                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          FEB 8 2002
                   UNITED STATES COURT OF APPEALS

                          FOR THE TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

 v.                                                     No. 01-2149
                                                 (D.C. No. CR-00-1590-LH)
 APOLONIO ALVAREZ-BECERRA,                               (D. N.M.)

      Defendant - Appellant.




                          ORDER AND JUDGMENT            *




Before BRISCOE , ALARCÓN , ** and ANDERSON, Circuit Judges.


      Apolonio Alvarez-Becerra appeals from the denial of his motion to

suppress evidence obtained as a result of a traffic stop. He seeks reversal of the

judgment of conviction on the ground that the district court erred in concluding as


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         The Honorable Arthur L. Alarcón, Senior United States Circuit Judge for
the Ninth Circuit, sitting by designation.
a matter of law that evidence of a defendant’s name and identity is not

suppressible in a criminal proceeding even if it was obtained in violation of the

Fourth Amendment. After independently reviewing the record, we affirm without

resolving this legal question because it is undisputed that Alvarez-Becerra was

detained because he was driving a vehicle with a cracked windshield.

                                           I

      On December 26, 1999, Officer Gary Reed of the Albuquerque Police

Department stopped Alvarez-Becerra because of a crack in the windshield of the

blue Ford Probe he was driving. The officer asked Alvarez-Becerra his name and

birth date. When Alvarez-Becerra first responded,   he stated that his name was

Alfonso Alvarez . When Officer Reed asked him to disclose his birth date,

Alvarez-Becerra hesitated, and then stated he was born on July 27, 1958. Officer

Reed told Alvarez-Becerra to stop lying and tell the truth. Alvarez-Becerra then

told the officer his true name and birth date. Based on that information, the

officer conducted a computer check through the National Crime Information

Center. The computer check revealed that Alvarez-Becerra was a previously

deported alien who had a detainer placed on him by the Immigration and

Naturalization Service because of a felony conviction in Arizona. Officer Reed

arrested Alvarez-Becerra for concealing his identity. Alvarez-Becerra was

subsequently indicted for re-entering the United States as a deported alien


                                          -2-
previously convicted of an aggravated felony in violation of   8 U.S.C.

§ 1326(a)(1) & (2) and § 1326(b)(2).   1



      On January 12, 2001, Alvarez-Becerra filed a motion to suppress all

information obtained as a result of the stop and detention. In setting forth the

factual background of the stop, Alvarez-Becerra admitted that “[t]he automobile

driven by defendant had a cracked windshield.” In support of the suppression

motion, Alvarez-Becerra argued that Officer Reed did not have reasonable

suspicion to stop and detain him for violation of state or local traffic laws because

the crack in his windshield did not impair his vision.

      In its response to the suppression motion, the Government asserted that

Officer Reed had reasonable, articulable suspicion to stop and detain Alvarez-


      1
        8 U.S.C. § 1326 provides in relevant part:
      (a) . . . any alien who–
      (1) has been denied admission, excluded, deported, or removed or
      has departed the United States while an order of exclusion,
      deportation, or removal is outstanding, and thereafter
      (2) enters, attempts to enter, or is at any time found in the United
      States . . . shall be fined under Title 18, or imprisoned not more than
      2 years, or both.
      (b) Criminal penalties for reentry of certain removed aliens
      Notwithstanding subsection (a) of this section, in the case of any
      alien described in such subsection–
      ...
      (2) whose removal was subsequent to a conviction for commission of
      an aggravated felony, such alien shall be fined under such Title,
      imprisoned not more than 20 years, or both;
      ...
8 U.S.C. § 1326 (1999).

                                           -3-
Becerra because he was driving a vehicle with a cracked windshield in violation

of state and local traffic laws.   See N.M. Stat. Ann. § 66-3-846 (Michie 1978);

Albuquerque, N.M., Code Ordinances § 8-6-7 (2001) (effective 1974).

Alternatively, the Government contended that “even if the stop of defendant’s

vehicle is found to be invalid, neither defendant’s identity nor Immigration and

Naturalization Service files are suppressible.”

       At the outset of the suppression hearing, the district court judge stated, “I

will assume for the purposes of this motion that you are correct in your position

that it was an illegal stop.” The Government informed the court that it would not

concede that the traffic stop was illegal and argued that “the Court needs factual

testimony before making the determination as to whether or not the stop in this

case was legal.” The court informed counsel that presentation of evidence that

would support the legality of the stop was unnecessary “for the decision in this

case.” Neither side presented any evidence. The court made no factual findings.

Instead, the court concluded as a matter of law that a defendant’s identity is not

suppressible in a criminal proceeding.




                                            II




                                            -4-
       In his opening statement, defense counsel informed the jury that Officer

Reed detained Alvarez-Becerra because his vehicle had a cracked windshield.

