F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
March 6, 2007
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4155
OSCAR ANTONIO LARA-GARCIA,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:05-CR-391-TC)
Theodore R. Weckel, Salt Lake City, Utah, for Defendant-Appellant.
Karin M. Fojtik, Assistant United States Attorney (Brett L. Tolman, United States
Attorney, with her on the brief), for Plaintiff-Appellee.
Before BRISCOE, BALDOCK, and HARTZ, Circuit Judges.
BALDOCK, Circuit Judge.
The Government has identified Defendant Oscar Lara-Garcia as a previously deported
alien. Defendant objects to the means by which the Government discovered his identity. In
this case we hold that a federal agent’s failure to provide a lawfully detained suspect a
Miranda warning prior to inquiring about his immigration status does not require suppression
of that status where fingerprint evidence subsequently confirms such status.
I.
The material facts as found by the district court and supported by the record are as
follows. Officer Cal Miller of the Alpine, Utah police department stopped Defendant Oscar
Lara-Garcia’s vehicle during daylight hours upon a report of reckless driving. Defendant
could not produce a driver’s license or any other type of identification. Nor could Defendant
remember his social security number. Defendant initially told Officer Miller his name was
“Juan Garcia” and his birthday was February 2, 1972. Shortly thereafter, Defendant claimed
his name was “Juan Fierro.” Defendant reported the vehicle belonged to his brother. When
dispatch could not locate a valid driver’s license for either “Juan Garcia” or “Juan Fierro,”
the officer began to prepare Defendant a citation for driving without a license.
While Officer Miller prepared the citation, dispatch informed him that a “Juan Garcia”
“had a N.C.I.C. hit out of California” for a parole violation. Dispatch further informed the
officer that California wanted to extradite him. The officer testified the parole violator’s
physical description matched Defendant in certain respects, including weight, height, and eye
color. Also, the “Juan Garcia” wanted in California had a birthday of February 2, 1973.
Officer Miller estimated he called “back and forth” to dispatch between five and eight times,
each time waiting between five and fifteen minutes for a response. Unable to determine after
numerous inquiries whether Defendant was in fact the “Juan Garcia” named in the
outstanding warrant, the officer handcuffed Defendant and transported him to the Alpine
police station. This occurred around ninety minutes into the stop.
Still unable to identify Defendant, Officer Miller placed him, while handcuffed, in a
2
conference room. Dispatch informed the officer that a federal agent from Immigration and
Customs Enforcement (ICE) had phoned and offered to help identify Defendant. ICE agents
had been monitoring the communications between the officer and dispatch, and became
concerned Defendant might be an illegal immigrant. Officer Miller advised dispatch he
would welcome assistance. ICE Agent Timothy Chard arrived at the station soon thereafter.
Agent Chard stated he met with Officer Miller who told him “he was waiting for more
information from California on an N.C.I.C. hit on the individual for like scars, marks, tattoos,
and seeing if they could get a photo or fingerprints to be able to match it up to the
individual.” Once in the conference room, Agent Chard asked Defendant his name, date of
birth, place of birth, and immigration status. The agent did not provide Defendant a Miranda
warning prior to questioning. Defendant stated his name was “Juan Garcia” and he was an
illegal immigrant from Mexico. Following the interview, Agent Chard was in the hallway
when Officer Miller returned and informed him that, based on “some scars or tattoos [which]
did not match up,” Defendant did not appear to be the “Juan Garcia” wanted in California.
At that point, Alpine police turned Defendant’s custody over to ICE.
Back at ICE headquarters, Agent Chard ran an identity check on Defendant’s
“right and left index finger” to determine whether Defendant had prior “dealings with
immigration.” The ICE database recognized Defendant’s fingerprints and reported
Defendant’s name as Oscar Lara-Garcia, a previously deported alien. Defendant was
charged with one count of illegal reentry into the United States in violation of 8 U.S.C.
§ 1326. Following the district court’s denial of Defendant’s motion to suppress evidence
3
of his identity, Defendant entered a conditional plea of guilty, reserving his right to
appeal. See Fed. R. Crim. P. 11(a)(2). The district court sentenced Defendant to 24 months
imprisonment. Our jurisdiction arises under 28 U.S.C. § 1291. In reviewing the denial of
a motion to suppress, we view the evidence in a light most favorable to the Government. We
review the district court’s findings of fact for clear error and its determinations of law de
novo. See United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir. 2005).
II.
