Opinion
EP-99-CR-1716-DB.
February, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant Edgar Samuel Ocampo's Motion to Suppress, filed in the above-captioned cause on January 19, 2000. The Government filed a Response to Defendant's Motion on January 27, 2000. On February 3, 2000, the Court held a hearing on the matter. After careful consideration of the evidence and arguments presented, the Court is of the opinion that Defendant's Motion should be denied for the reasons that follow.
FACTS
At about midnight on November 11, 1999, Defendant and another individual waited in Mexico near the Rio Grande (the "river"), opposite El Paso, Texas, for the opportune time to cross the river into the United States. Defendant testified that he had done so previously, and that his usual approach to crossing required waiting until midnight, when the Border Patrol agents stationed on the United States side of the river usually would change shifts. That night, Defendant and the other individual waited until two agents who previously had been watching the river drove off in opposite directions. According to Defendant, he and his companion removed all of their clothing, including shoes and socks, placed everything in nylon bags and crossed the river naked. When they reached the other side, Defendant found a rag to clean his feet and replaced his shoes and all clothes except his socks, which he placed inside his pockets. Defendant testified that his clothes were dry at that time. The two discarded the nylon bags after crossing and cautiously made their way through a nearby maze of train tracks, over three chain link fences and out a gate onto the El Paso streets.
The Rio Grande serves as the Southern border between Texas and, consequently, the United States, and Mexico.
Meanwhile, at approximately 12:30 a.m., United States Border Patrol Agents Dean Wilson ("Wilson") and Thomas Arias ("Arias") (together, "the agents") patrolled the downtown El Paso area wearing civilian clothes and driving an unmarked vehicle. Agent Wilson testified that, approximately thirty to forty-five minutes earlier, he and Arias learned of certain sensor activity in the area. As such, they were looking for any individuals who may have crossed the river illegally from Mexico into the United States.
It is well-known that the Border Patrol maintains various activity sensors along the river to assist with detecting surreptitious river crossings.
Eastbound on Overland Street, the agents came upon two males, one of whom later was identified as Defendant, walking eastbound along the south side of Overland Street between Santa Fe Street and El Paso Street. According to Wilson, who has worked in this general area with the Border Patrol for approximately two and one-half years, the downtown area is notorious for illegal immigrant traffic. The intersection of Overland and Santa Fe Streets is approximately .5 to .6 miles from the U.S.-Mexico border. Wilson testified that this area is generally desolate late at night because the businesses lining those streets are closed.
Defendant's companion is not involved in this matter and his name is not known to the Court.
The agents slowed down to observe. As their car approached, according to Wilson, the two pedestrians "stiffened up," quickened their pace and looked straight ahead. At some point, from a distance of approximately twenty-five to thirty feet, light from the car's headlights illuminated Defendant and his companion, and the agents saw that the pedestrians' pants appeared wet from the knees down. Both Wilson and Defendant testified that an individual wearing wet pants is typically a sign that the wearer recently crossed the river.
The Court finds that Defendant's pants were either wet or at least appeared wet. Defendant testified that he removed his clothes before crossing the river, that he placed his clothes in a nylon bag and that his clothes were not wet when he replaced them. Although this testimony implies that Defendant's pants were not wet, and, as such, appears to conflict with Wilson's testimony that Defendant's pants were wet, the Court notes that Defendant did not expressly testify that his pants did not appear wet when he encountered the agents. Consequently, there is no conflict in the testimony.
Wilson testified to this fact based on his experience as a Border Patrol agent working close to the river. Defendant, apparently, based on his experience illegally wading through the river into the United States.
At this point, the agents conferred and agreed that they should question Defendant and his companion. They drove up to the curb alongside Defendant and his companion, and Arias asked the two in English through the car's window, "Do you know where San Antonio Street is?" Defendant responded in what Wilson described as "jibberish" and "incoherent." Arias repeated his question in Spanish. Defendant still could not answer Arias's question.
The agents then got out of the unmarked car and identified themselves as Border Patrol agents, displaying their badges but not their holstered weapons. Wilson asked Defendant, "Where were you born?" When Defendant answered, "Mexico," Wilson asked Defendant to state his country of citizenship. Defendant again responded, "Mexico." Then, according to Wilson, Defendant attempted to explain that he had "documents" that permitted him to be in the United States. However, Defendant could not produce any papers or even describe the documents when Wilson asked. Arias questioned Defendant's companion in a similar manner and received similar responses.
