United States v. De La Cruz

• Decision Date: 09 January 2013
• Docket Number: No. 11–5114.,11–5114.
• Citation: 703 F.3d 1193
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Enrique Rivera DE LA CRUZ, also known as Enrique Rivera–De La Cruz, also known as Enrique Rivera, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

703 F.3d 1193

UNITED STATES of America, Plaintiff–Appellee,

v.Enrique Rivera DE LA CRUZ, also known as Enrique Rivera–De La Cruz, also known as Enrique Rivera, Defendant–Appellant.

No. 11–5114.

United States Court of Appeals, Tenth Circuit.

Jan. 9, 2013.

William D. Lunn, Tulsa, OK, for Defendant–Appellant De La Cruz.

Ryan L. Souders, Assistant United States Attorney (Thomas Scott Woodward, United States Attorney, Matthew P. Cyran, Assistant United States Attorney, on the brief, and Danny C. Williams, Sr., United States Attorney, on the supplemental brief), Tulsa, OK, for Plaintiff–Appellee United States of America.

Before BRISCOE, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, Defendant–Appellant Enrique De La Cruz challenges the district court's decision to deny his motion to suppress evidence the United States obtained during an investigative seizure. Having jurisdiction under 28 U.S.C. § 1291, we REVERSE the denial of De La Cruz's suppression motion.

I. BACKGROUND

The evidence presented at the suppression hearing, viewed in the light most favorable to the Government, see United States v. Hunter, 663 F.3d 1136, 1141 (10th Cir.2011), established the following: On Sunday morning, February 13, 2011, three Immigration and Customs Enforcement (“ICE”) agents were at Gill's Truck Wash in Tulsa, Oklahoma. They were looking for Juan Guel–Rivera, thought to be unlawfully in the United States. Guel–Rivera purportedly worked at the truck wash.

Because the truck wash was closed, there was no one there when the agents arrived. Soon thereafter a car with dark tinted windows drove up to the truck wash to drop off a passenger. One of the three ICE agents, John Stanko, got a one-to two-second glimpse of the driver through the windshield as the car drove by the agents. Comparing that brief glimpse to the photo that Agent Stanko had of Guel–Rivera, the agent thought that the car's driver might be Guel–Rivera. The agents, therefore, activated their emergency lights and parked their two vehicles behind the suspect's car, blocking its exit.

The car's driver was, in fact, De La Cruz, who was dropping off his brother Armando for work at the truck wash. Armando was in the front passenger seat of the car, while his wife and De La Cruz's wife and mother-in-law were in the back seat.

Armando, carrying his sack lunch, was in the process of exiting the passenger side of the car when Agent Stanko got out of his vehicle and ordered De La Cruz, who had his window rolled down, to turn off the engine, place the keys on top of the car and get out of the vehicle. As De La Cruz did so, Armando ran away. Stanko and one of the other two ICE agents gave chase, apprehending Armando two hundred yards away and discovering that he was in the United States illegally.

When Armando tried to flee from the ICE agents, De La Cruz remained beside the car and the rest of his family stayed in the vehicle. The third ICE agent handcuffed De La Cruz “for safety reasons” and waited with him until the other two agents returned with Armando. (R. v.2 at 58.)

When Agent Stanko returned, it became apparent to him that De La Cruz was not Guel–Rivera, the man for whom the agents had been looking. Nevertheless, Agent Stanko continued to detain De La Cruz and asked to see some identification. De La Cruz presented an Oklahoma identification card which the agents recognized to be fake. Using the information on the card, the agents discovered that De La Cruz was unlawfully in the United States after having been previously deported. On that basis, the agents arrested him. While in custody and after receiving Miranda¹ warnings, De La Cruz confirmed the immigration information the agents had about him.

A federal grand jury indicted De La Cruz for unlawfully reentering the United States after a previous deportation, in violation of 8 U.S.C. § 1326(a). De La Cruz moved to suppress the evidence agents obtained from him at the truck wash, arguing that, at the time the agents asked him for his identification, they were no longer justified in detaining him because the agents no longer had reasonable suspicion to believe that De La Cruz was involved in criminal activity. After conducting an evidentiary hearing, the district court denied De La Cruz's suppression motion. He then entered a conditional guilty plea, seeFed.R.Crim.P. 11(a)(2), reserving the right to appeal the district court's suppression ruling. This appeal followed.

II. STANDARD OF REVIEW

In reviewing the denial of a suppression motion, this court views the evidence in the light most favorable to the Government and accepts the court's factual findings unless clearly erroneous. See Hunter, 663 F.3d at 1141. We review de novo the ultimate determination of the reasonablenessof a search or seizure under the Fourth Amendment. See id.

