FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 03-30355
v. D.C. No.
JOSE LUIS ORTIZ-HERNANDEZ, CR-00-00071-JAR
Defendant-Appellee.
UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 03-30371
v. D.C. No.
JOSE LUIS ORTIZ-HERNANDEZ, CR-00-00071-JAR
Defendant-Appellee.
UNITED STATES OF AMERICA, No. 03-30356
Plaintiff-Appellant,
v. D.C. No.
CR-02-00550-JAR
JOSE LUIS ORTIZ-HERNANDEZ,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
James A. Redden, District Judge, Presiding
Argued July 14, 2004
Submitted October 27, 2005
Portland, Oregon
Filed October 27, 2005
14799
14800 UNITED STATES v. ORTIZ-HERNANDEZ
Before: Thomas M. Reavley,* William A. Fletcher, and
Richard C. Tallman, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge W. Fletcher
*Honorable Thomas M. Reavley, Senior United States Circuit Judge for
the Fifth Circuit, sitting by designation.
UNITED STATES v. ORTIZ-HERNANDEZ 14803
COUNSEL
Kent S. Robinson, Office of the United States Attorney, Port-
land, Oregon, for the appellant.
Paul Papak, Federal Public Defender’s Office, Portland, Ore-
gon, for the appellee.
OPINION
PER CURIAM:
The government charged defendant-appellee Jose Luis
Ortiz-Hernandez with illegally reentering the United States in
violation of 8 U.S.C. § 1326(a) and (b)(2). The government
also charged Ortiz-Hernandez with violating the terms of his
supervised release from a prior federal drug conviction by this
illegal reentry. The two proceedings were consolidated in the
district court. The district court suppressed fingerprint evi-
14804 UNITED STATES v. ORTIZ-HERNANDEZ
dence in both the criminal case and the supervised release
proceeding. United States v. Ortiz-Hernandez, 276 F. Supp.
2d 1113 (D. Or. 2003). The district court then denied the gov-
ernment’s motion to compel new fingerprint exemplars in the
criminal case. United States v. Ortiz-Hernandez, 276 F. Supp.
2d 1119 (D. Or. 2003).
The government appeals both the suppression orders and
the denial of its motion to compel fingerprint exemplars. In
Ortiz-Hernandez’s criminal case, we affirm the suppression
order but reverse the denial of the government’s request to
compel another set of fingerprint exemplars. In Ortiz-
Hernandez’s supervised release case, we dismiss the appeal
based on United States v. Vargas-Amaya, 389 F.3d 901 (9th
Cir. 2004).
I. Background
We rely for our factual narrative on the district court’s view
of the evidence and on uncontroverted evidence in the record.
See United States v. Vesikuru, 314 F.3d 1116, 1119 (9th Cir.
2002) (findings of fact underlying the district court’s ruling
on a motion to suppress are reviewed for clear error). Most of
the narrative is based on the testimony of Portland Police
Bureau Detective Sergeant Dirk Anderson. The remainder is
based largely on the testimony of Sergeant John Eckhart and
Officer Jeffrey Becker.
Defendant-appellee Jose Luis Ortiz-Hernandez was
arrested on November 12, 2002 in Portland, Oregon, by
Detective Anderson on suspicion of drug dealing. Detective
Anderson and his partner were eating lunch at a McDonald’s
restaurant in Portland when they saw the defendant and
another man, later identified as Selmo Valenzuela, walking
north on 82nd Avenue from Stark Street. Detective Anderson
testified that he “believed” Ortiz-Hernandez was wearing a
“purple shirt or sweatshirt of some type.” Several minutes
later, Detective Anderson thought he saw the same two men
UNITED STATES v. ORTIZ-HERNANDEZ 14805
drive past the McDonald’s in a red Toyota 4-Runner. He testi-
fied that he saw two Hispanic-appearing men in the Toyota,
and that he “believe[d] there was purple clothing in there as
well.” Detective Anderson saw the Toyota circling around the
area of 82nd Avenue and Washington Street in a manner that
led him to believe that the two men might be involved in drug
sales.
After lunch, Detective Anderson and his partner were driv-
ing north on 82nd Avenue when they observed the Toyota
parked in a Safeway grocery store parking lot. Detective
Anderson saw Ortiz-Hernandez and Valenzuela walking
toward the Safeway, away from the parked Toyota. Detective
Anderson did not see them get out of the Toyota. Detective
Anderson saw Ortiz-Hernandez and Valenzuela speak to “an-
other Hispanic male,” later identified as Wilfredo Alvarez-
Quintana. Alvarez-Quintana then got into the Toyota. The
driver and a Hispanic male passenger then drove the Toyota
out of the parking lot.
Detective Anderson testified that despite a recent change
eliminating the ability to “call back” on the public payphones
at the Safeway, “there still are drug transactions that occur
there daily.” Detective Anderson testified that Ortiz-
Hernandez and Valenzuela used the payphones “intermittent-
ly” at the Safeway. When a gray Jeep Cherokee arrived,
Ortiz-Hernandez and Valenzuela spoke to the driver and pas-
sengers and got into the back seat. At that time, Detective
Anderson still believed that Ortiz-Hernandez and Valenzuela
had driven the Toyota to the Safeway and that Alvarez-
Quintana and his passenger had then driven away in the same
Toyota. This belief led Detective Anderson to conclude that
the men in the Toyota were dealing drugs. He requested that
an officer go to the Safeway to watch the Jeep Cherokee
while he followed the Toyota.
When the Toyota stopped of its own accord at a nearby
parking area, Detective Anderson got out to talk to the driver,
14806 UNITED STATES v. ORTIZ-HERNANDEZ
who identified himself as Wilfredo Alvarez-Quintana.
Alvarez-Quintana said he was the only one who had driven
the Toyota. He also told Detective Anderson that he and his
nephew had driven to Portland from The Dalles, a city about
80 miles east of Portland on the Columbia River, and that he
was “kind of lost.” Alvarez-Quintana told Detective Anderson
that he had spoken briefly at the Safeway parking lot with
someone he mistakenly thought he knew. Detective Anderson
searched the Toyota with Alvarez-Quintana’s consent and
found nothing illegal. He then allowed Alvarez-Quintana and
his nephew to go on their way.
Meanwhile, Sergeant Eckhart was watching the Jeep Cher-
okee at the Safeway. He broadcast on the police radio that he
was watching the Jeep from the “handicap spot,” and that the
Jeep was “on the northeast corner, Safeway.” Sergeant Eck-
hart saw the driver and passengers, including Ortiz-
Hernandez, talking with each other. He reported over the
police radio that they were “making some kind of deal in
there.” When the Jeep drove out of the Safeway parking lot,
the driver failed to use a turn signal. Sergeant Eckhart radioed
for a marked police car to stop the Jeep. Officer Becker
responded and pulled the Jeep over in front of a coffee shop.
Officer Becker asked the driver for her license, proof of insur-
ance, and registration. The driver identified herself as Marie
Lewis. Her driver’s license had been suspended.
