FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Oct. 22, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-12967

________________________

D. C. Docket No.07-00017-CR-ORL-28DAB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE ANTONIO QUINTANA,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(October 22, 2009)

Before CARNES, FAY and ALARCÓN, Circuit Judges.

*

ALARCÓN, Circuit Judge:

Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting *

by designation.
Jorge Antonio Quintana, an alien, has appealed from judgment of

conviction. Pursuant to a plea agreement, Mr. Quintana entered a conditional

guilty plea, to the crime of entering the United States without the express consent

of the Attorney General of the United States, or the Secretary of the Department of

Homeland Security to enter the United States, after he had been previously

removed from the United States after entering this country illegally in violation of

8 U.S.C. § 1326(a) and § 1326(b)(2).

In the plea agreement, Mr. Quintana reserved the right to file an appeal on

the ground that his right to equal protection under the Fourteenth Amendment was

violated because the sole reason the arresting officers initiated a consensual

encounter with him in a public place was their belief that he appeared to be of

Middle Eastern ethnicity. The district court denied his motions to suppress the

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evidence and to dismiss the indictment

In denying Mr. Quintana’s dismissal motion, the district court held that if

Mr. Quintana was stopped “solely because the officers believed he was Middle

Eastern Pakistani or Muslim . . . the officers may have acted unconstitutionally in

violation of the Equal Protection Clause of the Fourteenth Amendment.”

Quintana concedes in his opening brief that “[t]his case involves a consensual 1

encounter.” (Br. of Appellant 6). He also asserts that he was not subjected to an investigative

detention without reasonable suspicion, or an arrest without probable cause in violation of the

Fourth Amendment. Id.

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However, the district court found that “[t]he facts in this case . . . do not support a

conclusion that . . . Mr. Quintana’s ethnicity or religion was the only basis for

initiating the encounter . . . .” Mr. Quintana has challenged that finding in this

appeal. We affirm the judgment because we conclude that the district court’s

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findings were not clearly erroneous. It did not abuse its discretion in denying the

motion to dismiss the indictment.

I

A

In summarizing the facts, we are mindful that we must review the record in

the light most favorable to the prevailing party. See United States v. Miles, 290

F.3d 1341, 1355 (11th Cir. 2002) (“In determining a sufficiency of the evidence

claim, we view the evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor.”).

At the evidentiary hearing conducted to resolve Mr. Quintana’s suppression

and dismissal motions, the Government conceded that Mr. Quintana’s “apparent

race” was one of the factors for law enforcement’s initial encounter with him, “but

Mr. Quintana abandoned his motion to suppress the statements he made after he was 2

encountered by Officer Shanley because the Government informed the district court that it did

not intend to introduce any of Mr. Quintana’s statements against him at trial. Thus, the only

issue on appeal is whether the district court erred in denying the motion to dismiss the

indictment.

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it was not the only reason that he was encountered.” Detective Roberto Romero

Tello, a member of the Orlando Police Department’s intelligence unit

concentrating on monitoring subversive groups including domestic and

international terrorists, testified that Mr. Quintana first came to his attention when

he saw him downtown “just meandering, loitering near the intersection, not really

going anywhere, just hanging out.” Detective Tello noticed that Mr. Quintana was

standing around “[n]ever going into a club or going somewhere to and fro as most

people do.”

Approximately two months later, Detective Tello pointed out Mr. Quintana

to Detective Richard Ruth when they were working the same detail. Mr. Quintana

was in downtown Orlando off of north Orange Avenue, near the intersection of

Central. Detective Tello testified that after pointing out Mr. Quintana to Detective

Ruth, he told him to watch Mr. Quintana’s behavior when he was approached by

Detective Tello. Detective Tello testified that as he walked towards Mr. Quintana,

“when he noticed my presence, he took off, took flight” and disappeared “at a high

rate of speed just below a run.”

Detective Tello testified that, in his experience, this conduct was “[a]typical

behavior for downtown people. Usually people are going to a club, going in or

out, going to their car, stopping at a hot dog stand, hanging around.” He testified

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that he has worked in the area for sixteen years and knows the transients who

occasionally do just hang around or beg. Detective Tello stated that Mr.

Quintana’s conduct appeared unusual because, in his experience, he is observant

and generally talks to everybody, and has “never had people take flight unless,

[ . . . ] there was a valid reason for doing so.”

