United States v. Arellano , 410 F. App'x 603 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5012
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR ARELLANO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:09-cr-00241-LMB-1)
Argued: December 10, 2010 Decided: February 8, 2011
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jason Hudson Poole, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Caroline S. Platt, Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Lore A.
Unt, Special Assistant United States Attorney, Robert E.
Friedman, Special Assistant United States Attorney, Gene Rossi,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Omar Arellano of possession and use of a
fraudulent resident alien card and possession of a stolen or
unauthorized social security card. The district court sentenced
him to twelve months imprisonment. Arellano appeals, challenging
three pretrial rulings of the district court. We affirm.
I.
First, Arellano maintains that the district court erred in
denying his motion to suppress evidence the police found when
searching his car.
A.
On April 7, 2009, at approximately 2:50 pm, Deputy Sheriff
Steven Shiner stopped a blue Toyota Corolla driven by Arellano
because of a broken brake light. When Deputy Shiner,
communicating in Spanish, asked Arellano for identification, he
provided a Mexican driver’s license. The deputy asked Arellano
for his home address; Arellano replied that he lived at Kira
Court, a local housing complex, but refused to give the exact
address or the names of the people with whom he lived. After the
officer ran the car’s tag number through the system, he
discovered that the tags had been issued to a grey Corolla with a
different VIN number.
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The deputy then asked Arellano to step out of the vehicle,
and Arellano consented to a search of his person. Deputy Shiner
found $480 in U.S. currency, a wallet, about 30 business cards
for a Latino photography business, and a cell phone. When the
officer asked for the car’s registration, Arellano said he did
not have it because the vehicle belonged to a friend, but refused
to provide the name of that friend. At Deputy Shiner’s
direction, Arellano sat in the back seat of the police car for
five to ten minutes, during which time the deputy determined that
his foreign driver’s license was invalid. Arellano had still not
provided an address which would allow for the officer to release
him on a summons, and Deputy Shiner later testified that he
decided at that point to take Arellano into custody and tow the
vehicle, which was improperly registered and was blocking the
egress of a business.
Before the vehicle was towed, the deputy proceeded to search
it and found, hidden under the floor mats, coin envelopes
containing social security cards, permanent resident cards, an
employment authorization card, and a Virginia state
identification card, which he suspected was fraudulent. He also
found a digital camera in the glove compartment and another in
the console between the two front seats. The officer took
Arellano into custody, read him a Miranda warning, and advised
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him that he was under arrest for lacking proper registration and
a valid operator’s license.
B.
Arellano contends that the officer illegally searched his
car and so the district court should have suppressed the fruit of
that search. The court denied Arellano’s motion to suppress,
finding that Deputy Shiner arrested Arellano when he was seated
in the back of the police car and so the search accompanied a
valid arrest. We need not reach the question of whether Arellano
was actually under arrest when the deputy seated him in the
police car because the police would, in any event, have soon
thereafter arrested Arellano and so inevitably discovered the
evidence in Arellano’s car.
Under the doctrine of inevitable discovery, “information
obtained by unlawful means is nonetheless admissible ‘[i]f the
prosecution can establish by a preponderance of the evidence that
the information ultimately or inevitably would have been
discovered by lawful means.’” United States v. Allen, 159 F.3d
832, 838 (4th Cir. 1998) (citing Nix v. Williams, 467 U.S. 431,
444 (1984)). The inevitable discovery doctrine applies only
where “routine or factually established investigative steps . . .
would inevitably lead to discovery of the evidence;” speculation
and conjecture may play no role in the analysis. Allen, 159 F.3d
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at 841; see also United States v. Thomas, 955 F.2d 207, 209, 210
(4th Cir. 2010).
Here, the deputy, whose credibility was not questioned,
testified that Arellano offered only an invalid operator’s
license and improper vehicle registration. Given these facts and
Arellano’s refusal to provide a verifiable address to allow for
his release on summons, the officer would soon have arrested
Arellano, even if he had not done so when he ordered Arellano
into the patrol car. Once Arellano was under arrest, impounding
the vehicle would have been a matter of course. The Fauquier
County Sheriff’s Office General Order 5.27 specifically
authorizes impoundment under those circumstances. Importantly,
the Order also provides that law enforcement officials conduct a
standard inventory search at the time of towing. These are
precisely the “routine or factually established investigative
steps” that Allen contemplates in its discussion of the
inevitable discovery doctrine. 159 F.3d at 841. See, e.g.,
United States v. Lynn, 592 F.3d 572 (4th Cir. 2010) (finding that
the inevitable discovery doctrine would provide the basis to
arrest the defendant then conduct an inventory search of his
vehicle).