Detective Anderson heard over the radio that the Jeep had
been stopped and returned to investigate. There were five peo-
ple in the Jeep. Lewis and an adult man, Dennis Urban, were
in the front seats. Ortiz-Hernandez, Valenzuela, and Lewis’s
three or four-year-old nephew were in the back seat.1 When
Detective Anderson arrived, he had a brief conversation with
Lewis in which she referred to Ortiz-Hernandez as “Juan.”
1
Detective Anderson testified to the presence of the boy in the back
seat. Officer Becker, who had made the initial stop of the Jeep, could not
remember seeing him.
UNITED STATES v. ORTIZ-HERNANDEZ 14807
Detective Anderson testified, “After my brief conversation
with [Lewis], Sergeant Eckhart had also told me, prior to con-
tacting the individuals, that it appeared that the defendant had
swallowed, which is real common for street-level deliverers.”
Detective Anderson explained that street-level dealers some-
times keep drugs in balloons in their mouths and swallow
them in order to avoid being caught with the drugs. He testi-
fied, “[T]hey remove them and sell them one at a time. And
if confronted, they’ll just swallow the balloons.”
After his initial conversation with Lewis, Detective Ander-
son asked Ortiz-Hernandez and Valenzuela to get out of the
Jeep. Because it was raining, he had them move inside the
coffee shop. He asked for their names and birthdays. Ortiz-
Hernandez claimed his name was Ruiz Perez-Cota,2 and said
that he was born on May 6, 1968. Detective Anderson asked
Ortiz-Hernandez his age, and Ortiz-Hernandez gave an age
that was “a year off” from the birth date he had given. At the
suppression hearing, Detective Anderson could not remember
the actual age Ortiz-Hernandez had given. He could remem-
ber only that it was “off.”
Detective Anderson then returned to the Jeep. Lewis admit-
ted she was on methadone but sometimes “chipping” with
heroin. According to Detective Anderson, this meant that she
was “cheating a little and still using a little heroin.” Detective
Anderson asked her if she had just purchased heroin from the
defendant. Lewis denied it but admitted to the officer that she
had done so in the past. She said that she had not seen him
for a while and that she thought he had been “down in Mexi-
co.” Urban, the adult front seat passenger, had needlemarks
on his arms. He told Detective Anderson that he was a recov-
ering heroin addict.
2
The transcript reads “Ruiz [phonetic] Perez Coda.” The district court
spelled the name “Ruiz Perez-Cota.” Ortiz-Hernandez, 276 F. Supp. 2d at
1116. We follow the spelling used by the district court.
14808 UNITED STATES v. ORTIZ-HERNANDEZ
Detective Anderson went back into the coffee shop. He
asked Ortiz-Hernandez if he had ever sold drugs. Ortiz-
Hernandez said no. Detective Anderson then conducted a strip
search of Ortiz-Hernandez in the coffee shop restroom and
found no drugs or anything else that would have indicated that
he was selling drugs. Detective Anderson examined the con-
tents of Ortiz-Hernandez’s wallet and found a Safeway card
bearing the name of Miguel Valdez. Detective Anderson then
formally placed Ortiz-Hernandez and Valenzuela under arrest
for attempted delivery of a controlled substance.
After arresting Ortiz-Hernandez and Valenzuela, Detective
Anderson returned to Lewis and told her that he could
impound the Jeep and search it at the station because her
license was suspended. She consented to a search at the scene
instead. The officers found a syringe with unspecified drug
“residue” under the front seat near her purse. The officers
allowed Lewis, Urban, and the boy to leave in the Jeep. They
gave Lewis a warning for failing to signal while turning.
Detective Anderson explained to the district court that he had
allowed Lewis to go free because “[p]rimarily we were inter-
ested in the dealers, and we thought we had the dealers.”
Ortiz-Hernandez and Valenzuela were then taken to the
police station. The officers ran the names “Ruiz Perez-Cota”
and “Miguel Valdez,” as well as various dates of birth,
through the “local system” and the National Crime Informa-
tion Center system without result. Detective Anderson then
arranged for Ortiz-Hernandez to have a telephone interview
with an Immigration and Naturalization Service (INS) agent.
He testified that he set up the interview because he assumed
that Ortiz-Hernandez “was most likely wanted.” The inter-
view produced no incriminating information. Detective
Anderson then arranged for Ortiz-Hernandez to be finger-
printed at the Multnomah County Justice Center. When his
fingerprints were run through the Automated Fingerprint
Identification System, he was identified as Jose Luis Ortiz-
Hernandez.
UNITED STATES v. ORTIZ-HERNANDEZ 14809
Once he knew Ortiz-Hernandez’s true name, Detective
Anderson was able to discover that Ortiz-Hernandez had a
criminal record. Ortiz-Hernandez had a previous conviction
for eluding examination and inspection by immigration offi-
cials, as well as convictions for drug possession and delivery.
After serving a term of 30 months in prison, he had been
placed on a one-year term of supervised release and had been
deported to Mexico on May 3, 2002.
The state drug charges for which Detective Anderson had
arrested Ortiz-Hernandez were later dropped. On December 5,
2002, a federal warrant and Order to Show Cause were issued
alleging that Ortiz-Hernandez violated his supervised release
by illegally reentering the United States. On December 17,
2002, Ortiz-Hernandez was indicted by a federal grand jury
for illegal reentry in violation of 8 U.S.C. § 1326(a) and
(b)(2).
The criminal case and supervised release proceeding were
consolidated in the district court. The district court published
two opinions. First, in both the criminal case and the super-
vised release proceeding, it suppressed the evidence of the
fingerprints obtained at the Multnomah County Justice Cen-
ter. Ortiz-Hernandez, 276 F. Supp. 2d 1113. Second, it denied
the government’s motion for a fingerprint exemplar in the
federal criminal case. Ortiz-Hernandez, 276 F. Supp. 2d 1119.
The government has timely appealed both rulings.
II. The Criminal Case
The district court decided two questions in the criminal
case brought under 8 U.S.C. § 1326(a) and (b)(2). First,
should the fingerprint evidence taken by state officers at the
Multnomah County Justice Center be suppressed? Second,
should Ortiz-Hernandez be compelled to provide a second set
of fingerprint exemplars to prove his identity at his federal
trial? We address these questions in turn.
14810 UNITED STATES v. ORTIZ-HERNANDEZ
A. Suppression of the Fingerprint Evidence
1. Probable Cause
The district court held that Ortiz-Hernandez was arrested
and taken into custody without probable cause. Because we
cannot say that the district court’s factual conclusions are
clearly erroneous, we must agree with the district court’s legal
ruling.
[1] The existence of probable cause is a mixed question of
law and fact. We review the legal conclusions de novo
because “independent review is . . . necessary if appellate
courts are to maintain control of, and to clarify, the legal prin-
ciples” involved. Ornelas v. United States, 517 U.S. 690, 697
(1996) (citation omitted). Findings of fact underlying the dis-
trict court’s legal determinations are reviewed for clear error.
See United States v. Sandoval-Venegas, 292 F.3d 1101, 1104
(9th Cir. 2002). We “give due weight to inferences drawn
from those facts by resident judges and local law enforcement
officers.” Ornelas, 517 U.S. at 699. “Probable cause exists
when, under the totality of the circumstances known to the
arresting officers, a prudent person would have concluded that
there was a fair probability that [the suspect] had committed
a crime.” United States v. Buckner, 179 F.3d 834, 837 (9th
Cir. 1999) (internal quotation marks and citations omitted).
