2 
The Eighth Circuit did not require the officers to confirm

the alien was in the country illegally.


       2
        See also United States v. Spencer, 646 F. App’x 6, 9 (2d Cir. 2016) (holding agents
had sufficient reasonable suspicion of alien’s criminal conduct “based on their independent
review of his immigration file and immigration databases” and corroborating an
anonymous tip by personally observing “a man fitting [the defendant’s] description
driving” the target vehicle “shortly before the stop”); United States v. Salas-Avalos, 
459 F.


                                             12
       Finally, we agree with the district court that Holmes’ identification of Rosario from

a comparison of photographs and from his first-hand surveillance was sufficient. To be

sure, there are more advanced and sophisticated identification tools than visual photograph

comparisons. But we know of no authority, and indeed Santiago points us to none, that

indicates the use of such techniques is required to justify a Terry stop. To reiterate what

the district court properly explained, the officers needed only a reasonable suspicion of

criminal activity, not proof beyond a reasonable doubt.



                                             IV.

       According to our colleague in dissent, the traffic stop is akin to, if not worse than,

stopping an individual based solely on prior criminal history. We disagree. Our decision

today does not conflict with the general principle that a criminal record, standing alone, is

insufficient to create reasonable suspicion. Far from that, Rosario was suspected of the

current crime of reentering the United States illegally after a prior deportation. Through his

investigation, Holmes confirmed Rosario’s prior deportation. While prior deportation is

not itself a crime, it is one of the two elements of the suspected crime. As to the second

element, his illegal reentry, Holmes had evidence that Rosario had reentered. All he lacked




App’x 318, 320 (5th Cir. 2012) (holding that law enforcement had reasonable suspicion
“to detain the [target] vehicle at least long enough to identify its occupants” when the
agents could link defendant’s home address “with a telephone number that was used in an
alien smuggling scheme,” and the agents were on the lookout for a truck “believed to be
used in alien smuggling,” which later arrived at defendant’s residence and “shortly after
stopped and discharged four to six passengers”).


                                             13
was confirmation that Rosario had not legally reentered. But on that issue, Holmes testified

that his suspicion that Rosario was in the country illegally arose from his communication

with ICE Agent Olcott following Olcott’s review of the ICE database. Although Holmes

did not specifically testify that he confirmed Rosario had no legal status, it was reasonable

for Holmes to infer that if Rosario was legally in the United States, such information would

have been contained in the ICE database and Olcott would have indicated to Homes that

Rosario was authorized to be in the United States. Requiring further investigation into

whether Rosario had entered legally under this record would be tantamount to requiring

officers rule out the possibility of innocence. The Supreme Court’s recent Glover decision

makes clear that is not required. Holmes had more than enough evidence to satisfy the

standard that is required—that there was a reasonable suspicion of criminal activity.



                                          V.

       For the foregoing reasons, the judgment of the district court is hereby

                                                                                 AFFIRMED.




                                             14
WYNN, Circuit Judge, dissenting:

       The Fourth Amendment requires officers to have a reasonable suspicion that

criminal activity is afoot before they stop a car.

       Here, law enforcement officers in West Virginia stopped four men carpooling to

work, contending that one of the men, Javier Rosario-Azamar, had violated 8 U.S.C. §

1326(a), which requires proof of two elements: a previous deportation and an illegal

reentry. But the officers only knew that Rosario-Azamar had previously been deported

which satisfied the first element but not the second element because simply being in the

United States after a previous deportation is not a crime. In short, the officers’ reasonable

suspicion determination rested on the single inference that the mere presence of a

previously deported person in the United States shows illegal reentry. That’s not the law.

Accordingly, I respectfully dissent.

                                           I.

