United States of America v. Rafael Puebla-Zamora

United States Court of Appeals
For the Eighth Circuit
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No. 20-1153
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United States of America
Plaintiff - Appellee
v.
Rafael Puebla-Zamora
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: February 19, 2021
Filed: May 3, 2021
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Before LOKEN, BENTON, and KELLY, Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted Rafael Puebla-Zamora of reentry of a deported alien in
violation of 8 U.S.C. § 1326(a). He appeals the district court’s1 denial of his pretrial
motion to suppress. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
1 The Honorable Peter D. Welte, United States District Judge for the District
of North Dakota, adopting the report and recommendation of the Honorable Alice
R. Senechal, United States Magistrate Judge for the District of North Dakota.

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I.
On August 30, 2018, Officer Jacob Bratsch, a Bismarck police officer,
received a text message from a confidential information (“the CI”) reporting a
possible burglary at the apartment of a known drug dealer. Officer Bratsch shared
this information with his patrol partner, Officer Joseph Olsen. Viewing this as
credible, the officers went to the apartment (#308) and knocked on the door; no one
answered. Officer Bratsch texted the CI to confirm the apartment number. The CI
responded that “if the people weren’t in 308 . . . they’d be in 111.” Based on that
information, the officers knocked on the door of Apartment 111. Although in
uniform and displaying badges, they did not announce themselves as police.
Puebla-Zamora answered the door. To avoid alerting him to the robbery, the
officers asked about a noise complaint. He responded he had heard nothing. The
officers then asked his name and date of birth; he provided them. Per routine
procedure, the officers contacted dispatch to check warrants and driver’s license
records. Dispatch found no records with the name and date of birth provided, so the
officers asked for identification. He provided a Mexican passport. Because the
officers could not verify his identity from it, they called Border Patrol. Throughout
the encounter, the officers remained outside the apartment in the hallway of the
building; Puebla-Zamora stood in the doorway.
Supervisory Border Patrol Agent Tanner Branham ran a records check,
finding that Puebla-Zamora had previously been removed from the United States.
Agent Branham asked Puebla-Zamora to identify his country of citizenship and any
documents allowing him to be legally present in the United States. Puebla-Zamora
responded that he was a Mexican citizen with a Nevada driver’s license but no
documents allowing him to be legally present in the United States.
Agent Branham told the officers that Puebla-Zamora was illegally present in
the United States and requested they detain him until a Border Patrol agent could

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take him into custody. Meanwhile, the officers sought his consent to search the
apartment.
As requested, the officers took Puebla-Zamora into custody until a Border
Patrol agent arrived. Once in custody of Border Patrol, Puebla-Zamora was
fingerprinted. Puebla-Zamora was later charged with reentry of a deported alien, in
violation of 8 U.S.C. § 1326(a).
Puebla-Zamora filed a motion to suppress, alleging the officers violated his
Fourth Amendment rights because the initial encounter was not consensual, and the
officers lacked reasonable suspicion to approach his apartment.
Following an evidentiary hearing, a magistrate judge found the encounter
consensual and “the officers had reasonable suspicion to initiate their contact with
Puebla-Zamora because they were actively investigating a possible burglary.”
Adopting the magistrate judge’s report and recommendation, the district court
denied the motion. A jury convicted Puebla-Zamora. He appeals the denial of the
motion to suppress.
II.
Puebla-Zamora challenges the district court’s denial of his motion to suppress.
Generally, the denial of a motion to suppress “preserves the objection for appeal.”
United States v. Comstock, 531 F.3d 667, 675 (8th Cir. 2008). However, the
government argues Puebla-Zamora waived this argument by stating “no objection”
to the admission of evidence at trial. See id. (holding that pretrial objections can be
“waived when an appellant’s counsel affirmatively stated ‘no objection’ at trial to
the admission of evidence previously sought to be suppressed”). But see United
States v. Petruk, 929 F.3d 952, 958 (8th Cir. 2019) (declining to enforce a waiver
because it was not “conscious and intentional”). This court need not decide the
waiver issue because Puebla-Zamora’s challenges are without merit.

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A.
For the first time on appeal, Puebla-Zamora argues the police officers violated
his Fourth Amendment rights by detaining him at the request of Border Patrol.
Because this issue is raised for the first time on appeal, this court reviews for plain
error. See United States v. Cardenas–Celestino, 510 F.3d 830, 833 (8th Cir. 2008)
(noting that “[w]e have not yet decided whether the failure to raise a suppression
matter in a timely pretrial motion precludes plain error review”). Under plain error
review, this court reveres only if there is “(1) error, (2) that is plain, and (3) that
affects substantial rights” and “(4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625,
631 (2002). The error “must be one that is clear and obvious.” Cardenas–Celestino,
510 F.3d at 833.
No “agreement” is required for state and local law enforcement to
communicate “or otherwise to cooperate” with federal authorities “regarding the
immigration status of any individual.” 8 U.S.C. § 1357(g)(10). See also 8 U.S.C. §
1373(c) (requiring federal immigration authorities to respond to state and local
inquiries “seeking to verify or ascertain the citizenship or immigration status of any
individual within the jurisdiction of the agency for any purpose authorized by law”).
In fact, “[c]onsultation between federal and state officials is an important feature of
the immigration system.” Arizona v. United States, 567 U.S. 387, 411 (2012).
The cooperation between the police officers and Border Patrol to detain
Puebla-Zamora was within the authority conferred by Congress. See 8 U.S.C. §
1357(g)(10) (noting that no agreement is necessary for federal and state authorities
to cooperate in identifying, apprehending, detaining, or removing “aliens not
lawfully present in the United States”). Here, police officers reasonably contacted
Border Patrol to identify an individual with foreign identification. See United States
v. Quintana, 623 F.3d 1237, 1241 (8th Cir. 2010) (noting that a state trooper
“reasonably contacted Border Patrol” to determine the validity of a foreign
identification document). And Border Patrol reasonably questioned Puebla-Zamora

