                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 30 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 98-1398
                                                            (D. Colo.)
 EDMUNDO CISNEROS-CRUZ,                              (D.Ct. No. 98-CR-44-M)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *



Before BALDOCK, BARRETT, and BRORBY, Circuit Judges.



      Defendant-Appellant Edmundo Cisneros-Cruz appeals the district court’s

decision denying in part his motion to suppress his statements and other evidence

obtained following his arrest by Immigration and Naturalization Service agents.

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.




      *
          This order and judgment is not binding precedent except under the doctrines of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.
                            FACTUAL BACKGROUND

      In August 1996, Stephen Simer, a special agent with the United States

Custom Service, participated in the surveillance and arrest of Mr. Cisneros-Cruz,

a Mexican citizen, for possession of marijuana. Following his guilty plea, a

Colorado district court sentenced Mr. Cisneros-Cruz to two years in the Colorado

Department of Corrections. However, that court suspended his sentence on the

special condition he be deported and not return illegally to the United States.

Pursuant to an order of the Immigration and Naturalization Service, Mr. Cisneros-

Cruz was deported to Mexico November 18, 1996.



      In July 1997, Special Agent Simer saw Mr. Cisneros-Cruz on a street

adjacent to a restaurant in Denver, Colorado. In January 1998, Special Agent

Simer again saw Mr. Cisneros-Cruz in an alley behind the same restaurant. As

part of another investigation involving the restaurant, Special Agent Simer

learned Mr. Cisneros-Cruz frequented and possibly stayed overnight in the

building. Based on that information and Mr. Cisneros-Cruz’s known illegal

reentry status, Ross E. Godwin, a special agent with the Immigration and

Naturalization Service, obtained an administrative arrest warrant issued by the

Immigration and Naturalization Service for the arrest of Mr. Cisneros-Cruz.




                                         -2-
      After obtaining the arrest warrant, Special Agents Godwin and Simer

entered the restaurant for the purpose of arresting Mr. Cisneros-Cruz. Because

they did not see him in the dining area, the agents proceeded to the rear of the

building to check the restrooms. They first checked a room marked “restroom.”

They next checked an unmarked, adjacent room which, based on information from

other sources, Special Agent Simer believed to be a handicapped restroom. 1 Prior

to entry, the agents knocked on the door. On hearing a voice inside, they

immediately entered the room and found Mr. Cisneros-Cruz rising from a

makeshift bed. When they asked him to identify himself, he told them he was

“Edwardo Fuentes” and provided a false green card. However, when asked if he

was Edmundo Cisneros-Cruz, he answered affirmatively. The agents then

handcuffed Mr. Cisneros-Cruz and escorted him to an adjacent room where he

waited until the agents finished interviewing the restaurant manager. The

manager confirmed Mr. Cisneros-Cruz stayed at the restaurant periodically and

showed them a sleeping bag in his office where Mr. Cisneros-Cruz also slept. 2


      1
          This room was once used as a bathroom and contained a sink and vanity, but the
toilet and shower had been removed. The manager testified he anticipated converting it
to a handicapped bathroom in the future.

      2
        Mr. Cisneros-Cruz testified he “lived”at the restaurant for approximately two
months, staying there only at night. Besides blankets and a mattress, the only personal
belongings Mr. Cisneros-Cruz had in the room included his boots, hat and trousers.


                                           -3-
      Following the interview with the manager, Special Agent Godwin assisted

in transporting Mr. Cisneros-Cruz to the Immigration and Naturalization Service

office. In route, Special Agent Godwin advised Mr. Cisneros-Cruz of his

Miranda rights, which Mr. Cisneros-Cruz stated he understood. Special Agent

Godwin then proceeded to question him about his deportation and reentry into the

United States.



      When they arrived at the Immigration and Naturalization Service office,

Special Agent Godwin served Mr. Cisneros-Cruz with the arrest warrant and

again advised him of his Miranda rights. Mr. Cisneros-Cruz waived his rights

and indicated his willingness to talk. He later executed a sworn statement

formally admitting facts relating to his alienage, criminal conviction and prior

deportation. At that time, Immigration and Naturalization Service personnel also

took his fingerprints.



                         PROCEDURAL BACKGROUND

      After his arrest, a federal grand jury indicted Mr. Cisneros-Cruz for

unlawful reentry into the United States following his deportation for an

aggravated felony. Following his arraignment, Mr. Cisneros-Cruz moved to

suppress all evidence and statements regarding his identity and criminal history,


                                         -4-
claiming his arrest violated the Fourth Amendment and that the government

subjected him to a custodial interrogation without the benefit of a Miranda

warning in violation of the Fifth and Sixth Amendments.



      At the suppression hearing, Special Agents Simer and Godwin, the

restaurant manager, and Mr. Cisneros-Cruz testified. Based on that testimony, the

district court determined the agents unreasonably concluded the second unmarked

room was a public restroom which they could access. The district court then

issued an order granting Mr. Cisneros-Cruz’s suppression motion in part, finding

he had a reasonable expectation of privacy in the room where the agents found

him and that the “warrantless” entry into the room violated his Fourth

Amendment rights. The district court held that:

      the false identification card and any other items taken from the
      defendant at the time of his arrest, as well as his statements both
      before and after the Miranda warnings, must be suppressed as fruits
      of the unlawful entry, and that the defendant’s fingerprints and any
      photographs made during the booking process must also be
      suppressed as tainted evidence.

However, the district court denied Mr. Cisneros-Cruz’s request that the

prosecution be precluded from proving his identity at trial.



      Following the court’s decision, the government filed a motion for

reconsideration arguing Mr. Cisneros-Cruz’s arrest did not violate the Fourth

                                         -5-
Amendment because the agents obtained a valid administrative arrest warrant and

actually believed the room they entered functioned as a public, handicapped

restroom. In addition, the government claimed that even if the agents violated the

Fourth Amendment by entering the room, under New York v. Harris, 495 U.S. 14

(1990), the exclusionary rule could not apply to Mr. Cisneros-Cruz’s statement

and fingerprints obtained at the Immigration and Naturalization Service office and

away from his room or “residence” because the agents had probable cause to

arrest Mr. Cisneros-Cruz. Mr. Cisneros-Cruz opposed the motion for

reconsideration and, in addition, raised a new allegation that the agents violated

his Fourth Amendment rights by failing to perform the constitutional and statutory

“knock and announce” requirement before they entered the room.



      At a hearing on the motion for reconsideration, the district court reaffirmed

its decision that the initial arrest was illegal by: (1) concluding illegal aliens such

as Mr. Cisneros-Cruz must be afforded the same Fourth Amendment protections

as citizens; (2) articulating its belief that an Immigration and Naturalization

Service administrative arrest warrant is unlike a judicially issued arrest warrant

and cannot be used for the purpose of criminal prosecution; (3) reaffirming its

finding that the agents unreasonably believed they entered a public restroom and

not a “residence”; and (4) finding the agents violated the “knock and announce”


                                          -6-
requirement when they knocked, but failed to wait for a response before entering

the room.



      Having found the arrest illegal, the district court nevertheless partially

granted the government’s motion and modified its prior suppression order based

on its review of Harris. Under its interpretation of that case, the district court

determined an attenuation of the arrest violation occurred when agents gave Mr.

Cisneros-Cruz the intervening Miranda warning between the time of his initial

arrest at his “residence” and his statement given at the Immigration and

Naturalization Service office. Based on this determination, the district court

concluded the statements, identification and fingerprints made at the office could

be used as evidence at trial. In anticipation of the government’s use of this

evidence at trial, Mr. Cisneros-Cruz pled guilty to unlawful reentry into the

United States after deportation for an aggravated felony, but reserved the right to

appeal the disposition of his suppression motion.



