* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 25, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60128

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO TRINIDAD VANDYCK-ALEMAN,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:05-CR-129

--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Sergio Trinidad Vandyck-Aleman (Vandyck) appeals his guiltyplea conviction on two counts of firearm possession by an illegal

alien, in violation of 18 U.S.C. § 922(g)(5)(A). Vandyck

contends that the district court erred by denying his motion to

suppress evidence relative to the firearms. We AFFIRM.

Factual Background

At the suppression hearing, Agent Ron Johnson of United

States Immigration and Customs Enforcement testified that on July
No. 06-60128

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22, 2005, he and other agents, together with officers of the

Forest, Mississippi, Police Department, took part in an operation

to identify gang members, felons, fugitives, and people who had

been deported, in the local Hispanic community, and to attempt to

remove them from that community. Eight or nine agents and

accompanying police officers went in a caravan of vehicles to an

apartment building in Forest, which is in Scott County. As they

turned onto the street where the apartment building was located,

Agent Johnson testified, a Hispanic female standing in the yard

looked up, saw the police car and the convoy of vehicles behind

it and turned around and sprinted into the house.

After the task force left the apartment complex, someone

noticed another male entering the house to which the agents had

seen the woman run. The agents decided to stop and investigate. 

When asked to explain why they stopped, Agent Johnson testified, 

“I had seen one individual run into the house, someone else had

stated they saw another individual walk into the house and

probably within a week of that period in that same area [police]

had recovered a lot of fraudulent documents being manufactured

for unauthorized aliens.” The agents then went to the carport

door of the single-family residence and knocked on it. Vandyck

came to the door and talked with the agents as they stood

outside. No weapons were drawn and no show of force was made. 

After the agents identified themselves as immigration

service agents, Vandyck told them that he was born in Mexico and
No. 06-60128

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** Section 1357(a) of 8 U.S.C. provides in part: 

“(a) Powers without warrant. Any officer or employee of the

Service authorized under regulations prescribed by the Attorney

General shall have power without warrant – (1) to interrogate any

alien or person believed to be an alien as to his right to be or

to remain in the United States; (2) to arrest any alien . . . if

he has reason to believe that the alien [is illegally in the

country and likely to escape].”

that he did not have any immigration documents. Agent Johnson

testified that in asking questions about Vandyck’s immigration

status he was following the INS policies and procedures

“absolutely.”** Although the agents then realized that Vandyck

was an illegal alien and subject to arrest, they were not

initially inclined to arrest him. When they asked if he minded

if they went into the house to discuss the matter further,

Vandyck gave his consent readily. Vandyck told them that the

woman who had run into the house and the only other adult in the

house, a man, were also illegal aliens. 

During the questioning about citizenship status, and out of

concern for safety issues, an agent asked Vandyck if there were

any weapons in the house. He replied yes, and took agents

without hesitation to his bedroom, where they retrieved a 

12-gauge shotgun from behind his mattress. When he was asked if

there were any other weapons in the house, Vandyck gave them

permission to look. They found a 9-millimeter handgun that

Vandyck said belonged to him. The indictment alleges his illegal

possession of these two firearms. 
No. 06-60128

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Vandyck’s Fourth Amendment Claim

Citing the Fourth Amendment, Vandyck asserts that his motion

to suppress should have been granted because he did not consent

to the equal protection violation that occurred when the officers

unlawfully targeted him for investigation on the basis of

ethnicity. He asserts that the officers did not have the

particularized reasonable suspicion the Fourth Amendment requires

to justify questioning him regarding his citizenship status. 

In INS v. Delgado, 466 U.S. 210, 212 (1984), however, the

Supreme Court held that immigration officers could question an

individual although they lacked reasonable suspicion that the

individual was an illegal alien. The Court noted that one of its

recent cases “plainly implies that interrogation relating to

one’s identity or a request for identification by the police does

not, by itself, constitute a Fourth Amendment seizure. . . .