Absent probable cause, a warrantless arrest is illegal. Id.
Police officers may rely on the totality of facts available to
them when determining whether probable cause exists to
make an arrest. For example, “[t]he experience and expertise
of the officers involved in the investigation and arrest may be
considered.” United States v. Hoyos, 892 F.2d 1387, 1392
(9th Cir. 1989), overruled on other grounds by U.S. v. Ruiz,
257 F.3d 1030 (9th Cir. 2001). Officers may also consider the
nature of the area as part of the calculus of suspicion,
although it is not enough on its own to justify a stop or search.
See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Further,
UNITED STATES v. ORTIZ-HERNANDEZ 14811
providing conflicting information in response to police ques-
tions can be grounds for suspicion. See United States v. Kosh-
nevis, 979 F.2d 691, 695 (9th Cir. 1992) (suspect’s
contradicting himself and nervousness were a part of the
probable cause determination). If probable cause is estab-
lished at any early stage of the investigation, it may be dissi-
pated if the investigating officer later learns additional
information that decreases the likelihood that the defendant
has engaged, or is engaging, in criminal activity. A person
may not be arrested, or must be released from arrest, if previ-
ously established probable cause has dissipated. “As a corol-
lary . . . of the rule that the police may rely on the totality of
facts available to them in establishing probable cause, they
also may not disregard facts tending to dissipate probable
cause.” Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir.
1988); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986)
(citation omitted) (“The continuation of even a lawful arrest
violates the Fourth Amendment when the police discover
additional facts dissipating their earlier probable cause.”).
[2] We need not decide whether probable cause existed to
detain and search Ortiz-Hernandez at the coffee shop. We
assume there was reasonable suspicion to justify at least an
initial inquiry into whether there was street-level drug dealing
in progress. See Terry v. Ohio, 392 U.S. 1 (1968). The deter-
minative question before us is whether there was probable
cause when Ortiz-Hernandez was arrested and taken into cus-
tody by the Portland officers. When Detective Anderson for-
mally arrested Ortiz-Hernandez, he knew that the men in the
red Toyota 4-Runner were not Ortiz-Hernandez and Valenz-
uela, whom he had seen walking north on 82nd Avenue. He
also could not show that the men in the Toyota were involved
in drugs. He had observed Ortiz-Hernandez and Valenzuela
talking on the payphones at Safeway. Despite a recent change
resulting in an inability to call back on those payphones, this
was still an area known for drug sales. Detective Anderson
knew that Lewis, Urban, and Lewis’s nephew had picked up
14812 UNITED STATES v. ORTIZ-HERNANDEZ
Ortiz-Hernandez in a Jeep Cherokee at the Safeway parking
lot after they had talked on a payphone.
After interviewing Lewis, Urban, and Ortiz-Hernandez at
the coffee shop, Detective Anderson had heard Lewis’s state-
ment that she had known Ortiz-Hernandez for some time, that
she had not seen him for some time, and that she had pur-
chased heroin from Ortiz-Hernandez in the past. He knew that
Ortiz-Hernandez had denied selling drugs. He believed,
because Ortiz-Hernandez stated an age that was a year “off”
from the birthdate he provided, and because of the different
name on the Safeway card in his wallet, that Ortiz-Hernandez
had given him a false name. After his strip search of Ortiz-
Hernandez in the coffee shop restroom revealed nothing
incriminating, he knew that Ortiz Hernandez had no drugs, no
drug paraphernalia, and no other evidence of drug sales on his
person.
[3] In its appeal to us, the government emphasizes that
Detective Anderson testified in the district court that Sergeant
Eckhart had told him that he had seen Ortiz-Hernandez “swal-
low.” He testified, “After my brief conversation with [Lewis],
Sergeant Eckhart had also told me, prior to contacting the
individuals, that it appeared that the defendant had swallowed,
which is real common for street-level deliverers.” The district
court was skeptical of the truth of this statement and dis-
counted it in assessing the evidence. The district court wrote:
Anderson testified at the hearing that Eckhart told
him “the defendant had swallowed,” and that “[Eck-
hart] already believed that the defendant had swal-
lowed the narcotics” while inside the Jeep. The
prosecutor did not ask Eckhart if he had seen such a
“swallowing motion.” No effort was made by
authorities to determine whether the defendant had,
somehow, swallowed narcotics.
276 F. Supp. 2d at 1117. Detective Anderson’s testimony in
the district court was, of course, hearsay. Though admissible
UNITED STATES v. ORTIZ-HERNANDEZ 14813
in a suppression hearing, the district court did not have to
believe the testimony. As the district court pointed out, the
government could easily have asked Sergeant Eckhart, a testi-
fying government witness, whether he had seen Ortiz-
Hernandez swallow.
[4] Moreover, Detective Anderson’s statement regarding
Sergeant Eckhart’s observations may not have resonated with
the district court. Sergeant Eckhart reported to Detective
Anderson that it “appeared” that Ortiz-Hernandez had swal-
lowed some drugs while the Jeep was still in the Safeway
parking lot. At that time, Ortiz-Hernandez was in the back
seat of the Jeep. Unbeknownst to Ortiz-Hernandez, Sergeant
Eckhart was observing from the “handicap spot” and the Jeep
was at the northeast corner of the parking lot. The distance
between the two vehicles is unspecified; Sergeant Eckhart
may well have been limited in his ability to observe Ortiz-
Hernandez. Importantly, Ortiz-Hernandez also had no reason
to “swallow” at that time because he did not know that he was
under observation. The district court was entitled to conclude
that Sergeant Eckhart’s purported statement was implausible.
[5] Finally, as the district court pointed out, there is no evi-
dence in the record that the police took post-arrest measures,
such as obtaining a body cavity search order, to confirm that
Ortiz-Hernandez had swallowed balloons containing heroin.
Nor is there evidence that the jailers inspected Ortiz-
Hernandez’s in-custody defecations for such balloons. Under
these circumstances, we defer to the district court’s skeptical
view of Detective Anderson’s testimony that Sergeant Eck-
hart saw Ortiz-Hernandez “swallow.”
[6] Although the facts make this call a close one, we cannot
say that the district court clearly erred when it ruled that con-
sidering the totality of evidence upon which Detective Ander-
son relied when he placed Ortiz-Hernandez under formal
arrest, the evidence was insufficient to establish probable
cause. After Ortiz-Hernandez was arrested, the officers
14814 UNITED STATES v. ORTIZ-HERNANDEZ
searched Lewis’s Jeep and found the syringe containing some
kind of drug “residue” under the front seat next to Lewis’s
purse. They reasonably believed that the syringe belonged to
Lewis, and they found nothing else related to drugs or the
drug trade in the Jeep. Thus, there was nothing that the police
learned after Ortiz-Hernandez’s arrest that supplied the proof
that was lacking to establish probable cause when Ortiz-
Hernandez had been arrested a few minutes before.
