United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2749
___________
United States of America, *
*
Plaintiff - Appellee, *
*
v. * Appeal from the United States
* District Court for the
Fidel Diaz Quintana, also known as * District of North Dakota.
Saul Rojo-Flores, also known as *
Miguel Martinez-Gonzales, also *
known as Miguel Joe Martinez, *
*
Defendant - Appellant. *
___________
Submitted: May 13, 2010
Filed: October 28, 2010
___________
Before RILEY, Chief Judge, LOKEN and MURPHY, Circuit Judges.
___________
LOKEN, Circuit Judge.
Fidel Diaz-Quintana conditionally pleaded guilty to re-entry by a deported alien
following an aggravated felony conviction. See 8 U.S.C. § 1326(a) & (b)(2). Diaz-
Quintana appeals the district court’s denial of his motion to suppress, arguing that his
lengthy detention following a traffic stop violated the Fourth Amendment because
immigration officials may only “briefly detain [an alien] for questioning” when they
have reasonable suspicion that he is illegally in the United States. 8 C.F.R.
§ 287.8(b)(2). The government responds that an immigration officer validly placed
Diaz-Quintana under administrative arrest, without a warrant, when brief questioning
provided reason to believe that Diaz-Quintana was a deportable alien. Immigration
officers then validly obtained probable cause to charge him with a criminal violation
of the immigration laws during the ensuing administrative detention. Applying
statutes and regulations authorizing questioning and detention of suspected illegal
aliens, and reviewing Fourth Amendment suppression issues de novo, we agree with
the government and therefore affirm. See United States v. Salazar, 454 F.3d 843, 846
(8th Cir. 2006) (standard of review).
I.
At 2:30 p.m. on August 22, 2008, North Dakota Highway Patrol Trooper
Christopher Messer stopped a car with Washington State license plates for speeding
(88 m.p.h. in a 75 m.p.h. zone). The driver said his name was Fidel Diaz-Quintana,
produced a Mexican driver’s license bearing that name, and identified the passenger
as his adult son. He had no immigration documents in his possession. He said that
he and his son had attended a funeral in North Dakota and were returning to
Washington in a car belonging to a relative.
Unable to verify the Mexican driver’s license, Messer contacted the United
States Border Patrol, a unit of the Department of Homeland Security. See 8 C.F.R.
§ 100.2(d)(2)(B)(iii). Suspecting drug trafficking, Messer also summoned Trooper
Shawn Skogen and his drug dog, who arrived at 2:53 p.m. At 3:00, Border Patrol
Agent Mark Bane returned Messer’s call and spoke with Diaz-Quintana, who told
Bane he entered the country under a valid Mexican passport but left both the passport
and his visa in Washington. Meanwhile, Trooper Skogen’s dog sniffed the vehicle’s
exterior and did not alert. Trooper Messer issued Diaz-Quintana a speeding ticket.
At Agent Bane’s request, the Grand Forks Border Patrol Dispatch did a record
check using the name and date of birth Diaz-Quintana provided but found no port-of-
-2-
entry crossing, visa information, or immigration history. Bane called Messer at 3:10
and spoke again with Diaz-Quintana, who confirmed he provided the name used on
the visa application. Agent Bane requested a second preliminary record search, using
several variations of the name Diaz-Quintana, which again returned no immigration
information. Bane called Messer at 3:20 and told him to take Diaz-Quintana into
custody for the Border Patrol. Messer took Diaz-Quintana to the Stark County Law
Enforcement Center in Dickinson, North Dakota.
The next day, Border Patrol Agent Ben Lotvedt drove two hundred miles from
the Border Patrol station at Portal, North Dakota and took custody of Diaz-Quintana
in Dickinson. After arriving at noon, Agent Lotvedt drove Diaz-Quintana to the
station at Portal. He was fingerprinted, provided personal biographical information,
and was afforded but declined to exercise his right to speak with a Mexican consular
official. Diaz-Quintana’s fingerprints and biographical information were entered into
the Border Patrol’s IAFIS/IDENT computerized system. This search revealed that
Diaz-Quintana’s prints matched those of an alien named Saul Rojo-Flores, who had
two prior drug convictions, had been deported twice, and had no permission to re-
enter the country. Lotvedt advised Diaz-Quintana of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). Diaz-Quintana waived those rights, admitted being
previously removed and not applying for permission to re-enter, and claimed that he
entered the United States at San Ysidro, California under a valid Mexican passport.
