Estrada v. Rhode Island

United States Court of Appeals

For the First Circuit

No. 09-1149

ASTRID G. ESTRADA; WENDY M. ESTRADA; GUILFREDO E. MUÑOZ;

JOSÉ A. AQUINO; CRUZ F. RIVERA; CARLOS E. TAMUP; JOSÉ BURGOS;

ABELINO M. URIZAR; ISRAEL TEBALAN; ROLANDO NORIEGA;

BORIS CRUZ; ELSA HERNÁNDEZ VILAVICENCIO,

Plaintiffs, Appellants,

v.

STATE OF RHODE ISLAND, State Police Department;

STEVEN M. PARE, individually and in his official capacity as

Superintendent of the Rhode Island State Police;

C. THOMAS CHABOT, individually and in his official capacity

as a state trooper employed by the State of Rhode Island,

Defendants, Appellees,

JANE DOE, individually and in her official capacity

as a state trooper employed by the State of Rhode Island,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella, and Howard, Circuit Judges.

V. Edward Formisano, with whom American Civil Liberties Union,

Rhode Island Affiliate, Sinapi, Formisano, & Co., Ltd., was on

brief for appellants.

John M. Moreira, Special Assistant Attorney General, with whom

Patrick C. Lynch, Attorney General, James R. Lee and Brenda D.

Baum, Assistants Attorney General, were on brief for appellees.

Larry James, General Counsel, Christina Corl, Crabbe, Brown &

James, LLP, Michael M. Hethmon, Garrett R. Roe, and Immigration

Reform Law Institute, Inc., as amicus curiae The National Fraternal

Order of Police.

February 4, 2010

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TORRUELLA, Circuit Judge. Plaintiff-Appellants Astrid G.

Estrada, Wendy M. Estrada, Guilfredo E. Muñoz,1 José A. Aquino,

Cruz F. Rivera, Carlos E. Tamup, José Burgos, Abelino M. Urizar,

Israel Tebalan, Rolando Noriega, Boris R. Cruz, and Elsa Hernández

Vilavicencio were passengers in a van that was stopped for failing

to signal when changing lanes. They filed this civil action in the

District Court of Rhode Island challenging the actions of Officer

Thomas Chabot of the Rhode Island State Police during the stop,

namely, that he inquired into their immigration status, contacted

Immigration and Customs Enforcement ("ICE") and transported them to

ICE in violation of their Fourth Amendment rights. Plaintiff Tamup

also challenges the two pat-down searches to his person performed

by Officer Chabot. For the reasons stated below, we affirm the

district court on all counts.

I. Background2

The events transpired in the early morning of July 11,

2006. Plaintiff-Appellant Carlos E. Tamup ("Tamup") was driving a

fifteen-passenger van heading south on Interstate 95 in Rhode

1

Although the briefs in this case refer to a "Guilfredo E.

Muñoz," at deposition, Mr. Muñoz explained that his first surname

is Camay and his second surname is Muñoz.

2

The facts are drawn from deposition testimony of all parties, as

well as exhibits submitted to the district court in support of the

motions for summary judgment. Because this case comes to us after

a grant of summary judgment, we present the facts in the light most

favorable to the non-moving party, and draw all reasonable

inferences in that party's favor. Fennell v. First Step Designs,

Ltd., 83 F.3d 526, 534 (1st Cir. 1996).

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Island. The remaining eleven Plaintiffs were passengers in that

van and were on their way to work in Westerly, Rhode Island.

Somewhere near exit 4 in the Town of Richmond, Tamup failed to

activate his turn signal as he switched lanes in the two-lane

stretch of road. Rhode Island State Police Officer Thomas Chabot

("Officer Chabot") was stationed in a marked state police cruiser

parked on the grassy median on Interstate 95. Upon observing that

the van had failed to signal its lane change, Officer Chabot

engaged his overhead lights to stop the van.3

At Officer Chabot's request, Tamup produced his driver's

license, vehicle registration, and proof of insurance. Responding

to Officer Chabot's question, Tamup stated that his wife owned the

van and that he and the other passengers were driving to work

polishing jewelry in Westerly, Rhode Island. Walking over to the

passenger's side of the van, Officer Chabot asked the front seat

passenger, Plaintiff Guilfredo E. Camay Muñoz ("Camay"), for

identification. When Camay stated that he did not have

identification on his person, Officer Chabot asked for his name and

birth date. Although there was an obvious language barrier, Camay

was able to give his name and provide his birth date.

3

The validity of the stop is not contested in this appeal.