Defendant, on the other hand, testified that Wilson and Arias never identified themselves as Border Patrol agents. He further testified that, when he first noticed Wilson and Arias's unmarked vehicle slow down in the middle of the street, he thought the car might be some "countrymen" who had come to help reach a place he called the "opportunity center," where Defendant claims he was headed. Once at this "opportunity center," he would get papers which would allow him to stay in the United States. Defendant further testified that he thought it odd that these two "countrymen" wanted to know where he was born and his country of citizenship.
This "opportunity center," as Defendant referred to it, is perhaps a nearby Mission.
Upon hearing Defendant's answers to his questions, Wilson placed Defendant under administrative arrest and called a marked patrol unit to transport Defendant and his companion, who also was placed under arrest, to the Paso Del Norte Service Processing Center. After three to five minutes, the marked car arrived and the agents placed Defendant in the car, handcuffed. At the Processing Center, Wilson gave Defendant a Miranda warning and Defendant agreed to waive his rights. According to Wilson, during the entire encounter, the agents never brandished their weapons, yelled at Defendant or asked Defendant about his criminal or immigration record.
On December 1, 1999, the Grand Jury returned a single-count indictment, charging Defendant with illegal re-entry into the United States after deportation in violation of 8 U.S.C. § 1326. The instant Motion followed.
DISCUSSION
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." "The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991) (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)). Thus, the Fourth Amendment protects an individual's reasonable expectation of privacy from certain types of government intrusion. See Katz, 389 U.S. at 350, 88 S.Ct. at 510.
What is reasonable under the Fourth Amendment depends upon the circumstances and nature of the seizure. See, e.g., Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). A citizen-police encounter may be consensual, see Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 311, 83 L.Ed.2d 165 (1984), a brief investigatory detention, see Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968), or an outright arrest or "seizure." See Dunaway v. New York, 442 U.S. 200, 214, 99 S. Ct. 2248, 2257, 60 L.Ed.2d 824 (1979). A person has been "seized" within the meaning of the Fourth Amendment "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988).
Defendant argues simply that he was seized without an arrest warrant, concluding that the Court should exclude "any identification, statements made by the Defendant and other evidence which are the `fruit' of the seizure and search." Because Defendant does not direct the Court's attention to the impropriety of any particular aspect of his encounter with the agents, the Court is left to analyze the entire encounter.
A. Consensual Encounter
Although Defendant claims he was "seized," there is no "seizure when the encounter is consensual. "Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 74 L.Ed.2d 229 (1993). That the officer identifies himself as an agent does not, by itself, transform the encounter into something more than consensual. See id. at 498, 103 S.Ct. at 1324. Without physical restraint or a significant show of authority resulting in submission, there is no seizure. See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991); United States v. Gonzales, 79 F.3d 413, 420-21 (5th Cir. 1996).
Here, it is undisputed that Wilson and Arias were traveling in an unmarked car and not in uniform when they drove up beside Defendant and his companion and asked whether Defendant and his companion knew where San Antonio Street was. At this point, the agents remained in the car. Defendant, not aware that the men in the car were law enforcement officers, willingly answered, although incomprehensibly. At this point, the encounter was clearly consensual.
Then, however, the agents got out of their car and approached the two pedestrians. According to Defendant, Wilson and Arias did not identify themselves as Border Patrol agents. In fact, Defendant believed the two were his "countrymen" coming to his aid. Although Defendant testified that he thought it strange that these "countrymen" wanted to know where he was born and his country of citizenship, Defendant answered willingly. Accordingly, the Court finds that the encounter was consensual, and Defendant was not "seized" within the meaning of the Fourth Amendment.
The Court notes that this conclusion is reached by adopting Defendant's version of the encounter rather than Wilson's. Specifically, Defendant testified that he the agents never identified themselves and that he believed them to be his "countrymen" coming to his aid rather than government agents.
B. Investigatory Detention
Even if the encounter was not consensual, the Government contends that the agents conducted a valid investigatory detention, commonly known as a "Terry stop." The Court agrees with the Government.