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II.
Second, Arellano argues that the district court erred in
denying his motion to suppress evidence obtained from the search
of his cell phone.
At the police station, Deputy Shiner turned on Arellano’s
cell phone, which, at that point, was powered off. The deputy
proceeded to answer and return several calls to Arellano’s phone.
Speaking in Spanish to Deputy Shiner, the callers inquired about
their identification cards and social security numbers. The
deputy later took Arellano to the jail for booking.
More than two months later, on June 17, 2009, the Government
obtained a search warrant for the cell phone. The Government
submitted an affidavit in support of the warrant from a senior
special agent with Immigration and Customs Enforcement that
included one sentence describing the information Deputy Shiner
acquired by turning on and using the cell phone. A magistrate
judge granted a search warrant for the contents of the cell
phone. During the execution of the warrant, law enforcement
officials extracted contacts, call logs, and text messages from
the phone. Some of the text messages included information
matching identification documents from the seized vehicle. One
text message contained a birthday greeting sent on Arellano’s
date of birth.
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Arellano moved to suppress the evidence gathered from the
cell phone. The district court found that while the deputy’s
initial seizure of the phone was permissible, turning on and
using the phone at the station constituted a warrantless search
that exceeded the scope of a search incident to arrest. The
court recognized that one sentence in the affidavit relied on
evidence flowing from this unlawful act, but found that the
sentence did not taint the search warrant because, independent of
that sentence, the affidavit stated probable cause for the
warrant.
We agree. Our review is deferential in nature; “the duty of
a reviewing court is simply to ensure that the magistrate had a
substantial basis for . . . conclud[ing] that probable cause
existed.” Illinois v. Gates, 462 U.S. 213, 238 (1983) (internal
quotation omitted). Thus, we simply “determine whether, when
[the improper] evidence is excluded from the application for the
warrant, probable cause to support the warrant still existed.”
United States v. Moses, 540 F.3d 263, 271 (4th Cir. 2008)
(internal quotation omitted).
The sentence in question states: “Within several hours, the
deputy answered several incoming calls to the cellular telephone,
including one call from an individual wanting to return his
cards, one call from an individual wanting his identification
card, and one call from an individual wanting to speak to
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‘Omar.’” Without that sentence, the affidavit sets forth the
basic facts surrounding the stop and search -- namely that
Arellano refused to provide his address or offer an explanation
of whose vehicle he was operating and that the deputy found in
the car 14 suspicious identification documents in other people’s
names, 30 business cards for a company called “Foto Latino,” and
two digital cameras, and found in Arellano’s pockets the cell
phone sought to be searched. The affidavit also explains that
cell phones commonly contain text messages, phone numbers,
contacts, personal calendars, dates, and other electronic records
that would provide evidence of Arellano’s alleged unlawful
activity.
Given the presence of business cards related to producing
photographs for false identification cards and containing a
printed phone number, in close proximity to the cell phone which
appeared to be Appellant’s, and 14 suspected false identification
cards, law enforcement agents reasonably looked to the cell phone
for evidence of Arellano’s unlawful activity. See United States
v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (noting that “the
nexus between the place to be searched and the items to be seized
may be established by the nature of the item and the normal
inferences of where one would likely keep such evidence.”).
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III.
Finally, Arellano contends that the district court erred in
denying his motion in limine to exclude a witness’s
identification testimony.
A.
Arellano challenges the in-court identification of
Victoriano Ticas, whom Arellano had purportedly approached at a
Wal-Mart four to five months before the trial and for whom he
agreed to make a false identification card. On the evening of
July 22, 2009, law enforcement officials went to Ticas’s home and
showed him a single photo of Arellano, along with the false
identification cards they had found in Arellano’s car (including
one with a photo of Ticas). When asked if he recognized
Arellano’s photo, Ticas stated that he did not. Ticas was not
wearing his glasses, and the agent conducting the interview
suspected that Ticas was under the influence of alcohol. Two
days later, the agents returned and showed the same photo to
Ticas, who then stated that he recognized Arellano and had seen
him on one occasion about five months earlier in a Wal-Mart
parking lot.
At the third interview, a few days later, the agents showed
Ticas the same photo in a spread of photos that included photos
of five other Hispanic males. That meeting was conducted in the
back of a government-operated vehicle, with three law enforcement
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agents present. At that point, the agents offered Ticas immunity
from prosecution for seeking fraudulent documentation and
assistance obtaining legal status. Again, Ticas stated that he
recognized Arellano.
