# Petition for Writ of Certiorari — Mendez v. United States (No. 07-629) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1678%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text ( | ) Supreme Court, U.S. N FILED oO. iene 07-629 NOV 5 - MO OFFICE OF THE CLERK Sn The Supreme Court of the Gnited States FELIPE MENDEZ, JR., Petitioner, UNITED STATES OF AMERICA, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit . 3 PETITION FOR A WRIT OF CERTIORARI == ° CS ge ts £49 J.E. T Ill a Mendez appears to challenge only the initial, investigatory stop, not the expansion or duration of the stop. In fact, any such challenge would be wholly without merit because suspicion of criminal activity grew rapidly from the initial stop and because Mendez consented to the officer’s request to move the investiga- tion to a police station. See United States v. Gomez Serena, 368 F3d 1037, 1041 (8th Cir. 2004) (holding that the expansion or extension of stop may be permissible if supported by developing or expanding level of suspicion). App. 26 surveilled Boatwright’s home, observed a Hispanic male on the front porch, and observed that man and another Hispanic male leave the residence in the red Jetta. Based on the totality of this information, it cannot be said that officers stopped the red Jetta merely because a Hispanic person was present, nor can it be said that the officers lacked reasonable suspicion. Although race was an identifying charac- teristic actually used by the officers, it was not the only factor officers relied upon, and the present case is not an example of racial profiling, as suggested by Mendez. See United States v. Thomas, 480 F.3d 878, 882 (8th Cir. 2007). 2. Conflict of Interest Regarding Attorney Brown When the government offered Gil as a witness and commenced direct examination, Mendez’s actual trial counsel, Timothy McCarthy (“Attorney McCarthy”), objected at a sidebar. Attorney McCarthy chal!enged the use of Gil as a witness, alleging that Attorney Brown’s temporary, pre-trial representation of Mendez, coupled with Attorney Brown’s representation of Gil, creat 1 a conflict of interest. The court determined during the sidebar that Gii couid testify, subject to possible exclusion, and that a record would be made after-the-fact to address the possible conflict. In direct testimony and on cross-examination, Gil explained that he pleaded guilty to conspiracy to distribute methamphetamine without a written plea App. 27 agreement. He had been sentenced to the statutory minimum for his offenses, 120 months’ imprisonment, and was already serving his sentence by the time of Mendez’s trial. Gil testified that he met Mendez in a Des Moines-area bar, began receiving one to two pound packages of methamphetamine from Mendez, always met with Mendez on the east side of Des Moines, saw Mendez in a black Mercedes but in no other vehicles, and received the methamphetamine on credit with money due to Mendez after resale of the drugs. Gil testified that he sold methampheta- mine from Mendez for a three to four month period after Christmas 2003. When Gil was done testifying and the jury was excused for a break, Attorney McCarthy was given the opportunity to question Gil. Attorney McCarthy quickly focused on the interaction between Attorney Brown and Gil and asked Gil if he was willing to waive his attorney-client privilege and discuss infor- mation exchanged with Attorney Brown. Attorney McCarthy explained to the district court that the potential for prejudice to Mendez in this situation was the possibility that Attorney Brown had obtained privileged, damaging information from Mendez and subsequently breached his duty of confidentiality towards Mendez by sharing that information with Gil for use in Gil’s testimony against Mendez. Attorney McCarthy, the prosecutors, and the district court agreed that any further questioning along these lines and any waiver of privilege by Gil could not take place without the presence of Attorney Brown and App. 28 without giving Gil the opportunity to discuss the possible waiver with Attorney Brown. As a result, the district court decided to halt the offer of proof related to Gil and resume at a later date when Attorney Brown could be made to appear. At the appointed date and time, when the court asked Attorney McCarthy if he wished to resume questioning Gil outside of the presence of the jury, the following exchange took place: THE COURT: Mr. McCarthy, my under- standing was you didn’t need to make any record with respect to either Mr. Brown or Mr. Gil, is that correct? MR. McCARTHY: That is correct, Your Honor. I’m going to let the