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about his legal presence in the United States. See 8 U.S.C. § 1357(a)(1) (authorizing
immigration officers “to interrogate any alien or person believed to be an alien as to
his right to be or to remain in the United States”).
Border Patrol also had authority to take Puebla-Zamora into custody because
there was probable cause that he was illegally present in the United States and likely
to escape before a warrant issued. See 8 U.S.C. § 1357(a)(2) (authorizing
warrantless arrest by Border Patrol agent if the agent “has reason to believe that the
alien so arrested is in the United States in violation of any such law or regulation and
is likely to escape before a warrant can be obtained for his arrest”); Quintana, 623
F.3d at 1239 (“Because the Fourth Amendment applies to arrests of illegal aliens,
the term ‘reason to believe’ in §1357(a)(2) means constitutionally required probable
cause.”). In addition to presenting a Mexican passport as his only identification, he
admitted that he “didn’t have any documents that would allow him to be in the
United States legally.” And his previous removal for illegal entry established
probable cause that he may escape before a warrant could issue.
Police officers detained Puebla-Zamora at the express request of Border
Patrol, and probable cause supported Border Patrol’s request. It is neither clear nor
obvious that officers violated Puebla-Zamora’s Fourth Amendment rights by
detaining him. See United States v. Ovando-Garzo, 752 F.3d 1161, 1164 (8th Cir.
2014) (“Here, Trooper Pulver’s acts—identifying Ovando-Garzo, communicating
with the Border Patrol, and detaining Ovando-Garzo until the Border Patrol agent
could take custody—were not unilateral and, thus, did not exceed the scope of his
authority.”); Quintana, 623 F.3d at 1239 (holding a state trooper was authorized to
assist a federal agent in detaining someone suspected of being unlawfully present in
the United States); United States v. Villa-Velazquez, 282 F.3d 553, 555 (8th Cir.
2002) (“Federal immigration law authorizes state and local officials to arrest and
detain illegal aliens to the extent permitted by the relevant state laws, once the status
of the alien has been confirmed by the INS.”).

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B.
Puebla-Zamora asserts a Brady violation because Officer Bratsch was unable
to retrieve and turn over the CI text messages that led him to Puebla-Zamora’s
apartment. See Brady v. Maryland, 373 U.S. 83 (1963). This court has not
determined whether Brady applies to a suppression hearing, and circuits are split on
the issue. See, e.g., United States v. Thomas, 835 F.3d 730, 734 (7th Cir. 2016)
(discussing circuit split). Assuming without deciding that it applies, there is no merit
to his argument.
“To show a Brady violation, the defendant must establish that (1) the evidence
was favorable to the defendant, (2) the evidence was material to guilt, and (3) the
government suppressed evidence.” United States v. Beckman, 787 F.3d 466, 492
(8th Cir. 2015). Puebla-Zamora cannot meet any of these requirements.
As to elements one and two, Puebla-Zamora fails to explain how text
messages from a CI to a police officer about a potential burglary are either favorable
to him or material to his charged offense that requires showing he was a previously
deported alien who was knowingly and voluntarily in the United States. As Officer
Bratsch testified and Officer Olsen confirmed, the CI’s text messages alerted them
to an in-progress burglary. The officers testified about the text messages to explain
why they were in Puebla-Zamora’s apartment building and approached his
apartment. He did not challenge these factual findings.
Puebla-Zamora theorizes that the text messages from the CI “could have”
contained possible impeachment information. However, “[s]uch conjecture does not
meet the Brady materiality requirement.” Id. at 493. This is particularly true here,
where Officer Olsen corroborated Officer Bratsch’s testimony about the messages,
the magistrate judge determined the officers’ testimony was credible, and Puebla-
Zamora did not challenge the credibility assessment. See United States v. Ford, 888
F.3d 922, 927 (8th Cir. 2018) (“The trial court has a distinct advantage in evaluating

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witness credibility, and its credibility determinations are virtually unreviewable on
appeal.” (internal quotation marks omitted)).
As to element three, Puebla-Zamora cannot show the United States suppressed
evidence. As the district court found, “there is no evidence of intentional deletion
of the text messages.” The district court credited Officer Bratsch’s explanation for
why, despite a good faith effort to retrieve the messages, he was unable to do so.
And, months before the suppression hearing, the United States disclosed that Officer
Bratsch had unsuccessfully attempted to retrieve the messages.
Puebla-Zamora relies on two out-of-circuit cases, United States v. Vaughn,
2015 WL 6948577 (D.N.J. Nov. 10, 2015) and State v. Williamson, 2015 WL
4429238 (Ariz. Ct. App. July 20, 2015). Both are distinguishable. Vaughn involved
the intentional deletion of text messages that were relevant to the charged offense.
Vaughn, 2015 WL 6948577, at *17. Williamson involved a jury instruction
available under Arizona law. Williamson, 2015 WL 4429238, at *7.
Puebla-Zamora cannot meet the elements of a Brady claim.
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The judgment is affirmed.
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