United States v. Mendez-De-Jesus

United States Court of Appeals
For the First Circuit

No. 95-2063

UNITED STATES OF AMERICA,

Appellee,

v.

JOSELYN ANTONIO MENDEZ-DE JESUS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Vilma Maria Dapena, Assistant Federal Public Defender, with

whom Benicio Sanchez Rivera, Federal Public Defender, was on

brief for appellant.
Jose F. Blanco-Torres, Assistant United States Attorney,

with whom Guillermo Gil, United States Attorney, and Jose A.

Quiles, Senior Litigation Counsel, were on brief for appellee.

May 30, 1996

COFFIN, Senior Circuit Judge. Defendant Jocelyn Antonio

Mendez-de Jesus entered a conditional plea of guilty to re-

entering the United States after being deported subsequent to a

felony conviction, 8 U.S.C. 1326(a) & (b)(1), reserving his

right to appeal the district court's denial of his motion to

suppress his identification and immigration record. Finding no

error below, we affirm.

BACKGROUND

Three boats carrying illegal aliens from the Dominican

Republic landed in the vicinity of Rincon, Puerto Rico in the

late hours of December 12 and early hours of December 13, 1994.

On the morning of December 13, two private citizens brought the

defendant and an unknown female to the police station in Rincon.

Border Patrol Agent Hector Lugo of the Immigration and

Naturalization Service (INS) was there already in order to

interview persons who had been picked up from the boats. The

citizens reported to Lugo that the defendant and his companion

were not known to them and appeared to be lost.

Lugo suspected that the female passenger was an illegal

alien: she had damp and dirty clothing, ragged hair, and an odor

associated with urine and defecation on boats. Mendez, on the

other hand, did not give the impression of having recently

arrived illegally via boat. He appeared tidy, denied

understanding Spanish and told Lugo that "I'm from here." Lugo

commenced questioning the woman, who, instead of answering,

continually looked at Mendez. Lugo asked if she knew Mendez and

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she responded affirmatively. Mendez also acknowledged knowing

the woman, saying that they met in the Dominican Republic.

Eventually, the woman admitted that she entered Puerto Rico

illegally that morning.

At that time, Lugo asked Mendez for identification and was

given his resident alien registration card. He brought Mendez

inside the station and, while awaiting verification of the

registration card, began interrogating him. Shortly thereafter,

he received information that Mendez had previously been deported.

The district court denied Mendez's motion to suppress, but,

on his motion for reconsideration, found that Lugo lacked

probable cause to further detain or interrogate Mendez after

receiving his alien registration card and, therefore, suppressed

all statements made thereafter. The court refused to suppress

the card itself or the corresponding INS records that documented

his previous deportation.

DISCUSSION

A. Standard of Review

Our review of a district court's decision to grant or deny a

suppression motion is plenary. United States v. McCarthy, 77

F.3d 522, 529 (1st Cir. 1996). We scrutinize the court's factual

findings, including credibility determinations, for clear error,

United States v. Valle, 72 F.3d 210, 214 (1st Cir. 1995), and

will uphold a denial of a motion to suppress if any reasonable

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view of the evidence supports it. United States v. de Jesus-

Rios, 990 F.2d 672, 677 (1st Cir. 1993).

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B. Fourth Amendment Claims

In an effort to invoke the exclusionary rule, Lugo alleges

two violations of the Fourth Amendment. First, he contends that

he was illegally arrested and brought to the police station.

Second, he argues that Lugo's request for his identification

constituted an unconstitutional seizure.

We can quickly dispose of the first issue. Mendez was

brought to the police station by two private citizens. While the

seizure of Mendez may have assisted the government, there is no

suggestion that the government initiated or participated in the

citizen action. In the absence of governmental action, the

Fourth Amendment does not apply. See Skinner v. Railway Labor

Executives' Ass'n, 489 U.S. 602, 614 (1989) (Fourth Amendment

does not apply to private action unless private party "acted as

an instrument or agent of the Government"); United States v.