Defendant asserted in the district court, as he does on appeal, that Agent Chard “did
not have a sufficient basis to detain him to investigate his immigration status and that all
evidence obtained as a result of his detention, including evidence of his identity, should be
suppressed.” United States v. Lara-Garcia, No. 2:05-CR-391-TC, memo. dec. at 8 (D. Utah,
March 31, 2006). In a thorough order, the district court first concluded Officer Miller had
probable cause to detain Defendant at the police station while the officer attempted to
ascertain Defendant’s identity and determine whether he was the “Juan Garcia” named in the
California warrant. Id. at 8-10. The court further concluded Officer Miller had probable
cause to arrest Defendant for failure to possess a valid driver’s license. Id. at 10-11. The
court next concluded Agent Chard’s question concerning Defendant’s immigration status
constituted a custodial interrogation requiring a Miranda warning. Because the agent had
not provided Defendant a Miranda warning, Defendant’s admission that he was an illegal
immigrant was suppressible. Id. at 11-14. Nonetheless, under the inevitable discovery
exception to the exclusionary rule, evidence of Defendant’s identity obtained subsequent to
4
his statement was admissible against him because, according to the court, Agent Chard had
probable cause to investigate Defendant’s identity apart from the incriminating statement.
Id. at 14-19.
A.
Defendant first argues that at the time of questioning, Agent Chard lacked “reasonable
suspicion” to believe Defendant was an illegal immigrant. According to Defendant, ICE
unlawfully interjected itself into the investigation to question Defendant about his identity.
Defendant faults the district court for failing to “comment directly on whether federal agent
Chard had reasonable suspicion to stop and question [Defendant].” Defendant asserts Officer
Miller transported him to the police station for no other reason than to hand him over to ICE
based on ICE’s “hunch” he might be an illegal immigrant. Defendant says “Agent Chard’s
stop and questioning of [Defendant] should be deemed investigatory, not based upon
reasonable suspicion, unparticularized, general in nature and an egregious Fourth
Amendment violation.”
Defendant’s argument is long on rhetoric and short on law. A proper focus requires
us first to ask whether Defendant was lawfully detained at the time of Agent Chard’s
questioning. If so, Defendant was reasonably seized at the time of such questioning in
compliance with the Fourth Amendment, and any argument Defendant might make to
suppress his identity based on an unlawful detention must fail. Compare United States v.
Olivares-Rangel, 458 F.3d 1104 (10th Cir. 2006) (addressing the suppression of identity
evidence arising from an unlawful arrest). Importantly, Defendant has not asserted, either
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in his brief or at oral argument, that Officer Miller lacked probable cause to detain him based
on his failure to possess a valid driver’s license or inability to identify himself as someone
other than the “Juan Garcia” wanted on the outstanding warrant. Rather, Defendant focuses
exclusively on law enforcement’s purported lack of probable cause to suspect he was an
illegal immigrant. Any other reason offered for his detention, Defendant suggests, was
merely a pretext for investigating his immigration status.1
Unfortunately for Defendant, an officer’s “subjective motivation is irrelevant” to the
question of whether a particular seizure was reasonable: “An action is ‘reasonable’ under
the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the
circumstances, viewed objectively, justify the action.” Brigham City v. Stuart, 126 S. Ct.
1943, 1948 (2006) (rejecting the argument that the reasonableness of a warrantless entry into
a home turns upon the officer’s subjective motivation for entering) (internal quotations and
1
Defendant’s bald assertion that he was the subject of racial profiling is meritless.
A defendant raising such claim
must present evidence from which a jury could reasonably infer that the law
enforcement officials involved were motivated by a discriminatory purpose
and their actions had a discriminatory effect. To satisfy the discriminatory-
effect element, one who claims selective enforcement must make a credible
showing that a similarly-situated individual of another race could have
been, but was not, stopped or arrested for the offense for which the
defendant was stopped or arrested. And the discriminatory-purpose element
requires a showing that discriminatory intent was a motivating factor in the
decision to enforce the criminal law against the defendant.
United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006) (internal
citations, brackets, and ellipses omitted). In this case, Defendant has made no showing
whatsoever of discriminatory effect or purpose on the part of law enforcement officers.
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brackets omitted). Aside from the district court’s conclusion that probable cause to suspect
criminal activity arose from Defendant’s likeness to the “Juan Garcia” wanted on an
outstanding warrant, the court’s holding that Officer Miller had probable cause to arrest
Defendant for failure to possess a valid driver’s license was quite enough to justify his
detention at the police station. We explained in United States v. Santana-Garcia, 264 F.3d
1188, 1192 (10th Cir. 2001), that “[u]nder Utah law, operating a vehicle without a valid
driver’s license is a Class C misdemeanor. Utah Code Ann. § 53-2-202. Utah law authorizes
arrest for the commission of a Class C misdemeanor. Id. § 77-7-2.”
