F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
__________________________

United States Court of Appeals

Tenth Circuit

JUN 30 1999

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
EDMUNDO CISNEROS-CRUZ,

No. 98-1398
(D. Colo.)
(D.Ct. No. 98-CR-44-M)

Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *

Before BALDOCK, BARRETT, and BRORBY, Circuit Judges.

Defendant-Appellant Edmundo Cisneros-Cruz appeals the district courts

decision denying in part his motion to suppress his statements and other evidence
obtained following his arrest by Immigration and Naturalization Service agents.
We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*

FACTUAL BACKGROUND
In August 1996, Stephen Simer, a special agent with the United States
Custom Service, participated in the surveillance and arrest of Mr. Cisneros-Cruz,
a Mexican citizen, for possession of marijuana. Following his guilty plea, a
Colorado district court sentenced Mr. Cisneros-Cruz to two years in the Colorado
Department of Corrections. However, that court suspended his sentence on the
special condition he be deported and not return illegally to the United States.
Pursuant to an order of the Immigration and Naturalization Service, Mr. CisnerosCruz was deported to Mexico November 18, 1996.

In July 1997, Special Agent Simer saw Mr. Cisneros-Cruz on a street

adjacent to a restaurant in Denver, Colorado. In January 1998, Special Agent
Simer again saw Mr. Cisneros-Cruz in an alley behind the same restaurant. As
part of another investigation involving the restaurant, Special Agent Simer
learned Mr. Cisneros-Cruz frequented and possibly stayed overnight in the
building. Based on that information and Mr. Cisneros-Cruzs known illegal
reentry status, Ross E. Godwin, a special agent with the Immigration and
Naturalization Service, obtained an administrative arrest warrant issued by the
Immigration and Naturalization Service for the arrest of Mr. Cisneros-Cruz.

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After obtaining the arrest warrant, Special Agents Godwin and Simer
entered the restaurant for the purpose of arresting Mr. Cisneros-Cruz. Because
they did not see him in the dining area, the agents proceeded to the rear of the
building to check the restrooms. They first checked a room marked restroom.
They next checked an unmarked, adjacent room which, based on information from
other sources, Special Agent Simer believed to be a handicapped restroom. 1 Prior
to entry, the agents knocked on the door. On hearing a voice inside, they
immediately entered the room and found Mr. Cisneros-Cruz rising from a
makeshift bed. When they asked him to identify himself, he told them he was
Edwardo Fuentes and provided a false green card. However, when asked if he
was Edmundo Cisneros-Cruz, he answered affirmatively. The agents then
handcuffed Mr. Cisneros-Cruz and escorted him to an adjacent room where he
waited until the agents finished interviewing the restaurant manager. The
manager confirmed Mr. Cisneros-Cruz stayed at the restaurant periodically and
showed them a sleeping bag in his office where Mr. Cisneros-Cruz also slept. 2
This room was once used as a bathroom and contained a sink and vanity, but the
toilet and shower had been removed. The manager testified he anticipated converting it
to a handicapped bathroom in the future.
1

Mr. Cisneros-Cruz testified he livedat the restaurant for approximately two

months, staying there only at night. Besides blankets and a mattress, the only personal
belongings Mr. Cisneros-Cruz had in the room included his boots, hat and trousers.
2

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Following the interview with the manager, Special Agent Godwin assisted
in transporting Mr. Cisneros-Cruz to the Immigration and Naturalization Service
office. In route, Special Agent Godwin advised Mr. Cisneros-Cruz of his
Miranda rights, which Mr. Cisneros-Cruz stated he understood. Special Agent
Godwin then proceeded to question him about his deportation and reentry into the
United States.

When they arrived at the Immigration and Naturalization Service office,

Special Agent Godwin served Mr. Cisneros-Cruz with the arrest warrant and
again advised him of his Miranda rights. Mr. Cisneros-Cruz waived his rights
and indicated his willingness to talk. He later executed a sworn statement
formally admitting facts relating to his alienage, criminal conviction and prior
deportation. At that time, Immigration and Naturalization Service personnel also
took his fingerprints.

