Submitted: February 6, 2017
from United States District Court for the Western District of
Missouri - St. Joseph
RILEY, Chief Judge, SMITH and BENTON, Circuit Judges.
BENTON, Circuit Judge.
G. Ortega-Montalvo was convicted of illegally re-entering the
United States in violation of 8 U.S.C.§ 1326(a) and
(b)(2). The district court sentenced him to 51 months'
imprisonment. He appeals the denial of his motion to
suppress. Having jurisdiction under 28 U.S.C. § 1291,
this court affirms.
2011, Ortega-Montalvo, a Mexican citizen illegally in the
United States, was convicted of aggravated assault after
shooting at a police officer. In 2013, he was deported and
prohibited from re-entering.
2014, the U.S. Department of Homeland Security Investigations
(HSI) received a tip that Ortega-Montalvo illegally
re-entered the United States and was working at Maria's
Mexican Restaurant in Platte City, under the alias
"Jerry Ortega." According to the tip, he drove a
white pickup truck with the Arkansas license plate
"087MID." Special Agent Scott Lindsey corroborated
the tip, confirming that the Arkansas plate was registered to
Francisco Ortega and that he had been deported after
conviction for aggravated assault. Agents visited Maria's
Mexican Restaurant and observed a white truck with the
Arkansas license plate in the parking lot.
on the corroborated tip, information about
Ortega-Montalvo's illegal status and criminal history,
and an online database search revealing an apartment address
in Platte City, Agent Lindsey and his supervisor decided to
locate and arrest him. Officer Lindsey briefed a team of five
HSI special agents and two Platte City police officers on
Ortega-Montalvo's illegal status, physical description
(including pictures), and criminal history of aggravated
assault against a police officer.
morning of the arrest, an HSI agent surveilled the
apartment's parking lot, finding the white truck. An
agent rang the apartment's doorbell from outside the
apartment complex. HSI special agents Timothy Ditter and Tim
Kixmiller, uniformed in protective armor with guns holstered,
waited outside the door. An Hispanic male (not
Ortega-Montalvo) opened the door "partially dressed,
" looking "like he had literally just gotten out of
bed." The agents introduced themselves and displayed
their badges. Determining that the man (later identified as
Juan Maldonado), did not speak English, Agent Ditter, fluent
in Spanish, asked his country of citizenship and whether
"he had documents to be in the United States."
Maldonado replied he was a citizen of Mexico and did not have
documents. Agent Ditter asked permission to enter the
apartment to talk. Maldonado consented.
Agent Ditter asked if anyone else was present. Maldonado said
his friend was there, pointing to the back of the apartment.
Agent Ditter told Maldonado "we're going to do a
protective search for everyone's safety." Maldonado
said nothing. Special agent José Covarrubias, a native
Spanish speaker who entered during the conversation, sat with
Maldonado and questioned him.
guns drawn, Agents Ditter and Kixmiller conducted a
protective sweep, finding one bedroom door locked. They
knocked on it. An Hispanic man identifying himself as Jerry
Ortega opened the door. Immediately recognizing him as
Ortega-Montalvo, they handcuffed him and placed him under
arrest. The agents continued the protective sweep, finding no
one else in the apartment.
the protective sweep, the agents holstered their guns and
asked Maldonado and Ortega-Montalvo-both handcuffed and under
arrest-for consent to search the apartment. According to
agents, both consented. In Ortega-Montalvo's bedroom,
officers seized three identification documents. Officers took
Ortega-Montalvo to the Enforcement Removal Operations Office,
advised him of his Miranda rights, and took a
written statement. In the statement, he admitted he was a
citizen of Mexico who had been deported from the United
States and re-entered illegally.
jury indicted Ortega-Montalvo on one count of illegal
re-entry. He moved to suppress all evidence and testimony
from the search, arrest, booking, and questioning. At the
suppression hearing, a magistrate judge heard testimony from
Maldonado and HSI agents Lindsey, Ditter, and Covarrubias.
Maldonado testified he opened the door to police pointing
guns at him; an officer grabbed him by the neck, pushed him
against the wall, and entered the apartment without his
permission. He denied that officers asked whether he had
documentation to be in the country. Rejecting Maldonado's
testimony as not credible, the magistrate judge concluded his
consent was "given voluntarily and without
coercion." Finding the protective sweep lawful, he
recommended denying the motion. The district court adopted
the recommendation. At a bench trial, it found
review of a motion to suppress, " this court reviews
"factual findings for clear error" and "legal
conclusions de novo." United States v.
Sigillito, 759 F.3d 913, 923 (8th Cir. 2014),
quoting United States v. Brooks, 715 F.3d 1069, 1075
(8th Cir. 2013). This court affirms the denial unless it is
"unsupported by substantial evidence, based on an
erroneous interpretation of applicable law, or, based on the
entire record, it is clear a ...