I. STATEMENT OF JURISDICTION
The District Court has "original jurisdiction" over "all offenses against the laws of the United States" under 18 U.S.C.
§ 3231. This Court has jurisdiction over Mr. XXX's appeal pursuant to l8 U.S.C. § 3731.
The District Court denied in part the motion to suppress on January 4, 1996. Excerpts of Record ("E.R.") at 153-55; Criminal Record ("C.R.") at 31. Mr. XXX filed a timely Notice of Appeal on November 4, 1996. E.R. at 156; C.R. at 48.
II. QUESTIONS PRESENTED
A. Whether the District Court erred by refusing to determine whether Immigration and Naturalization Service ("INS")
agents egregiously violated Mr. XXX's Fourth Amendment rights by unconstitutionally entering his home and/or by
seizing him based upon his race or ethnicity.
B. Whether the egregious violation(s) of Mr. XXX's Fourth Amendment rights supports suppression of Mr. XXX's
identity for the purposes of the instant prosecution for illegal reentry after deportation.
III. STATEMENT OF THE CASE
A. Summary of Proceedings in the District Court
On July 31, 1995, the grand jury returned an indictment against Mr. XXX for illegal reentry after deportation in violation of 8 U.S.C. § 1326(b)(1). On September 13, 1995, Mr. XXX filed a motion to suppress all evidence discovered pursuant to the search of his home and seizure of his person on July 17, 1995. On January 4, 1996, the District Court granted the motion in part and denied the motion in part. E.R. at 153-155; C.R. at 31. On March 12, 1996, Mr. XXX entered a conditional plea. Mr. XXX filed a timely Notice of Appeal on November 4, 1996. E.R. at 156; C.R. at 48.
B. Bail Status of Defendant
Appellant has been detained since his arrest on July 17, 1995. Undersigned counsel believes that he was deported to Mexico on approximately January 9, 1997.
C. Statement of the Facts
On July 17, 1995, at approximately 6:00 a.m., two agents of the Immigration and Naturalization Service ("INS") arrived at the front door of 166 San Carlos Street, a multiple-family dwelling in San Francisco's Mission District. The agents intended to locate and interview an individual named Nicandro Vasquez pursuant to a fraud referral from the California Department of Motor Vehicles ("DMV"), but had not secured a warrant to search the residence. E.R. at 12. Reporter's Transcript ("R.T.") 11/14/95 at 19. The DMV referral requested that the INS determine whether or not Mr. Vasquez had fraudulently represented his immigration status in a pending application for a California driver's license.
1. Entry Into Mr. XXX's Home
Although the agents carried with them a file of information regarding Mr. Vasquez, they did not review it for any details regarding their target's physical appearance. See E.R. at 45-46; R.T. 11/20/95 at 43-44. Instead, as they approached 166 San Carlos Street that morning, the only information that the agents had reviewed in preparation for their search for Mr. Vasquez was the DMV applicant's date of birth. The date of birth indicated that Mr. Vasquez was born in 1947, reflecting a man of approximately forty-eight (48) years. Mr. XXX, the defendant-appellant, was a twenty-six (26) year old man on the day of search and seizure at issue in this appeal.
Special Agents An and Spada knocked on the door of the home and a woman opened the door partially. E.R. at 86; R.T. 11/20/95 at 84-85. According to Agent An's testimony, he then explained their presence at the home, identified himself as "police," and requested her consent to enter. E.R. at 91-92; R.T. 11/20/95 at 89-90. Agent An testified that she motioned him in with one hand. Id.
The District Court did not accept Agent An's version of events and found that the agents had entered the home with neither valid consent nor exigent circumstances. See E.R. at 153; C.R. at 31. The District Court found Agent An's testimony to be rife with inconsistencies. E.R. at 138; R.T. 11/20/95 at 136; E.R. at 153-155; C.R. at 31. Among the inconsistencies was Agent An's contention that he clearly recalled the woman motioning him in with her left hand -- a fact totally at odds with the position and swing of the door. E.R. at 105-107; R.T. 11/20/95 at 103-105. Similarly, in light of Agent An's difficulties with the English language and his inability to speak even basic Spanish, the District Court did not credit his testimony that the Spanish-speaking woman had appeared to understand him. E.R. at 138; R.T. 11/20/95 at 136.
2. The Seizure of Mr. XXX
The agents then went room-to-room demanding the identification of each person whom they encountered. At that moment, Mr. XXX was asleep with his wife and infant child in the last room, his apartment.
