United States Court of Appeals

For the First Circuit

No. 06-2065

UNITED STATES OF AMERICA,

Appellant,

v.

BENJAMIN ESPINOZA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Selya and Cyr, Senior Circuit Judges.

Robert E. Richardson, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, was on brief, for

appellant.

Leslie Feldman-Rumpler for appellee.

June 13, 2007
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SELYA, Senior Circuit Judge. In this interlocutory

appeal, the government challenges a suppression order entered in

the United States District Court for the District of Massachusetts.

It assigns error both to the district court's determination that an

investigatory encounter was undertaken without reasonable suspicion

and to the court's assessment of when a seizure occurred. We have

jurisdiction under 18 U.S.C. § 3731. 

The district court made the challenged rulings after

holding an evidentiary hearing and mulling the impact of a unique

set of circumstances. Judgments of this sort are notoriously factsensitive, and an appellate court should defer in large measure to

the trial court's superior coign of vantage. So it is here:

although we, if sitting as a court of first instance, might not

have drawn the same inferences from the underlying facts, we cannot

say that the district court lacked the right to draw the inferences

that it did. Nor can we say that, given those inferences, the

court abused its discretion in suppressing the evidence.

Accordingly, we affirm the suppression order.

I. BACKGROUND

In this case, the defendant stands accused of conspiracy

to transport, and the transportation of, illegal aliens. See 8

U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I). We begin our account

with a concise summary of the events leading to those charges, as

supportably found by the district court. See United States v.
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Romain, 393 F.3d 63, 66 (1st Cir. 2004); United States v. Lee, 317

F.3d 26, 30 (1st Cir. 2003).

On the morning of February 7, 2005, defendant-appellee

Benjamin Espinoza was a front-seat passenger in a commuter van

bearing Texas license plates that was traveling through Boston on

Interstate 93. The van piqued the interest of Glen Fitzpatrick, an

Immigration and Customs Enforcement (ICE) agent, who was en route

to his office in an unmarked car.

Fitzpatrick was aware that, within the past year, Bostonbased ICE agents had intercepted at least two similar extendedpassenger vans engaged in the illegal transportation of aliens.

Although the van had tinted windows, he could see the silhouettes

of several persons (other than the driver and front-seat passenger)

inside it. Consequently, he started following the van while at the

same time contacting sector communications. This inquiry yielded

information that the van was registered to Jesús Zendejas of

Dallas, Texas. Fitzpatrick recognized Zendejas's name as having

appeared on a suspect's telephone toll records in an earlier ICE

investigation of human smuggling — an investigation that had not

yet resulted in the filing of any criminal charges. 

Fitzpatrick continued to follow the van surreptitiously

for approximately twenty-five minutes. At around that time, the

van left the expressway and proceeded on the Revere Beach Parkway.

In due course, it pulled over and parked near a sandwich shop in
The government claims that the defendant volunteered 1

information in English during Fitzpatrick's initial conversation

with Villareal. This characterization is premised on Fitzpatrick's

testimony that he recalls the defendant interjecting that he and

Villareal were both employees of Mi Tierra. The district court

appears not to credit this testimony. At any rate, even if we

assume, favorably to the government, that this interjection

occurred as Fitzpatrick described it, the result that we reach

would not be affected. 

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Everett, Massachusetts. The driver, Ambrosio Villareal, did not

turn off the engine but let it idle. No one disembarked from the

van. 

Fitzpatrick parked his car some fifty feet away in an

adjacent lot and approached the stopped van on foot. He wore

civilian clothes and carried a holstered firearm. Upon reaching

the van, he flashed his badge and identified himself to Villareal

as an immigration officer. Speaking in Spanish, he requested

identification. Villareal complied. Then Fitzpatrick, using a

hand motion, "directed Villareal to shut off the engine." United

States v. Espinoza, No. 05-10060, slip op. at 1 (D. Mass. June 15,

2006) (unpublished) (D. Ct. Op.). The identification that

Villareal produced consisted of a Texas driver's license, an alien

registration card, and a business card indicating his affiliation

with a company called "Mi Tierra." 

In approximately the same time frame, Fitzpatrick asked

the defendant for identification. The defendant proffered a Texas 1

driver's license and, in response to a direct question, informed

Fitzpatrick that he was a naturalized citizen. To buttress that
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statement, he showed Fitzpatrick a photocopy of his naturalization

papers. A conversation ensued regarding Mi Tierra and the

employment of Villareal and the defendant as drivers for that firm.

