Federal Corner: Taking a Brief “Time-Out” to Call ICE – By F. R. Buck Files Jr.

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Do we have undocumented aliens in Texas? [Yes!] Do undocumented aliens sometimes ride as passengers in motor vehicles? [Yes!] Do we have ICE agents in Texas? [Yes!] If a law enforcement officer stops a vehicle for a traffic offense and has reason to believe that a passenger in the vehicle is an undocumented alien, can he take a “time-out” to call an ICE agent? “Yes,” says the United States Court of Appeals for the Fourth Circuit. See United States v. Guijon-Ortiz, 2011 WL 5438974 (4th Cir. 2011).

In Guijon-Ortiz, Corporal Fred Flowers of the Kanawha County, West Virginia, Sheriff’s office initiated a traffic stop after he saw a truck “cross over into the emergency lane several times.” Flowers made the decision to stop the truck because “[i]t was giving indicators of someone probably impaired or doing suspicious activity.” Flowers found that there were three people in the truck. The driver and the passenger in the front seat furnished Georgia identification cards when Flowers requested that they provide identification. Guijon-Ortiz did not speak English and Flowers asked the driver to tell him that he needed to provide identification to the officer. Guijon-Ortiz handed Flowers a Lawful Permanent Resident Card in the name of Daniel Gaitan.

Flowers contacted his dispatcher and found that there were no outstanding warrants for any of the three individuals. At this time, Flowers did not issue a citation to the driver. Nor did he return the identification furnished by each of the three individuals. Nor did he allow the three to go on their way. Instead, he called his headquarters and asked to be transferred to the local ICE office and spoke to an ICE agent. Flowers was advised that the information on the Gaitan ID did not match the ICE database. At the agent’s request, Flowers had Guijon-Ortiz talk with a Spanish-speaking ICE agent. During the conversation, Guijon-Ortiz admitted that he did not have a green card or other papers authorizing him to be in the United States. The agents then requested Flowers to bring Guijon-Ortiz to the ICE office where he was to be arrested.

Before transporting Guijon-Ortiz to the ICE office, Flowers talked to and observed the driver of the truck. He searched the rear of the vehicle “for anything that was criminal.” He found nothing. Flowers made the decision not to issue a ticket to the driver after concluding that he had not been drinking. The driver and the passenger were permitted to leave.

Guijon-Ortiz was indicted for a violation of illegal reentry after deportation in violation of 8 U.S.C. § 1326(a)(b)(2). His attorney filed a motion to suppress all evidence obtained as a result of the traffic stop and the conversations that occurred after the traffic stop. Judge John T. Copenhaver Jr. of the United States District Court for the Southern District of West Virginia denied the motion. The opinion of the Court does not reflect the sentence imposed; however, the defendant timely appealed. A panel of the Circuit affirmed the judgment of the trial court [Gregory and Davis, Circuit Judges, and Damon J. Keith, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation]. Judge Davis’ opinion reads, in part, as follows:

[Guijon-Ortiz’s Argument]

We now turn to the stop leading to the discovery of evidence of Guijon-Ortiz’s illegal reentry. Guijon-Ortiz argues that at the moment Flowers learned there were no outstanding warrants associated with the three names he had given the dispatcher, the justification for the traffic stop ended. At that point, he argues, the Fourth Amendment required Flowers to return the ID cards and send the driver and passengers on their way.

[The Court’s Response]

We disagree. Although the officer’s call to ICE was unrelated to the justification for the stop and extended the time (if only for a portion of “a few minutes”) during which the officer kept the vehicle at the side of the highway, the totality of the circumstances demonstrates that Flowers “diligently pursue[d] the investigation of the justification for the stop,” Digiovanni, 650 F.3d at 509, and was not otherwise “dilatory in [his] investigation.” Sharpe, 470 U.S. at 686–87, 105 S.Ct. 1568. The facts here demonstrate that Flowers acted diligently for several reasons.

[Calling ICE Is Similar to Checking a Driver’s License and Registration]

First, calling ICE to inquire into the validity of the Gaitan ID is analogous in many ways to how an officer routinely runs a driver’s license and registration to check their validity. Although the record does not reflect whether Flowers could have checked the validity of the ID without calling ICE, the fact is that the defendant voluntarily handed the officer an ID that the circumstances show the defendant knew to be fraudulently made. During a traffic stop an officer may “request[ ] a driver’s license and vehicle registration” and “run[ ] a computer check.” Digiovanni, 650 F.3d at 507. The similarity of the officer’s actions here to those actions is a factor demonstrating diligence.