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Officer Chabot opened the front passenger door4 and

counted the number of people inside, stating that there were

fifteen persons.5 Using Tamup as a translator, Officer Chabot

asked the rest of the passengers to produce identification. Some

of the passengers produced various forms of identification: a gym

membership card, a non-driver's license identification issued by

the Rhode Island Division of Motor Vehicles, and two

identifications issued by the Guatemalan Consulate. Continuing to

use Tamup as a translator, Officer Chabot then asked the passengers

if they could produce documentation establishing their U.S.

citizenship.6 None of the passengers was able to produce such

4

A ball of some sort fell out of the van as Officer Chabot opened

the door. In the videotape of the stop, Officer Chabot is seen

picking up the ball and asking: "Ehh, make a good player huh?"

5

There appears to be a question as to how many passengers were in

the van. In their brief, appellees assert that there were fourteen

people in the van, but in the enhanced audio of the stop, Officer

Chabot is heard saying there are fifteen people. In their briefs,

Appellants contend there were only twelve people in the van, the

total number of persons who now appeal. However, in his

deposition, Tamup states that he was transporting fourteen

passengers. In any event, this is not a material fact.

6

Plaintiffs argue that there is a material dispute as to when

Officer Chabot inquired about the immigration status of the

passengers. Plaintiffs note that Officer Chabot, Tamup, and at

least one other Plaintiff testified in their deposition that

Officer Chabot made such requests and inquiries prior to returning

to his cruiser the first time and conducting the computer checks.

However, other Plaintiffs testified that Officer Chabot gathered

Tamup's license, returned to his cruiser, and did not ask for the

identifications until he returned. Because this dispute is not

material to our analysis, we present the facts as stated by both

Officer Chabot and Plaintiff Tamup, who translated Chabot's

requests to the passengers.

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documentation. According to Officer Chabot's deposition testimony,

he did not observe any unusual or suspicious activity from Tamup or

the van's passengers at this or any other time.7 Officer Chabot

also testified, however, that he normally requested identification

from passengers in vehicles he stopped, and that more than 99

percent of the passengers from whom he requests identification can

supply it.

Officer Chabot then requested that Tamup step out of the

van so that he could perform a pat-down search.8 See Terry v.

Ohio, 392 U.S. 1 (1968). The search did not yield anything, but

during the course of the pat-down, Officer Chabot asked Tamup if he

and the rest of the passengers had green cards or work papers, and

specifically requested that Tamup give him his social security

number and green card. Tamup stated that he only had his driver's

7

Defendants cite to deposition testimony of Plaintiff that they

were nervous during the encounter with Officer Chabot. All of the

testimony cited, however, relates to the Plaintiffs' referring to

their own state of mind. We have been unable to find any evidence

in the deposition testimony of Officer Chabot that he observed or

recognized any nervousness on the part of the passengers in the

van.

8

The justification given by Officer Chabot for this pat-down at

his deposition was that:

I had 14 people in the van. And then once Mr. Tamup is in

the van and he comes out of the van, I have no idea what

he might have brought with him from the van, whether it

be a knife, whether it be a weapon of some sort, so for

my safety I conducted a Terry pat.

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license and that the other passengers did not have any other

documentation.

Apparently, sometime before Officer Chabot returned to

his vehicle to run Tamup's license, many or most of the Plaintiffs

had essentially admitted being in the country illegally. While the

deposition testimony is sometimes less than clear on what exactly

Officer Chabot asked the passengers, and Officer Chabot himself

never testified that he understood the passengers to have stated

directly that they were in the country illegally, Plaintiffs Tamup

and Estrada both testified in their depositions that they had

admitted to Officer Chabot that they and the rest of the passengers

were not in the country legally.9

9

Tamup testified that he told Officer Chabot that no one in the

van had a green card or work papers:

Q: Did he [Officer Chabot] ask you whether anyone else in

the van had a green card?

A: Yes. He said that if they were going to work, they had

to have their papers, that if they worked here, they have

to have a green card.

Q: Did you tell him that there was -- no one in the van

had a green card or work papers?

A: We told him we didn't have anything.

While it is unclear whether the above exchange indicates that Tamup

told Officer Chabot they were not carrying their green cards

currently, or that they simply did not have them, Estrada testified

as follows:

Q: You said that the trooper asked you all in the van

whether you had permission or license to be in the

country, and someone said no?

A: No. When he asked, we all said no.

Q: Everyone in the van said the word, no?

A: No. Not everybody. Just with their faces.

