United States v. Moya-Matute (559 F. Supp. 2d 1189, 2008)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant’s Motion to Suppress and Memorandum in Support Thereof, filed July 4, 2007 (Doc. 16). The Court held an evidentiary hearing on the motion on October 29, 2007. The primary issues are: (i) whether the interaction among Senior Border Patrol Agent Brian Knoll, Immigration Enforcement Agent Mike Underdown, and Defendant Oscar Moya-Matute was a consensual encounter, (ii) whether the agents had reasonable suspicion to subject Moya-Matute to an investigatory detention; and (iii) whether there was probable cause to arrest Moya-Matute. Because the Court finds that the encounter between the agents and Moya-Matute was consensual, and finds that the agents had probable cause to arrest Moya-Matute, the Court will deny the Defendant’s Motion to Suppress.

FINDINGS OF FACT

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. The findings of fact in this Memorandum Opinion and Order shall serve as the Court’s essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the: admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual’s confession or consent to search. See United States v. Merritt, 695 F.2d 1263 (10th Cir.1982). cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 1101(d)(1). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269.

1. Moya-Matute was born in and is a citizen of Honduras. See Transcript of Hearing at 71:5-8 (taken October 29, 2007)(“Tr.”)(Brawley & Moya-Matute).

2. Underdown works as an immigration enforcement agent through the Department of Homeland Security with Immigration and Customs Enforcement (“ICE”). See Tr. at 3:20-24 (Brawley & Underdown).

3. ICE has employed Underdown for a year and four months. See Tr. at 3:25-4:3 (Brawley & Underdown).

4. Part of Underdown’s job as team captain is to interview people in jail to ascertain their immigration status in the United States. See Tr. at 4:13-22 (Brawley & Underdown).

5. Underdown has previous law enforcement experience with the military police, where he was assigned to presidential detail, traveled with Presidents Bush and Clinton as security, and set up local liasons with other law enforcement. See Tr. at 5:1-9 (Brawley & Underdown).

6. Underdown also has previous experience working as security at a nuclear-power plant in Louisiana. See Tr. at 5:1-9 (Brawley & Underdown).

7. Underdown has received training at the military police academy, Border Patrol, and Wackenhut; he received Fourth-Amendment search-and-seizure training. See Tr. at 5:21-6:13 (Brawley & Under-down).

8. Underdown has also had on-the-job training with encounters on buses. See Tr. at 10:10-13 (Underdown).

9. Underdown estimates that he has arrested over one-hundred people. See Tr. at 10:18-20 (Brawley & Underdown).

10. Underdown is not a fluent Spanish speaker, but can understand basic questions in Spanish. See Tr. at 27:12-14 (Underdown).

11. For approximately three months before April 5, 2007, agents Knoll and Underdown went to the Greyhound bus station in Albuquerque, New Mexico nearly everyday because, based on their training and experience, they knew the bus station to be a staging area for undocumented aliens passing through to other parts of the United States. See Tr. at 11:17-12:1 (Underdown & Brawley); id. at 33:23-25 (Underdown).

12. Underdown was familiar with Albuquerque being a “hub” and the bus station as a “staging area” for undocumented aliens passing through to other parts of the United States for several years before he began working with Knoll See Tr. at 8:15-23 (Underdown).

13. Underdown believes that undocumented individuals choose buses for transportation because there is less security and because it is not necessary to present a passport. See Tr. at 11:6-10 (Under-down).

14. Knoll had been going to the bus station in Albuquerque on a daily basis much longer than three months before April 5, 2007. See Tr. at 12:11-15 (Brawley & Underdown).

15. Before April 5, 2007, Knoll and Underdown, however, had only worked together for three months. See id.

16. Knoll and Underdown employed a standard practice on each of their visits to the bus station. See Tr. at 14:5-15:6 (Brawley & Underdown).

17. Knoll and Underdown would go to the bus station to speak with as many people as possible. See at 14:7 (Under-down).

18. Knoll and Underdown typically tried to arrive early so that they could speak with the bus passengers before the passengers got off of the buses. See Tr. at 14:1-2 (Underdown).

19. If the people were still on the bus when Underdown and Knoll got there, they then would board the bus. See Tr. at 14:16-17 (Underdown).

20. When they boarded the bus, Knoll would give a speech about “who [they] were, what [they] were doing there, and get everybody to show [a] driver’s license [of] some kind ... when they exit the bus. So [they would] talk to everybody that was getting off of the busses coming inbound.” Tr. at 14:18-21 (Underdown).

21. Knoll and Underdown sometimes, however, arrived at the bus station, after the people were off of the bus. See Tr. at 14:9-10 (Underdown).

22. When Knoll and Underdown arrived after the passengers were off of the bus, the agents would speak with everyone. See Tr. at 20:19-20 (Brawley & Underdown).

23. The agents tried to talk to everyone, regardless of how the individual people looked or what language they seemed to speak. See Tr. at 21:16-21 (Brawley & Underdown).

24. Knoll and Underdown did not target individuals “that looked like they may have some kind of Hispanic heritage.” Tr. at 21:16-18 (Brawley & Underdown).

25. When the agents encountered people, either on a bus or in the bus terminal, they always greeted the people in English. See Tr. at 22:7-11 (Underdown & Brawley).

26. The bus in which Moya-Matute was traveling on April 5, 2007 made a stop in Albuquerque, New Mexico at approximately 7:00 a.m. See Tr. at 61:22-62:1 (Johnson & Moya-Matute).

27. Moya-Matute was traveling on a Greyhound bus from Indianapolis. See Tr. at 61:17-21 (Johnson & Moya-Matute).

28. There were about thirty-five people on the bus on which Moya-Matute arrived. See Tr. at 62:2-4 (Johnson & Moya-Matute).

29. At approximately 7:00 a.m., Moya-Matute exited the bus and proceeded to the restroom inside the bus terminal. See Tr. at 62:9-11 (Johnson & Moya-Matute).