Agent An knocked on the door to the apartment/room and, when Mr. XXX's wife answered, Agent An stepped inside. E.R. at 113-115; R.T. 11/20/95 at 111-113. Agent An then laid eyes on Mr. XXX for the first time. Although Mr. XXX did not remotely match the age of the DMV referral target, Agent An demanded to see Mr. XXX's identification. Agent An knew that Mr. XXX was not the man for whom he was searching. E.R. at 47-49; R.T. 11/20/95 at 45. Upon the latter's inability to produce any such identification, Agent An arrested him.
During the evidentiary hearing on the motion to suppress, Agent An testified that Mr. XXX had volunteered certain facts before the arrest. Concretely, Agent An testified that Mr. XXX had observed in English "I'm Mexican," E.R. at 30; R.T. 11/14/95 at 37, and further blurted "[o]h, by the way, someone told me if I come back one year after deportation there should be no problem." E.R. at 39; R.T. 11/14/95 at 39. The District Court found that Agent An's testimony was not credible on these key points. See E.R. at 139; R.T. 11/20/85 at 137.
3. The Prosecution and Motion to Suppress
While questioning Mr. XXX in custody at the INS, the agents determined his identity and consequently located his file. The file established that Mr. XXX had previously been deported from the United States and had suffered a felony conviction prior to his deportation. As a result of this "investigation," the United States charged Mr. XXX for illegal reentry after deportation in violation of 8 U.S.C. § 1326(b)(1).
Mr. XXX filed a motion to suppress all evidence obtained as a result of the egregious violation(s) of his Fourth Amendment right to be secure against unreasonable searches and seizures. The motion to suppress challenged not only (1) the statements (which Agent An attributed to Mr. XXX, but the District Court questioned) and (2) the physical evidence seized from his home, but also (3) the "discovery" of Mr. XXX's identity and (4) the consequent "discovery" of the INS file identifying him as an illegal alien.
Mr. XXX, through undersigned counsel, indicated throughout the proceedings below that he would stipulate to civil deportation to prevent an ongoing violation of law. Nevertheless, he urged the District Court to redress the egregiously unconstitutional misconduct of the INS agents in his criminal case. (1)
4. The District Court's Order
After the evidentiary hearing and supplemental briefing, the District Court found: "(1) that the INS did not obtain proper consent before entering the defendant's home; and (2) that the defendant was unlawfully seized at the time that Special Agent An entered the defendant's bedroom." E.R. at 153; C.R. at 31. Based upon these findings, the court granted Mr. XXX's motion in part suppressing any statements made by Mr. XXX and all physical evidence seized at the time of his arrest. E.R. at 153; C.R. at 131. Id. The District Court, however, refused to make any finding as to whether the conduct of the INS agents should be deemed egregious reasoning that, as a matter of law, identity could not be suppressed. Based on this reasoning, the court denied Mr. XXX's motion to suppress his identity and the INS file. E.R. at 153; C.R. at 31.
IV. ARGUMENT
The District Court concluded that it was precluded -- as a matter of law -- from determining whether the unconstitutional conduct of the INS agents should be characterized as "egregious." This erroneous conclusion prevented the Court from ruling, as it should have, that: (1) the unconstitutional conduct of the INS agents was egregious rather than merely unlawful; and (2) this egregious conduct supported suppression of Mr. XXX's identity and INS file. Mr. XXX respectfully requests that this Court redress the egregious constitutional violations by suppressing all evidence thereby obtained -- including his identity.
As discussed below, INS agents unconstitutionally invaded Mr. XXX's home and, furthermore, seized him based solely upon his Hispanic appearance. Both of these examples of official misconduct warrant the remedy requested -- the only meaningful remedy available. In particular, the seizure of his person -- based purely on the defendant-appellant's race/ethnicity -- falls squarely in the category of per seegregious violations of the Fourth Amendment. See Section IV-B-2, infra.
A. Standards of Review
The District Court's refusal to make any determination as to whether the unlawful conduct of the INS was egregious was based on an erroneous legal conclusion. Therefore, this issue presents a question of law, which is reviewed de novo. United States v. Golb, 69 F.3d 1417, 1426 (9th Cir. 1995), cert. denied, 116 S.Ct. 1369 (1996).
The question of whether the identity of a defendant may be excluded in the case of an egregious Fourth Amendment violation presents a question of law as well, and it is also subject to de novo review. Id.