[The Call Took “Only a Few Minutes”]

Second, the time it took to call ICE was very brief. The record is unclear on precisely how much time passed between when Flowers learned that there were no outstanding warrants for Juan, Noe, and “Daniel Gaitan” and when he learned from Hilton that the name and number on the LPR card did not match. All the record confirms is that it took less than “a few minutes.” But it is clear from the record that the amount of time was substantially less than, for example, the time the officer in Digiovanni took to question the defendant about drug trafficking, questioning that was “extensive and time-consuming.” 650 F.3d at 510. It was also less than the duration of the unrelated questioning in Mason. Although we described the unrelated questioning as causing only a “brief delay,” see Mason, 628 F.3d at 133, in fact the questioning there was extensive in scope, including roughly a dozen questions about matters unrelated to the tint of the vehicle’s windows, which had provided the justification for the stop. See id. at 139 (Gregory, J., dissenting). The fact that Flowers made just a single, brief phone call does not demonstrate that he had definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation.

[The Purpose of the Stop Was “Still Alive”]

Third, as in Everett, the purpose of the stop was “still alive” at the time Flowers called ICE. See Everett, 601 F.3d at 492 n. 9. Flowers stopped the truck when it exceeded the speed limit and weaved onto the shoulder, which led him to believe the driver was “probably impaired.” J.A. 38. At the time he ran the warrant search and called ICE, he had not yet assured himself that the driver had not been drinking. Only after he returned to the vehicle to tell the driver that Guijon-Ortiz would be taken to ICE was Flowers able to assure himself that the driver had not been drinking.

[The Call Was Only a Brief Detour]

Fourth, although checking the validity of the LPR card and thereby checking the defendant’s immigration status was unrelated to the purpose of the traffic stop—and thereby beyond the scope of the justification for the stop—the call was a single, brief detour from an otherwise diligent investigation into whether the driver was impaired. A different situation might have been presented if, for example, Flowers had not only called ICE but also called the IRS to check about unpaid taxes, the West Virginia Bureau for Child Support Enforcement to check about unpaid child support, or some other dalliance into unrelated records of possible wrongdoing.

[The Totality of the Circumstances]

For these reasons, we conclude that, under the totality of the circumstances, and despite the brief phone call to ICE to verify the validity of the LPR card the defendant had provided, the officer diligently pursued the investigation into the driver’s perceived impairment. Therefore, we need not decide whether the officer had reasonable suspicion to believe illegal activity was afoot at the time he called ICE. Nor need we address the government’s argument that, if the prolonged seizure was unlawful, an exception to the exclusionary rule applies. See United States v. Oscar-Torres, 507 F.3d 224, 231–32 (4th Cir.2007).

[This Opinion Is to Be Narrowly Interpreted]

We pause here to emphasize the narrowness of our holding. The time it took for the officer to call ICE was at most “a few minutes.” The officer’s concern that led to the stop—that the driver was somehow dangerously impaired—had not yet been dispelled. And, Flowers chose to call ICE to verify the validity of the Gaitan ID the (somewhat nervous) defendant provided, rather than subjecting him to questioning on the topic. Extending the stop to verify the validity of the ID without reasonable suspicion might well have rendered the stop unreasonable if the stop had been longer or if some other aspect of the officer’s conduct had demonstrated definitive abandonment of the prosecution of the traffic stop.

My Thoughts

  • It has now been twelve years since the United States Court of Appeals for the Fifth Circuit decided United States v. Dortch, 199 F.3d 193 (5th Cir. 1999). During those dozen years, the Court and the district courts within the Circuit have intellectually wrestled with the “exceeded the purpose of the stop” issue in some 150 cases. None, however, has presented the Court with the fact situation in Guijon-Ortiz.
  • I would be willing to wager that some bright DPS trooper will take advantage of the lesson in Guijon-Ortiz and the Fifth Circuit will be presented with this issue in the not-too-distant future.
TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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