United States Court of Appeals
For the First Circuit
No. 06-2065
UNITED STATES OF AMERICA,
Appellant,
v.
BENJAMIN ESPINOZA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya and Cyr, Senior Circuit Judges.
Robert E. Richardson, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellant.
Leslie Feldman-Rumpler for appellee.
June 13, 2007
SELYA, Senior Circuit Judge. In this interlocutory
appeal, the government challenges a suppression order entered in
the United States District Court for the District of Massachusetts.
It assigns error both to the district court's determination that an
investigatory encounter was undertaken without reasonable suspicion
and to the court's assessment of when a seizure occurred. We have
jurisdiction under 18 U.S.C. § 3731.
The district court made the challenged rulings after
holding an evidentiary hearing and mulling the impact of a unique
set of circumstances. Judgments of this sort are notoriously fact-
sensitive, and an appellate court should defer in large measure to
the trial court's superior coign of vantage. So it is here:
although we, if sitting as a court of first instance, might not
have drawn the same inferences from the underlying facts, we cannot
say that the district court lacked the right to draw the inferences
that it did. Nor can we say that, given those inferences, the
court abused its discretion in suppressing the evidence.
Accordingly, we affirm the suppression order.
I. BACKGROUND
In this case, the defendant stands accused of conspiracy
to transport, and the transportation of, illegal aliens. See 8
U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I). We begin our account
with a concise summary of the events leading to those charges, as
supportably found by the district court. See United States v.
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Romain, 393 F.3d 63, 66 (1st Cir. 2004); United States v. Lee, 317
F.3d 26, 30 (1st Cir. 2003).
On the morning of February 7, 2005, defendant-appellee
Benjamin Espinoza was a front-seat passenger in a commuter van
bearing Texas license plates that was traveling through Boston on
Interstate 93. The van piqued the interest of Glen Fitzpatrick, an
Immigration and Customs Enforcement (ICE) agent, who was en route
to his office in an unmarked car.
Fitzpatrick was aware that, within the past year, Boston-
based ICE agents had intercepted at least two similar extended-
passenger vans engaged in the illegal transportation of aliens.
Although the van had tinted windows, he could see the silhouettes
of several persons (other than the driver and front-seat passenger)
inside it. Consequently, he started following the van while at the
same time contacting sector communications. This inquiry yielded
information that the van was registered to Jesús Zendejas of
Dallas, Texas. Fitzpatrick recognized Zendejas's name as having
appeared on a suspect's telephone toll records in an earlier ICE
investigation of human smuggling — an investigation that had not
yet resulted in the filing of any criminal charges.
Fitzpatrick continued to follow the van surreptitiously
for approximately twenty-five minutes. At around that time, the
van left the expressway and proceeded on the Revere Beach Parkway.
In due course, it pulled over and parked near a sandwich shop in
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Everett, Massachusetts. The driver, Ambrosio Villareal, did not
turn off the engine but let it idle. No one disembarked from the
van.
Fitzpatrick parked his car some fifty feet away in an
adjacent lot and approached the stopped van on foot. He wore
civilian clothes and carried a holstered firearm. Upon reaching
the van, he flashed his badge and identified himself to Villareal
as an immigration officer. Speaking in Spanish, he requested
identification. Villareal complied. Then Fitzpatrick, using a
hand motion, "directed Villareal to shut off the engine." United
States v. Espinoza, No. 05-10060, slip op. at 1 (D. Mass. June 15,
2006) (unpublished) (D. Ct. Op.). The identification that
Villareal produced consisted of a Texas driver's license, an alien
registration card, and a business card indicating his affiliation
with a company called "Mi Tierra."
In approximately the same time frame, Fitzpatrick asked
the defendant for identification.1 The defendant proffered a Texas
driver's license and, in response to a direct question, informed
Fitzpatrick that he was a naturalized citizen. To buttress that
1
The government claims that the defendant volunteered
information in English during Fitzpatrick's initial conversation
with Villareal. This characterization is premised on Fitzpatrick's
testimony that he recalls the defendant interjecting that he and
Villareal were both employees of Mi Tierra. The district court
appears not to credit this testimony. At any rate, even if we
assume, favorably to the government, that this interjection
occurred as Fitzpatrick described it, the result that we reach
would not be affected.
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statement, he showed Fitzpatrick a photocopy of his naturalization
papers. A conversation ensued regarding Mi Tierra and the
employment of Villareal and the defendant as drivers for that firm.
Fitzpatrick next turned his attention to the five
passengers in the rear of the van. He questioned them in
Portuguese and learned that three of the five had been arrested in
Texas by border patrol officers on February 4, 2005 — three days
earlier. All three had received notices to appear for removal
proceedings. The other two men carried Brazilian passports but had
no other identification. Upon completing this phase of his
inquiry, Fitzpatrick read Villareal and the defendant their Miranda
rights. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).
