                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                     PUBLISH                       May 27, 2015
                                                               Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                  Clerk of Court

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 14-3162
 v.

 ANTONIO ESQUIVEL-RIOS,

       Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. No. 5:10-CR-40060-JAR-1)


Michael M. Jackson, Topeka, Kansas, for Defendant - Appellant.

James A. Brown, Assistant United States Attorney (and Barry R. Grissom, United
States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff - Appellee.


Before BRISCOE, Chief Circuit Judge, SEYMOUR, and KELLY, Circuit
Judges.


KELLY, Circuit Judge.


      Defendant-Appellant Antonio Esquivel-Rios appeals from the district

court’s order denying his motion to suppress evidence. In Mr. Esquivel-Rios’s

first direct appeal, we concluded that the record lacked the quantity and quality of
information necessary for us to determine whether Mr. Esquivel-Rios’s Fourth

Amendment rights had been violated. United States v. Esquivel-Rios, 725 F.3d

1231, 1236–39 (10th Cir. 2013). We remanded to allow the district court to

reconsider its Fourth Amendment ruling in light of our discussion. With the

benefit of additional evidence and briefing, the district court concluded that Mr.

Esquivel-Rios’s Fourth Amendment rights had indeed been violated but that

suppression was not appropriate given the lack of police culpability. United

States v. Esquivel-Rios, 39 F. Supp. 3d 1175 (D. Kan. 2014). Accordingly, the

district court denied Mr. Esquivel-Rios’s motion to suppress for a second time.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.



                                    Background

      We presented the facts giving rise to this criminal prosecution in the prior

appeal:

      Our case began when Kansas Trooper Andrew Dean, a regular before
      this court, sat watching traffic along I-70. At some point, a minivan
      caught his eye. There was nothing special about the minivan except
      maybe the fact it bore a Colorado temporary 30-day registration tag.
      But even that didn’t suggest anything amiss: the tag looked genuine
      enough, it was displayed in the right place, its expiration date hadn’t
      yet passed. All the same, Trooper Dean decided to verify the tag
      with a law enforcement database. He called in the tag number to a
      dispatcher who soon replied “that’s a negatory on record, not
      returning.” Because of—and only because of—the dispatcher’s “no
      return” report, Trooper Dean turned on his lights and stopped the
      minivan. After a brief discussion, the trooper sought and received
      permission to conduct a search, one that eventually yielded a secret


                                        -2-
      compartment containing over a pound of methamphetamine.

Esquivel-Rios, 725 F.3d at 1234–35.

      During the initial proceedings before the district court, Mr. Esquivel-Rios

sought to suppress all evidence obtained as a result of the vehicle search. He

argued that the traffic stop violated his Fourth Amendment rights because the

trooper lacked reasonable suspicion of any criminal wrongdoing. Because the

trooper stopped him solely because of the database’s “no return” report, Mr.

Esquivel-Rios argued, he lacked particularized and objective information to

establish reasonable suspicion.

      The district court disagreed, however, and denied Mr. Esquivel-Rios’s

motion to suppress. It concluded that the dispatcher’s report, which indicated that

no information could be obtained regarding the vehicle’s registration, gave the

trooper reason to suspect criminal activity. Later, Mr. Esquivel-Rios was found

guilty of possessing methamphetamine with intent to distribute, 21 U.S.C.

§ 841(a)(1). Asserting various grounds for relief, Mr. Esquivel-Rios challenged

his conviction in this court.