After Diaz-Quintana was indicted for violating 8 U.S.C. § 1326, he moved to
suppress his incriminating statements to the Border Patrol agents while he was
detained, as well as identity evidence derived from that detention. His Memorandum
in Support set forth background facts without evidentiary support. The government
filed a Response that included affidavits by Trooper Messer and Agents Bane and
Lotvedt setting forth the above-summarized background facts. No material facts were
in dispute. The district court denied the motion without an evidentiary hearing.
-3-
II.
Diaz-Quintana argues on appeal, as he did to the district court, that Trooper
Messer and the Border Patrol agents violated the Fourth Amendment by unreasonably
prolonging a valid traffic stop for over twenty-four hours to investigate Diaz-
Quintana’s immigration status, thereby converting the stop into a de facto arrest and
custodial detention without probable cause. Diaz-Quintana concedes that Trooper
Messer’s traffic stop was justified. Incident to that stop, Messer could “request [Diaz-
Quintana’s] driver’s license and registration . . . conduct computer searches to
investigate the driver’s criminal history and . . . make inquiries as to [his] destination
and purpose,” and could detain him “as long as reasonably necessary to conduct these
activities and to issue a warning or citation.” United States v. Jones, 269 F.3d 919,
924-25 (8th Cir. 2001). The government concedes that, after Trooper Messer issued
the speeding ticket and the drug dog failed to alert, the only lawful basis for further
prolonging Diaz-Quintana ’s detention was “to verify his legal status in the United
States.” The issue, then, turns on issues of immigration law enforcement.
An alien present in this country who was inadmissible when he entered is
deportable. 8 U.S.C. § 1227(a)(1)(A) & (B). “A deportation proceeding is a purely
civil action to determine eligibility to remain in this country, not to punish an unlawful
entry, though entering or remaining unlawfully in this country is itself a crime.” INS
v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). An alien may be arrested and
detained pending a decision whether he is to be removed “[o]n a warrant issued by the
Attorney General.” 8 U.S.C. § 1226(a). In addition, a Border Patrol agent acting
without a warrant is authorized -
(1) to interrogate any alien or person believed to be an alien as to his
right to be or to remain in the United States;
(2) . . . to arrest any alien in the United States, if he has reason to
believe that the alien so arrested is in the United States in violation of
-4-
any such law or regulation and is likely to escape before a warrant can
be obtained for his arrest, but the alien arrestee shall be taken without
unnecessary delay . . . before an officer of the Service having authority
to examine aliens as to their right to enter or remain in the United States.
8 U.S.C. § 1357(a). Because the Fourth Amendment applies to arrests of illegal
aliens, the term “reason to believe” in § 1357(a)(2) means constitutionally required
probable cause. See Babalu v. INS, 665 F.2d 293, 298 (3d Cir. 1981); Tejeda-Mata
v. INS, 626 F.2d 721, 725 (9th Cir. 1980); United States v. Cantu, 519 F.2d 494, 496
(7th Cir.) cert. denied, 423 U.S. 1035 (1975); Au Yi Lau v. INS, 445 F.2d. 217, 222
(D.C. Cir.), cert. denied, 404 U.S. 864 (1971). Accord United States v. Brignoni-
Ponce, 422 U.S. 873, 881-82 (1975) (the Fourth Amendment, as construed in Terry
v. Ohio, 392 U.S. 1 (1968), applies to warrantless seizures of aliens).
The Attorney General’s regulations implementing 8 U.S.C. § 1357(a) carefully
distinguish between warrantless arrests for the purpose of commencing civil
deportation proceedings, and warrantless arrests for criminal violations of the
immigration laws:
[8 C.F.R.] § 287.8 Standards for enforcement activities. . . .
(b) Interrogation and detention not amounting to arrest. (1) . . . An
immigration officer, like any other person, has the right to ask questions
of anyone as long as the immigration officer does not restrain the
freedom of an individual, not under arrest, to walk away.