II. STANDARD OF REVIEW
In examining the presence or absence of reasonable
suspicion and the timing of a seizure, we deal with mixed questions
of law and fact. Each of those questions requires a searching
appraisal of the particular factual context.
As to the first issue — the existence vel non of
reasonable suspicion — we must "assess the totality of the
circumstances, on a case-specific basis, in order to ascertain
whether the officer had a particularized, objectively reasonable
basis for suspecting wrongdoing." United States v. Coplin, 463
F.3d 96, 100 (1st Cir. 2006) (citing United States v. Arvizu, 534
U.S. 266, 273 (2002)). The same is true of the seizure issue,
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which necessitates careful consideration of "all the circumstances
surrounding the encounter." Florida v. Bostick, 501 U.S. 429, 439
(1991).
Given the textured nature of these inquiries, appellate
courts must proceed circumspectly and with regard for the district
court's superior vantage point. See United States v. Zapata, 18
F.3d 971, 975 (1st Cir. 1994) (explaining that an appellate court
reviewing the disposition of a suppression motion must "exhibit
great respect for the presider's opportunity to hear the testimony,
observe the witnesses' demeanor, and evaluate the facts at first
hand"). Consequently, we will disturb the trier's factual findings
only if they are clearly erroneous.2 See Coplin, 463 F.3d at 100;
see also Reliance Steel Prods. Co. v. Nat'l Fire Ins. Co., 880 F.2d
575, 576 (1st Cir. 1989) (observing that disputes over facts are
"the staples of a trial court's diet and comprise an unappetizing,
usually unnourishing, bill of fare for appellate digestion"). In
this process, credibility calls — with only rare exceptions — are
the district court's prerogative. See United States v. Rutkowski,
877 F.2d 139, 144 (1st Cir. 1989). Legal conclusions, including
ultimate constitutional determinations (such as the sufficiency of
the facts as found to support a conclusion that, for example,
2
A finding is clearly erroneous only when, upon a careful
review of the record, a court is left with a "definite and firm
conviction that a mistake has been committed." United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
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reasonable suspicion exists or a seizure occurred), engender de
novo review. See Ornelas v. United States, 517 U.S. 690, 699
(1996); Zapata, 18 F.3d at 975.
We remain mindful throughout that when two or more
legitimate interpretations of the evidence exist, the factfinder's
choice between them cannot be deemed clearly erroneous. See
Romain, 393 F.3d at 70; see also Anderson v. City of Bessemer, 470
U.S. 564, 573-74 (1985). Thus, if the district court chooses to
draw a reasonable (though not inevitable) inference from a
particular combination of facts, that inference is entitled to
deference. See Ornelas, 517 U.S. at 699.
III. ANALYSIS
We subdivide our substantive discussion of the district
court's decision into two segments, corresponding to the
government's twin lines of argument.
A. Reasonable Suspicion.
Typically, brief investigatory stops can be grounded on
reasonable suspicion as opposed to, say, probable cause. See Terry
v. Ohio, 392 U.S. 1, 19 (1968); Zapata, 18 F.3d at 975. That
standard is not self-elucidating; we have warned before that the
reasonable suspicion calculus "defies precise definition." United
States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001). No prefigured
mold or cookie-cutter design exists to delineate whether or not a
law enforcement officer, at a given time and place, acted on the
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basis of reasonable suspicion. Instead, that evaluation comprises
"a fact-sensitive task, bound up in the warp and woof of the
surrounding circumstances." Id. at 8.
Of course, precedent plays an important role in our
system of justice, and the case law offers some general guidance.
A finding of reasonable suspicion requires "'a particularized and
objective basis' for suspecting the person stopped of criminal
activity." Ornelas, 517 U.S. at 696 (quoting United States v.
Cortez, 449 U.S. 411, 417-18 (1981)). This particularity
requirement means, in effect, that such a finding must be "grounded
in specific and articulable facts." United States v. Hensley, 469
U.S. 221, 229 (1985); see United States v. Monteiro, 447 F.3d 39,
43 (1st Cir. 2006). Moreover, the objective nature of the inquiry
ensures that courts will focus not on what the officer himself
believed but, rather, on what a reasonable officer in his position
would have thought. Romain, 393 F.3d at 74.