Fitzpatrick next turned his attention to the five

passengers in the rear of the van. He questioned them in

Portuguese and learned that three of the five had been arrested in

Texas by border patrol officers on February 4, 2005 — three days

earlier. All three had received notices to appear for removal

proceedings. The other two men carried Brazilian passports but had

no other identification. Upon completing this phase of his

inquiry, Fitzpatrick read Villareal and the defendant their Miranda

rights. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). 

II. STANDARD OF REVIEW

In examining the presence or absence of reasonable

suspicion and the timing of a seizure, we deal with mixed questions

of law and fact. Each of those questions requires a searching

appraisal of the particular factual context. 

As to the first issue — the existence vel non of

reasonable suspicion — we must "assess the totality of the

circumstances, on a case-specific basis, in order to ascertain

whether the officer had a particularized, objectively reasonable

basis for suspecting wrongdoing." United States v. Coplin, 463

F.3d 96, 100 (1st Cir. 2006) (citing United States v. Arvizu, 534

U.S. 266, 273 (2002)). The same is true of the seizure issue,
A finding is clearly erroneous only when, upon a careful 2

review of the record, a court is left with a "definite and firm

conviction that a mistake has been committed." United States v.

U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

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which necessitates careful consideration of "all the circumstances

surrounding the encounter." Florida v. Bostick, 501 U.S. 429, 439

(1991).

Given the textured nature of these inquiries, appellate

courts must proceed circumspectly and with regard for the district

court's superior vantage point. See United States v. Zapata, 18

F.3d 971, 975 (1st Cir. 1994) (explaining that an appellate court

reviewing the disposition of a suppression motion must "exhibit

great respect for the presider's opportunity to hear the testimony,

observe the witnesses' demeanor, and evaluate the facts at first

hand"). Consequently, we will disturb the trier's factual findings

only if they are clearly erroneous. See Coplin, 463 F.3d at 100; 2

see also Reliance Steel Prods. Co. v. Nat'l Fire Ins. Co., 880 F.2d

575, 576 (1st Cir. 1989) (observing that disputes over facts are

"the staples of a trial court's diet and comprise an unappetizing,

usually unnourishing, bill of fare for appellate digestion"). In

this process, credibility calls — with only rare exceptions — are

the district court's prerogative. See United States v. Rutkowski,

877 F.2d 139, 144 (1st Cir. 1989). Legal conclusions, including

ultimate constitutional determinations (such as the sufficiency of

the facts as found to support a conclusion that, for example,
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reasonable suspicion exists or a seizure occurred), engender de

novo review. See Ornelas v. United States, 517 U.S. 690, 699

(1996); Zapata, 18 F.3d at 975. 

We remain mindful throughout that when two or more

legitimate interpretations of the evidence exist, the factfinder's

choice between them cannot be deemed clearly erroneous. See

Romain, 393 F.3d at 70; see also Anderson v. City of Bessemer, 470

U.S. 564, 573-74 (1985). Thus, if the district court chooses to

draw a reasonable (though not inevitable) inference from a

particular combination of facts, that inference is entitled to

deference. See Ornelas, 517 U.S. at 699.

III. ANALYSIS

We subdivide our substantive discussion of the district

court's decision into two segments, corresponding to the

government's twin lines of argument. 

A. Reasonable Suspicion.

Typically, brief investigatory stops can be grounded on

reasonable suspicion as opposed to, say, probable cause. See Terry

v. Ohio, 392 U.S. 1, 19 (1968); Zapata, 18 F.3d at 975. That

standard is not self-elucidating; we have warned before that the

reasonable suspicion calculus "defies precise definition." United

States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001). No prefigured

mold or cookie-cutter design exists to delineate whether or not a

law enforcement officer, at a given time and place, acted on the
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basis of reasonable suspicion. Instead, that evaluation comprises

"a fact-sensitive task, bound up in the warp and woof of the

surrounding circumstances." Id. at 8.

Of course, precedent plays an important role in our

system of justice, and the case law offers some general guidance.

A finding of reasonable suspicion requires "'a particularized and

objective basis' for suspecting the person stopped of criminal

activity." Ornelas, 517 U.S. at 696 (quoting United States v.

Cortez, 449 U.S. 411, 417-18 (1981)). This particularity

requirement means, in effect, that such a finding must be "grounded

in specific and articulable facts." United States v. Hensley, 469

U.S. 221, 229 (1985); see United States v. Monteiro, 447 F.3d 39,

43 (1st Cir. 2006). Moreover, the objective nature of the inquiry

ensures that courts will focus not on what the officer himself

believed but, rather, on what a reasonable officer in his position

would have thought. Romain, 393 F.3d at 74.

