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.
13