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United States v. Ortega-Montalvo

United States Court of Appeals, Eighth Circuit

March 8, 2017

United States of America Plaintiff- Appellee
v.
Francisco Ortega-Montalvo, also known as Jerry Ortega Defendant-Appellant

          Submitted: February 6, 2017

         Appeal from United States District Court for the Western District of Missouri - St. Joseph

          Before RILEY, Chief Judge, SMITH and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         Francisco 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[1] 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.

         In 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.

         In 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.

         Based 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.

         The 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.

         Inside, 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.

         With 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.

         After 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.

         A grand 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 Ortega-Montalvo guilty.

         "On 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 ...


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