In his reply brief, Defendant acknowledges the same by stating Officer Miller “had
the authority under Utah law to arrest Mr. Lara-Garcia for a traffic violation outright, without
a need to identify who he was.” Thus, at the time Agent Chard questioned Defendant about
his immigration status, Defendant was detained at the police station based on an objectively
reasonable belief he had violated the law.2 That is all the Fourth Amendment requires to
justify Defendant’s detention. Agent Chard did not need a second, independent basis to
detain Defendant, and did not need probable cause to believe he was an illegal immigrant
prior to questioning him.
B.
The more difficult query in this case is whether the Fifth Amendment required Agent
2
In County of Riverside v. McLaughlin, 500 U.S. 44, 55-58 (1991), the Court
decided that a suspect held on probable cause generally may be detained up to 48 hours
prior to a detached magistrate’s probable cause determination. Defendant’s detention in
this case did not come close to approaching the 48-hour deadline.
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Chard to provide Defendant a Miranda warning before questioning him about his
immigration status. See Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 189 (2004) (“To
qualify for the Fifth Amendment privilege, a communication must be testimonial,
incriminating, and compelled.”). That is a question, however, we need not answer.3 Even
assuming the district court was correct in holding the agent’s question violated Defendant’s
Fifth Amendment right, the physical evidence which arose from such violation, i.e.,
Defendant’s fingerprints and immigration file, is not suppressible.
In United States v. Patane, 542 U.S. 630 (2004) (plurality), the Supreme Court
concluded the exclusionary rule or “fruit of the poisonous tree doctrine” does not apply “to
mere failures to give Miranda warnings[.]” Id. at 643. Relying on Patane, we subsequently
held in United States v. Phillips, 468 F.3d 1264, 1265 (10th Cir. 2006), that physical
evidence obtained as a fruit of a defendant’s voluntary, i.e. uncoerced, statement to a police
officer is admissible at trial “regardless of whether the officer gave the defendant Miranda
3
Undoubtedly, where a suspect such as Defendant is detained based on probable
cause that he may have committed a crime, a law enforcement official may ask the
suspect to identify himself without providing a Miranda warning. “Questions about a
person’s identity are not unconstitutional even if identification of the person may help
lead to the prosecution of that person for a crime.” United States v. Washington, 462
F.3d 1124, 1133 (9th Cir. 2006) (question about a suspect’s “gang moniker” did not
require a Miranda warning). We have previously recognized “the disclosure of name and
address is essentially a neutral act and it would be the extravagant extension of the
privilege . . . to hold that it is testimonial in the Fifth Amendment sense.” United States
v. McCurdy, 40 F.3d 1111, 1115 (10th Cir. 1994) (internal quotations and brackets
omitted). Furthermore, questions as to date and place of birth are normal questions
attendant to arrest and custody and do not require a Miranda warning. See United States
v. Arellano-Ochoa, 461 F.3d 1142, 1146 (9th Cir. 2006). Thus, Agent Chard’s questions
as to Defendant’s name and birth information did not require a Miranda warning.
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warnings.” In Philllips, police recovered a gun and jacket with blood on it near the scene of
a robbery. In response to an officer’s inquiry about his limp, defendant stated he had been
shot. Defendant did not receive a Miranda warning prior to the officer’s question. The
officer prepared an affidavit for a search warrant based on defendant’s response. The
warrant sought a swab of defendant’s DNA so law enforcement could compare his DNA to
that of the blood found on the jacket. A match was made. We held the DNA evidence
admissible despite the lack of a Miranda warning. Phillips, 468 F.3d at 1265-66. This is
because “the Miranda rule protects against violations of the Self-Incrimination Clause,
which, in turn, is not implicated by the introduction at trial of physical evidence resulting
from voluntary statements[.]” Patane, 542 U.S. at 634.
III.
Accordingly, Defendant’s identity and status as an illegal immigrant as revealed by
his fingerprints and immigration file is not suppressible. The judgment of the district court
is –
AFFIRMED.4
4
As to his 24 month sentence, Defendant suggests the district court erred in
declining to depart downward from the guideline range based on Agent Chard’s alleged
Miranda violation. Because the district court recognized its authority to grant a
downward departure at the sentencing hearing, we lack jurisdiction to review its decision
to deny Defendant’s motion for such departure. See United States v. Fonseca, 473 F.3d
1109, 1111-1115 (10th Cir. 2007) (“This court may review a denial of a downward
departure only if the denial is based on the sentencing court’s interpretation of the
Guidelines as depriving it of the legal authority to grant the departure.”); see also United
States v. Washburn, 383 F.3d 638, 644 (7th Cir. 2004) (expressing “serious doubts about
whether police misconduct that did not have any effect on the nature of the offense or the
individual offender would ever be a permissible ground for departure”).
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