United States v. Chavez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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No. 01-20845
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UNITED STATES OF AMERICA,
Plaintiff-Appellant,

versus

JACOBO ISAIAS CHAVEZ,
Defendant-Appellee.

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Appeal from the United States District Court
for the Southern District of Texas

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February 4, 2002

Before POLITZ, HIGGINBOTHAM and CLEMENT, Circuit Judges.

CLEMENT, Circuit Judge:

The government appeals from the district court’s order

granting the defendant’s motion to suppress and dismissing the

indictment with prejudice. For the following reasons, we reverse

the district court’s suppression ruling, vacate the district

court’s order of dismissal, and remand for further proceedings

consistent with this opinion.

I.

In the early morning hours of May 19, 2001, Jacobo Isaias

Chavez was working as a uniformed and visibly armed security guard
stationed outside of the Fiesta Latina Nightclub (“the club”) in

Houston, Texas. At approximately 4:00 a.m., law enforcement agents

converged at the club in connection with “Operation Bar Fly,” a

multi-agency investigation of nightclubs engaged in the unlawful

after-hours sale of alcoholic beverages.1 After undercover Texas

Alcohol Beverage Commission (“TABC”) agents entered the club and

were served alcohol in violation of Texas liquor laws,2 two Harris

County sheriff’s deputies approached Chavez and, speaking in

English, requested to see his driver’s license and security

officer’s commission (which confers authority to carry a firearm).

Chavez complied with the officers’ request.

While retaining Chavez’s license and commission, but without

taking his gun, the officers instructed Chavez to accompany them to

a location across the club’s parking lot, allegedly because the

deputies had trouble communicating with Chavez in English and

needed translation assistance. They brought Chavez to Immigration

and Naturalization Service (“INS”) agent Richard D. Perez,3 who,

1
Operation Bar Fly was a joint effort by the Texas
Alcoholic Beverage Commission, the Harris County Sheriff’s
Office, the Houston Police Department, the Texas Commission on
Private Security, the Immigration and Naturalization Service, and
the Bureau of Alcohol, Tobacco and Firearms.
2
Texas law prohibits the sale of alcohol after 2:00 a.m.
3
The testimony adduced at the suppression hearing was
inconsistent as to whether Chavez was brought across the parking
lot to Perez or whether Perez came to Chavez where Chavez was
standing with the deputies. Chavez testified that Perez came to
him, whereas agent Perez testified that the deputies brought
Chavez to him. The district court credited Perez’s version of

2
speaking in Spanish, identified himself as an INS agent and asked

Chavez two questions relative to his immigration status. Chavez

readily responded that he was a Mexican national in the United

States illegally. Immediately thereafter, agents with the Bureau

of Alcohol, Tobacco and Firearms arrested Chavez and seized his

firearm.

Chavez was indicted on one count of being an alien in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) and

924(a)(2). Thereafter, he moved to suppress his statements and the

firearm, advancing several alternative theories: (1) that he was

seized without reasonable suspicion in violation of the Fourth

Amendment; (2) that he was not apprised of his Miranda rights in

contravention of the Fifth Amendment; and (3) that his arrest was

the result of a racial profiling scheme violative of Fourteenth

Amendment equal protection guarantees.

After a hearing, the district court granted Chavez’s motion to

suppress on Fourth Amendment grounds.4 The court observed that the

initial encounter in which the officers requested to see Chavez’s

license and commission was constitutionally permissible, but found

that Chavez was “temporarily detained to ascertain whether he was

legally carrying a permit for the firearm.” Finding that there was

the facts.
4
Because it ruled in favor of Chavez on his Fourth
Amendment claim, the district court did not find it necessary to
reach Chavez’s Fifth and Fourteenth Amendment arguments.

3
no sufficiently particularized reason to further question Chavez

once he provided the requested documentation, the court concluded

that the officers lacked reasonable suspicion to continue their

questioning. On this basis, the court entered an order dismissing

the indictment with prejudice. The government timely filed a

notice of appeal. Counsel for Chavez conceded in his brief and at

oral argument that the district court’s dismissal of the indictment

was erroneous.

