United States v. Monsivais

• Decision Date: 02 February 2017
• Docket Number: No. 15-10357,15-10357
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Marcelo MONSIVAIS, also known as Marcelo Monsivais–Castro, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

848 F.3d 353

UNITED STATES of America, Plaintiff–Appellee
v.
Marcelo MONSIVAIS, also known as Marcelo Monsivais–Castro, Defendant–Appellant

No. 15-10357

United States Court of Appeals, Fifth Circuit.

Filed February 2, 2017

Brian Walters Stoltz, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee.

Jacob Austin Blizzard, Parker & Blizzard, P.L.L.C., Abilene, TX, for Defendant–Appellant.

Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

The events leading to the arrest and conviction of Marcelo Monsivais occurred on the side of Interstate 20 roughly midway between Abilene and Fort Worth, in Palo Pinto County, Texas. On September 22, 2014, during daylight hours, Deputy John Baker of the Palo Pinto County Sheriff's Office and City Marshal Abel Saldana of Strawn, Texas, were on patrol in a marked sheriff's car traveling east on I–20 when they saw Monsivais walking east on the opposite side of the Interstate away from an apparently disabled truck. Baker drove the squad car across the median and headed back toward Monsivais to offer him roadside assistance, or as they put it, to do a "welfare check."

Baker stopped the squad car on the side of the highway facing Monsivais as he approached and activated the car's emergency lights as a traffic safety precaution. Monsivais, however, did not stop but continued walking past the squad car in his eastbound direction (toward Fort Worth). About the time Monsivais passed the back of the squad car, the officers exited and Baker began asking Monsivais questions. Baker could not remember exactly what he said but thought his questions were about where Monsivais was headed, where he had been, and if he needed any help. The officers testified that Monsivais said he was heading to Fort Worth; that he appeared nervous and jittery, but was polite in responding to the questions; and that he repeatedly put his hands in his pockets, but took them out each time at Baker's request.

Baker testified that after approximately four minutes, he told Monsivais that he was going to pat Monsivais down for weapons "because of his behavior" and "for officer safety reasons." After being so informed, Monsivais told the officers that he had a firearm in his waistband. Saldana grabbed Monsivais's right hand, bent his arm behind him, and seized the firearm. Both officers then restrained and handcuffed Monsivais. When asked for identification, Monsivais directed the officers to his wallet in his pocket, where they found an expired Mexican passport. Their continued searches of his clothing revealed a pipe and two small baggies of methamphetamine. Monsivais was arrested and later charged with possession of a firearm while being unlawfully present in the United States. See 18 U.S.C. § 922(g)(5).

Monsivais filed a motion to suppress the evidence obtained as a result of the seizure and the searches. After a hearing at which the officers testified (but Monsivais did not), the district court denied Monsivais's motion to suppress, stating only that the "consensual encounter was transformed into a lawful Terry frisk due to the Defendant's demeanor, remarks, and for officer-safety reasons." Monsivais pleaded guilty but reserved his right to appeal the denial of his motion to suppress. He timely appealed, arguing that

848 F.3d 357

the district court judge erred in failing to exclude the firearm and other evidence because the officers did not have reason to suspect him of a crime as a basis for an investigatory detention, or reason to suspect him of being armed and dangerous as a basis for a protective frisk for weapons. We agree that the district court's failure to exclude the firearm and other evidence was in error because the officers lacked a basis to reasonably suspect him of a criminal act before seizing him; therefore, we need not determine whether the officers also lacked reasonable suspicion that Monsivais was armed and dangerous.¹

I

While the Fourth Amendment generally requires officers to obtain a warrant before searching or seizing an individual, under the "very narrow exception" announced in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officers may briefly detain a person for investigative purposes if they can point to "specific and articulable facts" that give rise to reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime. United States v. Hill , 752 F.3d 1029, 1033 (5th Cir. 2014). Although "reasonable suspicion" is more than a "mere hunch," it "need not rise to the level of probable cause." United States v. Zavala , 541 F.3d 562, 574 (5th Cir. 2008) (quoting United States v. Lopez–Moreno , 420 F.3d 420, 430 (5th Cir. 2005) ). An "officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" an intrusion into the privacy of the detained individual. Terry , 392 U.S. at 21, 88 S.Ct. 1868. To find that reasonable suspicion existed to justify a stop, a court must examine the "totality of the circumstances" in the situation at hand, in light of the individual officers' own training and experience, and should uphold the stop only if it finds that "the detaining officer ha[d] a ‘particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez , 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ).

The standard for appellate review of reasonable-suspicion determinations is de novo. Id. at 275, 122 S.Ct. 744 (citing Ornelas v. United States , 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ). "The government bears the burden of showing the reasonableness of a warrantless search or seizure." United States v. Jaquez , 421 F.3d 338, 341 (5th Cir. 2005) (citing United States v. Chavis , 48 F.3d 871, 872 (5th Cir. 1995) ). In reviewing the denial of the motion to suppress, "[w]e view the evidence in the light most favorable to the party that prevailed in the district court," in this case, the Government. United States v. Solis , 299 F.3d 420, 435–36 (5th Cir. 2002) (quoting

848 F.3d 358

United States v. Hunt , 253 F.3d 227, 230 (5th Cir. 2001) ).

Under the principles established by the Supreme Court, it is undisputed that Deputy Baker effectively seized Monsivais when he announced that he was going to pat him down; Deputy Baker thereby clearly asserted his authority as a peace officer to seize Monsivais so that any reasonable person in Monsivais's position would have known that he had been detained at that moment and was no longer free to walk away. See Florida v. Royer , 460 U.S. 491, 501–02, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (citing United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); see also 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.4(a) (5th ed. 2012) (discussing Mendenhall– Royer "free to leave" test). In so doing, Deputy Baker converted the officers' roadside assistance or "welfare check" into an investigatory stop or detention of Monsivais. The Government agrees that Deputy Baker's seizure and frisk of Monsivais commenced when Baker announced that he was going to pat Monsivais down. Therefore, the focal point of our analysis is whether the totality of the relevant circumstances that transpired before Deputy Baker's announcement of the pat-down revealed articulable facts from which an officer could reasonably suspect that Monsivais had committed, was committing, or was about to commit a criminal offense. If the totality of circumstances did not, we must conclude that Deputy Baker's seizure of Monsivais did not fit within Terry or any other exception to the warrant requirement and was a violation of the Fourth Amendment.

II

The police officers testified that prior to Monsivais's seizure they did not suspect Monsivais of any criminal activity. Deputy Baker, who at the time had made more than 100 traffic stops in his career, testified that when he got out of the patrol car to speak to Monsivais he did not place his hand on his weapon or disconnect its clip as he would have in a traffic violation stop situation. Deputy Baker further testified that when he first encountered Monsivais he did not suspect him of any criminal act; when he began to question Monsivais he did not suspect him of any criminal act; and when he told Monsivais he was going to pat him down, he did not suspect him of a criminal act, saying, "I wouldn't say a criminal act, no. He was just acting suspicious." Baker also testified that if he encountered a stranded motorist who ran away from him and his car's flashing lights, he would not pursue such a person, and that if Monsivais had not taken his hands out of his pockets as requested, Baker would have continued to request that Monsivais do so and "told him to keep walking" if he did not comply. He testified that he would not have tried to detain Monsivais further or pat him down and that he believed Monsivais was free to walk away before he began the pat-down by announcing it to Monsivais. Marshal Saldana, who had over thirty years of experience as a peace officer, testified consistently...