30. Moya-Matute then got in line to see if he could buy food. See Tr. at 62:13-14 (Moya-Matute).

31. Moya-Matute had met a person on the bus, and wanted to see if he could share some food with him See Tr. at 62:14-17 (Moya-Matute & Johnson).

32. On the morning of April 5, 2007, Knoll and Underdown encountered Moya-Matute at the bus station by the snack bar area. See Tr. at 23:16-20 (Brawley & Underdown).

33. There were over thirty-five people in the bus terminal See Tr. at 65:9-13 (Johnson & Moya-Matute); Tr. at 35:7-8 (Johnson & Underdown)(Underdown could not recall how many people were in the bus station on April 5, 2007 when they encountered Moya-Matute).

34. There were about fifteen people in the snack bar area, See Tr. at 65:14-16 (Johnson & Moya-Matute).

35. Knoll and Underdown encountered Moya-Matute by the snack bar the. See Tr. at 25:2-5 (Brawley & Underdown).

36. Underdown stood behind Knoll. See Tr. at 25:12-13 (Brawley & Under-down).

37. Knoll talked to Moya-Matute. See Tr. at 25:14-15 (Brawley & Underdown).

38. Underdown was standing at an angle, so they were not standing in a straight line against the counter. See Tr. at 25:16-19 (Brawley & Underdown).

39. Knoll was approximately three feet from Moya-Matute. See Tr. at 25:21 (Underdown).

40. Underdown was approximately six feet away from Moya-Matute. See Tr. at 26:14-17 (Brawley & Underdown).

41. Underdown and Knoll approached Moya-Matute because he was in the bus station, and they were trying to encounter as many people as they could. See Tr. at 27:3-4 (Underdown).

42. Knoll initially spoke English to Moya-Matute, but then spoke to Moya-Matute in Spanish. See Tr. at 27:8-9 (Underdown).

43. Knoll used a normal tone when he spoke with Moya-Matute. See Tr. at 69:1— 3 (Johnson & Moya-Matute).

44. Underdown never spoke with Moya-Matute at all. See Tr. at 67:23-24 (Johnson & Moya-Matute).

45. Underdown could not hear everything that Knoll was telling Moya-Matute. See Tr. at 44:17-19 (Johnson & Under-down).

46. Underdown could not understand or did not know exactly what Knoll and Moya-Matute were saying. See Tr. at 45:7-10 (Johnson & Underdown).

47. Underdown could not recall what exactly was said during the initial encounter between Knoll and Moya-Matute. See Tr. at 53:1-4 (Underdown).

48. Underdown did not understand enough Spanish at the time that Knoll began to talk to Moya-Matute to determine whether Knoll asked Moya-Matute to see his papers. See Tr. at 94:20-25 (Court & Underdown).

49. Underdown could not understand Knoll’s first couple of questions in Spanish to Moya-Matute. See Tr. at 53:11-12 (Underdown).

50. Because Knoll and Moya-Matute were speaking in Spanish, that “took [Underdown] a little out of the picture, but [he could] still understand general stuff in Spanish.” Tr. at 27:10-11 (Underdown). Underdown stated: “The words I pick up are immigration papers or places they’re from, stuff like that.” Tr. at 53:11-12 (Underdown). Moya-Matute asserted that he was from Honduras, that he did not have his papers on him, and that his papers were in his bag outside. See Tr. at 27:24-28:1-2 (Underdown).

51. Knoll came up to Moya-Matute, identified himself as an immigration agent, and asked to see Moya-Matute’s papers to be in the country legally. See Tr. at 66:1-6 (Moya-Matute & Johnson).

52. The first thing that Moya-Matute said was that he was “from Honduras.” Tr. at 53:16-20 (Court & Underdown). The Court finds that Underdown’s testimony regarding his ability to comprehend and speak Spanish was credible.

53. Underdown could not identify at what point in the conversation between Knoll and Moya-Matute that Moya-Matute told Knoll he was from Honduras, because Underdown either could not hear them or could not understand them. See Tr. at 96:15-25 (Johnson & Underdown).

54. Moya-Matute told Knoll his immigration papers were on the bus because he was embarrassed by everyone looking at him. See Tr. at 68:2-5 (Johnson & Moya-Matute).

55. Underdown believed that, under 8 U.S.C. § 1304(e), Moya-Matute had to have his papers on him. See Tr. at 28:3-5 (Brawley & Underdown).

56. Knoll and Underwood began laughing once Moya-Matute told them he did not have the papers at all. See Tr. at 69:4-6 (Johnson & Moya-Matute).

57. Underdown testified that, once Moya-Matute did not have his papers on his person, he could have lawfully arrested him. See Tr. at 28:12-15 (Brawley & Underdown). id. at 28:23-29:4 (Underdown).

58. Once Moya-Matute told Knoll that his immigration papers were on the bus, Knoll grabbed him by his belt loop and took him outside, while Underdown walked next to him. See Tr. at 68:13-15 (Johnson & Moya-Matute); Tr. at 29:8-9 (Under-down).

59. Underdown and Knoll then escorted Moya-Matute out of the bus station to get his papers. See Tr. at 28:10-11 (Underdown).

60. Underdown walked about six feet in front of Knoll and Moya-Matute. See Tr. at 29:10-12 (Underdown).

61. Within five feet of exiting the front doors, Moya-Matute told Knoll he did not have any immigration papers. See Tr. at 29:23-30:10 (Brawley & Underdown); id. at 68:16-17 (Johnson & Moya-Matute).

62. Moya-Matute did not tell Knoll he did not have papers in response to further questioning. See Tr. at 30:11-12 (Brawley & Underdown).

63. The entire encounter between Moya-Matute and Knoll lasted about a minute or two. See Tr. at 30:13-16 (Brawley & Underdown).

64. Had Moya-Matute had his papers in his bag outside, Knoll and Underdown would have let him go, because “it’s a minor thing.” Tr. at 30:23-25 (Under-down).