II.

A.

In considering a ruling on a motion to suppress, we review the

district court’s factual findings for clear error and its legal

conclusions, including its ultimate conclusion as to the

constitutionality of the law enforcement action, de novo. United

States v. Carreon-Palacio, 267 F.3d 381, 387 (5th Cir. 2001). We

view the evidence in the light most favorable to the party that

prevailed in the district court — in this case, Chavez. United

States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000).

1.

The government contends that Chavez’s entire encounter with

law enforcement authorities, including his interaction with agent

Perez, was merely a police-citizen encounter that did not rise to

the level of a Fourth Amendment seizure. Chavez conceded in the

district court that his initial encounter with the deputies in

4
which they asked him for his license and commission did not offend

the Fourth Amendment. However, Chavez urged, and the district

court agreed, that the encounter was transformed into a detention

subject to Fourth Amendment protection when the deputies, after

receiving satisfactory proof of his identification and authority to

carry a weapon, took Chavez to agent Perez for further questioning.

Not every encounter between a citizen and a police officer

implicates the Fourth Amendment. INS v. Delgado, 466 U.S. 210, 215

(1984). Generally, police questioning, by itself, does not fall

within the ambit of Fourth Amendment protections. Id. at 216.

However, an initially consensual encounter may ripen into a seizure

requiring reasonable suspicion or probable cause if an officer, by

means of physical force or show of authority, restrains the liberty

of a person. Id. at 215.

Chavez’s encounter with police occurred while he was working

as a security guard. As the Supreme Court observed in INS v.

Delgado, 466 U.S. at 218, “when people are at work their freedom to

move about has been meaningfully restricted, not by the actions of

law enforcement officials, but by the workers’ voluntary

obligations to their employers.” Where movement is restricted by

a factor independent of police conduct, the proper inquiry is

“whether a reasonable person would feel free to decline the

officers’ requests or otherwise terminate the encounter.” Florida

v. Bostick, 501 U.S. 429, 436 (1991). We must consider all the

circumstances surrounding the encounter and ask whether the

5
officers’ conduct would have caused a reasonable person to believe

that he was not free to ignore the police presence and go about his

business. Id. at 437. The “reasonable person” test presupposes an

innocent person. Id. at 438.

In support of his contention that he was seized, Chavez relies

on the Supreme Court’s plurality decision in Florida v. Royer, 460

U.S. 491 (1983). There, two plain-clothes airport detectives

approached Royer on an airport concourse and requested to see his

airline ticket and driver’s license. Without returning the ticket

and license, the detectives asked Royer to accompany them to a

small room approximately 40 feet away, and Royer complied. The

Supreme Court found the officers’ initial conduct in requesting

Royer’s ticket and license was permissible, but concluded that the

encounter ripened into a detention for the purposes of the Fourth

Amendment “when the officers identified themselves as narcotics

agents, told Royer that he was suspected of transporting narcotics,

and asked him to accompany them to the police room, while retaining

his ticket and driver’s license and without indicating in any way

that he was free to depart.” Id. at 501.

Royer is factually similar to this case in that the officers

brought Chavez to another location while retaining his

documentation. But Royer is readily distinguishable from the other

facts of this case. Here, the entire encounter took place in a

public setting; unlike Royer, Chavez was not taken to a small room

outside of the public’s view, but remained in a crowded parking lot

6
at all times. In addition, Chavez was never told that he was

suspected of criminal activity. To the contrary, there is some

indication in the record that because of the apparent language

barrier between Chavez and the deputies, Chavez was brought to

agent Perez merely for translation assistance, not to “hold” Chavez

for a criminal investigation.

This case presents another fact not present in Royer:

Throughout the encounter, Chavez remained in control of his firearm

despite the officers’ knowledge that he was armed. Notably, at no

time prior to his formal arrest did the officers attempt to remove

his gun from him. We find the suggestion that a reasonable person

would believe that he was not free to leave while he remained

visibly armed with a firearm untenable.

