FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 SEPTEMBER 16, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-10196

Non-Argument Calendar

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D. C. Docket No. 07-00348-CR-CC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE DEL CARMEN VASQUEZ-ORTIZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(September 16, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Jose Del Carmen Vasquez-Ortiz appeals his conviction and 46-month
sentence imposed for re-entry into the United States by an alien previously

removed subsequent to a conviction for commission of an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b)(2). Vasquez-Ortiz filed a motion to

suppress evidence, which the district court granted as to his post-arrest custodial

statements and denied as to the rest of the evidence. Vasquez-Ortiz subsequently

pled guilty pursuant to a written plea agreement, wherein he waived his right to

appeal his conviction and sentence, except that he reserved the right to appeal:

(1) a sentence higher than 57 months’ imprisonment and (2) the district court’s

order resolving his motion to suppress.

On appeal, he argues that his detention and arrest were not supported by

reasonable suspicion and probable cause, respectively, such that the district court

erred when it denied his motion to suppress. Accordingly, he asserts that his other

statements, fingerprints, photographs, alien file, and any other evidence should be

suppressed. Furthermore, he argues that his sentence was unreasonable, but

concedes in his reply brief that in his plea agreement he waived his right to appeal

his sentence.

I. Motion to suppress

We review a district court’s denial of a defendant’s motion to suppress under

a mixed standard of review, reviewing the district court’s findings of fact for clear

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error and the district court’s application of law to those facts de novo. United

States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). The court’s factual

findings are construed in the light most favorable to the prevailing party. United

States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006). Additionally, we give the

district court’s credibility determinations great deference. United States v. Clay,

376 F.3d 1296, 1302 (11th Cir. 2004) (internal quotation marks and citation

omitted).

The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated. . . .” U.S. Const. amend. IV. Generally, any

evidence obtained by unconstitutional searches and seizures is inadmissible in

court. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961). In

addition to the illegally obtained evidence, the defendant may suppress

incriminating evidence that was derived from that primary evidence, i.e., “fruit of

the poisonous tree.” United States v. Terzado-Madruga, 897 F.2d 1099, 1112

(11th Cir. 1990) (citation omitted).

There are three categories of police-citizen encounters contemplated within

the Fourth Amendment: “[(1)] police-citizen communications involving no

coercion or detention; [(2)] brief seizures or investigatory detentions; and [(3)]

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full-scale arrests.” United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.

1989) (citations omitted). The first category does not implicate Fourth

Amendment scrutiny. Id.

As to the second category, law enforcement officers may briefly detain a

person for an investigatory stop if they have a reasonable, articulable suspicion

based on objective facts that the person has engaged, or is about to engage, in

criminal activity. See Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85

(1968). Reasonable suspicion requires “more than a hunch”; it requires that the

totality of the circumstances create, at least, “some minimal level of objective

justification” for the belief that the person engaged in unlawful conduct. United

States v. Diaz-Lizaraza, 981 F.2d 1216, 1220-21 (11th Cir. 1993) (citation

omitted).

“[A] person is ‘seized’ only when, by means of physical force or a show of

authority, his freedom of movement is restrained.” United States v. Mendenhall,

446 U.S. 544, 553, 100 S. Ct. 1870, 1877 (1980). The Supreme Court has

indicated that the proper inquiry is whether, in view of all of the circumstances

surrounding the incident, a reasonable person would have believed that he was not

free to leave. Id. at 554, 100 S. Ct. at 1877.

As to the third category, “when the totality of circumstances indicate that an

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encounter has become too intrusive to be classified as a brief seizure, the encounter

is an arrest and probable cause is required.” United States v. Espinosa-Guerra, 805

F.2d 1502, 1506 (11th Cir. 1986) (citation omitted). “Whether or not an arrest has

occurred depends on the particular facts involved in an incident. No formal words

are required stating that an individual is under arrest and it is not necessary that a

formal arrest record be filed.” United States v. Ashcroft, 607 F.2d 1167, 1170 (5th

Cir. 1979) (citation omitted) . We have recognized a non-exclusive list of factors

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that may indicate an arrest: “the blocking of an individual’s path or the impeding

of his progress; the display of weapons; the number of officers present and their

demeanor; the length of the detention; and the extent to which the officers

physically restrained the individual.” Hastamorir, 881 F.2d at 1556. Of course,

“[o]nce a Terry stop exceeds its carefully circumscribed limits, the police must

observe the probable cause requirement.” United States v. Mosquera-Ramirez, 729

F.2d 1352, 1356 (11th Cir. 1984) (citation omitted).

