United States v. Olivares-Rangel

F I L E D
United States Court of Appeals
Tenth Circuit

August 11, 2006
PU BL ISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT O F APPEALS

TENTH CIRCUIT

U N ITED STA TES of A M ER ICA,

Plaintiff - Appellant,

v. No. 04-2194

GU STAVO O LIVA RES-RA NG EL,

Defendant - Appellee.

Appeal from the United States District Court
for the District of New M exico
(D.C. No. CR-04-528 RB)

M ark A. Saltman, Special Assistant United States Attorney, Las Cruces, New
M exico (David C. Iglesias, United States A ttorney, District of New M exico, with
him on the briefs), for Plaintiff-Appellant.

Barbara A. M andel, Assistant Federal Public Defender, Las Cruces, New M exico,
for Defendant-Appellee.

Before L UC ER O, B AL DOC K , and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This case involves a prosecution under 8 U.S.C. § 1326, which makes it a

crime to be present in the United States illegally after having been previously
deported. Here, two border patrol agents, acting on an anonymous tip, stopped

Gustavo Olivares-Rangel (“Defendant”) as he was leaving a trailer park and

questioned him about his identity and citizenship. After Defendant admitted to

being an illegal alien, he was arrested and taken to a border patrol station where

he was questioned further and fingerprinted. Based on his fingerprints, the agents

were able to connect Defendant to an INS file that indicated he had a previous

felony conviction. This increased the maximum penalty for Defendant’s § 1326

offense to a sentence of 20 years.

Defendant argued that his seizure was not based upon probable cause or

reasonable suspicion and moved to suppress all the evidence in the case as fruit of

the poisonous tree. The district court agreed and excluded Defendant’s

statements, his fingerprints, and the contents of his INS file. On appeal, the

Government does not contest the illegality of the seizure. Rather, it argues

primarily that the Supreme Court’s decision in Immigration and Naturalization

Service v. Lopez-M endoza, 468 U.S. 1032 (1984), forecloses the possibility of

suppressing any evidence of identity in a criminal case.

W e conclude that Lopez-M endoza does not prevent the suppression of all

identity-related evidence. Rather, Lopez-M endoza merely reiterates the long-

standing rule that a defendant may not challenge a court’s jurisdiction over him or

her based on an illegal arrest. Ultimately, we conclude that evidence of

Defendant’s oral statements were correctly suppressed. However, we remand for

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further factfinding on the suppression of Defendant’s fingerprints and his INS

file.

H aving jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291, we

AFFIR M in part, REVERSE in part, and REM AND.

BACKGROUND

I. Factual background

Sometime during January 2004, agents Luis A rmendariz and M ark M arshall

of the United States Border Patrol apprehended an illegal alien (“the informant”)

in Berino, New M exico. On the way to the border patrol station, the informant

told one of the agents that he knew of several other illegal aliens living in a trailer

in Vado, New M exico, who were possibly burglarizing homes in the area. The

agents took a detour to a trailer park in Vado, and the informant pointed out the

trailer where the alleged criminals lived.

Over the next three weeks, Agents Armendariz and M arshall made

numerous visits to the trailer park in Vado looking for the suspects, but did not

discover anyone until February 2, 2004. At about 10:00 a.m. on that date, the

agents approached the trailer and saw a green pickup truck exiting the narrow

driveway. The agents intercepted the vehicle, thereby blocking its exit from the

trailer park. Once the vehicles w ere bumper-to-bumper, Agent Armendariz

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immediately recognized the passenger of the pickup as Defendant, an immigrant

he had arrested a month or two before for being in the United States illegally. 1

Agent Armendariz questioned the occupants of the pickup (including

Defendant) about their citizenship prior to giving any warnings pursuant to

M iranda v. Arizona, 384 U.S. 436, 444 (1966). According to Agent Armendariz,

Defendant admitted he was a M exican citizen and in the United States illegally.

Defendant was then arrested and taken to the border patrol station where he was

fingerprinted and asked about his biographical information. Based on this

evidence, Agent Armendariz connected D efendant with his immigration record

and prior criminal record (also known as his “A-file” or “alien file”), which

indicated that he was a previously deported alien. At this point, Agent

Armendariz first read Defendant his M iranda rights and sent him to the Otero

County Jail.

1
W e do not disagree with the dissent’s statement that Agent Armendariz’s
recognition of Defendant is not suppressible because Defendant “has no
reasonable expectation of privacy in his visual appearance when exposed to the
public eye.” Dissent at 6. However, the Government has waived this issue by
failing to argue it because Fourth Amendment standing is not jurisdictional. See
United States v. Dewitt, 946 F.2d 1497, 1499-1500 (10th Cir. 1991) (“[T]he issue
of fourth amendment standing could be waived if the government has ‘failed to
raise it in a timely fashion during the litigation.’”) (quoting Steagald v. United
States, 451 U.S. 204, 209 (1981) (alteration omitted)). Additionally, whether
Border Patrol’s recognition of Defendant as a previously deported illegal alien
provided probable cause for Defendant’s arrest is irrelevant because, as later
discussion explains, the G overnment conceded on appeal that Defendant’s arrest
in this case was unlawful.

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II. Procedural background

On M arch 4, 2004, a federal grand jury issued an indictment charging

Defendant with illegally being present within the United States after being

previously deported, pursuant to 8 U.S.C. § 1326(a) (2000). Because Defendant

had been previously convicted of an aggravated felony, he was also charged under

8 U.S.C. § 1326(b), which made him eligible for a maximum sentence of 20

years’ imprisonment.

Defendant filed a motion to suppress “any physical evidence and statem ents

obtained as a result of the unlawful seizure and interrogation of [Defendant] on

February 2, 2004.” D efendant argued that the seizure and interrogation were

conducted in violation of his Fourth and Fifth Amendment rights. On June 8,

2004, the district court held a suppression hearing, during which it took testimony

from Agents Armendariz and M arshall as well as Sofia Delgado, a witness to the

events of February 2, 2004.

The district court granted Defendant’s motion, suppressing “all statements

and fingerprints seized from [Defendant], as well as the immigration and criminal

records located using that evidence of identity.” In its written order, the court

made a number of conclusions of law which are relevant to this appeal.