Further, there is no record evidence that the officers’

conduct was accompanied by any coercive show of authority (e.g.,

use of a commanding tone of voice, physical contact with Chavez,

etc.). Chavez testified that none of the officers had their guns

drawn at any time during the incident and that no one told him that

he was not free to leave. We also observe that Chavez was working

as a security guard at the time of his alleged seizure. Chavez

acknowledged that in his capacity as a security guard, he routinely

dealt with law enforcement officers. This fact necessarily factors

into our analysis, for it follows that a reasonable person working

as a security guard would not be inclined to find this type of

contact with law enforcement coercive.

7
 Considering all the circumstances surrounding this encounter,

we find that a reasonable person in Chavez’s position would have

felt free to ignore the officers’ questioning. On balance, the

evidence does not reveal a coercive atmosphere; rather, the record

indicates that Chavez, an armed security guard accustomed to

dealing with law enforcement, voluntarily answered agent Perez’s

brief questions.

In reaching this conclusion, we underscore that the relevant

inquiry requires consideration of the totality of the circumstances

present in a specific case. No one factor is necessarily

determinative. Indeed, the Supreme Court in Royer indicated that

there was no litmus test for determining whether a consensual

encounter escalates into a seizure. Royer, 460 U.S. at 506. Our

consideration of the totality of the circumstances present in this

case reveals that the officers’ conduct was not sufficiently

coercive to transform this consensual encounter into a detention.

As such, the district court erred when it found otherwise.

2.

Even if Chavez had been seized, we find that there is ample

evidence in the record that the officers possessed reasonable

suspicion sufficient to detain Chavez. An officer may, consistent

with the Fourth Amendment, temporarily detain a person when the

officer has a reasonable, articulable suspicion that a person has

committed or is about to commit a crime. Terry v. Ohio, 392 U.S.

1, 30 (1968). Reasonable suspicion has been described as “‘a

8
particularized and objective basis’ for suspecting the person

stopped of criminal activity,” Ornelas v. United States, 517 U.S.

690, 696 (1996); to satisfy Fourth Amendment dictates, the stopping

officer must be able to “articulate more than an ‘inchoate and

unparticularized suspicion or “hunch”’ of criminal activity.”

Illinois v. Wardlaw, 528 U.S. 119, 123-24 (2000). Thus, “[w]hile

‘reasonable suspicion’ is a less demanding standard than probable

cause and requires a showing considerably less than preponderance

of the evidence, the Fourth Amendment requires at least a minimal

level of objective justification for making the stop.” Id. at 123.

In assessing the validity of a stop, the court considers “the

totality of the circumstances — the whole picture.” United States

v. Sokolow, 490 U.S. 1, 7-8 (1989).

In this case, the government advances two bases for reasonable

suspicion. First, it maintains that the agents had reasonable

suspicion to believe that Chavez was aiding and abetting the club’s

illegal activities. Second, the government asserts that the

officers possessed a reasonable suspicion that Chavez was an

undocumented alien. Chavez contests both of the government’s

contentions.

In view of all the circumstances surrounding this incident, we

conclude that there was reasonable suspicion that Chavez was an

illegal alien. According to an INS memorandum of investigation

introduced by Chavez at the suppression hearing, the targeted clubs

“employ armed security guards that are facilitating many of the

9
[illegal] activities” inside the bars and “[o]n previous occasions

these private security guards have been found to be in the country

illegally and charged with 18 U.S.C. 922(g), illegal alien in

possession of a firearm.” The memorandum goes on to list several

security guards who were charged with being an alien in possession

of a firearm. Moreover, Chavez was in a location of known criminal

activity — at approximately 4:00 a.m., he was outside a nightclub

that law enforcement agents had determined was operating illegally.

See Wardlaw, 528 U.S. at 124 (stating that the characteristics of

a location factor into the Terry reasonable suspicion analysis).

In addition, it is undisputed that Chavez does not speak English

fluently; agent Perez testified that the sheriff’s deputies brought

Chavez to him for translation assistance. Given his alleged status

as a licensed security guard, Chavez’s poor English-speaking

ability dovetails with the report that the clubs were employing

illegal aliens as security guards. The totality of this evidence

convinces us that there was a justifiable reason to suspect Chavez

of being an alien and to question him further. Accordingly, the

district court erred in granting Chavez’s motion to suppress and in

dismissing the indictment on that basis.