Officer Reed was called as a witness at trial. He testified that he detained

Alvarez-Becerra because he was driving a vehicle that had a “significant crack” in

the windshield.

       The jury found Alvarez-Becerra guilty as charged. He was sentenced to

serve 100 months in person, two years of supervised release, and a $100.00

special penalty assessment.

                                            III

       This action arises under 8 U.S.C. § 1326. The district court had

jurisdiction over the action pursuant to 18 U.S.C. § 3231. We have jurisdiction

over Alvarez-Becerra’s timely appeal from the final judgment pursuant to

28 U.S.C. § 1291.

                                            IV

       Alvarez-Becerra contends that the district court erred as a matter of law in

ruling that illegally-obtained evidence of a defendant’s identity may not be

suppressed in a criminal prosecution. On appeal from a motion to suppress, we

review a district court’s conclusions on questions of law   de novo . United States

v. Minjares-Alvarez , 264 F.3d 980, 983 (10th Cir. 2001).




                                            -5-
       The instant case arose out of a traffic stop. “A traffic stop, however brief,

constitutes a seizure within the meaning of the Fourth Amendment, and is

therefore only constitutional if it is ‘reasonable.’”   United States v. Callarman ,

273 F.3d 1284, 1286 (10th Cir. 2001) (citation omitted). “[A] traffic stop is valid

under the Fourth Amendment if the stop is based on an observed traffic violation

or if the police officer has reasonable articulable suspicion that a traffic or

equipment violation has occurred or is occurring.”      United States v. Botero-

Ospina , 71 F.3d 783, 787 (10th Cir. 1995) (en banc);     see Callarman , 273 F.3d at

1286 (quoting Botero-Ospina and holding that “[w]hile either probable cause or

reasonable suspicion is sufficient to justify a traffic stop, only the lesser

requirement of reasonable suspicion is necessary.”).

       When faced with a motion to suppress evidence obtained as an incident to a

traffic stop, the Government must present evidence to show that the traffic stop

was justified by a reasonable, articulable suspicion of illegal activity. Proof of

“the likelihood of criminal activity need not rise to the level required for probable

cause, and it falls considerably short of satisfying a preponderance of the

evidence standard.”     United States v. Arvizu , 2002 WL 46773, at *5 (U.S. Jan.

15, 2002.).

       We also review de novo whether the Government has presented sufficient

facts to demonstrate that a traffic stop was based on reasonable articulable


                                              -6-
suspicion. Callarman , 273 F.3d at 1287. “Our sole inquiry . . . is whether this

particular officer had reasonable suspicion that this particular motorist violated

‘any one of the multitude of applicable traffic and equipment regulations’ of the

jurisdiction.” Id. (citation omitted); see also Arvizu , 2002 WL 46773, at *5

(stating that reviewing courts should make reasonable-suspicion determinations

by looking at the “‘totality of the circumstances’ of each case to see whether the

detaining officer has a ‘particularized and objective basis’ for suspecting legal

wrongdoing.”) (citation omitted).

      In reviewing a district court’s denial of a motion to suppress, this court is

“not limited to considering only the evidence introduced at the suppression

hearing. This court may also consider any evidence properly presented at trial,

even though that evidence might not have been introduced at the pretrial hearing.”

United States v. Rios , 611 F.2d 1335, 1344 n.14 (10th Cir. 1979) (citing   United

States v. Smith , 527 F.2d 692, 694 (10th Cir. 1975));   see also United States v.

Corral , 970 F.2d 719, 723 (10th Cir. 1992) (stating that “[a]s a reviewing court,

we are not confined simply to the evidence adduced during the suppression

hearing. In evaluating the correctness of the district court’s rulings, the appellate

court may consider the entire record developed from the trial even though such

evidence may not have been presented during the suppression hearing.”) The

record shows that Alvarez-Becerra conceded in the motion to suppress and in his


                                           -7-
opening statement to the jury that Officer Reed stopped him because his

windshield was cracked. “Though statements in briefs or during oral argument

are not necessarily binding admissions, we may consider them as such at our

discretion.” See Towerridge, Inc. v. T.A.O., Inc.      , 111 F.3d 758, 769 (10th Cir.

1997); Guidry v. Sheet Metal Worker’s Int’l Assn., Local No. 9       , 10 F.3d 700, 716

(10th Cir. 1993) (stating that “[j]udicial admissions are formal admissions . . .

which have the effect of withdrawing a fact from issue and dispensing wholly

with the need for proof of the fact.”) (internal quotations and citation omitted).

