USA v. Burquez-Silveira

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Fredi Burquez-Silveira,
Defendant.
No. CR-25-03239-TUC-SHR (EJM)
REPORT AND RECOMMENDATION
Pending before the Court is Defendant’s Motion to Suppress Evidence Due to
Fourth Amendment Violations. (Doc. 27). For the reasons discussed below, it is
recommended that the District Court deny the motion.
I. PROCEDURAL BACKGROUND
The defendant is charged in an indictment dated July 7, 2025, with Illegal Alien
in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 9. (Doc. 10.)
On March 20, 2026, the defendant filed the instant motion. (Doc. 27.) The Court
held an evidentiary hearing on April 22, 2026. Tucson Police Department (“TPD”) Officer
Lee Cortez was the only witness. At the conclusion of the hearing, the Court ordered the
parties to simultaneously file supplemental briefs to address the evidence presented at the
hearing. Both parties filed their briefs on May 22, 2026.
II. FACTUAL BACKGROUND
On April 27, 2025, at approximately 7:00 p.m., TPD dispatch received a 911 call
from a citizen who reported that a man “was dancing around his truck” which was parked
in the northern parking lot of Mission Manor park. Hr’g Tr. (4/22/2026 (Doc. 37) at 9, 13,
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28-29.) The caller further reported that the man retrieved what appeared to “a black assault
rifle” from the truck, loaded the firearm, and then put it back in the truck. (Id. at 9. 11, 28-
30.)1 The caller also reported that the man was “possibly in his 20s to 30s, [was] thin,
[was] wearing all dark clothes and a baseball cap,” and that it was “a classic truck” with a
stripe across the side. (Id. at 9.)
TPD Officer Lee Cortez arrived at Mission Manor park at around 7:40 p.m. (Id. at
14.) There were adults and children at the park because baseball games were being played.
(Id.) As a result, Officer Cortez’s main concern was whether the man was planning on
“committing a mass shooting.” (Hr’g Tr. 4/22/2026 (Doc. 37) at 14-15.) That concern
stemmed from prior incidents where Officer Cortez encountered individuals who brought
assault rifles to a park when people were present. (Id. at 12.) Officer Cortez was also
concerned about the man disturbing the peace and recklessly brandishing a firearm, which
are both crimes under Arizona law. (Id. at 15.)2
When Officer Cortez first arrived at the park, he saw a man standing by a truck, both
of whom matched the description provided by the 911 caller. (Id. at 16.) Officer Cortez
was in a marked patrol vehicle, but he did not activate his emergency lights or siren. (Id.
at 19.) The “light bar” on the patrol vehicle was shining on the truck. (Id. at 34.) Officer
Cortez parked his patrol vehicle at an angle facing the driver’s side of the truck so he would
have more time, distance, and shielding if there was “an ambush.” (Id. at 19, 32.) There
was enough distance between the patrol vehicle and the truck for the man to back out of
the parking space. (Id. at 19, 33.)
Officer Cortez exited his vehicle and approached the man who was later identified
as the defendant.3 (Id. at 18-19.) Officer Danaher arrived at the scene around this time.
1 Officer Cortez initially testified that the caller reported that the man “was dancing around
his truck with . . . what was believed to be a black assault rifle.” (Id. at 9.) He later clarified that
the dancing occurred prior to the man retrieving the rifle from his truck. (Id. at 28-29.)
2 Officer Cortez agreed with defense counsel that openly carrying a firearm and loading a
weapon in public are not crimes under Arizona law. (Id. at 30.)
3 Officer Cortez’s testimony about his interaction with the defendant, including the
sequence of questions and answers, was a bit inconsistent with his body camera footage. The
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(Id. at 20.) Because the defendant did not speak English, Officer Cortez asked the
defendant in broken Spanish if it was his truck, if he had identification, and if a firearm
was in the truck. (Hr’g Tr. 4/22/2026 (Doc. 37) at 20-22; Gov. Ex. 2 (Officer Cortez’s
body camera footage) at 1:05-1:30.) The defendant said that it was his truck, that he did
not have a firearm in the truck, and he searched his pockets for his identification. (Gov.
Ex. 2 at 1:05-1:36.) He then gestured toward the truck, indicating that his identification
was in the truck. (Hr’g Tr. 4/22/2026 (Doc. 37) at 35; Gov. Ex. 2 at 1:45.)
