* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. SERGIO GANDARILLA-ESTRADA,also known as Jose Luis VillaraelCastro, Defendant - Appellant. No. 98-1001 (D. Ct. No. 97-CR-180-D) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , BRORBY , and KELLY , Circuit Judges.

Pursuant to Federal Rule of Criminal Procedure 11(a )(2), defendant Sergio Gandarilla-Estrada entered a conditional guilty ple a to re-entering the country in violation of 8 U.S.C. § 1326(a) and (b)(2). This s tatute makes it illegal to reenter the United States after having previously bee n deported subsequent to conviction for an aggravated felony without the exp ress consent of the Attorney General. Having properly preserved his right below , defendant appeals the- 2 -

district court’s order denying his Motion to Suppre ss Statements and Evidence. Defendant argues that the district court committed reversible error in denying his motion to suppress because the pertinent statements and evidence resulted from a seizure unsupported by either reasonable suspicion or probable cause. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. In the Spring of 1997, a number of train robberies occurred in the Denver metropolitan area, at or near Commerce City, Colora do. Commerce City Police Department officials investigating these crimes rec eived a tip from a confidential informant that several Mexican nationals living at a house on 80th Avenue in Commerce City had participated in the train robberi es. The informant also told the officers that several occupants of the 80th Ave nue house were illegally within the United States. Sometime thereafter, the inform ant provided the officers with train shipping labels from the 80th Avenue residenc e that corresponded with items stolen from the trains. Throughout the inves tigation, the informant provided reliable information about the alleged tra in robbers’ activities. On April 9, 1997, the informant notified the police that the suspected train robbers and their leader, an individual known as “Apache,” would arrive at the 80th Avenue property at a particular time on April 10, 1997, in a red and white sports utility vehicle (“SUV”). Furthermore, she s tated that illegal aliens would flee from the house if they detected police.- 3 -

Acting on this information, law enforcement officia ls from the Commerce City Police Department and the Immigration and Natu ralization Service (“INS”) put the 80th Avenue residence under surveillance on April 10, 1997. At the time reported, the red and white SUV arrived at the hous e. Less than a minute later, law enforcement officers approached the house in fo ur to six vehicles. At this point, two Hispanic males fled from the residence. Although ordered to stop, the men continued to flee in different directions, one running north. Police chased the two men, but eventually lost the individual run ning north in a large field behind the 80th Avenue house. As these events occurred, Corporal Steve Drake of t he Commerce City Police Department sat in his patrol car about two b locks from the scene of the chase. Corporal Drake had attended the morning bri efing regarding the raid of the 80th Avenue house. He had also heard the radio broadcast concerning the chase, which included the direction in which the su spects had fled and a description of the men. Approximately ten minutes later, Corporal Drake observed Mr. Gandarilla-Estrada casually walk in fr ont of his marked patrol car from the field behind the 80th Avenue house. Mr. G andarilla-Estrada proceeded to cross the street. Because Mr. Gandarilla-Estrad a matched the description of one of the fleeing suspects, Corporal Drake called him back and requested identification. He then asked him from where he wa s coming. Mr. Gandarilla-- 4 -

Estrada stated that he had just come from a flea ma rket and pointed west. Corporal Drake testified that the nearest flea mark et was closed that day and was to the north and that the nearest flea market in th e direction the defendant had pointed was seven to ten miles away. As a safety p recaution, Corporal Drake patted down the defendant and placed him in handcuf fs. At this point, another officer, Sergeant Detective Larry Woog, arrived and identified the defendant as one of the individuals who had fled from the 80th A venue house. After Mr. Gandarilla-Estrada was identified as a su spect, Corporal Drake placed him in a patrol car and took him back to the 80th Avenue residence where INS agents questioned him in Spanish as to his alie nage pursuant to 8 U.S.C. § 1357(a)(1) and (a)(2). Upon questioning, the def endant gave an alias and admitted that he was an illegal alien. Subsequentl y, INS agents booked and fingerprinted him at an INS facility. The fingerpr ints revealed the defendant’s true identity, his criminal record, and prior deportation. On April 18, 1997, the defendant received his Miran dawarning in Spanish. Mr. Gandarilla-Estrada subsequently waived his right to remain silent and executed a sworn statement stating that he had been deported from the country and had re-entered without the express permission o f the Attorney General. Defendant was indicted for re-entering the country in violation of 8 U.S.C. § 1326(a) and (b)(2).- 5 -

