IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2008
No. 07-51269
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NOE GARCIA-RUIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, GARWOOD and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Noe Garcia-Ruiz appeals his conviction on the ground that the district
court erred in denying his motion to suppress. We affirm.
I.
Garcia-Ruiz was charged with reentry into the United States as a deported
alien in violation of 8 U.S.C. § 1326(1). Gary Rose, a deputy sheriff, stopped, de-
tained, and turned Garcia-Ruiz over to Border Patrol agents in Sierra Blanca,
Texas, a small town thirty miles from the Texas-Mexico border. It is also about
four miles from the Sierra Blanca checkpoint on Interstate 10, which is used to
No. 07-51269
detect illegal aliens, who had previously used the town and the surrounding
area to circumvent the checkpoint.
David Arnold, a resident of Sierra Blanca, called the sheriff’s office to re-
port that he had “two illegals by his residence.” Rose, who knew Arnold per-
sonally, proceeded to Arnold’s trailer to investigate the call. When he arrived,
Arnold’s car was not near his trailer, and Rose quickly found Arnold driving on
another street, following two men, one of whom was Garcia-Ruiz. Arnold point-
ed to the two men, and Rose pulled up behind them.
Rose had an intimate knowledge of Sierra Blanca, purporting to know all
of its residents, and did not recognize the men. He asked them in English about
their activities and identification but received no response. He asked the same
questions in Spanish, to which the men responded that they had no identifica-
tion and were coming from Mexico. Rose told them to get into his patrol truck
and turned them over to Border Patrol agents at the sheriff’s office.
II.
Garcia-Ruiz filed a motion to suppress all evidence obtained as a result of
his detention and subsequent arrest, contending that under Terry v. Ohio, 392
U.S. 1 (1968), Rose lacked reasonable suspicion when he stopped and detained
Garcia-Ruiz. The court disagreed, finding that Rose had reasonable suspicion
to initiate a Terry stop and to seize Garcia-Ruiz.
Garcia-Ruiz waived his right to a jury trial and agreed to a trial based on
the following stipulated facts:
(1) that [Garcia-Ruiz] is a native and citizen of Mexico and his Alien
Registration Number is A 98 561 955; (2) that [Garcia-Ruiz] was re-
moved from the United States to Mexico on or about November 25,
2005, through El Paso, Texas; that Defendant agrees he is the same
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No. 07-51269
person who was removed from the United States on or about No-
vember 25, 2005; (3) that on April 5, 2007, [Garcia-Ruiz] was found
by [Rose] in Sierra Blanca, Texas, located in the Western District of
Texas; (4) that between November 25, 2005, and April 5, 2007, [Gar-
cia-Ruiz] had not received the consent of the Attorney General of the
United States or the Secretary of Homeland Security to reapply for
admission into the United States.
The district court held that the government, through the stipulated facts, had
proven Garcia-Ruiz guilty of illegal reentry by a deported alien under § 1326(1).
III.
Garcia-Ruiz appeals the denial of his motion to suppress. We need not de-
cide whether the court erred, however, because, even if, arguendo, the district
court erred in its ruling, the error is rendered harmless by the fact that Garcia-
Ruiz stipulated to facts that easily established his conviction beyond a reason-
able doubt, as the district court found.
To convict Garcia-Ruiz under § 1326(1), the government needed to prove
beyond a reasonable doubt that he was an alien at the time of the indictment,
that he had previously been removed from the United States, that he was found
in the United States after his removal, and that he had not received the consent
of the Attorney General or Secretary of Homeland Security. Garcia-Ruiz stipu-
lated to all those facts, and he and his attorney signed the stipulations and a
waiver of jury trial. With such stipulations in place, any decision by this court
regarding the suppression hearing could not affect Garcia-Ruiz’s posture in the
district court, because he stipulated to the elements needed for conviction. Thus,
when Garcia-Ruiz and the government agreed to the stipulated facts that es-
tablished all the elements of the offense, any error on the suppression issue
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No. 07-51269
would have no effect on the legal soundness of the conviction. In other words,
to establish Garcia-Ruiz’s guilt, the government no longer needed the evidence
he claims should have been suppressed.
Garcia-Ruiz contends that earlier decisions of this court hold that an ap-
peal on a suppression issue can be heard even after a stipulation to all the ele-
ments of a charged offense. He cites United States v. Troop, 514 F.3d 405 (5th
Cir. 2008), United States v. Washington, 340 F.3d 222 (5th Cir. 2003), and Unit-
ed States v. Head, 693 F.2d 353 (5th Cir. 1982), for the proposition that this
court has heard suppression appeals after similar trials on stipulated facts. Al-
though it is true that in those cases we reached the merits of the suppression
motion, none of the cases cited or any other decision of this court explicitly holds
that the merits of an earlier suppression hearing can be examined despite the
defendant’s having stipulated to all the elements. Instead, the three decisions
lack any discussion of mootness and do not support Garcia-Ruiz’s contention that
his appeal is a live controversy.1
The more relevant precedent is United States v. Mendoza, 491 F.2d 534
(5th Cir. 1974), in which we also examined the merits of a suppression hearing
on appeal from a trial on stipulated facts. There, the defendants lost a motion
1
The failure of the earlier panels, in the cases Garcia-Ruiz cites, to discuss mootness
does not yield an implication that those panels decided the cases were not moot, and we are
not bound by any sub silentio determinations there. More specifically, in Troop, there is no in-
dication whether the defendant agreed to the stipulation without reserving his right to com-
plain of the suppression ruling. Nor did the Troop panel expressly discuss or indicate whether
such a reservation is required to avoid forfeiture or waiver of the suppression issue.
Indeed, Garcia-Ruiz’s decision to go to trial on stipulated facts can be viewed as waiver
as an alternate ground to harmless error. Moreover, in an unpublished opinion, a panel of this
court viewed the question as one of mootness. See United States v. Ramos-Flores, 233 F. App’x
347, 349 (5th Cir. 2007) (per curiam), cert. denied, 128 S. Ct. 872 (2008). We decline to follow
that option, though it would not change the result.
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No. 07-51269
to suppress, pleaded not guilty, and “stipulated all the essential facts necessary
for their conviction.” Id. at 535-36. Despite that stipulation, we allowed the ap-
peal on the merits of the suppression motion, but only because defendants “did
not withdraw their pleas of not guilty, and sought to expressly reserve their right
to appeal from the order denying the motion to suppress.” Id. at 536 (emphasis
added). Garcia-Ruiz did not reserve such a right to appeal when he stipulated
to the facts.
The judgment of conviction is AFFIRMED.
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