2. Use of the Initial Fingerprint Exemplars
The next issue is whether the initial fingerprint evidence
obtained from Ortiz-Hernandez at the Multnomah County
Justice Center after his illegal arrest must be suppressed. “We
review de novo the mixed question of fact and law whether
evidence deriving from an illegal search is sufficiently tainted
to require suppression, because legal concepts must be
applied and judgment exercised about the values that animate
the Fourth Amendment.” United States v. Johns, 891 F.2d
243, 244 (9th Cir. 1989); see also United States v. Del Toro
Gudino, 376 F.3d 997, 998 (9th Cir. 2004) (reviewing de
novo the question of whether fingerprint exemplars may be
suppressed).
The district court concluded that Ortiz-Hernandez’s finger-
prints were taken for investigatory purposes, and therefore
should be suppressed under Hayes v. Florida, 470 U.S. 811
(1985), and Davis v. Mississippi, 394 U.S. 721 (1969). The
government contends, however, that Ortiz-Hernandez’s fin-
gerprints were taken only as a means of establishing his iden-
tity. As a result, it argues under INS v. Lopez-Mendoza, 468
U.S. 1032 (1984), that the fingerprints should not be sup-
pressed. We agree with the district court.
[7] It is established law under Hayes and Davis that if fin-
gerprints are taken for investigatory purposes, they must be
suppressed in a criminal trial. We have followed Hayes and
Davis in United States v. Garcia-Beltran, 389 F.3d 864 (9th
UNITED STATES v. ORTIZ-HERNANDEZ 14815
Cir. 2004), in which Garcia-Beltran was arrested in Portland,
Oregon, without probable cause. Garcia-Beltran’s fingerprints
were taken after his arrest and enabled Portland police to
determine Garcia-Beltran’s identity. Once they knew his iden-
tity, the police were able to determine that he was an illegal
immigrant. The government then charged Garcia-Beltran with
illegal reentry into the United States in violation of 8 U.S.C.
§ 1326(a) and (b)(2). Garcia-Beltran moved in his criminal
case to suppress the “fingerprint exemplars.” Id. at 865. The
precise circumstances under which Garcia-Beltran’s finger-
prints were taken are not clear from the record, so we
remanded to the district court for factfinding. Because, on
remand, the district court found that his fingerprints were
taken in part for an investigatory purpose, they could not be
used as evidence against him. See id.; accord United States v.
Guevara-Martinez, 262 F.3d 751, 755 (8th Cir. 2001) (sup-
pressing fingerprints taken for investigatory purposes after an
illegal arrest).
[8] We affirm the district court’s ruling suppressing the ini-
tial set of fingerprints based on an arrest without probable
cause in violation of the Fourth Amendment in Ortiz-
Hernandez’s criminal case (No. 03-30355). The question then
is whether the government is permitted to prove the identity
of Ortiz-Hernandez in a subsequent charge of illegal reentry
after deportation under 8 U.S.C. § 1326 by obtaining another
set of fingerprints.
B. Motion to Compel Another Set of Fingerprint Exemplars
The government moved in the district court to compel
Ortiz-Hernandez to provide another set of fingerprint exem-
plars. The district court denied the motion on the ground that
Ortiz-Hernandez’s arrest was an “egregious” race-based vio-
lation of the Fourth Amendment and suppressed all identifica-
tion evidence taken following the arrest. Ortiz-Hernandez,
276 F. Supp. 2d at 1122. This is an appealable order “exclud-
ing evidence” under 18 U.S.C. § 3731 and we reverse the dis-
14816 UNITED STATES v. ORTIZ-HERNANDEZ
trict court’s ruling. Regardless of whether there was a race-
based constitutional violation, Ortiz-Hernandez’s identity may
not be suppressed.3
[9] Over twenty years ago, the Supreme Court established
the general rule that a criminal defendant cannot suppress his
identity, even when there has been some prior illegality on the
part of the government. Lopez-Mendoza, 468 U.S. at 1039. As
the Supreme Court has declared: “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 interroga-
tion occurred.” Id. (emphasis added). We have reaffirmed that
“[i]dentity evidence is inherently different from other kinds of
evidence,” and refused to suppress the defendant’s identity in
a 8 U.S.C. § 1326 prosecution even if it was “obtained as a
result of an egregious constitutional violation.” Del Toro
Gudino, 376 F.3d at 1001 (“[W]hen [the Supreme Court] said
the body or identity of a defendant is ‘never’ suppressible, it
meant ‘never.’ ”).
[10] While the original set of Ortiz-Hernandez’s finger-
prints should be suppressed as wrongfully obtained, the gov-
ernment is now aware of Ortiz-Hernandez’s identity; it may
rely on his identity, as well as his criminal and immigration
record, in bringing § 1326 criminal charges against him. See
United States v. Guzman-Bruno, 27 F.3d 420, 422 (9th Cir.
1994) (affirming the district court’s conclusion that neither
the defendant’s “identity nor the records of his previous con-
victions and deportations could be suppressed as a result of
the illegal arrest”); accord United States v. Roque-Villanueva,
3
The record does not support the district court’s conclusion that the
arrest was an “egregious” race-based Fourth Amendment violation. None-
theless, we need not address that issue because “[w]e continue to hold
today that the simple fact of who a defendant is cannot be excluded,
regardless of the nature of the violation leading to his identity.” Garcia-
Beltran, 389 F.3d at 868 (quoting Del Toro Gudino, 376 F.3d at 1001).
UNITED STATES v. ORTIZ-HERNANDEZ 14817
175 F.3d 345, 346 (5th Cir. 1999) (affirming the district court
and refusing to suppress evidence of identity obtained in an
illegal traffic stop, concluding that “[e]ven if the [d]efendant
was illegally stopped, neither his identity nor his INS file are
suppressible”). As we have previously articulated, “there is no
sanction to be applied when an illegal arrest only leads to dis-
covery of the man’s identity and that merely leads to the offi-
cial file or other independent evidence” being brought before
the court. Guzman-Bruno, 27 F.3d at 422 (internal quotation
and citation omitted).
[11] The government now may bring Ortiz-Hernandez to
trial on the illegal reentry indictment and compel him to sub-
mit to another fingerprinting based on that arrest and arraign-
ment and use the evidence for purposes of identification at
trial. This result is consistent with and compelled by United
States v. Parga-Rosas, 238 F.3d 1209 (9th Cir. 2001). The
Parga-Rosas court concluded that, where initial fingerprint
exemplars obtained as the fruit of an unconstitutional arrest
were suppressed by the district court, a second set of finger-
prints taken later after the defendant was indicted under 8
U.S.C. § 1326 was admissible because it was not taken for an
investigative purpose. 238 F.3d at 1215 (citing Guzman-
Bruno, 27 F.3d at 421). We know of no rule that prohibits
rebooking on the new federal charge and processing the
defendant under it, including fingerprinting and photograph-
ing during the subsequent booking. As was the case in Parga-
Rosas, the government already knows Ortiz-Hernandez’s
identity. The new set of fingerprints the government now
requests, after the federal grand jury indictment for a different
offense has been returned, are not sought out of “an investiga-
tive purpose” but “serve only to further establish his identity.”