PROCEDURAL BACKGROUND
After his arrest, a federal grand jury indicted Mr. Cisneros-Cruz for
unlawful reentry into the United States following his deportation for an
aggravated felony. Following his arraignment, Mr. Cisneros-Cruz moved to
suppress all evidence and statements regarding his identity and criminal history,
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claiming his arrest violated the Fourth Amendment and that the government
subjected him to a custodial interrogation without the benefit of a Miranda
warning in violation of the Fifth and Sixth Amendments.

At the suppression hearing, Special Agents Simer and Godwin, the

restaurant manager, and Mr. Cisneros-Cruz testified. Based on that testimony, the
district court determined the agents unreasonably concluded the second unmarked
room was a public restroom which they could access. The district court then
issued an order granting Mr. Cisneros-Cruzs suppression motion in part, finding
he had a reasonable expectation of privacy in the room where the agents found
him and that the warrantless entry into the room violated his Fourth
Amendment rights. The district court held that:
the false identification card and any other items taken from the
defendant at the time of his arrest, as well as his statements both
before and after the Miranda warnings, must be suppressed as fruits
of the unlawful entry, and that the defendants fingerprints and any
photographs made during the booking process must also be
suppressed as tainted evidence.
However, the district court denied Mr. Cisneros-Cruzs request that the
prosecution be precluded from proving his identity at trial.

Following the courts decision, the government filed a motion for

reconsideration arguing Mr. Cisneros-Cruzs arrest did not violate the Fourth
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Amendment because the agents obtained a valid administrative arrest warrant and
actually believed the room they entered functioned as a public, handicapped
restroom. In addition, the government claimed that even if the agents violated the
Fourth Amendment by entering the room, under New York v. Harris, 495 U.S. 14
(1990), the exclusionary rule could not apply to Mr. Cisneros-Cruzs statement
and fingerprints obtained at the Immigration and Naturalization Service office and
away from his room or residence because the agents had probable cause to
arrest Mr. Cisneros-Cruz. Mr. Cisneros-Cruz opposed the motion for
reconsideration and, in addition, raised a new allegation that the agents violated
his Fourth Amendment rights by failing to perform the constitutional and statutory
knock and announce requirement before they entered the room.

At a hearing on the motion for reconsideration, the district court reaffirmed

its decision that the initial arrest was illegal by: (1) concluding illegal aliens such
as Mr. Cisneros-Cruz must be afforded the same Fourth Amendment protections
as citizens; (2) articulating its belief that an Immigration and Naturalization
Service administrative arrest warrant is unlike a judicially issued arrest warrant
and cannot be used for the purpose of criminal prosecution; (3) reaffirming its
finding that the agents unreasonably believed they entered a public restroom and
not a residence; and (4) finding the agents violated the knock and announce
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requirement when they knocked, but failed to wait for a response before entering
the room.

Having found the arrest illegal, the district court nevertheless partially
granted the governments motion and modified its prior suppression order based
on its review of Harris. Under its interpretation of that case, the district court
determined an attenuation of the arrest violation occurred when agents gave Mr.
Cisneros-Cruz the intervening Miranda warning between the time of his initial
arrest at his residence and his statement given at the Immigration and
Naturalization Service office. Based on this determination, the district court
concluded the statements, identification and fingerprints made at the office could
be used as evidence at trial. In anticipation of the governments use of this
evidence at trial, Mr. Cisneros-Cruz pled guilty to unlawful reentry into the
United States after deportation for an aggravated felony, but reserved the right to
appeal the disposition of his suppression motion.