(2) If the immigration officer has a reasonable suspicion, based on
specific articulable facts, that the person being questioned is . . . an alien
illegally in the United States, the immigration officer may briefly detain
the person for questioning.
* * * * *
-5-
(c) Conduct of arrests . . . .
(2) General procedures. (i) An arrest shall be made only when the
designated immigration officer has reason to believe that the person to
be arrested . . . is an alien illegally in the United States.
(ii) A warrant of arrest shall be obtained except when the
designated immigration officer has reason to believe that the person is
likely to escape before a warrant can be obtained.
* * * * *
(iv) With respect to an alien arrested and administratively charged
with being in the United States in violation of law, the arresting officer
shall adhere to the procedures set forth in 8 CFR 287.3 if the arrest is
made without a warrant.
(v) With respect to a person arrested and charged with a criminal
violation of the laws of the United States, the arresting officer shall
advise the person of the appropriate rights as required by law . . . .
(vi) Every person arrested and charged with a criminal violation
of the laws of the United States shall be brought without unnecessary
delay before a United States magistrate judge [or other appropriate
judicial officer]. Accordingly, the immigration officer shall contact an
Assistant United States Attorney to arrange for an initial appearance.1
§ 287.3 Disposition of cases of aliens arrested without warrant.
(a) Examination. An alien arrested without a warrant of arrest . . .
will be examined by an officer other than the arresting officer.
1
Because arrests under § 1357(a)(2) for the purpose of deporting an illegal alien
result in “civil” or “administrative” removal proceedings, aliens held in that type of
custody are not entitled to the protections of Rule 5(a) of the Federal Rules of
Criminal Procedure. See United States v. Encarnacion, 239 F.3d 395, 398-99 (1st Cir.
2001), and cases cited.
-6-
(b) Determination of proceedings. If the examining officer is
satisfied that there is prima facie evidence that the arrested alien . . . is
present in the United States in violation of the immigration laws, the
examining officer will refer the case to an immigration judge for further
inquiry . . . order the alien removed . . . or take whatever other action
may be appropriate or required under the laws or regulations applicable
to the particular case.
* * * * *
(d) Custody procedures. Unless voluntary departure has been
granted . . . a determination will be made within 48 hours of the arrest .
. . whether the alien will be continued in custody or released on bond or
recognizance . . . .”
In this case, Diaz-Quintana was initially questioned regarding his identity as
part of a valid traffic stop. Trooper Messer reasonably contacted the Border Patrol to
determine the validity of Diaz-Quintana’s Mexican driver’s license. Agent Bane
spoke with Diaz-Quintana by telephone and learned he was a Mexican national who
claimed to have entered the country legally but had no legitimizing documents in his
possession. Bane reasonably conducted prompt preliminary record checks of Diaz-
Quintana’s reported name, entry, and immigration status. When those checks
produced no information for the name and date of birth provided by Diaz-Quintana,
and no confirmation of his claim of legal entry, Agent Bane had “reason to believe”
(i.e., probable cause to believe) that the person Messer stopped for speeding was an
alien subject to deportation because illegally present in this country. Agent Bane also
had “reason to believe that [Diaz-Quintana was] likely to escape before a warrant
[could] be obtained” and therefore had probable cause to make a warrantless
“administrative” arrest for deportation proceedings under 8 U.S.C. § 1357(a)(2) and
8 C.F.R. § 287.8(c)(2)(iv). See United States v. Torres-Lona, 491 F.3d 750, 56 (8th
Cir. 2007), cert. denied, 552 U.S. 1121 (2008); Ojeda-Vinales v. INS, 523 F.2d 286,
288 (2d Cir. 1975).
-7-
On appeal, Diaz-Quintana argues that the district court committed plain error
in not holding an evidentiary hearing at which he could have contested the averrals in
Agent Bane’s affidavit. We disagree. In his reply memorandum to the district court,
Diaz-Quintana did not challenge Agent Bane’s factual assertions, including his
description of the Border Patrol record checks conducted at his request. Rather, Diaz-
Quintana argued, incorrectly, that 8 U.S.C. § 1357(a)(2) only applies to warrantless
administrative arrests at the time an alien enters the country. In these circumstances,
the district court did not abuse its discretion, much less commit plain error, in relying
on Agent Bane’s affidavit without a hearing.
