Identity Evidence Held to be Suppressible in a Reentry Case

UNITED STATES of America, Plaintiff-Appellant, v. Gustavo OLIVARES-RANGEL, 2006 WL 2328740 (10th Cir. Aug. 11, 2006): In a split decision, Judges Ebel and Lucero held, in a criminal prosecution for illegally reentering the United States after deportation, that statements of identity could be suppressed if seized after a Fourth Amendment violation. It rejected the government’s contention that the Supreme Court's decision in Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032 (1984), forecloses the possibility of suppressing any evidence of identity in a criminal case, stating “We conclude that Lopez-Mendoza does not prevent the suppression of all identity-related evidence. Rather, Lopez-Mendoza merely reiterates the long-standing rule that a defendant may not challenge a court's jurisdiction over him or her based on an illegal arrest. Ultimately, we conclude that evidence of Defendant's oral statements were correctly suppressed. However, we remand for further factfinding on the suppression of Defendant's fingerprints and his INS file.”

Ebel wrote the decision, and was joined by Lucero, and largely affirmed Judge Brack's decision suppressing the defendant's statements. The majority agrees that Lopez-Mendoza does not forbid suppression of "identity evidence." The majority had no problem affirming suppression of Defendant's statements. However, Ebel and Lucero balked at the idea of suppressing the fingerprints and remanded for further proceedings.To my amazement, I now know that police officers take fingerprints in part to protect individual rights. Indeed, "[t]he government always has the right, and indeed the obligation, to know who it is they hold in custody regardless of whether the arrest is later determined to be illegal." Lopez-Mendoza "does not automatically exempt all fingerprint evidence from the application of the Wong Sun doctrine, application of that rule indicates that fingerprints taken as part of a routine booking procedure following an arrest later determined to be illegal ordinarily will not be poisoned fruit of an illegal arrest and should not be suppressed." Indeed, unlike every other Fourth Amendment doctrine, the officers' subjective purpose and motive in making the arrest is dispositive; if the purpose of the arrest is to obtain the fingerprints, they are tainted fruits; the fingerprints are obtained "routinely" and apparently are not unlawful fruits no matter how unlawful the arrest. To put a further confusing gloss on this bizarre contortion of the exclusionary rule, the panel makes clear that inquiry is to "determine the original purpose for arresting and later fingerprinting Defendant; that is, was Defendant fingerprinted merely as part of a routine booking or processing procedure or was the illegal arrest in part for the purpose of obtaining unauthorized fingerprints so Defendant could be connected to additional alleged illegal activity." (I guess linking Defendant to his criminal history and A-file for the purpose of enhancing his sentence doesn't count.) The panel finds the record insufficiently developed on this point, so remands for further proceedings. Fortunately, the panel does agree that if the fingerprints are found to be suppressible, then the A-file should be as well. Ebel and Lucero don't buy the bogus "Defendant doesn't have standing to contest use of the A-file" argument that other circuits, like the Fifth, have fallen for.

Baldock dissented. He would have found that the arrest was lawful because Agent Armendariz (the one Brack specifically found to be not credible) claimed to recognized Defendant as an illegal alien as soon as Armendariz laid eyes upon him. As the majority points out, however, the government waived this and many other arguments.