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After Tamup sat back in the driver's seat in the van,

Officer Chabot returned to his cruiser and conducted a background

check on Tamup. Tamup's license came back as valid and his

criminal background check was negative. Officer Chabot then

contacted Immigration and Customs Enforcement ("ICE") and reported

that he had pulled over a passenger van transporting individuals

whom he believed might be illegal immigrants. Officer Chabot had

to wait approximately three minutes to receive a return call from

the ICE Providence office with instructions.

After speaking with someone at the ICE Providence office,

Officer Chabot returned to the van and conducted a second pat-down

of Tamup. A second state trooper, Officer Heather Donahue, arrived

at the scene and conferred with Officer Chabot. Officer Chabot

then informed Tamup that Tamup would have to drive the passenger

van with all the passengers to the ICE Providence office. Tamup

testified at his deposition that Officer Chabot told him it was his

responsibility to take everyone to immigration and that "if anybody

tried to escape, they could lose their life." Plaintiffs contend

they did not consent to the detainment or the travel to ICE.10

Q: Okay. Some people in the van actually said the word,

no?

A: I don't remember. I know that I was one of those who

said no.

Q: So you said the word, no?

A: Yes.

10

Officer Chabot testified at his deposition that the passengers

voluntarily acquiesced to his request to drive to the ICE office in

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Plaintiff Camay testified that he himself heard Officer Chabot say

"You lock the van or somebody's going to die."11 Other Plaintiffs

testified that they heard Tamup translate the threat.

State troopers escorted the passenger van being driven by

Tamup to the ICE Providence office without significant incident.12

All of the van's passengers were taken into custody upon arrival.

In January 2007, all the passengers filed a complaint in

Rhode Island District Court. The complaint alleged an illegal

search and seizure in violation of 42 U.S.C. § 1983 and the Fourth

and Fourteenth Amendments to the United States Constitution as well

as Article I, § 6 of the Rhode Island Constitution; unlawful

discrimination under 42 U.S.C. §§ 1981, 1983, Article I, § 2 of the

Rhode Island Constitution, and R.I. Gen. Laws 31-21.2 (the Rhode

Island Racial Profiling Prevention Act of 2004); and a state tort

claim of negligence.

At the conclusion of discovery, defendants filed a motion

for summary judgment defending both on qualified immunity grounds

Providence. In his police report, Officer Chabot stated that he

attempted to give Tamup directions to the ICE office, but was

unable to do so due to the language barrier, at which point Officer

Chabot agreed to escort the van to the ICE office. Because of the

procedural posture of this case, we take the facts in the light

most favorable to the Plaintiffs.

11

Officer Chabot denies these allegations but because of the

procedural posture of this case, we take them as true.

12

The officers requested that Tamup stop the vehicle at one point

during the drive so they could verify that the doors were locked,

but this is not an issue in this case.

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and substantive grounds. Plaintiffs also filed a motion for

partial summary judgment. The district court entered judgment in

favor of defendants on all counts on December 30, 2008. Plaintiffs

timely appealed.13

II. Standard of Review

Summary judgment is appropriate if the record shows "that

there is no genuine issue as to any material fact and [] the moving

party is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c). On a summary judgment motion, "[a] genuine issue exists

where a 'reasonable jury could resolve the point in favor of the

nonmoving party.'" Meuser v. Fed. Express Corp., 564 F.3d 507, 515

(1st Cir. 2009) (quoting Suárez v. Pueblo Int'l, Inc., 229 F.3d 49,

53 (1st Cir. 2000)). "A fact is material only if it possesses the

capacity to sway the outcome of the litigation under the applicable

law." Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)

(internal quotation marks omitted).

Where, as here, the parties have filed cross-motions for

summary judgment, the court must "determine whether either of the

parties deserves judgment as a matter of law on facts that are not

disputed." Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st

Cir. 2004). "It is not for the court on summary judgment to weigh

the evidence 'but to determine whether there is a genuine issue for

trial.'" Cont'l Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d

13

Plaintiffs only appeal the issues that involve Officer Chabot.

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370, 373 (1st Cir. 1991) (quoting Anderson v. Liberty Lobby Inc.,

477 U.S. 242, 249 (1986)). Ruling on each party's motion, the

court views all facts and draws all reasonable inferences in the

light most favorable to the nonmoving party. Id.

III. Discussion

In this appeal, Plaintiffs press four main issues.

First, Plaintiffs argue that the district court erred in ruling

that Officer Chabot did not violate their Fourth Amendment rights

by inquiring about their immigration status and contacting ICE.

