________________________________________ No. _____________________ _________________________________________ IN THE SUPREME COURT OF THE UNITED STATES _________________________________________ FILIMON GARCIA-BELTRAN, Petitioner, v.

UNITED STATES, Respondent. ________________________________ MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS _________________________________ The petitioner, Filimon Garcia-Beltran, requests leave to file the attached petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit without prepayment of costs and to proceed in forma pauperis pursuant to Rule 39.1 of this Court and 18 U.S.C. § 3006A(d)(7). The petitioner was represented by counsel appointed under the Criminal Justice Act in the District of Oregon and on appeal in the Ninth Circuit Court of Appeals, and therefore no affidavit is required. RESPECTFULLY SUBMITTED this _____ day of August, 2006.

_________________________________ Stephen R. Sady Attorney for Petitioner

________________________________________ No. _____________________ _________________________________________ IN THE SUPREME COURT OF THE UNITED STATES _________________________________________

FILIMON GARCIA-BELTRAN, Petitioner, v. UNITED STATES,

Respondent. ________________________________ On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit _________________________________ PETITION FOR WRIT OF CERTIORARI _________________________________ Stephen R. Sady Chief Deputy Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204 (503) 326-2123 Attorney for Petitioner

QUESTION PRESENTED This Court has never expressly created an exception to the Exclusionary Rule and the Independent Source Doctrine for evidence of a person’s identity, requiring suppression for Fourth Amendment violations in cases such as Davis v. Mississippi, 394 U.S. 721 (1969), and Hayes v. Florida , 470 U.S. 811 (1985). However, in INS v. Lopez-Mendoza , 468 U.S. 1032 (1984), the Court addressed two separate claims regarding use of the products of an unlawful arrest in the civil deportation context: one alien asserted that evidence in the immigration proceedings should be suppressed under Wong Sun v. United States, 371 U.S. 471 (1963); the other claimed, as did the defendant in Frisbie v. Collins , 342 U.S. 519 (1952), that the unlawful arrest foreclosed any legal proceedings against him. In addressing the latter claim, this Court stated: “The ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest . . . .” Lopez-Mendoza , 468 U.S. at 1039. The Circuits are split on whether this language creates an exception to the Exclusionary Rule and the Independent Source Doctrine in criminal cases, with the Florida Supreme Court sided with those finding the language only relevant to Frisbie -type claims. The petitioner asks the Court to resolve these conflicts, as well as conflicts with this Court’s previous reasoning and conflicts within Circuits, by answering the following question: Where a person is unconstitutionally detained and subjected to investigatory fingerprinting, whether all evidence obtained in exploitation of the primary illegality in a criminal immigration prosecution must be suppressed, or whether, as ruled by the Ninth Circuit, the government is entitled to a judicial order compelling another investigatory fingerprinting, notwithstanding the absence of proof of an independent source.

TABLE OF CONTENTS Page Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii 1. 2. 3. 4. Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Constitutional and Statutory Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. In The Initial Appeal, The Ninth Circuit Held That, In The Absence Of An Independent Source, Fingerprint Evidence Resulting From An Illegal Detention Must Be Suppressed If Obtained For An Investigatory Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 On Remand, The District Court Found That The Subsequent Fingerprinting Resulted From An Illegal Detention And Had An Investigatory Purpose . 4 After Granting The Motion To Suppress, The District Court Granted The Government’s Request For An Order That Mr. Garcia-Beltran Provide A Fingerprint Exemplar To Establish Elements Of The Offense At Trial . 6 In Garcia-Beltran II, The Court Affirmed After Mr. Garcia-Beltran Entered A Second Conditional Plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B.

C.

D.

5.

Reasons For Granting The Writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Certiorari Should Be Granted Because Garcia-Beltran II Conflicts With This Court’s Controlling Precedent On The Exclusionary Rule And The Independent Source Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. The Exclusionary Rule Requires Suppression Of All Derivative Evidence Of The Unconstitutional Detention In The Absence Of An Independent Source . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

i

2.

The Ninth Circuit Deviated From This Court’s Controlling Exclusionary Rule Precedent By Injecting Language From Lopez-Mendoza That Relates Only To The Frisbie Line Of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B.

Certiorari Should Be Granted Because The Circuits And Other Courts Are Split On Whether Lopez-Mendoza Creates An Exception To The Exclusionary Rule And Independent Source Doctrine . . . . . . . . . . . . . . . 14 1. The Initial Split Between The Fifth Circuit And The Eighth Circuit And The Florida Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Intra-Circuit Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2. C.

Certiorari Should Be Granted Because The Application Of The Exclusionary Rule In § 1326 Cases Is A Question Of Great Importance . 26

6.

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 INDEX TO APPENDICES

Appendix A Appendix B Appendix C Appendix D

United States v. Garcia-Beltran, CR 01-336 FR, Opinion and Order, J. Frye United States v. Garcia-Beltran, 389 F.3d 864 (9th Cir. 2004) United States v. Garcia-Beltran, CR 01-336 BR, Opinion and Order, J. Brown United States v. Garcia-Beltran, CR 01-336 FR, Order Granting Government’s Motion for Fingerprint Exemplar United States v. Garcia-Beltran, 443 F.3d 1126 (9th Cir. 2005) United States v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir. 2005) United States v. Garcia-Beltran, Ninth Circuit Order Denying Petition for Rehearing, May 16, 2006

Appendix E Appendix F Appendix G

ii

TABLE OF AUTHORITIES FEDERAL CASES Bynum v. United States, 262 F.2d 465 (D.C. Cir. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Davis v. Mississippi, 394 U.S. 721 (1969) . . . . . . . . . . . . . . . . . . . . 4, 9, 10, 18, 20, 23, 24 Frisbie v. Collins , 342 U.S. 519 (1952) . . . . . . . . . . . . . . . . . . . . . . . . 4, 12, 13, 14, 15, 17 Gerstein v. Pugh , 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) . . . . . . . . . . . . . 17 Hayes v. Florida , 470 U.S. 811 (1985) . . . . . . . . . . . . . . . . . . . . . . 4, 9, 10, 18, 20, 23, 24 Hoonsilapa v. INS , 575 F.2d 735 (9th Cir.), modified by 586 F.2d 755 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16 INS v. Lopez-Mendoza , 468 U.S. 1032(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Mincey v. Arizona , 437 U.S. 385 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Murray v. United States, 487 U.S. 533 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) . . . . . . . . . . . . . . . . . . . . 9 United States v. Alvarez-Machain , 504 U.S. 655 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Bowley , 435 F.3d 426 (3rd Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 21, 22 United States v. Cisneros-Cruz , 185 F.3d 875, 1999 WL. 444926 (10th Cir. 1999) . . . . 21 United States v. Crews, 445 U.S. 463 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 22 United States v. Garcia-Beltran , 389 F.3d 864 (9th Cir. 2004) . . . . . . . . . . . 2, 4, 7, 23, 24 United States v. Garcia-Beltran , 443 F.3d 1126 (9th Cir. 2005) . . . . . . . . . . . . . . 2, 25, 27 United States v. Guevara-Martinez, 262 F.3d 751 (8th Cir. 2001) . . . . 4, 8, 17, 18, 24, 25 United States v. Guzman-Bruno , 27 F.3d 420 (9th Cir. 1994) . . . . . . . . . . . . . . . 3, 15, 16 iii

