placed Ortiz-Hernandez and Valenzuela under arrest for attempted delivery of a controlled substance.

After arresting Ortiz-Hernandez and Valenzuela, Detective Anderson returned to Lewis and told her that he could impound the Jeep and search it at the station because her license was suspended. She consented to a search at the scene instead. The officers found a syringe with unspecified drug "residue" under the front seat near her purse. The officers allowed Lewis, Urban, and the boy to leave in the Jeep. They gave Lewis a warning for failing to signal while turning. Detective Anderson explained to the district court that he had allowed Lewis to go free because "[p]rimarily we were interested in the dealers, and we thought we had the dealers."

Ortiz-Hernandez and Valenzuela were then taken to the...