1. Inception of detention
Under Terry, police officers may conduct a brief, non-intrusive detention if the officers can justify their actions based on having a "reasonable suspicion" of criminal activity. See Terry, 392 U.S. at 20-22, 88 S.Ct. at 1879-80. In order to establish reasonable suspicion, the officers must provide specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant an intrusion. See id.; United States v. Sharpe, 470 U.S. 675, 682-83, 105 S.Ct. 1568, 1573-74, 84 L.Ed.2d 605 (1985). These facts may be obtained through the officer's personal observation. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). A court will examine the "totality of the circumstances" to determine whether the stop was warranted. See id.
In the particular context of illegal aliens, Border Patrol agents may consider a wide array of factors atypical to ordinary criminal activity. In United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975), the Supreme Court addressed the constitutionality of stopping vehicles to question the occupants about their citizenship, likening such stops to Terry stops requiring reasonable suspicion. Concluding that "[i]n all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling," id. at 885, 95 S.Ct. at 2582, the Court set forth several specific factors agents may consider: the characteristics of the area, including "proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic"; "information about recent border crossings"; "obvious attempts to evade officers"; and "the characteristic appearance of persons who live in Mexico." Id. at 884-85, 95 S.Ct. at 2582.
Here, the Government has plainly met its burden to demonstrate that agents Wilson and Arias had reasonable suspicion to perform a Terry stop of the two pedestrians. Sensor activity at the river alerted Border Patrol officials that some person may have avoided established ports of entry to enter the United States. Driving through an area roughly one-half mile from the sensor activity location, an area notorious for illegal immigrant traffic, the agents came upon two men walking shortly after midnight. At that time of night, Wilson testified, the streets in that area generally are deserted because the businesses which line the streets are closed. This combination of facts grabbed the agents' attention.
Then, when Defendant and his companion noticed a car behind them — the agents' unmarked car — they stiffened up, looked straight ahead and quickened their pace. Even more suspicious of the two now, the agents slowed and aimed their headlights toward the pedestrians, clearly seeing that the two were wearing pants that appeared wet from the knees down. As Wilson testified, in his experience as a Border Patrol agent working in that particular area near the river, wet pants are a typical sign that a person has just crossed the river into the United States from Mexico. At this point, Wilson and Arias conferred and agreed that they should question the two pedestrians. Thus, the Court finds that, when Wilson and Arias initiated contact with Defendant, they had a reasonable suspicion to believe Defendant and his companion recently had come into the United States illegally. Accordingly, the Court is of the opinion that no Fourth Amendment violation occurred up to that point.
2. Continued reasonableness of detention
Once commenced, an investigatory detention based on reasonable suspicion must remain reasonable, both in scope and duration. See Terry, 392 U.S. at 29, 88 S.Ct. at 1884. Asking name, country of birth and citizenship is both reasonably related to the stop's justification and reasonably limited. See Brignoni-Ponce, 422 U.S. at 880-82, 95 S.Ct. at 2581 (holding, in context of automobile stop, officer may question occupants of auto "about their citizenship and immigration status").
Here, it is undisputed that Wilson asked Defendant routine immigration questions — such as where he was born and for his country of citizenship — which the agents are statutorily authorized to do without a warrant. See 8 U.S.C. § 1957(a)(1) (establishing authority "to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States"). At that time, the agents did not restrain or otherwise keep Defendant from continuing on his journey down Overland Street. Rather, Defendant cooperatively answered Wilson's questions. Although armed with handguns, the agents did not brandish or otherwise display their weapons. They did not yell or otherwise raise their voices toward Defendant and his companion. Wilson never asked Defendant whether he had ever been deported before or whether Defendant had a criminal record. In short, the encounter was brief and restrained, yielding the facts Wilson and Arias set out to find — that Defendant and his companion were aliens to the United States without proper documentation. Hence, the Court finds that the stop did not exceed either the scope or duration justified by the agents' reasonable suspicion.
C. Warrantless Arrest
Defendant ultimately claims that he was arrested without a warrant and without any exception to the warrant requirement in violation of the Fourth Amendment. This contention is simply meritless.
Unlike a Terry stop, a warrantless arrest is reasonable only if supported by "probable cause." See Dunaway, 442 U.S. at 214, 99 S.Ct. at 2257. Because the probable cause standard is much more stringent than the reasonable suspicion standard, see United States v. Greer, 939 F.2d 1076, 1092 (5th Cir. 1991), a warrantless arrest is presumptively unreasonable, and the Government bears the burden of demonstrating probable cause to arrest. See United States v. Ho, 94 F.3d 932, 936 (5th Cir. 1996).