First, the court concluded that both “the stop and subsequent arrest” of

Defendant at the trailer park violated the Fourth Amendment. The Government

did not directly dispute this conclusion, nor did it argue in either its opening or

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reply brief that Border Patrol had probable cause to arrest Defendant. To the

contrary, the Government expressly acknowledged in its briefing that it was “not

challeng[ing] the district court’s factual findings and conclusions that Border

Patrol violated [Defendant]’s Fourth Amendment right[s].” Additionally, at oral

argument, the Government explicitly confirmed that it was appealing only the

legal question of whether Defendant’s identity-related evidence could be

suppressed as fruits of a poisonous tree and was not appealing the district court’s

conclusion that Border Patrol lacked probable cause to arrest D efendant. 2

Accordingly, the Government waived the issue of probable cause by failing to

raise it, see State Farm Fire & Cas. Co. v. M hoon, 31 F.3d 979, 984 n.7 (10th Cir.

1994), and conceded for purposes of this appeal that Defendant was unlaw fully

arrested. 3

2
At argument, the Government began to argue that Border Patrol had
probable cause for the arrest because Agent Armendariz recognized Olivares as an
illegal alien. Judge Ebel stopped the Government’s attorney to ask:

But you’re not appealing that. The district court said there was no
probable cause. And as I understand it you don’t appeal that. You
appeal only the pure legal question that even w ithout probable cause
Lopez-M endoza does not allow you to suppress. Isn’t that correct?”

The attorney responded, “That’s correct, Your Honor.” Judge Ebel pushed the
issue once more and stated, “That is what I asked you at beginning of argument. I
wanted to know whether w e needed to get into all this probable cause . . . I
thought you told me no.” Again, the attorney responded, “That’s correct, Your
Honor.”
3
Our disagreement with the dissent can be expressed very simply and
(continued...)

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 Second, the court determined that the fingerprints taken at the border patrol

station and the statements that Defendant made at that time must be suppressed as

“fruit of the poisonous tree.” In doing so, the court applied the factors set forth in

Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Specifically, with regard to

Defendant’s oral statements, the court noted that M iranda warnings had not been

given when Defendant incriminated himself. 4

Third, the court concluded that the Government had not met its burden of

proving that the evidence in question would have been inevitably discovered in

the absence of the Fourth Amendment violation. See United States v. W hite, 326

F.3d 1135, 1138 (10th Cir. 2003). The Government has not appealed this point.

3
(...continued)
fundamentally: even if the record could factually support a conclusion that
probable cause for Defendant’s arrest existed, as the dissent claims, the
Government has conceded that Defendant’s detention and arrest were unlawful.
Contrary to the dissent’s approach, we believe that we must therefore decide this
appeal within the framework in w hich it was presented to us.
4
The district court did not expressly conclude that M iranda or the Fifth
Amendment had been violated. Rather, M iranda was referenced only to the extent
that it indicates an attenuation of the taint. See Brown, 422 U.S. at 603 (noting
that issuance of M iranda warnings are an important, but not dispositive, factor in
attenuating the taint between an illegal seizure and a subsequent statement).

In his brief, Defendant argues his statements must be suppressed not only
on Fourth Amendment grounds, but also because his Fifth Amendment rights
were violated when the officers questioned him without first giving M iranda
warnings. Because w e ultimately conclude that suppression of D efendant’s
statements w as appropriate under the Fourth Amendment, we do not reach this
question.

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 Fourth, the court considered and rejected the very argument that the

Government makes on appeal here, that the “body” or “identity” of a defendant is

never itself suppressible as fruit of an unlawful arrest and thus no evidence

pertaining to identity may be suppressible. See Lopez-M endoza, 468 U.S. at

1039. Concluding that the Supreme Court was speaking about jurisdictional

challenges under the Fourth Amendment as opposed to evidentiary challenges to

tainted identity evidence, the district court held Lopez-M endoza was inapplicable

and that the case did not prohibit suppression of the statements and fingerprints.

Finally, the court turned to the contents of Defendant’s A-file. Since it had

concluded that all of the evidence leading Agent Armendariz to discover the

existence of the file should be suppressed, the court also suppressed the contents

of the A-file, which included Defendant’s criminal and immigration records.

To summarize, the district court excluded four pieces of evidence:

(1) Defendant’s initial statement at the time of his arrest; (2) the fingerprint

evidence taken at the border patrol station; (3) the contents of Defendant’s A-file;

and (4) Defendant’s oral statements regarding biographical information made at

the border patrol station. The instant appeal by the government followed.

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 D ISC USSIO N

I. Standard of review

A district court’s decision to suppress evidence under the Fourth

Amendment is a question of law that we review de novo. United States v. Evans,

937 F.2d 1534, 1536-37 (10th Cir. 1991).

II. Issue on appeal

This appeal raises the question of w hether evidence of a defendant’s

identity (including statements, fingerprints, and an A-file) may ever be suppressed

as the “fruit” of an unlawful arrest. Before examining the merits of the

Government’s argument, it is helpful first to place this issue in its proper Fourth

Amendment context.

The ordinary remedy in a criminal case for violation of the Fourth

Amendment is suppression of any evidence obtained during the illegal police

conduct. See M app v. Ohio, 367 U.S. 643, 648 (1961). In addition, a defendant

may also suppress any other evidence deemed to be “fruit of the poisonous tree,”

(i.e., evidence discovered as a direct result of the unlawful activity), by showing

the requisite factual nexus between the illegality and the challenged evidence.

W ong Sun v. United States, 371 U.S. 471, 485 (1963); United States v. Nava-

Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000).

Once the defendant meets this burden, the Government may still avoid

suppression by proving that the contested evidence is not fruit of the poisonous

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tree. Nava-Ramirez, 210 F.3d at 1131. According to the Supreme Court, the

overriding issue in “fruits” cases is

whether, granting establishment of the prim ary illegality, the evidence
to which instant objection is made has been come at by exploitation of
that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.

W ong Sun, 371 U.S. at 488 (quotations and citation omitted). The Government

can establish that a particular item of evidence has been purged of the primary

taint by demonstrating that the evidence would have been inevitably discovered,

was discovered through independent means, or was so attenuated from the

illegality as to dissipate the taint of the unlawful conduct. Id.

Although the Government argued inevitable discovery and attenuation of

the taint below, its does not reassert these doctrines on appeal. Instead, its

primary position on appeal is that the evidence of identity of a defendant is never

suppressible as the fruit of an unlawful arrest. Accordingly, we address that issue

first.

III. Suppressability of identity-related evidence as fruit

In arguing that identity evidence should never be suppressible as fruit of

the poisonous tree, the Government relies almost exclusively on a single sentence

in Lopez-M endoza:

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

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468 U.S. at 1039. 5 Here, of course, the district court suppressed statements and

fingerprints along w ith files located using such “evidence of identity.” At first

blush, the above-quoted language in Lopez-M endoza appears to control the case

at bar; however, a closer analysis indicates that the issue is more complex than

the Government presents it to be.