Here, the government alleges that Fitzpatrick initiated

the encounter with the van's occupants based on a reasonable

suspicion of criminal activity, that is, a suspicion that they were

engaged in the illegal transportation of undocumented aliens. The

district court disagreed. It found, after hearing Fitzpatrick's

testimony, that his rationale for following the van, approaching

it, and commencing an investigation of the individuals within was

bottomed on a pale patina of facts. These included: (i)
Fitzpatrick testified on cross-examination that one of the 3

previously intercepted vans was owned by Alfonso Garza, reputed to

be a former business partner of Zendejas. The district court found

that this information was new to the equation; Fitzpatrick did not

know about this connection when he decided to follow and approach

the van. See D. Ct. Op. at 3 n.2. That finding was not clearly

erroneous.

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Fitzpatrick's observation of an extended-passenger van bearing

Texas license plates traveling on a highway in Massachusetts; (ii)

his awareness that the van was registered to Zendejas, whose name

had surfaced (albeit not as a target) during a previous

investigation for human smuggling; and (iii) his prior knowledge of

the interception of "two and perhaps three similar passenger vans

that were transporting illegal aliens" in the Boston area within

the past year. D. Ct. Op. at 3. The district court commented that

this patina, pale to begin with, faded even more in light of

countervailing considerations such as Fitzpatrick's admission that

the Boston area was not a place generally associated with the

smuggling of illegal aliens and the fact that he observed nothing

unusual or unlawful about the van's operation during his

surveillance. Id. at 3-4. Indeed, the only "peculiarity" that

Fitzpatrick had noted about the van "was that it bore Texas

plates." Id. at 5.

Weighing the facts as a whole, the court concluded that

Fitzpatrick's actions in approaching the van and starting to

question its occupants were "based on nothing more than a hunch."

Id. With specific reference to the Zendejas connection, the court 3
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added that the "tendrils of information known to Fitzpatrick about

this individual [at the time of the encounter were] insufficient to

transform the hunch into reasonable suspicion." Id. at 5-6.

The government does not claim any error in the district

court's findings of raw fact. It does, however, attack with

considerable ferocity the inferences drawn by the court from the

facts as found. This attack overlooks that those inferences, too,

are subject to clear error review. See Ornelas, 517 U.S. at 699;

Zapata, 18 F.3d at 975. Using that barometer, our function is not

to decide whether we, if sitting as arbiters of the facts, would

have drawn the same inferences but, rather, to determine whether

the district court's chosen inferences are plausible (and, thus,

permissible) based on the raw facts as supportably found. See

Romain, 393 F.3d at 70.

In this instance, we think that the district court's

inferences, though not compelled by the facts, are nevertheless

reasonable. Accordingly, they pass muster.

The requirement of reasonable suspicion as a basis for an

investigatory stop reflects the core concerns of the Fourth

Amendment. See Arvizu, 534 U.S. at 273. Here, Fitzpatrick

approached the van endowed only with the scanty knowledge recounted

by the district court. Given the nebulous nature of what he knew

and the importance of the Fourth Amendment interests at stake, the

court's conclusion that Fitzpatrick's actions were predicated on a
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hunch, bereft of the particularity required for reasonable

suspicion, was not clearly erroneous. See id. Put another way,

the record yields no definite and firm conviction that the district

court's conclusion was mistaken. 

B. Seizure.

Our validation of the lower court's finding that

Fitzpatrick lacked reasonable suspicion at the outset of the

encounter does not end our odyssey. In this case, the agent played

no part in bringing the van to a halt; the driver stopped of his

own volition and for his own reasons. Thus, even without

reasonable suspicion, Fitzpatrick had a right to approach the

parked vehicle and talk to its occupants if that interview was

purely consensual. See United States v. Barry, 394 F.3d 1070, 1075

(8th Cir. 2005) (holding that the Fourth Amendment permits an

officer to approach a parked vehicle without any show of force and

question the occupants); see also United States v. Smith, 423 F.3d

25, 30 (1st Cir. 2005) (holding to like effect as to a pedestrian).

The district court found, however, that this encounter

was not consensual because a seizure occurred at the point when

Fitzpatrick ordered Villareal to shut off the engine. On that

basis, the court granted the defendant's motion to suppress the

statements made and papers produced in the interval between the

command and the furnishing of Miranda warnings (including, of
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course, the fruits of those revelations). We turn now to that

finding.

The case law offers certain guideposts to assist in

determining the nature of an encounter between law enforcement

officers and civilians. Not every police-initiated conversation is

a seizure. See, e.g., Smith, 423 F.3d at 30; Barry, 394 F.3d at

1075. Thus, a law enforcement officer does not trigger an

individual's Fourth Amendment protections simply by approaching the

person in public and asking routine questions. United States v.