       The events leading to the stop began when Diplomatic Security Service Agent

Holmes and Immigration and Customs Enforcement (ICE) Officer Olcott were searching

for Daniel Domingo Perez and Juan Carlos De Leon Zanas for violating immigration laws. 1

The search led the officers to a house at 901 Tiano Lane in Clarksburg, West Virginia

where they suspected they could find Perez and Zanas. After running the address through


       1
         The majority opinion notes that Perez and Zanas were “persons of interest in a
previous local kidnapping incident.” Majority Op. at 3. To be clear, the district court’s
findings of fact stressed that “Defendant [Santiago-Francisco] has not been associated with
any of these [kidnapping] allegations in any way whatsoever.” J.A. 168.


                                                15
an ICE database, Olcott sent Holmes emails that contained photographs of two men staying

at the house, Mateo Delunas and Javier Rosario-Azamar, and noted they had past

“immigration encounters.” 2 J.A. 70. Based only on this past immigration information from

Olcott, with no information about Rosario-Azamar’s current immigration status, Holmes

believed that Rosario-Azamar illegally reentered the country, in violation of 8 U.S.C. §

1326(a). Through subsequent surveillance, the officers connected Rosario-Azamar and the

others at the house to a local Mexican restaurant where they worked, and to a gold Toyota

Camry that they used to carpool.

       On the morning of December 12, 2018, Holmes arranged for local police to stop the

Camry on its way to the restaurant. Staking out the house, Holmes identified Rosario-

Azamar and saw him, along with three other men, get into the Camry to go to work. Holmes

then called the local police, who were lying in wait, and they initiated the stop. At the time

of the stop, the officers had not observed any traffic violations and only stopped the vehicle

because Holmes instructed them to. The officers believed the stop “had something to do

with illegal immigration,” J.A. 46-47, and “there were illegal immigrants in the vehicle,”

J.A. 60. The officers told the men to get out of the car, and among them were Rosario-

Azamar and Defendant Santiago-Francisco.




       2
         The majority opinion describes Olcott as “learn[ing] that there were two other
individuals associated with that address who were also suspected of immigration
violations.” Majority Op. at 3. The district court’s findings of fact describe Olcott as
sending Holmes “two names of individuals with prior immigration encounters.” J.A. 169.

                                             16
       Subsequently, officers Mirandized the four men and took them to a local police

station. At the station, Santiago-Francisco gave officers permission to search 901 Tiano

Lane in order to bring him his immigration paperwork. During their search, the officers

found a counterfeit green card and a counterfeit Social Security card. Based on those

counterfeits, the Government indicted Santiago-Francisco for one count of fraud and

misuse of a document, 18 U.S.C. § 1546(a). Santiago-Francisco moved to suppress the

documents, challenging the legality of the traffic stop. The district court denied the motion

to suppress and this appeal followed.

                                               II.

       The Fourth Amendment allows a law enforcement officer to detain a person for a

brief investigatory stop if the officer “possess[es] ‘a reasonable, articulable suspicion that

criminal activity is afoot.’” United States v. Williams, 
808 F.3d 238
, 245 (4th Cir. 2015)

(quoting Illinois v. Wardlow, 
528 U.S. 119
, 123 (2000)). To have such a reasonable

suspicion, the officer “must be able to 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. 1
, 21 (1968). Thus, when a defendant challenges a stop, “it is the

government’s burden to articulate facts sufficient to support [a] reasonable suspicion.”

United States v. Burton, 
228 F.3d 524
, 528 (4th Cir. 2000) (emphasis added). When a

district court upholds a stop, this Court reviews the district court’s factual findings for clear

error and its legal conclusions—including whether the facts satisfy the constitutional

standard—de novo. United States v. Hylton, 
349 F.3d 781
, 785 (4th Cir. 2003).



                                               17
       Here, the district court’s findings of fact initially describe Rosario-Azamar as

“believed to have no legal status” and “believed to have reentered the country illegally.”