United States v. Herrera-Ochoa , 245 F.3d 495 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . . 16 United States v. Mendoza-Carrillo , 107 F. Supp. 2d 1098 (D. S.D. 2000) . . . 8, 16, 17, 27 United States v. Navarro-Diaz , 420 F.3d 581 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . 25, 26 United States v. Olivares-Rangel, 324 F. Supp. 2d 1218 (D.N.M. 2004) 17, 19, 20, 21, 25 United States v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir. 2005) . . . 2, 6, 7, 23, 24, 25, 27 United States v. Ortiz-Hernandez, 441 F.3d 1061 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . 7 United States v. Parga-Rosas , 238 F.3d 1209 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . 6, 24 United States v. Pineda-Chinchilla , 712 F.2d 942 (5th Cir. 1983) . . . . . . . . . . . . . . . . . 16 United States v. Rodriguez-Arreola , 270 F.3d 611 (8th Cir. 2001) . . . . . . . . . . . . . . . . . 26 United States v. Roque-Villanueva , 175 F.3d 345 (5th Cir. 1999) . . . . . . . . . . . . . . . 8, 16 Wong Sun v. United States, 371 U.S. 471 (1963) . . . . . . . . . . . . 4, 6, 9, 12, 13, 14, 15, 16 STATE CASES

Delafield v. State , 777 So. 2d 1020 (Fla. Dist. Ct. App. 2000) . . . . . . . . . . . . . . . . . . . . 19 State v. Perkins , 760 So. 2d 85 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18, 19 Turben v. State , 761 So. 2d 1243 (Fla. Dist. Ct. App. 2000) . . . . . . . . . . . . . . . . . . . . . . 19 FEDERAL STATUTES 8 U.S.C. § 1325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 8 U.S.C. § 1326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7 28 U.S.C. §1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

iv

18 U.S.C. § 3006A(d)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 UNITED STATES CONSTITUTION U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

v

________________________________________ No. ______________________ _________________________________________ IN THE SUPREME COURT OF THE UNITED STATES _________________________________________

FILIMON GARCIA-BELTRAN, Petitioner, v.

UNITED STATES, Respondent. ________________________________ On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit _________________________________

The petitioner, Filimon Garcia-Beltran, respectfully requests that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit entered on May 24, 2006.

1

1.

Opinions Below In an Opinion and Order dated September 26, 2002, the District Court initially

denied Mr. Garcia-Beltran’s motion to suppress based on its determination that evidence of identity could not be suppressed (Appendix A). In the first appeal, the Ninth Circuit reversed based on its ruling that the Exclusionary Rule applied and remanded for a determination whether there was an investigative purpose for the initial fingerprinting (Appendix B)(United States v. Garcia-Beltran , 389 F.3d 864 (9th Cir. 2004)(GarciaBeltran I)). On remand, the District Court granted the motion to suppress, finding an illegal arrest and investigatory fingerprinting in an Opinion and Order dated June 9, 2005 (Appendix C). On July 1, 2005, with no showing of an independent basis, the District Court granted the government’s motion for a compelled fingerprint for use at trial (Appendix D). On April 6, 2006, the Ninth Circuit affirmed the District Court’s ruling (Appendix E) (United States v. Garcia-Beltran , 443 F.3d 1126 (9th Cir. 2006) (Garcia-Beltran II)), based on the intervening Ninth Circuit decision limiting Garcia-Beltran I in United States v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir. 2005) (Appendix F). The Ninth Circuit denied rehearing and rehearing in banc on Garcia-Beltran II on May 16, 2006 (Appendix G). 2. Jurisdictional Statement This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

2

3.

Constitutional and Statutory Provision The Fourth Amendment provides: “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. C ONST. amend. IV. 4. Statement of the Case The core facts necessary to this petition are not in dispute. Mr. Garcia-Beltran moved to suppress evidence that the government sought to introduce to prove he was a previously deported alien found in the United States, in violation of 8 U.S.C. § 1326. The initial decision in Garcia-Beltran I required application of the Exclusionary Rule, in the absence of an independent source, if the prosecution began as a result of an illegal investigative fingerprinting. On remand to the district court, the trial judge specifically found that the evidence had to be suppressed because the investigatory fingerprinting was, as conceded by the government, the result of an unlawful detention. The issue then returned to the appellate court based on the trial court’s grant of a motion to compel an investigative fingerprinting by court order, with no proof of an independent source for such an order.

3

A.

In The Initial Appeal, The Ninth Circuit Held That, In The Absence Of An Independent Source, Fingerprint Evidence Resulting From An Illegal Detention Must Be Suppressed If Obtained For An Investigatory Purpose.

In the initial appeal, the government conceded that Mr. Garcia-Beltran suffered an illegal detention but claimed that fingerprint evidence did not implicate the Fourth Amendment and, therefore, could not be suppressed. The government relied on United States v. Guzman-Bruno , 27 F.3d 420, 421-22 (9th Cir. 1994), which in turn relied on the Lopez-Mendoza statement regarding the body never being suppressible. The Ninth Circuit rejected the government’s position and held that fingerprints taken for an “investigatory” purpose -- to connect Mr. Garcia-Beltran to criminal activity -- should be suppressed, relying on Davis and Hayes. Garcia-Beltran I, 389 F.3d at 865. Because the facts had not been developed below, the Court remanded to determine the original purpose of the fingerprinting. The Court elaborated that the “ultimate” question to be determined was whether the purpose behind taking the fingerprints was investigatory and, if so, whether an independent basis for admission existed. Garcia-Beltran I, 389 F.3d at 868 (“[T]he need to establish identity does not mean that any evidence that leads to the true identity of the suspect is automatically exempt from the exclusionary rule.”). Thus, on remand, if the evidence were to show that as a consequence of the illegal arrest of Garcia-Beltran, law enforcement officials obtained his fingerprints to pursue a criminal immigration law violation, the fingerprints would be subject to suppression unless they were obtained by “means

4

sufficient to have purged the taint of the initial illegality.” United States v. Guevara-Martinez, 262 F.3d 751, 755 (8th Cir. 2001). Id. Remand was ordered to resolve that question. B. On Remand, The District Court Found That The Subsequent Fingerprinting Resulted From An Illegal Detention And Had An Investigatory Purpose.

