United States v. Jose Luis Ortiz-Hernandez

my colleagues’ decision not to rehear this Before REAVLEY,* THOMAS M. case en banc. FLETCHER, A. WILLIAM and TALLMAN, RICHARD C. Circuit Judges. Jose Luis Ortiz-Hernandez was arrested by Portland, Oregon officers on suspicion

ORDER drug-related activity. Those charges Judges Reavley Tallman have voted were later dropped, and Ortiz-Hernandez deny petition the panel for rehearing; was indicted § under 8 U.S.C. 1326 for Judge Tallman deny has voted to peti- the illegal reentry. case, tion for rehearing bane Judge en district court suppressed fingerprint evi- Reavley so Judge recommends. W. dence taken in violation of Ortiz-Hernan- Fletcher grant has voted to petition for dez’s Fourth Amendment rights and de- panel rehearing petition and the for re- nied the Government’s motion to compel a hearing en banc. second set of fingerprint exemplars. The

The full court was petition advised of the appealed the district court’s rehearing for en banc. A judge requested denial of that to our motion court. a vote on whether to rehear the matter en There is but one in dispute issue in this banc. The matter failed to receive a ma- case. All members of the three-judge pan- jority of the votes of the nonrecused active el affirmed the district ruling court’s judges in favor of en banc consideration. the officers did not have cause to Fed. R.App. 35. arrest Ortiz-Hernandez. All three judges petition panel rehearing and the agreed further fin- petition rehearing en banc are denied. gerprints were taken for investigatory pur- poses and had suppressed. to be In a PAEZ, Circuit Judge, with whom move that logic, however, defies major- PREGERSON, REINHARDT, ity held that the Government —which has HAWKINS, THOMAS, WARDLAW, W. any independent demonstrated source FLETCHER, FISHER, BERZON, dissipating the taint the earlier constitu- Judges, join, Circuit dissenting from denial tional may compel a new set of rehearing en banc: violation—

fingerprint exemplars, effectively gutting I. Introduction the exclusionary rule. Judge As W. explained dissent, Fletcher in his ma- “the The majority in this case adopts a mis- jority allows the government to accomplish reading of Lopez-Mendoza, INS v. with the second exemplars pre- 82 L.Ed.2d 778 cisely (1984), thing same govern- that our holds the rejected squarely circuit ment cannot Garciar-Beltran, accomplish United States v. with the first.” (9th Cir.2004), Ortiz-Hernandez, and that is in States v. direct Cir.2005) conflict with language Lopez-Men- curiam) (per itself. doza In so doing, (W.Fletcher, the majority J., evis- dissenting) (emphasis add- cerates, practical ed). for all purposes, the ex-