A. Lopez-M endoza and related low er-court cases

In Lopez-M endoza, the Court reviewed two civil deportation proceedings

that took place following unlawful arrests. 468 U.S. at 1034-35. In the first case,

respondent Adan Lopez-M endoza (“Lopez”) argued that the immigration court did

not have personal jurisdiction over him by virtue of the fact that his arrest had

been unlawful; he did not object to the specific evidence offered against him:

namely, his oral and written admissions to law enforcement officers concerning

his identity and citizenship. Id. at 1035. The immigration court held that the

legality of Lopez’s arrest was irrelevant to its jurisdiction and overruled the

objection. Id.

In the second case, respondent Elias Sandoval-Sanchez (“Sandoval”)

argued that incriminating statements regarding his nationality and identity were

fruit of an illegal arrest and should be suppressed. Id. at 1037. Ultimately, the

lower courts held that Sandoval’s detention violated the Fourth Amendment and

5
For convenience, the above-quoted passage will be referred to in this
opinion as the “identity” or “disputed” language from Lopez-M endoza.

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held that the statements could not be used against him in his civil deportation

proceedings. Id.

Thus, by the time the cases came to the Supreme Court, two questions

readily presented themselves for review: (1) whether an illegal arrest deprived the

immigration court of jurisdiction over the respondent’s “person”; and (2) whether

the exclusionary rule, which is typically a remedy in criminal cases, would be

extended to apply to civil deportation proceedings.

Dealing with the Lopez claim first, the Court held that the immigration

court retained jurisdiction because “[t]he mere fact of an illegal arrest has no

bearing on a subsequent deportation proceeding.” Id. at 1040 (quotation omitted).

It was in this context in which the Court noted that the “body” or identity of a

defendant is never suppressible as fruit of an unlawful arrest. Id. at 1039-40

(citing, inter alia, Gerstein v. Pugh, 420 U.S. 103, 119 (1975) and Frisbie v.

Collins, 342 U.S. 519, 522 (1952)). Based on the cases the Court cited, it appears

that the majority was referencing the long-standing rule, known as the Ker-Frisbie

doctrine, that illegal police activity affects only the admissibility of evidence; it

does not affect the jurisdiction of the trial court or otherwise serve as a basis for

dismissing the prosecution. See Ker v. Illinois, 119 U.S. 436, 443 (1886)

(holding that the constitution does not prevent criminal jurisdiction over a

defendant who was forcibly abducted from another country); Frisbie, 342 U.S. at

522 (“This Court has never departed from the rule announced in [Ker] that the

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power of a court to try a person for crime is not impaired by the fact that he had

been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’”);

see also Gerstein, 420 U.S. at 119 (reiterating the Court’s “established rule” that

illegal arrest or detention does not void a subsequent conviction).

The Lopez-M endoza Court then turned its attention to Sandoval’s claim,

which was not directed to the jurisdiction of the immigration court, but rather to

the admissibility of statements regarding Sandoval’s citizenship and identity that

were made follow ing the illegal arrest. 468 U .S. at 1040. The Court first

undertook to decide if the exclusionary rule itself extended to non-criminal, civil

deportation proceedings. Id. at 1041. After applying the factors in United States

v. Janis, 428 U.S. 433 (1976), the Court held that the exclusionary deterrent

should not apply to civil deportation proceedings. Lopez-M endoza, 468 U.S. at

1050.

The language in Lopez-M endoza concerning the suppressibility of a

defendant’s “body” or “identity” has been the cause of much consideration by the

lower courts. The Ninth Circuit has relied upon this language to justify denying

suppression of either a defendant’s identity or his governmental files in

prosecutions brought under 8 U.S.C. § 1326. See United States v. Guzman-

Bruno, 27 F.3d 420, 422 (9th Cir. 1994). The Eighth Circuit, on the other hand,

upheld the suppression of physical fingerprint evidence obtained after an illegal

arrest, but not in the context of a routine booking, and further concluded that the

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“identity” language in Lopez-M endoza referred only to jurisdictional challenges

and did not foreclose suppression of all identity-related evidence. United States v.

Guevara-M artinez, 262 F.3d 751, 754 (8th Cir. 2001). W e find the Eighth

Circuit’s analysis persuasive.

B. Analysis

W e do not read Lopez-M endoza as exempting from the “fruits” doctrine all

evidence that tends to show a defendant’s identity. Rather, the Supreme Court’s

statement that the “body” or identity of a defendant are “never suppressible”

applies only to cases in which the defendant challenges the jurisdiction of the

court over him or her based upon the unconstitutional arrest, not to cases in which

the defendant only challenges the admissibility of the identity-related evidence.

This much is evident simply from looking at the cases the Court cites in support

of its proposition. See Frisbie, 342 U.S. at 522; Gerstein, 420 U.S. at 119. As the

Eighth Circuit noted in Guevara-M artinez:

These cases [relied upon by the Court in Lopez-M endoza] deal with
jurisdiction over the person, not evidence of the defendant’s identity
illegally obtained. The language in Lopez-M endoza 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 w as unlawful.

262 F.3d at 754.

The limited scope of Lopez-M endoza is also clear from analyzing the tw o

separate proceedings in that case. Lopez argued only that the immigration court

lacked personal jurisdiction over him due to the illegal arrest. 468 U.S. at 1035-

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36. He did not challenge the admissibility of his statements to officers disclosing

his identity. See id. Sandoval, on the other hand, specifically raised an

evidentiary challenge to identity-related statements he sought suppressed. Id. at

1037. If the “identity” language (which is first mentioned in connection with

Lopez’s jurisdictional challenge) applied with equal force to Sandoval’s

evidentiary challenge, there would have been no need for the Court to dispose of

Sandoval’s case separately. See id. at 1040-41 (referring to the “general

[exclusionary] rule [to be applied] in a criminal proceeding” in discussing

Sandoval’s evidentiary challenge, without distinguishing between identity-related

evidence and other types of evidence).

Seeking to suppress one’s very identity and body from a criminal

proceeding merely because of an unconstitutional arrest is the sort of

jurisdictional challenge foreclosed by Lopez-M endoza. The language in Lopez-

M endoza merely says that the defendant cannot suppress the entire issue of his

identity. A defendant may still seek suppression of specific pieces of evidence

(such as, say, fingerprints or statements) under the ordinary rules announced in

M app and Wong Sun. A broader reading of Lopez-M endoza would give the

police carte blanche powers to engage in any manner of unconstitutional conduct

so long as their purpose was limited to establishing a defendant’s identity. W e do

not believe the Supreme Court intended Lopez-M endoza to be given such a

reading.

