463 F.3d 547 (6th Cir. 2006), 05-4199, United States v. Abdi

Docket Nº:05-4199.
Citation:463 F.3d 547
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Nuradin M. ABDI, Defendant-Appellee.
Case Date:September 22, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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463 F.3d 547 (6th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellant,

v.

Nuradin M. ABDI, Defendant-Appellee.

No. 05-4199.

United States Court of Appeals, Sixth Circuit.

Sept. 22, 2006

Argued: July 19, 2006.

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ARGUED:

John F. De Pue, United States Department of Justice, Washington, D.C., for Appellant.

Mahir T. Sherif, San Diego, California, for Appellee.

ON BRIEF:

John F. De Pue, Sylvia T. Kaser, United States Department of Justice, Washington, D.C., Dana M. Peters, United States Attorney, Columbus, Ohio, for Appellant.

Mahir T. Sherif, San Diego, California, for Appellee.

Before BOGGS, Chief Judge; COLE, Circuit Judge; WISEMAN, District Judge. [*]

WISEMAN, D.J.,, in which BOGGS, C.J., joined. COLE, J. (pp. 562-68), delivered a separate dissenting opinion.

OPINION

THOMAS A. WISEMAN, JR., District Judge.

In this interlocutory appeal, the United States (the "Government") appeals a decision of the district court suppressing statements made by Defendant-Appellee Nuradin M. Abdi ("Abdi" or "Defendant") after his warrantless arrest, but prior to his consultation with counsel on December 7, 2003, as well as the physical evidence recovered on the day of his arrest ("derivative evidence"). The district court concluded that the Government had probable cause to support the administrative arrest for alleged violations of immigration laws as set forth in 8 U.S.C. § 1182(a)(3)(B)(iv). The court, nevertheless, held that the statements and derivative evidence should be suppressed because the objective facts known to the officers, taken together, did not support the Government's claim that Abdi was an escape risk, and that the arrest therefore violated 8 U.S.C. § 1357(a)(2) (authorizing warrantless arrests for immigration violations under specific circumstances).

In this appeal, the Government argues that even assuming it violated 8 U.S.C. § 1357(a)(2) by failing to obtain an administrative warrant prior to arresting Abdi, which the Government does not concede, 1 the arrest did not violate Abdi's constitutional rights under the Fourth Amendment. Thus, the Government contends that the district court acted improperly by imposing a suppression remedy for a purely statutory violation. Abdi, on the other hand, in urging this court to affirm the district court's suppression of the statements and derivative evidence, argues that the district court was correct in applying

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the suppression remedy for the warrantless arrest because it violated 8 U.S.C. § 1357(a)(2) and further, that the Government lacked probable cause to arrest him for a felony as required by the Fourth Amendment. 2

Because we find that suppression is not an appropriate remedy for violation of the administrative warrant requirement of 8 U.S.C. § 1357(a)(2), and that Abdi's Fourth Amendment rights were not violated by his public warrantless arrest based on probable cause, we conclude that the district court erred when it suppressed Abdi's statements and the derivative evidence. We therefore REVERSE the district court's suppression of Abdi's statements made prior to December 7, 2003 and derivative evidence and REMAND for further proceedings consistent with this opinion.

I. FACTS

According to the testimony presented at the suppression hearing and the findings of the district court, the essential background facts are as follows. Abdi first came to the Government's attention in March 2003. At that time, members of the Joint Terrorism Task Force (JTTF) 3 learned from Iyman Faris, a known and now convicted member of the Al Qaeda organization who was cooperating with the Government's investigation, 4 that he knew Abdi, had met with him a couple of times, and that during one of their meetings between January and March 2003 in the presence of Faris and another man, Abdi had indicated a desire to "shoot up" a Columbus shopping mall with an AK-47. (Joint Appendix ("JA") 76-78, 329.)

On April 3, 2003, the FBI interviewed Abdi at his cell phone store about his relationship with Faris and whether he had made the alleged statement. Abdi admitted knowing Faris but denied making the statement Faris attributed to him. (JA 332.) According to Abdi, the agents requested and were granted permission to search his apartment but did not find any weapons. According to the Government, an examination of Faris' computer sometime in April or May of 2003 revealed that in July 2001 Abdi had sent e-mail correspondence to Faris suggesting he review several websites where he could purchase

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surveillance equipment, such as night-vision goggles, small cameras, and listening devices. Based on this information and the fact that other information Faris had furnished had proven reliable, the agents took Abdi's alleged threat seriously and opened a formal investigation of Abdi on June 5, 2003. (JA 450-51.) Later that month, law enforcement officers interviewed Mehmet Aydinbelge, another informant, who confirmed the relationship between Faris, Abdi and the third man allegedly present when Abdi made the threats, explaining that the three often met after prayer service at their mosque.

After opening the formal investigation, the FBI began tracking Abdi's phone calls. According to the Government, between June and November 2003, Abdi placed calls to approximately forty different phone numbers the FBI associated with terrorism-related activities. 5 The FBI, which was at this point working in tandem with Immigration and Customs Enforcement ("ICE"), concluded that Abdi was a national security threat and should be arrested. (JA 171.) Although the FBI was the lead investigative agency, the two agencies, officially linked by the JTTF, decided that because Abdi's actions constituted a violation of immigration law as set forth in 8 U.S.C. § 1182(a)(3)(B)(iv)(II), an administrative arrest by ICE pursuant to 8 U.S.C.§ 1357(a)(2) would be the most expedient way to disrupt the terrorism threat. (JA 453-54.)

Any "signatory officer" within ICE is ordinarily empowered to issue an administrative arrest warrant for violations of immigration law. (JA 173.) See 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.5(c). In order to obtain a standard administrative arrest warrant immigration officers draft and present a charging document known as a "Notice to Appear" ("NTA"), which sets forth the factual and legal basis for the immigration arrest, along with any supporting documents to the signatory officer for review. (JA 177, 183.) However, in cases where the basis for the arrest is a threat to national security, internal ICE policy and procedure require that the national security law division of ICE conduct a probable cause review for legal sufficiency purposes prior to the issuance of either an NTA or an administrative arrest warrant. (JA 175, 179.) In order to facilitate the probable cause review, ICE agents must submit an affidavit or other document, such as a national security declaration, setting forth the factual basis for an administrative arrest based on national security concerns. (JA 173.)

Beginning in October 2003, FBI Senior Supervisory Agent ("SSA") James Turgal, working with information provided by Special Agent ("SA") Flowers, began to draft the necessary national security declaration (the "Turgal Declaration") setting forth the investigative information establishing the probable cause required for an administrative warrant under 8 U.S.C. § 1357(a)(2). According to SSA Turgal, probable cause was based on information that Abdi "was associated with a known terrorist organization, that he made a threat to engage in a terrorist act against the United States, and that he incited and/or solicited others to engage in that act." (JA 74, 142.) The Turgal Declaration was completed shortly after October 28, 2003 6 and thereafter submitted to the

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FBI Headquarter's General Counsel's Office. It then passed to the ICE General Counsel, who was to make the decision on whether to issue an administrative warrant. 7

FBI and ICE spent part of October and most of November determining what portion of the Turgal Declaration, a five-page document, was classified, unclassified, declassified, or about to be declassified. (JA 181-83.) The original plan was to arrest Abdi on Thanksgiving day, but because the agencies were unable to resolve the dispute by November 28, 2003, the day after Thanksgiving, and because the agents purportedly feared that Abdi would carry out his alleged plan on the busiest shopping day of the year, the agents arrested Abdi without a warrant of any kind. 8 (JA 346-47.)

On Friday, November 28, 2003 at approximately 6:00 a.m., two ICE agents, accompanied by two FBI agents, arrested Abdi as he was leaving his home on his way to morning prayer. After one of the ICE agents read Abdi his Miranda rights, he consented to a search of his residence, vehicle, and business. (JA 186-87.) The agents then took Abdi to the Columbus FBI office where he signed a Miranda waiver. Abdi was interviewed by FBI agents for approximately forty-five minutes, during which he admitted knowing Faris but once again denied making statements to suggest he was going to attack a shopping mall. (JA 351-54.) Later that same day, Abdi was transported to Kenton County Detention Center with instructions that he be denied visitation and telephone communication privileges, except communications with defense counsel. After his first night in Kenton County Detention Center, Abdi was isolated from the general prison population and prohibited outside contact. 9 Abdi remained in custody there until December 15, 2003.

According to ICE agents, Abdi was not interviewed again until November 30, 2003. (JA 357.) On that date, the agents took...

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