Defendant filed a Motion to Suppress Statements and Evidence in which he asked the district court to suppress, under the exc lusionary rule of the Fourth Amendment, any evidence and admissions regarding hi s illegal entry and presence in the United States, the fingerprint evidence, and any evidence derived from his fingerprints – for example, his true identity, crim inal history, and prior deportation. After a two-day suppression hearing, the district court denied defendant’s motion, concluding that Corporal Drake executed a proper Terrystop because he “had a reasonable and articulable suspic ion to stop Defendant, and the detention of Defendant was not for an inordinate ti me.” Dist. Ct. Order at 4. Consequently, the court found that because no Fourt h Amendment violation had occurred, the defendant’s subsequent arrest was law ful. After the district court denied his motion to suppress, defendant entered a conditional guilty plea, reserving his right to appeal the district court’s denial of his motion to suppress. On December 19, 1997, the court sentenced Mr. Ganda rilla-Estrada to 64 months imprisonment followed by a three-year term of supervised release. This appeal followed. When reviewing a district court’s denial of a motio n to suppress, we accept the district court’s factual findings unless they a re clearly erroneous. See United States v. Gama-Bastidas , 142 F.3d 1233, 1237 (10th Cir. 1998). Furthermor e, “we consider the totality of the circumstances and view the evidence in a light- 6 -

most favorable to the government.” United States v . Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998). However, the ultimate deter mination of whether a search or seizure was reasonable under the Fourth Amendment is a question of law that we review de novo. See id. This court has identified three categories of polic e-citizen encounters, each of which triggers a different standard of reasonabl eness under the Fourth Amendment. First, there are consensual encounters that are entirely outside the scope of the Fourth Amendment. See United States v. Torres-Guevara , 147 F.3d 1261, 1264 (10th Cir. 1998). Second, there are inv estigative detentions, otherwise known as Terrystops, which “‘are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity.’” Id. (quoting United States v. Shareef , 100 F.3d 1491, 1500 (10th Cir. 1996)). Lastly, there are custodial arr ests that are reasonable under the Fourth Amendment only if supported by probable caus e. See id. “An encounter is consensual if the defendant ‘is fr ee to leave at any time during the encounter.’” Id. (quoting United States v. Hernandez , 93 F.3d 1493, 1498 (10th Cir. 1996)). Only when a person “‘has a n objective reason to believe that he or she is not free to end the conversation with the officer and proceed on his or her way’” does the encounter become a seizur e. Id. (emphasis in original). After a seizure occurs, the next question is whethe r it constitutes a Terrystop or a- 7 -

custodial arrest. “Terrystops must be limited in scope to the justificatio n for the stop.” United States v. Perdue 8 F.3d 1455, 1462 (10th Cir. 1993). Thus, the off icer may question the detainee during the stop in order to dispel or confirm his or her suspicions, but any further detention is elevated t o an arrest, unless there is
consent. See United States v. Brignoni-Ponce , 422 U.S. 873, 881-82 (1975); Perdue , 8 F.3d at 1462. Although this inquiry focuses on the length and intrusiveness of the seizure, it also considers the safety interests of law enforcement officials. Consequently, “intrusive pr ecautionary measures do not necessarily turn a lawful Terrystop into an arrest under the Fourth Amendment.” Perdue , 8 F.3d at 1463. Because law enforcement official s “should not be required to take unnecessary risks in performing th eir duties, they ‘are authorized to take such steps as [are] reasonably necessary to protect their personal safety and maintain the status quo during the course of [aTerry ] stop.” Id. at 1462 (quoting United States v. Hensley , 469 U.S. 221, 235 (1985)) (alterations in original). For example, this court has held that l aw enforcement officials “may draw guns and use handcuffs during a Terrystop” when they reasonably believe such steps are necessary to protect themselves. Un ited States v. Edwards , 103 F.3d 90, 93 (10th Cir. 1996). We find that Corporal Drake’s encounter with Mr. Ga ndarilla-Estrada prior- 8 -