Second, Plaintiffs argue that Officer Chabot did not have

reasonable suspicion to transport the Plaintiffs to the ICE

Providence office. Third, Plaintiff Tamup individually argues that

the district court erred in ruling that Officer Chabot had

reasonable suspicion to conduct the two Terry pat-down searches of

Tamup. Finally, Plaintiffs contend that the district court erred

in ruling that Officer Chabot did not violate the Rhode Island

Racial Profiling Prevention Act of 2004 ("the Act").

In this case, the district court ruled that Officer

Chabot had reasonable suspicion to suspect immigration violations,

to transport the Plaintiffs to ICE, and to twice pat-down Tamup.

The court thus did not reach the issue of qualified immunity. We

choose to answer the question of qualified immunity first, which

makes it unnecessary to determine whether Officer Chabot had

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reasonable suspicion to take these actions. See Nelson v. Kline,

242 F.3d 33 (1st Cir. 2001).

"The doctrine of qualified immunity protects government

officials from 'liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.'" Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 526

(1st Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)) (internal quotation marks omitted). To determine whether

a particular officer is entitled to qualified immunity, "[a] court

must decide: (1) whether the facts alleged or shown by the

Plaintiff make out a violation of a constitutional right; and (2)

if so, whether the right was 'clearly established' at the time of

the defendant's alleged violation." Maldonado v. Fontánes, 568

F.3d 263, 269 (1st Cir. 2009).14

This second step has two aspects: (1) "the clarity of the

law at the time of the alleged civil rights violation" and (2)

whether, on the facts of the case, "a reasonable defendant would

have understood that his conduct violated the Plaintiffs'

constitutional rights." Id.; see also Anderson v. Creighton, 483

14

Our Circuit had previously articulated this two-part test as a

three-part test that remained faithful to the substance of the test

articulated by the Supreme Court. See, e.g., Bergeron v. Cabral,

560 F.3d 1, 7 (1st Cir. 2009). However, we recently adopted the

"[Supreme Court's two-part test and abandon[ed] our previous usage

of a three-step analysis." Maldonado, 568 F.3d at 269.

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U.S. 635, 640 (1987) ("[To overcome qualified immunity, t]he

contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right."). After Pearson, we no longer have to take these two steps

in "strict sequence." Bergeron, 560 F.3d at 7 (citing Pearson v.

Callahan, 129 S. Ct. 808, 818 (2009)). Thus if a reasonable

official would not have understood that his conduct violated

Plaintiffs' constitutional rights, we must grant him qualified

immunity. "[T]his prong of the inquiry, while requiring a legal

determination, is highly fact specific." Nelson, 242 F.3d at 35

n.2 (quoting Swain v. Spinney, 117 F.3d 1, 9 (1st Cir. 1997)).

If an officer is found to be deserving of qualified

immunity under federal law, he will also be granted qualified

immunity for the same claim under Rhode Island law. See Hatch v.

Town of Middletown, 311 F.3d 83, 89-90 (1st Cir. 2002) (holding

that Rhode Island law recognizes a qualified immunity defense under

state law analogous to the federal doctrine of qualified immunity).

Turning to the facts of this case, we take each issue

presented by the Plaintiffs in turn.

A. The Inquiry About Immigration Status and Contacting ICE

Plaintiffs do not contest the validity of the traffic

stop, nor do they argue that it was unlawful for Officer Chabot to

request identification from all the passengers in the van, a

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question our Circuit has not conclusively decided.15 Instead,

Plaintiffs argue that Officer Chabot's inquiry into their

immigration status and subsequent call to ICE prolonged the traffic

stop, converting it into an unlawful seizure in violation of the

Fourth Amendment.

We cannot say, however, that it was clear as a matter of

law that Officer Chabot's brief line of questioning, nor the three

minutes it took for him to receive a response from ICE,

unreasonably prolonged the stop such that independent reasonable

suspicion was necessary to support his inquiry into Plaintiffs'

immigration status. The traffic stop at issue took place a year

after the Supreme Court's decision in Muehler v. Mena, 544 U.S. 93

(2005). In that case, the Court held that a police officer does

not need independent reasonable suspicion to question an individual

about her immigration status during the execution of a search

warrant, but that such inquiry constitutes "mere police

questioning" so long as the detention was not prolonged by the

questioning. Id. at 101.16

15

Compare United States v. Chaney, 584 F.3d 20, 27 (1st Cir. 2009)

(finding that officer's inquiries into car passenger's identity did

not violate passenger's rights) with United States v. Henderson,

463 F.3d 27, 31 (1st Cir. 2006) (declining to decide whether an

officer could demand a passenger's identification).

