United States Court of Appeals
For the First Circuit
No. 09-1149
ASTRID G. ESTRADA; WENDY M. ESTRADA; GUILFREDO E. MUÑOZ;
JOSÉ A. AQUINO; CRUZ F. RIVERA; CARLOS E. TAMUP; JOSÉ BURGOS;
ABELINO M. URIZAR; ISRAEL TEBALAN; ROLANDO NORIEGA;
BORIS CRUZ; ELSA HERNÁNDEZ VILAVICENCIO,
Plaintiffs, Appellants,
v.
STATE OF RHODE ISLAND, State Police Department;
STEVEN M. PARE, individually and in his official capacity as
Superintendent of the Rhode Island State Police;
C. THOMAS CHABOT, individually and in his official capacity
as a state trooper employed by the State of Rhode Island,
Defendants, Appellees,
JANE DOE, individually and in her official capacity
as a state trooper employed by the State of Rhode Island,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, and Howard, Circuit Judges.
V. Edward Formisano, with whom American Civil Liberties Union,
Rhode Island Affiliate, Sinapi, Formisano, & Co., Ltd., was on
brief for appellants.
John M. Moreira, Special Assistant Attorney General, with whom
Patrick C. Lynch, Attorney General, James R. Lee and Brenda D.
Baum, Assistants Attorney General, were on brief for appellees.
Larry James, General Counsel, Christina Corl, Crabbe, Brown &
James, LLP, Michael M. Hethmon, Garrett R. Roe, and Immigration
Reform Law Institute, Inc., as amicus curiae The National Fraternal
Order of Police.
February 4, 2010
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TORRUELLA, Circuit Judge. Plaintiff-Appellants Astrid G.
Estrada, Wendy M. Estrada, Guilfredo E. Muñoz,1 José A. Aquino,
Cruz F. Rivera, Carlos E. Tamup, José Burgos, Abelino M. Urizar,
Israel Tebalan, Rolando Noriega, Boris R. Cruz, and Elsa Hernández
Vilavicencio were passengers in a van that was stopped for failing
to signal when changing lanes. They filed this civil action in the
District Court of Rhode Island challenging the actions of Officer
Thomas Chabot of the Rhode Island State Police during the stop,
namely, that he inquired into their immigration status, contacted
Immigration and Customs Enforcement ("ICE") and transported them to
ICE in violation of their Fourth Amendment rights. Plaintiff Tamup
also challenges the two pat-down searches to his person performed
by Officer Chabot. For the reasons stated below, we affirm the
district court on all counts.
I. Background2
The events transpired in the early morning of July 11,
2006. Plaintiff-Appellant Carlos E. Tamup ("Tamup") was driving a
fifteen-passenger van heading south on Interstate 95 in Rhode
1
Although the briefs in this case refer to a "Guilfredo E.
Muñoz," at deposition, Mr. Muñoz explained that his first surname
is Camay and his second surname is Muñoz.
2
The facts are drawn from deposition testimony of all parties, as
well as exhibits submitted to the district court in support of the
motions for summary judgment. Because this case comes to us after
a grant of summary judgment, we present the facts in the light most
favorable to the non-moving party, and draw all reasonable
inferences in that party's favor. Fennell v. First Step Designs,
Ltd., 83 F.3d 526, 534 (1st Cir. 1996).
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Island. The remaining eleven Plaintiffs were passengers in that
van and were on their way to work in Westerly, Rhode Island.
Somewhere near exit 4 in the Town of Richmond, Tamup failed to
activate his turn signal as he switched lanes in the two-lane
stretch of road. Rhode Island State Police Officer Thomas Chabot
("Officer Chabot") was stationed in a marked state police cruiser
parked on the grassy median on Interstate 95. Upon observing that
the van had failed to signal its lane change, Officer Chabot
engaged his overhead lights to stop the van.3
At Officer Chabot's request, Tamup produced his driver's
license, vehicle registration, and proof of insurance. Responding
to Officer Chabot's question, Tamup stated that his wife owned the
van and that he and the other passengers were driving to work
polishing jewelry in Westerly, Rhode Island. Walking over to the
passenger's side of the van, Officer Chabot asked the front seat
passenger, Plaintiff Guilfredo E. Camay Muñoz ("Camay"), for
identification. When Camay stated that he did not have
identification on his person, Officer Chabot asked for his name and
birth date. Although there was an obvious language barrier, Camay
was able to give his name and provide his birth date.
3
The validity of the stop is not contested in this appeal.