III. ANALYSIS

The district court denied De La Cruz's suppression motion on alternate bases, holding 1) the agents had reasonable suspicion to believe De La Cruz was involved in criminal activity sufficient to justify his continued detention while agents obtained his identification; and, alternatively, 2) De La Cruz's identification is never suppressible even if there was an unlawful seizure. We conclude the district court erred in reaching both of these conclusions.

A. The district court erred in determining that the agents had reasonable suspicion to continue to detain De La Cruz in order to obtain his identification

The Fourth Amendment protects citizens from “unreasonable searches and seizures” by government officials. U.S. Const. amend. IV; see United States v. Burleson, 657 F.3d 1040, 1044–45 (10th Cir.2011). The Government bears the burden of proving that a seizure is reasonable. See United States v. Kitchell, 653 F.3d 1206, 1216 (10th Cir.), cert. denied,––– U.S. ––––, 132 S.Ct. 435, 181 L.Ed.2d 282 (2011).

This case involves an investigative, or Terry², stop, which is a seizure for Fourth Amendment purposes. See Burleson, 657 F.3d at 1045. Such a seizure is reasonable if it is justified by articulable reasonable suspicion that the person detained has committed or is about to commit a crime. See Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Reasonable suspicion is “something more than an inchoate and unparticularized suspicion or hunch,” but “is considerably less than proof by a preponderance of the evidence or [proof] required for probable cause.” United States v. Chavez, 660 F.3d 1215, 1221 (10th Cir.2011) (internal quotation marks omitted). Reasonable suspicion is measured by an objective standard; the agents' subjective beliefs and intentions, therefore, are irrelevant. See Ashcroft v. al-Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2082, 179 L.Ed.2d 1149 (2011); Chavez, 660 F.3d at 1222.

In considering whether an investigative stop is reasonable, we conduct a two-step inquiry, asking first whether the detention was justified at its inception and, second, whether the agents' actions were reasonably related in scope to the circumstances initially justifying the detention. See Lundstrom v. Romero, 616 F.3d 1108, 1120 (10th Cir.2010).

1. The duration of De La Cruz's detention cannot be justified by the initial suspicion that he was Guel–Rivera

Here, De La Cruz concedes that, at the time the agents initially seized him by surrounding his vehicle, they had reasonable suspicion to believe that he was Guel–Rivera. That suspicion justified agents detaining De La Cruz briefly in order to verify or dispel their suspicions that he was Guel–Rivera. See Royer, 460 U.S. at 500, 103 S.Ct. 1319. But any reasonable suspicion that De La Cruz was Guel–Rivera was dispelled when Agent Stanko, who had a picture of Guel–Rivera, returned from apprehending Armando, had a chance to look at De La Cruz, and realized that De La Cruz was not Guel–Rivera. Guel–Rivera was twenty-eight years old, 5'8?, 120 pounds with black eyes, brown hair, and a receding hairline, while De La Cruz was younger, shorter, with no receding hairline, different facial features, and a tattoo on his neck. These discrepancies, viewed by an objective officer in Agent Stanko's position, dispelled any reasonable suspicion that De La Cruz was Guel–Rivera. ³

Agent Stanko, nevertheless, continued to detain De La Cruz and obtained his identification “just to be safe ... because I still wasn't a hundred percent sure.” ⁴ (R. v.2 at 18.) The existence of reasonable suspicion, however, is measured from the perspective of an objectively reasonable officer, not from the subjective perspective of the particular officer on scene. See al-Kidd, 131 S.Ct. at 2082;Chavez, 660 F.3d at 1222. Here, considering the totality of the circumstances, see Chavez, 660 F.3d at 1221, any reasonable suspicion that Guel–Rivera was the driver would have been dispelled when an objective officer in Agent Stanko's position was able to compare the photo he had of Guel–Rivera with De La Cruz. At that point, any justification for detaining De La Cruz vanished. See Millan–Diaz, 975 F.2d at 722. “ ‘[A]n investigative detention must be temporary and last no longer than is necessary to effectuate’ the purpose of either dispelling or confirming the officer's reasonable suspicion.” United States v. White, 584 F.3d 935, 953 (10th Cir.2009) (quoting Royer, 460 U.S. at 500, 103 S.Ct. 1319). Once reasonable suspicion has been dispelled, “[e]ven a very brief extension of the detention without consent or reasonable suspicion violates the Fourth Amendment.” ⁵Burleson, 657 F.3d at 1045.

2. The duration of De La Cruz's detention cannot be justified by the presence and flight of Armando

An investigative seizure can continue, even after the initial suspicion has dissipated, if “the additional detention is supported by [new] reasonable suspicion of criminal activity. In other words, reasonable suspicion must exist at all stages of the detention, although it need not be based on the same facts throughout.” United...