16

Plaintiffs contend that this case is distinguishable from

Muehler because of the timing of Officer Chabot's questions. They

allege that Officer Chabot did not ask about Plaintiffs'

immigration status until after he had checked the status of Tamup's

license and conducted a criminal background check, as well as

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Other courts have held that questioning that extends the

length of detention "by only a brief time" does not "make the

custody itself unreasonable." United States v. Childs, 277 F.3d

947, 949 (7th Cir. 2002) (en banc). See also United States v.

Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006); United

States v. Burton, 334 F.3d 514, 518-19 (6th Cir. 2003); United

States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001). At the

time of the traffic stop, our Circuit had not decided this

question. Cf. United States v. Chhien, 266 F.3d 1, 9 (1st Cir.

2009) (finding that officer's questions to the driver about his

itinerary did not exceed the scope of the stop). In a more recent

case, we rejected a defendant's argument that "police must limit a

traffic citation stop to the narrow purpose of immediately

preparing and issuing a citation." United States v. Dunbar, 553

F.3d 48, 56 (1st Cir. 2009) (finding that a delay of twelve minutes

while officer prepared a traffic warning and questioned car's

passenger about her itinerary did not unreasonably delay the stop).

We also note that by the time Officer Chabot asked about

Plaintiffs' immigration status, he knew that: (1) Plaintiffs were

contacted ICE. When Officer Chabot contacted ICE, Plaintiffs

argue, the purpose of the traffic stop was complete and the further

questioning about immigration status unlawfully prolonged the stop.

We note that by a number of witness accounts, including those of

Tamup and Officer Chabot, Officer Chabot asked about Plaintiff's

immigration status before running Tamup's license. But even if

Officer Chabot did not pose the question until after returning

Tamup's license, it was not clearly established law that the brief

exchange unreasonably prolonged the traffic stop.

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headed to work; (2) most were unable to produce any identification,

and of the four who did, two could produce only identifications

issued by the Guatemalan consulate; and (3) they spoke little

English. Officer Chabot also testified that passengers, of whom he

requests documentation as a matter of routine, are able to produce

valid identification more than 99 percent of the time. All of

these facts combined may well have sufficiently heightened his

suspicions for him to believe that he could shift his inquiry from

the traffic stop to investigating other potential criminal

activity. See Chhien, 266 F.3d at 6 ("[W]hile an officer's actions

must bear some relation to the purpose of the original stop, he may

shift his focus and increase the scope of his investigation by

degrees if his suspicions mount during the course of the

detention.").

In any event, the law was not and is not know clearly

established, such that Chabot should have known that he could not

investigate further. We thus conclude that Officer Chabot is

entitled to federal and state qualified immunity for any possible

constitutional violations that he may have committed in asking the

van's passengers questions about their immigration status and in

contacting ICE.

B. Escorting Plaintiffs to ICE

After contacting ICE, Officer Chabot returned to the van

and demanded that Tamup follow him to the ICE office in Providence.

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Plaintiffs contend that this prolonged the traffic stop and that

Officer Chabot did not possess either reasonable suspicion or

probable cause to detain and transport the Plaintiffs to ICE. On

the other hand, defendant contends that the admission of

undocumented status and the manner in which the events unfolded

provided Officer Chabot with probable cause to believe Plaintiffs

were violating immigration laws. See 8 U.S.C. § 1324 (harboring

aliens); 8 U.S.C. § 1325 (improper entry by alien); 8 U.S.C.

§ 1304(e) (personal possession of registration or receipt card).

Plaintiffs make much of the difference in testimony

between Officer Chabot's characterization of the escort as

voluntary and the testimony on the record from multiple Plaintiffs

that Officer Chabot issued a bodily threat against Tamup and/or the

Plaintiffs if they did not follow his vehicle to the ICE Providence

office. Because we find that Officer Chabot's actions fall under

the doctrine of qualified immunity, this contested issue is not

material.17

Probable cause exists when the circumstances, "viewed

from the vantage point of a prudent, reasonable, cautious police

officer . . . guided by . . . experience and training" are

sufficient to warrant a reasonable person to believe that the

individual had committed or was committing a crime. United States

17

We are by no means condoning the type of threat alleged to have

been made here -- one that for purposes of summary judgment, we

take as true.

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v. Davis, 458 F.2d 819, 821 (D.C. Cir. 1972); United States v.

