United States of America v. Misael Saqueo Lopez-Tubac

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3123
___________________________
United States of America
Plaintiff - Appellee
v.
Misael Saqueo Lopez-Tubac
Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Ft. Dodge
____________
Submitted: September 27, 2019
Filed: December 6, 2019
____________
Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Misael Saqueo Lopez-Tubac entered a conditional guilty plea to one count of
unlawful use of identification documents in violation of 18 U.S.C. § 1546(a). Lopez-

-- 1 of 8 --

-2-
Tubac now appeals his conviction, arguing that the district court1 erred in denying
his motion to suppress evidence. We affirm.
I.
In January 2017, authorities in Bremer County, Iowa alerted Immigration and
Customs Enforcement (“ICE”) Deportation Officer Bryce Callison that they had
arrested an alien for driving while under the influence. The authorities had released
the alien but suspected he may be illegally present in the United States. As part of a
subsequent investigation, Officer Callison learned that the suspect had been removed
from the United States to Mexico in 2011. He also learned that the car the suspect
was driving at the time of arrest was not registered to him but instead to a female
who resided at 537 Montero Drive, an address that corresponded to a mobile home
park in Waterloo, Iowa.
Over the next sixteen months, Callison attempted to locate the suspect.
Callison found a description of the suspect in his arrest record, including that he had
brown eyes, dark brown hair, stood at approximately 5’3”, and weighed roughly 187
pounds. Callison also obtained a photograph of the suspect taken after his 2011
arrest. He then contacted the manager of the mobile home park, who, after viewing
the photograph of the suspect, verified that he lived at 537 Montero Drive—the
address the suspect provided at the time of his January 2017 arrest. Armed with this
information, Callison conducted periodic surveillance of the residence, observing
the property six to eight times between February 2017 and May 2018. In March
2018, he observed the vehicle associated with the suspect at the residence. While
surveilling the property, Callison also observed several Hispanic males but none who
looked like the suspect.
1 The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa, adopting the report and recommendation of the
Honorable C.J. Williams, Chief Magistrate Judge, United States District Court for
the Northern District of Iowa.

-- 2 of 8 --

-3-
On the morning of May 8, 2018, Officer Callison again conducted
surveillance outside the suspect’s residence. There, he observed Lopez-Tubac
emerge from between 537 Montero Drive and 541 Montero Drive and enter the
passenger side of a vehicle stopped nearby. Callison testified that Lopez-Tubac
passed within thirty feet of him and that he was able to observe him for ten to fifteen
seconds. From his viewpoint in his car, Callison believed Lopez-Tubac matched the
picture of the suspect.
After following the vehicle for ten minutes, Callison initiated an investigative
stop. During the stop, appellant identified himself as Misael Saqueo Lopez-Tubac,
stated that he was a citizen of Guatemala, and admitted that he did not have
permission to be in the United States. ICE officers took Lopez-Tubac’s fingerprints
to determine whether he was the suspect. He was not. But in completing their
investigation, they learned Lopez-Tubac had previously been charged with an
immigration offense. Lopez-Tubac was arrested for being illegally present in the
United States and taken to an ICE office for further processing.
An inventory search of Lopez-Tubac’s belongings produced an employee
identification card. ICE agents then contacted the employer listed on the card and
obtained documents falsified by Lopez-Tubac, including a W-4 tax form, a Form I-
9, and photocopies of a permanent resident card and a Social Security card. Lopez-
Tubac was charged with the unlawful use of identification documents.
Before the district court, Lopez-Tubac moved to suppress all evidence
stemming from the traffic stop, including his roadside statements and all documents
found during the inventory search and subsequent investigation, on the grounds that
this evidence comprised fruit of an unconstitutional search and seizure. See Wong
Sun v. United States, 371 U.S. 471, 484-85 (1963). The district court denied the
motion to suppress, finding, in relevant part, that Officer Callison had a reasonable
suspicion to stop Lopez-Tubac. Lopez-Tubac appeals.