to placing him in the patrol car was, at most, a Te rrystop. The record indicates that, during this period, Mr. Gandarilla-Estrada wa s detained for no more than a few minutes. The officer only handcuffed and patte d him down as a precautionary matter, and this occurred just moment s before Sergeant Woog identified him as one of the fleeing suspects. Furthermore, Corporal Drake’s questioning was reasonably related to his justifications for the stop – whether the defendant was the individual who had run from the o fficers at the 80th Avenue residence. As a Terrystop, this initial encounter will satisfy the reas onableness requirement of the Fourth Amendment only if it was based, at its inception, on an objectively reasonable and articulable suspicion th at the person seized has or is engaged in criminal activity. See United States v. Soto-Cervantes , 138 F.3d 1319, 1322 (10th Cir. 1998); United States v. Alarcon-Gon zalez , 73 F.3d 289, 293 (10th Cir. 1996). “Whether . . . an investigative detent ion is supported by an objectively reasonable suspicion of illegal activity does not depend on any one factor but on the totality of the circumstances.” United States v. Soto , 988 F.2d 1548, 1555 (10th Cir. 1993). Nonetheless, to supp ort a finding of reasonable suspicion, an officer must be able to point to spec ific and articulable facts, rather than a mere “hunch.” See Soto-Cervantes , 138 F.3d at 1322. Based upon our review of the record, we agree with the district court that- 9 -

Corporal Drake’s initial stop of Mr. Gandarilla-Est rada was supported by reasonable suspicion. The record reveals that Corp oral Drake had ample facts to establish an objectively reasonable and articulable suspicion. First, the confidential informant had provided reliable inform ation to the police that some occupants of the 80th Avenue house had committed tr ain robberies and that some were illegal aliens. Corporal Drake would have bee n familiar with this information, having attended a briefing regarding t he planned raid the morning that it occurred. Second, Corporal Drake had liste ned to the police broadcast regarding the two fleeing men, including a descript ion of the men and where they had fled. Although defendant argues that flight ca nnot alone provide support for probable cause, it may appropriately be considered as one factor in the determination of whether the totality of the circum stances supports a finding of probable cause or reasonable suspicion. See United States v. Silva , 957 F.2d 157, 160 (5th Cir. 1992); United States v. Haye , 825 F.2d 32, 34-35 (4th Cir. 1987); United States v. Pope , 561 F.2d 663, 668 (6th Cir. 1977). Third, within approximately ten minutes of the raid, Corporal Dra ke spotted the defendant, who matched the description of one of the fleeing men, in close proximity to where the chase had ended. These facts establish that Corpor al Drake had an objectively reasonable and articulable suspicion which justifie d a Terrystop of the defendant. This conclusion is bolstered by the defendant’s arg uably consensual response to- 10 -

Corporal Drake’s initial questions, which strongly suggested he was lying about his previous whereabouts. Thus, we find that underthe totality of the circumstances, Mr. Gandarilla-Estrada’s initial det ention was supported by reasonable suspicion. However, Corporal Drake exceeded the bounds of the Terrystop and effected a full-fledged custodial arrest when he pl aced Mr. Gandarilla-Estrada in the patrol car and transported him back to the 80th Avenue residence. To be reasonable under the Fourth Amendment, this warrant less arrest must be based on probable cause. See Baptiste v. J.C. Penney Co. , 147 F.3d 1252, 1256 (10th Cir. 1998). “Probable cause exists if facts and circums tances within the arresting officer’s knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense.” Id. (internal quotations and citations omitted). Defendant argues that no probable cause existed at the point of his arrest. We disagree. In addition to the facts outlined abo ve, prior to placing the defendant under arrest, Sergeant Woog identified hi m as one of the men who had fled from the 80th Avenue house. It is settled law in this circuit that “[o]fficers may rely on information furnished by other law enfo rcement officials to establish reasonable suspicion . . . and to develop probable cause for an arrest.” Albright- 11 -

v. Rodriguez , 51 F.3d 1531, 1536 (10th Cir. 1995) (citations om itted). We find that the incremental additional evidence of Sergean t Woog’s identification of Mr. Gandarilla-Estrada as the fleeing suspect coupled w ith Corporal Drake’s knowledge gained from the raid briefing and Mr. Gan darilla-Estrada’s implausible response to questioning about his former whereabout s provided a sufficient basis for Corporal Drake to find that probable cause exis ted. Accordingly, we conclude that Corporal Drake’s arrest of the defendant at th e time the officer placed him in the patrol car was based on probable cause and was therefore reasonable under the Fourth Amendment. For the above reasons, the district court was corre ct to deny the defendant’s Motion to Suppress Statements and Evidence. AFFIRM ED. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge