UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCIO SANTOS-PORTILLO, Defendant - Appellant.
No. 20-4159
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
May 7, 2021
PUBLISHED. Argued: March 10, 2021. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Malcolm J. Howard, Senior District Judge. (7:18-cr-00010-H-1)
Before WILKINSON, AGEE, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee joined. Judge Floyd wrote a dissenting opinion.
ARGUED: James Edward Todd, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, North Carolina, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, Eric Brignac, Chief Appellate
WILKINSON, Circuit Judge:
Appellant Santos-Portillo unlawfully entered the United States after a prior deportation resulting from a felony conviction. Federal officials arrested him with probable cause but without securing the administrative arrest warrant required by
On appeal, Santos-Portillo argues that we should suppress all post-arrest evidence against him. But
I.
In January 2018, Department of Homeland Security (DHS) Special Agent Thomas Swivel saw someone whom he thought he recognized from a prior case. This turned out to be Santos-Portillo. As Santos-Portillo drove away, Agent Swivel wrote down his license plate number.
Based on a subsequent records check, Agent Swivel learned that Santos-Portillo was a Honduran national who was in the United States illegally. He discovered a Texas felony conviction for unlawfully fleeing from law enforcement and that Santos-Portillo had consequently been deported in 2011. Agent Swivel also found a photograph of Santos-Portillo in his immigration file.
Agent Swivel drove to the address to which the car was registered. He saw the car but no people. Concluding that Santos-Portillo was in the United States illegally, Agent Swivel began coordinating with other agents to make an arrest. A few days later, Agent Swivel and four other agents staked out Santos-Portillo‘s house. When Santos-Portillo exited the house, the agents confronted him. Santos-Portillo then gave his name and admitted he was from Honduras.
Agent Swivel then arrested Santos-Portillo and took him to a nearby ICE office. Santos-Portillo was fingerprinted; when Swivel sent the prints to several law enforcement agencies, they matched the profile of a previously deported alien. Agent Swivel then gave Santos-Portillo Miranda warnings and interrogated him. During questioning, Santos-Portillo admitted he was from Honduras, that he had previously been deported, and that he had not
Santos-Portillo was then criminally charged with violating
II.
At Santos-Portillo‘s detention hearing in February 2018, Agent Swivel testified that he neither sought nor secured an administrative arrest warrant to detain Santos-Portillo. He was asked, “Do you ever get arrest warrants? Or is it generally the nature of the crime that you do these arrests without a warrant?” Swivel answered, “Generally, we encounter people administratively. And, due to his prior deportation, there was an administrative arrest warrant in the A-File. . . . But-no.” J.A. 36-37.
Subsequently, Santos-Portillo moved to suppress all post-arrest evidence. He based this motion on an alleged violation of
The government countered by arguing that
The magistrate judge issued a recommendation finding that
motion to suppress because the arrest “was consistent with the Fourth Amendment” and because
A trial followed where the post-arrest evidence was introduced against Santos-Portillo. He was convicted and issued a time-served sentence of 15 months. After conviction, Santos-Portillo was taken into custody by ICE agents and deported again.
Santos-Portillo filed a timely appeal.
III.
A.
Santos-Portillo argues that suppressing the evidence against him is necessary to give meaning to
Congress has expressed its clear desire that aliens who commit felonies in the United States be deported. See, e.g.,
We thus confront a statutory scheme manifesting Congress‘s clear intent that individuals like Santos-Portillo be kept out of the United States. Santos-Portillo asks us to apply
A legal requirement has thus been violated. But the question of what remedy is available to Santos-Portillo—or whether one exists at all for violations of this provision—remains. Absent unusual situations, the power to craft remedies for statutory violations lies with Congress, which after all enacted the statute, not the federal courts. See, e.g., Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020). There is absolutely no statutory basis for Santos-Portillo‘s argument that we should suppress the evidence against him.