      Much of this court’s first opinion was devoted to a single issue raised by

Mr. Esquivel-Rios on appeal: the interplay between database reliability and the

existence of reasonable suspicion. We began by noting that the district court’s

reasonable suspicion determination was supported, at least superficially, by our

Fourth Amendment cases. “This court and others have regularly upheld traffic


                                        -3-
stops based on information that the defendant’s vehicle’s registration failed to

appear in a law enforcement database . . . .” Esquivel-Rios, 725 F.3d at 1235

(citing United States v. Cortez-Galaviz, 495 F.3d 1203, 1205–06 (10th Cir. 2007);

United States v. Garcia-Ballesteros, 74 F.3d 1250, 1996 WL 3920, at *1 (10th

Cir. 1996) (unpublished table decision)). The logic of those traffic stop cases is

quite simple. Most, if not all, states have laws requiring motor vehicle owners

and operators to register their vehicles with a state agency before operating those

vehicles on public roads. The state agency then maintains the registration

information in a database, which is often accessible to law enforcement. Thus,

“[w]hen a law enforcement database yields no information about a registration

tag, . . . that raises a non-trivial possibility the tag wasn’t lawfully issued in the

first place but falsified in some way.” Id. That non-trivial possibility, we have

held, can amount to reasonable suspicion.

      We also concluded in the first appeal that those cases were not dispositive

of Mr. Esquivel-Rios’s Fourth Amendment challenge. The presence of an

additional, complicating fact that we had not before contemplated made Mr.

Esquivel-Rios’s case worthy of deeper consideration. See id. (“This court and

others have regularly upheld traffic stops based on information that the

defendant’s vehicle’s registration failed to appear in a law enforcement

database—at least when the record suggested no reason to worry about the

database’s reliability.”) (emphasis added). Here, there was evidence “suggesting


                                           -4-
that the database on which the officer relied to justify his stop might bear a real

problem—a problem that might mean a ‘no return’ doesn’t suggest criminal

conduct but only some bureaucratic snafu.” Id. After dispatcher Derek Lathan

informed the trooper that the temporary tag at issue was “negatory on the record,

not returning,” the trooper acknowledged the report, but then sought clarification.

He asked, “Was that not on file or just no return?” Lathan responded, “Colorado

temp tags usually don’t return.” 4 R. 3. This string of communications, including

Lathan’s critical statement that Colorado temporary tags “usually don’t return,”

transpired before the stop was initiated.

      We had previously left open the possibility that a demonstration of database

unreliability “might well form a persuasive basis for a suppression motion,”

Cortez-Galaviz, 495 F.3d at 1209, and thus found significant that the record here

might support such a demonstration. We concluded that the district court’s

decision to deny Mr. Esquivel-Rios’s motion for suppression was problematic in

light of this evidence, primarily for two reasons.

      Our primary concern was that the record did not provide much information

about the database on which the trooper relied. Instead, we knew only that the

“no return” report served as the sole justification for the traffic stop. Without

more information bearing on the database’s reliability, we said it would be

difficult (if not impossible) to determine whether this single report could

constitute particularized evidence of criminal activity. Esquivel-Rios, 725 F.3d at


                                            -5-
1236. Most important, we emphasized how the reliability question informs the

overall reasonable suspicion analysis. Using a hypothetical example to

demonstrate this point, we imagined a circumstance where a “no return” report

was more likely to indicate innocuous behavior than criminal activity—for

example, where “officials systematically decline to place information about

Colorado temporary tags into the database because of their fleeting 30-day life

span.” Id. Under those circumstances, we expressed doubt that a “no return”

report, without more, could support a finding of reasonable suspicion. We stated:

      So if legitimate Colorado temporary tags are almost never placed in
      the database and if forged temporary tags account for an even smaller
      percentage of the population of temporary tags—both plausible
      possibilities—getting a “no return” result may tell a reasonable
      officer next to nothing: virtually every query would yield the same
      “no return” message whether the tag is legitimate or not. And it is
      hard to imagine how a “no return” report in those circumstances
      could form a “particularized” basis to suspect wrongdoing. What
      goes into the database will much affect the reasonableness of a
      search relying on it: garbage in, garbage out.

Id. at 1237.

      We further expressed concern that the district court “failed to engage with

evidence seeming to call the database into question.” Id. at 1238. In our view,

the district court erred by “treat[ing] this case as just another one where the

database wasn’t challenged.” Id. at 1237. We noted that the district court’s

orders denying Mr. Esquivel-Rios’s motions to suppress and for a new trial

seemingly overlooked the significance of Lathan’s comment that Colorado



                                         -6-
temporary tags “usually don’t return.” In addition, we noted that the district

court’s conclusion rested, at least in part, on misconstrued aspects of the trooper’s

testimony. Id. at 1238.