J.A. 169. The district court later summarily upgrades the officers’ beliefs to outright

knowledge, indicating Rosario-Azamar was “known by law enforcement to be in the

country illegally.” J.A. 174. 3 But neither the district court, nor the Government, nor the

majority here ever explain how either the officers’ “belief” or their “knowledge” follow

from the scant factual record, which only shows that Rosario-Azamar had previously been

deported. 4 This explanation is important because the reasonable suspicion inquiry is not

whether officers believed criminal activity was afoot, but why—a suspicion unsupported

by “specific and articulable facts” and “rational inferences” is not reasonable. 
Terry, 392

U.S. at 21 
(emphasis added).




       3
          The majority opinion quotes this same sentence from the district court opinion to
indicate that “the district court properly noted [that] Holmes’ suspicion of Rosario’s §
1326(a) violation was based on information from ICE Agent Olcott that Rosario was ‘in
the country illegally with a prior deportation in violation of federal law.’” Majority Op. at
11 (quoting J.A. 174). What the district court noted was: “Holmes had reasonable,
articulable suspicion to believe that Rosario-Azamar, who was known by law enforcement
to be in the country illegally with a prior deportation in violation of federal law, was in the
Toyota Camry.” J.A. 174.
       4
         The majority opinion notes that the district court also found that “Holmes testified
that he was aware of Rosario-Azamar’s criminal history prior to the traffic stop.” Majority
Op. at 6 (quoting J.A. 169) (emphasis added). This appears to be a reference to Rosario-
Azamar’s deportation history. Although immigration violations and crimes are sometimes
conflated, a “deportation history” is not a “criminal history” because deportation is a civil
proceeding. See Santos v. Frederick Cty. Bd. of Comm’rs, 
725 F.3d 451
, 467 (4th Cir.
2013) (“[T]he Supreme Court has long characterized deportation as a civil proceeding.”).
Holmes did not testify, nor did the Government otherwise present any evidence, that
Rosario-Azamar had a criminal record.

                                              18
       The Government asserts that the officers did not perform the traffic stop “merely

because Rosario-Azamar had a deportation history.” Response Br. at 11. Instead, the

Government argues that there were “sufficient facts” to support Holmes’s suspicion “that

Rosario-Azamar was in violation of 8 U.S.C. § 1326(a).”
 Id. As to what 
those “sufficient

facts” were, almost all of the Government’s contentions relate to Rosario-Azamar’s

physical appearance and the officers’ positive identification of him. See, e.g., Response Br.

at 13 (highlighting the “angle of [Rosario-Azamar’s] mustache”). But those facts do

nothing to link Rosario-Azamar to a violation of § 1326(a), and are thus irrelevant to the

reasonable suspicion analysis. See Florida v. J.L., 
529 U.S. 266
, 272 (2000) (merely

identifying a determinate person provides no basis to suspect illegal conduct). Rather, to

meet its burden, the Government must produce concrete facts suggesting that Rosario-

Azamar violated § 1326(a).

       While the Government emphasizes a litany of irrelevant points about physical

identification, discussed above, the Government musters virtually nothing relevant to §

1326(a). This is doubtless because, on appeal, the record before this Court contains

virtually nothing relevant to § 1326(a). At best, the record indicates Holmes made a few

vague statements during the suppression hearing about a prior deportation. Specifically,

Holmes testified that Olcott indicated Rosario-Azamar “had immigration encounters in the

past,” and a “prior immigration deportation history.” J.A. 70. At another point, on re-re

direct examination, Holmes explained that the information from Olcott, that is, the

“immigration history,” contained “[Rosario-Azamar’s] photograph, and . . . a short graphic



                                             19
that had some personal details about his immigration history.” J.A. 107. Holmes then

added, “[a]nd Gary Olcott and I had discussed it, that he was a previous deportee.” J.A.107.

       None of these facts tell us anything concrete about whether Rosario-Azamar

violated § 1326(a). Nor, across all of his testimony, did Holmes ever explain what a “prior

immigration deportation history” is. Nor did the Government produce any other evidence

on this point.

