On July 23, 2020, the Fourth Circuit Court of Appeals decided the United States v. Santiago-Francisco[i], in which the court examined whether officers had sufficient reasonable suspicion to stop a car that was occupied by a passenger suspected of illegal re-entry into the United States after previously being deported.  The relevant facts of Santiago, taken directly from the case, are as follows:

In October 2018, Special Agent Christopher Robert Holmes of the Department of State Diplomatic Security Service (“DSS”) and Clarksburg police began a joint investigation into Daniel Domingo Perez and Juan Carlos De Leon Zanas, Mexican nationals who were persons of interest in a previous local kidnapping incident.1 While investigating that incident, local officials came to suspect Perez and Zanas were violating federal immigration laws. Thus, they referred the immigration matters to federal officials, who, in turn, obtained an arrest warrant for Zanas.

From his investigation, Special Agent Holmes believed Perez and Zanas resided at 901 Tiano Lane in Clarksburg and worked at a local Mexican restaurant called El Rey. Holmes contacted Gary Olcott, an Enforcement and Removal Officer with Immigration and Customs Enforcement (“ICE”), to investigate possible links between the Tiano Lane address and immigrants in the ICE database. Holmes also established a surveillance platform of the Tiano Lane residence.

After searching the ICE database, Olcott found no connection between Perez or Zanas and the Tiano Lane address, but learned that there were two other individuals associated with that address who were also suspected of immigration violations. Relevant here, one of those individuals was Javier Rosario-Azamar, a previously deported Mexican national. Olcott reported this information to Holmes. Thus, based on his conversations with Olcott, Holmes believed Rosario was previously deported and currently in violation of 8 U.S.C. § 1326, under which illegal reentry into the United States is classified as a felony.

Holmes and Olcott also exchanged a series of emails through which they shared photographs from the ICE database and photographs Holmes took from a surveillance platform at the Tiano Lane residence.  Holmes and Olcott felt some of the surveillance photographs strongly resembled Zanas and possibly resembled Perez.

The agents later met to surveil the El Rey restaurant. While doing so, they observed a man leave the restaurant two times to take out the trash. After comparing the surveillance photographs to the ICE database photographs, Holmes believed the man taking the trash out was Rosario. That evening, the agents also observed a gold Toyota Camry arrive at the restaurant, pick up several people and proceed to 901 Tiano Lane.

The next morning, Holmes returned to the Tiano Lane residence. While conducting surveillance, he saw four men leave the house and get into the Camry. Holmes “could readily identify Javier Rosario-Azamar,” but did not recognize the other men. J.A. 77. Believing Rosario to be in violation of 8 U.S.C. § 1326, and having identified Rosario as one of the car’s passengers, Holmes instructed local police officers to stop the Camry. Two patrol officers effectuated the stop and directed the driver and the passengers to exit the vehicle.

Neither Perez nor Zanas were in the car. But Rosario, along with Santiago and two others, were. The driver provided “a fake identification card” to the officers. J.A. 56. The officers then patted down all the occupants for weapons and, after determining that none of them had a valid driver’s license, towed the vehicle to the police department for an inventory search, which yielded approximately $15,000 in cash.

Holmes and other federal agents arrived at the scene and transported all the occupants of the Camry to the Clarksburg Police Department. With respect to Santiago, the agents took his fingerprints and, after he signed a Miranda waiver form in Spanish, interviewed him. Santiago admitted that he did not have proper documentation to live and work in the United States and consented to the search of his bedroom at the Tiano Lane residence. During the subsequent search, federal agents found a fraudulent Lawful Permanent Resident card and Social Security card.[ii]

Santiago was subsequently indicted under federal law for fraud and misuse of immigration documents.  He filed a motion to suppress the evidence and argued that the stop of the vehicle in which he was a passenger violated the Fourth Amendment because there was insufficient reasonable suspicion to justify the stop.  The district court held the stop was supported by reasonable suspicion because the agent investigating the case had reasonable suspicion, therefore the patrol officers that conducted the stop had reasonable suspicion based on the “collective knowledge doctrine.”  Thus, the court denied the motion to suppress.  Santiago entered a guilty plea with the right to appeal the denial of the motion to suppress.  He then filed a timely appeal with the Fourth Circuit Court of Appeals.

On appeal, the issue was whether the stop was supported by reasonable suspicion.   If not, it violated the Fourth Amendment and the evidence should be suppressed.  Santiago argued that (1) evidence of a prior deportation, standing alone, does not provide reasonable suspicion to believe the person re-entered the country illegally because there are many legal methods by which a person can enter the United States, and (2) the agent investigating the case did not sufficiently investigate the re-entry to determine if the subject of the investigation had, in fact, re-entered illegally.

The court first examined the legal principles applicable to the issue in this case.  The court first noted that officers can stop a car based on reasonable suspicion of criminal activity and do not have to have probable cause of a criminal violation or observe a traffic violation.  Specifically, the court stated

Following Terry, this Court has held that, consistent with the Fourth Amendment, “[a]n officer may stop and briefly detain a person ‘when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.'” United States v. Montieth, 662 F.3d 660, 665 (4th Cir. 2011) (quoting United States v. Hensley, 469 U.S. 221, 227 (1985)). To justify such an investigative stop, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21. “Thus, a court must look to the totality of the circumstances in determining whether the officer had a particularized and objective basis for suspecting criminal activity.” United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011). “While such a detention does not require probable cause, it does require something more than an ‘inchoate and unparticularized suspicion [*12]  or hunch.'” United States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997) (quoting Terry, 392 U.S. at 27).

Importantly, traffic violations are not required to justify Terry stops. United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993). Instead, Terry and its progeny require only that the officer has “a reasonable suspicion, based on specific and articulable facts, of unlawful conduct.” Id. And in explaining the reasonable suspicion standard, the Supreme Court recently stated “[t]he reasonable suspicion inquiry ‘falls considerably short’ of 51% accuracy[.]” Kansas v. Glover, 140 S. Ct. 1183, 1188 (2020) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)). “[A]s we have explained, ‘[t]o be reasonable is not to be perfect[.]'” Id. (quoting Heien v. North Carolina, 574 U.S. 54, 60 (2014))[iii].

In light of the rules above, the court then examined Santiago’s arguments.  First, Santiago argued that the Fourth Circuit case, Santos v. Frederick Cty. Bd. Of Commissioners[iv] stands for the proposition that suspecting a person of an immigration violation is insufficient reasonable suspicion to justify a stop.  In Santos, officers observed Ms. Santo behind the restaurant where she worked.  They asked her for identification and learned that she had an outstanding civil immigration warrant.  Before confirming the warrant, the officers took Ms. Santos into custody.  Santos subsequently filed suit in federal court, and the court held that a civil immigration warrant cannot provide an officer reasonable suspicion of criminal activity to support a detention because the violation is civil in nature, not criminal. 

However, the court of appeals distinguished the Santos case from Santiago’s case.  While the suspected violation in Santos was civil, the violation suspected in Santiago’s case was criminal.  Specifically, federal law makes it a felony to re-enter the United States after being deported unless the Attorney General approves the re-entry.  In Santiago’s case, Agent Holmes suspected that Rosario, another passenger in the car with Santiago, had re-entered the United States illegally after being previously deported.  This would constitute a felony crime under federal law, not a civil violation.

Second, Santiago argued that Agent Holmes’s investigation was not sufficient to provide reasonable suspicion to stop the vehicle because the investigation was not thorough and did not determine if Rosario re-entered the country legally.  The court stated

[Agent] Holmes was not required to rule out the possibility that Santiago had legally re-entered the country. See Glover, 140 S. Ct. at 1188 (finding reasonable suspicion where a police officer inferred that the owner of a vehicle, whose driver’s license has been revoked, was driving the vehicle without ruling out the possibility someone else was driving). With no evidence from Olcott that Rosario’s deportation history contained any authorization for him to reenter the United States, and based on his previous identification of Rosario, Holmes possessed reasonable and articulable suspicion that the individual he had identified as Rosario was engaging in criminal activity.[v]

In this case, Agent Holmes obtained the investigative assistance of ICE Agent Olcott who checked their databases and saw no information about Rosario being granted the legal justification to re-enter the country.  The court stated

Through his investigation, Holmes confirmed Rosario’s prior deportation. While prior deportation is not itself a crime, it is one of the two elements of the suspected crime. As to the second element, his illegal reentry, Holmes had evidence that Rosario had reentered. All he lacked was confirmation that Rosario had not legally reentered. But on that issue, Holmes testified that his suspicion that Rosario was in the country illegally arose from his communication with ICE Agent Olcott following Olcott’s review of the ICE database. Although Holmes did not specifically testify that he confirmed Rosario had no legal status, it was reasonable for Holmes to infer that if Rosario was legally in the United States, such information would have been contained in the ICE database and Olcott would have indicated to Holmes that Rosario was authorized to be in the United States. Requiring further investigation into whether Rosario had entered legally under this record would be tantamount to requiring officers to rule out the possibility of innocence.[vi]

Third, the court observed that the Eighth Circuit has held that a stop of a person based on the reasonable belief that person had re-entered the country after having been previously deported was reasonable under the Fourth Amendment.[vii]

Lastly, Santiago argued that Agent Holmes identification of Rosario was insufficient to provide reasonable suspicion to stop the vehicle in which he and Santiago were riding.  The court stated that the agent’s examination of photographs of Rosario coupled with his in-person identification of Rosario during surveillance was sufficient to provide reasonable suspicion.

For the reasons discussed above, the court of appeals held that Agent Holmes had sufficient reasonable suspicion to request the officers stop the car in which Rosario and Santiago were located.  Therefore, the court affirmed the denial of the motion to suppress.



[i] No. 19-4275 (4th Cir. Decided July 23, 2020 Unpublished)

[ii] Id. at 2-5

[iii] Id. at 11-12

[iv] 725 F.3d 451 (4th Cir. 2013)

[v] Santiago-Francisco at 14-15

[vi] Id. at 16-17

[vii] See In United States v. Lopez-Tubac, 943 F.3d 1156, 1159 (8th Cir. 2019)

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