      The record of the trial proceedings reflects that Officer Reed testified that

he detained Alvarez-Becerra because he was driving a vehicle with a cracked

windshield. Under New Mexico law, a motor vehicle with a cracked windshield

may be stopped if the officer had reasonable grounds to believe that the crack in

the windshield made the vehicle dangerous.         State v. Munoz , 965 P.2d 349, 353-

54 (N.M. Ct. App. 1998) (discussing N.M. Stat. Ann. § 66-3-801 which makes it a

misdemeanor to violate N.M. Stat. Ann. §§ 66-3-801 through 66-3-887);          see also

N.M. Stat. Ann. § 66-3-846 (Michie 1978) (stating that windshields must be

unobstructed); Albuquerque, N.M., Code Ordinances § 8-6-7 (2001) (effective

1974) (stating that it is “unlawful for any person to drive a vehicle when the

windshield . . . [is] in such defective condition as to impair the vision of the

driver.”).


                                             -8-
      Alvarez-Becerra maintains that the mere fact that he was driving a vehicle

with a cracked windshield does not demonstrate that there was a reasonable

suspicion that his vision was impaired. This Court has held that if an officer has

a “reasonable articulable suspicion” to believe that a windshield crack

substantially obstructed the defendant’s view of the street, “[i]t is irrelevant

whether the observed crack was, in fact, large enough to constitute a violation of

the law.” Callarman , 273 F.3d at 1287.

      The United States Supreme Court has instructed that “[a] determination that

reasonable suspicion exists, however, need not rule out the possibility of innocent

conduct.” Arvizu , 2002 WL 46773, at *8. We are persuaded by our independent

review of the record that Officer Reed did not detain Alvarez-Becerra illegally in

attempting to determine whether the cracked windshield impaired his vision.

Assuming arguendo that the crack in the windshield was not excessive enough to

actually impair Alvarez-Becerra’s vision of road conditions, such proof would not

demonstrate that the detention to examine it was unreasonable.

      We are free to affirm on any basis that is supported by the record.    See

Griess v. State , 841 F.2d 1042, 1047 (10th Cir. 1988) (stating that the Tenth

Circuit is “‘free to affirm a district court decision on any grounds for which there

is a record sufficient to permit conclusions of law, even grounds not relied upon

by the district court.’” (citation omitted)). Because the record shows that Officer


                                           -9-
Reed had a reasonable, articulable suspicion that Alvarez-Becerra was operating a

vehicle in violation of the law, we need not decide whether the district court ruled

correctly that his identity would not have been suppressible in this criminal

proceeding even if the stop and detention were illegal.

      AFFIRMED.

                                               Entered for the Court


                                               Arthur L. Alarcón
                                               Circuit Judge




                                        -10-
No. 01-2149, United States v. Alvarez-Becerra

BRISCOE, Circuit Judge, concurring:

      I agree that Alvarez-Becerra's conviction should be affirmed, but I would

arrive at that result by a different route. I would address the legal issue raised

rather than resolve a mixed question of law and fact in the first instance on

appeal. Here, the majority resolves for itself the question of whether the officer

had a reasonable articulable suspicion to stop Alvarez-Becerra. The majority

resolves this fact-sensitive question even though it was not addressed by the

district court and no evidence pertaining to the question was presented at the

suppression hearing.

      The majority concludes that a reasonable articulable suspicion existed

based on the purported admission of Alvarez-Becerra's counsel that the

windshield of the car was cracked and the testimony of the officer at trial that the

crack was “significant.” In my view, this reasoning is problematic for two

reasons. First, the majority's analysis rests on evidence that was not presented at

the suppression hearing. Second, the evidence now relied upon does not support

the court's conclusion with regard to the legality of the stop, i.e., the court

assumed the stop was illegal; the majority concludes here that it was legal.

      As the majority notes, when reviewing a district court's ruling on a motion

to suppress, we are not limited to considering only the evidence introduced at the

suppression hearing, but we may also consider evidence presented at trial.        See
United States v. Corral , 970 F.2d 719, 723 (10th Cir. 1992). However, we have

also held that this rule is applicable only where the trial evidence supports the

district court's decision, and that we will not consider trial evidence which

undermines the court's decision unless it is of such a nature that the court should

have immediately realized its earlier ruling was in error.     United States v. Parra , 2

F.3d 1058, 1065 (10th Cir. 1993). We have applied this rule when reviewing

rulings on motions to suppress where the district court determined the search at

issue was legal and further evidence adduced at trial buttressed the court's

determination.   See Corral , 970 F.2d at 723; United States v. Smith , 527 F.2d 692,

693-96 (10th Cir. 1975). I question its application in a case such as this where

the district court made no determination that the search was legal, but instead

assumed the search was illegal.