Detective Tello and Detective Ruth observed Mr. Quintana several times in

the same vicinity prior to January 16, 2007. On that date, Mr. Quintana appeared

with a video camera across the street from the Firestone Club, a hip-hop nightclub.

Detective Tello testified that he concluded that Mr. Quintana should be

encountered because he was videotaping the nightclub. Detective Tello testified he

was concerned that “there might be an attack on the building” because, to

extremists, nightclubs represent “American economic prosperity” and “American

debauchery.” Detective Tello stated he would have wanted to contact Mr.

Quintana “[g]iven any ethnicity . . . based upon the long period fleeing and now

showing up at the club with a video camera and not wanting to go in and taking

flight from seeing us.”

When Mr. Quintana noticed the uniformed officers, he “started walking

away real fast.” Rather than chase him, Detective Tello “walked away as though

[he] wasn’t going to go after [Mr. Quintana].” At that time, Detective Ruth asked

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Officer Brian Christopher Shanley, who was assigned to a bike unit, to conduct a

Field Incident Report.

Detective Ruth corroborated Detective Tello’s testimony. Detective Ruth

stated that he was assigned to the Orlando Police Department’s intelligence unit.

He requested Officer Shanley to conduct a Field Incident Report based on

information he received from Detective Tello, and his observations of Mr.

Quintana over the prior three weeks. Detective Ruth testified that if the officers

“showed him any attention, [he] would dip into the crowd and begin to evade and

actually kind of almost run away from us.”

Detective Ruth testified that he did not ask Officer Shanley to initiate a

consensual encounter with Mr. Quintana “just because he looked Middle Eastern.”

He stated that it was “[b]ecause I had seen him numerous occasions outside of

clubs, never going into the clubs, with a video camera, and evading police

attention.”

Detective Ruth testified that he approached Mr. Quintana after he was

detained and looked at his driver’s license. When he saw the name Jorge Quintana,

Detective Ruth laughed and told him that he was expecting a Middle Eastern name.

The following day, Detective Ruth interrogated Mr. Quintana to determine whether

he was of Mexican nationality, or a Middle Easterner posing as a Mexican.

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Detective Ruth was accompanied by Special Agent Johnson of the Immigration

and Customs Enforcement Agency because he believed he would be able to

determine whether Mr. Quintana was a Mexican or a Middle Easterner.

Detective Ruth testified that he would have requested a field investigation

interview of a person with blonde hair or blue eyes if he or she had engaged in the

same conduct that he observed on January 16, 2007, i.e., use of a video camera to

photograph the outside of the Firestone Club and evasive activities over the prior

three weeks when approached by a police officer.

Officer Shanley testified that he was attached to a downtown bike unit of the

Orlando Police Department on January 16, 2007. Pursuant to Detective Ruth’s

request, he asked Mr. Quintana if he could talk to him. Mr. Quintana turned

around and said “Yes.” In response to Officer Shanley’s request, Mr. Quintana

produced a driver’s license. Officer Shanley used a police teletype channel to

determine whether Mr. Quintana was wanted on any outstanding warrants. Officer

Stanley was informed that there was a warrant for Mr. Quintana’s arrest. When he

received confirmation that the warrant was still outstanding, Officer Shanley

placed Mr. Quintana under arrest.

B

Mr. Quintana did not testify at the hearing on his suppression and dismissal

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motions. In its order denying his motion to dismiss the indictment, the district

court found as follows:

The facts in this case, . . . do not support a conclusion

that law enforcement’s mistaken understanding of Mr.

Quintana’s ethnicity or religion was the only basis for

initiating the encounter, though admittedly it played a

role. The officers’ prior observations of Mr. Quintana

considered with the observations from the night in

question form a sufficient constitutional basis for law

enforcement initiating contact with Mr. Quintana. This

would have been the case based on Mr. Quintana’s

conduct even in the absence of the officer’s erroneous

beliefs regarding Mr. Quintana’s religion and ethnicity.

Mr. Quintana’s has timely appealed the district court’s order denying his

motion to dismiss the indictment. The district court had subject matter jurisdiction

over this criminal matter pursuant to 18 U.S.C. § 3231. We have jurisdiction over

this appeal under 18 U.S.C. § 3742 and 18 U.S.C. § 1291.

