United States Court of Appeals
For the First Circuit
No. 02-1501
UNITED STATES,
Appellant,
v.
STANISLAW GOLAB, A/K/A STANISLAW GALAB,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.
Mark S. Zuckerman, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellant.
J. Normand Jacques, with whom Jacques & Jacques, P.C., was on
brief, for appellee.
April 7, 2003
STAHL, Senior Circuit Judge. The United States appeals
from a district court order allowing defendant-appellee Stanislaw
Golab's motion to suppress evidence seized from his car. We
affirm.
I. BACKGROUND
The following facts are undisputed. On July 6, 2001,
Golab's car was searched by Immigration and Naturalization Service
Special Agent Mark Furtado. Furtado was a fourteen-year veteran of
the INS's law enforcement branch and was the Supervisory Special
Agent in charge of the INS field office in Manchester, New
Hampshire.
Based on his experience, Furtado was aware that one form
of alien smuggling involved out-of-state residents transporting
aliens to Social Security Administration ("SSA") offices in New
Hampshire to help them fraudulently obtain Social Security cards.
In March, 1999, his office had made several arrests in connection
with a smuggling scheme that involved the use of a van with New
Jersey license plates bringing aliens from the New York City area
to New Hampshire SSA offices.
On July 2, 2001, Furtado learned that within the past two
weeks, an alien had applied for a Social Security card using a
counterfeit visa at the SSA office in Manchester, New Hampshire.
On the application form, the applicant listed as a mailing address
a New Hampshire Mail Boxes, Etc. facility. Furtado knew from
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experience that aliens making fraudulent applications typically
listed businesses such as Mail Boxes, Etc., as their addresses.
On the morning of July 6, 2001, the manager of the
Concord, New Hampshire SSA office called Furtado and told him that
an individual named Zenon Kulesza was in the office and had applied
for a Social Security card using a non-immigrant I-visa. Furtado
checked INS records and learned that Kulesza had entered the United
States as a non-immigrant visitor for pleasure, an indication that
the I-visa and application were fraudulent.
Furtado immediately drove to the Concord SSA office with
INS Deportation Officer Joseph Anoli. After they arrived, Anoli
confirmed by telephone that Kulesza was still at the office.
Furtado, believing that Kulesza would have an accomplice, drove
around the Concord SSA office parking lot looking for an occupied
car with out-of-state license plates.1 Furtado was driving an
unmarked white Ford Crown Victoria equipped with a radio antenna
and a cell phone antenna.
There were approximately twenty-five to thirty cars in
the Concord office parking lot, but none of them were occupied.
Furtado testified that he did notice an occupied car in a nearby
lot, however. This lot was located adjacent to a commercial office
building; it was separated from the Concord SSA office lot by a
1
At this time, neither agent entered the office to question or
arrest Kulesza; nor did they wait to observe Kulesza's departure
from the office to see if he approached an accomplice.
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grassy area, but accessible via a driveway approximately one
hundred yards long. A road led from this lot directly to the
public street, Horseshoe Pond Road.
As Furtado drove down the access road to approach the
occupied car, it pulled out of its parking space. The car turned
down the access road, heading directly toward Furtado's approaching
vehicle. Furtado saw that the car had a Vermont license plate.
Suspecting that the driver was Kulesza's out-of-state accomplice
and was trying to leave the area, Furtado stopped the car by
meeting it nose-to-nose with his own vehicle. He directed the
driver to back up into a parking space.
Furtado and Anoli approached the car and took the keys.
Furtado saw a woman lying on the back seat. After determining that
she was an undocumented foreign national without authorization to
be in the United States, he arrested her. He searched the back
seat of the car, finding little. After the driver was unable to
provide a passport, the officers arrested him for being an
undocumented alien. A second search of the car yielded a passport
with what Furtado suspected was a counterfeit visa.
On August 22, 2001, Golab, the car's driver, was indicted
by a federal grand jury on three counts of bringing in and
harboring aliens under 8 U.S.C. § 1324(a)(1)(A)(iv) and three
counts of fraud and misuse of visas under 18 U.S.C. § 1546(a). On
March 8, 2002, Golab filed a motion to suppress the evidence seized
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from his car on the ground that the search resulted from an illegal
stop. On April 18, 2002, the district court held an evidentiary
hearing. It ruled from the bench that the stop of Golab's car was
not supported by reasonable suspicion and allowed the motion to
suppress. The government appeals.
II. DISCUSSION
Our review of the district court's allowance of the
motion to suppress, including its determination that the officer
lacked reasonable suspicion, is plenary. Ornelas v. United States,
517 U.S. 690, 699 (1996). We review findings of historical fact
for clear error, and give "due weight to inferences drawn from
those facts by resident judges and local law enforcement officers."
Id.
In Terry v. Ohio, 392 U.S. 1, 30 (1968), the Supreme
Court held that the Fourth Amendment permits an officer to conduct
a brief investigatory stop on the basis of a reasonable,
articulable suspicion that criminal activity is afoot. While
"reasonable suspicion" is a less demanding standard than probable
cause, the Fourth Amendment requires at least a minimal level of
objective justification for making the stop. United States v.