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 Furthermore, specifically with regard to fingerprint evidence, the Supreme

Court has made it clear on two occasions that fingerprint evidence (which is

undeniably identity evidence) obtained after an illegal arrest may be suppressed

under the exclusionary rule if obtaining the fingerprints was the objective of the

illegal arrest. Davis v. M ississippi, 394 U.S. 721, 727 (1969); Hayes v. Florida,

470 U.S. 811, 815 (1985). Because Lopez-M endoza did not expressly overrule

Hayes and Davis, we are bound to apply those earlier cases. See Agostini v.

Felton, 521 U.S. 203, 237 (1997) (warning that the circuit courts should not

conclude that more recent Supreme Court cases have, by implication, overruled

earlier precedents).

Our conclusion from Lopez-M endoza, Davis, and Hayes, considered

together, is that the “identity” language in Lopez-M endoza refers only to

jurisdiction over a defendant and it does not apply to evidentiary issues pertaining

to the admissibility of evidence obtained as a result of an illegal arrest and

challenged in a criminal proceeding. Instead, we utilize the normal and generally

applicable Fourth Amendment exclusionary rule to determine whether challenged

identity-related evidence should be excluded under the circumstances present in

the particular case.

IV . Suppression of Defendant’s statement, fingerprints, and A-file

Having concluded that Lopez-M endoza refers only to jurisdictional

challenges, and not to challenges to the admissibility of identity-related evidence,

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we must now determine whether the general exclusionary rule requires

suppression of Defendant’s statements, his fingerprints, and his A-file under the

circumstances present here, see Guevara-M artinez, 262 F.3d at 754-55; however,

we must do so only if the G overnment preserved for appeal its argument against

suppression under the general exclusionary rule.

A. Defendant’s statem ents

According to the record, Defendant made statements concerning his identity

and nationality directly after his illegal arrest and again at the border patrol

station. The district court concluded, after applying the factors in Brown, 422

U.S. 603-04, that the taint from Defendant’s illegal arrest had not become

sufficiently attenuated so as to permit admission of Defendant’s incriminating

statements. On appeal, the Government does not re-assert its attenuation-of-the-

taint argument with regard to these statements. The Government’s opening brief

does not even mention the B row n factors or contend that the district court

misapplied them. Rather, the Government rests its challenge to the suppression of

Defendant’s statements solely on the broader proposition that Lopez-M endoza

prevents a defendant from ever seeking suppression of evidence of his identity.

That proposition having been rejected for the reasons stated above, we decline to

disturb the conclusion of the district court that the taint from the illegal arrest was

not sufficiently attenuated by the time Defendant spoke to law enforcement

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officers so as to permit admission of the statements concerning identity and

nationality.

B. Fingerprints

On the issue of the exclusion of fingerprints, the Government does expand

its argument beyond its interpretation of Lopez-M endoza. It also argues that if

Lopez-M endoza does not place identity evidence off limits from suppression, then

under the ordinary application of the exclusionary rule D efendant’s fingerprints

should not be suppressed because this case is distinguishable from Davis and

Hayes. W e therefore review whether Defendant’s fingerprints constitute fruit of

the poisonous tree that must be excluded under the facts of this case.

Based on Defendant’s now-suppressed statement of identity, Agent

Armendariz took Defendant to the border patrol station where he was

fingerprinted. Thus, there is a factual nexus between the illegal conduct and the

evidence in question (fingerprints). Nevertheless, we distinguish between

fingerprints that are obtained as a result of an unconstitutional governmental

investigation and fingerprint evidence that is instead obtained merely as part of a

routine booking procedure. In doing so, we hold that fingerprints

administratively taken in conjunction with an arrest for the purpose of simply

ascertaining or confirming the identity of the person arrested and routinely

determining the criminal history and outstanding warrants of the person arrested

are sufficiently unrelated to the unlawful arrest that they are not suppressible.

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Ultimately, however, we reverse and remand on this issue because the factual

record in this case is insufficient to determine w hether Defendant’s

unconstitutional arrest was purposefully exploited in order to develop critical

evidence of criminal conduct to be used against Defendant.

1. Routine booking procedures and the exclusionary rule

Certain routine administrative procedures, such as fingerprinting,

photographing, and getting a proper name and address from the defendant, are

incidental events accompanying an arrest that are necessary for orderly law

enforcement and protection of individual rights. See 6 W ayne R. LaFave, Search

and Seizure § 11.4(g), at 362 (4th ed. 2004) (“[F]ingerprinting, like

photographing, is a rather standard booking procedure.”). Fingerprinting ensures

that the person who has been arrested is in fact the person law enforcement agents

believe they have in custody. See Notes and Comments, Excluding From

Evidence Fingerprints Taken After an Unlawful Arrest, 69 Yale L.J. 432, 438

n.30 (1959-60) (“In addition to establishing identity at the time of arrest,

fingerprints are useful in aiding the apprehension of escaped prisoners, and in

ascertaining whether the defendant has been previously convicted . . . .”) (citing

United States v. Kelly, 55 F.2d 67, 70 (2d Cir. 1932)); 3 LaFave, supra, § 5.3(c),

at 168 (“Fingerprinting, as a routine part of the booking process, is justified by

the legitimate interest of the government in knowing for an absolute certainty the

identity of the person arrested, in knowing whether he is w anted elsewhere, and in

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ensuring his identification in the event he flees prosecution . . . .”). It is therefore

considered “elementary that a person in law ful custody may be required to submit

to . . . fingerprinting as part of routine identification processes.” Smith v. United

States, 324 F.2d 879, 882 (D.C. Cir. 1963) (citations omitted). The government

always has the right, and indeed the obligation, to know who it is that they hold in

custody regardless of whether the arrest is later determined to be illegal.

In light of the underlying purpose of the exclusionary rule, it would make

little sense to suppress fingerprint evidence obtained merely as part of a routine

booking procedure, even where a judge subsequently rules that the arrest was

illegal. The exclusionary rule “is calculated to prevent, not to repair. Its purpose

is to deter— to compel respect for the constitutional guaranty in the only

effectively available way— by removing the incentive to disregard it.” Elkins v.

United States, 364 U.S. 206, 217 (1960); see also Excluding From Evidence,

supra, 69 Y ALE . L.J. at 436 n.24 (“[T]he threat of exclusion will operate as

intended only if an excludable piece of evidence is the target of the police

activity, and if the police are previously aware of the rule and its threat to the

success of their venture.”).