During the remand proceedings, the government again conceded the illegality of the initial detention and assumed that the first set of fingerprints was obtained for investigatory purposes (Appendix C at 15-16). In the opinion granting suppression, the District Court found that, as a direct result of the first set of prints, the Portland Police Bureau identified Mr. Garcia-Beltran and sent a notice to the immigration agency advising that he was in custody (Appendix C at 10-11). The immigration authorities then placed an immediate detainer on Mr. Garcia-Beltran as a “criminal alien” (Appendix C at 11-12). Thus, as a result of information obtained and conveyed from the Portland police’s initial fingerprinting, Mr. Garcia-Beltran became the “exclusive prisoner” of the immigration authorities (Appendix C at 12-13). Upon taking Mr. Garcia-Beltran into immigration custody, the immigration authorities took a set of prints “to positively identify that the person we have in custody was, in fact, the person that was actually deported” (Appendix C at 13). Because the police had already informed the immigration authorities of the previous deportation, the purpose of the fingerprints was to establish an element of the federal offense (Appendix C

5

at 14). Due to poor print quality, the immigration agents took a third set of fingerprints that the government sought to use at trial (Appendix C at 15). The District Court found that “[i]t is without doubt that immigration officials obtained Garcia-Beltran’s Third Set of Fingerprints ‘as a consequence’ of his illegal arrest on August 14, 2001, because the illegal arrest led to Portland Police making a ‘criminal alien referral’ to” the immigration authorities (Appendix C at 18). The third set of fingerprints were suppressed, and Mr. Garcia-Beltran withdrew his guilty plea. C. After Granting The Motion To Suppress, The District Court Granted The Government’s Request For An Order That Mr. Garcia-Beltran Provide A Fingerprint Exemplar To Establish Elements Of The Offense At Trial.

After the motion to suppress was granted, the government filed a motion for an order requiring Mr. Garcia-Beltran to provide a fingerprint exemplar, stating that the purpose of the motion was to obtain fingerprints for use at trial to establish elements of the offense. The government claimed no basis independent from the original illegal detention for seeking the fingerprints, but argued that United States v. Parga-Rosas , 238 F.3d 1209 (9th Cir. 2001), created special rules that permitted the government to obtain this evidence. Mr. Garcia-Beltran asserted that, in the absence of proof of an independent source, the compelled fingerprinting would be obtained in exploitation of the primary illegality in violation of Wong Sun . Over Mr. Garcia-Beltran’s objection, the District Court granted the government’s motion in a short order: “This court finds there is no principled 6

distinction between the government’s application and the holding in” Parga-Rosas (Appendix D). D. In Garcia-Beltran II, The Court Affirmed After Mr. Garcia-Beltran Entered A Second Conditional Plea.

Mr. Garcia-Beltran entered another conditional plea and received a sentence to 63 months incarceration, then briefed the issues raised here on his second appeal. On October 27, 2005, the Ninth Circuit issued an opinion in United States v. OrtizHernandez, 427 F.3d 567 (9th Cir. 2005) (Appendix F), affirming a district court’s order granting suppression but reversing the denial of an order to compel an investigatory fingerprint. The Ninth Circuit declined to follow Garcia-Beltran I and found that, under Lopez-Mendoza , a special rule excepted investigatory fingerprints from the scope of the Exclusionary Rule, even though the practical effect makes the Exclusionary Rule inapplicable in § 1326 cases. As stated in Judge William Fletcher’s dissenting opinion, the Ortiz-Hernandez opinion directly conflicted with Garcia-Beltran I: Our decision in Garcia-Beltran is good law, binding on this panel. The majority decision is flatly inconsistent with it. The majority may not like Garcia-Beltran , but the solution is to go en banc rather than brush it aside. Ortiz-Hernandez, 427 F.3d at 580. The Ninth Circuit denied rehearing over a dissent by Judge Paez, joined by eight other judges. United States v. Ortiz-Hernandez, 441 F.3d 1061 (9th Cir. 2006). After Ortiz-Hernandez, the Ninth Circuit in Garcia-Beltran II, found no violation of the rules of precedent and followed Lopez-Mendoza and Ortiz-Hernandez in denying 7

relief on the merits (Appendix E). On May 16, 2006, the Ninth Circuit denied Mr. Garcia-Beltran’s petition for rehearing and rehearing en banc (Appendix G). 5. Reasons For Granting The Writ The Circuits are split regarding the meaning of the following sentence in LopezMendoza : “The ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest.” 468 U.S. at 1039. The Fifth Circuit, followed by other courts, construes this sentence to mean that there is an exception to the Exclusionary Rule and the Independent Source Doctrine that permits identity evidence obtained in exploitation of an unconstitutional detention to be admitted at trial. United States v. Roque-Villanueva , 175 F.3d 345, 346 (5th Cir. 1999). The Eighth Circuit, followed by a number of other courts and the Florida Supreme Court, interpret the sentence to apply only to the presence of the defendant in court, leaving the Exclusionary Rule and the Independent Source Doctrine to apply to evidence of the person’s identity as in any other case. United States v. Guevara-Martinez, 262 F.3d 751, 754 (8th Cir. 2001) (adopting United States v. Mendoza-Carrillo , 107 F. Supp. 2d 1098, 1106 (D. S.D. 2000)); State v. Perkins , 760 So. 2d 85, 87 (Fla. 2000). The meaning of Lopez-Mendoza should be resolved by this Court because 1) the courts creating an exception to the Exclusionary Rule and the Independent Source Doctrine based on LopezMendoza are in conflict with this Court’s precedent, including Lopez-Mendoza itself; 2) courts of appeals have entered decisions in conflict with other courts of appeals and a

8

state supreme court on an important federal matter; and 3) the creation of an exception to the Exclusionary Rule and the Independent Source Document that applies primarily to warrantless law enforcement activity in poor and minority communities is a question of exceptional importance. A. Certiorari Should Be Granted Because Garcia-Beltran II Conflicts With This Court’s Controlling Precedent On The Exclusionary Rule And The Independent Source Doctrine.