Sokolow, 490 U.S. 1, 7 (1989). The officer must be able to
articulate more than an "inchoate and unparticularized suspicion or
'hunch'" of criminal activity. Terry, 392 U.S. at 27. In
reviewing a determination of reasonable suspicion, we examine the
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"totality of the circumstances" of each case to see whether the
detaining officer has a "particularized and objective basis" for
suspecting legal wrongdoing. United States v. Arvizu, 534 U.S.
266, 273 (2002).
Applying these standards, we agree with the district
court that there was no objectively reasonable suspicion to justify
a Terry stop of the car in light of the totality of the
circumstances. The basis for the stop amounted to no more than an
impermissible hunch. Terry, 392 U.S. at 27.
First, the car was not in the SSA office parking lot,
which contained a number of vehicles as well as many empty spaces.
Rather, it was in a different lot associated with a commercial
office building, separated by a grassy area and a lengthy access
road. Also, a very short time elapsed between when Furtado first
saw the car and when he stopped it, somewhere between fifteen
seconds and a minute. This was not enough time, the government
conceded, to discern whether the driver was sitting and waiting in
the car, or had just gotten in the car to leave.
Further, the car's license plates were from Vermont.
Such plates, the district court found, are a common sight in
Concord, New Hampshire and by themselves raise no suspicion.
Moreover, the earlier alien smuggling with which Furtado was
familiar involved individuals driving to New Hampshire in vans, not
cars, from the New York City area. Furtado testified that the
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Vermont plate had no "special significance" to him with regard to
the earlier smuggling rings. It is objectively unreasonable to say
that this prior smuggling ring justified the suspicion of all
vehicles with out-of-state plates, regardless of their origin.
In a similar vein, the district court noted that the
Vermont plate was inconsistent with Furtado's stated theory
concerning why the earlier smugglers traveled to New Hampshire,
which was that more rural SSA offices in areas with smaller
immigrant populations are easier to defraud than those in the New
York City area. Furtado conceded in his testimony that he believed
the number of immigrants in Vermont was comparable to that in New
Hampshire. Hence, from his perspective, there would be no need to
travel from Vermont to New Hampshire to find a presumably
unsophisticated SSA office.
Under these circumstances, reasonable suspicion is not
established by the fact that a car in a remote parking lot
associated with another building has out-of-state license plates
and is occupied. Based on that rationale, no person would be
protected from a Terry stop.
The government additionally maintains that the driver
aroused reasonable suspicion by attempting to flee what he
recognized to be a law enforcement vehicle. As the district court
found, there is no record support for this assertion. The court
indicated that it had personally taken a view of the premises.
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Based on its view of the physical configuration of the two
buildings, parking lots and roads, the court rejected the inference
urged by the government that the driver could have seen the agents'
car pass by at thirty miles per hour on Horseshoe Pond Road, some
150 yards away, and noticed the radio antenna. Moreover, the
layout of the buildings would have prevented the driver from seeing
the agents' car enter the SSA parking lot. Accordingly, the court
concluded that it was highly unlikely that the driver could have
recognized the agents' unmarked car as a law enforcement vehicle
and believed that government agents were in pursuit.
Moreover, the court observed, if the driver was trying to
elude the agents, it is far more plausible that he simply would
have exited straight out of the parking lot onto the public street;
instead, he made a sharp turn to head directly toward the agents'
vehicle.2 Finally, the government conceded that nothing in the
driver's movements or facial expressions suggested that he was
fleeing. We defer to the district court's findings and inferences
and agree that the driver's behavior does not, alone or in
conjunction with the rest of the factual circumstances, support a
determination of reasonable suspicion.3
2
At the hearing, Furtado did not dispute the court's
assessment.
3
In the absence of indicia that the driver was fleeing law
enforcement, his departure should indeed have reduced Furtado's
suspicion that he was Kulesza's accomplice, since Kulesza was still
in the building and presumably dependent on his accomplice for
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The government contends that while the driver's actions
may have seemed perfectly innocuous to the average observer, Agent
Furtado's training and experience made him aware of indicia of
alien smuggling that supported reasonable suspicion. It is true
that deference is due to the experienced perceptions of law
enforcement officers. Arvizu, 534 U.S. at 273; Ornelas, 517 U.S.
at 699-700. But blind deference is not owed. The officer's
perceptions must be objectively reasonable, and here they were not.
The situation observed by Furtado -- an individual
leaving a parking lot near the SSA office in a car with Vermont
plates -- did not sufficiently resemble the earlier smuggling
scheme to justify his Terry stop of the car. Considering the
totality of the circumstances, Agent Furtado's suspicion was no
more than a "inchoate and unparticularized suspicion or 'hunch'" of
criminal activity. See Terry, 392 U.S. at 27. Accordingly, it was
insufficient to warrant Fourth Amendment protection.
The district court's allowance of Golab's motion to
suppress is AFFIRMED.
transportation.
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