B.

As noted above, because the district court found the Fourth

Amendment claim dispositive, it did not reach Chavez’s alternative

arguments under the Fifth and Fourteenth Amendments, namely that

his incriminating statements were obtained in violation of Miranda

10
and that his arrest was the consequence of an illegal racial

profiling operation.5 We find that the proper resolution of these

remaining issues is “beyond any doubt,” and therefore we exercise

our discretionary authority to decide them on this appeal.

Singleton v. Wulff, 428 U.S. 106, 121 (1976); see Green v. Levis

Motors, Inc. 179 F.3d 286, 293 (5th Cir. 1999).

1.

Chavez maintains that the incriminating statements he made in

response to agent Perez’s questioning are inadmissible because they

were obtained in violation of his Fifth Amendment privilege against

self-incrimination as guaranteed by Miranda v. Arizona, 384 U.S.

436 (1966). We find this argument unavailing.

Miranda’s procedural safeguards attach “only where there has

been such a restriction on a person’s freedom as to render him ‘in

custody.’” Stansbury v. California, 511 U.S. 318, 322 (1994). To

ascertain whether an individual was in custody, we examine all of

the circumstances surrounding the interrogation, but ultimately ask

“whether there [was] a ‘formal arrest or restraint on freedom of

movement’ of the degree associated with a formal arrest.” Id.

It is clear from the record that Chavez was not in custody

within the meaning of Miranda. We have already examined the

circumstances surrounding Chavez’s police encounter and concluded

5
At oral argument, Chavez argued that the district court
has already found that Operation Bar Fly targeted Latino clubs.
Although the district court did state as much, it did not address
the legal consequences of that fact.

11
that he was not seized within the meaning of the Fourth Amendment.

That analysis is relevant here and causes us to conclude that

Chavez was not under arrest or subject to a restraint of his

freedom comparable to formal arrest. Chavez was never told that he

was under arrest or that he could not leave. There is no evidence

that the officers threatened or physically restrained him in any

way. Given these circumstances, it is clear that Chavez was not in

custody at the time he admitted that he was in the country

illegally. Therefore, the officers’ questioning did not constitute

a custodial interrogation requiring the issuance of Miranda

warnings.

2.

Chavez also sought the exclusion of his statements and the gun

on the ground that his arrest was the result of illegal racial

profiling in violation of the Equal Protection Clause. In support

of this allegation, Chavez points to an INS memorandum of

investigation that states that Operation Bar Fly targeted 100

Latino bars on the night in question.

Neither the Supreme Court nor our Court has ruled that there

is a suppression remedy for violations of the Fourteenth

Amendment’s Equal Protection Clause, and we do not find it

necessary to reach that issue here. For even if we assume arguendo

that the Fourteenth Amendment does provide such an exclusionary

remedy, it is plain that Chavez has failed to offer proof of

discriminatory purpose, a necessary predicate of an equal

12
protection violation. See Washington v. Davis, 426 U.S. 229, 239-

42 (1976) (requiring proof of discriminatory intent in equal

protection cases). Neither the testimony adduced at the hearing

nor the INS memorandum reveals any intention to impermissibly

target only Latino clubs, much less to target Chavez individually.6

Absent proof of discriminatory intent, Chavez’s equal protection

claim fails.

III.

For the foregoing reasons, the district court’s order granting

Chavez’s motion to suppress is reversed, the order of dismissal is

vacated, and the case is remanded for further proceedings

consistent with this opinion.

REVERSED, VACATED AND REMANDED.

6
Indeed, the testimony at the hearing suggested that the
government had a legitimate, non-discriminatory basis for
selecting the clubs targeted in connection with Operation Bar
Fly. TABC agent Michele Carr testified that the clubs were
targeted because of their history of complaints or cases of
selling liquor after hours. The INS memorandum further
identifies the after hours sale of alcoholic beverages as
contributing to various offenses associated with the clubs,
including gang violence, fighting, and illegal drug trafficking.

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