See Garcia-Beltran, 389 F.3d at 867 (considering Parga-
Rosas, 238 F.3d at 1215).4
4
The dissent would instead conclude that the fact that the initial set of
fingerprints was suppressed because it was taken for investigatory pur-
14818 UNITED STATES v. ORTIZ-HERNANDEZ
Admittedly, our holding here limits the theoretical effect of
suppressing the initial set of wrongfully obtained fingerprint
exemplars, but this result is compelled by the nature of the
evidence Ortiz-Hernandez is seeking to suppress—who he is.
The Supreme Court has rejected applying the exclusionary
rule to an individual’s identity.5 With or without the second
poses renders the government forever powerless to compel a new set of
fingerprints for use in identifying Ortiz-Hernandez in the federal criminal
prosecution for his new charge of being in violation of 8 U.S.C. § 1326.
This ignores the clear import of our holding in Del Toro Gudino, where
we unequivocally held that “a defendant’s identity obtained as a result of
an egregious constitutional violation” may not be suppressed. 376 F.3d at
1001.
Similarly, reliance on Garcia-Beltran is inapposite here. The Garcia-
Beltran court considered only whether an initial set of fingerprints must
be suppressed if obtained with an investigatory purpose. 389 F.3d at 867-
68. There is no discussion of whether a second set of fingerprints could
later be compelled to identify a defendant once he was under indictment.
Only the Parga-Rosas court has addressed that issue, and we follow that
approach here.
Finally, the government has no obligation in this appeal to show that it
would have been able to identify Ortiz-Hernandez without the first set of
fingerprints in order to bring him to trial—the government now knows his
identity and that identity may never be suppressed. See Lopez-Martinez,
468 U.S. at 1039; Guzman-Bruno, 27 F.3d at 421-22.
5
The dissent’s disagreement with this proposition is curious, given the
Supreme Court’s clear language in Lopez-Medina. The dissent suggests
that in a criminal proceeding the exclusionary rule requires the suppres-
sion of identity evidence obtained as a result of a Fourth Amendment vio-
lation. Dissent op. at 14826. While the dissent is correct to note that the
general rule under the Fourth Amendment is to suppress unlawfully
obtained evidence, the Court created a specific exclusion from that general
rule for evidence of identity. See Lopez-Medina, 468 U.S. at 1039. The
court held that “[t]he ‘body’ or identity of a defendant or respondent in a
criminal or civil proceeding is never itself suppressible as the fruit of an
unlawful arrest . . . .” Id. (emphasis added). Surprisingly, the dissent
ignores this unambiguous language in arguing that all unlawfully obtained
evidence must be excluded in a criminal proceeding. The Supreme Court
has clearly articulated the rule: When it comes to identity evidence, no dis-
tinction between criminal and civil proceedings shall be made.
UNITED STATES v. ORTIZ-HERNANDEZ 14819
set of fingerprint exemplars, it is Ortiz-Hernandez’s insup-
pressible identity, along with his continued illegal presence in
this country, that connects him to the charged crime. It is true
that the government would not have known Ortiz-
Hernandez’s identity without having unlawfully taken the first
set of fingerprints, but that harm has no remedy under our
case law beyond suppressing the initial fingerprints. See Del
Toro Gudino, 376 F.3d at 1001; Guzman-Bruno, 27 F.3d at
422.
[12] We must also consider the nature of the crime Ortiz-
Hernandez is facing—the continuing violation of federal law
by his ongoing illegal presence in the United States. As we
concluded in Del Toro Gudino, a constable’s “blunder may
allow the criminal to go free, but we have never suggested
that it allows the criminal to continue in the commission of an
ongoing crime.” 376 F.3d at 1002 (quoting Lopez-Mendoza,
468 U.S. at 1047). Were Ortiz-Hernandez to be released, law
enforcement officials immediately would have probable cause
to re-arrest him based on their knowledge of his identity and
his criminal and immigration records. See Lopez-Mendoza,
468 U.S. at 1047 (noting in a civil deportation context that if,
after excluding evidence obtained in an unlawful arrest, the
government were to release an unregistered alien, “[h]is
release within our borders would immediately subject him to
criminal penalties”).
[13] To conclude otherwise would lead to an absurd result.
Under our Circuit’s law, “[t]he offense of being found in the
United States ends when an alien is discovered and identified
by the immigration authorities.” United States v. Hernandez,
189 F.3d 785, 791 (9th Cir. 1999) (discussing being “found”
in the United States for purposes of venue); see id. at 789 (cit-
ing cases from other circuits for a similar premise). In reach-
ing that conclusion, we rejected the possibility that “a
defendant may be found, over and over again, until the
[authorities] physically arrest[ ] or deport[ ] the defendant[,]”
and determined instead that the crime is limited to “a deported
14820 UNITED STATES v. ORTIZ-HERNANDEZ
alien [remaining] in the United States until he is ‘found’ by
the authorities.” Id. at 790-91 (noting that Congress did not
generally criminalize “remaining in the United States”). But
see Guzman-Bruno, 27 F.3d at 422-23 (declaring that a viola-
tion of 8 U.S.C. § 1326 “continues so long as the alien
remains in the country”).
[14] Ortiz-Hernandez has now been “found” by the authori-
ties; his crime could be considered complete. Were we to con-
clude that, having discovered and identified Ortiz-Hernandez,
the authorities are prevented from bringing him to trial, he
could effectively be granted a form of judicial immunity
because his continued presence after being “found” would no
longer constitute a crime under 8 U.S.C. § 1326. Moreover,
the statute of limitation begins to run from the date an alien
is “found.” Hernandez, 189 F.3d at 791. Under the dissent’s
approach, the government would have to release Ortiz-
Hernandez (presumably granting him “safe conduct” en route
to deportation) and then hope that it might arrest him again
before the statutory time limit ran or he was deported beyond
our jurisdictional reach. We reject this unreasonable result.
[15] If the government were forced to release Ortiz-
Hernandez because the first set of fingerprint exemplars is
suppressed, it would immediately have the authority to re-
arrest and fingerprint him again in order to obtain the second
set of fingerprint exemplars sought here for use in the new
charge against Ortiz-Hernandez. No interest would be served,
or fundamental right protected, by requiring the government
to do this. Therefore, we conclude that the district court erred
in denying the government’s motion to compel Ortiz-
Hernandez to provide a new set of fingerprint exemplars dur-
ing pre-trial proceedings on the new federal charge.
III. The Supervised Release Proceeding
Ortiz-Hernandez was originally sentenced to a one-year
term of supervised release, which began on May 3, 2002. On
UNITED STATES v. ORTIZ-HERNANDEZ 14821
December 5, 2002, a warrant and Order to Show Cause was
issued based upon the probation officer’s statements that
Ortiz-Hernandez had violated the conditions of his release.
On May 3, 2003, Ortiz-Hernandez’s supervised release term
was set to expire, but the district court retained jurisdiction
beyond that date pursuant to 18 U.S.C. § 3583(i).