      There were simply too many unanswered questions and too many record

ambiguities concerning the database reliability issue for the district court to

conclude that no Fourth Amendment violation had occurred. We therefore

remanded for further proceedings. In the interests of judicial economy, we

recommended that the district court consider not only the Fourth Amendment

question but also the question of remedy. Id. at 1239.

      On remand, the district court conducted an evidentiary hearing, where it

heard testimony from Trooper Dean, dispatcher Lathan, Colorado Bureau of

Investigation (CBI) employee Sydney Profancik, and Colorado Department of

Motor Vehicles (CDMV) investigator James Kautz. In addition, the court

received documentary evidence in the form of written responses from both CBI

and the Colorado Department of Revenue (CDOR or Department of Revenue).

Esquivel-Rios, 39 F. Supp. 3d at 1179. The following was established through

the testimony and exhibits adduced at the evidentiary hearing.

      At the time Mr. Esquivel-Rios was pulled over in 2010, Colorado

temporary tag information was not available in the Colorado Crime Information

Center (CCIC), the database designated to interface with state and federal law

enforcement agencies. At that time, all Colorado temporary tag information was


                                         -7-
maintained by the Department of Revenue. The CCIC database, however, was not

maintained by either CDOR or CDMV; rather, it was maintained by CBI, and CBI

did not receive temporary tag information from CDOR in 2010. 3 R. 539–40,

559. Thus, due to this lack of information-sharing, a CCIC query for Colorado

temporary tag information in 2010 would have been futile. Id. at 540, 564. The

only way to obtain this information, witnesses testified, was by placing a phone

call or sending an administrative message to CDOR. Id. at 540, 561. It was only

in 2012, long after Mr. Esquivel-Rios had been arrested and charged, did this

practice change. By the spring or early summer of 2012, the CCIC database was

loaded with temporary tag information provided by CDOR, id. at 559; see id. at

540; even then, the temporary tag information loaded into the database pertained

only to tags issued in December 2011 or later. 4 R. 7–8.

      The testimony at the evidentiary hearing established that a CCIC query for

a vehicle’s registration information can yield one of three results: (1) the

requested information is produced; (2) no record / not on file; or (3) an error

report resulting from “invalid information.” Id. at 545. A database query in 2010

for a Colorado temporary tag would have yielded the second possibility, “not on

file,” which indicated that the relevant information “has not been put into the

system yet, or . . . there is no record available for that tag.” Id. at 546. “No

return,” which was Lathan’s report to the trooper, is not one of the possible

results. Id. at 547, 566. Notably, the database provides no warning or


                                          -8-
notification to end-users that it does not contain the requested information—it

simply provides a “not on file” response. Id. at 540–41, 552.

      After the trooper radioed in his request to dispatch, Lathan queried his

computer system for the vehicle’s registration and VIN. His system reported, as

to both the registration and the VIN, that the information was “not on file” based

on a “response from DMV.” 4 R. 52–53. With these results, Lathan reported

back to the trooper that the information was “negatory on the record, not

returning.” Although Lathan reported to the trooper that the information was not

returning, both Lathan and the trooper testified that “not on file” and “not

returning” were functional equivalents—neither would allow an officer to verify a

vehicle’s registration status. 3 R. 573, 597–98, 601.

      Lathan and the trooper testified that they had never been specifically

advised, through training or otherwise, that Colorado’s database lacked

registration information for temporary tags. Id. at 570, 584, 601, 608. In general,

this is something law enforcement personnel would have learned only through

experience. Id. at 561–62. In Lathan’s experience, electronic queries for

Colorado temporary tags were unsuccessful; thus, he testified that, when he ran

this particular query, he suspected it would not produce the requested

information. Id. at 571–72. The trooper testified, however, that at the time he

conducted the stop, he did not believe the database was unreliable. Id. at 602,

608, 617. While he recalled a number of occasions where information pertaining


                                        -9-
to temporary tags was not available, he did not believe such information was

categorically unavailable. Id. at 601–02, 608, 621. To the contrary, the trooper

testified that he thought registration information for Colorado temporary tags had

previously been available upon request. Id. at 602.