B. The District Court Erred in Refusing to Make a
Determination as to Whether the Unlawful Conduct
of the INS Agents Was Egregious
The District Court's order suggests three reasons why it failed to make any determination as to whether the unlawful conduct of the INS agents in the instant case was egregious: (1) that courts generally do not inquire into the egregiousness of official misconduct in non-administrative proceedings; (2) that Mr. XXX's definition of "egregious" misconduct was improper; and (3) that, even if the misconduct were egregious, a criminal defendant's identity may never be suppressed. Each of these points is addressed in turn below.
1. Courts Routinely Inquire Into the Egregious Nature of Official Misconduct in Non-Administrative Proceedings
In its order, the District Court partially denied Mr. XXX's motion to suppress on the grounds that it was prevented from "inquir[ing] into the 'egregious' nature of the Fourth Amendment violations" since, as a general matter, such an inquiry is only conducted in administrative proceedings. See E.R. at 154; C.R. at 31. The court was correct that inquiry into the egregious nature of Fourth Amendment violations is properly conducted in administrative proceedings such as civil deportation hearings where egregious conduct may result in the exclusion of evidence that would not be suppressed as a result of conduct that was merely unlawful. See, e.g., I.N.S. v. López-Mendoza, 468 U.S. 1032, 1050-51 (1984) (dicta); Orhorhaghe v. I.N.S., 38 F.3d 488, 492-505 (9th Cir. 1994); Gonzalez-Rivera v. I.N.S., 22 F.3d 1441, 1448-52 (9th Cir. 1994). However, the administrative context is not the only context in which such an inquiry is properly conducted. Courts also routinely inquire into the egregious nature of official misconduct in the criminal context.
The Supreme Court, for example, has held that "purpose and flagrancy of the official misconduct" is a particularly relevant factor for determining, in the criminal context, whether a Fourth Amendment violation was sufficiently "attenuated" from an otherwise uncoerced confession. Brown v. Illinois, 422 U.S. 590, 604 (1975). Under the doctrine of "attenuation," such a confession may be admissible notwithstanding the fact that it followed an unconstitutional search or seizure. If, however, the unconstitutional official misconduct was "egregious," then the otherwise admissible confession must nevertheless be suppressed. See, e.g., United States v. Wellins, 654 F.2d 550, 556 n.11 (9th Cir. 1981); (2) accord United States v. Perez-Esparanza, 609 F.2d 1284, 1287 n.2 (9th Cir. 1979); United States v. Duncan, 570 F.2d 292, 293 (9th Cir. 1978).
Likewise, in Arizona v. Fulminante, 499 U.S. 279 (1991), the Supreme Court addressed government misconduct in obtaining a jailhouse confession by manipulating "a credible threat of physical violence." In that case, the Supreme Court characterized the official misconduct as "egregious," id. at 311 (Rehnquist, C.J., delivering the opinion of the court in part), and, based upon this finding, the suppressed the questioned conduct under the due process clause, even though the confession would not have been suppressed under the Sixth Amendment or the self-incrimination clause of the Fifth Amendment. See id. at 287-88 (White, J., delivering the opinion of the court in part).
In fact, in myriad other areas of criminal as well as civil law, the Supreme Court has determined that extraordinary remedies may be appropriate where the conduct at issue was not merely unlawful but "egregious." See, e.g., Albright v. Oliver, 114 S. Ct. 807, 811 n.4 ("the challenged conduct must [under a § 1983 civil rights action] be 'so egregious that it violated substantive or procedural due process under the Fourteenth Amendment'")(internal citation omitted); Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 n.9 (1993) ("in an unusual case, a deliberate and especially egregious error of the trial type . . . might so infect the integrity of the proceeding as to warrant the grant of habeas relief"); Mathews v. United States, 485 U.S. 58, 67 (1988) (Brennan, J., concurring) ("some governmental misconduct [in entrapment] might be sufficiently egregious to violate due process"); United States v. Stanley, 43 U.S. 669, 681 (1987) ("allowing, for example, [Bivens] suits for officer conduct so egregious that no responsible officer would feel exposed to suit in the performance of his duties"); Murray v. Carrier, 477 U.S. 478, 496 (1986) ("[T]he right to effective assistance of counsel . . . may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial."); Moran v. Burbine, 475 U.S. 412, 432 (1986) ("We do not question that on facts more egregious than those presented here police deception [interfering with the right to counsel] might rise to a level of a due process violation."); Smith v. Wade, 461 U.S. 30, 49 (1983) ("[D]eterrence of future egregious conduct is a primary purpose of both § 1983 . . . and of punitive damages."); Fisher v. United States, 328 U.S. 463, 476 (1946) ("Our policy is not to interfere with the local rules of law which [the courts of the District of Columbia] fashion, save in exceptional circumstances where egregious error has been committed.").