II

The district court denied the motion to dismiss the indictment because it

concluded that Quintana failed to demonstrate that the sole reason for the

consensual encounter was his apparent race or ethnicity.

Mr. Quintana states in his opening brief that “the only question in this case is

whether the consensual encounter between Mr. Quintana was initiated solely by

racial considerations.” (Br. of Appellant 11). He argues that “the district court did

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not cite a single reason for the consensual encounter separate from Mr. Quintana’s

supposed ethnicity.” Id. at 12. This contention is not supported by any citation to

the record. Mr. Quintana also maintains that “[t]he evidence at the hearing on the

motion showed that law enforcement would not have tried to talk to Mr. Quintana

absent the officers’ mistaken belief that he was “Middle Eastern or Muslim.” Id.

This Court reviews the denial of a motion to dismiss an indictment for abuse of

discretion. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). In

determining whether a district court has abused its discretion, we must review

issues of law de novo. United States v. Robinson, 505 F.3d 1208, 1225 n.24 (11th

Cir. 2007). We must review findings of fact for clear error. United States v.

Trainer, 376 F.3d 1325, 1329-30 (11th Cir. 2004).

Relying on the Sixth Circuit’s opinion in United States v. Avery, 137 F.3d

343 (6th Cir. 1997), the district court concluded that a consensual encounter

initiated solely because of a person’s racial or ethnic appearance may violate the

Fourteenth Amendment. In Avery, the appellant, a young African-American

claimed that his initial consensual encounter with the police was based solely on

his racial appearance. Id. at 346. The Sixth Circuit held that the arrest of a person

solely because of his racial appearance is a violation of the Fourteenth

Amendment. It reasoned as follows:

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[W]e find that citizens are entitled to equal

protection of the laws at all times. If law enforcement

adopts a policy, employs a practice, or in a given

situation takes steps to initiate an investigation of a

citizen based solely upon that citizen’s race, without

more, then a violation of the Equal Protection Clause has

occurred.

Id. at 355.

The Sixth Circuit affirmed the conviction in Avery, however, because “the

evidence in this case supports pursuit of him independent of his race.” Id. at 352.

In reaching this conclusion, the Sixth Circuit relied upon the following principle

set forth in Samuels v. Dallas, 940 F.2d 925 (5th Cir. 1991): “The heart of the

Equal Protection clause is its prohibition of discriminatory treatment. If a

governmental actor has imposed unequal burdens based on race, it has violated the

clause.” Id. at 932.

III

In the district court’s order denying the motions to suppress and dismiss, it

summarized the testimony of Detective Tello and Detective Ruth as follows:

During the evidentiary hearing, Officers Richard

Ruth and Roberto Tell[o] testified and described their

observations of Mr. Quintana. They both testified that,

[3]

For the most part, the testimony of Officer Ruth and Officer

[3]

Tell[o] is consistent with regard to their prior sightings of Mr.

Quintana, The officers were often together when these sightings

occurred. The testimony is, however, irreconcilable pertaining to

one important detail. Officer Ruth testified that when he saw Mr.

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Quintana outside nightclubs, he always had a camera and was

engaged in the filming of the entrances to the clubs. Officer

Tell[o], on the other hand, testified that he had never seen Mr.

Quintana with a camera before January 16, 2007. For the purpose

at hand, I accept Officer Tell[o]’s version of the facts. 

while working together, they had seen Mr. Quintana

many times prior to his arrest on January 16, 2007. On

each occasion, Mr. Quintana was in downtown Orlando

outside various nightclubs. The officers never saw Mr.

Quintana enter the nightclubs or stand in line to do so; he

was always on the sidewalk observing. Both officers

testified that when Mr. Quintana observed them

approaching, he would invariably leave. Mr. Quintana is

slightly built, dark complected, and he wears a beard.

Because of his appearance, the officers thought he was

“Muslim,” “a Middle Easterner,” or “Pakistani.” In fact,

he is from Mexico.

Officers Ruth and Tell[o] again saw Mr. Quintana

on January 16, 2007 outside the Firestone Club. On this

occasion Mr. Quintana was filming the entrance of the

club. Upon observing Mr. Quintana, Officer Ruth

directed a subordinate officer to do a “field investigation

report.” Complying, the subordinate officer approached

Mr. Quintana and asked if he could see identification.

