458 F.3d 1104 (10th Cir. 2006), 04-2194, United States v. Olivares-Rangel

Docket Nº:04-2194.
Citation:458 F.3d 1104
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Gustavo OLIVARES-RANGEL, Defendant-Appellee.
Case Date:August 11, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1104

458 F.3d 1104 (10th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellant,


Gustavo OLIVARES-RANGEL, Defendant-Appellee.

No. 04-2194.

United States Court of Appeals, Tenth Circuit.

Aug. 11, 2006

Appeal from the United States District Court for the District of New Mexico D.C. No. CR-04-528 RB

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Mark A. Saltman, Special Assistant United States Attorney, Las Cruces, New Mexico (David C. Iglesias, United States Attorney, District of New Mexico, with him on the briefs), for Plaintiff-Appellant.

Barbara A. Mandel, Assistant Federal Public Defender, Las Cruces, New Mexico, for Defendant-Appellee.

Before LUCERO, BALDOCK, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This case involves a prosecution under 8 U.S.C. § 1326, which makes it a crime to be present in the United States illegally after having been previously deported. Here, two border patrol agents, acting on an anonymous tip, stopped Gustavo Olivares-Rangel ("Defendant") as he was leaving a trailer park and questioned him about his identity and citizenship. After Defendant admitted to being an illegal alien, he was arrested and taken to a border patrol station where he was questioned further and fingerprinted. Based on his fingerprints, the agents were able to connect Defendant to an INS file that indicated he had a previous felony conviction. This increased the maximum penalty for Defendant's § 1326 offense to a sentence of 20 years.

Defendant argued that his seizure was not based upon probable cause or reasonable suspicion and moved to suppress all the evidence in the case as fruit of the poisonous tree. The district court agreed and excluded Defendant's statements, his fingerprints, and the contents of his INS file. On appeal, the Government does not contest the illegality of the seizure. Rather, it argues primarily that the Supreme Court's decision in Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), forecloses the possibility of suppressing any evidence of identity in a criminal case.

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We conclude that Lopez-Mendoza does not prevent the suppression of all identity-related evidence. Rather, Lopez-Mendoza merely reiterates the longstanding 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.

Having jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291, we AFFIRM in part, REVERSE in part, and REMAND.


I. Factual background

Sometime during January 2004, agents Luis Armendariz and Mark Marshall of the United States Border Patrol apprehended an illegal alien ("the informant") in Berino, New Mexico. On the way to the border patrol station, the informant told one of the agents that he knew of several other illegal aliens living in a trailer in Vado, New Mexico, who were possibly burglarizing homes in the area. The agents took a detour to a trailer park in Vado, and the informant pointed out the trailer where the alleged criminals lived.

Over the next three weeks, Agents Armendariz and Marshall made numerous visits to the trailer park in Vado looking for the suspects, but did not discover anyone until February 2, 2004. At about 10:00 a.m. on that date, the agents approached the trailer and saw a green pickup truck exiting the narrow driveway. The agents intercepted the vehicle, thereby blocking its exit from the trailer park. Once the vehicles were bumper-to-bumper, Agent Armendariz immediately recognized the passenger of the pickup as Defendant, an immigrant he had arrested a month or two before for being in the United States illegally.1

Agent Armendariz questioned the occupants of the pickup (including Defendant) about their citizenship prior to giving any warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). According to Agent Armendariz, Defendant admitted he was a Mexican citizen and in the United States illegally. Defendant was then arrested and taken to the border patrol station where he was fingerprinted and asked about his biographical information. Based on this evidence, Agent Armendariz connected Defendant with his immigration record and prior criminal record (also known as his "A-file" or "alien file"), which indicated that he was a previously deported alien. At this point, Agent Armendariz first read Defendant his Miranda rights and sent him to the Otero County Jail.

II. Procedural background

On March 4, 2004, a federal grand jury issued an indictment charging Defendant

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with illegally being present within the United States after being previously deported, pursuant to 8 U.S.C. § 1326(a) (2000). Because Defendant had been previously convicted of an aggravated felony, he was also charged under 8 U.S.C. § 1326(b), which made him eligible for a maximum sentence of 20 years' imprisonment.