This Court has never approved the use of a judicial order to produce evidence obtained by exploitation of an unconstitutional detention. On the contrary, this Court has long understood that the Exclusionary Rule’s deterrent function is nullified if the government, by court order, can use the same illegally seized evidence at trial, in the absence of an independent source. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92 (1920) (Holmes, J.) (use of a subpoena duces tecum to produce illegally seized items would reduce “the Fourth Amendment to a form of words”). The Court has also recognized that the Exclusionary Rule applies to investigative decisions as well as physical evidence. Murray v. United States, 487 U.S. 533, 542-43 (1988) (decision to seek a search warrant must have a basis independent of an illegal search). The District Court in this case became complicit in the exploitation of unconstitutional police conduct. The Ninth Circuit’s affirmance of that decision conflicts with this Court’s wellestablished precedent on the Exclusionary Rule’s function as a deterrent to constitutional violations and a measure necessary to preserve the Judiciary’s independence and integrity.

9

1.

The Exclusionary Rule Requires Suppression Of All Derivative Evidence Of The Unconstitutional Detention In The Absence Of An Independent Source.

To give meaning to the Fourth Amendment in the real world, this Court requires suppression of any evidence come at by exploitation of the primary illegality. Wong Sun , 371 U.S. at 488. The “fruit of the poisonous tree” doctrine includes no exception for fingerprints. Wong Sun , 371 U.S. at 486 n.12 (citing with favor Bynum v. United States, 262 F.2d 465 (D.C. Cir. 1958), as “holding inadmissible fingerprints made by defendant after unlawful arrest”). This Court applied standard Exclusionary Rule principles to investigative fingerprinting in Davis and Hayes. In Davis, police officers in Meridian, Mississippi, unlawfully arrested and confined a young African-American man in order to obtain his fingerprints and compare them to prints found at the scene of a sexual assault. Davis, 394 U.S. at 722-23. This Court rejected the argument that fingerprints were somehow exempt from the application of the Exclusionary Rule: Our decisions recognize no exception to the rule that illegally seized evidence is inadmissible at trial, however relevant and trustworthy the seized evidence may be as an item of proof. The exclusionary rule was fashioned as a sanction to redress and deter overreaching governmental conduct prohibited by the Fourth Amendment. To make an exception for illegally seized evidence which is trustworthy would fatally undermine these purposes. Davis, 394 U.S. at 724. The Court held that investigatory fingerprint evidence obtained as a result of an illegal detention must be suppressed under the Fourth Amendment. Davis, 394 U.S. at 727-28. 10

In 1985, the Supreme Court reaffirmed Davis in a case presenting very similar facts in Hayes. As in Davis, the police detained the defendant for an investigatory fingerprinting where “there was no probable cause to arrest, no consent to the journey to the police station, and no judicial authorization for such a detention for fingerprinting purposes.” Hayes, 470 U.S. at 814. The Court found nothing in its recent cases to undermine Davis and reaffirmed that suppression was required where investigatory fingerprinting violated the Fourth Amendment. Hayes, 470 U.S. at 815. A year before Hayes, in the non-criminal context of immigration proceedings, this Court held that fingerprint and identification evidence could be used against an illegal alien in a civil deportation proceeding, even if that information had been obtained in violation of the Fourth Amendment. Lopez-Mendoza , 468 U.S. at 1040-50. The Lopez-Mendoza holding was based on the distinction between the use of illegally obtained evidence at civil deportation proceedings versus its use in criminal cases. Lopez-Mendoza , 468 U.S. at 1041 (“The reach of the exclusionary rule beyond the context of a criminal prosecution, however, is less clear”). The Lopez-Mendoza reasoning explicitly assumed the application of the Exclusionary Rule: “[T]he evidence was also excludable in any federal criminal trial that might be held.” 468 U.S. at 1042. “The INS does not suggest that the exclusionary rule should not continue to apply in criminal proceedings against an alien who unlawfully enters or remains in this country, and the prospect of losing evidence that might otherwise be used in a criminal prosecution undoubtedly supplies some residual deterrent to unlawful conduct

11

by INS officials.” Id . Because the Exclusionary Rule applied to criminal proceedings, the Rule did not need to also apply to civil deportation proceedings. In United States v. Crews, 445 U.S. 463, 472-83 (1980), this Court found that photographic and line-up identifications were the fruits of an illegal arrest, but that the incourt identification was based on the independent recollection of the witness. The Court’s opinion specifically recognized that there would be cases, like the present case, where there would be no independent basis for identification and the prosecution would fail: In some cases, of course, prosecution may effectively be foreclosed by the absence of the challenged evidence. But this contemplated consequence is the product of the exclusion of specific evidence tainted by the Fourth Amendment violation and is not the result of a complete bar to prosecution. Crews, 445 U.S. at 474 n.20. In Mr. Ortiz-Hernandez’s case, the government made no effort to establish an independent source for its request for a court-ordered fingerprinting after its unconstitutional investigative detention and fingerprinting of the defendant. Failure to apply the Exclusionary Rule conflicted with this Court’s well-established precedent. 2. The Ninth Circuit Deviated From This Court’s Controlling Exclusionary Rule Precedent By Injecting Language From LopezMendoza That Relates Only To The Frisbie Line Of Cases.

The Ninth Circuit conflated two distinct lines of cases: those applying the Exclusionary Rule to suppress all evidence obtained by exploitation of unconstitutional police activity, exemplified by Wong Sun ; and those addressing the power to bring a person before a tribunal regardless of unlawful force used to seize the person, exemplified by Frisbie v. Collins , 342 U.S. 519 (1952). The present case involves only the Exclusionary 12

Rule. The Ninth Circuit’s confusion with the Frisbie line of cases led it to conflict with this Court’s governing precedent. The analytic error in injecting Frisbie precedent into the Wong Sun line of cases derives from a quirk in Lopez-Mendoza . Two aliens, Lopez-Mendoza and SandovalSanchez, presented different theories in civil deportation proceedings. 468 U.S. at 1032. Lopez-Mendoza never invoked the Exclusionary Rule to suppress evidence but claimed his illegal seizure deprived the court of jurisdiction over him. 468 U.S. at 1040.

Sandoval-Sanchez, on the other hand, sought to suppress illegally seized evidence under the Exclusionary Rule. 468 U.S. at 1040. Both workers had been arrested at their places of employment without a warrant or probable cause. Lopez-Mendoza , 468 U.S. at 1036-37. The Court’s controversial phrase -- “body” or identity is never suppressible -- only appears in the part of the opinion addressing Lopez-Mendoza’s claims. 468 U.S. at 1039. At his civil immigration hearing, Lopez-Mendoza moved to terminate the proceeding on the ground he had been arrested illegally, but he did not object to the evidence admitted against him. 468 U.S. at 1040. In rejecting this position, the Court explicitly cited to Frisbie and other similar cases that provide courts with jurisdiction over an individual, regardless of the illegality of the manner of arrest. Lopez-Mendoza , 468 U.S. at 1040. See generally United States v. Alvarez-Machain , 504 U.S. 655, 661-62 (1992). Because Lopez-Mendoza never challenged the admissibility of evidence against him, only the right of the immigration judge to bring his “body” before the tribunal was at issue.