Officer Cortez testified that when the defendant went toward the truck to get his
identification, he “had him pause and not go back in his vehicle for approximately 40
seconds[.]” (Hr’g Tr. 4/22/2026 (Doc. 37) at 35.) The defendant complied and stood by
the driver’s side door with Officer Cortez. (Gov. Ex. 2.) Officer Cortez had the defendant
“pause” because Officer Danaher was on the passenger side of the truck looking through
the windows to see if a firearm was in plain view. (Hr’g Tr. 4/22/2026 (Doc. 37) at 36.)
Officer Cortez was concerned that if the defendant opened the driver’s door and retrieved
a firearm Officer Danaher may not have been able to see him do so. (Id. at 38.) Officer
Cortez testified that he would not have had that concern if the defendant simply walked
into the park, and that the defendant was “free to do that[.]” (Id. at 39.)
When Officer Danaher joined Officer Cortez and the defendant on the driver’s side
of the vehicle, Officer Cortez asked Officer Danaher if it was “all negative on the
passenger’s side;” Officer Danaher confirmed that he did not see a firearm. (Gov. Ex. 2 at
2:25.) Officer Cortez testified that “[w]hen Officer Danaher came back from the passenger
side,” the defendant was free to leave (presumably on foot) because there were no longer
officer safety concerns. (Hr’g Tr. 4/22/2026 (Doc. 37) at 36.)
Nevertheless, Officer Cortez again asked the defendant for his identification and
allowed the defendant to enter the truck to retrieve the identification. (Gov. Ex. 2 at 2:35.)
The defendant provided Officer Cortez with an expired work visa which showed that he is
a citizen of Mexico. (Hr’g Tr. 4/22/2026 (Doc. 37) at 23, 47.) Officer Cortez again asked
Court relies on the body camera footage because it is best evidence of that interaction.
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the defendant if he had a firearm in the truck. (Gov. Ex. 2 at 2:55.) The defendant told
officers that there was a rifle on the passenger’s side of the truck and then tried to enter the
truck to presumably retrieve the rifle. (Id. at 3:05-4:05.) Officers told the defendant not to
do so and he complied. (Id.) The defendant was instructed to sit on the curb, and he again
complied. (Id. at 3:23.) The defendant told the officers that the rifle was in a bag. (Id. at
4:05.) Officer Cortez testified that, at that point, the defendant was not placed under arrest,
but he was detained and not free to leave. (Hr’g Tr. 4/22/2026 (Doc. 37) at 24.)
After the defendant was arrested, officers searched the truck incident to arrest and
found a black bag which contained “a .22 caliber MP 5 clone with a magazine and .22
caliber ammunition.” (Id. at 24.) Neither officer drew their firearms or any weapon during
their interaction with the defendant. (Id. at 24-25.)
III. THE MOTION TO SUPPRESS
The defendant argues that the evidence seized from his person and truck should be
suppressed because there was not a reasonable suspicion for the Terry stop. The defendant
also argues his statements made to law enforcement – i.e., that it was his truck and there
was a rifle in the truck -- should be suppressed because the stop ripened into an arrest, but
he was not provided with Miranda warnings.
The government argues that the Fourth Amendment is not implicated because there
was a consensual encounter between the defendant and officers. Alternatively, the
government argues that officers had reasonable suspicion to make a brief investigatory stop
and Miranda warnings were not required because the defendant was not in custody when
he made the statements at issue.
IV. DISCUSSION
A. The government has not established that the encounter between the
defendant and law enforcement was consensual.
The analysis of whether a person’s encounter with law enforcement was consensual
is an objective inquiry that focuses on “whether a reasonable person in [the defendant’s]
position would feel free to disregard the police and go about his business.” United States
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v. Grant, 696 F.3d 780, 785 (8th Cir. 2012) (quoting Florida v. Bostick, 501 U.S. 429, 434
(1991)) (internal quotations omitted). There are five factors to consider: (1) the number of
officers; (2) whether weapons were displayed; (3) whether the encounter occurred in a
public setting; (4) whether the officer’s “officious” or “authoritative manner” implied that
compliance would be compelled; and (5) whether officers advised the person of his right
to terminate the encounter. United States v. Washington, 387 F.3d 1060, 1068 (9th Cir.
2004).
The government argues that the defendant’s encounter with law enforcement was
consensual because it occurred on foot in a public place, officers did not activate the
emergency lights on their patrol vehicles or block the defendant’s vehicle from leaving the
scene, and the officers did not brandish their weapons. The defendant argues that the
evidence establishes that he “was clearly not allowed to go about his business” whether in
the truck or on foot. (Doc. 40 at 4.)
The following factors weigh in favor of the encounter being consensual: (1) officers
did not brandish or display weapons; (2) the encounter occurred in a public place; and (3)
there was not an inordinate number of officers involved in the encounter. However,
officers never advised the defendant of his right to terminate the encounter. In fact, the
officers could not have done so because they are not fluent Spanish speakers, and the
defendant did not speak English. More importantly, as discussed below, the body camera
footage demonstrates that Officer Cortez’s statements and actions implied that compliance
was compelled.
Officer Cortez testified that although the defendant was not free to enter the truck
while Officer Danaher was on the passenger side of the truck, he was free to walk into the
park. He further testified when Officer Danaher joined him and the defendant on the
driver’s side of the truck, the defendant was free to leave on foot because there were no
longer any officer safety concerns. (Hr’g Tr. 4/22/2026 (Doc. 37) at 36.)
The body camera footage paints a different picture. The footage shows that the
defendant was not free to leave the scene in his truck or on foot unless and until he provided
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officers with his identification, which played a crucial role in his ultimate arrest. When
Officer Cortez arrived at the scene, he immediately asked the defendant for his
identification and if there was a firearm in his truck. For officer safety reasons, Officer
Cortez initially prevented the defendant from entering the truck to retrieve his
identification. At Officer Cortez’s request, the defendant stood by the driver’s door with
Officer Cortez by his side until Officer Danaher joined them. Moreover, even after Officer
Danaher told Officer Cortez that he did not see a firearm, Officer Cortez again asked the
defendant for his identification and had him retrieve it from the truck. When the defendant
provided Officer Cortez with his expired work visa which raised a suspicion that he was
not lawfully in the United States, he again asked the defendant if there was a firearm in the
truck. The defendant admitted that there was a rifle in a bag on the passenger side of the
truck.
Based on these facts, the Court concludes that a reasonable person, especially one
that speaks a different language than the officers, would not have felt free to refuse to
provide officers with identification and instead go about his business. The defendant was
clearly not free to leave once Officer Cortez learned that the defendant likely was not
lawfully in the United States and that there was a firearm in the truck. Officers had him sit
on the curb until he was placed under arrest.
For the reasons discussed above, the Court finds that the encounter was not
consensual and, as a result, the Fourth Amendment applies.
B. The government has established that Officer Cortez had reasonable
suspicion for the brief investigatory stop.
Law enforcement officers may conduct a brief investigatory stop, commonly
referred to as a Terry stop, based on a reasonable suspicion that criminal activity is afoot.
United States v. Arvizu, 534 U.S. 266, 273 (2002). Reasonable suspicion “is not a
particularly high threshold to reach.” United States v. Valdes-Vega, 738 F.3d 1074, 1078
(9th Cir. 2012). It is less than probable cause, and “falls considerably short of satisfying a
preponderance of the evidence standard.” Valdes-Vega, 738 F.3d at 1078 (quoting Arvizu,
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534 U.S. at 274.)
When determining if there was reasonable suspicion for a stop, a court must
consider the “totality of the circumstances of each case to see whether the detaining officer
has a particularized and objective basis for suspecting legal wrongdoing.” Arvizu, 534 U.S.
at 273. Those circumstances include, but are not limited to, the characteristics of the area
where the stop occurred and the behavior and appearance of the person stopped. (Id.)
The Supreme Court has cautioned that courts should not engage in a “divide-and-
conquer analysis” when reviewing the factors considered by law enforcement. (Id. at 274.)
“A determination that reasonable suspicion exists . . . need not rule out the possibility of
innocent conduct.” (Id. at 277.) Stated another way, it is inappropriate to view factors in
isolation and to give no weight to factors which may have an innocent explanation. (Id. at
273–275.) “[E]ven when factors considered in isolation from each other are susceptible to
an innocent explanation, they may collectively amount to a reasonable suspicion.” United
States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007) (citing Arvizu, 534 U.S. at
274). Therefore, what may seem to be innocuous conduct when viewed in isolation may
be appropriately considered when analyzing the totality of the circumstances. Arvizu, 534
U.S. at 273–75; see also Cotterman, 709 F.3d at 970 (“It is not our province to nitpick the
factors in isolation but instead to view them in the totality of the circumstances.”).