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Officer Chabot opened the front passenger door4 and
counted the number of people inside, stating that there were
fifteen persons.5 Using Tamup as a translator, Officer Chabot
asked the rest of the passengers to produce identification. Some
of the passengers produced various forms of identification: a gym
membership card, a non-driver's license identification issued by
the Rhode Island Division of Motor Vehicles, and two
identifications issued by the Guatemalan Consulate. Continuing to
use Tamup as a translator, Officer Chabot then asked the passengers
if they could produce documentation establishing their U.S.
citizenship.6 None of the passengers was able to produce such
4
A ball of some sort fell out of the van as Officer Chabot opened
the door. In the videotape of the stop, Officer Chabot is seen
picking up the ball and asking: "Ehh, make a good player huh?"
5
There appears to be a question as to how many passengers were in
the van. In their brief, appellees assert that there were fourteen
people in the van, but in the enhanced audio of the stop, Officer
Chabot is heard saying there are fifteen people. In their briefs,
Appellants contend there were only twelve people in the van, the
total number of persons who now appeal. However, in his
deposition, Tamup states that he was transporting fourteen
passengers. In any event, this is not a material fact.
6
Plaintiffs argue that there is a material dispute as to when
Officer Chabot inquired about the immigration status of the
passengers. Plaintiffs note that Officer Chabot, Tamup, and at
least one other Plaintiff testified in their deposition that
Officer Chabot made such requests and inquiries prior to returning
to his cruiser the first time and conducting the computer checks.
However, other Plaintiffs testified that Officer Chabot gathered
Tamup's license, returned to his cruiser, and did not ask for the
identifications until he returned. Because this dispute is not
material to our analysis, we present the facts as stated by both
Officer Chabot and Plaintiff Tamup, who translated Chabot's
requests to the passengers.
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documentation. According to Officer Chabot's deposition testimony,
he did not observe any unusual or suspicious activity from Tamup or
the van's passengers at this or any other time.7 Officer Chabot
also testified, however, that he normally requested identification
from passengers in vehicles he stopped, and that more than 99
percent of the passengers from whom he requests identification can
supply it.
Officer Chabot then requested that Tamup step out of the
van so that he could perform a pat-down search.8 See Terry v.
Ohio, 392 U.S. 1 (1968). The search did not yield anything, but
during the course of the pat-down, Officer Chabot asked Tamup if he
and the rest of the passengers had green cards or work papers, and
specifically requested that Tamup give him his social security
number and green card. Tamup stated that he only had his driver's
7
Defendants cite to deposition testimony of Plaintiff that they
were nervous during the encounter with Officer Chabot. All of the
testimony cited, however, relates to the Plaintiffs' referring to
their own state of mind. We have been unable to find any evidence
in the deposition testimony of Officer Chabot that he observed or
recognized any nervousness on the part of the passengers in the
van.
8
The justification given by Officer Chabot for this pat-down at
his deposition was that:
I had 14 people in the van. And then once Mr. Tamup is in
the van and he comes out of the van, I have no idea what
he might have brought with him from the van, whether it
be a knife, whether it be a weapon of some sort, so for
my safety I conducted a Terry pat.
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license and that the other passengers did not have any other
documentation.
Apparently, sometime before Officer Chabot returned to
his vehicle to run Tamup's license, many or most of the Plaintiffs
had essentially admitted being in the country illegally. While the
deposition testimony is sometimes less than clear on what exactly
Officer Chabot asked the passengers, and Officer Chabot himself
never testified that he understood the passengers to have stated
directly that they were in the country illegally, Plaintiffs Tamup
and Estrada both testified in their depositions that they had
admitted to Officer Chabot that they and the rest of the passengers
were not in the country legally.9
9
Tamup testified that he told Officer Chabot that no one in the
van had a green card or work papers:
Q: Did he [Officer Chabot] ask you whether anyone else in
the van had a green card?
A: Yes. He said that if they were going to work, they had
to have their papers, that if they worked here, they have
to have a green card.
Q: Did you tell him that there was -- no one in the van
had a green card or work papers?
A: We told him we didn't have anything.
While it is unclear whether the above exchange indicates that Tamup
told Officer Chabot they were not carrying their green cards
currently, or that they simply did not have them, Estrada testified
as follows:
Q: You said that the trooper asked you all in the van
whether you had permission or license to be in the
country, and someone said no?
A: No. When he asked, we all said no.
Q: Everyone in the van said the word, no?
A: No. Not everybody. Just with their faces.
