United States v. Esparza-Mendoza

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 14 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 03-4218
JORGE ESPARZA-MENDOZA, also
known as Adame Amalia, also known
as Jorge Espinoza,

Defendant-Appellant,

AMERICAN CIVIL LIBERTIES
UNION IMMIGRANTS’ RIGHTS
PROJECT, ACLU OF UTAH;
NATIONAL ASSOCIATION OF
FEDERAL DEFENDERS;
NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS,

Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 02-CR-99-PGC)

Benjamin A. Hamilton, Salt Lake City, Utah, for Defendant-Appellant.

Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States
Attorney, District of Utah, with him on the brief), Salt Lake City, Utah, for
Plaintiff-Appellee.
Michael S. Kwun, Keker & Van Nest, LLP, San Francisco, California, with Lucas
Guttentag and Cecillia D. Wang, ACLU Immigrants’ Rights Project, Oakland,
California, Counsel for Amici Curiae American Civil Liberties Union Foundation
Immigrants’ Rights Project, ACLU of Utah, and National Association of Federal
Defenders, and David M. Porter, Sacramento, California, for Amicus Curiae
National Association of Criminal Defense Lawyers, on brief for Amici Curiae in
support of Defendant-Appellant.

Before SEYMOUR , BRISCOE , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.

Jorge Esparza-Mendoza appeals his conviction on one count of violating 8

U.S.C. § 1326, which prohibits previously deported aliens from reentering the

United States. Esparza-Mendoza has not contested that he had been previously

deported following a felony conviction for possession of cocaine in 1999, that he

did not have the express consent of the Attorney General to return, and that his

presence in this country was thus in violation of § 1326. Esparza-Mendoza’s only

argument has been that the evidence used to support the charge and conviction

was obtained in violation of the Fourth Amendment and should have been

suppressed.

The district court heard his motion to suppress and rejected it. In an

extensive memorandum opinion, the court analyzed legal, social, and political

precedent from colonial times to today, and came to the conclusion that

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previously deported felons cannot assert Fourth Amendment suppression claims. 1

See United States v. Esparza-Mendoza , 265 F. Supp. 2d 1254, 1271 (D. Utah

2003) (ruling that previously deported alien felons do not have a “sufficient

connection to this country” and therefore “stand outside ‘the People’ covered by

the Fourth Amendment”).

Esparza-Mendoza then entered a conditional guilty plea and the district

court sentenced him to seventeen months imprisonment followed by thirty-six

months of supervised release. Esparza-Mendoza timely appealed, and we have

jurisdiction under 28 U.S.C. § 1291. We conclude that Esparza-Mendoza’s

encounter with police was consensual and thus did not implicate the Fourth

Amendment. Therefore we affirm without having the opportunity to decide

whether we agree with the district court’s comprehensive analysis of who are “the

people” protected by the Fourth Amendment.

I. Background

A. The Facts

As noted by the district court, the facts of this case are essentially

undisputed. Esparza-Mendoza illegally entered the United States from Mexico

around March 1997. On April 19, 1999, he was convicted in Utah state court of a

1
The Fourth Amendment protects the “right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures . . . .”

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felony cocaine possession charge. The United States Immigration and

Naturalization Service (“INS”) subsequently gave Esparza-Mendoza notice it was

bringing a deportation action against him. Esparza-Mendoza did not contest the

deportation, and on May 20, 1999, the INS ordered his deportation, warning him

that reentry without permission would be a criminal offense. On May 22, 1999,

he was deported to Mexico.

On October 27, 2002, Deputy Tracey Cook of the Salt Lake County

Sheriff’s Office responded to a call reporting an altercation between two sisters at

a residence in Kearns, Utah. When she arrived at the scene, Deputy Cook

encountered two women. One was standing outside the home and the other in the

doorway. The two confirmed they were sisters and had been involved in a verbal

dispute. One added that the other had thrown a brick at a car parked in the

driveway. The woman told Deputy Cook that the car belonged to her boyfriend,

but that “he didn’t want anything done about it.” R. Vol. II at 15. Deputy Cook

told the woman she needed to speak to the boyfriend to ask about the damage and

to verify that he was the owner. The woman said he was inside the residence and

that she would get him.

The boyfriend came outside onto the porch to speak with Deputy Cook. He

told Deputy Cook that the car was not his but belonged to a sibling. Deputy Cook

testified at the suppression hearing that she then “stated I needed to get some

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identification from him and run the information on the vehicle . . . .” The

boyfriend responded by telling her that “he didn’t want anything done about the

damages to the vehicle.” Id. at 16-17. Deputy Cook testified that she told him

she found it strange that he would not want the damage investigated since the

owner would probably be upset when he returned the vehicle damaged. She

reiterated that she “needed” to see the boyfriend’s identification, and this time he

provided her with an identification card that identified him as Esparza-Mendoza.