65. Moya-Matute was taken to the Border Patrol office by car. See Tr. at 31:19-20 (Brawley & Underdown).

66. Moya-Matute rode with Knoll. See Tr. at 31:20-21 (Underdown).

67. Moya-Matute was taken to the Border Patrol office for processing. See Tr. at 31:22-23 (Brawley & Underdown).

68. Once they were at the Border Patrol office, Knoll started getting Moya-Matute’s biographical information and getting the fingerprint machine ready. See Tr. at 32:1-6 (Brawley & Underdown).

69. “Border Patrol has a radio out at I’m not sure where they’re out of, but they fax name and date of birth over to them, and it comes back.... [T]hey do record checks with CIS, NCIC several different criminal and immigration databases to see if the person has been encountered by a Border Patrol or if he has prior criminal history in the United States.” Tr. at 32:11-17 (Underdown).

70. Moya-Matute’s name and fingerprints were run through criminal and immigration databases to see if he had been encountered by a Border Patrol, or if he had a prior criminal history in the United States. See Tr. at 32:10-21 (Brawley & Underdown).

71. This procedure is typically what is done in the course of Underdown’s duties when he makes an arrest. See Tr. at 32:7-9 (Brawley & Underdown).

72. If Moya-Matute had refused to be fingerprinted, the immigration and criminal databases checked would have given the agents Moya-Matute’s name and date of birth. See Tr. at 32:22-33:3 (Brawley & Underdown).

73. The Court finds that Moya-Matute’s fingerprints were obtained for and motivated by an administrative purpose.

74. The report submitted by Knoll does not delineate the agents’ reasonable suspicion for seizing Moya-Matute. See Tr. at 35:19-21 (Johnson & Underwood).

75. Underwood did not write a report. See Tr. at 35:17-18 (Johnson & Underwood).

76. At the time of the hearing, Knoll had a serious medical condition and was not able able to testify. See Tr. at 13:1-4 (Underdown).

PROCEDURAL BACKGROUND

On June 13, 2007, a grand jury returned an indictment against Moya-Matute, charging him with one count of re-entry of a removed alien, in violation of 8 U.S.C. § 1326(a) and (b). See Redacted Indictment, filed June 13, 2007 (Doc. 11). Moya-Matute was arraigned on the Indictment on June 21, 2007. See Clerk’s Minutes, filed June 21, 2007 (Doc. 14).

On July 4, 2007, Moya-Matute filed a motion to suppress. See Defendant’s Motion to Suppress and Memorandum in Support Thereof (“Motion”), filed July 4, 2007 (Doc. 16). The Honorable John E. Conway, Senior United States District Judge, set a hearing on the matter for August 30, 2007. See Notice of Hearing, filed Aug. 2, 2007 (Doc. 20). The hearing was vacated, however, when Judge Conway recused himself from the case. See Clerk’s Minutes, filed Aug. 30, 2007 (Doc. 27); Minute Order, filed Sept. 6, 2007 (Doc. 28). The case was then assigned to Judge Browning. See Minute Order, filed Sept. 6, 2007 (Doc. 28).

Moya-Matute moves the Court for an order suppressing the evidence of his identity, fingerprints, statements, and immigration file, and all observations of his presence in the United States, obtained as a result of alleged constitutional violations occurring on April 5, 2007. See Motion at 9. Moya-Matute contends that the arresting Border Patrol agents violated his constitutional rights. See Motion at 9. Moya-Matute contends that the agents violated his Fourth and Fifth Amendment rights under the United States Constitution. See id.

Moya-Matute contends that the agents detained him while he stood in line at the snack stand, without reasonable suspicion that he was violating any immigration laws. See Motion at 4. Moya-Matute further argues that “he was under a de facto arrest blatantly lacking in probable cause.” Id. Moya-Matute also contends that border patrol agents’ authority to patrol is limited if more than 100 miles from the border. See id. Moya-Matute contends that Fourth Amendment scrutiny is heightened because the incident occurred more than 100 miles from the border. See Motion at 5.

Moya-Matute contends that the Court must suppress evidence of his identity because it resulted from his illegal seizure. See id. Moya-Matute contends that the United States cannot show that the evidence of his identity is free from taint of the agents’ illegal seizure of him, because the factors set forth in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), militate in his favor. See Motion at 6-7. Moya-Matute argues that evidence of identity is not exempt from the exclusionary rule. See id. at 7. Moya-Matute also contends that jurisdictional challenges and evidentiary challenges to fingerprint evidence are distinct, and that the Supreme Court of the United States’ language in I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1047, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), does not preclude the application of exclusionary-rule analysis to determine admissibility of fingerprint evidence. See Motion at 8.

The United States filed a response to Moya-Matute’s suppression motion on August 2, 2007. See Response to Defendant’s Motion to Suppress and Memorandum in Support Thereof (“Response”), filed Aug. 2, 2007 (Doc. 19). The United States contends that Underdown’s inability-to recall exactly what Moya-Matute said at the bus terminal is “understandable,” because “Knoll and Underdown encounter thousands of illegal aliens each year.” Response at 4 n. 2. The United States contends that the initial encounter between the agents and Moya-Matute was consensual. See Response at 5.

The United States interprets Moya-Matute’s motion to raise a claim of selective enforcement. See Response at 7. The United States contends that, to prove selective enforcement, Moya-Matute would have to prove that a similarly-situated person of another race could have been, but was not, stopped or arrested for the offense that Moya-Matute was stopped or arrested for. See Response at 7. The United States argues Moya-Matute must show that Knolls and Underdown were motivated by a discriminatory purpose and that their actions had a discriminatory effect. See Response at 7 (citing United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir.2006)). The United States contends that Moya-Matute cannot prove a claim of selective law enforcement. See Response at 7.

