Submitted: September 22, 2017
Appeal
from United States District Court for the Northern District
of Iowa - Cedar Rapids
Before
LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
ARNOLD, Circuit Judge.
After
Nicolas Cobo-Cobo was indicted for misusing a social security
number, see 42 U.S.C. § 408(a)(7)(B), he moved
to suppress evidence obtained during a police encounter that
occurred more than four years before. The district court,
[1]
adopting the report and recommendation of the magistrate
judge, [2] denied the motion. Cobo-Cobo pleaded
guilty but reserved his right to appeal the district
court's denial of his motion to suppress. He now appeals
that ruling, and we affirm.
Special
Agents Michael Fischels and Andrew Lund with the Department
of Homeland Security were helping a local police department
investigate a stabbing incident when one Elias Mendoza-Marcos
piqued their interest. According to Fischels, they followed
Mendoza-Marcos to a laundromat and, once he got out of his
car, Fischels told him that they were investigating a
stabbing and began questioning him. Though it became apparent
that Mendoza-Marcos was not involved in the stabbing, the
agents began to suspect that Mendoza-Marcos might be in the
country illegally when he could not furnish a
government-issued form of identification. Mendoza-Marcos told
the agents that he lived in an apartment in the building
containing the laundromat and acknowledged that other people
lived with him. He also admitted that he was from Guatemala
and that he had no documentation authorizing him to live in
the United States.
The
agents then arrested Mendoza-Marcos and asked him if he
wanted to retrieve any items from his apartment to take with
him to the immigration office. He said he did, and, according
to both agents, consented to their entering the apartment
with him. On their approach to the apartment, one of
Mendoza-Marcos's roommates spoke with him through a
window on the second floor. According to Lund, the roommate
then opened the apartment door and did not object when the
agents entered with Mendoza-Marcos. The agents asked
Mendoza-Marcos and the roommate to round up others who were
in the apartment, and, when they said that Cobo-Cobo was
asleep in a bedroom, the agents requested that they wake him
and gather everyone in the living room to speak with the
agents. Like Mendoza-Marcos, the other occupants could not
provide government-issued identifications, and, after
questioning confirmed that they too were in the country
illegally, the agents arrested them. It is important for
present purposes that, as a result of this incident, the
government obtained Cobo-Cobo's employment identification
card from a business called Carlson Building Maintenance and
placed it in Cobo-Cobo's "alien file"-a
government file that, according to one witness, contains
papers and documents pertaining to a person's immigration
status.
The
identification card resurfaced a little more than four years
later after a deportation officer reviewed Cobo-Cobo's
alien file. The officer contacted Carlson to request a copy
of Cobo-Cobo's I-9 Employment Eligibility Verification
Form, and Carlson obliged. Federal law requires employers to
verify the identity of their employees by checking certain
documents to ensure they are eligible to work in the United
States, which the employer, in an I-9 form, must attest to
having done. See Split Rail Fence Co., Inc. v. United
States, 852 F.3d 1228, 1232 (10th Cir. 2017). While
reviewing Cobo-Cobo's I-9 form, the deportation officer
discovered that Cobo-Cobo had provided Carlson with a social
security number that did not belong to him, leading to the
indictment here.
Cobo-Cobo
asserts that the agents violated the Fourth Amendment by
entering his apartment without permission, and so the
district court should have suppressed the evidence obtained
there. Though police officers generally need a warrant to
enter a home to search or make an arrest, they do not need
one when someone possessing common authority over the home
voluntarily consents to their entry. Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990). Cobo-Cobo relies on
Mendoza-Marcos's testimony that he never gave the agents
consent to enter the apartment, whereas the government relies
on the agents' testimony to the contrary. When reviewing
the denial of a motion to suppress, we review factual
findings for clear error. United States v. Wolff,
830 F.3d 755, 758 (8th Cir. 2016).
The
district court found that Mendoza-Marcos had indeed consented
to the agents' entry into the apartment, and it gave
several cogent reasons for doing so. For example, since the
district court had found that Mendoza-Marcos was placed under
arrest outside the apartment, it thought it reasonable to
believe that the agents would not allow Mendoza-Marcos to
enter the apartment unaccompanied, and so it was in turn
reasonable to think that the agents would ask for permission
to enter the apartment with him. Similarly, the district
court refused to credit Mendoza-Marcos's testimony that
the officers did not identify themselves, ask him where he
lived, or ask him if he lived alone, given that he had
allowed the agents to arrest him and accompany him into the
apartment. The district court also found that
Mendoza-Marcos's conversation with the roommate in the
window did not fit with his testimony that the agents
"just went in" to the apartment. The district
court's choice between two permissible views of the
evidence cannot be considered clearly erroneous, so we are
not left with a "definite and firm conviction" that
the district court made a mistake here, see Lockhart v.