On appeal, Mr. Cisneros-Cruz contends the district court committed

reversible error in first granting, and then denying, his motion to suppress his
fingerprints and his statement. He claims that, under the fruit of the poisonous
tree doctrine, his illegal arrest prohibits the introduction of any evidence derived
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from that arrest. Mr. Cisneros-Cruz suggests his arrest was illegal because the
agents involved: (1) did not secure a judicial arrest warrant authorizing entry into
Mr. Cisneros-Cruzs private residence; (2) entered without announcing their
authority and purpose, thereby violating the knock and announce requirement;
(3) questioned him inside his residence without the benefit of a Miranda
warning; (4) obtained an involuntary statement from him following the Miranda
warnings; and (5) never advised him that his previous illegally obtained
statements could not be used against him. Finally, Mr. Cisneros-Cruz argues the
district court erred by not making an explicit determination as to the voluntariness
of his pre- and post-Miranda statements.

STANDARD OF REVIEW
A district courts ruling on a motion to suppress, based on live testimony at
a suppression hearing, is accepted unless clearly erroneous or influenced by an
incorrect view of the law. United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112,
1116 (10th Cir. 1998). We review questions of law de novo, viewing the
evidence in the light most favorable to the party that prevailed in the district
court. Id. Because Mr. Cisneros-Cruz is appealing the district courts order, we
view the evidence in the light most favorable to the government.

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DISCUSSION
For the purposes of this appeal, we assume without deciding that Mr.
Cisneros-Cruzs arrest violated the Fourth Amendment as a warrantless and
nonconsensual entry into a residence. 3 Nevertheless, the evidence obtained
after the unlawful arrest may still be admissible depending on whether the agents
had probable cause to arrest Mr. Cisneros-Cruz. See Harris, 495 U.S. at 18.
Under the principles articulated in Harris, if no probable cause existed, evidence
obtained as a result of the illegal arrest may be suppressed under the exclusionary
rule as fruit of the poisonous tree. Id. at 18-19. However, if the agents had
probable cause to arrest Mr. Cisneros-Cruz, the fruit of the poisonous tree
doctrine does not apply. Id. at 21.

In Harris, the police made a nonconsensual and warrantless entry into the
defendants apartment for the sole purpose of taking him into custody. 495 U.S.
at 1642. After the officers read Mr. Harris his Miranda rights, he responded to

By making this assumption, we leave certain Fourth Amendment issues open for
resolution at another time. Thus, we do not decide whether Fourth Amendment rights
should be afforded to Mr. Cisneros-Cruz as an illegal alien; whether the Immigration and
Naturalization Services administrative warrant was sufficient to make an arrest for
criminal prosecution, or whether the room in a public restaurant where Mr. Cisneros-Cruz
slept can be considered his residence for the purpose of an arrest warrant or the knock
and announce requirement.
3

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their questions and admitted killing the victim in question. The police then
arrested him and took him to the police station where he was again informed of
his Miranda rights and signed a written inculpatory statement. Id. In determining
the station house statement was admissible, the Supreme Court declined to apply
the exclusionary rule, stating that while statements within the home are afforded
substantial protection, the same protection does not apply to statements taken
outside the home where the police have probable cause to arrest the suspect for
committing a crime. 495 U.S. at 17-18. In reaching this conclusion, the Court
explained that the police could have immediately rearrested Mr. Harris, even if
momentarily released after the first arrest, because they possessed probable cause
he committed the crime. Id. at 18. Hence, the Court dispensed with the formality
of the police having to release and then rearrest a suspect when probable cause for
the arrest existed, but police misconduct, such as a warrantless, nonconsensual
arrest at a residence, occurred. In further support of its conclusion that the
exclusionary bar could not apply, the Supreme Court reasoned that Mr. Harris
person or body, obtained at the initial arrest, was not suppressible as a fruit of an
unlawful arrest. Id. at 18-19 (citing United States v. Crews, 445 U.S. 463, 475
(1980)). In other words, while the statement taken at the time of the police
misconduct may have been suppressible, custody of Mr. Harris himself was not

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suppressible because probable cause for his arrest existed. 4

In this case, we find probable cause to arrest Mr. Cisneros-Cruz existed

before the agents entered the restaurant because Special Agent Simer, who
previously arrested Mr. Cisneros-Cruz on marijuana charges, recognized him on
sight, positively identified him on at least two occasions outside the restaurant
and knew of his prior aggravated felony conviction, deportation, and illegal
reentry status. Moreover, the record plainly shows preexisting criminal
conviction and deportation records positively confirmed his prior criminal
conviction, deportation and illegal reentry status.