These cases demonstrate that, in criminal as well as administrative proceedings, egregious misconduct may warrant an extraordinary remedy that would not be appropriate to remedy conduct that is merely unlawful. Accordingly, the District Court erred to the extent that it based its partial denial of Mr. XXX's motion to suppress on the theory that it was legally precluded from inquiring into the egregiousness of unconstitutional official misconduct in non-administrative proceedings.
2. The Ninth Circuit Has Developed the Controlling Definition for Egregious Official Misconduct
a. The Disjunctive Test Under Adamson v. C.I.R.
In explaining its failure to inquire into the egregious nature of the official misconduct in the instant case, the District Court further opined that "were the Court to accept defendant's broad-brush definition of 'egregious,' the proposed exception would swallow the rule." E.R. at 154; C.R. at 31. The defendant-appellant's definition, however, tracked the law of the Supreme Court and of this Circuit regarding "egregious" misconduct. As discussed below, the category of "egregious" violations identified by the Supreme Court in López-Mendoza and developed by this Circuit in Adamson v. C.I.R.should, at a minimum, encompass the type of knowing and willful violations of law committed by Special Agent An.
In Adamson v. C.I.R., 745 F.2d 541 (9th Cir. 1984), the Ninth Circuit interpreted the concept of "egregious" Fourth Amendment violations based upon an exception to the exclusionary rule identified by the Supreme Court in López-Mendoza, 468 U.S. 1032 (1984). In López-Mendoza, the Supreme Court had recognized that, as a general matter, the exclusionary rule does not apply in civil deportation hearings, but that this general statement of law does not address "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." 468 U.S. 1032, 1050-51 (1984) (citing Rochin v. California, 342 U.S. 165 (1952)).
In interpreting the Supreme Court's reference to egregious misconduct, the Ninth Circuit explained that "López-Mendoza Court's citation to Rochin was [not] meant to limit 'egregious violations' to those of physical brutality." Adamson, 745 F.2d at 545 n.1. Instead, under Ninth Circuit law, all bad faith violations of an individual's Fourth Amendment rights are considered sufficiently egregious to "require[] application of the exclusionary sanction in a civil . . . proceeding." Id. at 545.
The court in Adamson then articulated a disjunctive test for determining whether a Fourth Amendment violation was egregious. Under the Adamson test, an egregious violation occurs "[w]hen evidence is obtained by deliberate violations of the fourth amendment, or by conduct a reasonable officer should know is in violation of the Constitution." Id. (emphasis added). In these circumstances, the court opined, "the probative value of that evidence cannot outweigh the need for judicial sanction." Id.(emphasis added) (3)
b. By Definition, Egregious Misconduct Includes Official Conduct Based Upon Race/Ethnicity
Ten years after Adamson v. C.I.R., the Ninth Circuit further developed the definition of "egregious" misconduct. Gonzalez-Rivera v. I.N.S., 22 F.3d 1441 (9th Cir. 1994); Orhorhaghe v. I.N.S., 38 F.3d 488 (9th Cir. 1994). In these cases, the Ninth Circuit held that, under the Adamson test, Fourth Amendment violations based on the apparent race or ethnicity of the defendant constitute per se egregious misconduct. Agent An's seizure of Mr. XXX fits squarely within this clearly articulated and necessary rule of law.
In Gonzalez-Rivera, Border Patrol officers on a roving patrol on an interstate highway near San Diego stopped the car in which the defendant and his father were driving. 22 F.3d at 1443. The INS officer testified "that there was nothing wrong or suspicious about the car itself or the manner in which Gonzalez's father was driving." Id. Instead, the officer gave the following five reasons why he decided to stop the vehicle: "(1) Gonzalez and his father appeared to be Hispanic; (2) both of them sat-up straight and did not turn their heads to acknowledge the Border Patrol car; (3) Gonzalez' [sic] mouth appeared to be 'dry'; (4) Gonzalez was blinking; and (5) both men appeared to be nervous." Id.