Probable cause exists “when the facts and circumstances within the officer’s

knowledge, of which he or she has reasonably trustworthy information, would

cause a prudent person to believe, under the circumstances shown, that the suspect

In Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), 1

the newly-formed Eleventh Circuit adopted as binding precedent all of the decisions of the

former Fifth Circuit handed down prior to the close of business on September 30, 1981.

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has committed, is committing, or is about to commit an offense.” United States v.

Lyons, 403 F.3d 1248, 1253 (11th Cir. 2005) (internal quotation marks and citation

omitted). “For probable cause to exist, an arrest must be objectively reasonable

based on the totality of the circumstances.” United States v. Street, 472 F.3d 1298,

1305 (11th Cir. 2006) (citation and ellipsis omitted). As such, the officer’s own

subjective opinions or beliefs about probable cause are irrelevant. Id.

The Supreme Court’s “Fourth Amendment jurisprudence has consistently

accorded law enforcement officials greater latitude in exercising their duties in

public places.” Florida v. White, 526 U.S. 559, 565, 119 S. Ct. 1555, 1559 (1999).

“For example, although a warrant presumptively is required for a felony arrest in a

suspect’s home, the Fourth Amendment permits warrantless arrests in public places

where an officer has probable cause to believe that a felony has occurred.” Id.

Under 8 U.S.C. § 1357, immigration officers are authorized, without a

warrant, “to interrogate any alien or person believed to be an alien as to his right to

be or to remain in the United States. . . .” 8 U.S.C. § 1357(a)(1). This authority,

however, is subject to the principles of the Fourth Amendment. United States v.

Rodriguez-Franco, 749 F.2d 1555, 1559 (11th Cir. 1985).

“Every alien . . . shall at all times carry with him and have in his personal

possession any certificate of alien registration or alien registration receipt card

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issued to him. . . .” 8 U.S.C. § 1304(e). A violation of this section is a

misdemeanor. Id.

While Vasquez-Ortiz was sitting at the top of a staircase in a public location,

two law enforcement officers ascended the staircase and approached him. The law

enforcement officers, who were patrolling a public location known to be a hangout

for gangs with illegal alien membership, noted that Vasquez-Ortiz was dressed in

attire that indicated gang membership and appeared to have a tattoo that indicated

gang membership. As such, the officers has reasonable suspicion to conduct an

investigatory stop of Vasquez-Ortiz.

The officers neither drew their weapons, raised their voices, touched

Vasquez-Ortiz, nor directed him to do anything. Rather, consistent with an

investigatory stop, the officers asked Vasquez-Ortiz a series of questions. The

officers inquired into where Vasquez-Ortiz was from and whether he had

identification. Vasquez-Ortiz responded that he was from El Salvador and did not

have identification. Because the officers had a reasonable suspicion that VasquezOrtiz was an alien based on his answers to their questions, they were then

authorized, without a warrant, to interrogate him about his right to be or remain in

the United States. 8 U.S.C. § 1357(a)(1). The officers then arrested VasquezOrtiz, directing him down the staircase toward additional officers.

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Because the district court has already suppressed all evidence subsequent to

Vasquez-Ortiz’s arrest, with the exception of Vasquez-Ortiz’s spontaneous

statements, the only evidence at issue here is the evidence garnered from the

investigatory stop. The district court did not clearly err when it found that the

arresting officer credibly testified that he asked Vasquez-Ortiz where he was from

and whether he had identification during the first moments of their encounter.

Additionally, the district court properly found that Vasquez-Ortiz’s response–that

he was from El Salvador and did not have any identification– coupled with the

other surrounding circumstances, established reasonable suspicion and probable

cause to believe that he was violating 8 U.S.C. § 1304(e). Thus, the district court

did not err when it denied Vasquez-Ortiz’s motion to suppress. We affirm as to

this issue.

II. Sentence-appeal waiver

We review the knowing and voluntary nature of a sentence-appeal waiver de

novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). A sentenceappeal waiver contained in a plea agreement, made knowingly and voluntarily, is

enforceable. Id. at 1350. To enforce the sentence-appeal waiver, the government

must demonstrate either that (1) the district court specifically questioned the

defendant about the waiver during the change-of-plea colloquy, or (2) the record

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clearly shows that the defendant otherwise understood the full significance of the

waiver. Id. at 1351.

Because Vasquez-Ortiz indicated that he signed and understood his plea

agreement, and the district court reviewed the sentence-appeal waiver with him at

his plea hearing, Vasquez-Ortiz entered into a valid, enforceable waiver. Since his

sentencing claims on appeal do not fall within the limited exception to the waiver,

as he concedes, we dismiss with prejudice as to this issue.

III. Conclusion

We affirm the district court’s denial of Vasquez-Ortiz’s motion to suppress,

and we dismiss with prejudice his challenge to his sentence.

AFFIRM in part; DISMISS WITH PREJUDICE in part.

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