A blanket rule excluding fingerprint evidence obtained after an illegal

arrest would have neither a practical deterrence effect on unlawful arrests that

were not made for the purpose of obtaining fingerprint evidence nor w ould it

outweigh the substantial social costs of suppressing such evidence. See Penn. Bd.

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of Probation and Parole v. Scott, 524 U.S. 357, 363 (1998) (directing that the

exclusionary rule applies “only where its deterrence benefits outweigh its

substantial social costs”) (quotation omitted). Accordingly, although Lopez-

M endoza does not automatically exempt all fingerprint evidence from application

of the W ong Sun doctrine, application of that rule indicates that fingerprints taken

as part of a routine booking procedure following an arrest later determined to be

illegal ordinarily will not be poisoned fruit of an illegal arrest and should not be

suppressed. 6 See United States v. Garcia-Beltran, 389 F.3d 864, 868-69 (9th Cir.

2004) (holding that fingerprint evidence obtained as a result of an alien’s illegal

arrest need not be suppressed if the fingerprints were taken merely for purposes of

6
W e note that several courts have similarly found routine booking
photographs not to be the fruit of an illegal arrest for the purposes of suppression.
See United States v. Beckwith, 22 F. Supp. 2d 1270, 1291-1294 (D. Utah 1998)
(chronicling cases and distinguishing between photographs taken for investigatory
purposes and routine booking photographs); see also Robinson v. State, 452 A.2d
1291, 1299 (M d. Ct. Spec. App. 1982) (“In the absence of evidence . . . tending to
show that [defendant]’s . . . arrest was not only illegal but was merely a pretext
for a general exploratory search (as in Davis . . . ) or for gathering evidence in
this case (as in United States v. Crews, [445 U.S. 463 (1980)]), a routine
‘booking’ photograph taken as a consequence of that arrest would not be
suppressible as tainted fruit in this proceeding.”); Commonwealth v. M anning,
693 N .E.2d 704, 708-09 (M ass. App. Ct. 1998) (refusing to suppress a
defendant’s photograph where “the purpose of the defendant’s arrest w as not to
obtain evidence;” and “the taking of the defendant’s photograph during the
booking process was standard police procedure and bore no relation to the
purpose or validity of the arrest”) (citation omitted); People v. M cInnis, 494 P.2d
690, 693 (Cal. 1972) (finding that a booking photograph, routinely made pursuant
to an arrest, should not be suppressed because there was no evidence of
exploitation or other improper government conduct).

- 21 -
identification such as during a routine booking procedure); Guevara-M artinez,

262 F.3d at 756 (suppressing fingerprint evidence where the government offered

“no evidence that the fingerprints were obtained as a matter of course through

routine booking procedures”); see also Paulson v. State, 257 So. 2d 303, 305 (Fla.

Dist. Ct. App. 1972) (holding that fingerprints routinely taken after illegal arrest

could be used in a subsequent prosecution for another crime).

This is not to say that fingerprint evidence taken after an illegal arrest, even

as part of a routine booking procedure, is never suppressible. By focusing upon

the purpose for an illegal arrest and subsequent fingerprinting in determining

whether fingerprint evidence is tainted fruit, courts properly focus on effectuating

the underlying policy of the exclusionary rule. This is how we read the Supreme

Court’s decisions in Davis and Hayes.

In Davis and Hayes, the Supreme Court held that when an illegal arrest was

used as an investigatory devise to obtain fingerprints, the fingerprints were

regarded as inadmissible fruit of an illegal detention. Hayes, 470 U.S. at 817-18;

Davis, 394 U.S. at 727-28. However, both cases arose from illegal arrests made

for the purpose of obtaining fingerprints. 7 In suppressing the fingerprint

evidence, “the Court focused its attention squarely on the motive of the arresting

7
In Davis, the police obtained the defendant’s fingerprints in an attempt to
match them to prints found at the scene of a rape. 394 U.S. at 722-23. Likewise,
in Hayes the police detained the defendant specifically to obtain and to compare
his fingerprints to fingerprints found at a crime scene. 470 U.S. at 813-17.

- 22 -
officers to obtain fingerprints, and made it plain . . . that that motive rationalized

its decision.” U nited States v. O rtiz-Gonzalbo, 946 F. Supp. 287, 289 (S.D.N.Y .

1996), aff’d on other grounds, No. 97-1210, 1997 W L 829306 (2d Cir. Dec. 9,

1997) (unpublished). Specifically, in Davis, the majority held that “[d]etentions

for the sole purpose of obtaining fingerprints are . . . subject to the constraints of

the Fourth Amendment.” 394 U.S. at 727 (emphasis added). Additionally,

Justice Harlan in his concurring Davis opinion directed that the rule applied by

the Davis majority must be limited to situations like the “‘dragnet’ procedures

employed in th[at] case.” 394 U.S. at 728 (Harlan, J., concurring). And Justice

Brennan, the author of Davis, later stated in his concurring opinion in Hayes that

Hayes and Davis were indistinguishable in that “a suspect may not be

apprehended, detained and forced to accompany the police to another location to

be fingerprinted without a warrant or probable cause.” 470 U.S. at 818-19

(Brennan, J., concurring in the judgment).

W e therefore do not interpret Davis or Hayes as directing that fingerprint

evidence obtained as a result of any illegal arrest or detention is always fruit of a

poisoned tree. Like a majority of other courts to interpret these cases, we read

Davis and Hayes as requiring the suppression of fingerprint evidence only when

the illegal arrest was for the purpose of obtaining fingerprints without a warrant

or probable cause. See Garcia-Beltran, 389 F.3d at 867; Guevara-M artinez, 262

F.3d at 755; United States v. Jennings, 468 F.2d 111, 115 (9th Cir. 1972); see

- 23 -
also Ortiz-Gonzalbo, 946 F. Supp. at 288-89; S.E.G. v. State, 645 So. 2d 347,

348-49 (Ala. Crim. App. 1994); Black v. State, 383 So. 2d 295, 297 (Fla. D ist. Ct.

App. 1980); Paulson, 257 So. 2d at 304; Orum v. State, 245 So. 2d 829, 830

(Ala. Crim. App. 1970). 8 But see United States v. Lyles, 471 F.2d 1167, 1169

(5th Cir. 1972) (“If [an arrest is illegal], then the fingerprints taken from

appellant pursuant to that arrest will be inadmissible . . . .”); People v. Hernandez,

11 Cal. App. 3d 481, 492-94 (Cal. Ct. App. 1970) (“Although the Davis case

involved the indiscriminate roundup of numerous young men for the purpose of

interrogation and fingerprinting, the high court gave no indication that its ruling

was to be limited to those facts.”). W ithout a similar motive, neither Davis nor

Hayes require suppression of fingerprint evidence obtained at every illegal arrest

or detention.