The Ninth Circuit held that the fifth reason was not an articulable fact but a conclusion that appeared to be based on the four other factors, see id. at 1446, and that factors (2) through (4) either should have been disregarded as a matter of law or "strain[ed] credulity." See id. at 1446-47. After determining that the stop had violated the Fourth Amendment, the court then found that "the officers stopped Gonzalez solely because of his ethnicity." Id. at 1447. Stating that it "consider[s] reliance on the use of race or ethnicity as a shorthand for likely illegal conduct to be 'repugnant under any circumstances,'" id. at 1449 (citation omitted), and that "the officers should have known that their decision to stop Gonzalez based solely on his Hispanic appearance was unconstitutional," id. at 1450, the court applied Adamson to hold that the unlawful stop was a "bad faith" violation of the Fourth Amendment and therefore egregious. See id. at 1448-50. As a result, the Ninth Circuit reversed the deportation order and remanded to the BIA. See id. at 1452.
Similarly, in Orhorhaghe v. I.N.S., a bank employee who investigated credit card fraud came across the defendant's name and telephoned an acquaintance at the INS "'to verify' whether the individual in question was in the country legally." 38 F.3d at 491. After conducting a check of the INS computer system, which turned up no record of Mr. Orhorhaghe's lawful entry into the United States, the INS agent decided that "based upon his experience, Orhorhaghe 'was probably an alien, was probably Nigerian, and that he was probably illegally in the United States in the absence of anything to indicate that he was here legally.'" Id. Four armed INS agents then went to Mr. Orhorhaghe's apartment building and arrested him there after being let in by the building manager. Id. Prior to arresting him, the agents questioned Mr. Orhorhaghe as to his immigration status and examined his Nigerian passport after seeing it in plain view. Id. at 491-92.
After concluding that the seizure by the INS agents violated the Fourth Amendment, the court noted that the unlawful seizure "would never have occurred but for the fact that, to the INS and the Bank of America, 'Orhorhaghe' sounded like a Nigerian name." Id. The Court explained:
Law enforcement targeting of an individual based solely on superficial and subjective evidence of the subject's national
origin implicates two basic principles: the basic principle against legal proscriptions which result in arbitrary and
discriminatory enforcement of the law, as well as the basic principle against invidious classifications based on race or
national origin.
Id. at 504. Based on the determination that "[t]he agents targeted Orhorhaghe for investigation simply because he had a 'Nigerian-sounding name,'" id. at 503, the court "conclude[d] that egregious Fourth Amendment violations occurred." Id. at 504.
Thus, under clear Ninth Circuit law, an "egregious" Fourth Amendment violation exists where a government agent has engaged in any of the following kinds of misconduct: (1) a race-based constitutional violation; (2) a deliberate constitutional violation; or (3) conduct a reasonable officer should have known to be a constitutional violation. (4) This controlling definition was precisely that suggested by the defendant-appellant to the District Court.
For these reasons, the District Court erred by failing to inquire into the egregious nature of the Fourth Amendment violation on the ground that the Mr. XXX's motion to suppress offered an overly-broad definition of "egregiousness."
3. Suppression of a Defendant's Identity is not Precluded if the Official Misconduct is Egregious Rather Than Merely
Unlawful
The District Court ultimately concluded that it need not inquire as to the egregious misconduct of the INS agents in the instant case because "'the body or identity of a defendant . . . is never itself suppressible as a fruit of an unlawful arrest.'" E.R. at 154; C.R. at 31 (quoting López-Mendoza, 468 U.S. at 1039). This conclusion overlooked the crucial distinction articulated in López-Mendoza between unlawful and egregious Fourth Amendment violations.
The Supreme Court in López-Mendoza held that Fourth Amendment violations generally do not warrant the application of the exclusionary rule in civil deportation hearings. 468 U.S. at 1050. The Court, however, qualified this holding by suggesting that an "egregious" Fourth Amendment violation might warrant the exclusion of evidence from a civil deportation hearing. Id. at 1050-51. As explained above, the Ninth Circuit has implemented this distinction by applying the exclusionary rule in civil deportation hearings based upon egregious official misconduct. See Orhorhaghe, 38 F.3d at 505;Gonzalez-Rivera, 22 F.3d at 1452. Thus, the Supreme Court and the Ninth Circuit have clearly recognized two distinct levels of official misconduct: (1) unlawful conduct which does not warrant application of the exclusionary rule in administrative proceedings; and (2) egregious conduct which warrants the exclusion of evidence that would otherwise not be suppressed.
