By guest bloggers Katrina Bondoc and Jacob Egler, Northwestern School of Law at Lewis & Clark College
The United States Supreme Court is considering the implications of its seminal case, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (which held that the Fourth Amendment exclusionary rule is inapplicable to deportation proceedings) in a New York State criminal proceeding. The case is called Tolentino v. New York, 0-11556. The question presented is: Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?
Lopez-Mendoza has always been a difficult case to grapple with in the immigration context. In anticipating the implications of a decision in Tolentino, we’ve pulled together a summary of how Lopez-Mendoza is treated in the different circuits and the state of law regarding suppression.
The general rule from Lopez-Mendoza is that deportation proceedings (and, likewise, removal proceedings) are civil actions that determine the eligibility of an alien to remain in the United States. Thus, certain protections afforded to defendants in criminal actions, such as the exclusionary rule, are inapplicable in removal proceedings. However, this is not unfettered. A glimmer of hope lies in language in Lopez-Mendoza pertaining to “egregious violations of the Fourth Amendment or other liberties that transgress notions of fundamental fairness and undermine the probative value of evidence obtained.” See Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 (1st Cir. 2004); see also Gonzalez-Reyes v. Holder, 313 Fed. Appx. 690, 695 (5th Cir. 2009) (exclusionary rule is inapplicable in removal proceedings, absent some egregious violations of Fourth Amendment or other liberties). See e.g. Martins v. Attorney General of the United States, 306 Fed. Appx. 802, 804 (3d Cir. 2009) (affirming denial of suppression of evidence gathered by police and immigration officials under the fairly ordinary conditions the alien was interviewed in).
The exception, while technically present, is practically nonexistent outside the Ninth Circuit. The requisite level of egregiousness is largely undefined, and courts outside the Ninth Circuit have construed the exception very narrowly. For instance, the Fifth Circuit has expressed misgivings about readily finding an egregious violation when the example given by the Lopez-Mendoza plurality involved induced vomiting. See Escobar v. Holder, 2010 WL 4009870 (5th Cir. 2010); see also Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010) (exclusion is seen as a “relatively narrow remedy” and “very minor physical abuse coupled with aggressive questioning” is not considered egregious). In addition to egregious violations of the Fourth Amendment or other liberties prong, the “and undermine probative value of evidence obtained” prong has been interpreted in some circuits to require that the unlawfully obtained evidence of an alien’s identity also undermine its probative value. The usual scenario involves obtaining an alien’s identity, which ultimately relates to her status, through other lawful means. Thus, unlawfully obtained evidence does not undermine its probative value even though the government would have never learned of the alien’s status but for the violation. In Miguel v. INS, 359 F.3d 408, 410 (6th Cir. 2004), the court refused to analyze the applicability of the exception because the alien’s removability was based on her own admissions independent from evidence gathered by INS agents that had conducted a search of her home in potential violation of the Fourth Amendment. Id at 411. Potential violations of liberties notwithstanding, the second prong effectively functions as a catch-all for the government.
The Second Circuit, however, makes use of the disjunctive “or.” The standard is not a two-part test. Rather, it is a question of whether the evidence was obtained under the context of an egregious violation or undermines the probative value of the evidence obtained. Almeida-Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir. 2006) (“the Lopez-Mendoza court inadvertently used the conjunctive ‘and’ instead of the disjunctive ‘or’ to link these two possible grounds for deeming a violation egregious”). The Eighth Circuit also appears to have adopted this view and has given further guidance on what might qualify as egregious by listing violations involving physical brutality, unreasonable show or use of force, or an arrest based solely on race. Puc-Ruiz v. Holder, 2010 WL 5185803 (8th Cir. 2010). While a disjunctive standard seemingly broadens the exception, it has yet to be successfully applied.
Only the Ninth Circuit takes an expansive view of the Lopez-Mendoza exception. In the Ninth Circuit, the applicable test is “[a] Fourth Amendment violation is egregious if evidence is obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should have known is in violation of the Constitution.” Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008) (internal quotations omitted). See also Martinez-Medina v. Holder, 616 F.3d 1011 (9th Cir. 2010) (an egregious violation had not occurred because a reasonable officer would not have known he lacked probable cause). The expansive nature of this interpretation of the exception is best understood through comparison with the dissent from the order denying rehearing en banc of Lopez Rodriguez v. Holder. In the dissenting judges’ view “[The 9th Circuit] seem[s] to have turned Supreme Court plurality dicta into majority dicta simply by saying so. Then…applied that dicta, in a manner not consistent with the sole case cited in the dicta, to create a new rule-one never envisioned by either the Supreme Court majority or the plurality.” Lopez-Rodriguez v. Mukasey, 560 F.3d 1098 (9th Cir. 2009).
However, in cases concerning criminal deportation proceedings under 8 U.S.C. § 1326, courts more readily accept the appropriateness of the “egregious violation” exception in both jurisdictions that interpret the “identity statement” in Lopez-Mendoza as applicable to a court’s jurisdiction over a defendant, and as an evidentiary issue. In United States v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007), the court explained that in a criminal deportation proceeding, there are instances for suppressing evidence of a defendant’s identity because the language pertaining to “identity statement” in Lopez-Mendoza is in regards to a court’s jurisdiction over a defendant, not suppression of unlawfully obtained evidence relating to his identity. The court further emphasized that the exclusionary rule does not apply in civil deportation proceedings. Id. at 230. In circuits that interpret the “identity statement” in Lopez-Mendoza as barring suppression of evidence of identity, the “egregious violation” exception is also invoked. See United States v. Bowley, 435 F.3d 426, 431 (3d Cir. 2006) (In a criminal deportation proceeding for illegal reentry, an alien needs an egregious violation of the Fourth Amendment to warrant suppression of his immigration file or its contents). See also United States v. Navarro-Diaz, 420 F.3d 581, 587 (6th Cir. 2005) (in an 8 U.S.C. § 1326 proceeding, the alien’s motion to suppress his identity was denied in the absence of an “egregious violation of the Fourth Amendment”). On one extreme, the District Court of Massachusetts has completely done away with the exception, at least in the context of a criminal deportation proceeding, under the rationale that the exclusionary rule never operates to suppress a person’s identity because the exception language in Lopez-Mendoza is mere dicta. See U.S. v. Sandoval-Vasquez, 519 F. Supp. 2d 198, 300 (D. Mass. 2007) (In addressing the issue of whether evidence of defendant alien’s identity is suppressible because of a search and seizure under a wrongful warrant, the court reasoned that the “egregious violation” statement in Lopez-Mendoza had no application to the Court’s earlier ruling that the exclusionary rule never operates to suppress a person’s identity).
If you have a case (at any stage the proceedings) raising a suppression issues, would like to contact the authors or the AILA Amicus Committee, please send an email to firstname.lastname@example.org