      According to the trooper’s testimony, it is part of his agency’s mission to

determine whether vehicles traveling on Kansas roads were validly registered,

which, in turn, requires him to investigate potential automobile thefts and forged

or altered registrations. Id. at 599–601. He testified that Lathan’s report raised

his suspicions in light of his investigatory experience, and that he believed he

could only determine whether the vehicle was validly registered by conducting a

traffic stop. Id. at 599. This was something the trooper had done on numerous

prior occasions. Id. at 602–03.

      Because the CCIC database did not contain any Colorado temporary tag

information in 2010, the database’s report told “a reasonable officer next to

nothing” about the legality of the vehicle’s operation. Esquivel-Rios, 725 F.3d at

1237. Thus, hewing closely to this court’s guidance from the first direct appeal,

the district court found that it had “no choice but to conclude that the ‘negatory

on record, not returning’ report . . . did not qualify as particularized evidence that

the vehicle was not properly registered.” Esquivel-Rios, 39 F. Supp. 3d at 1185.

The district court therefore found that the trooper’s traffic stop violated the

Fourth Amendment. Despite the constitutional violation, however, the district


                                         - 10 -
court found that no basis existed to apply the exclusionary rule. In the court’s

view, “the evidence show[ed] that Trooper Dean reasonably, but mistakenly

believed that the report from dispatch indicated that criminal activity might be

afoot, and that he had reasonable suspicion to stop Defendant’s vehicle.” Id. at

1188. Additionally, the court found no evidence to support Mr. Esquivel-Rios’s

argument that CBI’s maintenance of the CCIC database amounted to “systemic

negligence,” warranting exclusion. Finding no police culpability or systemic

negligence to deter, the district court concluded that “the benefits of deterrence in

this case do not outweigh its heavy cost.” Id. at 1189.



                                     Discussion

      On appeal, the government has abandoned any argument that the “no

return” report constituted particularized and objective evidence sufficient to

support a finding of reasonable suspicion. Instead, the government contends that

the trooper’s reasonable but mistaken beliefs were constitutionally sufficient to

furnish grounds for an investigatory detention. 1 Aplee. Br. 22–23, 31. In the

      1
         We note that the government’s position on appeal varies somewhat from
what it argued in the district court. After the remand hearing, the government
argued that reasonable suspicion existed because CDOR maintained a database of
temporary tags and therefore the “not on file” response raised reasonable
suspicion of criminal activity. 1 R. 285. This theory was rejected by the district
court. Esquivel-Rios, 39 F. Supp. 3d at 1184–85.
       As part of its good faith argument, however, the government contended that
Trooper Dean could have reasonably, but mistakenly, believed that the “not on
file” response furnished reasonable suspicion. 1 R. 287–88 (citing United States

                                        - 11 -
alternative, the government contends that even if a Fourth Amendment violation

did occur, the exclusionary rule should not apply because there is no police

misconduct to deter. It contends that the deterrence rationale is further undercut

in this case because any alleged systemic negligence has been remedied—the

Colorado database now contains registration information for temporary tags. We

agree that exclusion is not an appropriate remedy and, therefore, decline to

address the government’s “reasonable but mistaken” belief argument.