       Thus, when Holmes had local police officers stop the vehicle, he lacked any sound,

articulable facts explicitly linking Rosario-Azamar to a violation of § 1326(a), and instead

was armed only with the knowledge of Rosario-Azamar’s prior deportation. The entire

reasonable suspicion determination, therefore, rests on a single inference: that because a

person was previously deported, their presence in the United States suggests that they are

here improperly. 5

       But knowledge of a previous deportation alone cannot give officers reasonable

suspicion that an individual has illegally reentered the country. Deportation only indicates

that a person was non-compliant with immigration laws in the past. It does not bar an

individual from later reentering the United States legally. 6 In fact, the very statute that the


       5
        Tellingly, the Government summarily describes Holmes’s information not as an
“immigration history,” but instead as a “deportation history.” Response Br. at 12; see also
Response Br. at 6 (“Holmes knew Rosario-Azamar to be in the United States illegally
because of Rosario-Azamar’s prior deportations.”). Thus, the Government implicitly
concedes Holmes did not have anything more substantial.
       6
         See 8 U.S.C. § 1158(a)(1) (“Any alien who is physically present in the United
States or who arrives in the United States[,] . . . irrespective of such alien’s status, may
apply for asylum in accordance with this section . . . .”); 8 U.S.C. § 1231(b)(3)(A)

                                              20
officers suspected Rosario-Azamar was violating sets out how a person who has been

deported can legally reenter the country. 7 As such, the bare fact of being deported and then

found in the United States again is entirely indistinguishable from innocent behavior. It

follows that no reasonable officer could conclude that deportation alone suggests that

Rosario-Azamar was in violation of § 1326(a).

                                            III.

       The majority attempts to sidestep the conspicuous absence of any fact other than the

prior deportation (and thus the Government’s failure to carry its burden) by stating that

Holmes was not required to rule out the possibility that Rosario-Azamar had legally

reentered the country. But the majority looks high when it should look low. An officer of




(explaining that the Attorney General may not remove an alien to a another country if the
alien’s life or freedom would be threatened on account of a protected ground there); 8
U.S.C. § 1182(d)(5)(A) (“[T]he Attorney General may . . . parole into the United States
temporarily under such conditions as he may prescribe . . . any alien . . . .”).
       7
        8 U.S.C. § 1326(a) provides:
              (a) In general
              Subject to subsection (b), any alien who—
              (1) has been denied admission, excluded, deported, or removed
              or has departed the United States while an order of exclusion,
              deportation, or removal is outstanding, and thereafter
              (2) enters, attempts to enter, or is at any time found in, the
              United States, unless (A) prior to his reembarkation at a place
              outside the United States or his application for admission from
              foreign contiguous territory, the Attorney General has
              expressly consented to such alien’s reapplying for admission;
              or (B) with respect to an alien previously denied admission and
              removed, unless such alien shall establish that he was not
              required to obtain such advance consent under this chapter or
              any prior Act,
      shall be fined under title 18, or imprisoned not more than 2 years, or both.
                                             21
course does not need to rule out all possibility of innocence. However, that observation is

irrelevant to the question of whether officers had a reasonable suspicion and therefore

cleared the constitutional minimum requirement for a stop. Without investigation into

Rosario-Azamar’s current immigration status, the previous deportation alone provided no

information regarding any ongoing wrongdoing. Therefore, Holmes’s failure to further

investigate Rosario-Azamar’s current immigration status is of pivotal importance: without

it there is no indication of criminal activity that would justify the stop.