In the Fourth Amendment context, of course, the Supreme Court has required the suppression of incriminating evidence if law enforcement violates the Constitution. See Mapp v. Ohio, 367 U.S. 643, 657 (1961). The exclusionary rule was deemed necessary to avoid the contamination of court proceedings with unconstitutionally gathered evidence. See id. at 659. But the parties agree there is no constitutional violation in this case. The Fourth Amendment permits “the warrantless arrest of an individual in a public place upon probable cause . . . .” United States v. Santana, 427 U.S. 38, 42 (1976). And the Court has specifically upheld a warrantless arrest with probable cause on the front steps of a house, id. at 40-41, just like what happened here. In this appeal, Santos-Portillo does not challenge that Agent Swivel had probable cause. Agent Swivel had accessed an immigration file containing an identifying photo and clear proof that Santos-Portillo was a convicted felon who had been deported, meaning he was almost certainly in the United States illegally. It is also worth noting that Agent
Section 1357(a) thus adds a rule for immigration arrests not required by the Constitution. In fact, the statute‘s warrant requirement does not even correspond that well to Fourth Amendment concerns. In contexts where the Fourth Amendment does require a warrant, warrant applications must be considered by a “neutral and detached magistrate” and not “a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 14 (1948). That neutral judicial officer determines whether probable cause exists, free of any loyalty to law enforcement. Under
In sum, Congress has provided no suppression remedy for
B.
But no. Pointing to no positive-law authority for suppression, Santos-Portillo nevertheless appeals to the judiciary‘s alleged inherent power to devise remedies for violations of the law by the government. His primary authority for this asserted judicial supervisory power is McNabb v. United States, 318 U.S. 332 (1943). There, the Supreme Court excluded confessions from bootleggers who had been arrested, confined without counsel, and questioned for two days, all in violation of a federal statute requiring prompt delivery of arrestees to a judicial officer. The Court reasoned that it had the power and responsibility to ensure “civilized standards of procedure and evidence” in the federal courts, and that the “principles governing the admissibility of evidence in federal criminal trials have not been restricted, therefore, to those derived solely from the Constitution.” Id. at 340-41.
As Santos-Portillo points out, McNabb did not identify a positive-law source of authority for its decision. McNabb is not unique from that period of the Supreme Court‘s history, in which “the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute‘s purpose.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964)). For example, the Court repeatedly implied private causes of action for violations of federal statutes that did not, by their terms, grant private parties permission to sue. See, e.g., Borak, 377 U.S. at 433.
But the winds have changed. Gone are the “heady days in which [the courts] assumed common-law powers to create causes of action” and other remedies. Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring). The Court has come to recognize that the creation of remedies for violations of federal statutes is generally a legislative power, not a judicial one. Hernandez, 140 S. Ct. at 742 (“[A] federal court‘s authority to recognize damages remedies must rest at bottom on a statute enacted by Congress.“). In the process, it has disavowed earlier cases from the period in which McNabb was decided, pointedly referring to those cases as being
It is therefore unsurprising that the Supreme Court refused to extend McNabb in the one modern case in which it considered the question. In Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006), officials arrested and interrogated a foreign national without informing him, as required under the Vienna Convention, that he could ask for the Mexican Consulate to be notified of his detention. Id. at 339-40. The Court cited the “high cost” of the exclusionary rule and noted it had historically “applied the exclusionary rule primarily to deter constitutional violations.” Id. at 348 (emphasis added). The Court went on to explain that in the “few cases in which [it had] suppressed evidence for statutory violations,” the “excluded evidence arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests.” Id. at 348. Because the provision of the Vienna Convention requiring consular notification was only “remotely connected to the gathering of evidence,” the Court declined to suppress the evidence. Id. at 349.
Sanchez-Llamas makes clear that the range of cases where courts can on their own suppress evidence for a statutory violation is quite limited. In a recent case limiting the scope of the suppression remedy for constitutional violations, the Court has expressed concerns about the “costs” of the exclusionary rule and stated that “exclusion has always been our last resort, not our first impulse.” Herring v. United States, 555 U.S. 135, 141 (2009) (internal quotation marks and quotation omitted). In a subsequent case again limiting the exclusionary rule, the Court explained that “[e]xclusion exacts a heavy toll on both the judicial system and society at large” because it “almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence.” Davis v. United States, 564 U.S. 229, 237 (2011).