The exclusionary rule applies “whenever evidence has been obtained ‘by

exploitation’ of the primary illegality instead of ‘by means sufficiently

distinguishable to be purged of the primary taint.’ Evidence can be obtained ‘by

exploitation’ of an unlaw ful detention even when the detention is not for the sole

purpose of gathering evidence.” Guevara-M artinez, 262 F.3d at 755 (quoting

8
W e note that a leading Fourth Amendment treatise also advocates this
reading of Davis. See LaFave, Search and Seizure, § 11.4(g), at 362 (“In Davis
the defendant was taken into custody for the purpose of getting his fingerprints
for use in investigation of the crime which prompted the illegal arrest, and thus
that case should not be read as declaring that fingerprints taken after an illegal
arrest are always inadmissible.”).

- 24 -
W ong Sun, 371 U.S. at 488). Accordingly, we hold that if an illegal arrest was

purposefully exploited for the objective of obtaining fingerprints, then the

fingerprint evidence must be suppressed. 9 See United States v. Flores-Sandoval,

422 F.3d 711, 715 (8th Cir. 2005) (affirming exclusion of fingerprint evidence

where the defendant’s fingerprints were taken “for the purpose of assisting the

[United States Immigrations and Customs Enforcement] investigation”)

(quotations, alteration omitted); Garcia-Beltran, 389 F.3d at 868-69

(distinguishing between fingerprints taken for investigative purposes and those

taken for identification purposes); Guevara-M artinez, 262 F.3d at 756

(distinguishing between fingerprints taken as part of a routine booking procedure

and fingerprints taken for an INS-related purpose). Conversely, in the absence of

evidence that the illegal arrest was purposefully exploited for investigatory

objectives, fingerprints taken as part of a routine, booking procedure are not fruit

of a poisonous tree.

9
The dissent indicates that the benefit of suppressing fingerprint evidence
obtained under these circumstances is slight because, as the “Supreme Court [has]
observed, ‘only a very small percentage of arrests of aliens are intended or
expected to lead to criminal prosecutions.’” Dissent at 5 n.3 (quoting Lopez-
M endoza, 468 U.S. at 1043.) But the dissent’s cost/benefit analysis fails to
recognize that while the benefit of suppression may be slight, the cost of
suppression is also slight. Our ruling suppresses evidence only where it can be
demonstrated that the officer exploited an illegal arrest to obtain identity-related
evidence for the purpose of pursuing criminal prosecution, not merely deportation
proceedings, in which the exclusionary rule does not apply absent an egregious
violation of the Fourth Amendment. See Lopez-M endoza, 468 U.S. at 1050.

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 2. Purpose for arresting and fingerprinting Defendant

Accordingly, in determining w hether the fingerprint evidence in this case

should be suppressed, we must determine the original purpose for arresting and

later fingerprinting Defendant; that is, was D efendant fingerprinted m erely as part

of a routine booking or processing procedure or was the illegal arrest in part for

the purpose of obtaining unauthorized fingerprints so Defendant could be

connected to additional alleged illegal activity. The precise circumstances under

which Defendant was arrested and his fingerprints taken are not clear from the

record.

The Government asserts on appeal that Defendant’s fingerprints were taken

while he w as being processed for having illegally reentered the country; however,

Agent Armendariz testified, and the district court found, only that “[Defendant]’s

fingerprints were obtained at the Border Patrol Station and were used to connect

[him] to his immigration record and prior criminal record.” Although it is clear

how the fingerprints evidence was ultimately used, there is no evidence in the

record before us to support the Government’s assertion that the illegal arrest was

not in part for the purpose of obtaining Defendant’s fingerprints to link him to

criminal activity. Because, on the record before us, we do not know whether the

illegal arrest was purposefully exploited for the objective of obtaining

Defendant’s fingerprints, we remand for an evidentiary hearing on this issue. See

Garcia-Beltran, 389 F.3d at 865 (remanding to the district court for factfinding in

- 26 -
a similar case challenging the admissibility of fingerprint evidence where the

factual record regarding the fingerprinting of the defendant was incomplete). 10

C. A-file

In its order below, the district court found that Defendant’s fingerprints

were used to connect him to his immigration record and prior criminal record,

otherwise known as his A-file. The Government argues, in addition to its Lopez-

M endoza argument, that (1) Defendant lacked standing to challenge the

introduction of the A-file; and (2) it is inappropriate to suppress this file because

10
W e agree with the dissent’s conclusion that “[a]n ultimate resolution in
favor of Defendant in this case will [not] exempt him from criminal prosecution,”
Dissent at 7 n.4, as this is precisely how we have interpreted Lopez-M endoza.
However, the dissent’s subsequent discussion regarding the continuing nature of
an immigration violation and the ability of the Government to require Defendant
to submit to additional fingerprinting, as well as our response to it, is dicta,
because that issue is not currently before us. Nevertheless, we caution that the
assumption reached by the dissent is not necessarily true because the overriding
issue in the fruit of the poisonous tree doctrine is whether evidence “has been
come at by exploitation of th[e] [initial] illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.” W ong Sun, 371 U.S. at 488
(quotations and citation omitted). Accordingly, if the Government by exploitation
of Defendant’s (concededly) illegal arrest obtained Defendant’s fingerprints and
his A -file, the court could decide that even a second set of fingerprint evidence is
not sufficiently attenuated to remove the taint and thus should be suppressed as
poisonous fruit. See Davis, 394 U.S. at 725 n.4 (refusing to affirm a conviction
despite the state’s claim that the authorities could have used a second set of prints
that were validly obtained, stating that “[t]he important thing is that those
administering criminal law understand that they must [obtain evidence in a wholly
proper way].”); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392
(1920) (“The essence of a provision forbidding the acquisition of evidence in a
certain way is that not merely evidence so acquired shall not be used before the
Court but that it shall not be used at all.”) (emphasis added).

- 27 -
its contents were not developed as the result of any illegal activity, but rather the

file was compiled prior to, and independently of, the illegal seizure of Defendant.

The Government’s challenge thus requires us to determine whether independent

government records must be suppressed as fruits of the poisonous tree if the

illegal arrest brings to the attention of authorities the fact that an individual is

present in the United States and a subsequent check of independently created and

maintained records reveals the individual’s immigration and/or prior criminal

record.