While this case was on appeal, we held in Vargas-Amaya,
389 F.3d at 907, that a “district court’s jurisdiction to revoke
supervised release can be extended beyond the terms of super-
vision under 18 U.S.C. § 3583(i), based upon a warrant issued
during the term of supervision, only if the warrant was issued
‘upon probable cause, supported by Oath or affirmation,’ as
required by the Fourth Amendment.” (quoting U.S. CONST.
amend. IV). In this case, the warrant supporting the extension
of Ortiz-Hernandez’s period of supervised release was not
based on an oath or affirmation. As a result, the district
court’s jurisdiction over the revocation of the supervised
release ended on May 3, 2003. Accordingly, we dismiss the
government’s appeal related to the supervised release pro-
ceedings, and remand to the district court for appropriate dis-
position.
We AFFIRM the district court’s suppression of Ortiz-
Hernandez’s fingerprints in his criminal case (No. 03-30355).
We REVERSE the district court’s denial of the government’s
motion to compel fingerprint exemplars in his criminal case
(Nos. 03-30356, 03-30371). We DISMISS the appeal of
Ortiz-Hernandez’s supervised release proceeding in No. 03-
30371. We REMAND for further proceedings consistent with
this opinion.
W. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent from Part II.B of the panel’s opinion.
14822 UNITED STATES v. ORTIZ-HERNANDEZ
Detective Anderson of the Portland Police Department
arrested and detained defendant Ortiz-Hernandez on a drug
charge without probable cause. After taking Ortiz-Hernandez
to the Multnomah County Justice Center in Portland, Detec-
tive Anderson did not pursue the drug charge. Rather, he sys-
tematically tried to find out whether Ortiz-Hernandez had
violated the immigration laws. First, Detective Anderson ran
the false names provided by Ortiz-Hernandez through various
data bases without success. Second, Detective Anderson
arranged for Ortiz-Hernandez to speak on the telephone with
an INS agent. This interview produced no results. Finally,
Detective Anderson took exemplars of Ortiz-Hernandez’s fin-
gerprints. Armed with the fingerprints, he finally hit pay dirt.
He discovered Ortiz-Hernandez’s true name and that he had
violated the immigration laws.
We unanimously conclude that Detective Anderson took
exemplars of Ortiz-Hernandez’s fingerprints for “investiga-
tory purposes,” in violation of the Fourth Amendment. We
therefore hold that the fingerprint exemplars cannot be intro-
duced at trial. So far so good.
But after suppressing the fingerprint exemplars, the panel
majority takes an inexplicable turn. The panel majority com-
pels the production of a second set of exemplars. These com-
pelled exemplars (unlike the suppressed exemplars) may be
introduced at trial. In other words, the majority allows the
government to accomplish with the second fingerprint exem-
plars precisely the same thing it holds the government cannot
accomplish with the first.
In so holding, the majority brushes aside our recent deci-
sion in United States v. Garcia-Beltran, 389 F.3d 864 (9th
Cir. 2004). Majority op. at 14817-18 n. 4. Garcia-Beltran, like
Ortiz-Hernandez, was illegally arrested by an officer of the
Portland Police Department. His fingerprints, like Ortiz-
Hernandez’s, were taken after arrest. Like Ortiz-Hernandez,
he was subsequently charged with illegal entry. At Garcia-
UNITED STATES v. ORTIZ-HERNANDEZ 14823
Beltran’s criminal trial, the district court admitted his “finger-
print exemplars as evidence of his identity.” Id. at 866. We
reversed and remanded, holding that the fingerprint exemplars
must be suppressed if they were taken for purely investigatory
purposes. Our decision in Garcia-Beltran is good law, bind-
ing on this panel. The majority decision is flatly inconsistent
with it. The majority may not like Garcia-Beltran, but the
solution is to go en banc rather than to brush it aside.
I. Established Law
It is established law under Hayes v. Florida, 470 U.S. 811
(1985), and Davis v. Mississippi, 394 U.S. 721 (1969), that
fingerprints taken for purely investigatory purposes must be
suppressed. It is also established law under Wong Sun v.
United States, 371 U.S. 471 (1963), that not only evidence
obtained in violation of the Fourth Amendment, but also evi-
dence “come at by exploitation of the illegality,” must be sup-
pressed. Id. at 488. Under Hayes, Davis, and Wong Sun, this
is a very simple case.
We all agree that Detective Anderson took Ortiz-
Hernandez’s fingerprint exemplars for an illegal investigatory
purpose. We also agree that, because of the Fourth Amend-
ment violation, the fingerprint exemplars must be suppressed.
Further, it is undisputed that the exemplars taken by Detective
Anderson led directly to the discovery that Ortiz-Hernandez
could be charged with illegal reentry into the United States.
Without the Fourth Amendment violation, Ortiz-Hernandez
would not be standing trial for illegal reentry and the govern-
ment would neither need nor want additional fingerprint
exemplars.
II. INS v. Lopez-Mendoza
The majority evades the established law of Hayes, Davis,
and Wong Sun by its categorical assertion that “identity evi-
dence” can “never” be suppressed. Majority op. at 14816. For
14824 UNITED STATES v. ORTIZ-HERNANDEZ
that assertion, it relies on a single sentence by the Supreme
Court in INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-40
(1984):
The “body” or identity of a defendant or respondent
in a criminal or civil proceeding is never itself sup-
pressible as a fruit of an unlawful arrest, even if it is
conceded that an unlawful arrest, search, or interro-
gation occurred. See Gerstein v. Pugh, 420 U.S. 103,
119 (1975); Frisbie v. Collins, 342 U.S. 519, 522
(1952); United States ex rel. Bilokumsky v. Tod, [263
U.S. 149,] 158 [(1923)].
The majority misreads this sentence and misunderstands
Lopez-Mendoza. Far from supporting the majority’s conclu-
sion, Lopez-Mendoza directly conflicts with it.
There were two respondents in Lopez-Mendoza. The quoted
sentence is relevant only to the first of them, Lopez-Mendoza.
After an illegal arrest, Lopez-Mendoza was placed in deporta-
tion proceedings. The immigration judge, relying on a famil-
iar and established rule, held that the illegality of Lopez-
Mendoza’s arrest could not be used as a defense in his depor-
tation proceeding. Id. at 1035. The Supreme Court made
quick work of Lopez-Mendoza’s argument to the contrary in
the single sentence just quoted, invoking the same rule upon
which the immigration judge had relied.
The three cases cited by the Court in support of its sentence
all refer to and rely on this same established rule. In Gerstein,
at the page cited in Lopez-Mendoza, the Court wrote, “Nor do
we retreat from the established rule that an illegal arrest or
detention does not void a subsequent conviction. Frisbie v.
Collins, 342 U.S. 519 (1952)[.]” 420 U.S. at 119. In Frisbie,
at the cited page, the Court wrote, “This Court has never
departed from the rule . . . that the power of a court to try a
person for a crime is not impaired by the fact that he had been
brought within the court’s jurisdiction by reason of a ‘forcible
UNITED STATES v. ORTIZ-HERNANDEZ 14825
abduction.’ ” 342 U.S. at 522. Finally, in Bilokumsky, at the
cited page, the Court wrote, “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.” 263 U.S. at 158.
There is no hint in Lopez-Mendoza that the quoted sentence
was intended to go beyond the familiar and established rule.