* cuit, The Honorable Reavley, Thomas M. sitting by designation. Senior Judge United States Circuit for the Fifth Cir- Sandoval- spondent “holding here limits its Recognizing Sanchez, compelled to his “objected not suppressing effect theoretical deportation proceeding, finger at a wrongfully initial set proceeding.” (majority opin offered at to evidence at 578 exemplars,” id. print Distinguishing result justifies its S.Ct. 3479. ion), majority Parga- Lopez-Men v. from States case by United “compelled Sandoval-Sanchez’s (9th Cir.2001),” Wong Ort doza’s, cited Rosas, Supreme 1209 Court the 238 471, Parga- States, iz-Hernandez, at 577. 83 427 F.3d 371 U.S. v. Sun (1963), It is Gar and stated distinguished. 407, 441 easily Rosas S.Ct. that com pro in a criminal Lopez-Mendoza and rule general cia-Beltran that “[t]he case: result in and other evi correct that statements pel ceeding is unlawful, denial court’s district affirm the of an as a result should dence obtained motion. if the suppressible are the Government’s arrest warrantless and the unlawful link between Majority Misreads II. The Lopez- is not too attenuated.” conduct Lopez-Mendoza 1040-41, S.Ct. Mendoza, at 104 U.S. 468 excep create an did not Court 3479. The A. a to that tends establish tion for evidence sentence, reit innocuous seemingly One fingerprint identity, such as defendant’s per principle established erating a well any it intention Nor did indicate evidence. amaranthine has to jurisdiction, led sonal U.S. Mississippi, 394 Davis v. to overrule the Su Lopez-Mendoza In confusion. (1969) 1394, 676 L.Ed.2d 721, 22 89 S.Ct. ‘body’ or that “[t]he stated Court preme evidence obtained (holding in a respondent or defendant identity of a to arrest cause in the absence is never itself proceeding civil criminal or Flori and suppressed), must be ar an unlawful a fruit of as suppressible 1643, 811, 84 da, 105 S.Ct. U.S. at 468 U.S. Lopez-Mendoza, rest.” (same). (1985) L.Ed.2d made this The Court 3479. 104 S.Ct. majority misreads a addressing The Ortiz-Hemandez the context statement applying as identity” sentence “body “to the fact or by Lopez-Mendoza challenge doing so challenges, deporta evidentiary to a to summoned he had been arrest.” lines cases. unlawful two distinct following an conflates hearing tion Collins, 72 S.Ct. Lopez-Men 1040, 104 3479. Frisbie v. at S.Ct. Id. (1952), cases line of the evidence objection to L.Ed. 541 no “entered doza try jurisdiction cited The Court has him.” Id. a tribunal against holds that offered court whether if cases, all considered even six a defendant res It or seized through illegal means. over defendant jurisdiction obtained 1039-40, 104 cases, addressing- S.Ct. at line of existed. Frisbie properly was the Supreme way to read I no jurisdiction, see personal “body Lopez-Mendoza immediately after the identity” sentence cited of the affirmation than an Lopez-Mendoza. anything other identity” sentence or illegal an arrest principle established 468 U.S. See a crime. prosecution not bar line of Wong Sun 3479. The of evidence suppression requiring Lopez- than no further look cases— One need of an consequence aas discovered “body that the confirm Mendoza itself dissi- source arrest, independent unless where inapplicable identity” language is or distinct illegality taint of the pates Amendment a Fourth raises —is a defendant in cases where applies re- The second challenge. evidentiary seeks to use evidence obtained in $191,910.00 violation United States v. in U.S. Cur majori- of the Fourth Amendment. The rency, 1051, 1063-64 (9th Cir.1994) 16 F.3d ty’s reading of Lopez-Mendoza takes lan- (recognizing that Lopez-Mendoza’s “body from the guage Frisbie line of cases identity” or language applies jurisdic applies Wong to the Sun line of cases in tional, evidentiary, challenges, in the way that renders inapplicable Sun context), civil forfeiture superseded by evidence. The “fruit grounds statute on other as stated in poisonous tree” no doctrine such contains $80,180.00 in U.S. Cur exception. See rency, Cir.2002). (“[A]ll Garciar-Beltran, explicitly rejected we searches and seizures in of the violation argument Government’s that Lopez- is ... Constitution in ... inadmissible “body identity” Mendoza’s’s or language Fingerprint court. evidence is excep- no applied evidence: (internal comprehensive tion to this rule.” Garcia-Beltran, however, did not seek quotation explanatory marks and paren- suppress fact of identity his or omitted) (second added)). thetical emphasis “body”; recognized he that he law- could Other fully courts recognized poten compelled have be appear in court. tial for misreading “body Rather, identity” or sought he to exclude all evi- language correctly and concluded that dence obtained from him as a result of applies jurisdictional, not evidentiary, arrest, illegal including See, challenges. e.g., United States tend to would identity, establish his true Garcia, (D.Utah 3556089, 2005 WL at *8 fingerprints, such as photographs and Dec.28, 2005); United States v. Olivares- oral statements. Contrary to gov- Rangel, 1218, 324 F.Supp.2d 1223-24 ernment’s argument, Lopez-Mendoza (D.N.M.2004); United States v. Mendoza- preclude does not suppression of evi- Carrillo, 1098, F.Supp.2d 107 1105-07 unlawfully obtained from a sus- (D.S.D.2000); Perkins, State v. 760 So.2d pect may in a criminal investigation o 85, (Fla.2000) (per curiam); 86-87 see als identity establish the of the suspect. Navarro-Dim, United States v. 420 F.3d Garcia-Beltran, 389 F.3d at 866-67. We (6th 581, Cir.2005) 584-86 (explaining that explained that United States v. Guzman- Lopez-Mendoza’s “body or