Carlos Gil issue go at this time. Later, in a motion for new trial, Mendez argued that Attorney McCarthy provided ineffective assis- tance by failing to make a proper record regarding the possible conflict involving Attorney Brown’s representation of Mendez and Gil. Mendez argued that Attorney Brown’s dual representation presented an actual conflict of interest and required relief without a need to show prejudice. The district court rejected Mendez’s arguments, finding that it was necessary to prove prejudice under Strickland uv. Washington, 466 U.S. 668, 692 (1984), and that the presumed prejudice rule of Cuyler v. Sullivan, 446 U.S. 335, 349 (1980) (holding that a showing of Strickland-type prejudice is not required where a App. 29 defendant demonstrates an actual conflict that ad- versely affected counsel’s performance), did not apply because there was no actual conflict of interest. The district court’s finding was based on the fact that Mendez’s own trial counsel, Attorney McCarthy, was not alleged to have labored under any sort of conflict. Rather, the conflict related to Attorney Brown. Be- cause the presumed prejudice standard did not apply, relief was contingent upon a showing of prejudice. As to the issue of prejudice, the district court ultimately concluded, “[als shown by the. . . evidence .. . even if the Court disallowed Gil’s testimony, there is no reasonable probability the jury verdict would have been different in this case.” On appeal, Mendez renews his conflict of interest argument, placing it in the context of an ineffective assistance argument directed towards Attorney McCarthy. Although, we generally do not address such claims on direct appeal, Lewis, 483 F.3d at 873 n.2, we find no further development of the record is necessary in this case to resolve Mendez’s claim of ineffective assistance. Accordingly, we will address this claim now, on direct appeal. In doing so, we affirm for the same reasons as the district court, namely: (1) there was no actual conflict; (2) a showing of prejudice is therefore necessary for any grant of relief; and (3) there was no prejudice in this case because the evidence against Mendez was over- whelming and Gil was, at most, a minor witness whose testimony was cumulative with that of more important witnesses. App. 30 There was no actual conflict in this case because Mendez received conflict-free assistance from Attor- ney McCarthy. Mendez cites no authority, and we have found none, in which the presumed prejudice rule of Cuyler is extended to a situation involving a defendant’s prior attorney in the absence of any alleged conflict involving actuai trial counsel. There is, however, authority from another circuit that is analogous to the present situation and that strongly suggests a showing of prejudice is required in Mendez’s case. In English v. United States, 620 F.2d 150, 151-52 (7th Cir. 1980), the Seventh Circuit gave short shrift to an argument similar to Mendez’s. There, a defendant initially was represented by two attorneys, counsel and co-counsel. Co-counsel ceased the representation and began representation of a co- defendant. The defendant claimed a conflict based on the fact that co-counsel, who had actually represented him in the same proceedings, switched and served the co-defendant. The Seventh Circuit summarily dis- missed the claim, finding that because the defendart received conflict-free assistance from his own, actual trial counsel, any actions taken by former co-counsel could not create a conflict. See id. at 151 (“English after all is not impugning the effectiveness of his own anwunenl hast hic faemar anincoal ” CUUMSUS . we MUU £445 2402S, VUES. «6 ee Je This is not a case like Simmons v. Lockhart, 915 F.2d 372 (8th Cir. 1990), in which our court found an actual conflict and applied the Cuyler standard to examine whether there was “an actual and demon- strable effect of the conflict ... not merely an abstract App. 31 or theoretical one.” Simmons, 915 F.2d at 378. In Simmons, a defendant’s actual trial counsel had previously represented one of the prosecution’s wit- nesses. There, we stated that the actual conflict “fairly leaps off the page.” Jd. at 377. We held, how- ever, that it remained necessary to show “how {the] defense [was] hurt by the fact that one of his trial lawyers had previously represented the witness {involved in the alleged conflict.]” Id. at 378. We carefully reviewed the record of the trial and deter- mined that the attorney who labored under an actual conflict had made no tactical decisions nor performed in any manner that suggested the conflict impaired the