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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