Id. at 16-17, 28-29.

Deputy Cook called in Esparza-Mendoza’s information to a dispatch

officer, who advised her that Esparza-Mendoza was a deported felon and the

subject of a fugitive warrant. In order to confirm that she was indeed dealing

with the person named in the warrant, Deputy Cook contacted the INS. The INS

agent spoke first to Deputy Cook and then directly, extensively, and in Spanish,

with Esparza-Mendoza. After the INS agent confirmed that he was the subject of

the warrant, Deputy Cook arrested Esparza-Mendoza.

B. The Case

As noted, Esparza-Mendoza does not contest the essential factual basis for

his conviction. He was in the country in violation of 8 U.S.C. § 1326 . The only

question before the district court was whether Esparza-Mendoza’s identity and the

information that the government gathered once it discovered his identity, such as

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the outstanding warrant and his criminal and immigration history, should be

suppressed as the fruits of an illegal search and seizure.

At the suppression hearing, the government did not attempt to argue that

Deputy Cook had any reasonable suspicion of criminal activity that would justify

an investigatory detention of Esparza-Mendoza under Terry v. Ohio, 392 U.S. 1

(1968). The government instead made three arguments against suppression.

First, they maintained that the encounter between Deputy Cook and Esparza-

Mendoza was consensual, meaning there was no search or seizure for purposes of

the Fourth Amendment. Second, they contended that even if there was a violation

of the Fourth Amendment, an individual’s identity is not suppressible. Finally, at

the request of the district court, the government argued that previously deported

felons, as a class, are not entitled to challenge searches or seizures under the

Fourth Amendment.

The district court ruled that once Esparza-Mendoza initially refused to

provide his identification, Deputy Cook’s “additional step of directing him to

answer” made the encounter a non-consensual detainment. Esparza-Mendoza,

265 F. Supp. 2d at 1257. The court did not address the merits of the

government’s second argument because the government sought to introduce not

just Esparza-Mendoza’s identity but other evidence, including incriminating

statements. Id. at 1257-58. Since this other evidence, according to the district

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court, would not be excluded even under the government’s proposed rule, the

court felt compelled to address the third issue. Ruling that as a previously

deported felon Esparza-Mendoza “lacks sufficient connection to this country to

assert a Fourth Amendment suppression claim,” the district court denied the

motion to suppress. Id. at 1273.

II. Discussion

A. The Appeal

The parties take somewhat surprising positions on appeal. The government

has elected not to defend the district court’s decision that the Fourth Amendment

does not apply to Esparza-Mendoza—the only issue on which the court ruled in

the government’s favor. Instead, the government simply says that while it is not

“confessing error with respect to” that conclusion, it urges us to affirm by ruling

in its favor on either of the first two issues. On the other hand, Esparza-Mendoza

and the amici arguing in support of his appeal, while not ignoring the first two

issues, urge us to concentrate on the issue on which he lost.

Because we agree with the government that the encounter between Esparza-

Mendoza and Deputy Cook was completely voluntary, it did not constitute a

search or seizure under the Fourth Amendment. Thus we need not reach the other

two issues in order to affirm the district court.

B. The Encounter

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 The first issue on appeal is whether Esparza-Mendoza’s encounter with the

officer was consensual. On this issue, we must accept the district court’s factual

findings unless they are clearly erroneous. See United States v. Glass, 128 F.3d

1398, 1405 (10th Cir. 1997); United States v. Soto, 988 F.2d 1548, 1551 (10th

Cir. 1993). As noted above, however, the material facts of this case are

undisputed. Thus, the only question is whether those facts show that the

encounter was a non-consensual detainment. This is a matter of applying the law

to the facts, which we analyze de novo. Glass, 128 F.3d at 1405; United States v.

Torres-Guevara, 147 F.3d 1261, 1264 (10th Cir. 1998). In addition, “[w]e are

free to affirm the rulings of a district court on any ground that finds support in the

record.” Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1248 (10th Cir. 2000)

(internal quotations omitted). Because Deputy Cook’s initial encounter with

Esparza-Mendoza did not implicate the Fourth Amendment, we affirm the district

court’s denial of the motion to suppress on that ground.

Following the Supreme Court’s direction, we have recognized repeatedly

that “[t]he Fourth Amendment proscribes unreasonable searches and seizures; it

does not proscribe voluntary cooperation.” United States v. Johnson, 364 F.3d

1185, 1188 (10th Cir. 2004) (quoting Florida v. Bostick, 501 U.S. 429, 439

(1991)); Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000). “An encounter

is consensual if the defendant ‘is free to leave at any time during the encounter.’”