       Although the majority argues that Santos v. Frederick County Board of

Commissioners, 
725 F.3d 451 
(4th Cir. 2013), does not control the outcome of this case,

Santos speaks directly to the issue here. In Santos, two Maryland deputy sheriffs

approached Roxana Santos while she was sitting outside her place of work, eating a

morning sandwich, and asked for identification.
 Id. at 457-58. 
She provided the deputies

with her El Salvadoran national identification card and they discovered that she had an

outstanding ICE warrant for deportation.
 Id. at 458. 
Before receiving confirmation that the

warrant was still active, and without determining whether the warrant was civil or criminal,

the officers indicated to Santos that she was not free to leave, thus seizing her for the

purposes of the Fourth Amendment.
 Id. at 458, 462. 
In that case, because the warrant turned

out to be a civil warrant, and the state law enforcement officers had no authority to detain

or arrest individuals based solely on a suspected civil violation of federal immigration law,

we held the officers violated Santos’s rights.
 Id. at 465.
       Of course, as the majority points out, Holmes (a federal agent) suspected Rosario-

Azamar of a criminal immigration offense (rather than the civil immigration offense at

                                              22
issue in Santos). But that distinction is immaterial here because in Santos we went on to

reiterate the principle that, “because law enforcement officers, not detainees, are

responsible for identifying evidence justifying a seizure[,] . . . . when affirmative evidence

does not justify a seizure, the seizure violates the Fourth Amendment.”
 Id. at 467. 
Thus,

we explained that even if the record had been silent as to whether the warrant was criminal

or civil, the seizure would have been unconstitutional. See
 id. “[I]t was the 
deputies’

responsibility to determine whether the warrant was for a criminal or civil immigration

violation before seizing Santos.”
 Id.

       Ultimately, the inquiry 
here is the same as the inquiry in Santos: did the information

available to the officers at the time of the stop support a specific and reasonable inference

of ongoing criminal activity by Rosario-Azamar? Holmes had no indication that Rosario-

Azamar was currently violating any laws. All he had was the outcome of a past civil

proceeding. Just as the deputies in Santos failed to investigate their warrant, Holmes failed

to investigate Rosario-Azamar’s current status, which would have told him something

about whether Rosario-Azamar was in the United States illegally. Without such

investigation, there is no indication that Rosario-Azamar was committing any crime by

being in the United States. Therefore, the stop here was unlawful for the same reasons as

in Santos.

       Moreover, setting aside the majority’s attempt to distinguish Santos, the other cases

the majority cites as affirmatively supporting its conclusion do not support that conclusion.

Rather, examining those cases highlights the Government’s failure here to identify

articulable facts to justify the stop and carry its burden.

                                              23
       First, the majority erroneously concludes that United States v. Lopez-Tubac, 
943

F.3d 1156 
(8th Cir. 2019), is consistent with this case. In Lopez-Tubac, an ICE officer had

a reasonable suspicion an individual was illegally in the United States where the officer

knew, among other things, that the individual had been recently arrested while driving a

car that was registered in another person’s name, which, according to the ICE officer, was

a “common tactic of individuals who illegally reenter the United States.”
 Id. Here, there is
no evidence Rosario-Azamar had been arrested while driving someone else’s car, nor was

there any testimony at the suppression hearing linking any of Rosario-Azamar’s observed

behaviors to illegal reentry.

       Next, the majority errs in citing United States v. Spencer, 646 F. App’x 6 (2d Cir.

2016) (unpublished summary order). In Spencer, the Second Circuit noted that an ICE

officer’s reasonable suspicion of illegal reentry was supported by his review of the

suspect’s immigration file and immigration databases.
 Id. at 8–9. 
Of course, the transcript

of the suppression hearing in that case included the following exchange between the

government attorney and the investigating ICE officer:

       Q. Did you have an opportunity to review the paperwork contained in his
       immigration file?
       A. Yes.
       Q. And based upon your investigation, were you able to make any
       determination about his legal status?
       A. Yes.
       Q. And what was that?
       A. He has no status in the United States at this time.
       Q. Did you observe any removal or deportation paperwork in his alien file?
       A. Yes.

United States v. Spencer, 6:13-cr-06027, ECF No. 33, Tr. 41:2-12 (W.D.N.Y. 2014).