defense. Jd. The present case, in contrast, involves absolutely no showing or suggestion of a conflict on the part of the one attorney who actually represented Mendez at trial and made all tactical decisions for Mendez at trial. As such, we conclude that the presumed preju- dice standard of Cuyler has no application to the present facts. Rather, the traditional prejudice in- quiry of Strickland applies, and it is necessary for Mendez to “demonstrate a reasonable probability” that the outcome of the proceedings would have been different absent some ineffectiveness on the part of Attorney McCarthy. Strickiand, 466 U.S. ai 654. Here, as Mendez has consistently asserted to the district court and to our court, the possibility of prejudice lies in the abstract possibility that Attorney Brown might have obtained damaging privileged information from Mendez and the further abstract App. 32 possibility that Attorney Brown might have passed this information on te Gil. Mendez argues Attorney McCarthy provided ineffective assistance by ceasing his pursuit of this issue and that Attorney McCarthy’s ineffectiveness caused prejudice. We disagree. We find that it was well within the bounds of professional judgment and discretion for Attorney McCarthy to elect to stop his pursuit of this abstract chain of potential prejudice, and as such, we find no ineffec- tiveness on McCarthy’s part. The evidence against Mendez was overwhelming: six cooperating co- conspirators other than Gil testified consistently as to Mendez’s role at the heart of the conspiracy. Four inmates who had been confined with Mendez testified as to statements Mendez made about his involvement with methamphetamine trafficking. In addition, Mendez was stopped leaving Boatwright’s home shortly before execution of the search warrant, and he was in the car that carried money used in the con- trolled buy. Further, he carried in his pocket the box top from a box of baggies that was found in the Boat- wright residence with other drug paraphernalia. Finally, Mendez himself testified and made many statements that a reasonable jury could disbelieve and which could permit the jury to conclude Mendez was dissembiing to cover his guilt. Given this state of the record, we believe that Mendez has not satisfied either element of the Strickland test. Not only did Mendez fail to show a level of prejudice that could satisfy the “reasonable probability” standard of Strickland, he failed to show that Attorney McCarthy App. 33 performed in a deficient manner when deciding to let the conflict issue go and cease his questioning of Gil. 3. Denial of the Motion for a New Trial Mendez’s motion for a new trial was based on his arguments concerning the Terry stop and the alleged conflict. Given our resolution of these issues, we find no error in the district court’s denial of the motion for a new trial. For the foregoing reasons, the judgment of the district court is affirmed. App. 34 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No: 06-1339 United States of America, Appellee Vv. Felipe Mendez, Jr., Appellant Appeal from U.S. District Court for the Southern District of lowa — Des Moines (4:04-cr-199 RP) JUDGMENT This appeal from the United States District Court was submitted on the record of the district court, briefs of the parties and was argued by counsel. After consideration, it is hereby ordered and adjudged that the judgment of the district court in this cause is affirmed in accordance with the opinion of this Court. July 05, 2007 Order Entered in Accordance with Opinion: Clerk, U.S. Court of Appeals, Eighth Circuit. /s/ Michael E. Gans App. 35 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA UNITED STATES OF * AMERICA, * 4:04-cr-199 x Plaintiff, * MEMORANDUM AND 7 * ORDER ON DEFEN- * DANT’S MOTION TO FELIPE MENDEZ, JR., » SUPPRESS EVIDENCE Defendant. * Before the Court is a Motion to Suppress Evi- dence filed by the Defendant, Felipe Mendez, Jr., on August 9, 2004. Clerk’s No. 35. Also filed on the Defendant’s behalf are a Supplemental Motion to Suppress and an Amended Motion to Suppress. Clerk’s Nos. 76 and 88. On August 10, 2004 a Grand Jury, convened in the Southern District of Iowa, delivered a one-count Indictment as to this Defendant charging him with Conspiracy to Distribute Metham- phetamine under 21 U.S.C. sections 846 and 841(b)(1)(A). Clerk’s No. 1. Subsequently, on Septem- ber 15, 2004, the Government filed a Superseding Indictment reflecting a change in the alleged starting date of the conspiracy. Clerk’s No. 41. The Government filed a timely Resistance to Defendant’s motion (Clerk’s No. 42) and Memoran- dum