identity” lan Bruno, (9th Cir.1994), F.3d 420 and guage not apply challenges to fin Gudino, United States v. Toro Del gerprint evidence, but requires rather ad (9th Cir.2004), F.3d 997 stood for the mission in court identity, defendant’s proposition that a defendant sup- not i.e., is).1 who he press is, the fact of who he and we held Indeed, our court made this distinction inapplicable those cases to the question of in Garciar-Beltran and even earlier in whether to suppress fingerprint evidence. But (D.Vi. 1. see United Bowley, 2005). States v. 435 F.3d June did (3d Cir.2006) 430-31 (citing Lopez-Men appeal that order to the Third Circuit. holding that a doza defendant's Bowley, See at 429. In the Fifth immigration Circuit, file suppressible); are not in a subsequent case decided to Ro Roque-Villanueva, United States v. que-Villanueva, 175 F.3d suppressed district court (5th Cir.1999) (same). confession, Neither Bow a defendant's ley Roque-Villanueva nor finger concerned body, not his identity, immigration or file. print Bowley, evidence. Herrera-Ochoa, court district United States v. 245 F.3d suppressed illegally obtained fingerprint Cir.2001). evi Appeals Court of poisonous dence as fruit of the tree. rulings. affirmed the district court’s Bowley, States 2005 WL at *3 (“We Garcia-Beltran, Ortiz-Hernandez, Garcia-Beltran, like at 866 389 F.3d See rule arrested an officer of the illegally Lopez-Mendoza] acknowledged [the fin- Department. ... we said Portland Police His where in Guzman-Bruno sup Ortiz-Hernandez’s, identity need not be like were gerprints, defendant’s ‘[a] as merely it is discovered Like because taken after arrest. Ortiz-Hernan- pressed ” dez, or arrest search.’ subsequently charged the result of he was (third (quoting id. original)); illegal entry. alteration At Garcia-Beltran’s crimi- “ stating, contin trial, We Del Toro Gudino court nal the district admitted his today simple that the fact hold ue to fingerprint exemplars as evidence of his excluded, is cannot be remanded, a defendant who identity. reversed and the violation of the nature of regardless holding fingerprint exemplars ”); at 867 n. identity.’ to his id. leading suppressed if were taken must be (“Guzman-Bruno directly address did investigatory purposes. for purely for an fingerprints taken problem Ortiz-Hernandez, po context of in the investigative purpose (internal (W.Fletcher, J., dissenting) quo- immigration criminal violations of tential omitted). The tation marks and citation did not involve ] [Guzman-Bruno law.... majority incorrectly limits Garcia-Beltran and the need to classi fingerprint evidence By its fingerprints. to the initial set of investigatory or identifica fy it as either applies to language, clear Garcia-Beltran (and thus and Davis tion evidence any fingerprint exemplars purely taken for implicated).”). not were investigatory purposes. quot cited to and then Garcia-Beltran case is question to ask this Eighth from the Circuit’s ed seeks whether Guevara-Martinez, 262 v. crime, a suspect to connect a to exemplars (8th Cir.2001), held that F.3d 751 identity of a to confirm the or instead identity” lan Lopez-Mendoza’s defendant. Sometimes properly charged jurisdictional, only in the applies guage insuppressible are fingerprint exemplars Garcia-Beltran, evidentiary, context. not identity, a confirming defendant’s evidence By contrary a adopting F.3d at 868. (“Be- at 1215 Parga-Rosas, 238 F.3d see the Ort interpretation of not taken fingerprints cause the were an in- majority has created iz-Hernandez for the sole purposes but investigatory holding our Garcia- split tracircuit identity, Parga-Rosas’s of purpose proving Beltran.2 implicat- Amendment is the Fourth B. ed.”), they are evidence and sometimes crime, suppressi- connecting suspect recognized, Gar- Judge Fletcher As W. Ohio, 367 U.S. Mapp under present all fours with the ble cia-Beltran is on (1961), see case: extent, and the suppression of any, 2. To the if that Guzman-Bruno Lopez-Mendo- contrary an holding and Del Toro Gudino held that creates majority's to the “body identity” language applies in the or s meaning these za’ conflict on the intracircuit context, wrongly evidentiary they decid- were may disagree with majority two cases. The ed, unfortunately passes up and our court Garcia-Beltran, but it has an our decision holdings as opportunity to reconsider their binding law of our obligation apply the part banc of en reconsideration Ortiz-Her- case. facts of Ortiz-Hernandez’s circuit to the event, any author- Garcia-Beltran nandez. correcting majori- errs Our court itatively interpreted and Del Guzman-Bruno duty. discharge ty’s failure inapplicable issue of as to the Toro Gudino 1643; identity Hayes, having nandez’s without unlawful- 89 S.Ct. 1394. The ly fingerprints....”). taken the first set of finger distinction turns on whether The Government has not made a show- investigatory pur taken for prints were procured that it has untainted ing are to confirm the poses, or instead used guilt. of Ortiz-Hernandez’s There is no government of a defendant that, indication after district court sup- already has cause to arrest and pressed Ortiz-Hernandez’s initial set of Oregon, indict. See Rise fingerprints, the Government undertook an (9th Cir.1995) (“Thus, finger investigation additional to uncover evi- context, there exists a constitu printing alleged dence of Ortiz-Hernandez’s crime tionally significant distinction between the identity, or his or that the Government had gathering fingerprints per from free sufficient indict Ortiz-Hernan- guilt sons to determine their of an un fingerprints. dez before obtained