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Sandoval-Sanchez, in contrast, contested the evidence offered by the INS. The Court found Sandoval-Sanchez’s case “more substantial”: “The general rule in a criminal

proceeding is that statements and other evidence obtained as a result of an unlawful, warrantless arrest are suppressible if the link between the evidence and the unlawful conduct is not too attenuated.” Lopez-Mendoza , 468 U.S. at 1040-41 (citing Wong Sun ). The Court had to decide whether the Exclusionary Rule applied in deportation proceedings. In rejecting Sandoval-Sanchez’s efforts to apply the Exclusionary Rule in civil proceedings, the Court analyzed numerous factors that reduced the deterrent value of the Exclusionary Rule in civil deportation proceedings. Lopez-Mendoza , 468 U.S. at 1042-51. The Court distinguished deportation proceedings as purely civil in nature, in contrast to enforcement of criminal statutes such as 8 U.S.C. § 1325. Lopez-Mendoza , 468 U.S. at 1038. The immigration judge’s power is to deport, not to punish; consequently, “protections that apply in the context of a criminal trial do not apply in a deportation hearing.” Id . Further, the deterrent value of the Exclusionary Rule was accomplished by its application in any parallel proceedings: “[T]he evidence was also excludable in any federal criminal trial that might be held,” “undoubtedly suppl[ying] some residual deterrent to unlawful conduct by INS officials.” Lopez-Mendoza , 468 U.S. at 1042. The Court ultimately held that evidence illegally seized need not be suppressed in the civil context, unless the constitutional violation was “egregious.” Lopez-Mendoza , 468 U.S. at 1050-51.

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The Lopez-Mendoza language regarding suppression of identity -- or the body -- is limited to Frisbie claims. The Wong Sun claim simply does not apply in the civil context, but operates at full strength in the criminal context. When Mr. Garcia-Beltran is released to immigration authorities, he will be removed regardless of the Fourth Amendment violation, because the products of the illegal conduct are not excluded from civil proceedings. In contrast, in criminal proceedings, Lopez-Mendoza is completely consistent with Exclusionary Rule precedent requiring suppression of all derivative evidence in the absence of an independent source. B. Certiorari Should Be Granted Because The Circuits And Other Courts Are Split On Whether Lopez-Mendoza Creates An Exception To The Exclusionary Rule And Independent Source Doctrine.

The split decisions regarding Lopez-Mendoza ’s “‘body’ or identity” sentence trace back to cases that conflated and confused jurisdiction, in the Frisbie sense of authority to bring an individual before the court, and identity evidence, in the Wong Sun sense of admission of testimony and items establishing that an individual is the person who committed a crime. The decisions also reflect a confusion between the application of the Exclusionary Rule in civil deportation or removal proceedings and in criminal prosecutions. The missteps trace back to a Fifth Circuit case that adopted wholesale loose language in a Ninth Circuit case involving the Independent Source Doctrine of the Exclusionary Rule.

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1.

The Initial Split Between The Fifth Circuit And The Eighth Circuit And The Florida Supreme Court

In United States v. Guzman-Bruno , 27 F.3d 420, 421 (9th Cir. 1994), officers preparing to execute a warrant observed Mr. Guzman-Bruno near their target, approached him, then searched and arrested him. The district court suppressed, holding that Mr. Guzman-Bruno’s statements, “with the exception of the initial admission of his name, were fruits of the illegal arrest.” 27 F.3d at 421. “[U]nder the independent source doctrine, the court did not suppress records of the preexisting criminal convictions or deportations.” Id . The Ninth Circuit found that a “defendant’s identity need not be suppressed merely because it is discovered as the result of an illegal arrest or search.” Guzman-Bruno , 27 F.3d at 421. In support of this principle, the court cited to a civil deportation case, Hoonsilapa v. INS , 575 F.2d 735, 738 (9th Cir.), modified by 586 F.2d 755 (9th Cir. 1978), and the statement in Lopez-Mendoza that the “‘body’ or identity of a defendant . . . is never itself suppressible as a fruit of an unlawful arrest.” Guzman-Bruno , 27 F.3d at 422. The court concluded that “the district court did not err when it held that neither Guzman-Bruno’s identity nor the records of his previous convictions and deportations could be suppressed as a result of the illegal arrest.” Id . In Roque-Villanueva , the Fifth Circuit for the first time extended the Lopez-Mendoza sentence to the Exclusionary Rule regardless of the Independent Source Doctrine. The district court rejected Mr. Roque-Villanueva’s claim he was unconstitutionally stopped, “reasoning that the Defendant’s identity was not suppressible.” 175 F.3d at 346. On appeal, 16

the court found no standing to challenge the introduction of the immigration file, based on an earlier Fifth Circuit case that noted the conflict between Hoonsilapa and this Court’s holding in Davis. Roque-Villanueva , 175 F.3d at 346 (citing United States v. PinedaChinchilla , 712 F.2d 942, 944 (5th Cir. 1983)). The court then cited the Lopez-Mendoza sentence, and – with no reference to the Independent Source Doctrine – adopted GuzmanBruno ’s statement that neither “identity nor the records of his previous convictions and deportations and convictions could be suppressed as a result of the illegal arrest.” 175 F.3d at 346 (quoting Guzman-Bruno , 27 F.3d at 422). Accord United States v. Herrera-Ochoa , 245 F.3d 495, 497-98 (5th Cir. 2001) (following Roque-Villanueva and, in footnote 4, refusing to address the conflict with Wong Sun ). The Eighth Circuit’s rejection of Roque-Villanueva had its roots in a district court decision. In United States v. Mendoza-Carrillo , 107 F. Supp. 2d 1098 (D. S.D. 2000), a criminal immigration prosecution arose from an illegal traffic stop. The district court rejected the broad language of the Fifth and Ninth Circuit cases limiting the application of the Exclusionary Rule. The court carefully traced the reasoning of the Lopez-Mendoza opinion and demonstrated that the critical sentence related only to jurisdiction, not the Exclusionary Rule: [T]he Supreme Court language only addresses the jurisdictional concern that the “body” of the defendant is never suppressible, not whether statements by a defendant regarding his identity may be suppressed. This interpretation is supported by an examination of the authorities cited by the Supreme Court: Gerstein v. Pugh , 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) and Frisbie v. Collins , 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541 (1952). In 17

