                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2182
                                   ___________

United States of America,             *
                                      *
                 Appellee,            *
                                      * Appeal from the United States
      v.                              * District Court for the District
                                      * of South Dakota.
Gloria Rodriguez-Hernandez, also      *
known as Ana Maricela Hernandez,      *
                                      *
                 Appellant.           *
                                 ___________

                             Submitted: December 16, 2003

                                 Filed: December 24, 2003
                                  ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and FAGG, Circuit Judges.
                         ___________

FAGG, Circuit Judge.

      Gloria Rodriguez-Hernandez conditionally pleaded guilty to illegally
reentering the United States after deportation in violation of 8 U.S.C. § 1326(a).
Rodriguez-Hernandez appeals challenging the district court’s* partial denial of her
motion to suppress. We affirm.



      *
        The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota.
       At 12:39 a.m. on December 9, 2002, South Dakota Deputy Sheriff Decker
stopped a vehicle driven by Gerardo Ayon for a traffic violation on a South Dakota
highway. All events and conversations during the encounter were recorded on the
deputy’s video equipment. The deputy approached the car and asked Ayon for his
driver’s license and vehicle registration. Ayon produced a California driver’s license
and told the deputy he had just purchased the vehicle. At 12:40 a.m., Deputy Decker
also requested identification from the front-seat passenger, Rodriguez-Hernandez, and
she responded, “No English.” Ayon told the deputy Rodriguez-Hernandez did not
have identification with her. Deputy Decker asked Ayon to step out of the car, and
as he did so, Decker noticed a folding knife in the pocket of the driver’s side door.
The deputy also observed the shaft of an ink pen with white residue on it, which he
believed was used to ingest illegal drugs. Deputy Decker asked Ayon for permission
to conduct a pat-down search, and Ayon agreed. During the pat-down, the deputy
believed he felt a drug scale in Ayon’s pocket. Decker told Ayon to take a seat in the
patrol car, and called for back up because he had located a weapon and suspected
drug paraphernalia.

       Deputy Decker returned to the stopped vehicle and spoke with a male
passenger in the back seat of the car. The passenger stated he did not have any
identification with him. The passenger stepped out of the car and agreed to a pat-
down search. Decker asked the passenger about his place of birth and whether he had
a green card. The passenger stated his identification was in New Mexico. The deputy
then asked the passenger whether he was in this country illegally, and the passenger
said, “No.” At 12:46 a.m., Decker returned to his patrol car, where Ayon remained
seated. Decker asked Ayon whether his passengers were in this country illegally, and
Ayon stated they were. Deputy Decker then said, “They are illegals?” and Ayon
responded that they had work permits. At 12:50 a.m., Decker called state radio about
Ayon’s driver’s license information and learned Ayon’s license restricted him to
driving to and from work. Ayon tried to convince the deputy that his driving from



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Los Angeles to Nebraska and back looking for work qualified as permissible driving
under his restricted license.

       Deputy Decker’s backup, Deputy Palmer, arrived on the scene at 12:56 a.m.
Decker asked Palmer to help with the passengers by taking them to Palmer’s patrol
car. At Decker’s request, Palmer called Border Patrol and instructed the passengers
to talk with a border patrol agent. Miranda warnings were not given. See Miranda
v. Arizona, 384 U.S. 436, 444 (1966). Each passenger spoke with the agent for less
than five minutes. Palmer then spoke with the border patrol agent who stated both
passengers were in the country illegally and should be detained. Ayon, Rodriguez-
Gonzales, and the male passenger were then transported to the county jail, where they
arrived at 2:26 a.m. Later the same morning, INS agent Baird sent two detention
officers to the jail to pick up Rodriguez-Hernandez and bring her to Sioux Falls for
an interview. Rodriguez-Hernandez arrived there at 8:50 a.m. Before the interview,
Rodriguez-Hernandez’s fingerprints were taken and compared to fingerprints in the
INS database. The fingerprints indicated Rodriguez-Hernandez had been previously
deported.

      INS agent Baird wore plain clothes for his interview with Rodriguez-
Hernandez. He did not use force or intimidation. Baird read Rodriguez-Hernandez
her Miranda rights in Spanish before starting the interview, which lasted twenty
minutes. Rodriguez-Hernandez seemed to understand and signed a document
indicating she understood her rights. During the interview, Rodriguez-Hernandez
admitted she reentered the United States illegally after being deported.