The United States further contends, that even assuming for the purpose of argument that the agents detained Moya-Matute, the agents had a reasonable suspicion that Moya-Matute was violating immigration laws, so an investigative detention of him was authorized. See Response at 8-11. The United States contends that Knoll and Underdown had particularized and objective facts, based on their training and experience, that the bus station was a staging area for undocumented aliens. See Response at 9. The United States argues that the agents knew Moya-Matute was not a United States citizen, because Moya-Matute either told them he was from Honduras, or could not answer the agents’ “simple questions, when asked in Spanish, about where he was from, where he was born, and where he went to school.” Response at 9. The United States contends that, once the agents realized Moya-Matute was not a United States’ citizen, “he was legally required to have a certificate of alien registration or an alien registration receipt card on his person, to show he was legally in the United States.” Response at 10 (citing 8 U.S.C. § 1304(e)).

The United States argues that, once Moya-Matute told them he had no immigration papers on his person, “[t]he agents had probable cause to believe [Moya-Matute] violated 8 U.S.C. § 1304(e), and thus they escorted him to the bus so he could retrieve the papers he claimed to have.” Response at 10. The United States argues that “[t]he agents did not formally arrest [Moya-Matute] or place him in handcuffs, but rather briefly detained him while giving him time to show that he was in compliance with the law.” Id The United States contends it was reasonable for the agents to detain Moya-Matute once they knew he had no papers on his person. Id. (citing Martinez v. Nygaard, 831 F.2d 822, 827-28 (9th Cir.1987)). The United States argues “[Moya-Matute]’s admission of being in violation of 8 U.S.C. § 1304(e) was sufficient probable cause for the detention while he was escorted to the bus. The brief investigatory stop was justified, and therefore [Moya-Matute]’s constitutional rights were not violated and the exclusionary rule does not apply.” Response at 11.

The United States further contends that the agents had probable cause to arrest Moya-Matute. See Response at 11-12. The United States argues that once Moya-Matute “told the agents he did not have any immigration papers showing he was authorized to be in the United States, and the agents knew he was not a United States citizen because he either said he was from Honduras or else could not answer their questions about his origins” the agents had probable cause to believe that Moya-Matute was in violation of 8 U.S.C. § 1304(e). Response at 12. The United States also argues Moya-Matute “was clearly a flight risk.” Id. The United States asserts that “[i]t is doubtless that, had the agents left [Moya-Matute] at the bus station to obtain an arrest warrant, [Moya-Matute] would have been gone by the time the agents returned.” Id. Lastly, the United States concludes that “[t]he arrest of [Moya-Matute] on April 5, 2007 was proper, and the exclusionary rule should not apply.” Id.

The Court held an evidentiary suppression hearing on October 29, 2007. At the hearing, the United States called one witness: Bureau of Immigration and Customs Enforcement Agent Mike Underdown, from Albuquerque. The United States also introduced into evidence photographs of the Greyhound Bus Station in Albuquerque. See Clerk’s Minutes at 1, filed Oct. 30, 2007 (Doc. 37). Moya-Matute testified and also called as a witness, Albert Mares, a private investigator. See id. at 2. Moya-Matute first conceded that, if the encounter between him and the agents was consensual, then the agents could ask any question of him. See Tr. at 99:15-22 (Court & Johnson). Moya-Matute conceded that, if the encounter was consensual, then the agents could have directly-asked him about his papers without any “small talk” at all. Id. Moya-Matute conceded that, if the encounter was consensual, then it would be irrelevant whether Underdown understood what was said between Moya-Matute and Knoll. See id. at 102:21-25 (Court & Johnson).

Later in the hearing, however, Moya-Matute asserted that what Agent Knoll said in Spanish is relevant for the Court’s determination whether the encounter was consensual See Tr. at 103:7-13 (Court & Johnson). Moya-Matute contended that, because the encounter was not consensual, the officers must have had a reasonable suspicion to believe he was violating immigration laws to ask him about papers. See Tr. at 108:4-25 (Court & Johnson). Moya-Matute further contended that the officers could not walk through the bus station asking everybody: “Do you have your papers?” because they would have to have some circumstantial evidence to ask that question. Tr. at 110:3-10 (Court & Johnson). Moya-Matute contended that there must be an “understanding that [the approached person] [does not] have to answer [the officers’] questions.” Tr. at 111:19-21 (Johnson). Moya-Matute contended that, once he said he did not have papers, that did not establish probable cause, because

he could have been a naturalized citizen [and] as a naturalized citizen he’s not required to carry documentation of his status in the United States. He could have been a naturalized citizen who didn’t speak English. So there needed to be more, so without more you do need additional information. He could not have been placed under arrest.

Tr. at 116:18-25 (Johnson). Moya-Matute maintained that even his statement that he was from Honduras and did not have papers would be insufficient information for probable cause to arrest him See Tr. at 117:1-4 (Court & Johnson). Moya-Matute’s counsel gave the example that she is from Nicaragua, but is not required to carry her immigration documents with her, because she is a naturalized citizen. See Tr. at 117:4-8 (Johnson). Moya-Matute contended that, when an officer asks a person “Where are your papers to be legally here in the United States?” he or she must have a reasonable suspicion to ask that question. See Tr. at 133:14-17 (Johnson).

The United States explained that a “staging area” is an area that undocumented persons frequent. See Tr. at 119:19-120:7 (Court & Brawley). The United States acknowledged that Under-down could not testify “specifically sentence by sentence what Agent Knoll said to [Moya-Matute] but [Underdown] did say that Mr. Moya-Matute said [“]I’m from Honduras and I’ve got immigration papers either on the bus or on a bag on the bus [—] Agent Underdown didn’t recall which.” ” Tr. at 122:17-22 (Brawley). The United States conceded that the Court’s determination of whether the encounter was consensual depends on what was said during the encounter, how the officers and Moya-Matute were positioned, and their body language. See Tr. at 123:15-22 (Brawley). The United States noted that “nobody ever told Mr. Moya-Matute you’re not going anywhere you must stand here.” Tr. at 123:20-22 (Brawley). The United States noted that “Mr. Moya-Matute himself did not testify that the agents made any coercive[-]type statements to him, making him feel like base[d] on their language he had to stay there.” Tr. at 124:1^4 (Brawley). The United States contended that it was “obvious” to the officers that Moya-Matute was not a naturalized citizen, because “[h]e lied and said those papers are on the bus. He didn’t say anything like: [“W]hat papers[?W]hy do I need papers[?]” Tr. at 126:7-9 (Brawley). The United States conceded that, once the officers grabbed Moya-Matute by his belt-loop or by his arm, they needed probable cause to do so. See Tr. at 126:17-21 (Court & Brawley). The United States agreed that a discussion of reasonable suspicion is irrelevant to the suppression motion. See Tr. at 127:21-4 (Court & Brawley). The United States contended that the officers had probable cause to arrest Moya-Matute as violating 8 U.S.C. § 1304(c). See Tr. at 127:14-20.