in Support. Clerk’s No. 78. At hearing on De- cember 14, 2004, the Court received into evidence the Application for a Search Warrant and the testimony of Steven DeJoode, Special Agent with the Iowa App. 36 Department of Safety, Division of Narcotics and - Enforcement (“Agent DeJoode”). The matter is fully submitted. I. BACKGROUND Mr. Parrish: “Well, following up on my question, do you believe that based on your investigation that you had reasonable suspi- cion to stop any Hispanic male you saw leav- ing the residence?” Agent DeJoode: “Yes. Another Hispanic male hypothetically would have departed the residence, I would have taken the same ac- tions.” Hr’g Tr. at 57.' On July 2, 2004, Agent DeJoode applied for and obtained a search warrant, in Iowa state court, for a residence shared by Kathleen Boatwright (“Boat- wright”) and Cody John Cannon (“Cannon”), alleged co-conspirators with the Defendant. Hr’g. Tr. at 8-9; Superseding Indictment. Agent DeJoode had begun an investigation of Boatwright and Cannon on or about June 9, 2004. Hr’g Tr. at 9, 35; Warrant App. at 6. At the time, Agent DeJoode met with a cooperating individual (“CI-1”), who informed Agent DeJoode that methamphetamine could be purchased from Boat- wright. Hr’g Tr. at 35. On June 22, 2004, and then ‘ The hearing citations refer to the Court’s Real Time unedited transcript. App. 37 again on June 30, 2004 Agent DeJoode orchestrated methamphetamine purchases from Boatwright and Cannon in proximity to their residence (“Residence”). Id. at 9, 35-36; Warrant Aff. at 6. During his investi- gation, Agent DeJoode conducted surveillance by driving by the Residence in order to obtain license plate numbers of visitors at the Residence. Hr’g Tr. at 9. CI-1 told Agent DeJoode that Boatwright had a “Hispanic methamphetamine source from California,” and that Boatwright often made trips to California to procure methamphetamine. Id. at 35. CI-1 also told Agent DeJoode that Boatwright would fly to Califor- nia and return to Iowa with her “source” in two separate vehicles. Jd. During Agent DeJoode’s reguiar surveillance of the Residence prior to July 8, 2004, he observed no Hispanic males in the area around the Residence. Id. at 56. On July 1, 2004, a second cooperating individual (“CI-2”) informed Agent DeJoode that methampheta- mine could also be purchased from Cannon. Id. at 37; Warrant Aff. at 7. On the same date, Cannon met with CI-2 to sell methamphetamine and lamented about only being able to deliver one quarter ounce of methamphetamine instead of the agreed upon amount of one ounce. Jd.,; Warrant Aff. at 7. Cannon then informed Ci-2 that more methamphetamine would soon be available because “he would be receiv- ing a large shipment of methamphetamine from a Hispanic male from California.” Hr’g Tr. at 37. Later on July 1, 2004, CI-1 told Agent DeJoode that Boat- wright had purchased a suitcase and told Cl-1 she App. 38 would be making another trip to California. Id. at 37- 38. On July 2, 2004, Agent DeJoode obtained the search warrant. Jd. at 38. The search warrant affida- vit contained no mention of the Defendant, the pas- senger in the car the Defendant was driving, or any reference to Hispanic males. Id. at 12. The affidavit likewise contained no description of the vehicle the Defendant was driving, a red Volkswagen Jetta. Id. On July 8, 2004, CI-1 told Agent Dejoode that Boatwright had returned to Des Moines. Id. at 38. In addition, on that same day, CI-1 told Agent DeJoode “that there was a Hispanic male at the house who the informant believed was the California source of the methamphetamine.” /d. at 39. Later on July 8, under DeJoode’s direction, CI-1 telephoned Boatwright and, in 2 recorded conversation, asked whether Boat- wright had any methamphetamine. Id. Boatwright informed CI-1 that she did and agreed to meet with Cl-1 for the purpose of selling the methamphetamine. Id. On July 8, 2004, Agent DeJoode, along with two other law enforcement personnel, Detective Sean Wissing (“Det. Wissing”) and Detective Curtis Pote (“Det. Pote”) decided to execute the search warrant on the Residence at 5:05 p.m. Jd. at 15. As they approached the Residence at around 3:45 p.m., Det. Wissing noticed a red Volkswagen Jetta (“Jetta”) in the driveway of the Residence. Jd. at 15- 16. As he drove by the front of the Residence, Agent DeJoode also noticed a Hispanic male sitting on the porch. Jd. at 40. A short while later, Detective Wissing observed two Hispanic males get into the Jetta and App. 39 drive away. Id. at 16-17, 43. As to the Jetta or the two persons inside, Detective Wissing observed no illegal or suspicious