U.S. v. Oscar-Torres

• Decision Date: 08 November 2007
• Docket Number: No. 06-5074.,06-5074.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul Mesa OSCAR-TORRES, a/k/a Raul Pelaes Gonzalez, a/k/a Raul Torres Meza, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

507 F.3d 224

UNITED STATES of America, Plaintiff-Appellee, v. Raul Mesa OSCAR-TORRES, a/k/a Raul Pelaes Gonzalez, a/k/a Raul Torres Meza, Defendant-Appellant.

No. 06-5074.

United States Court of Appeals, Fourth Circuit.

Argued: September 28, 2007.

Decided: November 8, 2007.

ARGUED: Eric Joseph Brignac, Research and Writing Attorney, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Eric David Goulian, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit Judge, and RAYMOND A. JACKSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Senior Judge HAMILTON and Judge JACKSON joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After arresting Raul Mesa Oscar-Torres without a warrant as part of a nationwide initiative to apprehend illegal alien gang members, law enforcement officers fingerprinted him and thus obtained his criminal and immigration records. The Government then charged him with one count of illegally reentering the United States following commission of a felony and deportation, in violation of 8 U.S.C.A. § 1326(a) and (b)(1) (West 2005 & Supp.2007). Prior to trial, Oscar-Torres moved to suppress the fingerprint evidence and the records obtained through it as the "fruit" of his illegal arrest. The district court denied the motion, reasoning that this evidence constituted "identity" evidence and therefore could never be suppressed. Oscar-Torres conditionally pled guilty, reserving the right to appeal denial of his suppression motion. We reverse and remand for further proceedings.

I.

In July 2005, the Bureau of Immigration and Customs Enforcement (ICE) conducted a two-week, nationwide enforcement action as part of Operation Community Shield, an initiative targeting street gang members illegally present in the United States. Oscar-Torres's arrest occurred during the Operation Community Shield enforcement action in Raleigh, North Carolina.

On July 22, 2005, ICE agents and Raleigh police officers went to the Fox Ridge Manor apartment complex in Raleigh, the last known address of a number of suspected gang members. Several teams of officers went to individual apartments seeking to arrest specific gang members. One team stationed itself at the only entrance to the complex and stopped all vehicles entering and leaving in order to question the occupants.

The officers stationed at the entrance stopped and questioned Oscar-Torres, among others. In response to their questions, he admitted to being an illegal alien and, at their request, lifted his shirt to display a tattoo that they believed signified gang membership. Without a warrant, the officers then arrested Oscar-Torres and transported him to ICE headquarters, where they fingerprinted, photographed, and interrogated him, failing to advise him of his Miranda rights until seven hours after his arrest. His statements during the interrogation and his fingerprints, obtained prior to any advisement of rights, led to the discovery of Oscar-Torres's criminal record and prior deportation.

The Government charged Oscar-Torres with violating 8 U.S.C.A. § 1326(a) and (b)(1). Oscar-Torres moved to suppress all evidence "regarding the discovery" of his "presence" in this country; the Government stipulated that it would not "use the statements made by the defendant as a result of the unlawful arrest as part of its case-in-chief," but contended that it should be permitted to use Oscar-Torres's fingerprints and the records obtained from them. Although the magistrate judge recommended that Oscar-Torres's warrantless arrest be found contrary to law, the judge nevertheless recommended that the fingerprints and records not be suppressed. The judge reasoned that they constituted evidence of Oscar-Torres's identity, and, the judge held, evidence of identity could never be suppressed, even if obtained through an illegal arrest. The district court, on de novo review, adopted the recommendation of the magistrate judge and denied the suppression motion.

On appeal, the Government concedes that the authorities stopped Oscar-Torres without "reasonable, particularized suspicion of illegal activity," let alone probable cause. See Brief for the United States at 13 & n. 6. Moreover, the Government does not seek admission of Oscar-Torres's statements. Thus, we consider only Oscar-Torres's claim that the district court erred in denying his motion to suppress the fingerprint exemplar and records obtained from it. When faced with a ruling on a suppression motion, we review conclusions of law de novo and underlying factual findings for clear error. United States v. Jarrett, 338 F.3d 339, 343-44 (4th Cir.2003).

II.

Indisputably, suppression of evidence obtained during illegal police conduct provides the usual remedy for Fourth Amendment violations. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Courts will also suppress evidence that is the indirect product of the illegal police activity as "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Of course, not all evidence that "would not have come to light but for the illegal actions of the police" is suppressible as fruit of the poisonous tree. Id. Rather, the critical inquiry is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Id. (internal quotation marks omitted).

The Government's principal contention here is not that the fingerprint and related evidence escapes suppression because it was obtained by means "purged of the primary taint." Rather, the Government's chief claim is that the fingerprint exemplar and attendant records constitute evidence of identity which, according to the Government, can never be suppressed, even if obtained as the "fruit" of illegal police activity. In so arguing, the Government heavily relies on the following sentence from INS v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984):

The "body" or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.

The Government contends that this "identity statement" establishes the broad rule that evidence of a defendant's identity can never be suppressed. Oscar-Torres argues instead that the Lopez-Mendoza "identity statement" merely reaffirms the well-established proposition that illegal police activity does not preclude a court from exercising personal jurisdiction over a defendant or serve as a basis for dismissing his prosecution.¹

The meaning of the Lopez-Mendoza "identity statement" has bedeviled and divided our sister circuits.² Compare United States v. Olivares-Rangel, 458 F.3d 1104, 1106 (10th Cir.2006) (interpreting Lopez-Mendoza as merely reiterating long-standing jurisdictional rule), and United States v. Guevara-Martinez, 262 F.3d 751, 754-55 (8th Cir.2001) (same), with United States v. Bowley, 435 F.3d 426, 430-31 (3d Cir.2006) (interpreting Lopez-Mendoza as barring suppression of evidence of identity), United States v. Navarro-Diaz, 420 F.3d 581, 588 (6th Cir. 2005) (same), and United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999) (same). We now turn to this question.

III.

Close examination of Lopez-Mendoza itself, as well as other Supreme Court precedent, persuades us that Lopez-Mendoza does not prohibit suppression of evidence of a defendant's identity. We reach this conclusion for several reasons.

First, all of the authority that the Supreme Court cites in support of its "identity statement" in Lopez-Mendoza addresses a court's jurisdiction over a defendant himself, not suppression of unlawfully obtained evidence relating to his identity. See Lopez-Mendoza, 468 U.S. at 1039-40, 104 S.Ct. 3479 (citing Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (reaffirming the "established rule that illegal arrest or detention does not void a subsequent conviction"); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952) ("[T]he power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a `forcible abduction.'"); United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 158, 44 S.Ct. 54, 68 L.Ed. 221 (1923) ("Irregularities on the part of the Government official prior to, or in connection with, the arrest would not necessarily invalidate later proceedings in all respects conformable to law.")).

As Judge Ebel carefully explained for the Tenth Circuit in Olivares-Rangel, 458 F.3d at 1110, the Supreme Court's reliance on these cases in Lopez-Mendoza is telling. This reliance indicates that the Court's "identity statement" simply references "the long-standing rule, known as the Ker-Frisbie doctrine, that illegal police activity affects only the admissibility of evidence; it does not affect the jurisdiction of the trial court or otherwise serve as a basis for dismissing the prosecution." Id.³

The context of the Lopez-Mendoza "identity statement" also indicates that the Supreme Court intended only to restate an established jurisdictional rule. The ...