Arrest of Alien Was Not Supported By Probable Cause; Suppression Order Affirmed

U.S. v. Argueta-Mejia, 2015 WL 3895213 (6/25/15) (Col.) (unpub'd) - In this case, the plain-error tables are turned against the government. Before the district court the government argued a state officer could arrest Mr. Argueta-Mejia for an immigration offense, but did not contest Mr. Argueta-Mejia's contention that the arrest was made without probable cause. The court ruled the arrest was illegal because the officer did not follow statutory procedures governing immigration officials. The 10th holds the federal constitution allows a state officer to arrest for any crime, including federal immigration offenses. But the probable cause question remained. On appeal the government argued there was probable cause. The 10th suggests the government's failure to argue probable cause below waived the issue, but it elects to review for plain error because the defense wins in any event. As for the defense's preservation of the issue, orally raising the lack of probable cause at a status conference is allowed by the Rules of Criminal Procedure, see Fed. R. Crim. P. 47. Things are not good for the government in plain-error-ville. When the officer arrested Mr. Argueta-Mejia, proof of one element---that Mr. Argueta-Mejia did not have permission to reenter after removal---was missing. That Mr. Argueta-Mejia was removed was not evidence he did not receive reentry permission. The 10th is not impressed by the government's claim at oral argument that permission is "not easy to come by." No evidence supported that claim. There was no case law as to whether you could arrest for a reentry offense without evidence of the permission element. The circuits were split as to whether there must be at least some evidence of every element of an offense. Neither the 10th nor the S. Ct. has addressed that issue. Any error was not plain.

As for the remedy, Olivares-Rangel required suppression of the fingerprints and other identity evidence. To avoid the exclusionary rule the government had to prove fingerprints were taken solely as part of a routine booking procedure. The government couldn't meet that burden. The district court's finding that the fingerprinting was in part done to aid in the investigation of Mr. Argueta-Mejia's immigration offense was not clearly erroneous. Mr. Argueta-Mejia was arrested because he was a previously deported felon. ICE conducted the booking process. The fingerprinting was done to ID Mr. Argueta-Mjeia as a previously deported felon. And there was no evidence the government could retrieve Mr. Argueat-Mejia's immigration record without his fingerprints. Olivares-Rangel required suppression regardless of whatever policy reasons the government proffered against suppression.