activity. Id. at 17. Agent Dejoode, along with Det. Wissing and Det. Pote, each in separate unmarked cars, followed the Jetta. Id. The law en- forcement officers followed the Jetta for several city blocks. Id. at 18. They observed that the driver of the Jetta did not violate any traffic laws. Id. Agent De- Joode had no reason to believe the two occupants of the Jetta knew about the impending execution of the search warrant and, thus, no reason to believe they were running from law enforcement. Id. Notwith- standing the lack of any observable traffic violation or other illegal activity, Agent DeJoode decided to stop the Jetta at approximately 3:50 p.m. Id. at 18-19, 41. Agent DeJoode believed reasonable suspicion existed based on “previous information that [a] Hispanic male from California was involved.” Id. at 41; see also id. at 57 (Agent DeJoode believed reasonable suspi- cion existed to justify the seizure of any Hispanic male leaving the Residence on July 8 or anytime thereafter) (see quote supra). Once stopped, Agent DeJoode approached the Jetta and asked for identification. Id. at 20. The Defendant, who was driving, produced a California identification card with the Defendant’s picture and the name “Anthony Gonzales.” Id. at 21, 42. The Defendant told Agent DeJoode the identification card belonged to his brother and then produced a Califor- nia driver’s license. Id. at 21, 42-43. The driver’s license also contained a photograph of the Defendant, App. 40 but with the name “Felipe Mendez.” Jd. at 43. The Jetta, with valid registration plates, was registered to two Des Moines residents. Jd. The Defendant asked Agent DeJoode what was happening and Agent DeJoode responded by informing the Defendant he was conducting an investigation. Jd. at 26. After some questioning, the Defendant told Agent DeJoode he had just left Cannon’s Residence and that he had arrived in Des Moines the previous day, July 7, 2004. Id. at 44. A criminal history and social security back- ground check revealed that the Defendant had a significant criminal history in California and that the social security number on the Defendant’s identifica- tion documents had last been issued prior to the Defendant’s date of birth. Jd. At that point, Agent DeJoode decided to enlist the help of the Bureau of Immigration and Customs Enforcement (“BICE”). Id. at 47. The record is not entirely clear, but Agent De- Joode also searched the Defendant at some time during the stop. Jd. at 21. The search produced $2,273 in cash and three cellular phones. Jd. Agent DeJoode documented the phone information saved on each of the phones, e.g., phone book information, outgoing call numbers, incoming call numbers, etc. id. at 22. Also seized was the Defendant’s wallet containing photographs, identifications, credit bank cards, and notes. Jd. at 22-23. At some time during the stop, Agent DeJoode asked the Defendant to join him in Agent DeJoode’s car. Jd. at 26. Agent DeJoode asked the Defendant App. 41 whether he would be willing to travel to a different location to conduct the investigation further with the assistance of an interpreter. Agent DeJoode also asked for the Defendant’s consent to move the Jetta by allowing one of the officers to drive it, in order to avoid it being towed away. Id. at 31, 48-49. With or without the Defendant’s consent, Agent DeJoode intended to conduct the investigation at the nearby Iowa State Patrol District One Headquarters in Des Moines (“State Patrol Headquarters”), because Agent DeJoode believed there was sufficient probable cause to justify an arrest for the possession of fraudulent documents. Id. at 32-33, 50-51. At approximately 4:20 p.m., Agent DeJoode and other officers arrived at the State Patrol Headquarters with the Defendant, his passenger, and the Jetta. Id. at 30. The Defendant was eventually arrested for carrying fraudulent documents. Id. at 31. The Defendant and passenger were then taken to the BICE office in the Des Moines federal building and, after an investigation, a federal detainer was lodged against the Defendant and the passenger. Id. at 53. The Defendant admitted to immigration officials that he was in the country illegally. Id. Subsequently, the Defendant was charged under Iowa law for distribution of metham- phetamine. Id. The Jetta was inventoried. Id. at 24, 54-55. A search of the Jetta produced two duffle bags contain- ing men’s clothing and toiletries. Id. at 24. One of the bags also contained $4,800 cash, $740 of which matched preserialized currency used by Agent DeJoode in two App. 42 prior methamphetamine transactions. Jd. at 24-25. Agent DeJoode