Frisbie , the court held that “the power of a court to try a person for a crime is not impaired by the fact that he had been brought within the court's jurisdiction” against his will. 342 U.S. at 522, 72 S. Ct. at 511. The Supreme Court reaffirmed this holding in Gerstein , stating that an "illegal arrest or detention does not void a subsequent conviction ." 420 U.S. at 119, 95 S. Ct. at 865. These cases deal with jurisdiction over the person, not evidence of the defendant's identity illegally obtained. The language in Lopez-Mendoza should only be interpreted to mean that a defendant may be brought before a court on a civil or criminal matter even if the arrest was unlawful. Mendoza-Carrillo , 107 F. Supp. 2d at 1106. The court therefore applied the normal Exclusionary Rule, noting that failure to apply the Exclusionary Rule gives “law enforcement officials an incentive to discover a person’s identity in whatever way they can,” which “puts the privacy rights of legal aliens and any citizen that might for any reason be suspected of illegal entry at too great a risk.” Mendoza-Carrillo , 107 F. Supp. 2d 1107. In Guevara-Martinez, the Eighth Circuit adopted Mendoza-Carrillo ’s rejection of the broad reading of Lopez-Mendoza . 262 F.3d at 754 (“The district court found the reasoning in Mendoza-Carrillo more persuasive than the broad interpretation given Lopez-Mendoza by the Fifth and Ninth Circuits. So do we.”). “We conclude that Lopez-Mendoza’s statement about the suppression of identity only refers to jurisdictional challenges, not to fingerprint evidence challenged in a criminal proceeding.” Id . The court therefore applied the

Exclusionary Rule, citing Davis and Hayes, including the Independent Source Doctrine: “We conclude that officers obtained Guevara-Martinez’s fingerprints by exploiting his unlawful detention, instead of by means sufficient to have purged the taint of the initial illegality.” Id.

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Because the fingerprinting was investigatory -- “the authorities desired to gather the fingerprints, and were able to take advantage of the unlawful detention in order to get the fingerprints” -- suppression was the appropriate remedy. Guevara-Martinez, 262 F.3d at 756. The court did not reach the government’s claim that a later civil deportation proceeding would produce an “untainted” set of fingerprints. Id . at 756. Separate from the conflict in the federal Circuits, the Florida Supreme Court adopted the same position as the Eighth Circuit, recognizing that Lopez-Mendoza ’s “‘body’ or identity” language applies only to jurisdictional, not evidentiary, challenges. State v. Perkins , 760 So. 2d 85, 87 (Fla. 2000). In Perkins , the court addressed a motion to suppress identity evidence after an illegal traffic stop led to a prosecution for driving with a suspended licence. The court addressed state lower court cases applying the “‘body’ or identity” language of Lopez-Mendoza to motions to suppress in criminal cases. Id. at 88. The Perkins court analyzed the two separate claims in Lopez-Mendoza and concluded that the “‘body’ or identity” sentence “truly referred to identity in a personal jurisdiction sense.” Id. at 87. The court therefore found a violation of the Exclusionary Rule because the evidence required to prosecute the charge of driving with a suspended license came directly from the exploitation of the unlawful stop. Id. at 88. Accord Delafield v. State , 777 So. 2d 1020, 1021 (Fla. Dist. Ct. App. 2000); Turben v. State , 761 So. 2d 1243 (Fla. Dist. Ct. App. 2000). A single judge dissented in Perkins based on the claim that the sentence in LopezMendoza applied in the context of the criminal Exclusionary Rule. 760 So. 2d at 89.

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2.

Intra-Circuit Conflicts

In addition to the clear conflicts in the Circuit courts and between Circuit courts and the Florida Supreme Court, the disarray among the Circuits is demonstrated by inconsistencies within the Circuits as to application of Lopez-Mendoza in the criminal context, including whether special exceptions to the Exclusionary Rule exist. For example, in the Tenth Circuit, two district courts have issued carefully reasoned opinions following Guevara-Martinez. In United States v. Olivares-Rangel, 324 F. Supp. 2d 1218, 1222-24 (D.N.M. 2004), the court found that all evidence in support of a prosecution for illegal reentry after deportation was derived from an unconstitutional car stop. After noting the Circuit conflict regarding Lopez-Mendoza , the court rejected the government’s reliance on the “‘body’ or identity” language based on Guevara-Martinez’s reasoning and the ordinary application of the Exclusionary Rule. Olivares-Rangel, 324 F. Supp. 2d at 1222-24. In rejecting a claim of inevitable discovery, the court pointed to the government’s burden of proving exceptions to the Exclusionary Rule: “In this case, the Government has not proved by a preponderance of the evidence that Olivares-Rangel’s identity and criminal history would have been discovered in the absence of a Fourth Amendment violation.” Olivares-Rangel, 324 F. Supp. 2d at 1223. Therefore, all evidence obtained by exploitation of the unconstitutional stop was suppressed: Where law enforcement officials discover the defendant's identity and connection to illicit activity solely because of the illegal detention, any 20

evidence obtained as a result of that illegal detention should be suppressed. Davis,[394 U.S. at 728]. Fingerprints obtained as a result of constitutional violations and used for investigatory purposes must be suppressed in the criminal case flowing from that investigation. Hayes,[470 U.S. at 815-16]; Davis, 394 U.S. at 727. As in Davis, Hayes, and Guevara-Martinez, the evidence of OlivaresRangel's identity, including his name and fingerprints and the agents' knowledge of his presence in the United States, must be suppressed. Agent Armendariz had no knowledge that Olivares-Rangel was in the United States before he stopped the truck and then recognized Olivares-Rangel in it. Olivares-Rangel was illegally detained before Agent Armendariz obtained any incriminating evidence about him and before Agent Armendariz had any reason to look up Olivares-Rangel's immigration and criminal records. Just as the unlawfully obtained fingerprints obtained in Davis could not be used to link the defendant to evidence at the crime scene, the identity evidence that was unlawfully seized from Olivares-Rangel cannot be used to prove OlivaresRangel's presence in the United States or to tie Olivares-Rangel to his criminal and immigration records. Accordingly, I conclude that Olivares-Rangel was stopped and arrested without reasonable suspicion or probable cause, and therefore all statements and fingerprints seized from him, as well as the immigration and criminal records located using that evidence of identity, cannot be used in the prosecution against him. Olivares-Rangel, 324 F. Supp. 2d at 1224. Similarly, in United States v. Garcia , No. 2:05CR391 TC, 2005 WL 3556089, at *8 (D. Utah Dec. 28, 2005), amended by United States v. Lara-Garcia , 2006 WL 861384 (D. Utah Mar. 31, 2006), the district court adopted Olivares-Rangel’s and Guevara-Martinez’s interpretation of Lopez-Mendoza , although suppression was not required because the government established the identity evidence would have been inevitably discovered given the initially lawful stop. But in an unpublished opinion, which by Tenth Circuit rules has no precedential weight, the Tenth Circuit has cited

