United States v. VanDyck-Aleman

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
September 25, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60128
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO TRINIDAD VANDYCK-ALEMAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:05-CR-129
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Sergio Trinidad Vandyck-Aleman (Vandyck) appeals his guilty-
plea conviction on two counts of firearm possession by an illegal
alien, in violation of 18 U.S.C. § 922(g)(5)(A). Vandyck
contends that the district court erred by denying his motion to
suppress evidence relative to the firearms. We AFFIRM.
Factual Background
At the suppression hearing, Agent Ron Johnson of United
States Immigration and Customs Enforcement testified that on July

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22, 2005, he and other agents, together with officers of the
Forest, Mississippi, Police Department, took part in an operation
to identify gang members, felons, fugitives, and people who had
been deported, in the local Hispanic community, and to attempt to
remove them from that community. Eight or nine agents and
accompanying police officers went in a caravan of vehicles to an
apartment building in Forest, which is in Scott County. As they
turned onto the street where the apartment building was located,
Agent Johnson testified, a Hispanic female standing in the yard
looked up, saw the police car and the convoy of vehicles behind
it and turned around and sprinted into the house.
After the task force left the apartment complex, someone
noticed another male entering the house to which the agents had
seen the woman run. The agents decided to stop and investigate.
When asked to explain why they stopped, Agent Johnson testified,
“I had seen one individual run into the house, someone else had
stated they saw another individual walk into the house and
probably within a week of that period in that same area [police]
had recovered a lot of fraudulent documents being manufactured
for unauthorized aliens.” The agents then went to the carport
door of the single-family residence and knocked on it. Vandyck
came to the door and talked with the agents as they stood
outside. No weapons were drawn and no show of force was made.
After the agents identified themselves as immigration
service agents, Vandyck told them that he was born in Mexico and

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** Section 1357(a) of 8 U.S.C. provides in part:
“(a) Powers without warrant. Any officer or employee of the
Service authorized under regulations prescribed by the Attorney
General shall have power without warrant – (1) to interrogate any
alien or person believed to be an alien as to his right to be or
to remain in the United States; (2) to arrest any alien . . . if
he has reason to believe that the alien [is illegally in the
country and likely to escape].”
that he did not have any immigration documents. Agent Johnson
testified that in asking questions about Vandyck’s immigration
status he was following the INS policies and procedures
“absolutely.”** Although the agents then realized that Vandyck
was an illegal alien and subject to arrest, they were not
initially inclined to arrest him. When they asked if he minded
if they went into the house to discuss the matter further,
Vandyck gave his consent readily. Vandyck told them that the
woman who had run into the house and the only other adult in the
house, a man, were also illegal aliens.
During the questioning about citizenship status, and out of
concern for safety issues, an agent asked Vandyck if there were
any weapons in the house. He replied yes, and took agents
without hesitation to his bedroom, where they retrieved a
12-gauge shotgun from behind his mattress. When he was asked if
there were any other weapons in the house, Vandyck gave them
permission to look. They found a 9-millimeter handgun that
Vandyck said belonged to him. The indictment alleges his illegal
possession of these two firearms.

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Vandyck’s Fourth Amendment Claim
Citing the Fourth Amendment, Vandyck asserts that his motion
to suppress should have been granted because he did not consent
to the equal protection violation that occurred when the officers
unlawfully targeted him for investigation on the basis of
ethnicity. He asserts that the officers did not have the
particularized reasonable suspicion the Fourth Amendment requires
to justify questioning him regarding his citizenship status.
In INS v. Delgado, 466 U.S. 210, 212 (1984), however, the
Supreme Court held that immigration officers could question an
individual although they lacked reasonable suspicion that the
individual was an illegal alien. The Court noted that one of its
recent cases “plainly implies that interrogation relating to
one’s identity or a request for identification by the police does
not, by itself, constitute a Fourth Amendment seizure. . . .
[P]olice questioning, by itself, is unlikely to result in a
Fourth Amendment violation.” Id. at 216.
Vandyck relies on Mena v. City of Simi Valley, 332 F.3d 1255
(9th Cir. 2003), vacated and remanded by Muehler v. Mena, 544
U.S. 93 (2005), in support of his argument that his Fourth
Amendment rights were violated. In that § 1983 lawsuit against
law enforcement officers, the Ninth Circuit ruled that
questioning the resident of a house being searched about her
immigration status violated the Fourth Amendment. The Supreme
Court held, however, that “mere police questioning does not

