Opinion
Case No. 8:00CR163
October, 2000
ORDER
The present indictment (Filing No. 1) charges the defendant with knowingly and unlawfully entering the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). The defendant's status as an illegal alien who had been previously deported was established by fingerprints taken by Omaha police officers following a traffic stop and detention on January 31, 2000. I previously ruled that traffic stop illegal and granted the defendant's motion to suppress all evidence seized during the stop. The government subsequently dismissed the drug charges filed against the defendant in connection with the stop. See 8:00CR47, Filing Nos. 32 and 33. The government, however, subsequently indicted the defendant on the charge in this case, unlawful re-entry after deportation. Filing No. 1. The defendant now seeks to suppress in this case all evidence gathered as a result of the illegal stop and detention, particularly his fingerprints, since without the fingerprints, he could not have been identified as an illegal alien who had been previously deported. See Filing No. 12.
The magistrate recommended that I grant the defendant's motion to suppress (Filing No. 12) with regard to any statements he made to Omaha police officers following the traffic stop and detention, but that I deny the defendant's motion to suppress with regard to the defendant's actual identity or fingerprints. Before me now is defendant Guevara-Martinez's statement of objections (Filing No. 19) to the magistrate's report and recommendation (Filing No. 18).
I have reviewed the record, the transcript (Filing No. 17), the defendant's brief in support of his objections, the government's brief opposing the defendant's objections, and the applicable law. I conclude that the magistrate's report and recommendation should be adopted in part and rejected in part, and that the defendant's motion to suppress should be granted.
The defendant objects to the magistrate's recommendation that I deny the defendant's motion to suppress with regard to the defendant's actual identity and fingerprints. The defendant contends that absent the illegal stop and search of the defendant, the defendant would never have been in the custody of Omaha police officers and would never have had his fingerprints taken, his fingerprints being the means by which his identity as an illegal alien was eventually established since the defendant had no identification when arrested.
In the civil context of a deportation proceeding, the United States Supreme Court observed that "[t]he `body' or identity of a defendant or respondent in a criminal or civil proceedings is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). In Lopez-Mendoza, an immigration judge ordered the defendant deported despite the defendant's contention that the Immigration and Naturalization Service had arrested him illegally at his place of employment following a tip that illegal aliens were working there. The defendant only contested being summoned to the deportation proceeding after an allegedly illegal arrest; he did not challenge the actual evidence offered against him. The Board of Immigration Appeals affirmed the immigration judge's deportation order, stating that "[t]he mere fact of an illegal arrest has no bearing on a subsequent deportation proceeding." Id. at 1040. In affirming the Board, the Court noted that deportation proceedings are purely civil actions intended to provide "a streamlined determination of eligibility to remain in this country, nothing more. The purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws." Id. In determining whether the protection of the exclusionary rule should apply in the civil context of deportation proceedings, the Court held that "[credible] evidence derived from [peaceful] arrests by INS officers need not be suppressed in an INS civil deportation hearing" where the INS must only prove identity and alienage. Id. at 1051.
Two circuits have extended this rule developed in the civil context of deportation proceedings to criminal prosecutions under 8 U.S.C. § 1326. The Fifth Circuit has ruled that despite an illegal stop, neither a defendant's INS file nor his identity are suppressible. United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999). The Ninth Circuit has ruled that neither a defendant's identity nor records of previous convictions and deportations and convictions are suppressible as a result of an illegal arrest. United States v. Guzman-Bruno, 27 F.3d 420, 421-22 (9th Cir. 1994). The Eighth Circuit has not directly addressed the matter.
The United States District Court for the District of South Dakota, however, declined to extend Lopez-Mendoza to a situation in which, after a legal traffic stop, an officer illegally detained a passenger in a car for questioning in an effort to establish the defendant's identity as an illegal alien. The court noted that in Lopez-Mendoz the Supreme Court was concerned only with the "thejurisdictional concern that the `body' of the defendant is never suppressible," and did not address directly "whether statements by a defendant regarding his identity may be suppressed." United States v. Mendoza-Carrillo, 2000 WL 1159114, *7 (D.S.D. 2000) (emphasis added). The court said that Lopez-Mendoza and its progeny dealt only with the issue of jurisdiction over the person of the defendant, but not with whether evidence of the defendant's identity had been illegally obtained. The court criticized the Fifth and Ninth Circuit's broad reading of Lopez-Mendoza, noting that
[i]nterpreting the language of Lopez-Mendoza in this way, however, raises some serious concerns. The Supreme Court has opined that while Congress has broad powers over immigration, such power `cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens.' At least with regard to illegal reentry cases, the Government's interpretation of Lopez-Mendoza allows law enforcement agents to approach anyone at anytime, even in an egregious or violent manner, which was not the case here, and demand that the person identify themselves and then would allow the government [to] use that information against that person. The Court acknowledges that the INS must have a way to combat illegal reentry. However, giving law enforcement officials an incentive to discover a person's identity in whatever way they can puts the privacy rights of legal aliens and any citizen that might for any reason be suspected of illegal reentry at too great a risk. In addition, the suppression of the defendant's statement of his identity will not hamper the INS in civil deportation proceedings. Therefore this Court declines to follow Guzman-Bruno and holds that while an illegal detention will not free a defendant from the jurisdiction of a court, the evidence resulting from that illegal detention, including the defendant's statement of his identity, can be suppressed.Id. at *8 (internal citations omitted). In addition to suppressing the defendant's statement of his identity, the court also suppressed the defendant's fingerprints as the result of the illegal detention. Id. at 9.
I find the district court's analysis persuasive. I have already ruled that the initial traffic stop was unlawful and ordered that all evidence seized during the search of the defendant must be suppressed pursuant to the exclusionary rule. To allow the government to now prosecute the defendant for illegal reentry using evidence that was obtained during an unlawful detention — evidence that the government would not have had but for the illegal traffic stop and detention — would offend basic notions of fair play as well as Fourth Amendment interests protected by the exclusionary rule. I therefore conclude, adopting the reasoning of Judge Piersol of the South Dakota District Court, that the defendant's identity and fingerprints can be suppressed.
Because I find that the defendant's identity and fingerprints can be suppressed based on the reasoning in Mendoza-Carrillo, I will not address the defendant's other contention that the government's decision to prosecute him on the illegal re-entry charge is based on an improper motive, namely, retaliation for the dismissal of the drug charges against him. Accordingly,
IT IS ORDERED that
1. The report and recommendation (Filing No. 18) of the magistrate is adopted insofar as it recommends that I should grant the defendant's motion to suppress (Filing No. 12) in connection with any statements the defendant made to Omaha police officers following the traffic stop and detention at issue.
2. The report and recommendation (Filing No. 18) of the magistrate is rejected insofar as it recommends that I should deny the defendant's motion to suppress (Filing No. 12) in connection with the defendant's actual identity or fingerprints.
3. The defendant's statement of objections (Filing No. 19) to the magistrate's report and recommendation (Filing No. 18) is sustained.
4. The defendant's motion to suppress (Filing No. 12) is granted.