The Supreme Court in López-Mendoza did not address the issue of whether, in response to egregious rather than merely unlawful conduct, the identity of a defendant may ever be suppressed. (5) Accordingly, the holding in López-Mendoza regarding the propriety of suppressing the identity of a defendant discovered pursuant to unlawfulofficial misconduct does not dispose of the instant case which involves egregious conduct by the INS agents.
In addition to López-Mendoza, the District Court also cited two Ninth Circuit cases for its conclusion that a defendant's identity discovered pursuant to an unconstitutional arrest or search may never be suppressed. See E.R. at 154; C.R. at 31. The first case, United States v. Orozco-Rico, 589 F.2d 433 (9th Cir. 1978), cert. denied, 440 U.S. 967 (1979), was decided prior to López-Mendoza, Orhorhaghe and Gonzalez-Rivera. The second case, United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir.), cert. denied, 115 S. Ct. 451 (1994), was decided contemporaneously with those cases. However, in neither case did the defendant argue that the official misconduct was egregious and not merely unlawful.
For these reasons, neither case cited by the District Court addresses the issue raised in this appeal: whether the identity of a defendant discovered through egregiousmisconduct may be suppressed. On the contrary, the clear implication of the Supreme Court in López-Mendoza -- and the Ninth Circuit in Orhohaghe and Gonzalez-Rivera -- is that egregious official misconduct may warrant suppression of evidence, including identity, which would not suppressed upon a showing of merely unlawful official conduct. See López-Mendoza, 468 U.S. at 1050-51; Orhorhaghe, 38 F.3d at 492-93; Gonzalez-Rivera, 22 F.3d at 1448.
Thus, the District Court erred in ending its inquiry with the rule that the identity of a defendant may not be suppressed as
a result of unlawful official misconduct. That rule does not address Mr. XXX's central contention and, therefore, fails to
justify the District Court's reluctance to inquire rule upon the nature of the Fourth Amendment violations.
C. The Egregious Violation of Mr. XXX's
Fourth Amendment Rights Supports Exclusion of
His Identity.
Mr. XXX asks this Court to confirm the rule set forth above: that egregiously unconstitutional conduct by a state official
supports suppression of evidence of a person's identity in criminal proceedings. This result is consistent with both the
historical and contemporary jurisprudence of the exclusionary rule and is necessary to redress the urgent need for the
courts to prevent potentially widespread misconduct by government agencies like the INS.
1. The Exclusionary Rule Supports Suppression
of the Identity of a Defendant Discovered
Pursuant to An Egregious Fourth Amendment
Violation
When the Supreme Court established the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), its focus rested primarily on the integrity of the judicial system:
The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures
and enforced confessions . . . should find no sanction in the judgment of the courts, which are charged at all times with the
support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such
fundamental rights.
Id. at 392. As the rule developed, however, the focus of the exclusionary rule shifted toward deterrence of official misconduct. See, e.g., United States v. Calandra, 414 U.S. 338, 347 (1974) (the exclusionary rule's "prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of Fourth Amendment against unreasonable searches and seizures"). The proposition urged in this appeal -- that the exclusionary rule applies to identity in criminal proceedings to redress egregious Fourth Amendment violations -- is consistent with both the objective of judicial integrity and that of deterrence.
The greatest possible damage is inflicted upon the integrity of the judicial system where a criminal prosecution proceeds unhindered despite a finding of egregious official misconduct. Where, as in the instant case, the officer engages in a deliberate or race-based constitutional violation, or in conduct that a reasonable officer should have known to be a constitutional violation, the judicially-protected security against arbitrary intrusion by police "implicit in the concept of ordered liberty," is all the more offended. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
Similarly, deterrence becomes most effective -- and most needed -- where the official misconduct occurs due not to ignorance but rather to "bad faith." The future misconduct of an officer who deliberately acts even though s/he knows (or should have known) that her/his behavior is unconstitutional can best be deterred by a meaningful application of the exclusionary rule. This stands as precisely the opposite situation of an officer acting in good faith, where application of the exclusionary rule "could have no deterrent effect on a future Fourth Amendment violation by the officer." Illinois v. Krull, 480 U.S. 340, 349 (1987).