A.    The Exclusionary Rule and the Good Faith Exception

      The exclusionary rule bars the prosecution from using, in its case-in-chief,

evidence obtained in violation of the Fourth Amendment. Herring v. United

States, 555 U.S. 135, 139 (2009). Whether the rule applies in any given case,

however, is context-dependent. In other words, “suppression is not an automatic

consequence of a Fourth Amendment violation.” Id. at 137; Hudson v. Michigan,

547 U.S. 586, 591 (2006).



v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996)). The district court adopted part
of this argument in portions of its remedy discussion, noting the trooper’s lack of
culpability. Esquivel-Rios, 39 F. Supp. 3d at 1186. Now, the government has
advanced the “reasonable but mistaken belief” argument in support of the
threshold question—whether the Fourth Amendment was violated in the first
instance—rather than in support of the remedial question.
       Of course, application of the exclusionary rule is “an issue separate from
the question whether the Fourth Amendment rights of the party seeking to invoke
the rule were violated by police conduct.” Arizona v. Evans, 514 U.S. 1, 10
(1995) (citations omitted). We question whether the government adequately
preserved its argument that a reasonable but mistaken belief furnishes reasonable
suspicion in this case.

                                       - 12 -
      Our analysis is guided by several well-established principles. First, the

primary object of the exclusionary rule is deterring future Fourth Amendment

violations. Evans, 514 U.S. at 10; United States v. Leon, 468 U.S. 897, 908–10

(1984). The Court has stated that suppression is justified only if it will result in

“appreciable deterrence.” United States v. Janis, 428 U.S. 433, 454 (1976).

      Second, “if exclusion of evidence . . . is to have any deterrent effect . . . it

must alter the behavior of individual law enforcement officers or the policies of

their departments.” Leon, 468 U.S. at 918. Thus, determining whether exclusion

will further the deterrence rationale requires an assessment of the police

misconduct. Id. at 911; see also Evans, 514 U.S. at 14–16. Traditionally,

exclusion was reserved for willful violations of Fourth Amendment rights. Leon,

468 U.S. at 919 (“If the purpose of the exclusionary rule is to deter unlawful

police conduct, then evidence . . . should be suppressed only if it can be said that

the law enforcement officer had knowledge, or may properly be charged with

knowledge, that the search was unconstitutional under the Fourth Amendment.”)

(quoting United States v. Peltier, 422 U.S. 531, 542 (1975)). In Leon, the Court

held that the exclusionary rule does not apply in cases where “the offending

officers acted in the objectively reasonable belief that their conduct did not

violate the Fourth Amendment.” Id. at 918. Adopting the so-called “good faith

exception” to the exclusionary rule, the Court found that exclusion “cannot be

expected, and should not be applied, to deter objectively reasonable law


                                         - 13 -
enforcement activity.” Id. at 919. Recent “good faith” cases have reiterated that

exclusion is proper only where the conduct at issue is both sufficiently deliberate

and culpable. Herring, 555 U.S. at 144; Evans, 514 U.S. at 13–15. As the

Herring Court summarized, “the exclusionary rule serves to deter deliberate,

reckless, or grossly negligent conduct, or in some circumstances recurring or

systemic negligence.” 555 U.S. at 144.

      Third, courts must balance the benefits of deterrence against the costs of

excluding reliable evidence. Id. at 141; Leon, 468 U.S. at 906–07. “[T]o the

extent that application of the exclusionary rule could provide some incremental

deterrent, that possible benefit must be weighed against the substantial social

costs exacted by the exclusionary rule.” Illinois v. Krull, 480 U.S. 340, 352–53

(1987) (internal quotations omitted). The Court has described the appropriate

balance, stating that the “police conduct must be sufficiently deliberate that

exclusion can meaningfully deter it, and sufficiently culpable that such deterrence

is worth the price paid by the justice system.” Herring, 555 U.S. at 144.

      Finally, and related to the second principle discussed above, the Court has

imposed an important limit on law enforcement’s ability to invoke the good faith

exception. Leon made clear that the “benefits produced by suppressing evidence

obtained in objectively reasonable reliance on a subsequently invalidated search

warrant” are “marginal or nonexistent,” and are therefore outweighed by the costs

of exclusion. 468 U.S. at 922. But in other cases, where law enforcement’s


                                        - 14 -
reliance is not “objectively reasonable,” exclusion remains an appropriate remedy.

Id. at 922–23. A number of recent Supreme Court cases have discussed this

“objectively reasonable” requirement in the context of police officers relying on

law enforcement databases.

