United States v. Alvarez

• Decision Date: 13 July 2022
• Docket Number: 21-40091
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Andres Manuel ALVAREZ, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

40 F.4th 339

UNITED STATES of America, Plaintiff—Appellee,

v.Andres Manuel ALVAREZ, Defendant—Appellant.

No. 21-40091

United States Court of Appeals, Fifth Circuit.

FILED July 13, 2022

Paula Camille Offenhauser, Carmen Castillo Mitchell, Assistant U.S. Attorneys, Brent David Chapell, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff—Appellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, Scott Andrew Martin, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, for Defendant—Appellant.

Before Jones, Higginson, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

During a roundup of gang members with outstanding warrants, Corpus Christi police were given information describing one suspect only as a "Hispanic male" who had "run from officers" on a "bicycle with large handlebars" in the "area of Leopard and Up River" at some unspecified time in the past. The officers had nothing else—not the suspect's photo, his age, his build, his clothing, or any other identifying features. Nor were they told when the suspect had last been seen in the area. Nor were they told anything about the bicycle other than it had "large handlebars."

Armed with this meager description, the police soon found a person who fit it: Andres Alvarez, who was riding a bicycle with large handlebars in the noted area. Alvarez at first ignored the officers, but he was soon stopped and a frisk revealed he had a revolver and ammo. The officers later determined Alvarez was not the Hispanic male on a bicycle they were looking for. The government then charged Alvarez with being a felon in possession, and Alvarez moved to suppress the evidence against him. The district court denied the motion, holding the officers had reasonable suspicion for the stop.

Reasonable suspicion to stop someone suspected of criminal activity is a low threshold, but not this low. Our cases require officers to have information more specific than "a Hispanic male who once rode away from police on a bicycle with large handlebars in a particular area," especially in Corpus Christi, Texas. That open-ended description would effectively authorize random police stops, something the Fourth Amendment abhors. See generally Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Our dissenting colleague sharply disagrees with our analysis. Post at 353-58. But as we explain below, infra pp. 351-52, nn.6–7, 10, 13, 15–16, the dissent is mistaken.

We reverse the denial of Alvarez's motion to suppress, vacate his conviction and sentence, and remand for further proceedings.

I.

On July 15, 2019, federal and Texas law enforcement conducted a state-wide "roundup" of known gang members with outstanding warrants. Officer Martin Deleon, a thirty-two-year Corpus Christi Police Department veteran with twenty-eight years in the gang unit, led a team of about a dozen officers. Each team received a packet of fifteen to twenty subjects grouped geographically.

One subject in the Deleon team's packet was described as a "Hispanic male" in the "area of Leopard and Up River." The information stated the subject "may be in the area on a bicycle and that he had run from officers in the past [o]n that bicycle." It described the bicycle only as having "large handlebars." But the officers did not know anything about the bicycle's color or condition or whether it had other identifiers like pegs or distinctive tires. Nor did the officers know the subject's age, body type, or build; whether he had identifying marks or features; what he was last seen wearing; or when he was last seen in the area.

The officers searched for the subject in an apartment complex in the Leopard–Up River area but could not find him, so they left for another location. Officer Deleon and his partner drove in a marked patrol car down Old Robstown Road toward Up River Road, an area known for gang activity. They saw a man who fit the subject's description riding a bicycle with large handlebars on the sidewalk approaching the intersection from the opposite side of Up River Road. The suspect turned left, and the officers turned right, so they were traveling parallel on Up River, with a lane of oncoming traffic between them. The officers pulled alongside the suspect, and Deleon honked the horn and shouted, "stop, pull over[!]" The suspect asked, "Why?" and kept pedaling.

After the suspect traveled about seventy-five yards, the officers pulled ahead of him and blocked the sidewalk. The suspect laid his bicycle down, and the officers grabbed him. They placed him against the car and frisked him, finding a revolver on his waistband and ammunition in his pocket.

They cuffed him and put him in their car.

The officers could not immediately identify their detainee. Deleon did not recall the name of the wanted gang member described in the packet. The team apparently had been looking for Jose Morales, "the third or fourth guy on the list." The officers later learned that they had instead detained Alvarez, a convicted felon, who himself had an outstanding warrant.

