Oh what a beautiful morning,
Oh what a beautiful day,
I’ve got a wonderful feeling,
Everything’s going my way.
Oh What a Beautiful Mornin’, from the musical Oklahoma, Music by Richard Rodgers, Lyrics by Oscar Hammerstein, II, © 1943 by Williamson Music.
One morning in February of 2011, three Immigration and Customs Enforcement (ICE) agents were staking out Gill’s Truck Wash in Tulsa, Oklahoma looking for Juan Guel-Rivera who they suspected was in the United States illegally. Guel-Rivera was believed to work at the truck wash so the agents arrived before it opened.
A car with dark tinted windows drove up to the truck wash. One of the three agents got a one to two second glimpse of the driver and believed it might be Guel-Rivera so they stopped the car. Enrique Rivera De La Cruz was the driver of the car, his brother Armando was in the front-passenger seat, and De La Cruz’ wife, mother-in-law and sister-in-law were in the back seat. As Armando, his sack lunch in hand, exited the vehicle, the agents ordered De La Cruz to turn off the vehicle, to place the keys to the car on its roof and to exit the car. De La Cruz did as he was told but Armando attempted to run away.
About 200 yards away, the agents caught Armando and determined that Armando, who also worked at the truck wash, was in the United States illegally. The agents also quickly learned that neither De La Cruz nor Armando were Guel-Rivera; the agents had stopped the wrong car.
Despite learning that the driver they moments ago mistakenly believed to be Guel-Rivera was not, the agents continued to detain De La Cruz. The agents asked De La Cruz for his identification and De La Cruz gave them a fake. Using the information on the fake ID the agents were able to determine that De La Cruz was also in the United States illegally. After advising De La Cruz of his rights pursuant to Miranda, De La Cruz agreed to answer the agents’ questions and admitted to being in the United States illegally.
De La Cruz was arrested and indicted for illegal reentry. In advance of trial he moved to suppress the fruits of the detention and arrest. De La Cruz argued that as soon as the agents learned of their mistake—that he was not Guel-Rivera—they lost reasonable suspicion to detain him and should have let him go. The trial court denied suppression and De La Cruz appealed.
The trial court’s denial was based on two grounds: 1) the agents had reasonable suspicion to believe De La Cruz was involved in criminal activity; and 2) De La Cruz’ identification is never suppressable even if seizure was unlawful. The 10th Circuit found both to be error.
In order for the detention to have been lawful, the agents would have had to have a reasonably articuable suspicion that De La Cruz had either committed or was about to commit a crime. The analysis is two fold: 1) was detention justified at its inception; and 2) were the ongoing activities reasonably related in scope to the initial purpose.
De La Cruz conceded that the agents were initially justified given the one to two second glimpse; it was reasonable for the agents to see if the driver was the man in their photo. As soon as they discovered De La Cruz was not Guel-Rivera, however, they lost that justification.
The 10th Circuit found that De La Cruz could be detained briefly but only to dispel or confirm suspicion that De La Cruz was Guel-Rivera. As soon as agents discovered that De La Cruz, who looked entirely different from the photo of Guel-Rivera, was not Guel-Rivera, they should have let De La Cruz go free.
The problem, according to the 10th Circuit, is that even after the agents realized that De La Cruz was not the man they were looking for, they continued to detain him. The subjective view of the agents was irrelevant; it is the perspective of “an objectively reasonable officer” that is the standard. “Once reasonable suspicion has been dispelled, ‘[e]ven a very brief extension of the detention without consent or reasonable suspicion violates the Fourth Amendment.’” U.S. v. De La Cruz, 703 F.3d at 1197 quoting U.S. v. Burleson, 657 F.3d 1040, 1045 (10th Cir. 2011).
It may seem reasonable to conclude that De La Cruz’ continued detention can be justified by the suspicious way Armando ran away when the agents ordered them to stop. Don’t fall for it, says the 10th Circuit. While Armando running away might justifying detaining Armando, it does not justify detaining De La Cruz.
One might also be tempted to conclude that because agents determined, after catching Armando, that he was in the United States illegally, it would be reasonable to investigate De La Cruz further. Again, says the 10th Circuit, it is not. Just as you shouldn’t judge a book by its cover, you should not assume that one is guilty by association. The court did note that association plus something else, such as the encounter occurring very close to the U.S. border, might be enough, but not in Oklahoma!
Grasping at straws, the government argued that a reasonably objective officer in that situation, after learning that Armando was in the country illegally, could have concluded that the driver, De La Cruz, was guilty of transporting an illegal alien. The court knocked that argument down. Dropping his brother off at work was neither in furtherance of the illegal entry nor was it an attempt to assist his brother in avoiding detection. In other words: it was not criminal.
The 10th Circuit even went so far as to point out that the fact that Guel-Rivera and Armando both worked at the truck wash and were both believed to be in the United States illegally does not establish reasonable suspicion to believe that De La Cruz was too. De La Cruz did not work at the truck wash and was only dropping Armando off for work.
The 10th Circuit also noted that agents “may not legally detain a person simply because criminal activity is afoot. The particular person [who is detained] must be suspected of criminal activity.” U.S. v. De La Cruz, 703 F.3d at 1199 quotingRomero v. Story, 672 F.3d 880, 887-88 (10th Cir. 2012).
And in case you’re wondering, despite what one infamous Arizona Sheriff might have us believe, apparent Mexican ancestry of a vehicle’s occupants alone does not provide reasonable suspicion that the occupants are illegal aliens. Id. citing U.S. v. Brignoni-Ponce, 422 U.S. 873, 885-87 (1975).
Finally, the 10th Circuit set the record straight on whether or not a person’s identity can be suppressed. InterpretingImmigration and Naturalization Services v. Lopez-Mendoza, 468 U.S. 1032 (1984) in combination with its own ruling inU.S. v. Olivares-Rangel, 458 F.3d 1104 (10th Cir. 2006), simply stated, Lopez-Mendoza relates to in personamjurisdiction, for which identification cannot be suppressed even when there is an illegal arrest. Olivares-Rangel, on the other hand, clearly holds that the fruits of an illegal arrest, including the discovery of a fake ID or that De La Cruz was in the country illegally, must be suppressed.