On November 30, 2007, Moya-Matute’s counsel, Ms. Erlinda Johnson, sent a letter to the Court. See Letter from Erlinda Johnson to the Court (dated November 30, 2007, filed December 7, 2007 (Doc. 43))(“November 30, 2007 letter”). Attached to that letter was a copy of United States v.Oscar-Torres, 507 F.3d 224 (4th Cir.2007). See November 30, 2007 letter at 3-10. Moya-Matute contended that United States v. Oscar-Torres is applicable to his case. See id. at 1. Moya-Matute contended that the court in United States v. Oscar-Torres relied upon United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), “for the proposition that in order for a person to be questioned about alienage, the law enforcement officer must have reasonable suspicion to believe the person is violating a law or regulation.” November 30, 2007 letter at 1 (citing United States v. Oscar-Torres). Moya-Matute requests that the Court consider United States v. Oscar-Torres in deciding his suppression motion. See November 30, 2007 letter at 1.

On December 6, 2007, Kimberly A. Brawley, Assistant United States Attorney, wrote a letter to the Court in response to Moya-Matute’s November 30, 2007 letter. See Letter from Kimberly A. Brawley to the Court (dated December 6, 2007), filed December 7, 2007 (Doc. 42)(“December 6, 2007 letter”). The United States reviewed the facts of the case appealed in United States v. Oscar-Torres. See December 6, 2007 letter (referencing United States v. Oscar-Torres, No. 05-CR-224-1H (3XE.D.N.C. January 20, 2006)(Daniel, M. J.)). The United States also referenced the district court’s Order finding that the arrest of the defendant was unlawful. See December 6, 2007 letter, Order, No. 05-CR-224-1H(3)(E.D.N.C. March 13, 2006)(Howard, J.). The United States contended that the United States Court of Appeals for the Fourth Circuit adopted the United States Court of Appeals for the Tenth Circuit’s rule from United States v. Olivares-Rangel, 458 F.3d 1104 (10th Cir.2006). See December 6, 2007 letter at 1. The United States argued: “Because the Fourth Circuit adopted the Tenth Circuit’s prior ruling in U.S. v. Olivares-Rangel, the case of U.S. v. Oscar-Torres does not advance any new arguments or theories for Mr. Moya.-Matute.” December 6, 2007 letter at 2. The United States also disagreed with Moya-Matute’s assertion that the United States v. Oscar-Torres court relied upon United States v. Brignoni-Ponce for the assertion that an officer must have a reasonable suspicion to believe a person is violating a law or regulation to question him or her about alienage. See December 6, 2007 letter at 2. The United States maintained that United States v. Brignoni-Ponce is inapplicable to Moya-Matute’s case, because it “involved a consensual encounter inside a bus station in Albuquerque, New Mexico.” Id.

RELEVANT FOURTH AMENDMENT LAW

The Fourth Amendment guarantees that people will be secure against unreasonable search and seizures. Accordingly, the Fourth Amendment protects against unreasonable seizures. See U.S. Const. amend. IV. “The touchstone of an analysis of a seizure under the Fourth Amendment is reasonableness.” United States v. Baity, No. CR 05-186 JB, 2006 WL 1305035, at *4 (D.N.M. Jan.25, 2006)(Browning, J.)(citing Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)).

“Evidence seized pursuant to a warrantless search, once questioned, must be suppressed unless the search and seizure come within an exception to the Fourth Amendment requirement of a warrant. The burden is on those seeking the exemption to show the need for it.” United States v. Baity, 2006 WL 1305035, at *4 (internal quotations omitted).

“In analyzing Fourth Amendment search and seizure issues, the Tenth Circuit has separated police and citizen interactions into three categories: (i) consensual encounters; (ii) investigative stops; and (in) arrests.” United States v. Grant, No. CR 05-2511, 2006 WL 1305037, at * 5 (D.N.M. Apr.10, 2006)(Browning, J.)(citing Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir.2000)).

In determining whether a seizure comports with the Fourth Amendment, courts have identified three categories of .police encounters: “[i] consensual encounters which do not implicate the Fourth Amendment ... [ii] investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity ... and [iii] arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.

United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir.1996)(quoting United States v. Davis, 94 F.3d 1465, 1467-68 (10th Cir. 1996)). Further,

[t]hese categories are not static. A consensual encounter may escalate into an investigative detention. An investigative detention may escalate into a full-blown arrest or it may de-escalate into a consensual encounter. A reviewing court must analyze each stage of the encounter, ensuring that the requisite level of suspicion or cause is present at each stage.

United States v. Shareef, 100 F.3d at 1500. “Much as a bright line rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.” United States v. Espinosa, 782 F.2d 888, 891 (10th Cir.1986)(internal quotations omitted).

A. CONSENSUAL ENCOUNTERS.

Not all encounters between police officers and private citizens require a suspicion of wrong-doing. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v. Little, 18 F.3d 1499, 1504 (10th Cir.1994). A police-citizen encounter may be the voluntary cooperation of a citizen in response to non-coercive questioning. See Florida v. Bostick, 501 U.S. at 438, 111 S.Ct. 2382. This encounter raises no constitutional issues, because this contact is not a seizure within the meaning of the Fourth Amendment. See id.