Reyes, 225 F.3d 71, 75 (1st Cir. 2000). The Supreme Court has made

it clear that officers can "draw reasonable inferences from [the]

facts in light of their knowledge of the area and their prior

experience . . . ." United States v. Ortiz, 422 U.S. 891, 897

(1975).

Although Officer Chabot's police report and deposition

testimony calls into question whether he himself believed he had

probable cause to escort the Plaintiffs to ICE, "the Supreme Court

has held that an officer's subjective belief is not dispositive of

whether probable cause existed." United States v. Pardue, 385 F.3d

101, 106 n.2 (1st Cir. 2004); Florida v. Royer, 460 U.S. 491, 507

(1983) ("[T]he fact that the officers did not believe there was

probable cause and proceeded on a consensual or Terry-stop

rationale would not foreclose the State from justifying . . .

custody by proving probable cause."). Rather, for the purposes of

qualified immunity, we look to the objective perspective of a

reasonable officer and inquire whether given all the facts in the

record, that officer would have believed that he was not violating

the Plaintiffs' Constitutional rights in taking the action at

issue.

By the time that Officer Chabot demanded that Plaintiffs

follow him to the ICE Providence office, two Plaintiffs had

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essentially admitted on their behalf and on the behalf of the rest

of the passengers, that they were in the country illegally.

Given the undisputed facts as we find them in the record

and the state of the law, we are compelled to find that a

reasonable defendant in Officer Chabot's position would have

believed he had sufficient evidence giving rise to probable cause

to support the conclusion that the van's occupants had committed

immigration violations. Officer Chabot is thus entitled to

qualified immunity for alleged violations of state or federal laws

surrounding the seizure of Plaintiffs and their subsequent escort

to the Providence ICE office.

C. Pat-down Searches of Plaintiff Tamup

Plaintiff Tamup challenges the district court's ruling

that Officer Chabot had reasonable suspicion to conduct the two

pat-down searches of his person.18 Tamup argues that Officer Chabot

had neither a subjective nor an objective suspicion that Tamup was

armed and dangerous.

The inquiry of whether an officer has reasonable

suspicion to conduct a pat-down search requires a consideration of

"the totality of the circumstances to see whether the officer had

18

At the district court, all Plaintiffs sought to challenge

Tamup's pat downs. The district court correctly ruled that only

Tamup had standing to challenge the pat-downs, and Plaintiffs do

not challenge this ruling. See United States v. Sowers, 136 F.3d

24, 28-29 (1st Cir. 1998) (holding that appellant who was not

himself subjected to a pat down search did not have standing to

raise a Fourth Amendment claim on the basis of said search).

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a particularized, objective basis for his or her suspicion."

United States v. McKoy, 428 F.3d 38, 39 (1st Cir. 2005) (citing

United States v. Arvizu, 534 U.S. 266, 273 (2002)). The Supreme

Court has recognized that "[t]he risk of harm to both the police

and the occupants [of a stopped vehicle] is minimized . . . if the

officers routinely exercise unquestioned command of the situation."

Maryland v. Wilson, 519 U.S. 408, 414 (1997). "[D]anger to an

officer during a traffic stop is [also] likely to be greater when

there are passengers in addition to the driver in the stopped car."

Id. at 415; see also United States v. Cruz, 156 F.3d 22, 26 (1st

Cir. 1998) (finding that during a Terry stop, the number of

suspects compared to the number of officers is a relevant factor in

assessing an officer's safety concerns). This Court has

consistently held that, while engaging in legitimate investigative

conduct, "the police may take reasonable steps to protect

themselves by searching a suspect for weapons or taking other

protective measures." United States v. Taylor, 162 F.3d, 12, 17

(1st Cir. 1998); see also Flowers v. Fiore, 359 F.3d 24, 30 (1st

Cir. 2004). "Furthermore, the Court has recognized that traffic

stops are 'especially fraught with danger to police officers.'"

Arizona v. Johnson, 129 S. Ct. 781 (2009).

As to the first pat-down search, Tamup argues that

Officer Chabot's reasons evince that he lacked subjective suspicion

that Tamup was armed and dangerous. Tamup also argues that a

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reasonable officer presented with the same circumstances would not

have believed that his welfare was in jeopardy because Chabot did

not point to having observed Tamup making any remarkable, sudden,

or threatening movements while he was seated in the van.