Probable cause exists if, under the "totality of the circumstances," see, e.g. United States v. Buchanan, 70 F.3d 818, 826 (5th Cir. 1996), the arresting officer knows facts and circumstances which would be sufficient to cause an officer of reasonable caution to believe that the person the officer is about to arrest has committed, is committing or is about to commit a crime. See United States v. Carrillo-Morales, 27 F.3d 1054, 1062 (5th Cir. 1994). Such facts and circumstances must be known to the officer at the time of arrest, not based on post-arrest observations. See United States v. Tinkle, 655 F.2d 617, 623 (5th Cir. Unit A 1981).
Knowing all the facts about Defendant discussed above with respect to reasonable suspicion — the sensor activity, the notoriety of illegal alien traffic in the area, Defendant's conduct when he noticed the agents' vehicle approach and, most prominently, the wet pants — Wilson asked Defendant two simple questions. Defendant freely admitted that he is a citizen of Mexico; and, although he stated that he had documents entitling him to be in the United States legally, Defendant could neither produce nor describe these documents. Defendant's responses to these two questions provided Wilson with probable cause to believe that Defendant was present in the United States in violation of this country's immigration laws, validating Wilson's decision to place Defendant under administrative arrest. Accordingly, the Court is of the opinion that Defendant's arrest was lawful.
D. Pre-Miranda Statements
Next, although Defendant does not expressly contend that the agents violated his rights under Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), the Court briefly will address any potential violation.
It is well-established that Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), prohibits use during trial of statements made by a defendant during custodial interrogation unless procedural safeguards are employed to protect his Fifth Amendment privilege against self-incrimination and Sixth Amendment right to counsel. The Miranda requirement is satisfied by a warning nearly universally recognized, that a suspect has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney during questioning, and that an attorney will be provided for him if he cannot afford one. See Miranda, 384 U.S. at 479, 86 S.Ct. at 1630.
If a defendant is not "in custody" when questioned, Miranda does not apply. See United States v. Welsh, 417 F.2d 361, 363 (5th Cir. 1969). A suspect is "`in custody' for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed. 317 (1983); see also United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988). "A policeman's unarticulated plan has no bearing on the question whether a suspect was `in custody' at a particular time." Berkemer, 468 U.S. at 441-42, 104 S. Ct. at 3151.
Here, the record reflects that Defendant made two statements in response to Wilson's questions before Wilson gave the requisite Miranda warning at the Paso Del Norte Processing Center — that he is a native of Mexico and a citizen of Mexico. Defendant was not under formal arrest at the time. Although, as Wilson testified, the agents did not expect they would allow Defendant and his companion to leave, Wilson's intentions are not relevant here. A reasonable person in Defendant's position at that time would not have felt that he would not be allowed to leave. The questioning took place on a public street, albeit desolate at that time of night. The agents did not draw their weapons or otherwise physically restrain Defendant. The agents never told Defendant that he would not be allowed to leave. Accordingly, the Court finds no Miranda violation.
There is no evidence in the record that Defendant made any statement after being given a Miranda warning, and Defendant has not directed the Court's attention to any such statements. Accordingly, the Court assumes that, for the purpose of this Motion to Suppress, Defendant made no such statements or does not make them part of this Motion.
E. Identification Evidence
Finally, even if the initial stop was conducted without reasonable suspicion and the arrest without probable cause, Defendant cannot suppress "identification" evidence. Simply put, "[t]he body or identity of a defendant in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest." INS v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 82 L.Ed.2d 3479 (1984); see also United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999) ("[E]ven if defendant was illegally stopped, neither his identity nor his INS file are suppressible."); United States v. Pineda-Chinchilla, 712 F.2d 942, 943-44 (5th Cir. 1983) (per curiam).
Without question, then, Defendant cannot prevent the Government from introducing evidence at trial which pertains to Defendant's identity. Accordingly, to the extent that Defendant asks the Court to suppress any "identification data on Defendant, including . . . fingerprint exemplars or other physical identifying evidence," the Court is of the opinion that his argument is sufficiently precluded by Fifth Circuit case law.
Accordingly, IT IS HEREBY ORDERED that Defendant Edgar Samuel Ocampo's Motion to Suppress is DENIED.