Appeal from the United States District Court for the Southern District of Texas.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Renata Ann Gowie, Assistant U.S. Attorney, Anna Elizabeth Kalluri, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.
For JUSTIN ORTIZ, Defendant - Appellant: Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX.
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge, concurring in part and dissenting in part.
JERRY E. SMITH, Circuit Judge:
Justin Ortiz pleaded guilty of conspiracy to make false statements in connection with the acquisition of a firearm, see 18 U.S.C. § § 371, 922(a)(6), reserving the right to appeal the denial of his motion to suppress. He claims that evidence seized from his vehicle should have been suppressed because agents of the Bureau of Alcohol, Tobacco, and Firearms (" ATF" ) stopped him without reasonable suspicion and that statements he made to the agents should have been suppressed because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.
In July 2010, Ortiz and Jose Diaz-Meza visited a Houston gun store called SOG Armory (" SOG" ) and spoke with employees Joshua Hernandez and Kyle Wright about purchasing a .50-caliber rifle. They showed him a Beowulf rifle, which he decided to buy. He completed the required ATF Form 4473, which warned it was illegal to purchase for someone else, and paid about $2,100 in cash. He bought one box of ammunition. After Hernandez showed Ortiz a second rifle of the same model, he decided to buy that one too and left the store to get more cash from an ATM.
SOG employees were trained to identify straw purchases, and several aspects of the transaction had made Hernandez suspicious. At the suppression hearing, he described his concerns: First, after buying the first rifle, Ortiz asked, " How many more do you have?" Second, he paid for the first one in cash, and after deciding to
buy the second, he " insist[ed]" on getting more cash from an ATM even though Hernandez told him SOG accepted credit and debit cards. Hernandez found that particularly suspicious because he believed that Ortiz could have paid for the second rifle using the same debit card he used to get cash. Third, the rifles were sold without sights, but Ortiz seemed uninterested in buying sights despite Hernandez's efforts to sell them. Fourth, Ortiz bought only one box of ammunition even though Hernandez believed that Ortiz likely needed more ammunition to sight the two rifles, and SOG is the only store in Houston that sells ammunition for Beowulf rifles.
After Ortiz and Diaz-Meza had left the store, Hernandez called ATF Agent Tommy Gray and described his concerns. Gray agreed the behavior was suspicious and asked Hernandez to stall the men because no agents were nearby. Gray called Agent Vu-Hai Phan and told him an employee of SOG had reported a suspected straw purchase. Gray repeated the specific concerns Hernandez had identified. Phan and his partner, Peter Milligan, began driving to SOG in separate vehicles.
While Milligan and Phan were on their way, Ortiz and Diaz-Meza returned with the cash, and Ortiz paid for the second rifle and completed another Form 4473. As requested, Hernandez stalled Ortiz and Diaz-Meza. He also provided Gray with Ortiz's license plate number and a description of his vehicle, information Gray conveyed to Phan and Milligan. Once Milligan and Phan arrived, they set up surveillance in the parking lot.
Milligan watched Ortiz and Diaz-Meza leave the store and saw Ortiz place two rifle bags in the rear hatch of his vehicle. Based on his experience investigating straw purchases, Milligan believed that they would go directly to the " orchestrator," who arranges a straw purchase, and he and Phan decided to follow them. The agents tailed Ortiz and Diaz-Meza for approximately an hour; Milligan observed " that the driver was making several dangerous lane changes, several U-turns. We also witnessed the passenger on the cellphone the whole time, and also witnessed him kind of pointing out directing the driver on where to go." Milligan thought Ortiz's driving was consistent with a " heat run," unpredictable driving designed to detect police surveillance and to make it more difficult for officers to follow. Milligan and Phan decided " to get the firearms secured as soon as possible" instead of continuing to follow.