      On appeal, Mr. Cisneros-Cruz contends the district court committed

reversible error in first granting, and then denying, his motion to suppress his

fingerprints and his statement. He claims that, under the “fruit of the poisonous

tree” doctrine, his illegal arrest prohibits the introduction of any evidence derived


                                          -7-
from that arrest. Mr. Cisneros-Cruz suggests his arrest was illegal because the

agents involved: (1) did not secure a judicial arrest warrant authorizing entry into

Mr. Cisneros-Cruz’s private “residence”; (2) entered without announcing their

authority and purpose, thereby violating the “knock and announce” requirement;

(3) questioned him inside his “residence” without the benefit of a Miranda

warning; (4) obtained an involuntary statement from him following the Miranda

warnings; and (5) never advised him that his previous illegally obtained

statements could not be used against him. Finally, Mr. Cisneros-Cruz argues the

district court erred by not making an explicit determination as to the voluntariness

of his pre- and post-Miranda statements.



                             STANDARD OF REVIEW

      A district court’s ruling on a motion to suppress, based on live testimony at

a suppression hearing, is accepted unless clearly erroneous or influenced by an

incorrect view of the law. United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112,

1116 (10th Cir. 1998). We review questions of law de novo, viewing the

evidence in the light most favorable to the party that prevailed in the district

court. Id. Because Mr. Cisneros-Cruz is appealing the district court’s order, we

view the evidence in the light most favorable to the government.




                                          -8-
                                     DISCUSSION

      For the purposes of this appeal, we assume without deciding that Mr.

Cisneros-Cruz’s arrest violated the Fourth Amendment as a warrantless and

nonconsensual entry into a “residence.” 3 Nevertheless, the evidence obtained

after the unlawful arrest may still be admissible depending on whether the agents

had probable cause to arrest Mr. Cisneros-Cruz. See Harris, 495 U.S. at 18.

Under the principles articulated in Harris, if no probable cause existed, evidence

obtained as a result of the illegal arrest may be suppressed under the exclusionary

rule as “fruit of the poisonous tree.” Id. at 18-19. However, if the agents had

probable cause to arrest Mr. Cisneros-Cruz, the “fruit of the poisonous tree”

doctrine does not apply. Id. at 21.



      In Harris, the police made a nonconsensual and warrantless entry into the

defendant’s apartment for the sole purpose of taking him into custody. 495 U.S.

at 1642. After the officers read Mr. Harris his Miranda rights, he responded to



      3
         By making this assumption, we leave certain Fourth Amendment issues open for
resolution at another time. Thus, we do not decide whether Fourth Amendment rights
should be afforded to Mr. Cisneros-Cruz as an illegal alien; whether the Immigration and
Naturalization Service’s administrative warrant was sufficient to make an arrest for
criminal prosecution, or whether the room in a public restaurant where Mr. Cisneros-Cruz
slept can be considered his “residence” for the purpose of an arrest warrant or the “knock
and announce” requirement.


                                           -9-
their questions and admitted killing the victim in question. The police then

arrested him and took him to the police station where he was again informed of

his Miranda rights and signed a written inculpatory statement. Id. In determining

the station house statement was admissible, the Supreme Court declined to apply

the exclusionary rule, stating that while statements within the home are afforded

substantial protection, the same protection does not apply to statements taken

outside the home where the police have probable cause to arrest the suspect for

committing a crime. 495 U.S. at 17-18. In reaching this conclusion, the Court

explained that the police could have immediately rearrested Mr. Harris, even if

momentarily released after the first arrest, because they possessed probable cause

he committed the crime. Id. at 18. Hence, the Court dispensed with the formality

of the police having to release and then rearrest a suspect when probable cause for

the arrest existed, but police misconduct, such as a warrantless, nonconsensual

arrest at a residence, occurred. In further support of its conclusion that the

exclusionary bar could not apply, the Supreme Court reasoned that Mr. Harris’

person or body, obtained at the initial arrest, was not suppressible as a fruit of an

unlawful arrest. Id. at 18-19 (citing United States v. Crews, 445 U.S. 463, 475

(1980)). In other words, while the statement taken at the time of the police

misconduct may have been suppressible, custody of Mr. Harris himself was not




                                         -10-
“suppressible” because probable cause for his arrest existed. 4



      In this case, we find probable cause to arrest Mr. Cisneros-Cruz existed

before the agents entered the restaurant because Special Agent Simer, who

previously arrested Mr. Cisneros-Cruz on marijuana charges, recognized him on

sight, positively identified him on at least two occasions outside the restaurant

and knew of his prior aggravated felony conviction, deportation, and illegal

reentry status. Moreover, the record plainly shows preexisting criminal

conviction and deportation records positively confirmed his prior criminal

conviction, deportation and illegal reentry status.



      Having found probable cause existed in this case, for the same reasons

articulated in Harris we conclude Mr. Cisneros-Cruz was in lawful custody when

he was removed from the restaurant, taken to the Immigration and Naturalization

Service office, and read his Miranda rights. Because Mr. Cisneros-Cruz was in

lawful custody, his sworn statement is admissible, absent abuses such as coercion,

lack of a Miranda warning, or lack of Mr. Cisneros-Cruz’s understanding of his


      4
         Harris does not turn on any act of attenuation between the unlawful entry and
the formal statement, but on the existence of probable cause for Mr. Cisneros-Cruz’s
arrest and his lawful custody following his removal from his “residence.” 495 U.S. at 18-
19.


                                          -11-
rights. Id. at 20 (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981) (holding

voluntariness of confession is contingent on the defendant’s understanding of his

right to counsel and intelligent and knowing relinquishment of that right)).



       In this case, no such abuses occurred. Agents twice advised Mr. Cisneros-

Cruz of his Miranda rights, which he subsequently waived before indicating his

desire to make a formal statement. As for the voluntariness of his sworn

statement, we note that while an explicit holding is preferred, it is evident the

district court grappled with the issue and implicitly made a finding of its

voluntariness when it determined Mr. Cisneros-Cruz’s last inculpatory statement

was admissible. Moreover, the government met its burden by showing Mr.

Cisneros-Cruz voluntarily made that statement when it introduced Special Agents

Simer’s and Godwin’s testimony concerning the circumstances surrounding his

arrest and sworn statement. See United States v. Gell-Iren, 146 F.3d 827, 830

(10th Cir. 1998). Mr. Cisneros-Cruz failed to sufficiently rebut this evidence. 5


       5
          Mr. Cisneros-Cruz attempted to rebut the voluntariness of his statement by
contending that while handcuffed and seated at the restaurant table, but prior to receiving
his Miranda warning, Special Agent Godwin became angry and slammed his fist down on
the table demanding he cooperate. However, Special Agents Godwin and Simer testified
this did not occur. Mr. Cisneros-Cruz also claims that while at the restaurant, he told
Special Agent Godwin he wanted to remain silent. However, Special Agent Godwin
testified Mr. Cisneros-Cruz never made such a request and ultimately, after receiving the
Miranda warning twice, Mr. Cisneros-Cruz waived his right to remain silent regardless of
whether he initially made this request. We note that the district court heard the

                                           -12-
Finally, nothing in the record shows his statement resulted from his lack of

understanding as to his rights or failure to intelligently and knowingly waive

those rights. Thus, we hold that because probable cause for Mr. Cisneros-Cruz’s

arrest existed and he was in lawful custody at the time agents took his statement

and fingerprints, the district court did not err in relying on Harris when it

determined the government could properly introduce that evidence at trial.



       Mr. Cisneros-Cruz also argues that the agents should have advised him that

his statement taken at the restaurant could not be used against him. We disagree.

His statement that he was “Edmundo Cisneros-Cruz,” which agents obtained prior

to handcuffing him and reading him his Miranda rights, concerned only an

affirmation of his own identity. The Supreme Court has held that the “identity of

a defendant ... 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.” Immigration & Naturalization Service v. Lopez-

Mendoza, 468 U.S. 1032, 1039 (1984).




conflicting testimony, and by determining Mr. Cisneros-Cruz’s last statement was
voluntary, implicitly gave more weight to the credibility of the agents’ testimony. Such
credibility determinations are within the sound discretion of the district court. Anderson
v. City of Bessemer City, 470 U.S. 564, 575 (1985); Gell-Iren, 146 F.3d at 830.


                                           -13-
      For these reasons, we AFFIRM the district court’s partial denial of Mr.

Cisneros-Cruz’s motion to suppress.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




                                       -14-