[P]olice questioning, by itself, is unlikely to result in a

Fourth Amendment violation.” Id. at 216.

Vandyck relies on Mena v. City of Simi Valley, 332 F.3d 1255

(9th Cir. 2003), vacated and remanded by Muehler v. Mena, 544

U.S. 93 (2005), in support of his argument that his Fourth

Amendment rights were violated. In that § 1983 lawsuit against

law enforcement officers, the Ninth Circuit ruled that

questioning the resident of a house being searched about her

immigration status violated the Fourth Amendment. The Supreme

Court held, however, that “mere police questioning does not
No. 06-60128

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constitute a seizure.” 544 U.S. at 101 (citing Florida v.

Bostick, 501 U.S. 429, 434 (1991). The Court concluded: “Hence,

the officers did not need reasonable suspicion to ask Mena for

her name, date and place of birth, or immigration status.” Id.

Accordingly, the questioning of Vandyck did not involve a

seizure implicating the Fourth Amendment and the district court’s

decision to deny the his Fourth Amendment challenge was correct. 

The Equal Protection Claim

Vandyck contends that the decision to investigate him

violated his equal-protection rights. He relies on United States

v. Avery, 137 F.3d 343 (6th Cir. 1997), which states that if race

were the sole factor in deciding to investigate someone, that

would constitute an equal-protection violation. 137 F.3d at 353-

54. The court held, however, that “[a]n officer is not held to a

‘suspicion of criminal activity standard’ when he embarks to

investigate someone. The officer merely is prohibited from his

pursuit if he acts based solely on race.” Id. at 358. The court

held that the defendant had failed to establish an equalprotection violation because there were factors other than race

justifying the decision to question him. Id.

In United States v. Lopez-Moreno, 420 F.3d 420 (5th Cir.

2005), cert. denied, 126 S. Ct. 1449 (2006), this court

considered a case in which nonworking taillights on a van led to

a traffic stop resulting in a conviction for trafficking in

illegal aliens. The defendant asserted that racial profiling
No. 06-60128

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resulted in a violation of his Fourth Amendment and equalprotection rights under the Fourteenth Amendment. This court

held that the stop and detention was valid and that the officer

had reasonable suspicion to inquire into the alien status of the

passengers of the van after the records check came back clean. 

420 F.3d at 433-34. The court noted that the officer’s knowledge

about an earlier episode in which a van had been apprehended in

that area carrying illegal aliens was a factor that contributed

to the reasonable suspicion to further detain and question the

van passengers. Id. at 426, 433.

This court held further that the standard of review for

Lopez’s equal-protection (ethnic profiling) claim was the same as

for his Fourth Amendment claim. Id. at 434. Relying on United

States v. Chavez, 281 F.3d 479 (5th Cir. 2002), the court held

that Lopez-Moreno had failed to prove that the stop and detention

were driven by a discriminatory purpose and denied his equalprotection claim. Id. The court iterated its earlier statement

in Chavez that there was no Supreme Court or Fifth Circuit

authority for the proposition that an equal-protection violation

could be remedied by suppressing the evidence flowing from the

violation. Id.

Vandyck’s racial-profiling argument lacks merit because the 

testimony does not establish that race was the agents’ sole

motivating factor or that they knowingly were engaging in any

illegal conduct. The ethnicity of the people entering the house,
No. 06-60128

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one at a sprint, was a proper factor to consider. Although

ethnicity generally may play no role in the enforcement of

criminal laws of this country, enforcement of the immigration

laws demands that the officials focus on individuals most likely

to violate those laws. In the poultry-producing region of

Scott County, Mississippi, as the agent testified without

contradiction, the population of illegal aliens is predominantly

Hispanic, not (non-Hispanic) white. Accordingly, the district

court did not err by finding that the officers’ decision to

approach Vandyck’s house and to question him when he came to the

door was justified. See Lopez-Moreno, 420 F.3d at 434; 8 U.S.C.

§ 1357(a)(1).

AFFIRMED.