      In both Herring and Evans, defendants were detained after electronic

warrant databases reported to law enforcement that there were outstanding

warrants for their arrest. Herring, 555 U.S. at 137; Evans, 514 U.S. at 4. In both

cases, however, the databases provided outdated information; Herring’s warrant

had been recalled, 555 U.S. at 138, and Evans’ warrant had been quashed, 514

U.S. at 4. Notwithstanding the constitutional violations, the Supreme Court

declined to suppress the evidence, finding that the officers’ reliance on the

warrant databases was objectively reasonable. In a concurring opinion in Evans,

Justice O’Connor cautioned that blind reliance on (potentially unreliable) law

enforcement databases might be unreasonable, precluding claims of good faith.

“Surely it would not be reasonable for the police to rely, say, on a recordkeeping

system, their own or some other agency’s, that has no mechanism to ensure its

accuracy over time and that routinely leads to false arrests.” 514 U.S. at 17

(O’Connor, J., concurring). Later, in Herring, Justice Ginsburg’s dissenting

opinion echoed similar concerns, arguing that application of the exclusionary rule

incentivizes law enforcement agencies to maintain their databases with utmost

diligence. 555 U.S. at 153–57 (Ginsburg, J., dissenting). Responding to those


                                        - 15 -
concerns, the Herring majority conceded that, in a different case, if “systemic

errors [in maintaining a database] were demonstrated, it might be reckless for

officers to rely on an unreliable warrant system.” Id. at 146. Thus, “[i]f the

police have been shown to be reckless in maintaining a warrant system, or to have

knowingly made false entries to lay the groundwork for future false arrests,

exclusion would certainly be justified under our cases should such misconduct

cause a Fourth Amendment violation.” Id.

B.    Analysis

      With these principles guiding our analysis, we turn to the case at bar. We

review the district court’s decision to apply the good faith exception to the

exclusionary rule de novo. United States v. Johnson, 408 F.3d 1313, 1320 (10th

Cir. 2005). Resolution of this case turns on our answers to two important

questions. We note at the outset that, for purposes of this dual inquiry, we are

assuming, but not deciding, that there was a constitutional violation. Cf. Herring,

555 U.S. at 139. With that assumption in hand, we first ask whether the trooper’s

conduct was deliberate, reckless, or grossly negligent, such that similar conduct

could and should be deterred through exclusion. Second, we ask whether any

such constitutional violation was the product of recurring or systemic negligence.

On the facts of this case, we answer both of these questions in the negative.

      We turn first to an assessment of the trooper’s individual conduct. In Mr.

Esquivel-Rios’s view, the district court erroneously concluded “a reasonable


                                        - 16 -
officer in Dean’s position could reasonably assume that Colorado maintained a

record of temporary tags in a database available to law enforcement.” Aplt. Br.

27 (quoting Esquivel-Rios, 39 F. Supp. 3d at 1188). He contends that, given both

the trooper’s previous experience with temporary tags and Lathan’s statement, it

constituted gross negligence to rely on a “no return” report as the foundation for a

reasonable suspicion determination. We disagree that the trooper’s conduct rises

to a level of culpability warranting exclusion.

      In our view, Lathan’s statement is the only complicating factor in an

otherwise straight-forward case. Absent that statement, the record reflects only a

Kansas State Trooper with no first-hand knowledge of how the relevant Colorado

database works, who believes the database is reliable, and who mistakenly recalls

obtaining registration information for Colorado temporary tags in the past. As the

district court noted, there was no evidence to suggest the trooper intentionally

remained unaware of how Colorado maintained registration information for

temporary tags, and he had received no training about the type of information that

is or is not entered into the Colorado database. Morever, we note that, at the time

of the stop, at least one Tenth Circuit case had found reasonable suspicion based

on similar reports. See, e.g., Cortez-Galaviz, 495 F.3d 1203; Garcia-Ballesteros,

74 F.3d 1250; cf. Davis v. United States, 131 S. Ct. 2419 (2011).

      The fact of Lathan’s statement, however, complicates matters somewhat.