Alternatively, Diaz-Quintana argues that his lengthy administrative detention
before the Border Patrol uncovered evidence of illegal re-entry violated his Fourth
Amendment rights as construed in United States v. Flores-Sandoval, 422 F.3d 711,
714 (8th Cir. 2005), and United States v. Guevara-Martinez, 262 F.3d 751, 755 (8th
Cir. 2001). But in those cases, probable cause to believe that the defendants were
deportable aliens was acquired after their illegal arrest and detention. Here, the
critical issue is whether Agent Bane acquired probable cause during the valid traffic
stop to take Diaz-Quintana into administrative custody as a deportable alien. Diaz-
Quintana admitted he was a Mexican national. Though he provided a superficially
plausible explanation for not having immigration documents in his possession -- that
he forgot to bring his passport and visa with him on the trip -- a preliminary search of
Border Patrol records returned no immigration history, port-of-entry crossing, or visa
information for the name Diaz-Quintana provided. The government should have
made a better showing that the databases preliminarily searched by Agent Bane and
the Grand Forks Patrol Dispatch are sufficiently thorough and complete to permit a
reasonable Border Patrol Agent to infer that Diaz-Quintana was present in the country
illegally. But Bane, a Border Patrol Agent with nine years experience, drew that
inference, and Diaz-Quintana’s reply memorandum did not challenge the data base or
the inference Agent Bane drew. On this record, the Border Patrol made a sufficient
showing of probable cause to believe that Diaz-Quintana was a deportable alien.
-8-
III.
Denial of the motion to suppress follows inexorably from our conclusion that
Agent Bane had probable cause to take Diaz-Quintana into administrative custody at
the conclusion of the traffic stop. First, Bane was authorized to make the arrest. See
8 C.F.R. § 287.5(c)(1). Second, Trooper Messer was authorized to assist Agent Bane
in detaining Diaz-Quintana. See 8 U.S.C. § 1357(g)(10)(B). Third, following the
arrest, Diaz-Quintana was examined by Agent Lotvedt, an officer other than the
arresting officer, as 8 C.F.R. § 287.3(a) required.
Fourth, Agent Lotvedt followed proper procedures when he examined Diaz-
Quintana to verify his identity and entered his fingerprints into the Border Patrol’s
IAFIS/IDENT system. See 8 C.F.R. § 241.8(a)(2). After twenty-six hours of
administrative custody, the Border Patrol gathered probable cause to believe that
Diaz-Quintana was guilty of a criminal violation of 8 U.S.C. § 1326. At that point,
he was advised of his Miranda rights, as 8 C.F.R. § 287.8(c)(2)(v) required, and
agreed to answer further questions. Diaz-Quintana does not argue that the warnings
required by Miranda must be given before an alien in administrative custody is
examined to determine whether he is deportable, an issue we noted but did not decide
in Torres-Lona, 491 F.3d at 758. See Lopez-Mendoza, 468 U.S. at 1039.
Fifth, Agent Lotvedt’s examination at the Border Patrol Station in Portal, North
Dakota, and the Border patrol’s determination whether to keep Diaz-Quintana in
custody, were completed well within the 48 hours following his arrest prescribed in
8 C.F.R. § 287.3(d). Though a Terry stop justified by reasonable suspicion of a
criminal violation “can not continue for an excessive period of time, or resemble a
traditional arrest,” Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185-86 (2004)
(citations omitted), this principle does not apply to detention following an
administrative arrest based upon probable cause that an alien is deportable. Detention
during deportation proceedings is a constitutionally valid aspect of the deportation
-9-
process. “ As we said more than a century ago, deportation proceedings would be [in]
vain if those accused could not be held in custody pending the inquiry into their true
character.” Demore v. Kim, 538 U.S. 510, 523 (2003) (quotation omitted). Therefore,
the government did not need to prove that use of the IAFIS/IDENT system was the
quickest means of investigation reasonably available to determine whether Diaz-
Quintana was in the country illegally.
For the foregoing reasons, the judgment of the district court is affirmed.
______________________________
-10-