FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  December 10, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                        No. 09-2037
 JOSHUA HERNANDEZ-                              (D.C. No. 2:07-CR-02437-MV-1)
 CHAPARRO,                                                 (D. N.M.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and HARTZ, Circuit Judges.


      Defendant Joshua Hernandez-Chaparro pled guilty to one count of illegally

entering the United States after deportation in violation of 8 U.S.C. § 1326(a) and

(b), reserving his right to appeal the district court’s denial of his motion to suppress

evidence of his identity. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      The parties are familiar with the facts, and therefore we discuss only briefly

the facts related to Defendant’s appeal. During the time to file pretrial motions,

Defendant filed a motion to suppress evidence of his identity, arguing that it was

obtained illegally as a result of a discriminatory investigation. Defendant claimed


      *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the law enforcement personnel involved improperly targeted Hispanics, including

Defendant, in an attempt to discover illegal immigrants, enforce federal immigration

laws, and thereby obtain money from a federal grant program called Stonegarden.

The district court gave the parties ample opportunity to brief and orally argue the

issue, even allowing the American Civil Liberties Union of New Mexico to file an

amicus brief, and wrote a thorough and well-reasoned order denying Defendant’s

motion to suppress.

      Defendant makes two arguments on appeal. He argues he was a victim of

selective law enforcement in violation of the Equal Protection Clause and that he was

detained in his house in violation of the Fourth Amendment. When we review the

denial of a motion to suppress, “we accept the factual findings of the district court

unless they are clearly erroneous. The ultimate determination of reasonableness

under the Fourth Amendment is a question of law, which we review de novo.”

United States v. Albert, 

, 1193 (10th Cir. 2009). We address each of

Defendant’s arguments in turn.

      “[T]he Constitution prohibits selective enforcement of the law based on

considerations such as race.” Whren v. United States, 

, 813 (1996).

Those seeking to establish an equal protection claim based on selective law

enforcement face a high burden: they must dispel the presumption that a law

enforcement official has not violated the Equal Protection Clause with “clear

evidence to the contrary.” United States v. Armstrong, 

, 465 (1996).

                                         2
Evidence that an officer’s actions had a discriminatory effect and were motivated by

a discriminatory purpose is necessary. Marshall v. Columbia Lea Regional Hosp.,

, 1168 (10th Cir. 2003). Though the discriminatory purpose need not

be the only purpose, it “must be a motivating factor in the decision.” Villanueva v.

Carere, 

, 485 (10th Cir. 1996).

      The district court thoroughly analyzed Defendant’s equal protection argument

and concluded Defendant failed to show discriminatory effect or purpose. The

evidence clearly demonstrated that Captain Eduardo Medrano visited the house

where Defendant resided to check on the welfare of children whose baby brother was

a probable victim of child abuse. Medrano was unaware of Defendant’s race when

he arrived. After communicating with Deputy Kenneth Figueroa, who was with the

victim and his mother, Medrano learned Defendant had given him a false name and

was likely a deported felon. When Medrano asked Defendant about his identity,

Defendant acknowledged his true name and explained he was a deported felon.

Medrano then arrested Defendant for concealing his identity in violation of N.M.

Stat. Ann. § 30-22-3. He later testified he arrested Defendant rather than merely

issue him a citation because he had discretion to do so and wanted to be sure

Defendant was available during the child abuse investigation. As the district court

concluded, none of these facts reveal a discriminatory purpose or effect.

      Defendant next claims he was detained in his home in violation of his Fourth

Amendment rights. As the district court concluded, however, Defendant’s entire pre-

                                         3
arrest encounter with Medrano was consensual. “Consensual encounters do not

implicate the Fourth Amendment.” United States v. Reeves, 

, 1166

(10th Cir. 2008). A “seizure” occurs when an officer, “by means of physical force

or show of authority, . . . in some way restrain[s] the liberty of a citizen.” United

States v. Zapata, 

, 756 (10th Cir. 1993) (quoting Florida v. Bostick, 

, 434 (1991)). A “knock and talk,” on the other hand, “is a consensual

encounter and therefore does not contravene the Fourth Amendment, even absent

reasonable suspicion.” United States v. Cruz-Mendez, 

, 1264 (10th

Cir. 2006).

      In this case, Medrano knocked on Defendant’s door slightly before 6 a.m., and

Defendant answered. Medrano did not yell, declare he was a police officer, brandish

a weapon or flashlight, or pound loudly on the door for a long period of time. See

–1165. When Medrano explained he had come to check on

the welfare of the two children in the residence, Defendant admitted him, and he

talked with the children. The evidence does not indicate that this was anything other

than a “knock and talk,” and Defendant voluntarily responded to questions about his

name and volunteered information about his status as a previously deported felon.

See 

–1265 (discussing a “knock and talk” and

explaining its consensual nature). Given the totality of the circumstances, we agree

with the district court that the encounter was consensual. See 

–57.

                                         4
      Because Defendant provided no evidence of discriminatory effect or purpose,

and because Medrano’s encounter with Defendant was consensual, the district court

did not err in denying Defendant’s motion to suppress. AFFIRMED.



                                     Entered for the Court,



                                     Bobby R. Baldock
                                     United States Circuit Judge




                                       5