Defendant filed a motion to suppress "any physical evidence and statements obtained as a result of the unlawful seizure and interrogation of [Defendant] on February 2, 2004." Defendant argued that the seizure and interrogation were conducted in violation of his Fourth and Fifth Amendment rights. On June 8, 2004, the district court held a suppression hearing, during which it took testimony from Agents Armendariz and Marshall as well as Sofia Delgado, a witness to the events of February 2, 2004.

The district court granted Defendant's motion, suppressing "all statements and fingerprints seized from [Defendant], as well as the immigration and criminal records located using that evidence of identity." In its written order, the court made a number of conclusions of law which are relevant to this appeal.

First, the court concluded that both "the stop and subsequent arrest" of Defendant at the trailer park violated the Fourth Amendment. The Government did not directly dispute this conclusion, nor did it argue in either its opening or reply brief that Border Patrol had probable cause to arrest Defendant. To the contrary, the Government expressly acknowledged in its briefing that it was "not challeng[ing] the district court's factual findings and conclusions that Border Patrol violated [Defendant]'s Fourth Amendment right[s]." Additionally, at oral argument, the Government explicitly confirmed that it was appealing only the legal question of whether Defendant's identity-related evidence could be suppressed as fruits of a poisonous tree and was not appealing the district court's conclusion that Border Patrol lacked probable cause to arrest Defendant.2 Accordingly, the Government waived the issue of probable cause by failing to raise it, see State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994), and conceded for purposes of this appeal that Defendant was unlawfully arrested.3

Second, the court determined that the fingerprints taken at the border patrol station and the statements that Defendant made at that time must be suppressed as "fruit of the poisonous tree." In doing so, the court applied the factors set forth in Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Specifically,

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with regard to Defendant's oral statements, the court noted that Miranda warnings had not been given when Defendant incriminated himself.4

Third, the court concluded that the Government had not met its burden of proving that the evidence in question would have been inevitably discovered in the absence of the Fourth Amendment violation. See United States v. White, 326 F.3d 1135, 1138 (10th Cir. 2003). The Government has not appealed this point.

Fourth, the court considered and rejected the very argument that the Government makes on appeal here, that the "body" or "identity" of a defendant is never itself suppressible as fruit of an unlawful arrest and thus no evidence pertaining to identity may be suppressible. See Lopez-Mendoza, 468 U.S. at 1039, 104 S.Ct. 3479. Concluding that the Supreme Court was speaking about jurisdictional challenges under the Fourth Amendment as opposed to evidentiary challenges to tainted identity evidence, the district court held Lopez-Mendoza was inapplicable and that the case did not prohibit suppression of the statements and fingerprints.

Finally, the court turned to the contents of Defendant's A-file. Since it had concluded that all of the evidence leading Agent Armendariz to discover the existence of the file should be suppressed, the court also suppressed the contents of the A-file, which included Defendant's criminal and immigration records.

To summarize, the district court excluded four pieces of evidence: (1) Defendant's initial statement at the time of his arrest; (2) the fingerprint evidence taken at the border patrol station; (3) the contents of Defendant's A-file; and (4) Defendant's oral statements regarding biographical information made at the border patrol station. The instant appeal by the government followed.


I. Standard of review

A district court's decision to suppress evidence under the Fourth Amendment is a question of law that we review de novo. United States v. Evans, 937 F.2d 1534, 1536-37 (10th Cir. 1991).

II. Issue on appeal

This appeal raises the question of whether evidence of a defendant's identity (including statements, fingerprints, and an A-file) may ever be suppressed as the "fruit" of an unlawful arrest. Before examining the merits of the Government's argument, it is helpful first to place this issue in its proper Fourth Amendment context.

The ordinary remedy in a criminal case for violation of the Fourth Amendment is suppression of any evidence obtained during the illegal police conduct. See Mapp v. Ohio, 367 U.S. 643, 648, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In addition, a...

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