Recently, Supreme Court jurisprudence has focused on whether an officer acted in "good faith" in violating the Fourth Amendment. (6) This focus further supports the proposition that the opposite type of conduct, "bad faith" conduct, requires meaningful application of the exclusionary rule. The rationale of the Supreme Court in this new line of "good faith/bad faith" case law rests on the notion that "a deterrent effect was particularly absent when an officer, acting in objective good faith, obtained a search warrant from a magistrate and acted within its scope." Krull, 480 U.S. at 349 (citingLeon, 468 U.S. at 920-21). In contrast, the Court emphasized that the exclusionary rule must still apply where an officer acts in "bad faith: for example, by providing, through an affidavit, information that s/he "knew was false or would have known was false except for [her/]his reckless disregard of the truth." Leon, 468 U.S. at 923; accord Krull, 480 U.S. at 355.
This recent line of cases establishes that the exclusionary rule should reaches bad faith conduct by government agents and strongly suggests that bad faith conduct requires suppression of all evidence thereby obtained, including identity. Along these lines, some scholars have suggested that
[t]o rebalance the scales, a bad-faith category of Fourth Amendment violations should be established at the other end of
the spectrum from the good faith violations. The Fourth Amendment, according to this view, would consist of three types
of violations: good-faith violations that require no remedy, intermediate violations remedied by the current version of the
exclusionary rule, and bad-faith violations that require a broader, less constrained exclusionary rule.
George C. Thomas III & Barry S. Pollack, Balancing the Fourth Amendment Scales: The Bad-Faith "Exception" to Exclusionary Rule Limitations, 45 Hastings L.J. 21, 23 (1993). These recent developments in the jurisprudence of the exclusionary rule regarding the "good faith" of the officer -- no less than the rule's original purposes of maintaining judicial integrity and deterring future misbehavior -- support the result of suppressing the identity of a defendant discovered pursuant to an egregious Fourth Amendment violation.
2. Failure to Suppress the Identity of a Defendant Discovered Through an Egregious Fourth Amendment Violation Would
Constitute a Right Without a Remedy
Along with the Supreme Court's recent focus on "good faith," the Court has also been particularly concerned with the effectiveness of remedies. For example, in Leon, the Court stated that "[c]lose attention to . . . remedial objectives has characterized our recent decisions concerning the scope of the Fourth Amendment exclusionary rule." 468 U.S. at 908 (emphasis added). Similarly, in his separate opinion, Justice Stevens warned that:
[n]or should we so easily concede the existence of a constitutional violation for which there is no remedy. To do so is to
convert a Bill of Rights into an unenforced honor code that the police may follow in their discretion. The Constitution
requires more; it requires a remedy.
Id. at 978 (Stevens, J., concurring in part and dissenting in part) (emphasis in original). Likewise, in Krull, Justice O'Connor suggested that the inevitable result of the Court's "decision to deny the realistic possibility of an effective remedy . . . is that a chill will fall upon enforcement and development of Fourth Amendment principles." 480 U.S. at 369 (O'Connor, J., dissenting) (emphasis added).
In the instant case, denial of Mr. XXX's motion to suppress his identity for the purposes of his criminal prosecution would preclude any meaningful remedy for the egregious violation of his Fourth Amendment rights. Given the existence of an INS file confirming his identity as a deported alien, suppression of Mr. XXX's statements and physical evidence alone would provide no real remedy at all. Such an empty remedy falls far short of the dictate of the Supreme Court that the exclusionary rule should serve to restore the situation to that which would have prevailed if the Government "had itself obeyed the law." Harrison v. United States, 392 U.S. 219, 224 n.10 (1968). Under this dictate, an appropriate remedy for the egregious conduct of the INS agents in seizing Mr. XXX must preclude the Government from using his identity in the instant criminal prosecution. (7) Any other result flies in the face of basic due process and fundamental fairness.
V. CONCLUSION
INS agents unconstitutionally invaded Mr. XXX's home at 6:00 a.m. These armed agents then forcibly removed Mr. XXX from his bedroom (where he slept with his wife and baby), questioned him in the hallway and, ultimately, arrested him. In devoting their attention to Mr. XXX, these agents acted without a warrant or any reasonable suspicion that had engaged in wrongdoing. The agents did not suspect -- and could not have given the vast age difference -- that Mr. XXX was the man they were purportedly seeking. They seized him simply because Mr. XXX appears to be and is "Hispanic." As a direct consequence of these egregious Fourth Amendment violations, Mr. XXX faces not only deportation, but the loss of his liberty.