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Torres-Guevara, 147 F.3d at 1264 (quoting United States v. Hernandez, 93 F.3d

1493, 1498 (10th Cir. 1996)). Thus, “[p]olice officers may approach citizens, ask

them questions and ask to see identification without implicating the Fourth

Amendment’s prohibition against unreasonable searches and seizures.” Johnson,

364 F.3d at 1188-89 (citing Bostick, 501 U.S. at 434-35). “A person is seized

only when that person has an objective reason to believe he or she is not free to

end the conversation with the officer and proceed on his or her way.” Hernandez,

93 F.3d at 1498. “If a reasonable person would feel free to terminate the

encounter,” the encounter does not implicate the Fourth Amendment. United

States v. Drayton, 536 U.S. 194, 201 (2002).

The district court cited only one case in concluding that Deputy Cook

detained Esparza-Mendoza, INS v. Delgado, 466 U.S. 210 (1984). The court’s

analysis of that case was that “the Supreme Court directly stated it would find a

detention ‘if the [questioned] person[] refuses to answer and the police take

additional steps . . . to obtain an answer.” Esparza-Mendoza, 265 F. Supp. 2d at

1257 (quoting Delgado, 466 U.S. at 216). The district court then ruled that a

detention occurred when “Esparza-Mendoza refused to answer and the police took

the additional step of directing him to answer.” Id.

The government is correct that in doing so the district court applied an

overly strict rule against any additional questioning of an individual who has

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initially refused to cooperate completely. A reading of the unabridged passage

from Delgado shows its more limited scope:

[P]olice questioning, by itself, is unlikely to result in a Fourth
Amendment violation. While most citizens will respond to a police
request, the fact that people do so, and do so without being told they
are free not to respond, hardly eliminates the consensual nature of the
response. Unless the circumstances of the encounter are so
intimidating as to demonstrate that a reasonable person would have
believed he was not free to leave if he had not responded, one cannot
say that the questioning resulted in a detention under the Fourth
Amendment. But if the person refuses to answer and the police take
additional steps–such as those taken in Brown–to obtain an answer,
then the Fourth Amendment imposes some minimal level of objective
justification to validate the detention or seizure.

Delgado, 466 U.S. at 216-17 (internal citations omitted).

Delgado therefore tells us two important things. First, the Supreme Court

reaffirmed the reasonable-person-in-the-totality-of-the-circumstances standard.

Second, the Court directs courts to look to Brown v. Texas, 443 U.S. 47 (1979),

for guidance as to what kinds of police action following a refusal to answer will

implicate the Fourth Amendment. An examination of that case shows that Deputy

Cook’s “additional step” of telling Esparza-Mendoza she needed his identification

does not approach the level of coercion involved in Brown.

In Brown, when police stopped the appellant and asked him to identify

himself, he “refused to identify himself and angrily asserted that the officers had

no right to stop him . . . . [One officer] then ‘frisked’ appellant . . . . When

appellant continued to refuse to identify himself, he was arrested . . . . Following

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the arrest, the officers searched appellant; nothing untoward was found.” 443

U.S. at 49. Frisking, physically arresting, and searching the subject are additional

steps of a different dimension than making a second request, or even a second

demand, for identification. Thus, the district court’s determination that Deputy

Cook’s actions implicated the Fourth Amendment simply because she continued

her conversation with him after his initial refusal to identify himself was

erroneous.

Other cases from the Supreme Court and this court make it clear that

Delgado does not require or permit such a black and white analysis. No “single

factor will be dispositive in every case.” Bostick, 501 U.S. at 439. Indeed, in

Delgado itself, the Court held that no Fourth Amendment seizures occurred where

the INS questioned each employee of a factory and asked to see identification

papers for any who could not credibly claim to be citizens. 466 U.S. at 212, 221;

see also Drayton, 536 U.S. at 201 (“[The Court has] made it clear that for the

most part per se rules are inappropriate in the Fourth Amendment context.”).

We therefore turn to our own de novo review of this issue. The “proper

inquiry necessitates a consideration of ‘all the circumstances surrounding the

encounter.’” Drayton, 536 U.S. at 201 (quoting Bostick, 501 U.S. at 439). We

have held that those circumstances include (1) whether the encounter occurred in

a “confined or nonpublic space,” (2) if “the officers confronting the subject were

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armed or uniformed,” (3) the number of officers confronting the subject, (4)

whether “the officers exhibited an intimidating or coercive demeanor,” and (5) if

the questions asked by the officer called for potentially incriminating answers.

Torres-Guevara, 147 F.3d at 1264 (quoting United States v. Glass, 128 F.3d

1398, 1405 (10th Cir. 1997).