We are left to consider whether the content and nature of that statement renders


                                        - 17 -
the trooper’s reliance on the database objectively unreasonable. For several

reasons we decline to hold that this statement, standing alone, renders that

reliance objectively unreasonable. For starters, we agree with the district court

that Lathan’s comment was both equivocal and anecdotal. Reporting that certain

information “usually” does not return is much different than stating certain

information is categorically unavailable. For that matter, Lathan did not know

why temporary tag information “usually” did not return. In fact, the results

Lathan received contained some indicia of reliability—they were “response[s]

from DMV.” 4 R. 52–53.

      All that aside, we simply cannot conclude that the trooper’s conduct was

“sufficiently culpable that such deterrence is worth the price paid by the justice

system.” Herring, 555 U.S. at 144. “We have never suggested that the

exclusionary rule must apply in every circumstance in which it might provide

marginal deterrence.” Id. at 141 (citation omitted). Here, Lathan’s statement,

made in response to Trooper Dean’s request for clarification, would not have put

a reasonable officer on notice that the entire database was unreliable. Without

such notice, there is no misconduct to deter; there is only objectively reasonable

law enforcement activity. It might be a different case if we were considering a

Colorado law enforcement officer’s reliance on a CCIC database report; record

evidence suggests that Colorado law enforcement personnel were aware that the

CCIC database did not contain temporary tag registration information. But such


                                        - 18 -
facts are not before us.

      Turning to the issue of recurring or systemic negligence, Mr. Esquivel-Rios

urges this court to focus on the conduct of CBI, as operators of the database that

led to the assumed constitutional violation. He argues that CBI knowingly “laid

the groundwork for future false arrests,” Aplt. Br. 18, and did so in violation of

both Colorado law and a Federal Bureau of Investigation mandate, id. at 19.

      We reject the argument that any Fourth Amendment violation was the result

of recurring or systemic negligence on behalf of CBI. Mindful of the Supreme

Court’s caution concerning databases rife with systemic errors, we read those

cautionary statements as admonishments to law enforcement to avoid boot-

strapping. But even if those statements could be or should be interpreted more

broadly, they cannot fairly be interpreted to mean that every law enforcement

agency using something less than an all-encompassing database is systemically

negligent. Of course, the creation and maintenance of comprehensive law

enforcement databases implicates policy decisions, including decisions about

resource and personnel allocation, as well as interagency information-sharing.

While we would not sanction a law enforcement regime that routinely leads to

false arrests due to grossly mismanaged databases, we decline to find gross

mismanagement where one agency (CDOR) has the information that another

agency (CBI) needs to maintain a complete database. As the district court

correctly noted, there is no evidence that CBI negligently failed to update its


                                        - 19 -
database or routinely made record-keeping errors—it simply did not have the

information it needed.

      We also find unpersuasive Mr. Esquivel-Rios’ argument that CBI’s

operation of the CCIC database ran afoul of an FBI mandate and Colorado statute.

First, he provides no support for his argument concerning a federal mandate.

Second, the Colorado statute he relies on, Colo. Rev. Stat. § 24-33.5-412(1)(c.5),

permits but does not require CBI to “maintain a computerized data file of motor

vehicle information.” Further, that provision refers to “motor vehicle information

received from the department of revenue.” Id. (emphasis added). It is undisputed

here that CBI did not receive from CDOR information pertaining to temporary

tags until 2012. Finally, Mr. Esquivel-Rio’s assertion that CBI “instructed” the

database to provide “not on file” responses in order to lay the groundwork for

future false arrests is entirely speculative.

      Here, a law enforcement officer of one state relied on the law enforcement

database of another state. The record does not support a finding that his reliance

was reckless, grossly negligent, or otherwise objectively unreasonable. It also

does not support a finding that the Colorado Bureau of Investigation, by failing to

obtain and report temporary tag information in its database in 2010, negligently

maintained a database it knew was leading to unconstitutional detentions.

Accordingly, exclusion is not warranted.

      The judgment of the district court is AFFIRMED.


                                          - 20 -