Tamup makes similar arguments with regards to the second

pat down, which occurred when Officer Chabot returned to the van

after calling ICE and verifying that Tamup's paperwork was in

order. Tamup points to Officer Chabot's articulation of the reason

why he conducted the second pat down: that Officer Chabot believed

that Tamup "could have picked up a weapon while he got back in his

vehicle." Tamup argues that this does not amount to an articulable

suspicion that Tamup was armed and dangerous. According to Tamup,

if Officer Chabot had a concern that Tamup could access a weapon

inside the van, he should have searched the van, the van's

compartment, and the other passengers prior to permitting Tamup to

return to the vehicle, or alternatively separated Tamup from the

van and the passengers by placing him in the back of his police

cruiser. Further, Tamup argues that no reasonable officer in

Officer Chabot's position would have believed his safety was in

danger, and conducted the second pat down under the circumstances,

because there were no sudden or furtive movements, this was not a

high crime area, it was not late at night, and there were no

suspicious circumstances or criminal activity, or bulge in his

clothing that would suggest that he was carrying a weapon.

-21-

Defendants argue that Officer Chabot's inability to

obtain identifying information from most of the van passengers

contributed to his reasonable belief that his interactions with

Tamup could be dangerous. Defendants argue that due to the lack of

identification presented, Officer Chabot could not conduct criminal

background checks to dispel any safety concerns he had about the

passengers. Defendants also add that the number of occupants in

the van was also a significant factor in Officer Chabot's safety

concerns. See Cruz, 156 F.3d at 26 (holding that officer's frisk

was justified in part because of the number of occupants in the

vehicle, "who outnumbered the police officer five to one"). With

regards to the second pat down, defendants contend that it was even

more reasonable for Officer Chabot to have concerns for his safety

because he could not see Tamup while conducting the check and the

situation had escalated since Plaintiffs had admitted to not having

documentation of their legal status in the United States.

Defendants argue that all these circumstances justified a second

pat down.

Given the state of the law and the facts in this case, we

cannot say that a reasonable officer, confronted with a similar

situation as Officer Chabot, would have believed he was violating

the Plaintiff's constitutional rights by conducting the two pat

down searches. Before the first pat down, Officer Chabot was

confronted with a fifteen-passenger van full of individuals who

-22-

were by their own admission heading to work, most of whom did not

speak English, and who mostly lacked any identification. Two of

the pieces of identification that were provided were issued by the

Consulate of Guatemala. None of the passengers was able to provide

proof of U.S. citizenship, and after Officer Chabot asked for such

identification, he alerted the passengers to his belief that they

were not in the country legally. The likely consequence of

discovery of unauthorized entry or unauthorized stay in this

country -- forced deportation -- is a serious matter with harsh

consequences. Under these circumstances, it was not unreasonable

for Officer Chabot to conclude that he was entitled to pat down

Tamup to assert control over the situation and for his safety.

The second pat down occurred after Officer Chabot had

conferred with ICE and had received confirmation that his

suspicions as to the passengers were likely correct, as well as

after some of the passengers had admitted to lacking proof of legal

status. During this period of time, Officer Chabot lost visual

contact with Tamup and the passengers. Although Officer Chabot did

not testify that he himself observed nervousness on the part of the

passengers, most of the passengers themselves testified that they

had been nervous throughout the whole encounter.

It was not unreasonable for Officer Chabot to proceed as

he did. Tamup's suggestion that Officer Chabot should have instead

searched the van, its compartments, and all of the passengers

-23-

before allowing Tamup to return to the vehicle would have involved

a greater intrusion and unquestionably increased risk. The

suggestion that having all the passengers exit the van to allow

Officer Chabot to inspect each of them in turn, requires little

comment or analysis. The further suggestion that Officer Chabot

should have separated Tamup from the van by placing him in his

police cruiser was a plausible alternative, but it was not

unreasonable for Officer Chabot to decline to do so.

In the totality of the circumstances, we cannot say that

a reasonable officer in Officer Chabot's position would have

understood that his conduct violated Tamup's constitutional right.

We thus hold that Officer Chabot is entitled to qualified immunity

for both pat down searches under federal and state law.

D. Rhode Island Racial Profiling Prevention Act

Plaintiffs also brought a state law claim of prohibited

racial profiling under the Act. In prohibiting racial profiling,

the Act states that "[u]nless there exists reasonable suspicion or

probable cause of criminal activity, no motor vehicle stopped for

a traffic violation shall be detained beyond the time needed to

address the violation." R.I. Gen. Laws § 31-21.2-5. A private

cause of action for damages and equitable relief is statutorily

provided for victims of racial profiling. R.I. Gen. Laws

§ 31-21.2-4.