Drayton, 536 U.S. 194, 200-01 (2002); Smith, 423 F.3d at 30. The

trigger point for Fourth Amendment purposes is the presence or

absence of some cognizable coercion or constraint. See Drayton,

536 U.S. at 201 ("If a reasonable person would feel free to

terminate the encounter, then he or she has not been seized.");

United States v. Mendenhall, 446 U.S. 544, 554 (1980) (explaining

that "[a]s long as the person to whom questions are put remains

free to disregard the questions and walk away," Fourth Amendment

protections are not implicated). 

The test is objective: Would a reasonable person standing

in the shoes of the individual who is approached have felt free to

cease interaction with the officer and depart? Ornelas, 517 U.S.

at 693; Smith, 423 F.3d at 28. If an objectively reasonable person

would have felt compelled to stay, the encounter amounts to an

investigatory stop in derogation of the defendant's constitutional
In accepting this terminology, we do not imply any limitation 4

on the doctrine that coercion, unaccompanied by reasonable

suspicion, is constitutionally unacceptable. See Florida v. Royer,

460 U.S. 491, 498 (1983) (stating that an individual "may not be

detained even momentarily without reasonable, objective grounds for

doing so").

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rights unless accompanied by, at the least, reasonable suspicion.

See Terry, 392 U.S. at 21; Coplin, 463 F.3d at 100. 

Here, the parties and the district court have framed the

inquiry as a question of when the defendant was effectively seized

by Fitzpatrick. The government concedes that a seizure occurred 4

at the point when Fitzpatrick informed the defendant of his Miranda

rights. The defendant, however, places the seizure at an earlier

step in the progression. The timing is of decretory significance

because the evidence that the district court suppressed consisted

mainly of statements made and documents tendered in the interval

between these two moments in time. 

The district court resolved this quandary in favor of the

defendant. In doing so, the court relied upon the following facts:

(i) Fitzpatrick, identifying himself as an ICE officer and wearing

a holstered firearm, approached the van; (ii) he displayed his

badge and began asking questions; and (iii) with a commanding tone

and manner, he indicated that he wanted the driver to shut off the

van's engine. D. Ct. Op. at 1-2. Although Fitzpatrick protested

during the evidentiary hearing that the nonverbal command to shut

off the engine was given solely to facilitate conversation, the
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district court reasonably concluded that the absence of any

evidence indicating that the van's occupants knew or intuited this

unspoken limitation was extremely significant. See id. at 2 n.1.

In our view, this is a near-classic case of a set of

facts that might — depending on the trier's interpretation —

support either of two competing inferences. On the one hand, it

seems plausible that a reasonable person in the defendant's shoes

might have considered the encounter consensual and non-custodial.

On the other hand, it seems equally plausible that a reasonable

person in the defendant's shoes might have felt constrained to

remain seated in the stopped van and to respond to the agent's

queries. The district court concluded that the latter

interpretation was the more likely scenario and, thus, ruled that

Fitzpatrick had effectively seized the defendant when he ordered

Villareal to shut down the engine. Because this inference from the

facts as found was not clearly erroneous, the district court did

not err in ordering suppression. See United States v. Ladd, 885

F.2d 954, 957 (1st Cir. 1989) (cautioning that appellate courts

should not intrude when "a trier chooses among plausible (albeit

competing) inferences"). 

In a last-ditch effort to turn the tide, the government

argues that this case is controlled by our decision in Smith. In

our view, however, these two cases are not fair congeners. In

Smith, the district court determined that a seizure had occurred
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when two police officers exited their cruiser, approached the

defendant on a public street, and asked him for identification.

423 F.3d at 27. We reversed the district court's consequent grant

of a motion to suppress because the historical facts as found by

the court did not support a reasonable inference that the defendant

had been seized. Id. at 30. The court's inference flew in the

teeth of well-settled law that police officers who do no more than

approach individuals without a show of authority and ask routine

questions will not be held to have generated a sense of coercion.

Id. at 29-30. 

Here, unlike in Smith, the officer did more than merely

approach and propound routine questions. According to the district

court, which made a supportable factual finding in this regard,

Fitzpatrick commanded the driver to shut off the engine. See D.

Ct. Op. at 2, 4. That command, in the circumstances of this case,

may not have compelled a finding of coercion but it supports such

a finding (and, thus, a finding that a seizure occurred then and

there).

IV. CONCLUSION

We need go no further. The district court's conclusion

that a seizure occurred, unaccompanied by reasonable suspicion, is

consonant with the facts as found and with the record.

Accordingly, we uphold the district court's order suppressing the

evidence in question. 
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Affirmed.