In determining the willingness of a citizen to speak with law enforcement officers, the court applies an objective reasonableness test: “[W]hat would the typical reasonable person have understood by the exchange between the officer and the suspect?” United States v. Kimoana, 383 F.3d 1215, 1219 (10th Cir.2004)(internal quotations omitted). The scope of an individual’s consent is based on the totality of the circumstances. See United States v. Manjarrez, 348 F.3d 881, 883 (10th Cir. 2003). A police officer does not have to inform the person approached that he or she may refuse to answer questions for the encounter to be consensual. See United States v. Little, 18 F.3d at 1505 (noting that there is “no per se rule” requiring that officers inform the encountered individual that she or he may refuse to answer questions).

The Supreme Court of the United States has held that officers seize a person when they detain him “for the purpose of requiring him to identify himself’ Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). “ ‘[Wjhenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.’ ” Id. (quoting Terry v. Ohio, 392 U.S. at 16, 88 S.Ct. 1868). “Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, 443 U.S. at 50-51, 99 S.Ct. 2637. “A central concern in balancing these competing considerations ... has been to assure that an individual’s reasonable expectation of privacy is not subject to the arbitrary invasions solely at the unfettered discretion of officers in the field.” Id. at 51, 99 S.Ct. 2637.

During the consensual encounter, the individual reasonably must believe that he or she is free to walk away. “ ‘[Ojbviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.’ ” United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)(quoting Terry v. Ohio, 392 U.S. at 19, 88 S.Ct. 1868). “As long as the person to whom questions are put remains free to disregard the questions and walk away there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” United States v. Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870.

The Supreme Court of the United States has provided the following “[ejxamples of circumstances that might indicate a seizure ... [Threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. In United States v. Mendenhall, there was no seizure:

The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent’s identification and ticket. Such conduct without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions.

Id. at 555, 100 S.Ct. 1870. The Supreme Court also clarified Brown, v. Texas, explaining that, when the two officers approached Brown in the alley, asked him to identify himself and his reason for being there, and Brown refused to do so, there was no seizure. See United States v. Mendenhall, 446 U.S. at 556, 100 S.Ct. 1870. The Supreme Court characterized the Brown, v. Texas decision as “simply [holding] ... that because the officers had no reason to suspect Brown of wrongdoing, there was no basis for detaining him .... ” Id.

An officer’s display of badge does not make an encounter into a seizure. See United States v. Drayton, 536 U.S. 194, 204, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). Likewise, that an officer wears a sidearm does not make an encounter a seizure, because “[t]hat most law enforcement officers are armed is a fact well known to the public. The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon.” United States v. Drayton, 536 U.S. at 205, 122 S.Ct. 2105. On the other hand, “[i]t is undoubtedly true that a consensual encounter between a citizen and police can be transformed into a seizure through persistent and accusatory questioning by police.” United States v. Williams, 356 F.3d 1268, 1274 (10th Cir.2004). See United States v. Williams, 356 F.3d at 1274 (holding that the defendant was not seized because: (i) “[t]he encounter occurred in a relatively open space ... [and the defendant’s] path of egress from the officers; was at no time impeded[;][n][n]one of the officers were uniformed nor did they at any time display a weapon”; and (in) a reasonable person in the defendant’s position would have felt free to terminate the encounter with the police).

In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the Supreme Court noted: “Drug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions.” 501 U.S. at 431, 111 S.Ct. 2382, The officers in Florida v. Bostick boarded the defendant’s bus to ask him questions and to seek permission to search his luggage. See id. The officers asked the defendant if they could inspect his ticket and identification. See id. They also explained their presence as narcotics agents on the lookout for illegal drugs. See id. They requested the defendant’s consent to search his luggage. See id. “There is no doubt that if this same encounter had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not rise to the level of a seizure.” Id. at 434, 111 S.Ct. 2382. “[N]o seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage — so long as the officers do not convey a message that compliance with their requests is required.” Id. at 437, 111 S.Ct. 2382.

“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). The Tenth Circuit has explained:

A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer. If the individual is free to leave at any time during the encounter he or she is not seized under the Fourth Amendment. Whether an encounter is a detention or a consensual encounter depends on whether the police conduct would have conveyed to a reasonable person that he or she was not free to decline the officer’s requests or otherwise terminate the encounter. A person is seized only when that person has an objective reason to believe that he or she is not free to end the conversation with the officer and proceed on his or her way.

United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.1996)(internal citations omitted). The Tenth Circuit has identified several factors that are relevant in determining whether a person has been seized within the meaning of the Fourth Amendment. They include:

[i] The threatening presence of several officers; [ii] the brandishing of a weapon by an officer; [iii] some physical touching by an officer; [iv] the use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; [v] prolonged retention of a person’s personal effects; [vi] a request to accompany the officer to the station; [vii] interaction in a nonpublic place or a small, enclosed space; [viii] and absence of other members of the public.

Jones v. Hunt, 410 F.3d 1221, 1226 (10th Cir.2005)(internal quotations omitted). The Tenth Circuit has “refused to treat any of the factors cited above as dispositive.” Id. “Nor are these factors exclusive.” Id. Instead, the Court, “[w]hen viewing the totality of the circumstances, it may be that the strong presence of two or three factors demonstrates that a reasonable person would have believed that he was not free to terminate an encounter with government officials.” Id. “Asking questions which may elicit incriminating answers is irrelevant to a determination of whether an encounter was consensual, although the manner in which the questions are asked is relevant; accusatory, persistent, and intrusive questioning may turn an otherwise voluntary encounter into a coercive one if it conveys the message that compliance is required.” Id. at 1229 (internal quotations omitted).