his criminal offense and the gathering solved showing, Without such a the Government’s purposes for identification request for a second of fingerprint set persons custody from within the lawful exemplars investigatory and must be state.”), abrogated grounds on other poisonous denied as fruit of the tree. Justice, recognized Dep’t in Vore v. U.S. (D.Ariz. F.Supp.2d 1134 n. 1 C. 2003). majority’s statement to contrary that, dispute proposition I do not notwithstanding, Pargctr-Rosas supports independent, once the has un- this conclusion. Parga-Rosas presented a permits tainted evidence that it to book “green police, card” to which in turn led defendant, may and indict a obtain a discovery immigration prior of his file— fingerprint exemplar for use at trial. See any illegal part. conduct on the officers’ It facts, however, id. Those are not present was after this information was ob- case. Ortiz-Hernandez’s Ortiz-Hernan- Parga-Rosas tained that questioned was illegally dez was arrested and taken to the having without been read his Miranda station, police where proceeded officers rights. Parga-Rosas then was taken to a run the provided false names he had patrol fingerprinted. border station and through their databases. the offi- When suppressed district court the finger- up cers’ search came empty, they arranged prints illegal as fruits of an It arrest. was speak Ortiz-Hernandez to with immi- of fingerprints, second set taken five gration officials. that pro- When interview arrest, months after his initial that at were information, duced no useful the officers in Parga-Rosas. correctly issue af- sent Ortiz-Hernandez for fingerprinting firmed the Parga- district court’s denial of and then ran prints through his another suppress Rosas’s motion to this second set database. Eureka! Just as the officers theory on the that suspected, Ortiz-Hernandez was in this were not country investigatory purposes taken for illegally. The crucial point, how- ever, prove identity. but rather to Parga- is that was not until this final Rosas, produced search 238 F.3d at 1215. a hit that the officers independent, learned had identity true untainted evidence of Parga-Rosas’s had cause to him crime arrest for a without the first set Ortiz-Hernandez, violation of fingerprints. 1326. See In contrast Ortiz-Her- (“It case, F.3d at 578 gov- is true that the nandez’s exemplar second was ernment would not have known investigatory necessary Ortiz-Her- evidence fication, product-of any illegal not the was Parga-Rosas, but against the case build 471-72, Id. at confirming Parga-Rosas’s police conduct. instead cases, trial. The line of identity Relying that was admissible on the Frisbie is Pargar-Rosas on majority’s reliance held that could not the Court also Crews misplaced. therefore at trial. Id. at challenge his own the in-court 100 S.Ct. 1244. Because conclusion, majority’s Contrary to by illegal not tainted identification was Ortiz-Hernandez, n. 5 427 F.3d at 578 see arrest, suppressed. it was not The Court (“While to note dissent is correct if the out-of- explicitly recognized Fourth Amend rule under the general had the relia- court identifications affected unlawfully obtained suppress ment is to identification, Lopez- bility of the in-court the lat- [Supreme] [in exclusion specific sup- created a tainted and could be Mendoza ter would be ] evidence of rule for general from that fruit of an pressed as the arrest. “identity” evidence is not all identity.”), 100 S.Ct. 1244. other Rather, tending insuppressible. words, “identity” stated that the Court identity sup a defendant’s to establish against a case evidence used to build unconstitutionally obtained pressible when suppressed defendant could and would be purposes, but investigatory and used obtained, under the improperly if it was in court to confirm introduced be Wong Sun. principles charged defendant. properly of a evidentiary raises an Ortiz-Hernandez evi- any question whether If there was illegally to the use of challenge identi- a defendant’s establishes trial. evidence at his criminal Sun, under ty suppressed be could court’s not contest the district He does Su- answered question nor he jurisdiction person, over his Crews, States preme Court exclude the district court must argue that the fact of who he is. Under at trial (1980). a trial court’s upheld Crews Garciar-Beltran, it is identification. to admit an in-court Guzman-Bruno, or Del Lopez-Mendoza’s, identification, the to this in-court prior But Gudino, the outcome govern Toro subject of out- was the defendant Crews this case. lineup identifica- photographic and of-court with- products of an arrest tions that were Majority’s Holding Creates III. The Supreme The cause. out Eighth Split the Circuit a with principles the basic reiterated analy- poisonous the tree” “fruit of Stm’s A. 1244, sis, and af- id. at majority the misconstrue Not ruling that the the trial court’s firmed meaning Lopez-Mendoza’s lineup identifications the photographic the de- (i.e., tending identity” language applicability to establish and its evidence identity) at tri- opinion were inadmissible in fendant’s the Ortiz- fingerprint Fourth fruits of the “suppressible al as split. intercircuit creates an Hemandez violation,” 100 id. S.Ct. Guevara-Martinez, Amendment quoted which we In Gareia-Beltran, the in approval with Lopez- Eighth “conclude[d] Circuit admission affirming In the trial court’s suppres- about the Mendoza’s statement identification, the Court of the in-court jurisdictional only refers to in sion emphasized that the victim’s fingerprint courtroom, challenges, made the identi- the where she 1068