       Even if we look at the evidence presented at trial and treat the statements of

defense counsel as judicial admissions that the windshield was cracked, we would

still have no basis for concluding the officer had a reasonable articulable

suspicion that a crime was being committed.        See Terry v. Ohio , 392 U.S. 1, 29

(1968). The question is not whether the windshield was cracked, but the extent of

the crack. As the majority recognizes, New Mexico law allows the stop of a

motor vehicle with a cracked windshield if the officer has reasonable grounds to

believe the crack makes the vehicle dangerous to drive.       See State v. Munoz , 965


                                             -2-
P.2d 349, 352-54 (N.M. Ct. App. 1998) (“Under our interpretation of [N.M. Stat.

Ann. §] 66-3-801(A), the law is violated by driving a vehicle that is in an unsafe

condition.”) Therefore, the stop was lawful only if the officer had a reasonable

articulable suspicion that the crack in the windshield made the vehicle dangerous

to drive.

       The officer testified at trial that the crack was “significant.” This

testimony, if believed by the district court, may have allowed the court to

conclude the officer had a reasonable articulable suspicion which would justify

the stop. The problem is that the court did not hear this evidence at the

suppression hearing and made no such finding. As we did not hear the officer's

testimony, we are ill-equipped to resolve questions of credibility or weigh any

other evidence which may have been presented regarding the severity of the crack

in the windshield. At a suppression hearing, “the credibility of the witnesses and

the weight given to the evidence, as well as the inferences and conclusions drawn

therefrom, are matters for the trial judge.”         United States v. Fernandez , 18 F.3d

874, 876 (10th Cir. 1994).

       This court can affirm the district court's decision on any legal ground

supported by the record, even if that legal ground was not relied upon by the

district court.   United States v. Sandia , 188 F.3d 1215, 1217 (10th Cir. 1999). In

this case, however, we cannot conclude as a matter of law that the officer had a


                                               -3-
reasonable articulable suspicion that the cracked windshield rendered the vehicle

dangerous to drive. Rather than resolve factual issues not addressed by the

district court, I would address the issue raised by Alvarez-Becerra – whether and

to what extent his identity is subject to suppression.

      I note at the outset that it is not clear, either from the briefs or from oral

argument, whether Alvarez-Becerra seeks suppression of the fact of his identity or

simply his statement of his name to Officer Reed. If Alvarez-Becerra seeks

suppression of the fact of his identity, such that the government should have been

precluded from identifying him at trial, his contention must fail in light of the

decision in INS v. Lopez-Mendoza , 468 U.S. 1032, 1039 (1984) (“The 'body' or

identity of a defendant or respondent in a criminal or civil proceeding is never

itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an

unlawful arrest, search, or interrogation occurred.”). Although the Court's

statement was initially made in response to the jurisdictional argument that

respondent Lopez-Mendoza should not be subject to prosecution because his

arrest was illegal, the Court reiterated the statement when addressing respondent

Sandoval-Sanchez' evidentiary argument and the relative value of the

exclusionary rule in deportation proceedings.    Id. at 1043. The clear import of the

Court's statement is that the “identity” of a defendant is not itself suppressible;

that is, the mere fact that a defendant was illegally brought before the court or


                                           -4-
that his or her identity was learned as the result of an illegal search or arrest does

not mean that the government will not be allowed to prove the defendant's

identity. See id. at 1039. Both the Fifth and Ninth Circuits have read the Court's

statement to mean that the defendant's identity is not suppressible in criminal

actions. See United States v. Roque-Villanueva     , 175 F.3d 345, 346 (5th Cir.

1999); United States v. Guzman-Bruno , 27 F.3d 420, 421-22 (9th Cir. 1994).

      If Alvarez-Becerra is arguing that his statement to Officer Reed regarding

his identity should have been suppressed, we are faced with a different question.

Tangible evidence of a defendant's identity, such as statements made by defendant

or fingerprints taken from defendant during an illegal arrest or stop are subject to

suppression. See United States v. Guevara-Martinez      , 262 F.3d 751, 755-56 (8th

Cir. 2001). Thus, if the stop was illegal, as the district court assumed, Alvarez-

Becerra's statement regarding his identity would be subject to suppression.

However, suppression of Alvarez-Becerra's statement of his identity would not

have prevented the government from proving his identity by other means. Here,

the government proved his identity at trial by an INS agent's identification. Any

error by the district court in failing to suppress Alvarez-Becerra's statement of his

identity was harmless.   See United States v. Espinoza , 244 F.3d 1234, 1240 (10th

Cir. 2001) (holding a trial court's decision to admit or exclude evidence is




                                           -5-
harmless absent a substantial influence on the outcome or “grave doubt” as to

whether it had such effect).

      In the final analysis, it matters not whether Alvarez-Becerra is arguing that

the fact of his identity should have been suppressed or simply that his statement

of his identity should have been suppressed. I would affirm his conviction.




                                         -6-