An officer may seize a person by using physical force on him. See United States v. Harris, 313 F.3d 1228, 1235 (10th Cir. 2002). In United States v. Harris, the defendant ignored an officer and continued walking both times that the officer requested the defendant’s identification. See 313 F.3d at 1235. The officer then ordered the defendant to remove his hands from has pockets, and when the defendant foiled to do so, the officer removed the defendant’s “hands from his pockets, and escorted him to the front part of his police car.” Id. at 1234. The Tenth Circuit noted that “[a] police officer’s assertion of authority without submission by the individual does not constitute a seizure.” Id. (citing Bella v. Chamberlain, 24 F.3d 1251, 1255 (10th Cir.1994)). “Accordingly, Defendant was not seized for purposes of the Fourth Amendment until [the officer] implemented physical force by removing Defendant’s hands from his pockets and escorting him to the police car.” United States v. Harris, 313 F.3d at 1235.

There is no Fourth Amendment prescription regarding the content of officers’ questions during a consensual encounter, so long as the officers’ questions are not coercive. “Although accusatory, persistent, and intrusive questioning may turn an otherwise voluntary encounter into a coercive one, this is true only if the officers convey the message that compliance is required.” United States v. Torres-Guevara, 147 F.3d 1261, 1265 (10th Cir.1998)(internal quotations and citations omitted). “‘As long as the [deputy’s] questioning did not extend the length of the detention, ... there is no Fourth Amendment issue with respect to the content of the questions.’ ” United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir.2006)(quoting United States v. Wallace, 429 F.3d 969, 974 (10th Cir.2005)). “[T]he mere fact that officers ask incriminating questions is not relevant to the totality-of-the-circumstances inquiry— what matters instead is the manner in which such questions were posed.” United States v. Ringold, 335 F.3d 1168, 1174 (10th Cir.2003)(internal quotations omitted).

B. INVESTIGATIVE DETENTIONS.

The Supreme Court set forth the rules regarding “investigative detentions” in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A law enforcement officer may stop and briefly detain a person for investigatory purposes if he' has reasonable suspicion that criminal activity “may be afoot,” even when the level of suspicion does not amount to probable cause. See Terry v. Ohio, 392 U.S. at 29, 88 S.Ct. 1868. Under Terry v. Ohio, the validity of a detention depends on “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 20, 88 S.Ct. 1868.

Investigative detention with reasonable suspicion of illegal alienage is permissible so long as the detention does not last any longer than necessary to determine whether the individual is an alien illegally in the United States. See United States v. Brignoni-Ponce, 422 U.S. at 881, 95 S.Ct. 2574. Furthermore, the agent may not frisk any individual who has not been arrested unless the agent has a reasonable suspicion, based on specific articulable facts to “take such steps as are reasonably necessary to protect [his or her] personal safety and to maintain the status quo.” United States v. Hishaw, 235 F.3d 565, 570 (10th Cir.2000).

In determining whether an officer has reasonable suspicion, a court must consider “the totality of circumstances,” i.e., the whole picture. See United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Based on the whole picture, the detaining officer must have a particularized and objective basis for his suspicion that he can articulate. See United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The standard allows an officer to draw inferences and make deductions that might elude an untrained person. See id. at 418, 101 S.Ct. 690. An “inchoate and unparticularized suspicion or ‘hunch,’ ” however, is insufficient. United States v. Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868).

An officer must have reasonable suspicion to detain a person for investigation. See Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. 1868. “ ‘The government bears the burden of showing that an officer possessed objectively reasonable and articulable suspicion.’ ” United States v. Grant, No. CR 05-2511 JB, 2006 WL 1305037, at * 5 (D.N.M. Apr.10, 2006)(Browning, J.)(quoting United States v. Sieren, 68 Fed.Appx. 902, 904 (10th Cir.2003)). “[T]he likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

The Fourth Amendment demands that the detaining officer “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868. “And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. at 27, 88 S.Ct. 1868. The Tenth Circuit determines the reasonableness of an investígative detention by applying a two-prong test: (i) whether the officer’s action was justified at its inception; and (ii) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. See United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996).

While the court must make the determination of reasonableness on a case-by-case basis, certain guidelines apply by which to measure an agent’s actions. The Immigration and Nationality Act (the “INA”) allows an immigration agent to question a person, believed to be an alien, about his or her “right to be or to remain in the United States.” 8 U.S.C. § 1357(a)(1). An immigration law enforcement agent, “like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.” 8 C.F.R. § 287.8(b)(1).

An immigration law enforcement agent may briefly detain a person for questioning if the agent “has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States ...” 8 C.F.R. § 287.8(b)(2). Agents are not precluded from approaching people and questioning them more than one-hundred miles from the border. See 8 C.F.R. § 287.8(b)(1).

The Fourth Amendment, however, limits the above statutory provisions. An immigration agent may not question any individual as to his or her right to be or to remain in the United States unless the agent has a reasonable suspicion, based on specific and articulable facts involving more than ethic appearance, that the individual is an alien. See United States v. Brignoni-Ponce, 422 U.S. 873, 886, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1070 (7th Cir.1976)(stating that, “[t]he district court held, and we agree, that a street stop is justifiable here only when the INS agent has a ‘reasonable suspicion based on specific articulable facts that such a person is an alien [unlawfully] in the [United States].’ ’(quoting United States v. Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. 2574)(alterations in original).