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constitute a seizure.” 544 U.S. at 101 (citing Florida v.
Bostick, 501 U.S. 429, 434 (1991). The Court concluded: “Hence,
the officers did not need reasonable suspicion to ask Mena for
her name, date and place of birth, or immigration status.” Id.
Accordingly, the questioning of Vandyck did not involve a
seizure implicating the Fourth Amendment and the district court’s
decision to deny the his Fourth Amendment challenge was correct.
The Equal Protection Claim
Vandyck contends that the decision to investigate him
violated his equal-protection rights. He relies on United States
v. Avery, 137 F.3d 343 (6th Cir. 1997), which states that if race
were the sole factor in deciding to investigate someone, that
would constitute an equal-protection violation. 137 F.3d at 353-
54. The court held, however, that “[a]n officer is not held to a
‘suspicion of criminal activity standard’ when he embarks to
investigate someone. The officer merely is prohibited from his
pursuit if he acts based solely on race.” Id. at 358. The court
held that the defendant had failed to establish an equal-
protection violation because there were factors other than race
justifying the decision to question him. Id.
In United States v. Lopez-Moreno, 420 F.3d 420 (5th Cir.
2005), cert. denied, 126 S. Ct. 1449 (2006), this court
considered a case in which nonworking taillights on a van led to
a traffic stop resulting in a conviction for trafficking in
illegal aliens. The defendant asserted that racial profiling

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resulted in a violation of his Fourth Amendment and equal-
protection rights under the Fourteenth Amendment. This court
held that the stop and detention was valid and that the officer
had reasonable suspicion to inquire into the alien status of the
passengers of the van after the records check came back clean.
420 F.3d at 433-34. The court noted that the officer’s knowledge
about an earlier episode in which a van had been apprehended in
that area carrying illegal aliens was a factor that contributed
to the reasonable suspicion to further detain and question the
van passengers. Id. at 426, 433.
This court held further that the standard of review for
Lopez’s equal-protection (ethnic profiling) claim was the same as
for his Fourth Amendment claim. Id. at 434. Relying on United
States v. Chavez, 281 F.3d 479 (5th Cir. 2002), the court held
that Lopez-Moreno had failed to prove that the stop and detention
were driven by a discriminatory purpose and denied his equal-
protection claim. Id. The court iterated its earlier statement
in Chavez that there was no Supreme Court or Fifth Circuit
authority for the proposition that an equal-protection violation
could be remedied by suppressing the evidence flowing from the
violation. Id.
Vandyck’s racial-profiling argument lacks merit because the
testimony does not establish that race was the agents’ sole
motivating factor or that they knowingly were engaging in any
illegal conduct. The ethnicity of the people entering the house,

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one at a sprint, was a proper factor to consider. Although
ethnicity generally may play no role in the enforcement of
criminal laws of this country, enforcement of the immigration
laws demands that the officials focus on individuals most likely
to violate those laws. In the poultry-producing region of
Scott County, Mississippi, as the agent testified without
contradiction, the population of illegal aliens is predominantly
Hispanic, not (non-Hispanic) white. Accordingly, the district
court did not err by finding that the officers’ decision to
approach Vandyck’s house and to question him when he came to the
door was justified. See Lopez-Moreno, 420 F.3d at 434; 8 U.S.C.
§ 1357(a)(1).
AFFIRMED.

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