also discovered two black suitcases, one large and one small, and another yellow duffel bag. Id. at 25. II. ANALYSIS A. The Automobile Stop Through his original motion to suppress and his supplemental motion to suppress, the Defendant argues that the Government agents had no reason- able basis for stopping the Jetta. Of course, if the stop was unreasonable, as Defendant contends, then the subsequent pat-down of the Defendant, search of the automobile, and arrest would necessarily be invali- dated. “An automobile stop is subject to the Fourth Amendment imperative that the stop must be rea- sonable.” See United States v. Ramos-Caraballo, 375 F.3d 797, 800 (8th Cir. 2004) (citing Whren v. United States, 517 U.S. 806, 810 (1996)). “A vehicle stop is reasonable if it is supported by either probable cause to believe that a traffic violation has occurred, or an articulable and reasonable suspicion that criminal activity is afoot.” See Ramos-Caraballo, 375 F.3d at 800-801 (citing Delaware v. Prouse, 440 U.S. 648, 663 (1979)). “A stop is permissible only when officers are aware of facts which, taken together with rational inferences from these facts, reasonably warrant the suspicion that the person stopped has been, is, or is App. 43 about to be engaged in criminal activity.” United States v. Rose, 731 F.2d 1337, 1342 (8th Cir. 1984). Although, the investigation into whether reason- able suspicion exists “requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal] level of objective justification for making the stop.” See Illi- nois v. Wardlow, 528 U.S. 119, 123-24 (2000) (stating that an “officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or hunch of criminal activity’”) (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)); see also United States v. Lebrun, 261 F.3d 731, 733 (8th Cir. 2001) (considering significant that a court consider the “view fof] the totality of the circumstances through the perspective of an experi- enced law enforcement officer trained in crime detec- tion and acquainted with the behavior of criminals”). “‘The relevant inquiry’ concerning the inferences and conclusions a court draws [in making a reasonable suspicion determination] ‘is not whether particular conduct is innocent or guilty, but the degree of suspi- cion that attaches to particular types of noncriminal acts.” See Wardlow, 528 U.S. at 128 (citing United States v. Sokolow, 490 U.S. 1, 10 (1989)) (Stevens, J., concurring in part and dissenting in part). The Government concedes that no probable cause existed based on a traffic violation, and that no probable cause existed under the search warrant, to stop the Defendant. Instead, the Government contends reasonable suspicion existed to believe the persons in the Jetta were involved in criminal activity. Over the App. 44 course of questioning at hearing, Agent DeJoode articulated six factors to support a reasonable suspi- cion that the Defendant was connected to criminal activity, thereby justifying the traffic stop: 1) Boat- © wright purchased drugs from a Hispanic source in California; 2) the Hispanic source regularly traveled back to Iowa with Boatwright after those purchases; 3) Boatwright had just returned from California after a drug purchase; 4) a month-long surveillance re- vealed no other Hispanic persons in the vicinity of the Residence over that time period; 5) at least one Hispanic male was in the Residence the day after Boatwright returned from California; and 6) Agent DeJoode believed that person was, in fact, Boat- wright’s Hispanic methamphetamine source from California. At first impression, it appears the specter of racial profiling casts its shadow over most of the information articulated by Agent DeJoode. If race were the only factor at play in deciding whether to stop the Jetta, then this analysis would proceed no further. See United States v. Weaver, 966 F.2d 391, 394 n.2 (8th Cir. 1992) (agreeing with the dissent “that large groups of our citizens should not be pre- sumptively criminal based upon their race”). in Weaver, the race of two Los Angeles gangs known to be flooding the Kansas City area with cocaine was deemed a legitimate factor in deciding whether to stop and interrogate a traveler at the airport. See id. (stating that, given the other facts taken into account with the defendant’s race, the “facts are not to be App. 45 ignored simply because they may be unpleasant — and the unpleasant fact in this case is that [the officer] has knowledge, based upon his own experience and the intelligence of others that young male member of black Los Angeles gangs were flooding the Kansas City area with