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After Tamup sat back in the driver's seat in the van,
Officer Chabot returned to his cruiser and conducted a background
check on Tamup. Tamup's license came back as valid and his
criminal background check was negative. Officer Chabot then
contacted Immigration and Customs Enforcement ("ICE") and reported
that he had pulled over a passenger van transporting individuals
whom he believed might be illegal immigrants. Officer Chabot had
to wait approximately three minutes to receive a return call from
the ICE Providence office with instructions.
After speaking with someone at the ICE Providence office,
Officer Chabot returned to the van and conducted a second pat-down
of Tamup. A second state trooper, Officer Heather Donahue, arrived
at the scene and conferred with Officer Chabot. Officer Chabot
then informed Tamup that Tamup would have to drive the passenger
van with all the passengers to the ICE Providence office. Tamup
testified at his deposition that Officer Chabot told him it was his
responsibility to take everyone to immigration and that "if anybody
tried to escape, they could lose their life." Plaintiffs contend
they did not consent to the detainment or the travel to ICE.10
Q: Okay. Some people in the van actually said the word,
no?
A: I don't remember. I know that I was one of those who
said no.
Q: So you said the word, no?
A: Yes.
10
Officer Chabot testified at his deposition that the passengers
voluntarily acquiesced to his request to drive to the ICE office in
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Plaintiff Camay testified that he himself heard Officer Chabot say
"You lock the van or somebody's going to die."11 Other Plaintiffs
testified that they heard Tamup translate the threat.
State troopers escorted the passenger van being driven by
Tamup to the ICE Providence office without significant incident.12
All of the van's passengers were taken into custody upon arrival.
In January 2007, all the passengers filed a complaint in
Rhode Island District Court. The complaint alleged an illegal
search and seizure in violation of 42 U.S.C. § 1983 and the Fourth
and Fourteenth Amendments to the United States Constitution as well
as Article I, § 6 of the Rhode Island Constitution; unlawful
discrimination under 42 U.S.C. §§ 1981, 1983, Article I, § 2 of the
Rhode Island Constitution, and R.I. Gen. Laws 31-21.2 (the Rhode
Island Racial Profiling Prevention Act of 2004); and a state tort
claim of negligence.
At the conclusion of discovery, defendants filed a motion
for summary judgment defending both on qualified immunity grounds
Providence. In his police report, Officer Chabot stated that he
attempted to give Tamup directions to the ICE office, but was
unable to do so due to the language barrier, at which point Officer
Chabot agreed to escort the van to the ICE office. Because of the
procedural posture of this case, we take the facts in the light
most favorable to the Plaintiffs.
11
Officer Chabot denies these allegations but because of the
procedural posture of this case, we take them as true.
12
The officers requested that Tamup stop the vehicle at one point
during the drive so they could verify that the doors were locked,
but this is not an issue in this case.
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and substantive grounds. Plaintiffs also filed a motion for
partial summary judgment. The district court entered judgment in
favor of defendants on all counts on December 30, 2008. Plaintiffs
timely appealed.13
II. Standard of Review
Summary judgment is appropriate if the record shows "that
there is no genuine issue as to any material fact and [] the moving
party is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). On a summary judgment motion, "[a] genuine issue exists
where a 'reasonable jury could resolve the point in favor of the
nonmoving party.'" Meuser v. Fed. Express Corp., 564 F.3d 507, 515
(1st Cir. 2009) (quoting Suárez v. Pueblo Int'l, Inc., 229 F.3d 49,
53 (1st Cir. 2000)). "A fact is material only if it possesses the
capacity to sway the outcome of the litigation under the applicable
law." Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)
(internal quotation marks omitted).
Where, as here, the parties have filed cross-motions for
summary judgment, the court must "determine whether either of the
parties deserves judgment as a matter of law on facts that are not
disputed." Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st
Cir. 2004). "It is not for the court on summary judgment to weigh
the evidence 'but to determine whether there is a genuine issue for
trial.'" Cont'l Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d
13
Plaintiffs only appeal the issues that involve Officer Chabot.
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370, 373 (1st Cir. 1991) (quoting Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 249 (1986)). Ruling on each party's motion, the
court views all facts and draws all reasonable inferences in the
light most favorable to the nonmoving party. Id.
III. Discussion
In this appeal, Plaintiffs press four main issues.
First, Plaintiffs argue that the district court erred in ruling
that Officer Chabot did not violate their Fourth Amendment rights
by inquiring about their immigration status and contacting ICE.
