Pedro Cervantes-Cuevas v. Immigration & Naturalization Service

CERVANTES-CUEVAS, Pedro

Petitioner,

v.

IMMIGRATION & NATURALIZATION

SERVICE, Respondent.

No. 84-7592. Appeals,

United States Court of

Ninth Circuit.

Argued Sept. Submitted 1985.

Decided Dec. Edmondson, Yakima, Wash.,

Paul D. for petitioner.

Thomas Hussey, W. David V. Bernal and Justice, Joan Smiley, Dept, E. Washing- ton, D.C., respondent. WRIGHT, PREGERSON, and Approximately

Before Patrol vehicles. 500 undoc- ALARCON, Judges. by umented aliens were arrested Circuit the Bor- der Patrol in the Yakima Valley during the

ALARCON, Judge. Circuit petitioner week that was detained and then arrested. Pedro Cervantes-Cuevas seeks immigration of the decision of an review The uncontradicted evidence showed that judge, Immigra- affirmed the Board of petitioner approached as the a Border Pa- Appeals, finding petitioner deportable tion parked trol vehicle next pick-up truck, to a 1251(a)(2) entry under 8 U.S.C. with- hour, he slowed to ten per § miles and then inspection. jurisdiction out This court has speeded up forty-five per to miles hour. 1105a(a). under 8 U.S.C. Reversal Petitioner was followed a Border § sought ground immigration stopped on the that the vehicle. He his car when the judge denying petitioner’s flashing lights motion erred were turned on. he suppress to evidence of the statements petitioner After stopped, was by agents following made his detention any asked to establishing show documents Border Patrol. We af- the United States that he lawfully was in the United States. firm. complying Instead of request, with this petitioner agents handed the a G-28 Notice I. PERTINENT FACTS Appearance Attorney. petitioner then was arrested. In a later conversation hearing At the time of the before the agent Patrol, with an of the Border immigration judge, petitioner was a 38 petitioner stated originally that he entered year-old alien, married male who was a the United States from Mexico without in- citizen of Mexico. He entered the United spection. These statements were included during April States from Mexico > in a Form 1-213 report. submitting inspection. without himself for statements, In his suppress motion to subsequent- Petitioner was detained and petitioner contended that the detention and ly arrested on March 1982. Prior to arrest was unlawful because of the “lack detained, being driving was specific, supporting re- Highway Wapato, Washington near arrest, spondent’s interrogation and con- during a time when the United States Bor- jail pursuant Brigno- finement v.U.S. engaged der Patrol operation was in an ni-Ponce, 873, 878, S.Ct. [95 checking places establishments and where (1975).” 45 L.Ed.2d 607] likely congre- undocumented aliens were Petitioner made no contention before gate. operation was based re- immigration judge that the ports informants, received from Border Pa- was or that his statements agents, trol and local law enforcement offi- coerced, duress, made under or were Wapato cers that the area of the Yakima involuntary. otherwise Valley “highly populated” was with undoc- addition, umented aliens from Mexico. sup- submitted an affidavit in investigation, the course of their port of his suppress motion to the state- Border Patrol had observed that following ments obtained his arrest con- when officers in ap- marked vehicles taining allegations: following As he proached housing which contained driving was Highway work on 12 at 6:45 aliens, persons some vicinity in the would 18, 1982, petitioner a.m. on March saw a leave in motor vehicles. Information con- pickup stalled roadway. truck on the He cerning persons the fact that such had de- per slowed his vehicle to 10 miles hour to parted relayed over the radio sur- go around the truck. He observed a Bor- veillance officers in unmarked cars to pick-up der Patrol vehicle behind the truck. persons who would detain who He did not turn his head to look at the stopped their cars ap- and fled on foot or He vehicle. resumed his peared speed up passing forty-five Border per miles hour. concluded that record shows that there were no would rea- articulable facts to a reasonable sonably suspect that the was an suspicion, detention, prior to peti- following other alien based on the facts: tioner was an alien in this coun- agents and local enforcement officers law try? reported through channels that had official Three. Should the decision of the Su- many leaving undocumented aliens were preme Court in INS v. arrest; (2) buildings the in the area of the 3479, U.S. 104 S.Ct. 82 L.Ed.2d 778 fleeing some aliens their in were (1984) applied retroactively be to conduct of others the area in automobiles as were agents Border Patrol prior which occurred questioned; approached being to its effective date? petitioner’s the car slowed down and then Four. Was the value of the speed away it drove increased its as petitioner obtained from the un- observing stopped a Border Patrol vehicle by “egregious” dermined conduct of the pick-up truck. Because it was his behind a arresting officers? record