A grand jury indicted Alvarez on one count of being a felon in possession of a firearm and ammunition. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Alvarez moved to suppress the revolver and ammo, arguing the officers unlawfully stopped him. At an evidentiary hearing, Deleon testified for the government, and Alvarez introduced bodycam footage from an officer who arrived on scene after the seizure, as well as photographs and maps of the area.

The district court denied Alvarez's motion, holding the stop was supported by reasonable suspicion. United States v. Alvarez , No. 2:20-CR-41, 2020 WL 5984078, at *2 (S.D. Tex. Oct. 8, 2020). It reasoned: "Alvarez matched the description of the subject who had an outstanding warrant. He was a Hispanic male, he rode a bicycle with particularly large handlebars, and he was spotted in the area where the subject was known to reside." Ibid. The court added that "collectively," these factors were "not so general as to negate reasonable suspicion." Ibid. (citing United States v. Lawson , 233 F. App'x 367, 370 (5th Cir. 2007) (per curiam)).¹

Alvarez entered a conditional guilty plea pursuant to an agreement that reserved his right to appeal the suppression ruling. See FED. R. CRIM. P. 11(a)(2). The district court sentenced him to time served. Alvarez timely appealed.

II.

In reviewing the denial of a motion to suppress, we review factual findings for clear error and legal conclusions de novo. United States v. McKinney , 980 F.3d 485, 491 (5th Cir. 2020) (citation omitted). Whether officers had reasonable suspicion to support an investigative stop is a question of law. United States v. Burgos-Coronado , 970 F.3d 613, 618 (5th Cir. 2020) (citation omitted). We view the evidence in the light most favorable to the prevailing party—here, the government. United States v. Thomas , 997 F.3d 603, 609 (5th Cir. 2021) (citation omitted). We will uphold the district court's ruling "if there is any reasonable view of the evidence to support it." United States v. Michalik , 5 F.4th 583, 588 (5th Cir. 2021) (citation omitted).

III.

Alvarez challenges only whether the officers had reasonable suspicion for the stop; he does not challenge the frisk. He argues the description of the wanted gang member was too general and the detail about past flight from police on the bicycle was too "sparse" and potentially "stale." The government relies on the description of the subject and the bicycle, the location, and the officers' knowledge of gang activity in the area.²

A.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV. The exclusionary rule, a judicially created deterrence measure, provides that evidence obtained by an unreasonable search or seizure generally may not be used as evidence of guilt at trial. See Mapp v. Ohio , 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ; Weeks v. United States , 232 U.S. 383, 393, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Warrantless searches and seizures are per se unreasonable subject to certain narrow exceptions. Cotropia v. Chapman , 978 F.3d 282, 286 (5th Cir. 2020) (quoting United States v. Kelly , 302 F.3d 291, 293 (5th Cir. 2002) ). The government bears the burden of showing an exception applies. United States v. Roberts , 612 F.3d 306, 309 (5th Cir. 2010) (quoting United States v. Waldrop , 404 F.3d 365, 368 (5th Cir. 2005) ).

One exception permits officers to conduct brief investigatory stops based on reasonable suspicion that the person is engaged in criminal activity or wanted in connection with a completed felony. United States v. Hensley , 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) ; Terry , 392 U.S. at 27–31, 88 S.Ct. 1868 ; see also United States v. Michelletti , 13 F.3d 838, 840 (5th Cir. 1994) (en banc). A seizure "must be ‘justified at its inception.’ " Thomas , 997 F.3d at 609 (quoting Hiibel v. Sixth Jud. Dist. Ct. , 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) ). Reasonable suspicion therefore "must exist before the initiation of an investigatory detention." Ibid. (quoting McKinney , 980 F.3d at 490 ).

Reasonable suspicion "is a low threshold, requiring" only a "minimal level of objective justification." United States v. Castillo , 804 F.3d 361, 367 (5th Cir. 2015) (quoting United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ). But it "must be founded on specific and articulable facts rather than on a mere suspicion or ‘hunch.’ " United States v. Hill , 752 F.3d 1029, 1033 (5th Cir. 2014) (quoting United States v....