Second, Plaintiffs argue that Officer Chabot did not have
reasonable suspicion to transport the Plaintiffs to the ICE
Providence office. Third, Plaintiff Tamup individually argues that
the district court erred in ruling that Officer Chabot had
reasonable suspicion to conduct the two Terry pat-down searches of
Tamup. Finally, Plaintiffs contend that the district court erred
in ruling that Officer Chabot did not violate the Rhode Island
Racial Profiling Prevention Act of 2004 ("the Act").
In this case, the district court ruled that Officer
Chabot had reasonable suspicion to suspect immigration violations,
to transport the Plaintiffs to ICE, and to twice pat-down Tamup.
The court thus did not reach the issue of qualified immunity. We
choose to answer the question of qualified immunity first, which
makes it unnecessary to determine whether Officer Chabot had
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reasonable suspicion to take these actions. See Nelson v. Kline,
242 F.3d 33 (1st Cir. 2001).
"The doctrine of qualified immunity protects government
officials from 'liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 526
(1st Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)) (internal quotation marks omitted). To determine whether
a particular officer is entitled to qualified immunity, "[a] court
must decide: (1) whether the facts alleged or shown by the
Plaintiff make out a violation of a constitutional right; and (2)
if so, whether the right was 'clearly established' at the time of
the defendant's alleged violation." Maldonado v. Fontánes, 568
F.3d 263, 269 (1st Cir. 2009).14
This second step has two aspects: (1) "the clarity of the
law at the time of the alleged civil rights violation" and (2)
whether, on the facts of the case, "a reasonable defendant would
have understood that his conduct violated the Plaintiffs'
constitutional rights." Id.; see also Anderson v. Creighton, 483
14
Our Circuit had previously articulated this two-part test as a
three-part test that remained faithful to the substance of the test
articulated by the Supreme Court. See, e.g., Bergeron v. Cabral,
560 F.3d 1, 7 (1st Cir. 2009). However, we recently adopted the
"[Supreme Court's two-part test and abandon[ed] our previous usage
of a three-step analysis." Maldonado, 568 F.3d at 269.
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U.S. 635, 640 (1987) ("[To overcome qualified immunity, t]he
contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right."). After Pearson, we no longer have to take these two steps
in "strict sequence." Bergeron, 560 F.3d at 7 (citing Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009)). Thus if a reasonable
official would not have understood that his conduct violated
Plaintiffs' constitutional rights, we must grant him qualified
immunity. "[T]his prong of the inquiry, while requiring a legal
determination, is highly fact specific." Nelson, 242 F.3d at 35
n.2 (quoting Swain v. Spinney, 117 F.3d 1, 9 (1st Cir. 1997)).
If an officer is found to be deserving of qualified
immunity under federal law, he will also be granted qualified
immunity for the same claim under Rhode Island law. See Hatch v.
Town of Middletown, 311 F.3d 83, 89-90 (1st Cir. 2002) (holding
that Rhode Island law recognizes a qualified immunity defense under
state law analogous to the federal doctrine of qualified immunity).
Turning to the facts of this case, we take each issue
presented by the Plaintiffs in turn.
A. The Inquiry About Immigration Status and Contacting ICE
Plaintiffs do not contest the validity of the traffic
stop, nor do they argue that it was unlawful for Officer Chabot to
request identification from all the passengers in the van, a
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question our Circuit has not conclusively decided.15 Instead,
Plaintiffs argue that Officer Chabot's inquiry into their
immigration status and subsequent call to ICE prolonged the traffic
stop, converting it into an unlawful seizure in violation of the
Fourth Amendment.
We cannot say, however, that it was clear as a matter of
law that Officer Chabot's brief line of questioning, nor the three
minutes it took for him to receive a response from ICE,
unreasonably prolonged the stop such that independent reasonable
suspicion was necessary to support his inquiry into Plaintiffs'
immigration status. The traffic stop at issue took place a year
after the Supreme Court's decision in Muehler v. Mena, 544 U.S. 93
(2005). In that case, the Court held that a police officer does
not need independent reasonable suspicion to question an individual
about her immigration status during the execution of a search
warrant, but that such inquiry constitutes "mere police
questioning" so long as the detention was not prolonged by the
questioning. Id. at 101.16
15
Compare United States v. Chaney, 584 F.3d 20, 27 (1st Cir. 2009)
(finding that officer's inquiries into car passenger's identity did
not violate passenger's rights) with United States v. Henderson,
463 F.3d 27, 31 (1st Cir. 2006) (declining to decide whether an
officer could demand a passenger's identification).