view that the contained sufficient stopping facts to warrant articulable A. Presence Articulable Facts and determine he whether was an Suspicion Reasonable if in lawfully alien and the United States, concluded question The appropriate of the standard that the arrest was lawful. applicable finding review to the Board’s agent that the Border Patrol had a founded timely appeal Petitioner filed a with the suspicion stopping petitioner is unclear (hereinafter Immigration Appeals Board of in this circuit. Magana, Board). appeal Petitioner’s notice of (9th Cir.1985). F.2d 550-51 Like the Board stated that the arrest was panel however, in Magana, we need not agents that had violat- findings decide suspi- whether founded ed the decision of the are clearly cion reviewable under the Brignoni-Ponce, 422 erro- (1975). review; neous standard or receive de novo He did not review, under either petition- standard of contend that the conduct of the Border er’s detention was Patrol or that his based a founded suspicion activity. statement was of unlawful involuntarily. made See id. at Board concluded that the arrest was lawful because the record contained sufficient ar- argues that the basis for ticulable facts to a reasonable sus- the Border Patrol belief that he

picion that was an undoc- was an physical appear alien—his detention, prior umented alien to his as ance and the fact he that slowed down required by Brignoni-Ponce. Petitioner’s upon approaching pick-up truck and appeal by was dismissed the Board. then continued on forty-five at a per miles hour—was insufficient to II. ISSUES ON APPEAL his detention Brignoni-Ponce. under Al presented by appeal issues can though petitioner, by facts selected summarized as follows: alone, standing not meet the directing petitioner One. Prior to to Court’s standards for a reasonable deten stop vehicle, were the Border Patrol tion, see Nicacio v. specific, aware of (9th Cir.1985) (“Hispanic-looking ap suspicion that warranted a reasonable pearance in an area where illegally residing the car contained aliens in illegal frequently aliens travel are not the United States? enough stop interrogate vehicle”), apply occupants

Two. Does the of a resolution of this deportation proceedings unnecessary. to civil ig- where the has Application articulated the Border B. Exclusionary Rule to nored the were known to him An Arrest agent which Unlawful The record shows prior to the detention. decide, however, We need not if petitioner’s detention time that at the knowledge of these additional facts arrest, agents of the Border Patrol meets the approaching engaged in and interro- Brignoni-Ponce. strictures of recently buildings resided in gating persons who held Benitez-Mendez v. based on information Wapato area (9th Cir.1983) light that in of the Su sources, including official from various preme Court’s decision in Lopez- channels, “highly popu- area was Mendoza, though “even petitioner’s ... ar Amendment, aliens from Mexi- lated” rest violated the Fourth arresting information obtained as officers were also aware the result of the co. The (petitioner’s arrest statements on I- Form of these aliens would flee from that some 213) deportation was admissible at his hear housing units automobiles to avoid their ing.” Thus, 760 F.2d at 910. holding our engaged the officers interrogation compels in Benitez-Mendez us to rule in investigation, and ongoing their that 500 the petitioner’s instant matter that state aliens had been seized in ments were admissible even if we assume during that week. that area that the detention of the was not light cir- It of these additional was specific on based articulable facts or rea the cumstances that sonable that the fact the concluded that a Board person appeared to be an alien slowed who C. Retroactivity Lopez-Mendo- ten miles an hour and then acceler- down to za higher passing ated to after a apparently argues that vehicle, patrol border constituted a suffi- Supreme Court’s decision in Lopez- for a objective suspi- cient basis reasonable applied retroactively. Mendoza cannot be cion that the car contained undocumented argument is meritless. In Benitez Supreme aliens. As Court stated in applied Mendez we Court’s Brignoni-Ponce, the test for lawful vehicle (decided Lopez-Mendoza 5, decision in July stops by roving patrols is awareness of 1985) April to an arrest that occurred facts, “specific together articulable with Benitez-Mendez, 760 F.2d at 908- facts, rational those that inferences from reasonably suspicion warrant that the ve- hicles contain aliens who Alleged D. Egregious Conduct. country.” 422 U.S. at 95 S.Ct. at Petitioner asserts that “an vio- (footnote omitted) added). (emphasis lation of the Brignoni standards has oc- experi- have noted that “[a]n curred in specific that no might suspicious ence make a situation to proven justify petitioner’s have been to de- him which to the untrained or authority tention.” Petitioner offers no for eye pass would unnoticed or seem inno- proposition the novel that the mere failure cent.” Nicacio v. 1138- at justify to articulate a de- 39; Magana, see also 769 F.2d at 553 requiring tention is (trained objec- officers entitled to combine suppression deporta- of evidence in a civil tive permissible facts with deductions to proceeding. tion It quite true that the legitimate suspicion). form basis the Supreme open Court left case, arresting agent instant was enti- exclusionary apply whether the rule would tled to draw the inference that “egregious violations of Fourth Amend- was fleeing an alien from a might ment or other liberties that trans- unit in Wapato area in order to gress avoid notions of fundamental fairness and interrogation. probative undermine the value the evi- point facts, “specific obtained.” together