When assessing the “totality of the circumstances,” the court “allows officers to
draw on their own experience 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. Montero-Camargo, 208 F.3d, 1122, 1131 (2000)
(quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). “In other words, an officer's
experience may furnish the background against which the relevant facts are to be assessed,
as long as the inferences he draws are objectively reasonable.” Montero-Camargo, 208
F.3d, at 1131. As a result, “the facts supporting reasonable suspicion must be filtered
through the lens of the [law enforcement officer’s] training and experience” and a court
must give “due weight” to factual inferences drawn by officers. Valdes-Vega, 738 F.3d at
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1079.
Prior to his encounter with the defendant, Officer Cortez had responded to incidents
where individuals brought firearms to a park when people were present. In those situations,
his primary concern was a mass shooting; however, he also had concerns about individuals
disturbing the peace, and/or recklessly brandishing the firearm. Each of these concerns
and suspicions about the commission of these crimes were present here based on the
information provided by the 911 caller, as well as Officer Cortez’s observations when he
arrived at the park. Specifically, the defendant was behaving erratically, or at least oddly,
by dancing around his truck and then retrieving and loading a black assault rifle which he
then placed back in the truck. Officer Cortez testified that there were a good number of
people present at the park which heightened his concern about a mass shooting, as well as
the defendant disturbing the peace and/or recklessly brandishing the firearm.4 Officer
Cortez’s suspicion of criminal activity undoubtedly increased when the defendant, who
matched the description of the 911 caller, initially denied having a firearm in the truck.
The Court concludes that these facts and Officer Cortez’s reasonable inferences
drawn from these facts, filtered through the lens of his experience, establish a reasonable
suspicion for the brief investigatory stop of the defendant.
C. There was not a Miranda violation because the defendant was not in
custody at the time he made the statements he seeks to suppress.
The defendant argues that his statements -- i.e., that it was his truck and he had a
rifle in his truck -- should be suppressed because he was in custody and never advised of
his Miranda rights prior to making those statements. The government argues to the
contrary.
In Miranda v. Arizona, 384 U.S. 436, 444-445 (1966), the Supreme Court held that
4 It is worth noting that Officer Cortez was also concerned about his own safety given his
reason to believe there was a loaded firearm in the truck. He testified that he parked his patrol
vehicle at an angle, facing the driver’s side of the truck so he would have more time, distance, and
shielding if he was ambushed.
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whenever a criminal suspect is subjected to custodial interrogation, he must be warned of
his right to remain silent and informed that any statement he makes can be presented as
evidence in court. Miranda rights are required when two elements are present: (1) the
suspect is in custody; and (2) the suspect is interrogated by law enforcement. United States
v. Bassignani, 575 F.3d 879, 883 (9th Cir. 2009)
By contrast, a Terry stop is a brief investigatory detention by police that falls short
of actual custody. Although persons subject to Terry stops are, by definition, not free to
leave until the police are finished, the person is not in full custody and thus not entitled to
Miranda warnings. See United States v. Basher, 629 F.3d 1161 (9th Cir. 2011) (holding
that a police seizure was a valid Terry stop but not an arrest requiring Miranda warnings).
The Supreme Court has held that when there is a brief Terry detention, officers may,
without giving Miranda warnings, ask “a moderate number of questions to determine [a
person’s] identity and to try to obtain information confirming or dispelling the officer’s
suspicions.” Berkemer v. McCarthy, 468 U.S. 420, 439-440 (1984). If the questioning is
within the scope of the reason for the brief detention, Miranda does not apply. United
States v. Galindo-Gallegos, 244 F.3d 728, 735 (9th Cir. 2001).
As discussed above, Officer Cortez’s Terry stop was supported by reasonable
suspicion. Although the defendant was not free to leave, he was not in full custody during
the three minutes while Officer Cortez asked him questions. Additionally, Officer Cortez
only asked three questions (i.e., if it was his truck, if he had identification, and if there was
a firearm in the truck), which were all within the scope of the reason for the brief detention,
to confirm or dispel his suspicions. For these reasons, Miranda warnings were not
required; as a result, suppression of the defendant’s statements is not warranted.
V. RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Judge
deny Defendant’s Motion to Suppress (Doc. 27).
Pursuant to 28 U.S.C. §636(b) and Rule 59(b)(2) of the Federal Rules of Criminal
Procedure, any party may serve and file written objections within fourteen (14) days after
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being served with a copy of this Report and Recommendation. No reply shall be filed
unless leave is granted from the District Court. If objections are filed, the parties should
use the following case number: CR-25-03239-TUC-SHR.
Failure to file timely objections to any factual or legal determination of the
Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right
of review.
Dated this 16th day of June, 2026.
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