-- 3 of 8 --

-4-
II.
Lopez-Tubac argues that the district court erred by not granting his motion to
suppress because the stop and subsequent search violated his Fourth Amendment
right to be free from unreasonable searches and seizures. As an initial matter, he
argues that Callison lacked a reasonable suspicion to stop his actual suspect. He thus
claims that Callison lacked an underlying reasonable suspicion necessary to justify
his mistaken stop of Lopez-Tubac. In the alternative, Lopez-Tubac claims that it
was unreasonable for Callison to mistake him for the suspect because Callison had
not observed the suspect at the residence and because Lopez-Tubac and the suspect
do not resemble one another.
“We review the denial of a motion to suppress de novo but the underlying
factual determinations for clear error, giving due weight to inferences drawn by law
enforcement officials.” United States v. Tamayo-Baez, 820 F.3d 308, 312 (8th Cir.
2016). “This court will affirm the district court’s denial of a motion to suppress
evidence 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 mistake
was made.” United States v. Collins, 883 F.3d 1029, 1031 (8th Cir. 2018) (per
curiam).
“The Fourth Amendment permits investigative traffic stops when law
enforcement has reasonable suspicion of criminal activity.” Tamayo-Baez, 820 F.3d
at 312. “Reasonable suspicion exists when an officer is aware of particularized,
objective facts which, taken together with rational inferences from those facts,
reasonably warrant suspicion that a crime is being committed.” United States v.
Givens, 763 F.3d 987, 989 (8th Cir. 2014) (internal quotation marks omitted)
(quoting United States v. Hollins, 685 F.3d 703, 706 (8th Cir. 2012)). “We assess
whether a law enforcement official had reasonable suspicion of criminal activity
based on the totality of the circumstances,” United States v. Mosley, 878 F.3d 246,
251 (8th Cir. 2017), “keeping in mind that officers may draw on their experience

-- 4 of 8 --

-5-
and training to make inferences from the information they have,” United States v.
Cobo-Cobo, 873 F.3d 613, 617 (8th Cir. 2017).
We first conclude that Callison had a reasonable suspicion that the initial
suspect had committed a crime. Callison received a call from Iowa authorities in
January 2017 notifying him that they had arrested an individual they suspected was
in the country illegally. Callison confirmed the suspect was deported from the
United States in September 2011, and the arrest indicated he had reentered the
country. The car in which the suspect was arrested was registered in another
person’s name, and according to Callison, this is a common tactic of individuals who
illegally reenter the United States because it allows them to avoid detection.
Considering the totality of the circumstances, Callison had a reasonable suspicion
that the suspect was committing a crime—being illegally present in the United
States. See Tamayo-Baez, 820 F.3d at 312; 8 U.S.C. § 1326(a).
Lopez-Tubac next contends that it was not objectively reasonable for Callison
to mistake him for the suspect both because of deficiencies in Callison’s
investigation and because Lopez-Tubac did not resemble Callison’s suspect. We
disagree with both propositions.
First, Lopez-Tubac argues that it was unreasonable for Callison to believe that
his suspect continued to reside at 537 Montero Drive because Callison did not
observe the suspect’s car at the residence during the few times he surveilled the
property between February 2017 and March 2018. We fail to see the significance of
this fact. The suspect listed 537 Montero Drive as his address when he was arrested
in January 2017; the car in which he was arrested was registered to that address as
well. The manager of the mobile home park confirmed that the suspect lived there.
And Callison observed the vehicle in which the suspect was arrested at the residence
in March 2018, just two months before Lopez-Tubac’s arrest. As we have indicated
before in the context of search warrant applications, “[t]here is no bright-line test for
determining when information . . . is stale,” United States v. Johnson, 848 F.3d 872,
877 (8th Cir. 2017) (quoting United States v. Lemon, 590 F.3d 612, 614 (8th Cir.