challenged proceeding.” Eighth recognized in a criminal Circuit has the Guevara-Martinez, 262 at 754. The government likely deportation initiate Eighth Circuit held that Guevara-Mar- proceedings against charged defendants for in- tinez’s were obtained § violating 8 U.S.C. 1326 and to ob- Sun, vestigatory purposes, applied Wong tain in fingerprint exemplars those civil them. at 755-56. suppressed proceedings. the Eighth Under Circuit’s law, government may case then use acknowledged that Eighth Circuit those untainted in the criminal prints case. fingerprints could Guevara-Martinez’s be Nothing Eighth in the precedent, Circuit’s deportation proceedings, obtained in civil however, permit would the Government to validly prints and these obtained used to obtain exemplars through com- charges. Despite reindict him on criminal pelled production potential practical consequence, contrary, criminal case. To the Eighth ignore court “to [the refused Govern- crystal Circuit has been clear that it will evidence,” use of tainted sup- ment’s] tolerate what the Ortiz-Hemandez pressed invalidly obtained fingerprints. majority has allowed the Government to Id. at 756. do: Eighth Circuit has adhered to its government points out that a [T]he set illegally rule that evi of untainted fingerprints can be obtained §in prosecu not be used deportation proceedings the civil despite government’s ability tions inevitably Guevara-Martinez will face. exemplars deportation pro obtain civil Since Guevara-Martinez can be re- See, ceedings. e.g., United States v. charged using finger- the new set of Flores-Sandoval, (8th 422 -F.3d prints, ignore asks us to Cir.2005); Perez-Perez, United States v. its use of tainted this case. Cir.2003); 337 F.3d United We decline to reverse the district court Rodriguez-Arreola, States v. Davis, on ground. this alternate (8th Cir.2001). or not Whether Supreme Court refused to affirm a con- Eighth Circuit is correct that a depor civil viction because the authorities there tation proceeding is sufficient to dissipate could have prints used second set of the taint of an illegality pro validly obtained, that were stating that ceeding, see Silverthorne Lumber Co. v. important thing “[t]he is that those ad- States, 385, 392, 40 S.Ct. ministering the criminal law understand (1920) 182, 64 (stating L.Ed. 319 [obtain must the evidence the merely requiring an extra step procure right way].” illegally obtained evidence “reduces the words”), Guevara-Martinez, Fourth Amendment to a form of 262 F.3d at (quot- attempting Government is not to intro ing 394 U.S. at n. 72[5] 1394) (second properly fingerprints duce in Or and third in origi- alterations Instead, nal). tiz-Hernandez’s criminal trial. an seeks order from the district court aware, No case of I am in this