16
Plaintiffs contend that this case is distinguishable from
Muehler because of the timing of Officer Chabot's questions. They
allege that Officer Chabot did not ask about Plaintiffs'
immigration status until after he had checked the status of Tamup's
license and conducted a criminal background check, as well as
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Other courts have held that questioning that extends the
length of detention "by only a brief time" does not "make the
custody itself unreasonable." United States v. Childs, 277 F.3d
947, 949 (7th Cir. 2002) (en banc). See also United States v.
Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006); United
States v. Burton, 334 F.3d 514, 518-19 (6th Cir. 2003); United
States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001). At the
time of the traffic stop, our Circuit had not decided this
question. Cf. United States v. Chhien, 266 F.3d 1, 9 (1st Cir.
2009) (finding that officer's questions to the driver about his
itinerary did not exceed the scope of the stop). In a more recent
case, we rejected a defendant's argument that "police must limit a
traffic citation stop to the narrow purpose of immediately
preparing and issuing a citation." United States v. Dunbar, 553
F.3d 48, 56 (1st Cir. 2009) (finding that a delay of twelve minutes
while officer prepared a traffic warning and questioned car's
passenger about her itinerary did not unreasonably delay the stop).
We also note that by the time Officer Chabot asked about
Plaintiffs' immigration status, he knew that: (1) Plaintiffs were
contacted ICE. When Officer Chabot contacted ICE, Plaintiffs
argue, the purpose of the traffic stop was complete and the further
questioning about immigration status unlawfully prolonged the stop.
We note that by a number of witness accounts, including those of
Tamup and Officer Chabot, Officer Chabot asked about Plaintiff's
immigration status before running Tamup's license. But even if
Officer Chabot did not pose the question until after returning
Tamup's license, it was not clearly established law that the brief
exchange unreasonably prolonged the traffic stop.
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headed to work; (2) most were unable to produce any identification,
and of the four who did, two could produce only identifications
issued by the Guatemalan consulate; and (3) they spoke little
English. Officer Chabot also testified that passengers, of whom he
requests documentation as a matter of routine, are able to produce
valid identification more than 99 percent of the time. All of
these facts combined may well have sufficiently heightened his
suspicions for him to believe that he could shift his inquiry from
the traffic stop to investigating other potential criminal
activity. See Chhien, 266 F.3d at 6 ("[W]hile an officer's actions
must bear some relation to the purpose of the original stop, he may
shift his focus and increase the scope of his investigation by
degrees if his suspicions mount during the course of the
detention.").
In any event, the law was not and is not know clearly
established, such that Chabot should have known that he could not
investigate further. We thus conclude that Officer Chabot is
entitled to federal and state qualified immunity for any possible
constitutional violations that he may have committed in asking the
van's passengers questions about their immigration status and in
contacting ICE.
B. Escorting Plaintiffs to ICE
After contacting ICE, Officer Chabot returned to the van
and demanded that Tamup follow him to the ICE office in Providence.
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Plaintiffs contend that this prolonged the traffic stop and that
Officer Chabot did not possess either reasonable suspicion or
probable cause to detain and transport the Plaintiffs to ICE. On
the other hand, defendant contends that the admission of
undocumented status and the manner in which the events unfolded
provided Officer Chabot with probable cause to believe Plaintiffs
were violating immigration laws. See 8 U.S.C. § 1324 (harboring
aliens); 8 U.S.C. § 1325 (improper entry by alien); 8 U.S.C.
§ 1304(e) (personal possession of registration or receipt card).
Plaintiffs make much of the difference in testimony
between Officer Chabot's characterization of the escort as
voluntary and the testimony on the record from multiple Plaintiffs
that Officer Chabot issued a bodily threat against Tamup and/or the
Plaintiffs if they did not follow his vehicle to the ICE Providence
office. Because we find that Officer Chabot's actions fall under
the doctrine of qualified immunity, this contested issue is not
material.17
Probable cause exists when the circumstances, "viewed
from the vantage point of a prudent, reasonable, cautious police
officer . . . guided by . . . experience and training" are
sufficient to warrant a reasonable person to believe that the
individual had committed or was committing a crime. United States
17
We are by no means condoning the type of threat alleged to have
been made here -- one that for purposes of summary judgment, we
take as true.
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v. Davis, 458 F.2d 819, 821 (D.C. Cir. 1972); United States v.