Our sister circuits have had no difficulty discerning the Supreme Court‘s direction. Several have declined to suppress evidence obtained in violation of
Our friend in dissent sees things differently, arguing that we should create a new rule of evidence as a matter of our “supervisory authority.” But the cases relied upon by the dissent establish only the unremarkable proposition that courts have traditionally had the power to regulate proceedings inside the courtroom. See Young v. United States ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 808 (1987) (contempt); Ristaino v. Ross, 424 U.S. 589, 597 n.9 (1976) (voir dire). The dissent proposes a regime to regulate behavior outside the courtroom by creating rules of evidence at odds with congressional intent. This is a remarkable assertion of
C.
Santos-Portillo alleges, however, that courts can suppress evidence in cases of “egregious” or “flagrant” law enforcement behavior. This standard is vague and open-ended. It invites litigiousness. And it fails on its own terms. This case features a perfectly lawful arrest. Agent Swivel did not break into Santos-Portillo‘s home. He had airtight probable cause to proceed. Mitigating the chance of mistaken identity, Agent Swivel did the background work. He confirmed appellant‘s previous conviction, his prior deportation, and his subsequent reentry. He got Santos-Portillo to confirm his identity and country of origin before arresting him. And while appellant contends that the violation of
Santos-Portillo also alleges on appeal that there is widespread disregard of
Finally, Santos-Portillo urges us to suppress to maintain the integrity of
But more fundamentally, Congress has the power to pass laws without creating specific legal consequences that flow from their violation. Congress is not prohibited by Article III from passing advisory resolutions and standards. Such hortatory laws encourage admirable behavior rather than mandate it by the threat of punishment. See Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons From Congressional Practice, 61 Stan. L. Rev. 573, 584-85 (2008). Hortatory laws have an ancient lineage. Laws encouraging good behavior without threat of punishment existed in ancient Greece. See, e.g., Plato, Laws 151 (Benjamin Jowett trans. 2013) (endorsing the use of hortatory “prefaces” in laws so that the citizens will be “as readily persuadable to virtue as possible“). Today, such laws are ubiquitous in the federal statute books. See, e.g., Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 173 (2009) (giving several examples of “conciliatory or precatory” statutory provisions that do not create “substantive rights“). For example,
What are we to make of this? We can draw from the long tradition and ubiquity of hortatory laws at least the modest lesson that Congress is not required to deploy in any statutory scheme the full panoply of remedies at its disposal. So it is here. Congress‘s undeniable power to repeal
IV.
Manufacturing a remedy in the course of creating a circuit split would be a dramatic step. Whether we think a congressional remedial scheme is optimal cannot in the end be dispositive. We are not lawmakers and must resist the temptation to behave as such. Because the judiciary has “sworn off the habit of venturing beyond Congress‘s intent,” Sandoval, 532 U.S. at 287, we cannot accept the invitation to refashion the handiwork of Congress in this case.
The judgment of the district court is accordingly affirmed.
AFFIRMED
FLOYD, Circuit Judge, dissenting:
I agree with the majority that
* * *
The majority asserts that the supervisory authority relied on in McNabb v. United States, 318 U.S. 332 (1943), has lost its vitality, and has been cabined such that—practically speaking—suppression is warranted only when (1) there is a constitutional violation, or (2) it is explicitly provided for by statute. And because
Under this reading of post-McNabb precedent, the case is a relic of a bygone era in which federal courts often crafted remedies in the face of congressional silence. But judicially implying a cause of action into a statute—thereby creating rights and imposing external liabilities where none previously existed—is a different exercise of judicial authority than imposing evidentiary sanctions. Previously, federal courts purported to create implied causes of action either as an exercise of statutory interpretation as to a statute‘s remedial purpose or as an exercise of federal common law. See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426, 431–32 (1964); Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39 (1916). The Supreme Court‘s modern rejection of that doctrine emphasizes that federal courts lack common-law powers, so the judicial branch cannot simply graft causes of action onto substantive statutory law. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001). Of course, it is for Congress to create substantive law along with causes of action to enforce that law. And I share the majority‘s concern that federal courts should resist the impulse to improve upon a statute or undercut its objectives.