-- 5 of 8 --

-6-
2010)), but given the nature of the information, we do not think the two-month gap
between the last sighting of the suspect’s vehicle and Lopez-Tubac’s arrest was
sufficient to dissipate Callison’s reasonable suspicion that the suspect lived at the
residence, see, e.g., Lemon, 590 F.3d at 614-15 (holding that information was not
stale despite an eighteen-month gap between defendant’s last known criminal act at
his apartment and the police’s application for a warrant to search the premises).
While it was possible that the suspect had moved, Callison possessed no evidence
suggesting he had. It was therefore reasonable for Callison to believe his suspect
continued to reside at 537 Montero Drive. Cf. United States v. LaMorie, 100 F.3d
547, 554 (8th Cir. 1996) (determining information was not stale where codefendant
could have removed evidence from residence but nothing suggested he had).
Second, Lopez-Tubac claims that it was unreasonable for Callison to mistake
him for the suspect. “The validity of a stop depends on whether the officer’s actions
were objectively reasonable in the circumstances, and in mistake cases the question
is simply whether the mistake, whether of law or of fact, was an objectively
reasonable one.” United States v. Phillips, 679 F.3d 995, 998 (8th Cir. 2012)
(brackets omitted). Examining the totality of the circumstances, we cannot say that
Callison’s mistake was unreasonable. Callison had recently observed the vehicle in
which the suspect was arrested at the residence. On the day of the arrest, he observed
Lopez-Tubac emerge from near that residence at 6:20 a.m., a fact that suggested
Lopez-Tubac lived there. Lopez-Tubac and the suspect both have brown hair and
brown eyes and are roughly the same height, and the magistrate judge found that
Lopez-Tubac “closely resembled” the suspect as depicted in the photograph that
Callison possessed. Although Lopez-Tubac weighs roughly thirty pounds less than
Callison’s suspect, weight is subject to change over time. And given that Callison
observed Lopez-Tubac from a distance of thirty feet, some variance in height or
weight is not unreasonable. Cf. United States v. Lawes, 292 F.3d 123, 127 (2d Cir.
2002) (finding an officer’s mistake was reasonable when the suspect’s and
appellant’s weights varied by forty pounds because of challenges officers faced in
observing suspect).

-- 6 of 8 --

-7-
We find additional support for our conclusion from two analogous cases. In
Phillips, we determined that police did not make an unreasonable mistake when they
arrested the appellant even though he weighed fifteen pounds less than the suspect.
679 F.3d at 996, 998. We found it sufficient that the suspect and the appellant shared
other similar characteristics, including that they were the same race, were both bald,
were of similar height, and the police had observed the appellant approaching the
house where officers believed the suspect was staying. Id. And although Lopez-
Tubac suggests he was stopped because he, like the suspect, is Hispanic, we rejected
similar arguments in United States v. Thomas, where we determined that the police’s
mistaken identification of the appellant as the suspect was reasonable because the
suspect resembled the photograph officers had in hand. 524 F.3d 855, 858 (8th Cir.
2008). We specifically noted that though appellant argued he was only stopped
because of his race, police officers had not stopped several other African-American
males who were on the same bus. Id. at 859.
As in Phillips and Thomas, so too here. Callison did not stop any other
Hispanic individuals who lived in the mobile home park, nor did he seek to
investigate the Hispanic driver of the car in which Lopez-Tubac was riding at the
time of the investigative stop. Instead, Callison stopped Lopez-Tubac because he
believed Lopez-Tubac closely resembled the suspect based on the suspect’s
description and photograph and because he observed Lopez-Tubac emerging from
near the suspect’s residence.
Accordingly, we agree with the district court that, combined with other
circumstances, “any dissimilarities would not have been so apparent that it was
unreasonable for Callison to believe that Lopez-Tubac was the target.”
III.
Because Callison’s mistake was objectively reasonable, he had reasonable
suspicion to stop Lopez-Tubac. See Phillips, 679 F.3d at 998. Thus, “[t]he evidence

-- 7 of 8 --

-8-
obtained in the course of the investigative stop . . . was not the fruit of a constitutional
violation.” Id.
For the foregoing reasons, we affirm.
______________________________

-- 8 of 8 --