cocaine”). A view to the totality of the circumstances, in this case, reflects that the Defen- dant’s race was one of several factors, that taken together with the other information available to Agent DeJoode, made the decision to stop the Jetta a reasonable one. The existence of the search warrant confirmed that on-going criminal activity likely existed at the Residence. The key issue, for this analysis, is whether the Defendant could reasonably be linked to that activity given Agent DeJoode’s information at the time. If so, stopping the Defendant has as he drove away from the Residence was reasonable. See United States v. Cortez, 449 U.S. 411, 417 (1981) (basing an analysis of a reasonable or founded suspicion on “the totality of the circumstances — the whole picture”). At hearing, Agent DeJoode testified that CI-1 believed the Hispanic person in the Residence was the methamphetamine source for Boatwright. It is this information, relayed by Ci-i to Agent DeJoode on the day of the warrant execution, that specifically tied the Hispanic male in the Residence to the on-going criminal activity that formed the basis for the search warrant. With no evidence of any other Hispanic person entering or leaving the Residence after he received that information, or that other Hispanic App. 46 persons frequented the area near the Residence, Agent DeJoode was justified in his suspicion, based on the totality of the circumstances, that the Hispanic persons leaving the house were tied to the criminal activity inside. See Terry, 392 U.S. at 21 (stating that “in making [the] assessment, it is imperative that the facts be judged [by a court] against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?’”) (quoting Carroll v. United States, 267 U.S. 132 (1925)). The Defendant makes no objection to the source of information to Agent DeJoode — the cooperating individuals, CI-1 and CI-2. Because Cl-l’s informa- tion, in particular, was crucial to establishing reason- able suspicion in this case, however, an analysis regarding the credibility of Cl-1 is warranted. The credibility of CI-1 is based on “evidence of the infor- mant’s reliability, veracity, and basis of knowl- edge. ...” See United States v. Ketzeback, 358 F.3d 987, 991 (8th Cir. 2004) (stating, however, that credi- bility is not an “independent requirement to be rigidly exacted in every case”) (internal quotations omitted). Compared to the description of the CI in Ketzeback, there is scant background provided in this case as to Cl-1. The search warrant application, however, does contain a stock informant reliability check-list enti- tled “Informant Attachment.” Warrant App. at 12. The application also revealed that CI-1 provided independently corroborated information, had not App. 47 given false information in the past, and that CI-1’s information was based on personal knowledge. Jd. Moreover, Cl-1 played a key supporting role in Agent DeJoode’s investigation, including identifying Boat- wright as a drug source, participating in the drug transactions with her, identifying Cannon as another drug source, and participating in recorded telephone calls with Boatwright at Agent DeJoode’s direction. Id. at 6-7. There is no indication in the warrant affidavit, nor does the Defendant provide evidence, that Cl-1 misled law enforcement officials, or was acting from questionable motives. See Ketzeback, 358 F.3d at 991-992 (stating that “independent corrobora- tion of even innocuous facts makes it more likely an informant is telling the truth about incriminating ones, and corroboration of innocent behavior can provide the basis for establishing probable cause”). In this case, as observed, Agent DeJoode required mere reasonable suspicion, not probable cause, to believe the Hispanic male in the Residence was Boatright’s drug source. Accordingly, reliance on Cl-1's informa- tion that the person in the Residence just prior to the execution of the search warrant was Boatwright’s Hispanic drug source from California, is justified. In drawing this conclusion, the Court is cognizant of the often difficult relationship between munority groups and law enforcement officials. See Wardlow, 528 US. at 133 n.9 (citing, at length, several studies and views revealing the perspective of minority groups, including the Chief of the Washington, D.C., Metropoli- tan Police Department: “[S]izeable percentages of App. 48 Americans today — especially Americans of colors till view policing in the United States to be discrimina- tory, if not by policy and definition, certainly in its day to day application.”) (Stevens, J. concurring in part and dissenting in