Mr. Quintana produced identification and the officer

forwarded the information by radio. The officer was then

advised by return communication that there was a

warrant for Mr. Quintana’s arrest, prompting the officer

to order Mr. Quintana to sit on the sidewalk. Other

officers came to the scene including Officer Ruth who

was surprised to learn that Mr. Quintana was Mexican,

stating that he had believed him to be Pakistani. Mr.

Quintana was then arrested and taken into custody. Still

uncertain about Mr. Quintana’s religion and ethnicity,

Officer Ruth later went to the jail to question Mr.

Quintana’s about any connection he might have with

Islam.

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Based on the officers’ testimony, which the district court found credible, it

concluded that while Mr. Quintana’s apparent ethnicity played a role in the

encounter, the facts do not support a finding that it was the sole basis for initiating

the encounter. Prior observations of Mr. Quintana by law enforcement,

“considered with the observations from the night in question form a sufficient

constitutional basis for law enforcement initiating contact with Mr. Quintana.”

In the reply brief, Mr. Quintana’s counsel argues that “[h]ad they not

decided that Mr. Quintana was ‘Middle Eastern,’ the law enforcement officers

would not have even approached him.” This argument is contrary to Detective

Tello’s testimony.

Detective Tello was asked the following question at the evidentiary hearing:

“Would you have wanted to contact him if he had blonde hair and blue eyes, given

his course of conduct?” Detective Tello replied: “Given any ethnicity I would

have wanted to contact him based upon the long period fleeing and now showing

up at the club with a video camera and not wanting to go in and taking flight upon

seeing us.” The district court credited this testimony.

The question whether the Equal Protection Clause is violated where the sole

reason to initiate a consensual police encounter based on race or ethnicity is a

novel question not previously addressed by this Court. We need not decide that

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issue in this matter because the record shows that the consensual encounter in this

matter was not based on Mr. Quintana’s apparent race or ethnicity.

Mr. Quintana has failed to demonstrate that the district court abused its

discretion in denying his motion to dismiss the indictment. The district court did

not clearly err in its finding that Mr. Quintana’s apparent race or ethnicity was not

the sole factor relied upon by Detective Ruth in directing Officer Stanley to initiate

a consensual encounter.

IV

For the first time in its responsive brief, the Government asserted that

dismissal of an indictment is not the appropriate remedy if the record shows that a

person’s apparent race or ethnicity is the sole reason for a consensual encounter.

The Government did not raise this novel question before the district court. It has

also failed to cite any decision that directly supports this proposition. During oral

argument, counsel for the Government stated that this Court need not reach the

question whether dismissal of an indictment is an appropriate remedy for a

violation of the Equal Protection Clause of the Fourteenth Amendment. Because

we are persuaded that Mr. Quintana has not met his burden of demonstrating a

violation of the Fourteenth Amendment, we decline to consider the question

whether dismissal of an indictment is an appropriate remedy where the evidence

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demonstrates a violation of the Equal Protection Clause.

Conclusion

The undisputed evidence shows that Detectives Tello and Ruth mistakenly

concluded that Mr. Quintana was a Middle Easterner weeks prior to January 16,

2007. They decided to initiate a consensual encounter on that date after they

observed him photographing the Firestone Club. They decided to do so based on

their knowledge that international terrorists have blown up nightclubs because they

represent American debauchery. In United States v. Cortez, 449 U.S. 411 (1981),

the Supreme Court instructed that “a trained officer draws inferences and makes

deductions–inferences and deductions–that might elude an untrained person.” Id.

at 418. We are persuaded that the totality of the circumstances known to the

officers were sufficient to justify a consensual encounter to determine Mr.

Quintana’s identity in order to decide whether further investigation might reveal

that he was engaged in subversive or terrorist activities.

The circumstantial evidence in this record clearly supports an inference that

Mr. Quintana’s apparent race or ethnicity was not the sole factor in triggering the

consensual encounter. The evidence credited by the district court, viewed in the

light most favorable to the Government, supports its finding that Mr. Quintana was

not subjected to a violation of his right to equal protection. The district court did

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not abuse its discretion in denying Mr. Quintana’s motion to dismiss the

indictment.

AFFIRMED.

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