1. Standing to challenge fruits of the poisonous tree

W hile the fruit of the poisonous tree doctrine applies only when the

defendant has standing regarding the Fourth Amendment violation which

constitutes the poisonous tree, see United States v. Salvucci, 448 U.S. 83, 85

(1980), the law imposes no separate standing requirement regarding the evidence

which constitutes the fruit of that poisonous tree. In W ong Sun, the seminal case

defining the fruit of the poisonous tree doctrine, the defendant, James W ah Toy,

moved to suppress, inter alia, drugs found at the house of his co-defendant,

Johnny Yee. 371 U.S. at 487-88. Toy had standing to object to admission of the

drugs at his trial because of the alleged violation of his Fourth A mendment rights;

in that case, the unlawful arrest of Toy. See id. at 484. The Supreme Court

suppressed Toy’s statements to the officers, including the statement that he had

no drugs but that Yee did, as fruit of the illegal arrest. Id. at 486-87. The

- 28 -
Supreme Court ultimately held that Toy was also entitled to suppression of the

drugs found at Yee’s house because “it [was] clear that the narcotics were ‘come

at by the exploitation of [Toy’s statement]’ and hence that [the drugs] may not be

used against Toy.” Id. at 488. Thus, regardless of the fact that Toy maintained

no reasonable expectation of privacy in the drugs at Yee’s house, the Supreme

Court determined that he could object to them as poisonous fruits. See id. at 488.

In a number of cases, we have reinforced the principle that the relevant

inquiry in determining whether a defendant has standing to challenge evidence as

fruit of a poisonous tree is whether his or her Fourth Amendment rights were

violated, not the defendant’s reasonable expectation of privacy in the evidence

alleged to be poisonous fruit. In United States v. DeLuca, 269 F.3d 1128 (10th

Cir. 2001), for example, the defendant, a passenger in a car, moved to suppress

methamphetamine taken from the car. Id. at 1130-31. W e held that, although the

defendant did not have standing to directly challenge the search of the car because

he had neither a possessory nor property interest in the car, he had standing to

challenge the lawfulness of his detention and thus to seek to suppression of the

methamphetamine as fruit of that detention. Id. at 1132. See also United States

v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996) (recognizing that, although a

defendant may lack the requisite possessory or ownership interest in a vehicle to

directly challenge a search of that vehicle, the defendant may nonetheless contest

the lawfulness of his own detention and seek to suppress evidence found in that

- 29 -
vehicle as the fruit of the illegal detention); United States v. Eylicio-M ontoya, 70

F.3d 1158, 1162 (10th Cir. 1995) (same).

Contrary to our conclusion, the Third and Fifth Circuits have expressly

concluded that, at least absent egregious circumstances, 11 it is erroneous for a

district court to suppress the contents of a defendant’s A-file because an alien

charged with illegal reentry has no possessory or proprietary interest in his

immigration file or the documentary evidence contained in that file and thus has

no standing to challenge the file’s introduction into evidence. See Bowley, 435

F.3d at 431 (citing the expectation of privacy language used in United States v.

Pineda-Chinchilla, 712 F.2d 942, 943-44 (5th Cir. 1983)); Pineda-Chinchilla, 712

F.2d at 943-44 (citing Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v.

Illinois, 439 U.S. 128, 143 (1978)). Contrary to these decisions, we do not read

11
The Third Circuit specifically held that, “absent the kind of egregious
circumstances referred to in Lopez-M endoza, . . . the Fourth Amendment does not
provide a basis for an alien to suppress his/her immigration file, or information in
that file.” United States v. Bow ley, 435 F.3d 426, 431 (3d C ir. 2006); see also
Lopez-M endoza, 468 U.S. at 1039, 1050-51 (qualifying its statement that “[t]he
‘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,” by noting that it was not
in that case considering “egregious violations of Fourth Amendment or other
liberties that might transgress notions of fundamental fairness and undermine the
probative value of the evidence obtained”); id. at 1051 n.5 (citing as examples of
possibly egregious circumstances evidence obtained in a “fundamentally unfair
[manner] and in violation of due process requirements of the Fifth Amendment;”
evidence obtained “after request for counsel had been repeatedly refused;” or
evidence obtained “as a result of a night-time warrantless entry into the aliens’
residence”) (quotations omitted).

- 30 -
Raw lings or Rakas, nor any other Supreme Court or Tenth Circuit case, to support

the proposition that the fruit of the poisonous tree doctrine applies only when the

defendant has standing regarding both the violation which constitutes the

poisonous tree and separate standing regarding the evidence which constitutes the

fruit of that poisonous tree. 12 Instead, in both Rawlings and Rakas, the Supreme

Court merely held that a defendant has standing to seek suppression of evidence

only if he “has had his own Fourth Amendment rights infringed by the search and

seizure which he seeks to challenge.” Rakas, 439 U.S. at 138; Rawlings, 448 U.S.

at 104; see also United States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000).

A defendant’s standing to challenge the admissibility of evidence deemed

fruit of an illegal search and seizure therefore arises from the alleged violation of

his Fourth Amendment rights by virtue of the primary illegality; here, the

unlaw ful arrest of Defendant. There is no independent requirement that a

defendant also have standing or a proprietary interest in the items sought to be

12
Both Rawlings and Rakas involved defendants who sought to suppress
contraband based on the violation of another person’s Fourth Amendment rights.
See Rakas, 439 U.S. at 137 (involving passengers’ challenge to the search of a car
they did not ow n); Raw lings, 448 U.S. at 104-06 (involving a defendant’s
challenge to the search of someone else’s purse). Rakas did not even involve the
fruit of the poisonous tree doctrine. 439 U.S. at 160 n.5. In Rawlings, the
defendant made one fruits argument, claiming that his unlawful statements were a
fruit of his unlawful detention. How ever, the Supreme Court refused to suppress
the defendant’s statements because it concluded that the taint of the unlawful
detention had been attenuated, not because defendant lacked a privacy interest in
the statements. See 448 U.S. at 106-10.

- 31 -
suppressed under the fruits of the poisonous tree doctrine. See 6 LaFave, supra,

§ 11.4, at 257 (“[I]t must be cautioned that a defendant . . . can prevail on a ‘fruit

of the poisonous tree’ claim only if he has standing regarding the violation which

constitutes the poisonous tree,” without reference to any other standing

requirements) (emphasis added, footnote omitted). In this case, the Government

has conceded on appeal that Defendant himself was unlawfully detained and

arrested; thus, Defendant has standing to object to any poisonous fruit obtained as

a result of that primary illegality.

