F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 11 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Case No. 97-1274
v. (D.C. 96-CR-430-D)
(District of Colorado)
JESUS ARANDA-RIOJAS,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
After the district court denied Jesus Aranda-Riojas’s motion to suppress evidence,
a jury convicted him of violating 8 U.S.C. § 1326, Unlawful Reentry of a Deported Alien.
Mr. Aranda-Riojas now appeals that conviction, arguing that the district court committed
clear error when it denied his motion to suppress. Because we find no error, we affirm
Mr. Aranda-Riojas’s conviction.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
FACTS
While on duty at the Denver International Airport, two Denver police officers
approached Mr. Aranda-Riojas and his companion, both of whom were standing in the
vicinity of a gate from which a flight was scheduled to depart to Los Angeles roughly one
hour later. After observing Mr. Aranda-Riojas and his companion for the better part of
the hour, the two officers approached them. The officers were dressed in civilian
clothing. An Immigration and Naturalization Services agent (who worked in conjunction
with the Denver police and was also dressed in civilian clothing) stood nearby.
Sergeant Robert Vescio, after identifying himself as a police officer and showing
Mr. Aranda-Riojas his badge and identification, asked Mr. Aranda-Riojas if he could
“talk to [him] for a minute.” Aplt’s App. at 237. Sergeant Vescio did not display a
weapon, did not instruct Mr. Aranda-Riojas that he was obliged to answer his questions,
and did not say or do anything that would have prevented Mr. Aranda-Riojas from
breaking off the encounter.
After briefly questioning Mr. Aranda-Riojas about his name and his plane ticket,
Sergeant Vescio requested that Mr. Aranda-Riojas produce some form of identification.
Mr. Aranda-Riojas handed Sergeant Vescio his Colorado driver’s license.1 Sergeant
1
Mr. Aranda-Riojas may also have handed Sergeant Vescio a North Carolina
driver’s license. See Aplt’s App. at 238-39.
2
Vescio testified that he “looked at [Mr. Aranda-Riojas’s license] and noted the name.”
Id. at 237-38.
When an INS agent subsequently ran a background check on Mr. Aranda-Riojas,
he discovered that Mr. Aranda-Riojas had been deported from the United States in 1989.
Accordingly, Mr. Aranda-Riojas was arrested, and a grand jury returned an indictment
charging him with illegally reentering the country in violation of 8 U.S.C. § 1326.
Prior to trial, Mr. Aranda-Riojas made a motion to suppress his “identity.” After a
two-day hearing, the district court denied Mr. Aranda-Riojas’s motion, holding that
because Mr. Aranda-Riojas’s decision to show his driver’s license to Sergeant Vescio was
“consensual . . . [and did] not implicate the Fourth Amendment,” Sergeant Vescio
“lawfully came into knowledge of the identity of the defendant.” Aplt’s App. at 303-04.
Mr. Aranda-Riojas now appeals that decision.
DISCUSSION
“On appeal from the denial of a motion to suppress, we view the evidence in the
light most favorable to the government and accept any factual findings of the district
court unless they are clearly erroneous.” United States v. Glass, 128 F.3d 1398, 1405
(10th Cir. 1997). However, we review issues of law de novo. Id.
Although Mr. Aranda-Riojas argues to the contrary, ordinarily, “a request for
identification by the police does not, by itself, constitute a Fourth Amendment seizure.”
I.N.S. v. Delgado, 466 U.S. 210, 216 (1984). However, this does not mean that such an
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encounter cannot become a seizure. We “must consider all the circumstances surrounding
the encounter to determine whether the police conduct would have communicated to a
reasonable person that the person was not free to decline the officers’ requests or
otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 439 (1991). Thus,
so long as Mr. Aranda-Riojas felt free to decline Sergeant Vescio’s request for
identification, Mr. Aranda-Riojas’s decision to produce his driver’s license was
consensual and, accordingly, did not implicate the Fourth Amendment.
In Glass, we listed five factors that we have considered in determining whether an
encounter was consensual:
(1) Did the encounter occur in a confined or nonpublic space?
(2) Were the officers armed or uniformed?
(3) Did more than one officer confront the defendant?
(4) Did the officers exhibit an intimidating or coercive demeanor?
(5) Did the officers ask the defendant potentially incriminating questions?
See 128 F.3d at 1406. In the present case, the Glass factors lead us to conclude that
Sergeant Vescio did not seize Mr. Aranda-Riojas’s driver’s license but, rather, that Mr.
Aranda-Riojas consensually produced his license in response to Sergeant Vescio’s lawful
questioning.
First, the encounter between Sergeant Vescio and Mr. Aranda-Riojas took place in
an open, public space in the Denver International Airport. And although Sergeant Vescio
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and at least one of his fellow officers were armed, they did not display their weapons, and
none of the officers wore uniforms. Moreover, while it is true that three law enforcement
officers were present in Mr. Aranda-Riojas’s vicinity, only one confronted him.
In addition, although Mr. Aranda-Riojas described Sergeant Vescio’s tone of voice
as “hard,” Aplt’s App. at 199-201, Sergeant Vescio denied that he used an “authoritative
manner” when speaking with Mr. Aranda-Riojas, id. at 240. Construing this evidence in
the light most favorable to the government, it fails to demonstrate that Sergeant Vescio
exhibited an intimidating or coercive demeanor.
Finally, although Sergeant Vescio’s request for identification did, in hindsight,
prove to be incriminating, no single factor in the Glass calculus is dispositive. See 128
F.3d at 1406. Thus, we cannot say that Sergeant Vescio’s questions regarding Mr.
Aranda-Riojas’s identity transformed this otherwise consensual encounter into a seizure.
Mr. Aranda-Riojas emphasizes that Sergeant Vescio never testified that he wrote
down Mr. Aranda-Riojas’s name after examining the driver’s license. Mr. Aranda-Riojas
also stresses that Sergeant Vescio never testified that he “remembered” Mr. Aranda-
Riojas’s name from the license. However, Mr. Aranda-Riojas fails to mention that
Sergeant Vescio did testify that he “noted the name” when he examined Mr. Aranda-
Riojas’s license. Aplt’s App. at 237-38. Viewing this evidence in the light most
favorable to the government, we hold that Sergeant Vescio learned Mr. Aranda-Riojas’s
name at the time he examined Mr. Aranda-Riojas’s driver’s license.
5
Mr. Aranda-Riojas devotes much of his brief to events that occurred after he had
shown Sergeant Vescio his driver’s license. However, as soon as Mr. Aranda-Riojas
voluntarily handed his driver’s license to Sergeant Vescio, Sergeant Vescio lawfully
obtained the very information (Mr. Aranda-Riojas’s name) that Mr. Aranda-Riojas now
seeks to suppress. Thus, we agree with the district court’s conclusion that the ensuing
events are “immaterial” to our analysis. See Aplt’s App. at 304. Furthermore, because
Sergeant Vescio learned Mr. Aranda-Riojas’s identity through lawful means, we decline
to reach the question of whether a person’s identity is a fruit of a search that is capable of
being suppressed.
CONCLUSION
The totality of the circumstances demonstrates that Mr. Aranda-Riojas
consensually produced his driver’s license in response to Sergeant Vescio’s lawful
questioning. Thus, the district court properly denied Mr. Aranda-Riojas’s motion to
suppress. Accordingly, we AFFIRM his conviction.
The mandate shall issue forthwith.
ENTERED FOR THE COURT,
Robert H. Henry
Circuit Judge
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