Jacobsen, 466 U.S. 109, 113 (1984).

Mendez's alternative claim fares no better. He contests the

court's finding that Lugo's authority to ask for identification

derived from 8 U.S.C. 1357(a)(1), which provides that an

immigration officer may, without warrant, "interrogate any alien

or person believed to be an alien as to his right to be or to

remain in the United States." In support, he cites the principle

that an individual may not be detained for questioning about

citizenship absent reasonable suspicion that the person is an

illegal alien, see United States v. Brignoni-Ponce, 422 U.S. 873,

884 (1975), and points to Lugo's testimony that he had the

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impression that Mendez was a United States citizen. While this

particular argument concerning the applicability of 1357(a)(1)

is not without force, it is ultimately unavailing because the

court's findings clearly demonstrate that Lugo had reasonable

suspicion that Mendez was violating the immigration laws.

It is well settled that, based on reasonable and articulable

suspicion, an officer may make a brief stop or seizure of an

individual to investigate suspected past or present criminal

activity. McCarthy, 77 F.3d at 529.1 The determination of

whether an officer acted reasonably requires two subsidiary

inquiries: 1) whether the officer's action was justified at its

inception; and 2) whether the action taken was reasonably related

in scope to the circumstances justifying the interference in the

first place. Id. at 530 (citing Terry v. Ohio, 392 U.S. 1, 19-20

(1968)). This determination demands examination into the

totality of the circumstances confronting the officer at the time

of the stop. Id.

Lugo testified that, at the time of his request for Mendez's

identification, he was aware that 1) three boats carrying illegal

aliens had arrived in the area within the previous 24 hours; 2)

1 In INS v. Delgado, the Court stated that "interrogation

relating to one's identity or a request for identification by the
police does not, by itself, constitute a Fourth Amendment
seizure." 466 U.S. 210, 216 (1984). The Court added, however,
that such an encounter may constitute a detention or seizure if
"the circumstances . . . are so intimidating as to demonstrate
that a reasonable person would have believed he was not free to
leave if he had not responded." Id. Though perhaps unnecessary,

for purposes of this case we will assume without deciding that
the circumstances surrounding Lugo's request for identification
constituted a seizure under the Fourth Amendment.

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Mendez and a woman had been brought to the station by citizens

who reported that the couple looked lost and unfamiliar; 3) the

woman appeared to be an illegal alien, though Mendez did not; 4)

when asked questions the woman looked to Mendez for guidance; 5)

Mendez and the woman admitted knowing each other; and 6) the

woman admitted to being an illegal alien.2 Lugo maintained

that, based on these circumstances, he believed that Mendez was

assisting the woman in violation of the immigration laws.

The court credited this testimony and determined that

"[t]hese discoveries and observations further supported a

reasonable suspicion of alienage and formed the basis for a

suspicion of illegal assistance." We agree. In this context,

Lugo's request for identification was a reasonable and minimal

intrusion directly related to his suspicions, and did not violate

the Fourth Amendment. As such, the district court properly

denied Mendez's motion to suppress his identification and

immigration record.3

2 Mendez lodged hearsay objections to Lugo's account of the
woman looking at Mendez and her statement that she knew him,
which were properly overruled. The look was nonverbal conduct
not intended as an assertion, and both the look and statement
were offered for their effect on Lugo's understanding of the
unfolding events -- i.e., his reasonable suspicion -- and not to
prove that the woman and Mendez actually knew each other. As
such, his account was not hearsay. See Fed. R. Evid. 801(a) &

(c).

3 The district court alternatively found that, even in the
face of a Fourth Amendment violation, the "body" or identity of a
defendant is never suppressible. See INS v. Lopez-Mendoza, 468

U.S. 1032, 1039 (1984); United States v. Orozco-Rico, 589 F.2d

433, 435 (9th Cir. 1978). Because we find no Fourth Amendment
violation, at least up to the point that Lugo received Mendez's
alien registration card, we need not address this conclusion.

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Affirmed.

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