part). Because the standard to support reasonable suspicion is, compared to other standards governing consideration of evidence, ex- ceedingly low, Agent DeJoode’s actions pass constitu- tional muster. That said, the Court is troubled that up until his actual identification was secured, the Defendant was only identified as being part of a racial minerity and stopped largely because of that generalized identification. As did the Supreme Court in Terry, this Court recognizes that the relationship between law enforcement officials and the citizenry is made up of numerous and diverse encounters. In this case, the law enforcement officials could only decide and act on the information available to them. See Weaver, 966 F.2d at 394 n.2 (discussing race as a factor in drug-related cases and though wishing otherwise, stating “we take the facts as they are presented to us, not as we would like them to be”). It is this Court’s hope, however, that the Government continues to sensitize its agents to the perceptions of the minority communities it serves, and bear in mind identifications based on generalized racial groupings in support of searches and seizures risk undermining the support that is so crucial to good police work. See Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandies, J., dissenting) (“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.”). App. 49 B. Patdown, Search, and Arrest After the valid traffic stop, Agent DeJoode asked for identification. See United States v. Ortiz-Monroy, 332 F.3d 525, 529 (8th Cir. 2003) (“Once a lawful stop has occurred, officers are entitled to conduct an investigation reasonably related in scope to the circumstances which justified the interference in the first place.”) (internal citations omitted). There is no dispute that the Defendant offered two separate California documents with the same photographs, but with different subject matter information — an identi- fication card and a driver’s license. This alone pro- vides probable cause that the Defendant had violated false document laws or, at the very least, grounds for further investigation. The offering of false documents, particularly when coupled with the reasonable suspi- cion that the Defendant was involved in drug traffick- ing, provided a basis for a Terry patdown. As Agent DeJoode’s investigation progressed, he discovered the Defendant’s criminal history included drug violations and false identification charges. Upon more question- ing, the Defendant admitted he just arrived at the Residence the day before, further solidifying Agent DeJoode’s suspicion that the Defendant was linked to 7 the criminal activity described in the search warrant application. The investigation further reveaied the social security number used by the Defendant was issued before the date of birth on the identification document itself, a strong indication that one or both documents offered to Agent DeJoode were falsified. The investigation at the scene, the drive to the App. 50 nearby State Patrol Headquarters, and the involve- ment of BICE all took approximately thirty minutes to accomplish — well within the reasonable time frame necessary to protect the Defendant’s constitu- tional rights in the context of the stop in this case. The arrest of the Defendant and the subsequent legal inventory of the Jetta all flow from the probable cause established in this period. Accordingly, the Defendant's argument that the Government violated his 4th Amendment rights following the traffic stop on July 8, 2004 is unsupported by the facts. Ill. CONCLUSION For the reasons stated herein, Defendant’s Mo- tion to Suppress Evidence (Clerk’s Nos. 35, 76, and 88) is DENIED. Accordingly, the evidence related to the stop and arrest of the Defendant on July 8, 2004, notwithstanding other evidentiary issues that may arise, is admissible as to the charges alleged against him in the original and superseding indictments. Clerk’s Nos. 1 and 41. IT IS SO ORDERED. Dated this 23rd day of December, 2004. /s/ Robert W. Pratt ROBERT W. PRATT U.S. DISTRICT JUDGE App. 51 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No: 06-1339 United States of America, Appellee Vv. Felipe Mendez, Jr., Appellant Appeal from U.S. District Court for the Southern District of lowa - Des Moines (4:04-cr-199 RP) ORDER The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. Judge Colloton took no part in the consideration or decision of this matter. August 07, 2007 Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. /s/ Michael E. Gans --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1678%3A1. Public record. Not legal advice.