Milligan then saw Ortiz and Diaz-Meza stop at a gas station near one of the pumps; Ortiz stayed in his vehicle rather than exiting to get gas. Phan entered the parking lot and stopped to the back left of Ortiz's vehicle, activated his emergency lights, got out of his vehicle, and drew his gun. Milligan arrived a few seconds later and did the same, stopping to the front left of Ortiz's vehicle and displaying a neck badge. Milligan and Phan told Ortiz to turn off his engine, get out, hold his hands out to the side, and walk toward the front of his vehicle. They told Diaz-Meza to get out and walk toward the back.
Milligan approached Ortiz with his gun drawn, but, after seeing no " immediate
threats," holstered it. Milligan explained he drew his weapon for safety reasons because Ortiz and Diaz-Meza had just purchased the rifles and may have already been armed. Milligan did not remember exactly how long he and Phan had their weapons drawn, but it was a matter of " minutes."
When Milligan began speaking to Ortiz, he told him either " You're not under arrest right now" or " You're not under arrest." He said the agents had been following Ortiz and Diaz-Meza and had questions about the rifles. In response, Ortiz claimed he had purchased them for his birthday. After Milligan indicated he investigates those who purchase guns for others, Ortiz changed his story and admitted he had purchased the rifles for someone else. Ortiz made that statement five to ten minutes after stopping at the gas station.
At this point, several other agents arrived. Agent Ben Smith decided to frisk Ortiz after learning Milligan had not done so. Smith told Ortiz he was not under arrest, explained what he was doing, handcuffed Ortiz, and frisked him. Smith did not unhandcuff Ortiz immediately after frisking him. Agent Roland Balesteros instructed Smith to unhandcuff Ortiz before the agents spoke with him again; Milligan and Smith did so. Ortiz was handcuffed for five to ten minutes and was not asked any questions while handcuffed.
Milligan then asked Ortiz to get into Balesteros's vehicle with Milligan and Balesteros. Milligan believed they said " something along the lines of 'Can you get in the vehicle so we can further discuss what we've already talked about.'" Milligan testified that it was hot and was much cooler inside the car, but he did not explicitly say the temperature was the reason for getting into the vehicle. Balesteros sat in the driver's seat, Milligan was in one of the back seats, and Ortiz sat either in the front passenger seat or in the other back seat.
Once inside, Ortiz answered more detailed questions about his purchase. Milligan wrote a statement based on Ortiz's answers. Ortiz read, made corrections to, and signed, the statement. In Milligan's view, Ortiz " seemed calm and he was being extremely cooperative." It is uncertain how the agents ended the interview. Milligan denied using the phrase " You're free to go," and answered yes to the court's question " [So] you basically told him to get out [of the] vehicle?" Ortiz and the agents were in the car for twenty to forty minutes.
After they exited the vehicle, Ortiz asked Milligan whether he could smoke a cigarette. Milligan responded, " Yes, you can. Obviously we're in the middle of a gas station. You're going to have to go away from the gas," and Ortiz walked closer to the highway to smoke. Ortiz still had his phone and could have made calls. After smoking, Ortiz walked back to the agents.
Milligan opened the hatch of Ortiz's vehicle using the keys and seized the rifles because he believed the sale had been a straw purchase based on Hernandez's tip and Ortiz's and Diaz-Meza's statements. He had obtained the keys from an unspecified other agent but was unsure when that agent took the keys. Ortiz eventually got his keys back, but the record does not specify when.
Ortiz, Diaz-Meza, and the agents then went to a restaurant adjacent to the gas station to eat lunch. Milligan did not remember how he asked Ortiz to go inside. He did not say, " Would you like to have lunch with me?," but he may have said, " Let's go inside." His testimony suggested that one of the agents paid for Ortiz's
lunch with his own personal funds but was unclear on that point. During the lunch, the agents continued talking to Ortiz and Diaz-Meza but focused on Diaz-Meza. While they were inside, Agent Wade Brown arrived. Brown had a " grizzly" appearance and looked like a tow-truck driver, and Ortiz became concerned the agents were going to tow his vehicle, but they assured him they did not intend to do so.
After lunch, some of the agents left with Diaz-Meza to go to the orchestrator's house. They were gone for about thirty minutes, during which time Ortiz and his vehicle remained at the gas station. Ortiz left after the agents ...