dence articulable added). (emphasis S.Ct. at facts, with rational inferences from those argued attempted nor to dem- has neither reasonably that suspicion” warrant that that the conduct of the Border onstrate they stop the vehicle contains undoc any way in this matter in umented aliens. 422 at petition- undermined the value of at 2582. The Hispanic Court also held that No evidence offered er’s statements. more, appearance, without is insufficient to that the statements were made involuntari- investigatory stop. an Id. at ly, product or were the of duress coer- S.Ct. at 2583. In Nicacio v. In Lopez-Mendoza, cion. 1133, 1137(9th Cir.1985),we said Brig held that the does progeny noni-Ponce and its hold that His apply deportation proceedings not in civil panic appearance in an area gathered in connection with a frequented by illegal aliens do not “peaceful arrest” which violated the investigative an stop. Amendment. Id. at Fourth 3490-91. I agree with light that in proof In the absence of some cast Brignoni-Ponce Nicacio, ing doubt on the value of volun appearance Cervantes-Cuevas, the slow- tary following statements deten ing approaching of his automobile while tion, evidence that the arrest was unlawful parked Border Patrol vehicle pick- behind a admissibility does not affect the of an un truck, up resuming and his normal speed documented alien’s statements. passing the vehicles are insufficient justify themselves to his detention.

CONCLUSION part I company with the majority, how- Petitioner has failed to demonstrate that ever, when it concludes that three other his statements were obtained Border significant factors Cervantes-Cue- agents in a manner which casts majority vas’s detention. The identifies According- doubt on their value. (1) these three “additional” factors as: post-detention ly, his statements were ad- agricultural area where the arrest took missible. The motion to suppress was place through was known official channels properly denied because the “highly populated” by to be in inapplicable deportation pro- rule is civil aliens; (2) Mexican the officers knew that ceedings in any showing the absence of some of these aliens would flee from their that the officer’s conduct would undermine housing units in credibility challenged of automobiles avoid inter- evidence. rogation by agents investigating their sta- AFFIRMED. tus; (3) and had seized 500 in undocumented aliens the area PREGERSON, Judge, dissenting. view, my that week. In these additional I dissent. I believe the evidence on little, provide any, support factors if for a detaining the Border Patrol relied in which finding suspicion. of reasonable require- Cervantes-Cuevas fails to meet the Brignoni-Ponce, ments of First, large of numbers of precise- undocumented aliens in the area is (1975), and that the statements obtained ly type of evidence that we found insuf- from him as a result of an detention Nicacio, justify stop ficient to in egregious must excluded because of be Second, knowledge at 1137. of the aliens’ governmental conduct. pattern flight housing of from units is irrel- Nothing evant. in the record shows that A. Absence Articulable Facts and of any officer saw Cervantes-Cuevas flee Suspicion Reasonable Indeed, from a unit. Border'Pa- Anderson, Brignoni-Ponce, trol Officer who testified at the roving suppression hearing, held that must could not even recall specifically stopping Cervantes-Cuevas. vantes-Cuevas’s statements. Benitez-Men- disapprove By declining to of the BIA’s argue dez did not that his arrest constitut- this reliance on factor the deten- egregious an ed violation of constitutional tion, majority encourages stops INS Moreover, liberties. the Border Patrol offi- persons appear to be who rely did not cer Benitez-Mendez’s His- in an populated who are found area panic appearance his reasonable large numbers of undocumented aliens. practice threatens INS fourth rights persons of countless Egregious C. Conduct work, Hispanic ancestry legally reside, who Further, many agricultural and travel in incorrectly urban con- (1) throughout communities our circuit. cludes that: Cervantes-Cuevas failed to egregious show part conduct on the of the Third, by relying on the seizure of 500 Patrol; Border the Border Patrol’s week, undocumented aliens the area that conduct must undermine the val- (BIA) Immigration Appeals the Board of ue of evidence obtained before its majority apparently ignore and the the like appropriate. exclusion is lihood that a substantial number of those Indeed, illegal. seizures were themselves Commissioner, In Adamson v. court Nicacio deemed (9th Cir.1984), 544-45 applied we Lo- arrests of a persons 1982-83 class “[a]ll pez-Mendoza’s “egregious violation” lan- Mexican, Latin, Hispanic appearance guage.1 recognized police there that a been, are, who have or will travelling by officer’s bad faith person’s violation of a Washington highways.” motor vehicle on rights fourth amendment could amount to 768 F.2d at 1135. Most arrests in violation, warranting exclu- Nicacio occurred around the town of Yaki sion of a civil proceeding. tax ma, in the part Washington. central See Adamson, 745 Although F.2d at 546. F.Supp. (E.D. Nicacio v. faith, Adamson we found no bad we did Wash.1984), aff'd, 768 F.2d at 1133. Al suggest that bad faith would be found if a though Cervantes-Cuevas is not a member reasonably competent officer would have Nicacio, of the class certified believed the search illegal. to be In Id. When, arrested in County. 1982 Yakima case, essentially Cervantes-Cuevas ar- here, as arresting officer admits not gues reasonably that a competent officer remembering arrest, it is ano would have known Brignoni- that under malous for the BIA and this court to hold Ponce, decided in Hispanic appear- resembling that mass arrests those recent ance alone does not justify stop. a Be- ly disapproved in Nicacio contributed to I cause believe that the Border Patrol suspicion. sum, reasonable I believe significant articulated apart no “additional” facts which from those that are insufficient to Agent Anderson relied were either irrele law, existing detention under I would con- vant to this case or are sup insufficient to clude that he did good not act in faith. port reasonable I further required believe that we are not B. Applicability Exclusionary Rule to limit exclusion of illegally evidence ob- author, As I its do not read tained to instances government’s Benitez-Men- where the (9th Cir.1985), egregious dez v. 907 in obtaining F.2d (9th modifying, Cir.1984), 748 F.2d 539 probative undermined its value. I thus dis- (9th modifying, Cir.1983), 707 F.2d 1107 agree as majority’s reading with the of Lopez- requiring ruling admissibility of Cer- Mendoza that probative undermined value notes, Supreme 1. As the gress Court left notions of fundamental fairness and un open exclusionary probative whether the rule dermine the value of the evidence applies "egregious violations of Fourth obtained.” 3479, 104 S.Ct. (1984). might Amendment or other liberties that trans- requirement for the exclusion limited is a second and its deterrent effect on official proceedings. in civil misconduct of evidence would be minimal. implictly rejected the In Adamson we D. Conclusion exclusionary for the requirement that illegally apply, probative value of reasons, foregoing For the I would con- must obtained evidence be undermined. clude that insufficient jus- There, suggested officer’s we also that an tified Cervantes-Cuevas’s detention and of fourth bad faith violation that the Border Patrol’s bad faith conduct rights egregious would constitute an alone stopping detaining Cervantes-Cue- requiring violation exclusion of evidence primarily vas because of his ap- illegally obtained. 745 F.2d at 546. We pearance requires exclusion of his state- any requirement did not mention that an ments. The case should be remanded to pro undermine officer’s bad faith must give the BIA to opportunity INS the illegally bative value obtained evi prove, relying without on Cervantes-Cue- apply. dence for the rule to statements, deportability vas’s by clear approach we took Adamson is cor convincing evidence. Woodby See v. requiring rect because 276, 285-86, 385 U.S. 87 S.Ct. value of the statement be 487-88, obtained (1966). undermined would render admissible evi

dence obtained even the most example, For

means. Rochin v. Califor

nia, 96 L.Ed. (1952), officers directed a doctor to

induce Rochin to vomit order to extract

drug capsules cap from his stomach. The

sules, once extracted from Rochins’s stom ach, highly probative PLAINE, evidence of his Plaintiff-Appellant, Carol possession of contraband. Id. at v. very S.Ct. at 206. Yet this is the case the McCABE, Aidlin, Joseph B.C. W. Thomas Court cited as for the Hinrichs, Swirles, C. Frank M. Andrew proposition that evidence obtained Hoch, McCabe, Jr., Magma W. B.C. egregious violation of individual liberties Company, Company, Power Natomas proceedings. be excluded from civil Energy Company, Acqui- Natomas NEC Lopez-Mendoza, 104 at 3490.2 S.Ct. Co., Inc., Magma Geysers, sition requiring It is hard to understand how Defendants-Appellees. undermined value is consistent No. 83-6552. primary purpose with the of the exclusion- ary rule. has noted Appeals, United States Court of “prime purpose, if that the rule’s not the Ninth Circuit. one,” sole is to deter official misconduct. Argued and Submitted March 1985. (quoting 104 S.Ct. at 3486 Calandra, May Decided 1986. 613, 619, Granting Rehearing As Amended on If, (1974)). in cases of bad faith violations Aug. 1986. rights, courts exclude fourth only illegally pro- obtained whose undermined, then

bative value somehow

application narrowly of the rule would be Adamson, "[a]lthough we also noted: Ro- Court’s citation to Rochin was meant to limit za physical brutality ‘egregious physical chin involved conscience,’ ‘shocks the to those of brutal- violations’ Lopez-Mendo- ity.” we do not believe the 745 F.2d at 545 n. 1.

Case Details

Case Name: Pedro Cervantes-Cuevas v. Immigration & Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 10, 1985

Citation: 797 F.2d 707

Docket Number: 84-7592

Court Abbreviation: 9th Cir.