There is certainly no hint that the sentence was intended to
articulate a categorical new rule, that evidence of the identity
of a criminal defendant could always be introduced in court
regardless of its source. This was not the issue in Lopez-
Mendoza. Nor was it the issue in Gerstein, Frisbie, and
Bilokumsky. The question in those cases was whether a defen-
dant could assert as a defense in a deportation or a criminal
case that he had been illegally arrested. The answer, under
long-established law, was “no.”
The second respondent in Lopez-Mendoza was Sandoval-
Sanchez. His case is directly comparable to the case now
before us. Sandoval-Sanchez was arrested in an immigration
sweep conducted by the Immigration and Naturalization Ser-
vice (INS). After his arrest, Sandoval-Sanchez stated his name
to INS investigators and admitted that he had re-entered the
country illegally. At his civil deportation hearing, he con-
tended that his arrest had been illegal. He therefore challenged
the admission of the Form I-213 on which his name, as well
as his illegal re-entry, were recorded. Petition for Writ of Cer-
tiorari at 111a, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)
(No. 83-491). That is, Sandoval-Sanchez did not merely chal-
lenge the legality of his arrest. Rather, he challenged the
admission of evidence — including evidence of his identity
(his name) — obtained as a result of the illegal arrest. The
Supreme Court explicitly recognized the difference between
his challenge and Lopez-Mendoza’s. It wrote, “Respondent
Sandoval-Sanchez has a more substantial claim. He objected
not to his compelled presence at a deportation, but to evidence
offered at that proceeding.” 468 U.S. at 1040.
14826 UNITED STATES v. ORTIZ-HERNANDEZ
The Court held that the challenged evidence, including evi-
dence of Sandoval-Sanchez’s identity, was admissible. But
the Court held that it was admissible only because Sandoval-
Sanchez was appearing in a civil deportation hearing. In a
lengthy discussion, the Court described the ways in which a
civil deportation proceeding is different from a criminal trial.
Based on these differences, it concluded that the Fourth
Amendment exclusionary rule does not apply in a deportation
proceeding: “In these circumstances, we are persuaded that
the . . . balance between costs and benefits comes out against
applying the exclusionary rule in civil deportation proceed-
ings held by the INS.” Id. at 1050.
However, the Court was explicit in saying that the evidence
contained in Sandoval-Sanchez’s Form I-213 would have
been properly suppressed if it had been a criminal proceeding.
Citing Wong Sun, the Court wrote, “The general rule in a
criminal proceeding is that statements and other evidence
obtained as a result of an unlawful, warrantless arrest are sup-
pressible if the link between the evidence and the unlawful
conduct is not too attenuated.” Id. at 1040-41. If the proceed-
ing is criminal, the exclusionary rule requires the suppression
of identity evidence obtained as a result of the Fourth Amend-
ment violation. But if the proceeding is a civil deportation
hearing, the evidence is admissible. As the Court wrote,
“When the crime in question involves unlawful presence in
this country, the criminal may go free, but he should not go
free within our borders.” Id. at 1047 (emphasis added).
The conclusion reached by the majority in this case is thus
not supported by Lopez-Mendoza. Quite the opposite. The
sentence upon which the majority relies was applied to
Lopez-Mendoza’s case, where the only issue was whether a
defendant could defend against deportation based on his ille-
gal arrest. The Court gave the established answer: When a
defendant’s only defense is the illegality of his arrest, he can-
not suppress his “ ‘body’ or identity.” Id. at 1039. By contrast,
in Sandoval-Sanchez’s case, where the issue was whether a
UNITED STATES v. ORTIZ-HERNANDEZ 14827
criminal defendant could object to the introduction of illegally
obtained evidence (including identity evidence) in a criminal
proceeding, the answer was quite different: Any illegally
obtained evidence (including identity evidence) must be sup-
pressed. As the Court wrote, in differentiating Sandoval-
Sanchez’s case from Lopez-Mendoza’s, “[Sandoval-Sanchez]
objected not to his compelled presence at a deportation pro-
ceeding, but to evidence offered at that proceeding.” Id. at
1040.
In United States v. Guevara-Martinez, 262 F.3d 751, 753,
754 (8th Cir. 2001), the Eighth Circuit carefully analyzed
Lopez-Mendoza and came to the same conclusion:
In the jurisdictional case (Lopez-Mendoza), the
Court said that the “body or identity of a defendant
or respondent in a criminal or civil proceeding is
never itself suppressible as the fruit of an unlawful
arrest.” [468 U.S. at 1039] But the Court addressed
the evidentiary case (Sandoval-Sanchez) from a dif-
ferent tack. There the Supreme Court acknowledged
the “general rule in a criminal proceeding [ ] that
statements and other evidence obtained as a result of
an unlawful, warrantless arrest are suppressible if
the link between the evidence and the unlawful con-
duct is not too attenuated.” Id. at 1040-41 . . .
(emphasis added). Thus, the Court’s reference to the
suppression of identity appears to be tied only to a
jurisdiction issue, not to an evidentiary issue.
***
We conclude that Lopez-Mendoza’s statement
about the suppression of identity only refers to juris-
dictional challenges, not to fingerprint evidence
challenged in a criminal proceeding.
To the same effect are United States v. Olivares-Rangel, 324
F. Supp. 2d 1218, 1224 (D.N.M. 2004) (explicitly following
14828 UNITED STATES v. ORTIZ-HERNANDEZ
the Eighth Circuit’s decision in Guevara-Martinez); United
States v. Mendoza-Carrillo, 107 F. Supp. 2d 1098, 1106, 1007
(D.S.D. 2000) (“The language in Lopez-Mendoza should only
be interpreted to mean that a defendant may be brought before
a court on a civil or criminal matter even if the arrest was
unlawful.” “This Court will not read the language of Lopez-
Mendoza to preclude the suppression of fingerprints[.]”).
III. Ninth Circuit Cases
The majority relies on three decisions of this court and
brushes aside a fourth, more recent decision. The three deci-
sions upon which the majority relies misunderstand the
“ ‘body’ or identity” sentence from Lopez-Mendoza, just as
the majority misunderstands that sentence. Of course, a three-
judge panel does not have the power to overrule these deci-
sions, and I must, for present purposes, accept these three
decisions of our circuit as binding law. But these three deci-
sions do not go as far as the majority goes in this case. The
fourth decision, which the majority brushes aside, distin-
guishes and limits the reach of the first three decisions. In my
view, the fourth decision is flatly inconsistent with the deci-
sion reached by the majority. Absent an en banc proceeding,
the majority is bound by that fourth decision, just as we are
bound by the first three.
I begin by discussing the three decisions that misunderstand
the “ ‘body’ or identity” sentence from Lopez-Mendoza. First,
in United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir.
1994), Guzman-Bruno was arrested by agents of the INS. For
purposes of our decision, we assumed that the arrest was ille-
gal. After his arrest, Guzman-Bruno admitted his name, and
admitted that he had prior drug convictions and deportations.