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the “never suppressible” Lopez-Mendoza language in the criminal context. United States v. Cisneros-Cruz , 185 F.3d 875, No. 98-1398, 1999 WL 444926, at*6 (10th Cir. 1999) (unpublished). The Third Circuit has internal inconsistencies in different parts of the same case. A Virgin Island district court adopted Guevara-Martinez to suppress all derivative fingerprint evidence in the absence of an independent source in United States v. Bowley , No. CRIM. 2004/0169, 2005 WL 1398632 (D.V.I. June 8, 2005). The court interpreted the language in Lopez-Mendoza , to apply only to jurisdiction, then applied the standard “fruit of the poisonous tree” doctrine: “Under ‘the general rule of criminal procedure’ ‘that statements and other evidence obtained as a result of an unlawful, warrantless arrest are suppressible,’ the elements of the charged crime, including Defendant’s identity, must be proved using untainted evidence.” Bowley , 2005 WL 1398632, at *2 (citations omitted). The court rejected the government’s attempt to use subsequent immigration fingerprinting: [T]he Government overlooks that the ICE’s custody of Defendant is nonetheless fruit of the poisonous tree for the purposes of a criminal prosecution. If the VIPD had not arrested Defendant, but rather relayed what they had learned to the ICE, the ICE could have arrested Defendant for his illegal status without violating his constitutional rights, in which case his fingerprint impressions would not have been subject to suppression. Instead, the VIPD arrested Defendant in violation of his Fourth Amendment rights and delivered Defendant to the ICE. The ICE’s custody of Defendant is clearly a fruit of the preceding illegal arrest by the VIPD. Since ICE’s arrest of Defendant was fruit of the poisonous tree, any evidence obtained by the ICE is also fruit of the poisonous tree, including Defendant’s fingerprint impressions and identification derived from his fingerprint impressions, unless an exception to that poisonous tree doctrine applies.

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Bowley , 2005 WL 1398632, at *3. The court found that the government had not established inevitable discovery or routine fingerprinting. Id . at *3-4. The court noted that testimony proferred by the government was not independent of the initial taint. Id . at *4 (agents could not testify to deportation because “the Government used Defendant’s identity, which was obtained illegally through his fingerprint impressions, to locate these federal agents.”).1 The government filed no appeal of the district court’s initial ruling in Bowley . However, the government at trial attempted to introduce evidence from the immigration file, claiming the file was the product of routine booking, rather than investigatory fingerprinting, and that the file would have been inevitably discovered. Relying on Lopez-Mendoza , the Third Circuit found that “the Fourth Amendment does not provide a basis for an alien to suppress his/her immigration file, or information in that file.” United States v. Bowley , 435 F.3d 426, 431 (3rd Cir. 2006). The most direct intra-Circuit conflict comes from the Ninth Circuit. Prior to OrtizHernandez, in Garcia-Beltran I, the Ninth Circuit considered whether, where the government stipulated that the initial detention violated the Fourth Amendment, Lopez-Mendoza required denial of the suppression motion because evidence of identity could never be suppressed. The unanimous panel of Judges Trott, Paez, and Berzon carefully reviewed Ninth Circuit In support of this proposition, the court contrasted United States v. Crews, 445 U.S. 463, 471-72 (1980), which allowed in-court identification, because of the statement in Crews that “this is not a case in which the witness’ identity was discovered or her cooperation secured only as a result of an unlawful search or arrest of the accused.” Bowley , 2005 WL 1398632, at *4. 23
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precedent in the area, finding that prior cases relying on Lopez-Mendoza had involved either attempts to suppress identity in the jurisdictional sense or independent sources for the identification evidence. The court then found that Davis and Hayes, not Lopez-Mendoza, controlled because the “‘body’ or identity” language was limited to jurisdiction, not evidence of identity: Garcia-Beltran, however, did not seek to suppress the fact of his identity or “body”; he recognized that he could lawfully be compelled to appear in court. Rather, he sought to exclude all evidence obtained from him as a result of his illegal arrest, including evidence that would tend to establish his true identity, such as fingerprints, photographs and oral statements. Contrary to the government's argument, Lopez-Mendoza does not preclude suppression of evidence unlawfully obtained from a suspect that may in a criminal investigation establish the identity of the suspect. Garcia-Beltran I, 389 F.3d at 866-67. The court therefore remanded to determine whether the fingerprints were taken for investigatory purposes. The court expressly adopted GueveraMartinez as controlling: Here, the ultimate question that the district court must answer on the basis of a more complete evidentiary record is: were Garcia-Beltran’s fingerprints taken for an investigatory, or identification, purpose (or both)? We recognize that in the investigation of immigration offenses, establishing the identity of the suspect is an essential component of such an investigation. Yet, the need to establish identity does not mean that any evidence that leads to the true identity of the suspect is automatically exempt from the exclusionary rule. . . . Thus, on remand, if the evidence were to show that as a consequence of the illegal arrest of Garcia-Beltran, law enforcement officials obtained his fingerprints to pursue a criminal immigration law violation, the fingerprints would be subject to suppression unless they were obtained by “means sufficient to have purged the taint of the initial illegality.” United States v. Guevara-Martinez, 262 F.3d 751, 755 (8th Cir. 2001). Garcia-Beltran I, 389 F.3d at 868. 24

Then Ortiz-Hernandez came down. Over the dissenting judge’s emphatic assertion that Garcia-Beltran I controlled on whether Lopez-Mendoza foreclosed application of the Exclusionary Rule in the absence of compliance with the Independent Source Doctrine, the Ortiz-Hernandez majority found that the order compelling the new set of fingerprints, even though sought only as a result of the primary illegality, should have been granted based on the “never suppressible” language in Lopez-Mendoza . Ortiz-Hernandez, 427 F.3d at 577. Meanwhile, on the remand in Garcia-Beltran I, the government again stipulated to the illegal detention. After a contested hearing, the court granted the motion to suppress based on its finding that the fingerprints were taken for investigative purposes and that Davis and Hayes controlled. Then, based on a case that had been found to involve an independent source in Garcia-Beltran I, the court granted an order compelling a new set of fingerprints with no showing of an independent source.2 In the subsequent appeal, the panel considered itself to be bound by Ortiz-Hernandez, which – based on a reading of Lopez-Mendoza contrary to Garcia-Beltran I – allowed the order with no showing of an independent source because identity evidence is never suppressible. Garcia-Beltran II, 443 F.3d at 1134

The trial court relied on United States v. Parga-Rosas , 238 F.3d 1209 (9th Cir. 2001), which had been distinguished as involving the Independent Source Doctrine in GarciaBeltran I. 389 F.3d at 867 (“[A]s the facts of Parga-Rosas reveal, the fingerprint exemplars at issue in that case were not tainted by the alleged illegal arrest.”) 25