Having found probable cause existed in this case, for the same reasons
articulated in Harris we conclude Mr. Cisneros-Cruz was in lawful custody when
he was removed from the restaurant, taken to the Immigration and Naturalization
Service office, and read his Miranda rights. Because Mr. Cisneros-Cruz was in
lawful custody, his sworn statement is admissible, absent abuses such as coercion,
lack of a Miranda warning, or lack of Mr. Cisneros-Cruzs understanding of his
Harris does not turn on any act of attenuation between the unlawful entry and
the formal statement, but on the existence of probable cause for Mr. Cisneros-Cruzs
arrest and his lawful custody following his removal from his residence. 495 U.S. at 1819.
4

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rights. Id. at 20 (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981) (holding
voluntariness of confession is contingent on the defendants understanding of his
right to counsel and intelligent and knowing relinquishment of that right)).

In this case, no such abuses occurred. Agents twice advised Mr. CisnerosCruz of his Miranda rights, which he subsequently waived before indicating his
desire to make a formal statement. As for the voluntariness of his sworn
statement, we note that while an explicit holding is preferred, it is evident the
district court grappled with the issue and implicitly made a finding of its
voluntariness when it determined Mr. Cisneros-Cruzs last inculpatory statement
was admissible. Moreover, the government met its burden by showing Mr.
Cisneros-Cruz voluntarily made that statement when it introduced Special Agents
Simers and Godwins testimony concerning the circumstances surrounding his
arrest and sworn statement. See United States v. Gell-Iren, 146 F.3d 827, 830
(10th Cir. 1998). Mr. Cisneros-Cruz failed to sufficiently rebut this evidence. 5
Mr. Cisneros-Cruz attempted to rebut the voluntariness of his statement by
contending that while handcuffed and seated at the restaurant table, but prior to receiving
his Miranda warning, Special Agent Godwin became angry and slammed his fist down on
the table demanding he cooperate. However, Special Agents Godwin and Simer testified
this did not occur. Mr. Cisneros-Cruz also claims that while at the restaurant, he told
Special Agent Godwin he wanted to remain silent. However, Special Agent Godwin
testified Mr. Cisneros-Cruz never made such a request and ultimately, after receiving the
Miranda warning twice, Mr. Cisneros-Cruz waived his right to remain silent regardless of
whether he initially made this request. We note that the district court heard the
5

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Finally, nothing in the record shows his statement resulted from his lack of
understanding as to his rights or failure to intelligently and knowingly waive
those rights. Thus, we hold that because probable cause for Mr. Cisneros-Cruzs
arrest existed and he was in lawful custody at the time agents took his statement
and fingerprints, the district court did not err in relying on Harris when it
determined the government could properly introduce that evidence at trial.

Mr. Cisneros-Cruz also argues that the agents should have advised him that
his statement taken at the restaurant could not be used against him. We disagree.
His statement that he was Edmundo Cisneros-Cruz, which agents obtained prior
to handcuffing him and reading him his Miranda rights, concerned only an
affirmation of his own identity. The Supreme Court has held that the identity of
a defendant ... in a criminal or civil proceeding is never itself suppressible as a
fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search,
or interrogation occurred. Immigration & Naturalization Service v. LopezMendoza, 468 U.S. 1032, 1039 (1984).

conflicting testimony, and by determining Mr. Cisneros-Cruzs last statement was

voluntary, implicitly gave more weight to the credibility of the agents testimony. Such
credibility determinations are within the sound discretion of the district court. Anderson
v. City of Bessemer City, 470 U.S. 564, 575 (1985); Gell-Iren, 146 F.3d at 830.
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For these reasons, we AFFIRM the district courts partial denial of Mr.
Cisneros-Cruzs motion to suppress.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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