United States, 834 F.3d 952, 957 (8th Cir. 2016),
especially since a finding on witness credibility is
virtually unassailable on appeal. Wolff, 830 F.3d at
759.
Cobo-Cobo
also argues that, even if Mendoza-Marcos consented to the
agents' entry, he did not do so voluntarily since he was
under arrest, was not advised of his right to refuse consent,
had not received Miranda warnings, and had no prior
experience with law enforcement officials. We review a
determination of whether consent was voluntary for clear
error. United States v. Comstock, 531 F.3d 667, 676
(8th Cir. 2008). None of the facts that Cobo-Cobo emphasizes
automatically renders consent involuntary. Officers need not
provide Miranda warnings before requesting consent
to perform a search, United States v. Saenz, 474
F.3d 1132, 1137 (8th Cir. 2007), or inform arrestees of their
right to refuse consent. United States v.
Ortega-Montalvo, 850 F.3d 429, 435 (8th Cir. 2017).
While these omissions can influence a finding of whether
consent was voluntary, we see no clear error with the finding
that Mendoza-Marcos voluntarily consented here. The district
court found that he had at least average intelligence and
that nothing suggested that he was intoxicated or otherwise
without his faculties during the police encounter. The agents
confronted Mendoza-Marcos in a public place and did not
display their weapons, raise their voices, place restraints
on him, or make promises to him before receiving his consent.
We have affirmed findings of voluntary consent in similar
circumstances. See, e.g., Comstock, 531
F.3d at 677-78. Because we conclude that the district court
did not clearly err in finding that Mendoza-Marcos's
consent was voluntary, we need not determine whether the
agents also had authority to accompany him into the apartment
to ensure their own safety and to protect the integrity of
the arrest. See United States v. Varner, 481 F.3d
569, 571-72 (8th Cir. 2007).
We next
consider whether the agents had reasonable suspicion to seize
Cobo-Cobo by adjuring him to sit in the living room for
questioning. We review reasonable-suspicion determinations de
novo. United States v. Fields, 832 F.3d 831, 834
(8th Cir. 2016). The agents could seize Cobo-Cobo if they had
a reasonable, articulable suspicion that criminal activity
was afoot; reasonable suspicion is more than a mere hunch but
less than probable cause or a preponderance of the evidence.
United States v. Roberts, 787 F.3d 1204, 1209 (8th
Cir. 2015). We consider all the relevant circumstances,
keeping in mind that officers may draw on their experience
and training to make inferences from the information they
have. Id.
Cobo-Cobo
maintains that the agents' suspicion that he was in the
country illegally was based solely on his Hispanic heritage,
and points out that a person's heritage alone cannot give
rise to a reasonable suspicion that he is in the United
States illegally. See United States v.
Brignoni-Ponce, 422 U.S. 873, 886-87 (1975). But his
assertion mischaracterizes the record. The district court
determined, on a sufficient record, that the agents'
suspicion was based on a number of considerations in addition
to Cobo-Cobo's heritage. For instance, the court found
that the agents, based on their experience, suspected
Cobo-Cobo was in the country illegally because it was common
for unrelated illegal-alien males to live together, and that
when they seized Cobo-Cobo they had already arrested one of
his unrelated male roommates for being an illegal alien. The
court also credited the agents' testimony that none of
the men spoke English, a circumstance that indicated that
they had not been in the country for long. In addition, Lund
testified that he had been to the same apartment several
times and knew that the landlord rented to undocumented
aliens. It is inconsequential that one or both of the agents
also considered Cobo-Cobo's heritage in seizing him since
Brignoni-Ponce expressly recognizes that heritage
may be a "relevant factor, " among others, in
forming a reasonable suspicion. See id.; see
also United States v. Garcia, 23 F.3d 1331, 1335 (8th
Cir. 1994). We therefore reject this contention.
Cobo-Cobo
also emphasizes that his "mere propinquity to others
independently suspected of criminal activity" did not
provide reasonable suspicion to seize him. See Ybarra v.
Illinois, 444 U.S. 85, 91 (1979). Ybarra is
clearly distinguishable. There, the Supreme Court held that
the Fourth Amendment protected a bar patron whose proximity
to a bartender for whom there was probable cause to search
was the only evidence of the patron's criminal activity.
Id. at 90-91, 96. But as we have already indicated,
other facts besides Cobo-Cobo's propinquity to
Mendoza-Marcos support a conclusion that the agents had
reasonable suspicion to seize Cobo-Cobo. And even assuming
Ybarra applies in the reasonable-suspicion context,
in addition to the probable-cause context in which it arose,
Cobo-Cobo was not merely near Mendoza-Marcos; he lived with
him. See United States v. Cowan, 674 F.3d 947, 954
(8th Cir. 2012). Since we conclude that the agents had
...