Reyes, 225 F.3d 71, 75 (1st Cir. 2000). The Supreme Court has made
it clear that officers can "draw reasonable inferences from [the]
facts in light of their knowledge of the area and their prior
experience . . . ." United States v. Ortiz, 422 U.S. 891, 897
(1975).
Although Officer Chabot's police report and deposition
testimony calls into question whether he himself believed he had
probable cause to escort the Plaintiffs to ICE, "the Supreme Court
has held that an officer's subjective belief is not dispositive of
whether probable cause existed." United States v. Pardue, 385 F.3d
101, 106 n.2 (1st Cir. 2004); Florida v. Royer, 460 U.S. 491, 507
(1983) ("[T]he fact that the officers did not believe there was
probable cause and proceeded on a consensual or Terry-stop
rationale would not foreclose the State from justifying . . .
custody by proving probable cause."). Rather, for the purposes of
qualified immunity, we look to the objective perspective of a
reasonable officer and inquire whether given all the facts in the
record, that officer would have believed that he was not violating
the Plaintiffs' Constitutional rights in taking the action at
issue.
By the time that Officer Chabot demanded that Plaintiffs
follow him to the ICE Providence office, two Plaintiffs had
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essentially admitted on their behalf and on the behalf of the rest
of the passengers, that they were in the country illegally.
Given the undisputed facts as we find them in the record
and the state of the law, we are compelled to find that a
reasonable defendant in Officer Chabot's position would have
believed he had sufficient evidence giving rise to probable cause
to support the conclusion that the van's occupants had committed
immigration violations. Officer Chabot is thus entitled to
qualified immunity for alleged violations of state or federal laws
surrounding the seizure of Plaintiffs and their subsequent escort
to the Providence ICE office.
C. Pat-down Searches of Plaintiff Tamup
Plaintiff Tamup challenges the district court's ruling
that Officer Chabot had reasonable suspicion to conduct the two
pat-down searches of his person.18 Tamup argues that Officer Chabot
had neither a subjective nor an objective suspicion that Tamup was
armed and dangerous.
The inquiry of whether an officer has reasonable
suspicion to conduct a pat-down search requires a consideration of
"the totality of the circumstances to see whether the officer had
18
At the district court, all Plaintiffs sought to challenge
Tamup's pat downs. The district court correctly ruled that only
Tamup had standing to challenge the pat-downs, and Plaintiffs do
not challenge this ruling. See United States v. Sowers, 136 F.3d
24, 28-29 (1st Cir. 1998) (holding that appellant who was not
himself subjected to a pat down search did not have standing to
raise a Fourth Amendment claim on the basis of said search).
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a particularized, objective basis for his or her suspicion."
United States v. McKoy, 428 F.3d 38, 39 (1st Cir. 2005) (citing
United States v. Arvizu, 534 U.S. 266, 273 (2002)). The Supreme
Court has recognized that "[t]he risk of harm to both the police
and the occupants [of a stopped vehicle] is minimized . . . if the
officers routinely exercise unquestioned command of the situation."
Maryland v. Wilson, 519 U.S. 408, 414 (1997). "[D]anger to an
officer during a traffic stop is [also] likely to be greater when
there are passengers in addition to the driver in the stopped car."
Id. at 415; see also United States v. Cruz, 156 F.3d 22, 26 (1st
Cir. 1998) (finding that during a Terry stop, the number of
suspects compared to the number of officers is a relevant factor in
assessing an officer's safety concerns). This Court has
consistently held that, while engaging in legitimate investigative
conduct, "the police may take reasonable steps to protect
themselves by searching a suspect for weapons or taking other
protective measures." United States v. Taylor, 162 F.3d, 12, 17
(1st Cir. 1998); see also Flowers v. Fiore, 359 F.3d 24, 30 (1st
Cir. 2004). "Furthermore, the Court has recognized that traffic
stops are 'especially fraught with danger to police officers.'"
Arizona v. Johnson, 129 S. Ct. 781 (2009).
As to the first pat-down search, Tamup argues that
Officer Chabot's reasons evince that he lacked subjective suspicion
that Tamup was armed and dangerous. Tamup also argues that a
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reasonable officer presented with the same circumstances would not
have believed that his welfare was in jeopardy because Chabot did
not point to having observed Tamup making any remarkable, sudden,
or threatening movements while he was seated in the van.
Tamup makes similar arguments with regards to the second
pat down, which occurred when Officer Chabot returned to the van
after calling ICE and verifying that Tamup's paperwork was in
order. Tamup points to Officer Chabot's articulation of the reason
why he conducted the second pat down: that Officer Chabot believed
that Tamup "could have picked up a weapon while he got back in his
vehicle." Tamup argues that this does not amount to an articulable
suspicion that Tamup was armed and dangerous. According to Tamup,
if Officer Chabot had a concern that Tamup could access a weapon
inside the van, he should have searched the van, the van's
compartment, and the other passengers prior to permitting Tamup to
return to the vehicle, or alternatively separated Tamup from the
van and the passengers by placing him in the back of his police
cruiser. Further, Tamup argues that no reasonable officer in
Officer Chabot's position would have believed his safety was in
danger, and conducted the second pat down under the circumstances,
because there were no sudden or furtive movements, this was not a
high crime area, it was not late at night, and there were no
suspicious circumstances or criminal activity, or bulge in his
clothing that would suggest that he was carrying a weapon.
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Defendants argue that Officer Chabot's inability to
obtain identifying information from most of the van passengers
contributed to his reasonable belief that his interactions with
Tamup could be dangerous. Defendants argue that due to the lack of
identification presented, Officer Chabot could not conduct criminal
background checks to dispel any safety concerns he had about the
passengers. Defendants also add that the number of occupants in
the van was also a significant factor in Officer Chabot's safety
concerns. See Cruz, 156 F.3d at 26 (holding that officer's frisk
was justified in part because of the number of occupants in the
vehicle, "who outnumbered the police officer five to one"). With
regards to the second pat down, defendants contend that it was even
more reasonable for Officer Chabot to have concerns for his safety
because he could not see Tamup while conducting the check and the
situation had escalated since Plaintiffs had admitted to not having
documentation of their legal status in the United States.
Defendants argue that all these circumstances justified a second
pat down.
Given the state of the law and the facts in this case, we
cannot say that a reasonable officer, confronted with a similar
situation as Officer Chabot, would have believed he was violating
the Plaintiff's constitutional rights by conducting the two pat
down searches. Before the first pat down, Officer Chabot was
confronted with a fifteen-passenger van full of individuals who
-22-
were by their own admission heading to work, most of whom did not
speak English, and who mostly lacked any identification. Two of
the pieces of identification that were provided were issued by the
Consulate of Guatemala. None of the passengers was able to provide
proof of U.S. citizenship, and after Officer Chabot asked for such
identification, he alerted the passengers to his belief that they
were not in the country legally. The likely consequence of
discovery of unauthorized entry or unauthorized stay in this
country -- forced deportation -- is a serious matter with harsh
consequences. Under these circumstances, it was not unreasonable
for Officer Chabot to conclude that he was entitled to pat down
Tamup to assert control over the situation and for his safety.
The second pat down occurred after Officer Chabot had
conferred with ICE and had received confirmation that his
suspicions as to the passengers were likely correct, as well as
after some of the passengers had admitted to lacking proof of legal
status. During this period of time, Officer Chabot lost visual
contact with Tamup and the passengers. Although Officer Chabot did
not testify that he himself observed nervousness on the part of the
passengers, most of the passengers themselves testified that they
had been nervous throughout the whole encounter.
It was not unreasonable for Officer Chabot to proceed as
he did. Tamup's suggestion that Officer Chabot should have instead
searched the van, its compartments, and all of the passengers
-23-
before allowing Tamup to return to the vehicle would have involved
a greater intrusion and unquestionably increased risk. The
suggestion that having all the passengers exit the van to allow
Officer Chabot to inspect each of them in turn, requires little
comment or analysis. The further suggestion that Officer Chabot
should have separated Tamup from the van by placing him in his
police cruiser was a plausible alternative, but it was not
unreasonable for Officer Chabot to decline to do so.
In the totality of the circumstances, we cannot say that
a reasonable officer in Officer Chabot's position would have
understood that his conduct violated Tamup's constitutional right.
We thus hold that Officer Chabot is entitled to qualified immunity
for both pat down searches under federal and state law.
D. Rhode Island Racial Profiling Prevention Act
Plaintiffs also brought a state law claim of prohibited
racial profiling under the Act. In prohibiting racial profiling,
the Act states that "[u]nless there exists reasonable suspicion or
probable cause of criminal activity, no motor vehicle stopped for
a traffic violation shall be detained beyond the time needed to
address the violation." R.I. Gen. Laws § 31-21.2-5. A private
cause of action for damages and equitable relief is statutorily
provided for victims of racial profiling. R.I. Gen. Laws
§ 31-21.2-4.
-24-
The Act does not define "reasonable suspicion," nor has
the term been construed under the statute. However, we agree with
the district court that the Rhode Island legislature intended the
term to have the same meaning as the standard developed under the
Rhode Island Constitution. State v. Foster, 842 A.2d 1047, 1051
(R.I. 2004) (holding that "reasonable suspicion" is the same for
purposes of the Rhode Island Constitution and the United States
Constitution, that is, that it must be "based upon all of the
circumstances") (quoting United States v. Cortéz, 449 U.S. 411, 417
(1981)).
Because we find that Officer Chabot could reasonably have
believed that he had sufficient facts to warrant first reasonable
suspicion, and later, probable cause of immigration violations, we
find that he is entitled to qualified immunity for all of the
challenged actions with respect to the Act.
For the reasons stated, the judgment is affirmed.
"Concurring opinion follows"
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LYNCH, Chief Judge, concurring. I join in Judge
Torruella's well-done opinion. As he states, this case raises no
issue as to whether police officers may ask for the identification
of all other passengers in a vehicle that is stopped for a minor
traffic violation (failing to signal before changing lanes) by the
driver. Cf. United States v. Soriano-Jarquin, 492 F.3d 495, 500
(4th Cir. 2007). Nor does this case involve whether a police
officer may detain and escort to the immigration authorities a
vehicle containing persons who do not speak English and appear to
be foreign, based on no more than the officer's "hunch" that the
passengers may be aliens who entered or remained in the country
illegally.
Rather, on the facts of this case, plaintiffs' claims
must fail because a reasonable officer would have had no basis in
existing law to conclude that his actions violated any
constitutional rights, and so Officer Chabot is entitled to
immunity. Maldonado v. Fontánes, 568 F.3d 263, 268-69 (1st Cir.
2009). The initial stop of the van and the two pat downs were
plainly reasonable for safety reasons and provide no basis for any
claim of constitutional violation.
In my view, the specific facts of this case also require
the conclusion that the officer is entitled to immunity on all
claims related to the detention and escorting of the vehicle and
its passengers to the immigration authorities. Officer Chabot had
-26-
more information at his disposal than merely the Hispanic
appearance of the passengers and their inability to speak English.
He knew from the driver that all plaintiffs were on their way to
work. He also knew that when asked for some form of
identification, most plaintiffs produced none, two offered
Guatemalan consular identification cards,19 and one a Sports Fitness
club I.D. card with no birth date on it. None of the passengers
produced proof of United States citizenship when asked, nor did
anyone produce a green card.
This information raised the real prospect that there were
violations of criminal law by the driver, 8 U.S.C. § 1324(a)(1)
(A)(ii), possibly by the employer, id. § 1324(a)(3)(A), and by the
van's passengers, id. §§ 1304(e), 1306(a). Employers are required
to review documents from the individuals they employ. Id. §
1324a(b)(1)(A)-(D). These materials include both employment
authorization and identity documentation, id., such as a resident
alien card or an alien registration card, id. § 1324a(b)(1)(B)(ii).
Accordingly, if the passengers were employed as they said, they
likely would have had, at a minimum, some form of identity
documents. If they were not American citizens, a reasonable
officer had grounds to believe they were violating the requirement
19
Consular identification cards are issued by several foreign
governments, including Guatemala's, and identify their bearers as
citizens of the issuing country. See, e.g., H.R. Rep. 108-804, at
97-98 (2005).
-27-
to carry their registration, id. § 1304(e), or lacked registration
because they had entered illegally, id. § 1306(a). Either
situation was a violation of law.
Thus, there was a reasonable basis20 for the officer to
contact Immigration and Customs Enforcement (ICE). The ICE
representative called back three minutes later and noted that the
agency wanted to identify the passengers and their status, "due to
the lack of identification and strong possibility that the [van's]
occupants were illegal immigrants."
This was enough to raise a serious question, warranting
further investigation of whether plaintiffs were in violation of
immigration laws. A reasonable officer would believe this evidence
was sufficient to merit extending the period of detention for the
next one-to-two hours to accompany the van to the ICE office,
whether the passengers consented or not. Indeed, federal law gives
the authority to arrest for violations of § 1324 to all "officers
whose duty it is to enforce criminal laws." Id. § 1324(c).
Plaintiffs' claims were properly dismissed.
20
The majority opinion's reliance on plaintiffs' own admissions
that they told Officer Chabot they were illegal aliens is proper,
but I do not rely on it because Officer Chabot did not testify they
said so and because the admission is not contained in the police
report.
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