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(“Despite the apparent difference in opinion among the circuits as to the scope of the Supreme Court’s ruling in Lopez-Mendoza , the law of this circuit is clear”).3 The need for clarity in this area of the law is also reflected in a recent Sixth Circuit case. While approving of the Guevara-Martinez interpretation of Lopez-Mendoza , the court rejected the defendant’s effort to suppress his identity in United States v. Navarro-Diaz , 420 F.3d 581 (6th Cir. 2005). The court noted the disarray among the Circuits and the

distinctions between identity and evidence of identity. Navarro-Diaz , 420 F.3d at 585-86. The case involved an initially lawful police investigation at a hotel where marijuana was being smoked. The defendant sought to suppress his identity – his name and date of birth – as the product of questioning after suspicion of him had dissipated. The court found that Guevara-Martinez’s holding “that Lopez-Mendoza has no bearing upon the suppression of unlawfully obtained identity-related evidence in a criminal proceeding” (quoting GueveraMartinez, 262 F.3d at 754) was supported by this Court’s statement in Lopez-Mendoza itself that, in light of “the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing” (quoting Lopez-Mendoza , 468 U.S. at 1038). Navarro-Diaz , 420 F.3d at 585. The court recognized the dangers of the broad reading of Lopez-Mendoza : “The Supreme Court’s language in Lopez-Mendoza . . . when taken out of context, could be read

A petition for certiorari was filed in Ortiz-Hernandez on June 23, 2006, and assigned No. 05-11763. 26

3

to suggest that random, widespread detentions and questioning of suspected aliens would not implicate Fourth Amendment rights.” Navarro-Diaz , 420 F.3d at 587. However, in

Navarro-Diaz , the defendant moved to suppress “identity” rather than evidence of identity. As a consequence, the court cited Lopez-Mendoza with approval in rejecting suppression of identity, noting in dicta that dicta in United States v. Rodriguez-Arreola , 270 F.3d 611, 619 (8th Cir. 2001), would allow reindictment for the same offense. Navarro-Diaz , 420 F.3d at 588. C. Certiorari Should Be Granted Because The Application Of The Exclusionary Rule In § 1326 Cases Is A Question Of Great Importance.

The application of the Exclusionary Rule and the Independent Source Doctrine in criminal immigration proceedings is a matter of exceptional importance for three reasons. First and foremost, the creation of a new exception to the Exclusionary Rule endangers the civil liberties of all citizens and, because the exception most applies in the immigration context, especially creates a danger that poor and minority communities will receive diminished Fourth Amendment protection. The Exclusionary Rule must be enforced in this case to provide the deterrence against unconstitutional law enforcement practices that would otherwise be rewarded by federal prosecution. Failure to apply the Exclusionary Rule gives “law enforcement officials an incentive to discover a person’s identity in whatever way they can,” which “puts the privacy rights of legal aliens and any citizen that might for any reason be suspected of illegal entry at too great a risk.” Mendoza-Carrillo , 107 F. Supp. 2d at 1107. Given the direct causal connection between the Fourth Amendment violation and 27

the court order, such an order’s exploitation of the constitutional violation implicates the Exclusionary Rule’s twin aims of deterrence and preservation of judicial integrity. Second, a special exception to the Exclusionary Rule for nonviolent offenses creates an anomaly that raises the appearance of unequal protection of the laws. This Court expressly rejected a Fourth Amendment exception for murder investigations in Mincey v. Arizona , 437 U.S. 385, 390-95 (1978). In Garcia-Beltran II, the court recognized that, in effect, its holding creates an immigration exception to the Fourth Amendment’s protections: “‘Admittedly, our holding here limits the theoretical effect of suppressing the initial set of wrongfully obtained fingerprint exemplars . . . .’” 443 F.3d at 1134-35 (quoting OrtizHernandez, 427 F.3d at 578). Such an exception that applies overwhelmingly to Hispanic and other minority defendants cannot be reconciled with Mincey’s establishment of a bright line rule that applies to all persons, regardless of race, national origin, and the seriousness of the offense. Lastly, this issue is of exceptional importance due to the great increase in illegal reentry prosecutions. In the past twelve years, the number of immigration sentences has risen from 2,189 (or 5.2% of federal sentences) to 15,717 (or 22.5% of federal sentences). Compare U NITED S TATES S ENTENCING C OMM’N, A NNUAL R EP., at 56 (1993) with U NITED S TATES S ENTENCING C OMM’N, 2004 S OURCEBOOK OF F EDERAL S ENTENCING S TATISTICS, at 14. More than 40% of these sentences are imposed in the Ninth Circuit (41.72% or 1653 out of 3962 sentences). U NITED S TATES S ENTENCING C OMM’N, 2004 S OURCEBOOK OF F EDERAL

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S ENTENCING S TATISTICS (compiled from App. B, Selected Sentencing Statistics by District). Given the reality that most cases commence with a police contact, the large number of prosecutions warrants this Court’s action to clarify rights and to deter illegal police practices in the enforcement of immigration laws. 6. Conclusion For the foregoing reasons, the Court should issue a writ of certiorari. DATED this ____ day of August, 2006.

____________________________________ Stephen R. Sady Attorney for Petitioner

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________________________________________ No. ______________________ _________________________________________ IN THE SUPREME COURT OF THE UNITED STATES _________________________________________ FILIMON GARCIA-BELTRAN, Petitioner, v. UNITED STATES,

Respondent. ________________________________ On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit _________________________________ CERTIFICATE OF SERVICE AND MAILING _________________________________ I, Stephen R. Sady, counsel of record and a member of the Bar of this Court, certify that pursuant to Rule 29.3 service has been made of the within MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS and PETITION FOR WRIT OF CERTIORARI on the counsel for the respondent by depositing in the United States Post Office, in Portland, 1

Oregon on this August copy thereof addressed to:

, 2006, first class postage prepaid, a certified true, exact and full

Kent Robinson U.S. Attorney 1000 SW Third, Suite 600 Portland, OR 97204

Paul Clement Solicitor General Department of Justice,#5614 10th & Constitution, N.W. Washington, D.C. 20530

Further, the original and ten copies were mailed to the Honorable William K. Suter, Clerk of the United States Supreme Court, by depositing them in a United States Post Office Box, addressed to 1 First Street, N.E., Washington, D.C., 20543, for filing on this August , 2006, with first-class postage prepaid. DATED this day of August, 2006. __________________________________ Stephen R. Sady Attorney for Petitioner

SUBSCRIBED AND SWORN to before me this __ day of August, 2006.

__________________________________ Notary Public of Oregon

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