      The district court partially denied Rodriguez-Hernandez’s motion to suppress.
The district court concluded the scope of the traffic stop was not impermissibly
expanded when Rodriguez-Hernandez was instructed to speak with Border Patrol
about her immigration status. Nevertheless, the court held the Border patrol
conversation was custodial, and thus, the conversation should have been preceded by

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Miranda warnings. Since no warning was given, the district court concluded
Rodriguez-Hernandez’s admission to the border patrol agent was not admissible, a
conclusion the Government does not challenge on appeal. The district court held
Rodriguez-Hernandez’s post-Miranda warning admission to the INS agent was
voluntary and admissible, however, under Oregon v. Elstad, 470 U.S. 298, 309
(1985).

       On appeal, Rodriguez-Hernandez contends her initial questioning, arrest, and
detention was not supported by reasonable suspicion or probable cause, and her
admission to the INS agent was “fruit of the poisonous tree.” In considering the
partial denial of Rodriguez-Hernandez’s motion to suppress, we review the district
court’s factual findings for clear error and review de novo the court’s legal
conclusions based on those facts. United States v. Rodriguez-Arreola, 270 F.3d 611,
615 (8th Cir. 2001). We must affirm an order denying a motion to suppress unless the
decision is unsupported by substantial evidence, is based on an erroneous view of the
applicable law, or in light of the entire record, we are left with a firm and definite
conviction that a mistake has been made. Id.

      There is no question that the initial traffic stop in this case was valid. Thus,
Deputy Decker could ask the driver and passengers to produce identification. Despite
Rodriguez-Hernandez’s response that she spoke no English, Deputy Decker did not
ask her about her alienage or immigration status. Instead, the deputy asked Ayon,
who first told him Rodriguez-Hernandez was here illegally, and then that she had a
work permit. Although the deputy’s question to Ayon about Rodriguez-Hernandez’s
alienage may have been outside the scope of the traffic stop, Rodriguez-Hernandez
has no legitimate expectation of privacy in Ayon’s knowledge that she was illegally
present in the United States. Id. at 616 & n.11. Thus, she cannot contest Ayon’s
statements and lacks standing to assert any Fourth Amendment violation. Id. at 616.
Given Ayon’s statement that Rodriguez-Hernandez was not legally present in this
country, Deputy Decker had reasonable suspicion to inquire into her alienage. Id. at

                                         -4-
617. He could detain her “to ask ‘a moderate number of questions to determine [her]
identity and to try to obtain information confirming or dispelling [his] suspicions.’”
Id. Having Rodriguez-Hernandez speak with Border Patrol was within the scope of
the investigatory detention aimed at confirming or dispelling what Ayon had told
Deputy Decker. See id.

       Although Rodriguez-Hernandez did not receive a Miranda warning before
giving her incriminatory statement to border patrol, her later admission to the INS
agent should not be suppressed merely because it was the fruit of an earlier Miranda
violation. Elstad, 470 U.S. at 309; United States v. Villalba-Alvarado, 345 F.3d
1007, 1010, 1013 (8th Cir. 2003). Instead, Rodriguez-Hernandez’s post-Miranda
warning statement to the INS agent need only be suppressed if it was involuntary.
Elstad, 470 U.S. at 309; Villalba-Alvarado, 345 F.3d at 1010, 1013. Contrary to
Rodriguez-Hernandez’s assertion, the Supreme Court did not undermine the Elstad
rule in a more recent decision, Dickerson v. United States, 530 U.S. 428, 444 (2000)
(stating Miranda protections were constitutionally required). As we noted in
Villalba-Alvarado, the Court’s decision in Dickerson “reaffirm[ed] the validity of
Elstad by reaffirming the distinction between application of the exclusionary rule
following Fourth and Fifth Amendment violations.” 345 F.3d at 1012. Other circuits
have adopted a similar view of Dickerson’s impact on Elstad. Id. (citing cases). Of
course, we are bound by our earlier recognitions of Elstad’s ongoing validity. Id.;
Fellers, 285 F.3d at 724.

       We review de novo the district court’s conclusion that Rodriguez-Hernandez
voluntarily confessed to the INS agent. United States v. Fellers, 285 F.3d 721, 724
(8th Cir. 2002), cert. granted, 123 S. Ct. 1480 (2003). To decide the voluntariness of
a confession, we examine the totality of the circumstances to determine whether
“‘pressures exerted by the authorities overwhelmed the defendant’s will. Coercive
police activity is a necessary predicate to finding that a confession is not voluntary
in the constitutional sense.’” Id. (quoting United States v. Robinson, 20 F.3d 320,

                                         -5-
322 (8th Cir. 1994)). The district court found there was no evidence the INS agent
used coercive tactics to obtain Rodriguez-Hernandez’s Mirandized statements more
than six hours after her statements to Border Patrol. Having carefully reviewed the
record, we agree. Because Rodriguez-Hernandez’s statements to the INS agent were
voluntary, they were admissible against her.

     Accordingly, we affirm the district court’s partial denial of Rodriguez-
Hernandez’s motion to suppress.

                      ______________________________




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