In Martinez v. Nygaard, 831 F.2d 822 (9th Cir.1987), a team of INS agents executed a search warrant on a factory. See id. at 824. Once inside the factory, the INS agents “systematically questioned workers who appeared to be of Latin American ancestry, asking them for proof of legal residence.” Id. “The agents did not display their guns during the questioning or bar the exits.” Id. “Badges and handcuffs were visible only when used to detain specific aliens not parties to [the] appeal.” Id. The United States Court of Appeals for the Ninth Circuit held that the immigration officers reasonably detained a person for approximately twenty minutes, even where the officials threatened to tie her hands if she tried to leave, while they waited for her co-worker to obtain her immigration papers. See id. at 827-28. The Ninth Circuit further held that the immigration officers had probable cause to believe that another person involved in the factory sweep had violated the “green card statutes,” 8 U.S.C. § 1304(c), by not having her papers on her person, and thus the arrest of that person was reasonable when she admitted that she was an alien and failed to produce her green card. Martinez v. Nygaard, 831 F.2d at 828. The Ninth Circuit also held that a person was not seized within the meaning of the Fourth Amendment when an INS agent grabbed him by the shoulder to get him to answer questions, because the agent who grabbed him held him so briefly that any detention was not a seizure. See id. at 826. The Ninth Circuit noted that one of the plaintiffs testified he was not afraid of the agents, that after he showed his papers upon their request, that plaintiff left, and that it did not appear that he was pressured into answering questions or restrained. See id. at 827. Another person was detained when an agent prevented her from leaving an area where the agents were detaining suspected aliens. See id. at 827. That same person was also detained when she attempted to leave the building to retrieve a co-worker’s papers and an INS agent physically restrained her until another agent said she could go. See id. The Ninth Circuit held that the detention of that person was unreasonable, because “an INS officer must have an objectively reasonable suspicion that a particular worker is an illegal alien.” Id.

The court must look at the totality of the circumstances to determine whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. See United States v. Arvizu, 534 U.S. at 273, 122 S.Ct. 744. “A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” Id. at 277, 122 S.Ct. 744. “Law enforcement officers may perceive meaning in actions that appear innocuous to the untrained observer.” United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir.1997). “This process allows officers to draw on their own experiences and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. at 273, 122 S.Ct. 744.

When assessing the reasonableness of the officer’s actions, the court must “judge the officer’s conduct in light of common sense and ordinary human experience.” United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir.1997) (citations omitted). “[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U.S. at 125, 120 S.Ct. 673. “This approach is intended to avoid unrealistic second-guessing of police officers’ decisions and to accord appropriate defense to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.” United States v. Gutierrez-Daniez, 131 F.3d at 942.

It may be appropriate at times to look at officers’ collective knowledge in determining whether they behaved reasonably. See United States v. Shareef, 100 F.3d at 1504. The presumption of communication is rebutted if information was not, in feet, shared. See id. Further, “[w]hen an officer is conducting a lawful investigative detention based on reasonable suspicion of criminal activity, the officer may ask for identification and for an explanation of the suspect’s presence in the area.” Oliver v. Woods, 209 F.3d at 1189.

“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). “But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” Id. See United States v. Gutierrez-Daniez, 131 F.3d at 942 (“[A]n area’s disposition towards criminal activity is an articulable fact that may be considered along with more particularized factors to support reasonable suspicion.”)(internal quotations omitted). See United States v. Maddox, 388 F.3d 1356, 1365 (10th Cir.2004)(internal quotations omitted), cert. denied, 544 U.S. 935, 125 S.Ct. 1689, 161 L.Ed.2d 504 (2005)(“[M]ere propinquity to others independently suspected of criminal activity is insufficient, standing alone, to create an articulable suspicion____”). On the other hand, “[gjeneral profiles that fit large numbers of innocent people do not establish reasonable suspicion.” United States v. Grant, 2006 WL 1305037, at * 6 (internal quotations omitted).

C. PROBABLE CAUSE.

“An arrest is “characterized by highly intrusive or lengthy search or detention,” and must therefore be supported by probable cause. Probable cause to arrest exists only when the “facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir.2004)(internal citations and quotations omitted). “To determine if probable cause exists, a court looks to “whether at that moment the facts and circumstances within [the officer’s] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [officer] in believing that the petitioner had committed or was committing an offense.” ” United States v. Snow, 82 F.3d 935, 942 (10th Cir.1996)(internal quotations omitted). “[P]robable cause must exist at the moment of the arrest.” United States v. Hansen, 652 F.2d 1374, 1388 (10th Cir.1981).

Probable cause is “evaluated in light of circumstances as they would have appeared to a prudent, cautious, trained police officer.” Id. (internal quotations omitted). “Probable cause exists where the facts and circumstances within an officer’s knowledge and of which he had reasonably trustworthy information are sufficient to warrant a prudent [officer] in believing that an offense has been or is being committed. This is an objective standard; the subjective belief of an individual officer as to whether there is probable cause is not dispositive.” Boydston v. Isom, 224 Fed.Appx. 810, 814 (10th Cir.2007)(internal citation and quotations omitted). “Probable cause to arrest does not require facts sufficient to establish guilt, but does require more than mere suspicion.” United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir.1981), cert. denied, 525 U.S. 978, 119 S.Ct. 437, 142 L.Ed.2d 356 (1998)

The quantum of evidence sufficient to satisfy probable cause is higher than that for reasonable suspicion. As the Tenth Circuit stated in United States v. Valenzuela, 365 F.3d 892 (10th Cir.2004): “Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Id. at 896 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). “That the facts may not support a conclusion that [the defendant] actually violated the law is irrelevant; reasonable suspicion requires a showing considerably less than preponderance of the evidence, and may be justified on a quantum of evidence far less than that required to establish probable cause.” United States v. Vercher, 858 F.3d 1257, 1263 (10th Cir.2004)(internal citation and quotations omitted).

“[T]he primary concern is whether a reasonable officer would have believed that probable cause existed to arrest the defendant based on the information possessed by the arresting officer.” United States v. Valenzuela, 365 F.3d at 896-97. Probable cause may be based on the collective information of the officers involved in the arrest, “rather than exclusively on the extent of the knowledge of the particular officer who may actually make the arrest.” Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985). In Karr v. Smith, the facts within the arresting officers’ knowledge based upon a sergeant’s knowledge were “sufficient to warrant a prudent man in believing that an offense had been committed” because the evidence showed that the sergeant was present at the scene and saw damage to a truck; saw that tires had been slashed and the valves of the truck opened to allow hazardous materials to leak out; based on his observations, he determined the damage was intentional; and the truck owner told the sergeant he knew that Karr had done the damage and had threatened to vandalize the truck, and that he intended to pursue prosecution against Karr