Here, the government alleges that Fitzpatrick initiated
the encounter with the van's occupants based on a reasonable
suspicion of criminal activity, that is, a suspicion that they were
engaged in the illegal transportation of undocumented aliens. The
district court disagreed. It found, after hearing Fitzpatrick's
testimony, that his rationale for following the van, approaching
it, and commencing an investigation of the individuals within was
bottomed on a pale patina of facts. These included: (i)
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Fitzpatrick's observation of an extended-passenger van bearing
Texas license plates traveling on a highway in Massachusetts; (ii)
his awareness that the van was registered to Zendejas, whose name
had surfaced (albeit not as a target) during a previous
investigation for human smuggling; and (iii) his prior knowledge of
the interception of "two and perhaps three similar passenger vans
that were transporting illegal aliens" in the Boston area within
the past year. D. Ct. Op. at 3. The district court commented that
this patina, pale to begin with, faded even more in light of
countervailing considerations such as Fitzpatrick's admission that
the Boston area was not a place generally associated with the
smuggling of illegal aliens and the fact that he observed nothing
unusual or unlawful about the van's operation during his
surveillance. Id. at 3-4. Indeed, the only "peculiarity" that
Fitzpatrick had noted about the van "was that it bore Texas
plates." Id. at 5.
Weighing the facts as a whole, the court concluded that
Fitzpatrick's actions in approaching the van and starting to
question its occupants were "based on nothing more than a hunch."
Id. With specific reference to the Zendejas connection,3 the court
3
Fitzpatrick testified on cross-examination that one of the
previously intercepted vans was owned by Alfonso Garza, reputed to
be a former business partner of Zendejas. The district court found
that this information was new to the equation; Fitzpatrick did not
know about this connection when he decided to follow and approach
the van. See D. Ct. Op. at 3 n.2. That finding was not clearly
erroneous.
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added that the "tendrils of information known to Fitzpatrick about
this individual [at the time of the encounter were] insufficient to
transform the hunch into reasonable suspicion." Id. at 5-6.
The government does not claim any error in the district
court's findings of raw fact. It does, however, attack with
considerable ferocity the inferences drawn by the court from the
facts as found. This attack overlooks that those inferences, too,
are subject to clear error review. See Ornelas, 517 U.S. at 699;
Zapata, 18 F.3d at 975. Using that barometer, our function is not
to decide whether we, if sitting as arbiters of the facts, would
have drawn the same inferences but, rather, to determine whether
the district court's chosen inferences are plausible (and, thus,
permissible) based on the raw facts as supportably found. See
Romain, 393 F.3d at 70.
In this instance, we think that the district court's
inferences, though not compelled by the facts, are nevertheless
reasonable. Accordingly, they pass muster.
The requirement of reasonable suspicion as a basis for an
investigatory stop reflects the core concerns of the Fourth
Amendment. See Arvizu, 534 U.S. at 273. Here, Fitzpatrick
approached the van endowed only with the scanty knowledge recounted
by the district court. Given the nebulous nature of what he knew
and the importance of the Fourth Amendment interests at stake, the
court's conclusion that Fitzpatrick's actions were predicated on a
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hunch, bereft of the particularity required for reasonable
suspicion, was not clearly erroneous. See id. Put another way,
the record yields no definite and firm conviction that the district
court's conclusion was mistaken.
B. Seizure.
Our validation of the lower court's finding that
Fitzpatrick lacked reasonable suspicion at the outset of the
encounter does not end our odyssey. In this case, the agent played
no part in bringing the van to a halt; the driver stopped of his
own volition and for his own reasons. Thus, even without
reasonable suspicion, Fitzpatrick had a right to approach the
parked vehicle and talk to its occupants if that interview was
purely consensual. See United States v. Barry, 394 F.3d 1070, 1075
(8th Cir. 2005) (holding that the Fourth Amendment permits an
officer to approach a parked vehicle without any show of force and
question the occupants); see also United States v. Smith, 423 F.3d
25, 30 (1st Cir. 2005) (holding to like effect as to a pedestrian).
The district court found, however, that this encounter
was not consensual because a seizure occurred at the point when
Fitzpatrick ordered Villareal to shut off the engine. On that
basis, the court granted the defendant's motion to suppress the
statements made and papers produced in the interval between the
command and the furnishing of Miranda warnings (including, of
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course, the fruits of those revelations). We turn now to that
finding.
The case law offers certain guideposts to assist in
determining the nature of an encounter between law enforcement
officers and civilians. Not every police-initiated conversation is
a seizure. See, e.g., Smith, 423 F.3d at 30; Barry, 394 F.3d at
1075. Thus, a law enforcement officer does not trigger an
individual's Fourth Amendment protections simply by approaching the
person in public and asking routine questions. United States v.
