United States v. Castillo-Cuevas , 105 F. App'x 511 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
MARIO NELSON CASTILLO-CUEVAS,  No. 04-4155
a/k/a Mario Castillo, a/k/a Nelson
Lopez, a/k/a Mario Cuevas, a/k/a
Mario Cueva,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-03-426-A)
Submitted: June 28, 2004
Decided: August 3, 2004
Before NIEMEYER and DUNCAN, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Stephen D. Quatannens, Alexandria, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Andrew E. Lelling, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. CASTILLO-CUEVAS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mario Nelson Castillo-Cuevas, a/k/a Mario Castillo, a/k/a Nelson
Lopez, a/k/a Mario Cuevas, a/k/a Mario Cueva, a native and citizen
of El Salvador, appeals his conviction for being found present in the
United States without the express consent of the Secretary of the
Department of Homeland Security after previously being deported, in
violation of 8 U.S.C. § 1326(a) (2000); 6 U.S.C.A. §§ 202(4), 557
(West Supp. 2004). Castillo-Cuevas asserts the district court erred
when it denied his motion to suppress evidence of his identity
obtained in an investigatory stop and interrogation by police. Finding
no error, we affirm.
We review the district court’s factual findings underlying its deter-
mination of a motion to suppress for clear error and the district court’s
legal conclusions de novo. United States v. Rusher, 966 F.2d 868, 873
(4th Cir. 1992). When a suppression motion has been denied, we
review the evidence in the light most favorable to the government.
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
"An officer may, consistent with the Fourth Amendment, conduct
a brief, investigatory stop when the officer has a reasonable, articul-
able suspicion that criminal activity is afoot." Illinois v. Wardlow, 528
U.S. 119, 123 (2000); Terry v. Ohio, 392 U.S. 1, 30 (1968). Reason-
able suspicion requires more than a hunch but less than probable
cause and may be based on the collective knowledge of officers
involved in an investigation. Id.; see also United States v. Hensley,
469 U.S. 221, 232 (1985). In assessing police conduct in a Terry stop,
courts must look to the totality of the circumstances. United States v.
Sokolow, 490 U.S. 1, 8 (1989).
"In the ordinary course a police officer is free to ask a person for
identification without implicating the Fourth Amendment." Hiibel v.
UNITED STATES v. CASTILLO-CUEVAS 3
Sixth Judicial Dist. Court of Nev., No. 03-5554, ___ U.S. ___, 2004
WL 1373207, at *5 (U.S. June 21, 2004). Moreover, "questions con-
cerning a suspect’s identity are a routine and accepted part of many
Terry stops." Id. (citations omitted). Officers conducting a Terry stop
may take steps reasonably necessary to check for identification, pro-
tect their personal safety, and maintain the status quo. Hensley, 469
U.S. at 229, 235; see also United States v. Moore, 817 F.2d 1105,
1108 (4th Cir. 1987) (brief but complete restriction of liberty is valid
under Terry).
A suspect is in custody if he has been formally arrested or ques-
tioned under circumstances in which his freedom of action is curtailed
to the degree associated with formal arrest. United States v. Leshuk,
65 F.3d 1105, 1108 (4th Cir. 1995) (citing Stansbury v. California,
511 U.S. 318, 321 (1994)). However, "[i]nstead of being distin-
guished by the absence of any restriction of liberty, Terry stops differ
from custodial interrogation in that they must last no longer than nec-
essary to verify or dispel the officer’s suspicion." Id. at 1109.
Under these principles, we find the district court did not err in
denying Castillo-Cuevas’s motion to suppress. While a determination
of reasonable suspicion does not depend on any single factor, "an
unverified tip from a known informant may alone justify a reasonable
suspicion of criminal activity." United States v. Singh, 363 F.3d 347,
355 (4th Cir. 2004). Our review of the record convinces us that offi-
cers had more than sufficient reasonable and individualized suspicion
to stop and seek identification from Castillo-Cuevas. We also agree
with the district court that Castillo-Cuevas was not in custody until
officers confirmed he was in the United States illegally, he was
informed of his rights under Miranda v. Arizona, 384 U.S. 436(1966), and he was formally placed under arrest. Moreover, the iden-
tity of a defendant "in a criminal or civil proceeding is never itself
suppressible as a fruit of an unlawful arrest, even if it is conceded that
an unlawful arrest, search, or interrogation occurred." INS v. Lopez-
Mendoza, 468 U.S. 1032, 1039 (1984); see also United States v.
Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999) (neither identity
nor INS file is suppressible in a criminal prosecution under 8 U.S.C.
§ 1326). We therefore affirm Castillo-Cuevas’s conviction and sen-
tence.
4 UNITED STATES v. CASTILLO-CUEVAS
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED