4 Cir: Calling ICE during routine traffic stop doesn’t violate 4th Amendment

The U.S. Court of Appeals for the Fourth Circuit determined that no unconstitutional seizure occurred where a local police officer took time to call ICE to verify the authenticity of a permanent residence card during an otherwise routine traffic stop. United States v. Guijon-Ortiz, No. 10-4518, slip op. (4th Cir. Nov. 10 2011) (Gregory, Davis, and Keith, JJ.). Judge Davis wrote panel’s opinion.

This case involved a stop by a West Virginia sheriff’s deputy of a pickup truck traveling at 66 miles per hour in a 65 mile per hour zone. After trailing the truck for some undisclosed time, including speeding up to catch up with it, the officer pulled the vehicle over because, as he explained it, the truck “‘was giving indicators of someone probably impaired or doing suspicions activity.’” Guijon-Ortiz, No. 10-4518, slip op. at 3.

The officer requested and received identification documents from the three occupants—driver’s licenses for the driver and one passenger and an LPR card from Guijon-Ortiz who, the officer said, “appeared ‘very nervous’ and ‘was shaking’” as he handed over the document. The officer quickly concluded that the driver’s licenses were valid and no warrants were outstanding. Guijon-Ortiz, No. 10-4518, slip op. at 4.

Instead of issuing a citation for the poor driving and letting the occupants go along their way, the officer asked his station to call ICE to check Guijon-Ortiz’s LPR card. Guijon-Ortiz, No. 10-4518, slip op. at 5. He provided no explanation for thinking it was a good idea to call ICE.

Eventually ICE agents concluded that the name on the card did not match the A number on the card so the card was likely fraudulent. In a conversation with ICE agents using the deputy’s cell phone, Guijon-Ortiz admitted that the card was not his and he did not have “other papers authorizing him to be in the United States.” Guijon-Ortiz, No. 10-4518, slip op. at 6.

This, the ICE agents informed the sheriff’s deputy, gave them “‘probable cause to believe he was an illegal alien.’” Guijon-Ortiz, No. 10-4518, slip op. at 6. The deputy then arrested Guijon-Ortiz and handed him over to ICE agents who learned that he had previously been removed and that his name was Guijon-Ortiz rather than Daniel Gaitan as indicated on the card. Guijon-Ortiz, No. 10-4518, slip op. at 7-8.

Guijon-Ortiz tried to suppress much of this evidence in the illegal reentry, INA § 276(a), prosecution that followed. Guijon-Ortiz, No. 10-4518, slip op. at 8. The question before the Fourth Circuit was “a narrow one: Once the officer learned that there were no outstanding warrants, and having been provided an LPR card by the defendant as identification, was he permitted to then call ICE—a call that took some portion of ‘a few minutes’—to verify the validity of the LPR card?” Guijon-Ortiz, No. 10-4518, slip op. at 11.

The Fourth Circuit ultimately concluded that the officer was permitted to call ICE. A routine traffic stop, the court began by explaining, is akin to an investigative detention. Under Terry v. Ohio, 392 U.S. 1 (1968), an investigation detention is constitutionally permissible if it is justified at its inception and if “the continued stop was ‘sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.’” Guijon-Ortiz, No. 10-4518, slip op. at 13 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)).

A stop is limited in scope and duration if “‘the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.’” Guijon-Ortiz, No. 10-4518, slip op. at 13 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)). During this time an officer may ask about “‘matters unrelated to the justification for the traffic stop…so long as those inquiries do not measurably extend the duration of the stop.’” Guijon-Ortiz, No. 10-4518, slip op. at 14 (quoting Arizona v. Johnson, 129 S. Ct. 781, 788 (2009)).

An officer’s actions during a traffic stop meets this requirement, the court went on, so long as “the principal inquiry…is ‘the officer’s diligence—i.e., his preserving or devoted application to accomplish the undertaking of ascertaining whether the suspected traffic violation occurred, and, if necessary, issuing a ticket.’” Guijon-Ortiz, No. 10-4518, slip op. at 15 (quoting United States v. Everett, 601 F.3d 484, 494 (6th Cir. 2010)).

In contrast, if an officer were to abandon the traffic stop and pursue another course of investigation a court could conclude that the officer lacked the requisite diligence in completing the stop in a limited scope and duration. Guijon-Ortiz, No. 10-4518, slip op. at 16.

The sheriff deputy’s actions here were diligent, the court concluded. In the court’s words, “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.” Guijon-Ortiz, No. 10-4518, slip op. at 22.

Calling ICE was thus constitutionally permissible.