
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-2063                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                           JOSELYN ANTONIO MENDEZ-DE JESUS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________               Vilma Maria Dapena, Assistant Federal Public  Defender, with               __________________          whom  Benicio Sanchez  Rivera,  Federal Public  Defender, was  on                _______________________          brief for appellant.               Jose  F. Blanco-Torres,  Assistant  United States  Attorney,               ______________________          with  whom Guillermo  Gil, United  States Attorney,  and Jose  A.                     ______________                                ________          Quiles, Senior Litigation Counsel, were on brief for appellee.          ______                                 ____________________                                     May 30, 1996                                 ___________________               COFFIN,  Senior Circuit  Judge.   Defendant Jocelyn  Antonio                        _____________________          Mendez-de  Jesus entered  a  conditional plea  of  guilty to  re-          entering  the United States after being  deported subsequent to a          felony conviction,  8 U.S.C.    1326(a)  & (b)(1), reserving  his          right  to appeal  the district  court's denial  of his  motion to          suppress his  identification and immigration record.   Finding no          error below, we affirm.                                      BACKGROUND               Three  boats  carrying  illegal aliens  from  the  Dominican          Republic landed in  the vicinity  of Rincon, Puerto  Rico in  the          late hours of December  12 and early hours of December  13, 1994.          On the morning of  December 13, two private citizens  brought the          defendant  and an unknown female to the police station in Rincon.          Border  Patrol   Agent  Hector   Lugo  of  the   Immigration  and          Naturalization  Service  (INS)  was  there already  in  order  to          interview persons  who had been  picked up  from the boats.   The          citizens  reported to Lugo  that the defendant  and his companion          were not known to them and appeared to be lost.               Lugo  suspected that  the  female passenger  was an  illegal          alien:  she had damp and dirty clothing, ragged hair, and an odor          associated  with urine and defecation  on boats.   Mendez, on the          other hand,  did  not  give the  impression  of  having  recently          arrived   illegally  via   boat.     He  appeared   tidy,  denied          understanding Spanish and told  Lugo that "I'm from here."   Lugo          commenced  questioning  the  woman,  who,  instead of  answering,          continually  looked at Mendez.  Lugo asked if she knew Mendez and                                         -2-          she responded  affirmatively.   Mendez also  acknowledged knowing          the  woman,  saying that  they  met  in the  Dominican  Republic.          Eventually,  the  woman admitted  that  she  entered Puerto  Rico          illegally that morning.                 At that time, Lugo asked  Mendez for identification and  was          given his  resident alien registration  card.  He  brought Mendez          inside  the  station  and,  while awaiting  verification  of  the          registration card, began interrogating  him.  Shortly thereafter,          he received information that Mendez had previously been deported.               The district court denied  Mendez's motion to suppress, but,          on  his  motion  for  reconsideration,  found  that  Lugo  lacked          probable  cause to  further  detain or  interrogate Mendez  after          receiving his  alien registration card and, therefore, suppressed          all statements  made thereafter.   The court refused  to suppress          the card itself or the corresponding  INS records that documented          his previous deportation.                                         DISCUSSION          A.   Standard of Review                __________________               Our review of a district court's decision to grant or deny a          suppression motion  is plenary.   United States  v. McCarthy,  77                                            _____________     ________          F.3d 522, 529 (1st Cir. 1996).  We scrutinize the court's factual          findings, including credibility determinations, for  clear error,          United States v.  Valle, 72  F.3d 210, 214  (1st Cir. 1995),  and          _____________     _____          will  uphold a denial  of a motion to  suppress if any reasonable                                         -3-          view  of the evidence  supports it.   United States v.  de Jesus-                                                _____________     _________          Rios, 990 F.2d 672, 677 (1st Cir. 1993).            ____                                         -4-          B.   Fourth Amendment Claims               _______________________               In an effort  to invoke the exclusionary  rule, Lugo alleges          two  violations of the Fourth Amendment.  First, he contends that          he  was illegally  arrested and  brought to  the  police station.          Second,  he argues  that  Lugo's request  for his  identification          constituted an unconstitutional seizure.               We  can  quickly dispose  of the  first  issue.   Mendez was          brought to the police station by two private citizens.  While the          seizure of Mendez may  have assisted the government, there  is no          suggestion that  the government initiated or  participated in the          citizen  action.   In  the absence  of  governmental action,  the          Fourth  Amendment does not apply.   See Skinner  v. Railway Labor                                              ___ _______     _____________          Executives'  Ass'n, 489  U.S. 602,  614 (1989)  (Fourth Amendment          __________________          does not apply to  private action unless private party  "acted as          an instrument  or agent  of the  Government");  United States  v.                                                          _____________          Jacobsen, 466 U.S. 109, 113 (1984).          ________               Mendez's alternative claim fares no better.  He contests the          court's finding  that Lugo's authority to  ask for identification          derived  from 8  U.S.C.     1357(a)(1),  which provides  that  an          immigration  officer may, without warrant, "interrogate any alien          or person believed to  be an alien  as to his right  to be or  to          remain in the United States."  In support, he cites the principle          that an  individual  may not  be detained  for questioning  about          citizenship  absent reasonable  suspicion that  the person  is an          illegal alien, see United States v. Brignoni-Ponce, 422 U.S. 873,                         ___ _____________    ______________          884  (1975), and  points  to Lugo's  testimony  that he  had  the                                         -5-          impression that Mendez was  a United States citizen.   While this          particular argument concerning the  applicability of   1357(a)(1)          is not  without force, it  is ultimately  unavailing because  the          court's findings  clearly  demonstrate that  Lugo had  reasonable          suspicion that Mendez was violating the immigration laws.               It is well settled that, based on reasonable and articulable          suspicion, an  officer may  make a  brief stop or  seizure of  an          individual  to investigate  suspected  past  or present  criminal          activity.    McCarthy, 77  F.3d at  529.1   The  determination of                       ________          whether  an  officer  acted  reasonably requires  two  subsidiary          inquiries:   1) whether the officer's action was justified at its          inception; and 2) whether the action taken was reasonably related          in scope to  the circumstances justifying the interference in the          first place.  Id. at 530 (citing Terry v. Ohio, 392 U.S. 1, 19-20                        __                 _____    ____          (1968)).    This  determination   demands  examination  into  the          totality of the circumstances confronting the officer at the time          of the stop.  Id.                        ___               Lugo testified that, at the time of his request for Mendez's          identification, he was aware that 1) three boats carrying illegal          aliens had  arrived in the area within  the previous 24 hours; 2)                                        ____________________               1  In INS  v. Delgado, the Court stated  that "interrogation                     ___     _______          relating to one's identity or a request for identification by the          police  does  not,  by  itself,  constitute  a  Fourth  Amendment          seizure."  466  U.S. 210, 216 (1984).   The Court added, however,          that such an encounter  may constitute a detention or  seizure if          "the  circumstances . . .  are so intimidating  as to demonstrate          that a reasonable  person would have believed he was  not free to          leave if he had not responded."  Id.  Though perhaps unnecessary,                                           ___          for  purposes of this case  we will assume  without deciding that          the  circumstances surrounding Lugo's  request for identification          constituted a seizure under the Fourth Amendment.                                           -6-          Mendez and a woman  had been brought  to the station by  citizens          who reported that the  couple looked lost and unfamiliar;  3) the          woman appeared to be an illegal alien, though  Mendez did not; 4)          when  asked questions the woman looked to Mendez for guidance; 5)          Mendez  and the  woman admitted  knowing each  other; and  6) the          woman  admitted to  being  an illegal  alien.2   Lugo  maintained          that, based on these  circumstances, he believed that  Mendez was          assisting the woman in violation of the immigration laws.               The  court  credited  this  testimony  and  determined  that          "[t]hese  discoveries  and   observations  further  supported   a          reasonable  suspicion of  alienage  and formed  the  basis for  a          suspicion  of illegal assistance."   We agree.   In this context,          Lugo's request  for identification  was a reasonable  and minimal          intrusion directly related to his suspicions, and did not violate          the  Fourth Amendment.    As such,  the  district court  properly          denied  Mendez's  motion  to   suppress  his  identification  and          immigration record.3                                        ____________________               2  Mendez lodged hearsay objections to Lugo's account of the          woman  looking at  Mendez and  her statement  that she  knew him,          which were  properly overruled.   The look was  nonverbal conduct          not intended as  an assertion,  and both the  look and  statement          were  offered  for their  effect on  Lugo's understanding  of the          unfolding  events -- i.e., his reasonable suspicion -- and not to          prove that  the woman and  Mendez actually  knew each other.   As          such, his  account was not hearsay.   See Fed. R.  Evid. 801(a) &                                                ___          (c).               3   The district court alternatively found that, even in the          face of a Fourth Amendment violation, the "body" or identity of a          defendant is never  suppressible.  See INS  v. Lopez-Mendoza, 468                                             ___ ___     _____________          U.S. 1032, 1039  (1984); United States  v. Orozco-Rico, 589  F.2d                                   _____________     ___________          433, 435 (9th  Cir. 1978).   Because we find no  Fourth Amendment          violation, at least up  to the point that Lugo  received Mendez's          alien registration card, we need not address this conclusion.                                         -7-               Affirmed.               _________                                         -8-