Drayton, 536 U.S. 194, 200-01 (2002); Smith, 423 F.3d at 30. The
trigger point for Fourth Amendment purposes is the presence or
absence of some cognizable coercion or constraint. See Drayton,
536 U.S. at 201 ("If a reasonable person would feel free to
terminate the encounter, then he or she has not been seized.");
United States v. Mendenhall, 446 U.S. 544, 554 (1980) (explaining
that "[a]s long as the person to whom questions are put remains
free to disregard the questions and walk away," Fourth Amendment
protections are not implicated).
The test is objective: Would a reasonable person standing
in the shoes of the individual who is approached have felt free to
cease interaction with the officer and depart? Ornelas, 517 U.S.
at 693; Smith, 423 F.3d at 28. If an objectively reasonable person
would have felt compelled to stay, the encounter amounts to an
investigatory stop in derogation of the defendant's constitutional
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rights unless accompanied by, at the least, reasonable suspicion.
See Terry, 392 U.S. at 21; Coplin, 463 F.3d at 100.
Here, the parties and the district court have framed the
inquiry as a question of when the defendant was effectively seized
by Fitzpatrick.4 The government concedes that a seizure occurred
at the point when Fitzpatrick informed the defendant of his Miranda
rights. The defendant, however, places the seizure at an earlier
step in the progression. The timing is of decretory significance
because the evidence that the district court suppressed consisted
mainly of statements made and documents tendered in the interval
between these two moments in time.
The district court resolved this quandary in favor of the
defendant. In doing so, the court relied upon the following facts:
(i) Fitzpatrick, identifying himself as an ICE officer and wearing
a holstered firearm, approached the van; (ii) he displayed his
badge and began asking questions; and (iii) with a commanding tone
and manner, he indicated that he wanted the driver to shut off the
van's engine. D. Ct. Op. at 1-2. Although Fitzpatrick protested
during the evidentiary hearing that the nonverbal command to shut
off the engine was given solely to facilitate conversation, the
4
In accepting this terminology, we do not imply any limitation
on the doctrine that coercion, unaccompanied by reasonable
suspicion, is constitutionally unacceptable. See Florida v. Royer,
460 U.S. 491, 498 (1983) (stating that an individual "may not be
detained even momentarily without reasonable, objective grounds for
doing so").
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district court reasonably concluded that the absence of any
evidence indicating that the van's occupants knew or intuited this
unspoken limitation was extremely significant. See id. at 2 n.1.
In our view, this is a near-classic case of a set of
facts that might — depending on the trier's interpretation —
support either of two competing inferences. On the one hand, it
seems plausible that a reasonable person in the defendant's shoes
might have considered the encounter consensual and non-custodial.
On the other hand, it seems equally plausible that a reasonable
person in the defendant's shoes might have felt constrained to
remain seated in the stopped van and to respond to the agent's
queries. The district court concluded that the latter
interpretation was the more likely scenario and, thus, ruled that
Fitzpatrick had effectively seized the defendant when he ordered
Villareal to shut down the engine. Because this inference from the
facts as found was not clearly erroneous, the district court did
not err in ordering suppression. See United States v. Ladd, 885
F.2d 954, 957 (1st Cir. 1989) (cautioning that appellate courts
should not intrude when "a trier chooses among plausible (albeit
competing) inferences").
In a last-ditch effort to turn the tide, the government
argues that this case is controlled by our decision in Smith. In
our view, however, these two cases are not fair congeners. In
Smith, the district court determined that a seizure had occurred
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when two police officers exited their cruiser, approached the
defendant on a public street, and asked him for identification.
423 F.3d at 27. We reversed the district court's consequent grant
of a motion to suppress because the historical facts as found by
the court did not support a reasonable inference that the defendant
had been seized. Id. at 30. The court's inference flew in the
teeth of well-settled law that police officers who do no more than
approach individuals without a show of authority and ask routine
questions will not be held to have generated a sense of coercion.
Id. at 29-30.
Here, unlike in Smith, the officer did more than merely
approach and propound routine questions. According to the district
court, which made a supportable factual finding in this regard,
Fitzpatrick commanded the driver to shut off the engine. See D.
Ct. Op. at 2, 4. That command, in the circumstances of this case,
may not have compelled a finding of coercion but it supports such
a finding (and, thus, a finding that a seizure occurred then and
there).
IV. CONCLUSION
We need go no further. The district court's conclusion
that a seizure occurred, unaccompanied by reasonable suspicion, is
consonant with the facts as found and with the record.
Accordingly, we uphold the district court's order suppressing the
evidence in question.
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Affirmed.
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United States v. Espinoza
Court: Court of Appeals for the First Circuit
Date filed: 2007-06-13
Citations: 490 F.3d 41
Copy CitationsCombined Opinion