                                            24
       So, the officer in Spencer knew that the suspect had a previous deportation and no

present legal status, and the government established each of these facts individually rather

than inferring that a past deportation implies no present legal status. Accordingly, whether

the officer in Spencer made an unreasonable assumption of present criminal activity based

solely on deportation history was not before the Second Circuit. Moreover, the line of

questioning in Spencer also suggests that, in the underlying investigation, the ICE officer

even determined the suspect’s legal status separately from confirming a prior deportation,

which further supports that the Government in this case only carried half of its evidentiary

burden. For comparison, here is the same line of questioning between the Government’s

attorney and Holmes:

       Q. Okay. Mr. Azamar is a Mexican national?
       A. Yes.
       Q. And did he have a prior immigration deportation history?
       A. Yes, he did.
       Q. So he had previously been deported?
       A. Yes, he was.
       Q. And you learned that information from Officer Olcott?
       A. Yes, I did.
       Q. Okay. And if Mr. Rosario-Azamar was in the United States, would that
       have any kind of legal implications?
       A. It would be a violation of 8 U.S.C. 1326, illegal reentry, which is a felony.

J.A. 70-71.

       Finally, the majority cites United States v. Salas-Avalos, 459 F. App’x 318 (5th Cir.

2012), which has almost nothing in common with this case. The defendant in Salas-Avalos

was an alien who challenged a vehicle stop, but that is where the similarity with this case

ends. To begin, the ICE agents in Salas-Avalos had linked the defendant’s residence “with

a telephone number that was used in an alien smuggling scheme.”
 Id. at 320. 
And, unlike

                                             25
the gold Toyota Camry in this case, which Holmes and Olcott had observed Rosario-

Azamar and others using to carpool to work at a restaurant, the automobile in Salas-Avalos

had been pulled over and found carrying two undocumented aliens a day prior to the

challenged stop.
 Id. And on the 
day of the stop, the ICE agents saw the truck, recognized

the driver, and watched the truck stop at defendant’s residence and later “discharge[] four

to six passengers.”
 Id. On those facts—none 
of which remotely resemble the facts in the

record before us—it is unsurprising that the Fifth Circuit held that it was reasonable to stop

the truck.

                                              IV.

       Rather than support the majority’s position, our precedent instead shows the dangers

of using a prior deportation to support “reasonable” suspicion. This Court has broadly held

that, in most instances, “[a] prior criminal record is not, standing alone, sufficient to create

reasonable suspicion.” United States v. Powell, 
666 F.3d 180
, 188 (4th Cir. 2011) (quoting

United States v. Foster, 
634 F.3d 243 
246-47 (4th Cir. 2011)) (alteration in original). This

is for good reason. “If the law were otherwise, any person with any sort of criminal record

. . . could be subjected to [an] investigative stop by a law enforcement officer at any time

without the need for any other justification at all.”
 Id. (quoting United States 
v. Laughrin,

438 F.3d 1245
, 1247 (10th Cir. 2006)) (alteration in original).

       That is what happened here. When the officers stopped Rosario-Azamar, they had

no concrete facts connecting him to any ongoing immigration violation. They simply knew

that he had been deported in the past and, from that single fact, concluded that he had



                                              26
returned to the country illegally. The Government relies on that thin reed to carry its case,

but it is not enough.

       Moreover, the problem here is even more acute than in the traditional case where

officers make unfounded assumptions based on criminal histories because deportation is a

civil proceeding. If we may not permit officers to conduct warrantless stops simply because

an individual has a criminal record, see 
Powell, 666 F.3d at 188
, then surely we may not

permit officers to stop anyone with a civil deportation record. Indeed, if a deportation

history alone justifies stopping an individual, then there is nothing that person can do to

avoid being stopped. Rather, under the majority’s reasoning, individuals may be subject to

suspicionless stops for the rest of their lives simply because they were once subject to a

civil deportation order. That troubling result is why the Fourth Amendment requires a

particularized factual basis giving rise to a reasonable suspicion of ongoing criminal

activity with respect to an individual. The facts of this case simply do not meet that

standard, and therefore I must dissent.




                                             27