-24-

The Act does not define "reasonable suspicion," nor has

the term been construed under the statute. However, we agree with

the district court that the Rhode Island legislature intended the

term to have the same meaning as the standard developed under the

Rhode Island Constitution. State v. Foster, 842 A.2d 1047, 1051

(R.I. 2004) (holding that "reasonable suspicion" is the same for

purposes of the Rhode Island Constitution and the United States

Constitution, that is, that it must be "based upon all of the

circumstances") (quoting United States v. Cortéz, 449 U.S. 411, 417

(1981)).

Because we find that Officer Chabot could reasonably have

believed that he had sufficient facts to warrant first reasonable

suspicion, and later, probable cause of immigration violations, we

find that he is entitled to qualified immunity for all of the

challenged actions with respect to the Act.

For the reasons stated, the judgment is affirmed.

"Concurring opinion follows"

-25-

LYNCH, Chief Judge, concurring. I join in Judge

Torruella's well-done opinion. As he states, this case raises no

issue as to whether police officers may ask for the identification

of all other passengers in a vehicle that is stopped for a minor

traffic violation (failing to signal before changing lanes) by the

driver. Cf. United States v. Soriano-Jarquin, 492 F.3d 495, 500

(4th Cir. 2007). Nor does this case involve whether a police

officer may detain and escort to the immigration authorities a

vehicle containing persons who do not speak English and appear to

be foreign, based on no more than the officer's "hunch" that the

passengers may be aliens who entered or remained in the country

illegally.

Rather, on the facts of this case, plaintiffs' claims

must fail because a reasonable officer would have had no basis in

existing law to conclude that his actions violated any

constitutional rights, and so Officer Chabot is entitled to

immunity. Maldonado v. Fontánes, 568 F.3d 263, 268-69 (1st Cir.

2009). The initial stop of the van and the two pat downs were

plainly reasonable for safety reasons and provide no basis for any

claim of constitutional violation.

In my view, the specific facts of this case also require

the conclusion that the officer is entitled to immunity on all

claims related to the detention and escorting of the vehicle and

its passengers to the immigration authorities. Officer Chabot had

-26-

more information at his disposal than merely the Hispanic

appearance of the passengers and their inability to speak English.

He knew from the driver that all plaintiffs were on their way to

work. He also knew that when asked for some form of

identification, most plaintiffs produced none, two offered

Guatemalan consular identification cards,19 and one a Sports Fitness

club I.D. card with no birth date on it. None of the passengers

produced proof of United States citizenship when asked, nor did

anyone produce a green card.

This information raised the real prospect that there were

violations of criminal law by the driver, 8 U.S.C. § 1324(a)(1)

(A)(ii), possibly by the employer, id. § 1324(a)(3)(A), and by the

van's passengers, id. §§ 1304(e), 1306(a). Employers are required

to review documents from the individuals they employ. Id. §

1324a(b)(1)(A)-(D). These materials include both employment

authorization and identity documentation, id., such as a resident

alien card or an alien registration card, id. § 1324a(b)(1)(B)(ii).

Accordingly, if the passengers were employed as they said, they

likely would have had, at a minimum, some form of identity

documents. If they were not American citizens, a reasonable

officer had grounds to believe they were violating the requirement

19

Consular identification cards are issued by several foreign

governments, including Guatemala's, and identify their bearers as

citizens of the issuing country. See, e.g., H.R. Rep. 108-804, at

97-98 (2005).

-27-

to carry their registration, id. § 1304(e), or lacked registration

because they had entered illegally, id. § 1306(a). Either

situation was a violation of law.

Thus, there was a reasonable basis20 for the officer to

contact Immigration and Customs Enforcement (ICE). The ICE

representative called back three minutes later and noted that the

agency wanted to identify the passengers and their status, "due to

the lack of identification and strong possibility that the [van's]

occupants were illegal immigrants."

This was enough to raise a serious question, warranting

further investigation of whether plaintiffs were in violation of

immigration laws. A reasonable officer would believe this evidence

was sufficient to merit extending the period of detention for the

next one-to-two hours to accompany the van to the ICE office,

whether the passengers consented or not. Indeed, federal law gives

the authority to arrest for violations of § 1324 to all "officers

whose duty it is to enforce criminal laws." Id. § 1324(c).

Plaintiffs' claims were properly dismissed.

20

The majority opinion's reliance on plaintiffs' own admissions

that they told Officer Chabot they were illegal aliens is proper,

but I do not rely on it because Officer Chabot did not testify they

said so and because the admission is not contained in the police

report.

-28-