But the authority of federal courts to order evidentiary suppression for statutory violations does not turn on whether we can imply such a remedy into the statute—either as an act of statutory interpretation or of federal common-law. The Supreme Court in McNabb considered the violation by federal officials of the presentment statute. In deciding that the violation in that case merited suppression, the Court declined to address whether the officers’ actions independently violated the Constitution. McNabb, 318 U.S. at 340. Nor did the Court consider whether the statute somehow implied an exclusionary remedy. Rather, the Court located its power in the “supervisory authority over the administration of criminal justice in the federal courts,” id. at 341, which tasks courts with “establishing and maintaining civilized standards of procedure and evidence,” id. at 340.
Thus, supervisory authority is a power inherent to federal courts over the proceedings before them. Our exercise of that authority does not invade the province of the legislature in the same way as other judicially created remedies because it does not seek to supplement or improve upon a statutory scheme, nor does its scope turn on a statute‘s purpose. Instead, supervisory authority seeks to govern the integrity of “the enforcement of the federal criminal
Accordingly, the question presented by this case is how far federal courts should extend their supervisory authority over federal proceedings. For the reasons set forth above, I do not share the majority‘s view of Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006), as the natural culmination of a broader turn away from supervisory authority. In the years following McNabb—and contemporary to the Supreme Court‘s rejection of implied causes of action—the Court continued to affirm its supervisory authority in a variety of contexts. See, e.g., Young v. United States ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 808 (1987) (“The use of this Court‘s supervisory authority has played a prominent role in ensuring that contempt proceedings are conducted in a manner consistent with basic notions of fairness.“); Ristaino v. Ross, 424 U.S. 589, 597 n.9 (1976) (holding that voir dire concerning racial prejudice can be required as an exercise of supervisory authority); Bank of N.S. v. United States, 487 U.S. 250, 264 (1988) (Scalia, J., concurring) (“I agree that every United States court has an inherent supervisory authority over the proceedings conducted before it.“).
“A federal court ‘may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress.‘” Bank of N.S., 487 U.S. at 254 (emphasis added) (quoting United States v. Hasting, 461 U.S. 499, 505 (1983)). A core purpose of supervisory authority is “to deter illegal conduct.” Hasting, 461 U.S. at 505. And one way of doing so is the exclusionary rule—although it should be applied with caution. See Payner, 447 U.S. at 734. As the majority notes, the Supreme Court has narrowed the applicability of the exclusionary rule since McNabb, and it is not automatically applied to any violation, constitutional or otherwise. See, e.g., Herring, 555 U.S. at 141; United States v. Caceres, 440 U.S. 741, 755–56 (1979). Instead, we ask whether suppression as an exercise of supervisory authority “serves the ‘twofold’ purpose of deterring illegality and protecting judicial integrity.” Payner, 447 U.S. at 735 n.8. And courts must always ask whether exclusion‘s deterrent benefits outweigh its social costs. Herring, 555 U.S. at 141.
Sanchez-Llamas did not displace this balancing test. In that case, the Court held that supervisory authority did not apply because the Court was reviewing state court proceedings. Sanchez-Llamas, 548 U.S. at 345–46. True, the Court observed that the exclusionary rule has previously been applied to statutes that implicate constitutional interests. But it did so in declining to imply that remedy into an international treaty. Id. at 347–48. The Court did not thereby limit its understanding of its supervisory authority.
The Court‘s language in Sanchez-Llamas creates a closer call as to whether a standalone violation of
Santos-Portillo presented compelling evidence of repeated violations in the face of a plain statutory requirement. Indeed, the record reveals that at least one agent admitted to routinely failing to secure arrest warrants, that five agents participated in this warrantless arrest, and that this conduct was blessed by ICE counsel. And in a separate case in the Eastern District of North Carolina, a similar, 2017 warrantless arrest was found to have violated
implicitly endorsing repeated violations of
Nor does this case present the same social costs typically at issue in the suppression context. There is no risk that suppression would “set the criminal loose in the community.” Davis, 564 U.S. at 237. Whatever the outcome of Santos-Portillo‘s criminal trial, he still faced removal. Thus, I respectfully disagree with the majority‘s contention that suppression in a federal criminal trial would undercut Congress‘s broader, civil immigration objectives. Although I do not decide how the district court should have balanced the scales in this case, Santos-Portillo mustered enough evidence that the district court should have contended with his argument as to the need to deter widespread or repeated violations of
For the foregoing reasons, I respectfully dissent.