On July 30, 2009, Arellano filed a motion in limine to
exclude Ticas’s identification as unduly suggestive. The
district court ordered that the motion would be addressed in
court. When the Government called Ticas at trial, Arellano did
not object. Ticas first testified that he did not recognize
anyone in the courtroom and then, after putting on his glasses,
identified Arellano. After trial, the court denied the motion in
limine as moot.
B.
In determining whether identification testimony is
admissible, we employ a two-step analysis. “First, the defendant
must establish that the photographic lineup procedure was
impermissibly suggestive. . . . Second, even if the procedure
was suggestive, the in-court identification is valid if it was
reliable.” United States v. Wilkerson, 84 F.3d 692, 695 (4th
Cir. 1996) (internal citations omitted).
Assuming that the identification procedure at issue here was
impermissibly suggestive, we cannot hold that its admission
constitutes reversible error. This is so because the second step
of the inquiry allows for the admission of identification
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evidence despite its improper suggestiveness “if the
identification was sufficiently reliable to preclude the
substantial likelihood of misidentification.” United States v.
Johnson, 114 F.3d 435 (4th Cir. 1997).
In assessing the reliability of an identification, we
consider: “(1) the witness’ opportunity to view the perpetrator
at the time of the crime; (2) the witness’ degree of attention at
the time of the offense; (3) the accuracy of the witness’ prior
description of the perpetrator; (4) the witness’ level of
certainty when identifying the defendant as the perpetrator at
the time of the confrontation; and (5) the length of time between
the crime and the confrontation. . . . These factors are weighed
against the ‘corrupting effect of the suggestive identification
itself.’” Wilkerson, 84 F.3d at 695 (internal citations
omitted).
Here, the first two factors counsel strongly in favor of the
reliability of the identification. Ticas had approximately three
minutes to view Arellano. Moreover, the meeting took place face-
to-face, one-on-one, and in the daytime. Compare United States
v. Saunders, 501 F.3d 384, 392 (4th Cir. 2007) (the facts that
the witness had a “clear view of the side of [defendant’s] face”
and made eye contact for “about three to four seconds, maybe a
little longer” weighed in favor of the reliability of the
identification) and Wilkerson, 84 F.3d at 695 (in-court
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identification would be reliable because witnesses saw
defendant’s face “in broad daylight while their full attention
was focused on him”). With respect to the degree of attention at
the time of the encounter, Ticas met directly with Arellano,
spoke with him, exchanged phone numbers with him, and had his
photo taken by him. By contrast, “[i]n-court identifications
have also been upheld even when a witness had only a brief but
‘real good look’ at his assailant in the headlights of a passing
car.” United States v. Burgos, 55 F.3d 933, 942 (4th Cir. 1995),
citing Neil v. Biggers, 409 U.S. 188, 197 (1972).
Given that the record contains no evidence that law
enforcement agents asked Ticas to describe Arellano prior to
showing him the photo, the third factor plays no role here. The
fourth factor (the witness’ level of certainty), like the first
two, weighs in favor of reliability. Although Ticas failed to
identify Arellano when he first saw the photo, he reasonably
attributed that failure to the fact that it was nighttime and he
was not wearing his glasses at the time. Furthermore, Ticas
successfully identified the camera that Arellano used to take his
picture, and he stated in court that he was “sure” Arellano was
the person at Wal-Mart who took his photo and agreed to make the
false documents.
Only the fifth factor weighs against the reliability of
Ticas’s identification. The Government concedes that the fact
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that “four or five months” passed between Ticas’s initial meeting
with Arellano and his in-court identification “arguably favors
the identification being unreliable.” Appellee’s Br. at 57. The
Supreme Court, however, has found that a time delay of seven
months between an encounter and an in-court identification did
not undermine the reliability of the identification. Neil, 409
U.S. at 201.
Ultimately, this case falls squarely in line with the great
majority of identification cases in which courts find
circumstances determined to be suggestive nonetheless
“sufficiently reliable to preclude the substantial likelihood of
misidentification” under the second prong of the test. See
Johnson, 114 F.3d at 442 (citing United States v. Washington, 12
F.3d 1128 (D.C. Cir. 1994); United States v. Sanchez, 988 F.2d
1384 (5th Cir. 1993); Ruff v. Wyrick, 709 F.2d 1219 (8th Cir.
1983)).
IV.
For all of these reasons, the judgment of the district court
is
AFFIRMED.
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