judge compelling production fingerprint Circuit, Eighth circuit or the has held that exemplars in the criminal case. fingerprint exemplars may be obtained Eighth not, The Circuit has through compelled production we now in a criminal Ortiz-Hemandez, indo eye turned a blind case in the absence of cause to to by the means which the government case, arrest or indict a defendant. No fingerprints is, obtains for use trial. The until this one. holding precedent that conflicts with our

B. Eighth and the Circuit’s Garcia-Beltran law, case the Government I read the As It also Guevara-Martinez. prosecute to Ortiz-Hernan- may continue Mapp leads to the bizarre result It intro- violation. for the dez longer apply Ohio and Sun no to he is the same prove duce evidence evidence, Lopez-Men- because from was removed previously person who doza somehow overruled Davis and must country. But the Government silentio. This cannot be correct. sub price There is a untainted evidence. use wrong obtaining evidence pay for con- Because Ortiz-Hernandez creates price suppression. is way, and meaning Lopez-Mendo- fusion over the suddenly exempted is not Government circuit, produces za in this an intercircuit because the evi- price paying from Circuit, Eighth conflict with the and ren- fingerprint evidence. at issue is exclusionary meaningless rule ders will be unable Perhaps I applied when against its case Ortiz-Hernandez to make case our court should rehear this believe That is an using tainted evidence. without majority’s conclusion that en banc. exclusionary of the accepted consequence may compel a second set the Government explained Supreme Court rule. As the them for the and substitute il- when the Lopez-Mendoza, can illegally obtained first set serve immigration evidence of legally obtains promote disrespect for the law and disdain offense, might that the crime upshot I judicial process. respectfully for the dis- unpunished. See go deny from the court’s decision to Or- sent (“The consta- 104 S.Ct. 3479 petition rehearing tiz-Hernandez’s en go may allow the criminal blunder ble’s banc. ”). exclusionary rule does But the free.... proceedings, deportation in civil apply likely that reason Ortiz-Hernandez (“When the See id. deported. will be pres- involves unlawful question

crime may go country, the criminal

ence in this

free, our go he should not free within

borders.”). America, UNITED STATES Plaintiff-Appellee, finding this has never been

There case that the taint dissipated. The arrest has been BIGGS, Maynard Wayne aka Donzell Instead, it relied not so hold. majority did Wayne Hurley, Defendant- incorrect, rejected inter- previously on an Appellant. Lopez-Mendoza’s pretation cor- language. Our court should identity” 04-50613. No. rehearing error Ortiz-Her-

rect Appeals, Court of nandez en banc. Ninth Circuit. Conclusion IV. Dec. Argued Submitted majority funda- The Ortiz-Hernandez 31, 2006. Filed March Supreme mentally misunderstands This Lopez-Mendoza. Court’s majority to a

misunderstanding leads the

Case Details

Case Name: United States v. Jose Luis Ortiz-Hernandez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 30, 2006

Citation: 441 F.3d 1061

Docket Number: 03-30355, 03-30371, 03-30356

Court Abbreviation: 9th Cir.