We refused to suppress evidence of Guzman-Bruno’s identity
in his later criminal prosecution for illegal reentry. We wrote:
A defendant’s identity need not be suppressed
merely because it is discovered as the result of an
UNITED STATES v. ORTIZ-HERNANDEZ 14829
illegal arrest or search. . . . “The ‘body’ or identity
of a defendant . . . is never itself suppressible as a
fruit of an unlawful arrest.” INS v. Lopez-Mendoza,
468 U.S. 1032, 1039 (1984)[.] 27 F.3d at 421-22.
Second, in United States v. Parga-Rosas, 238 F.3d 1209
(9th Cir. 2001), Parga-Rosas was arrested by San Diego
police. Upon later questioning by the United States Border
Patrol, Parga-Rosas admitted that he was here illegally. After
Parga-Rosas admitted his crime, the Border Patrol took fin-
gerprint exemplars and discovered his identity. Citing
Guzman-Bruno, we held that because his fingerprints had not
been taken to investigate whether he had committed a crime
but rather merely to establish his identity, they could be
admitted in criminal trial. Id. at 1215.
Third, in United States v. Del Toro Gudino, 376 F.3d 997
(9th Cir. 2004), Del Toro Gudino was arrested by the United
States Border Patrol. After his arrest, Del Toro Gudino admit-
ted that he was here illegally. The Border Patrol thus knew,
based on Del Toro Gudino’s own admission, that he had com-
mitted a crime. In order to learn his name, the Border Patrol
then took fingerprint exemplars. Del Toro Gudino sought to
have the fingerprint evidence suppressed on the ground that
he had been illegally arrested. Citing the Supreme Court’s
sentence in Lopez-Mendoza and our decision in Guzman-
Bruno, we held that this evidence of identity could not be sup-
pressed.
The majority brushes aside our more recent decision,
United States v. Garcia-Beltran, 389 F.3d 864 (9th Cir. 2004).
Garcia-Beltran was arrested without probable cause by Port-
land police. After his arrest, exemplars of his fingerprints
were taken. Garcia-Beltran contended that the exemplars had
been taken for purely investigatory purposes. The government
argued that it did not matter whether the exemplars were
taken for investigatory purposes because identity evidence
could always be introduced at trial. The government relied on
14830 UNITED STATES v. ORTIZ-HERNANDEZ
the Supreme Court’s decision in Lopez-Mendoza, and our
decisions in Guzman-Bruno, Parga-Rosas, and Del Toro
Gudino. We rejected the government’s argument.
We characterized Guzman-Bruno, Parga-Rosas, and Del
Toro Gudino as holding that, when the government already
knows that the defendant has committed a crime, and only
takes his fingerprints to discover his identity, the fingerprint
evidence may not be suppressed. We held that Guzman-
Bruno, Parga-Rosas, and Del Toro Gudino do not control a
case where the government takes fingerprint exemplars for
investigatory purposes, in order to discover whether the per-
son has committed a crime. Beltran-Garcia is on all fours
with the case now before us.
The majority contends that Garcia-Beltran does not control
because it involved suppressing the original fingerprint exem-
plars taken by the Portland police, and did not involve com-
pelling the production of a second set of exemplars. This is a
classic example of a distinction without a difference. In prac-
tical effect, the majority holds that the fingerprint evidence
seized in violation of the Fourth Amendment can never be
suppressed.
Under the majority’s opinion, law enforcement officers
may arrest without probable cause any person who they think
might possibly have committed a crime. They may suspect a
person with a gun of being a convicted felon. Or they may
suspect a Hispanic-looking person of being an illegal immi-
grant. They may take the fingerprints of this person to dis-
cover his or her name, and thereby learn his or her status and
whether he or she has committed a crime.
Under the majority’s decision, the formalities would, of
course, be observed. The original fingerprints could not be
introduced, for that — heaven forbid — would violate the
exclusionary rule. Instead, a second set of fingerprints, made
available through a motion to compel, would be introduced.
UNITED STATES v. ORTIZ-HERNANDEZ 14831
Same fingers, but different fingerprints. In practical effect, the
Fourth Amendment and the exclusionary rule would be ren-
dered meaningless. More to the immediate point, our recent
decision in Garcia-Beltran would be eviscerated.
IV. Continuing Crime
The majority argues in support of its result that Ortiz-
Hernandez’s crime is different from ordinary crimes. It writes,
“We must also consider the nature of the crime Ortiz-
Hernandez is facing — the continuing violation of federal law
by his ongoing presence in the United States.” Majority op. at
14819. This argument was made, and explicitly rejected, in
Lopez-Mendoza. The Supreme Court noted that release of
Sandoval-Sanchez within the borders of this country “would
clearly frustrate the express public policy against an alien’s
unregistered presence in this country.” 468 U.S. at 1047. For
this, among other reasons, the Court held that the exclusion-
ary rule does not apply in civil deportation proceedings.
Under the Supreme Court’s opinion in Lopez-Mendoza,
Sandoval-Sanchez could be deported despite the Fourth
Amendment violation, just as Ortiz-Hernandez, the defendant
in this case, may be deported.
But the Court in Lopez-Mendoza rejected the conclusion
that the ongoing nature of Sandoval-Sanchez’s immigration
violation required the elimination of the exclusionary rule in
criminal proceedings. The nature of the immigration crime
required the deportation of the illegal alien. But it did not
require the elimination of the exclusionary rule to allow him
to be criminally convicted. Responding directly to the concern
expressed by the majority, the Court wrote in Lopez-Mendoza,
“When the crime in question involves unlawful presence in
this country, the criminal may go free, but he should not go
free within our borders.” 468 U.S. at 1047 (emphasis added).
V. Egregious Fourth Amendment Violation
Finally, relying on Del Toro Gudino, the majority states
that the second set of fingerprint exemplars could be com-
14832 UNITED STATES v. ORTIZ-HERNANDEZ
pelled even if Detective Anderson’s violation of the Fourth
Amendment were egregious and race-based. Majority op. at
14815-16. This statement ignores the Court’s explicit caution
in Lopez-Mendoza, in discussing Sandoval-Sanchez’s case,
that evidence seized pursuant to an egregious violation of the
Fourth Amendment might be suppressed even in a deportation
proceeding. The Court carefully noted that it was not dealing
with “egregious violations of Fourth Amendment or other lib-
erties that might transgress notions of fundamental fairness
and undermine the probative value of the evidence obtained,”
468 U.S. at 1050-51, and that its holding was limited to non-
egregious violations. If the Court was concerned in Lopez-
Mendoza to reserve the question of whether evidence seized
pursuant to an egregious Fourth Amendment violation could
be introduced in a civil deportation proceeding where the
exclusionary rule does not apply, how can we blithely assume
that evidence seized pursuant to an egregious, race-based vio-
lation can be admitted in a criminal proceeding? With this
case in its current posture, I am bound by Del Toro Gudino,
but an en banc court would of course be free to reconsider that
holding.
Conclusion
This panel unanimously agrees that Detective Anderson’s
purely investigatory search violated the Fourth Amendment.
We also unanimously agree that the fingerprint exemplar
taken by Detective Anderson must be suppressed. But the
panel majority compels the production of a second fingerprint
exemplar even though it has suppressed the first one. This
decision conflicts with the Supreme Court’s decision in
Lopez-Mendoza, with the Eighth Circuit’s decision in
Guevara-Martinez, and with our decision in Garcia-Beltran.
I respectfully but emphatically dissent.