For these reasons, the denial of Mr. XXX's motion to suppress his identity, however, would reduce the Fourth Amendment "to a form of words." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (Holmes, J.). As Justice Holmes explained, "[t]he essence of a provision forbidding the acquisition of evidence in a certain way is not merely that evidence so acquired shall not be used before the Court but that it should not be used at all." Id. (emphasis added). If the Government may base a prosecution upon egregiously obtained knowledge of Mr. XXX's identity, then "the protection of the [Fourth] Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution." Weeks, 232 U.S. 393.
In this light, Mr. XXX respectfully requests that this Court rule that his identity should have been suppressed by the District Court based upon the egregious constitutional violations identified above. (8)
VI. STATEMENT OF RELATED CASES
Undersigned counsel knows of no related cases currently pending before this Court.
VII. CERTIFICATE OF COMPLIANCE
Pursuant to Circuit Rule 32(e)(4), the undersigned hereby
certifies that this brief contains monospaced typeface of 10.5 characters per inch and is twenty-six pages long.
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/ / /
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Dated: January 21, 1997
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
MARTIN ANTONIO SABELLI
Assistant Federal Public Defender
1. In moving to suppress his identity and the INS file, Mr. XXX argued that suppression of the statements and physical evidence alone would not in any meaningful wayhinder the Government's prosecution. In fact, suppression of the statements and physical evidence alone would effectively invite the Government to obtain tainted convictions with impunity. Although Mr. XXX recognized that the identity of a defendant discovered pursuant to an unlawful search or seizure may not be suppressed, he submitted that the official misconduct in the instant case was not merely unlawful but "egregious."
2. "In determining whether the 'purpose and flagrancy of the official misconduct 'was such that there was insufficient attenuation of the taint, the trial court could, and should, have considered whether the factors relied upon by the DEA agents in making the arrest of Wellins were indicative of good faith on their part or whether the agents' actions were more egregious."United States v. Wellins, 654 F.2d 550, 556 n.11 (9th Cir. 1981)(emphasis added; internal citation omitted).
3. In this connection, the District Court identified at least three possible bases for finding egregious official misconduct: (1) The race/ethnicity-based seizure of Mr.XXX (see below); (2) The total lack of consent/no consent for entry into a multiple dwelling; and (3) The total failure to provide Miranda warnings to Mr. XXX. E.R. at 137-139; R.T. 11/20/95 at 135-138.
4. The Ninth Circuit has emphasized that it has not held "that only bad faith violations are egregious, but rather all bad faith constitutional violations are egregious." Gonzalez-Rivera, 22 F.3d at 1449 n.5 (emphasis in original). Moreover, "a fundamentally unfair Fourth Amendment violation is considered egregious regardless of the probative value of the evidence obtained." Id. at 1451 (emphasis added).
5. In fact, close scrutiny of the López-Mendoza opinion reveals that the Court recognized that egregious Fourth Amendment violations may in some circumstances result in the suppression of the defendant's identity. In support of its distinction between unlawful and egregious behavior, the Court cited three immigration cases. See 468 U.S. at 1051 n.5. In one of those cases, Matter of García, 17 I & N. Dec. 319 (B.I.A. 1980), the Bureau of Immigration Affairs suppressed the evidence of the respondent's identity as an alien and reversed the finding of deportability because his requests for counsel had been repeatedly refused. See id. at 321 (citing Navia-Duran v. I.N.S., 568 F.2d 803 (1st Cir. 1977).
6. For example, the Supreme Court has created an exception to the exclusionary rule where the officers relied in good faith on a warrant issued by a neutral magistrate authorizing a search or seizure. See United States v. Leon, 468 U.S. 897 (1984). The Court extended this exception to the exclusionary rule furtherwhere the officer similarly relied in good faith on a statute authorizing a search or seizure. See Illinois v. Krull, 480 U.S. 338 (1987).
7. Because Mr. XXX has consistently indicated a willingness to be deported to Mexico, the Court need not reach the question of whether the identity of a defendant discovered pursuant to egregious Fourth Amendment violations should also be excluded from civil deportation hearings. Mr. XXX is asking only that his identity be suppressed in the instant criminal proceeding where his liberty interests are directly implicated.
8. Alternatively, if this Court finds that egregiousness has not been established, Mr. XXX asks that this action be remanded to the District Court directing suppression of his identity for the purposes of the instant criminal prosecution if the District Court finds after further proceedings that the unlawful misconduct of the INS agents was egregious.