In this case, Deputy Cook encountered Esparza-Mendoza on the porch

outside his girlfriend’s home, and although she may have been armed and in

uniform (the record is silent on this point), there was no evidence that she drew

her weapon or otherwise “exhibited an intimidating or coercive demeanor.” Nor

were there any other officers confronting Esparza-Mendoza. Deputy Cook’s

desire to identify Esparza-Mendoza might have been disconcerting to a person

who had committed a crime, such as stealing the car or entering the country

illegally, but “the ‘reasonable person’ test presupposes an innocent person.”

Bostick, 501 U.S. at 438 (emphasis in original); see also Michigan v. Chesternut,

486 U.S. 567, 574 (1988) (“This ‘reasonable person’ standard . . . ensures that the

scope of Fourth Amendment protection does not vary with the state of mind of the

particular individual being approached.”); United States v. Williams, 356 F.3d

1268, 1275 (10th Cir. 2004). Deputy Cook’s statements would not have seemed

coercive or intimidating to a reasonable innocent person. Thus, the only relevant

factor that goes in Esparza-Mendoza’s favor is, not surprisingly, the one

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emphasized in his briefs and relied on by the district court: Deputy Cook’s second

statement regarding her “need” for Esparza-Mendoza’s identification. As pointed

out above, this is quite different than the frisking, arrest, and search discussed by

the Delgado Court. See 466 U.S. at 216 (distinguishing Brown, 443 U.S. at 52).

This case is, rather, like Torres-Guevara, where officers, having already

asked the subject whether she was carrying drugs and to consent to a search,

repeated their questions after the subject had declined to answer. See 147 F.3d at

1265. As this court noted, where there was no evidence that the police “‘used a

commanding or threatening manner or tone of voice, displayed a weapon, or

touched’” the subject, “a reasonable person in [the subject’s] position would have

believed that she was free to leave in lieu of responding.” Id. (quoting United

States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996)). Thus, the Fourth

Amendment did not apply. Torres-Guevara, 147 F.3d at 1265.

The distinction on which Esparza-Mendoza hopes to rely is that instead of

asking for his identification, Deputy Cook demanded it. Though the fact that the

request was made in a declaratory rather than interrogatory sentence may be

relevant to our overall consideration, it does not so alter the totality of the

circumstances to the point that a reasonable person would have felt compelled to

respond. And although Esparza-Mendoza argues that he was forced to either give

up his identification or “leave the family residence,” see Aplt. Reply Br. at 7, the

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record actually shows that he had a number of other options. There is no

evidence that Deputy Cook would have gone into the home to pursue Esparza-

Mendoza had he not come out at his girlfriend’s request, arrested him had he

again refused to provide identification, or stopped him from simply going back

into the family residence. Cf. Delgado, 466 U.S. at 220-21 (“While persons who

attempted to flee or evade the agents may eventually have been detained for

questioning, respondents did not do so and were not in fact detained . . . .

Respondents may only litigate what happened to them.”) (internal citation

omitted). We have held that valid consent has been given by individuals with

fewer options than Esparza-Mendoza. See, e.g., United States v. Abdenbi, 361

F.3d 1282, 1286, 1291-92 (10th Cir. 2004) (holding consent valid where three

officers gained entry to an apartment after awakening one roommate at 6:15 a.m.,

one of the officers found another roommate asleep in his bedroom, and proceeded

to question him); United States v. Manjarrez, 348 F.3d 881, 885-86 (10th Cir.

2003) (summarizing rules for obtaining consent of drivers pulled over by police).

A reasonable person might indeed have felt compelled by simple good

manners, or by an understandable but nonetheless unnecessary unease around law

enforcement officers, to accede to Deputy Cook. But a reasonable person should

not have felt legally compelled to do so in these circumstances. See Delgado, 466

U.S. at 216 (“While most citizens will respond to a police request, the fact that

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people do so, and do so without being told they are free not to respond, hardly

eliminates the consensual nature of the response.”); Abdenbi, 361 F.3d at 1291-

93. Thus, Deputy Cook’s encounter with Esparza-Mendoza did not become a

detention or seizure until after he had consensually given her his identification

and she had thereby learned that he was the subject of an outstanding warrant.

III.

Conclusion

Because Esparza-Mendoza consensually revealed his identity to Deputy

Cook, that identity and the information about Esparza-Mendoza’s past were

obtained without a Fourth Amendment seizure. Esparza-Mendoza was only seized

after Deputy Cook and the INS determined that he was the subject of a fugitive

warrant. Esparza-Mendoza does not contest that Deputy Cook had adequate cause

to arrest him at that point. Thus, there was no violation of the Fourth

Amendment. This is sufficient to uphold the district court’s denial of the motion

to suppress, and we need not address the other arguments made below and on

appeal. The judgment below is AFFIRMED.

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