2. W hether Defendant’s A-File constitutes poisonous fruit

W here, as here, a defendant’s Fourth Amendment rights were violated, the

only relevant question in determining whether evidence is fruit of the poisonous

tree and therefore subject to the exclusionary rule is “whether, granting

establishment of the primary illegality, the evidence to which the instant objection

is made has been come at by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.” United States v.

King, 990 F.2d 1552, 1563 (10th Cir. 1993) (quoting W ong Sun, 371 U.S. at 488).

In this case, the answer to that question necessarily depends on whether

D efendant’s fingerprints, w hich the Government used to secure Defendant’s A-

file, should be suppressed. If the fingerprints are determined to be suppressible it

will be because of a determination that the fingerprints were illegally obtained for

the investigative purpose of obtaining Defendant’s immigration record and

- 32 -
potentially charging him with a more serious crime. Under such circumstances it

seems to us that the A -file is inextricably linked to the fingerprints and if one is a

fruit of the poisonous tree (the unconstitutional arrest), then the other is as well.

See W ong Sun, 371 U.S. at 484 (“The exclusionary prohibition extends as w ell to

the indirect as the direct products of [Fourth A mendment] invasions.”); see also

Nardone v. United States, 308 U.S. 338, 341 (1939) (“[T]he knowledge gained by

the Government’s own wrong cannot be used by it simply because it is used

derivatively.”) (quotations omitted).

The G overnment has cited United States v. W hite, 326 F.3d 1135 (10th Cir.

2003), for the statement that “[t]he exclusionary rule enjoins the Government

from benefitting from evidence it has unlawfully obtained; it does not reach

backward to taint information that was in official hands prior to any illegality.”

Id. at 1140 (quoting Crew s, 445 U.S. at 475 (plurality opinion)). However,

neither Crews nor W hite stand for the proposition that all preexisting

Governmental records found as a result of an illegal arrest are exempt from

suppression.

In Crews, the Supreme Court expressly noted that “the Fourth Amendment

violation . . . yielded nothing of evidentiary value that the police did not already

have in their grasp.” 445 U .S. at 475 (plurality opinion). The record in that case

indicated that

- 33 -
 prior to [the defendant’s] illegal arrest, the police both knew
respondent’s identity and had some basis to suspect his involvement in
the very crimes with which he was charged. M oreover, before they
approached respondent, the police had already obtained access to the
“evidence” that implicated him in the robberies, i.e., the mnemonic
representations of the criminal retained by the victims and related to the
police in the form of their agreement upon his description. In short, the
Fourth Amendment violation in this case yielded nothing of evidentiary
value that the police did not already have in their grasp. R ather,
respondent’s unlawful arrest served merely to link together tw o extant
ingredients in his identification.

Id. (footnote omitted) (plurality opinion). It is in this context that the Supreme

Court stated that “[t]he exclusionary rule enjoins the Government from benefiting

from evidence it has unlawfully obtained; it does not reach backward to taint

information that was in official hands prior to any illegality.” Id. (plurality

opinion). In this case, by contrast, while Defendant’s A-file was not developed as

the result of any illegal activity, but rather was compiled prior to, and

independently of, the illegal seizure of D efendant, the Border Patrol in this case

did not effectively have Defendant’s A-file in their grasp. Instead, the

practicality of the situations is that they obtained Defendant’s A-file only by first

taking his fingerprints.

In W hite, we held that defendant’s identity and the discovery of his status

as a felon from criminal history records w ere not suppressible. H owever, we did

so based on the doctrine of inevitable discovery, concluding that after the

defendant voluntary gave the officers his name, an NCIC check using that name

revealed an outstanding warrant that would have inevitably led to the defendant’s

- 34 -
arrest and the subsequent discovery of his prior felony conviction regardless of

the illegal search. 326 F.3d at 1138. In refusing to suppress the defendant’s

status as a felon, we also noted that, at the time the illegal search was conducted,

the officers neither knew of nor sought information about the defendant’s status

as a felon and consequently the illegal search was not exploited for the purpose of

determining W hite’s identity or his prior felony status. Id. at 1140. Accordingly,

in W hite, we merely reiterated the general rule that evidence gained through

exploitation of illegal police conduct must be suppressed unless that evidence

would have been inevitably discovered. W e did not announce a new rule

prohibiting suppression of all previously compiled G overnment records regardless

of whether exploitation of an illegal search and seizure produced the critical link

between a defendant’s identity and his immigration or prior criminal history

record.

In this appeal, the Government does not argue inevitable discovery.

Additionally, for the reasons explained earlier, it is possible that, in contrast to

W hite, the police in this case exploited the illegal detention of Defendant by

taking his fingerprints for the very purpose of investigating his immigration or

prior criminal history status. W here, as may prove to be the case here, obtaining

information regarding a defendant’s immigration status and prior criminal history

proves to be the objective of official illegality, the deterrence purpose of the

exclusionary rule w ould effectively be served only by excluding the very

- 35 -
evidence sought to be obtained by the primary illegal behavior, not just the means

used to obtain that evidence. See Elkins, 364 U.S. at 217 (“[The] purpose [of the

exclusionary rule] is . . . to compel respect for the constitutional guaranty in the

only effectively available way— by removing the incentive to disregard it.”); see

also Excluding From Evidence, supra, 69 Y ALE . L.J. at 436 n.24 (noting that the

effectiveness of the exclusionary rule depends on excluding the piece of evidence

that is the target of police activity).

The answer to whether Defendant’s A-file “[was] come at by exploitation”

of illegal conduct necessarily depends on whether Defendant’s fingerprints were

obtained for an investigatory purpose exploiting the unconstitutional arrest or

whether they were obtained as part of a routine booking procedure not linked to

the purpose of the illegal arrest. Because the officers used Defendant’s

fingerprints to obtain his A-file, if those fingerprints are determined to be

suppressible as fruits of the poisonous tree, then it follows that the A-file should

also be suppressed. Accordingly, whether Defendant’s A-file should be

suppressed will need to be decided on remand in conjunction with the evidentiary

hearing regarding Defendant’s fingerprints.

C ON CLU SIO N

For the reasons outlined above, we hold that the Supreme Court’s language

in Lopez-M endoza that the “identity” or “body” of a suspect may never be

suppressed applies only to jurisdictional challenges over the body of the

- 36 -
defendant based upon an illegal arrest or search and does not preclude application

of ordinary Fourth Amendment exclusionary rule analysis to determine the

admissibility of evidence. W e AFFIRM the district court’s opinion insofar as it

relates to the suppression of D efendant’s oral statements. However, we

REVERSE the court’s decision to suppress the fingerprints taken after

Defendant’s arrest and the contents of the A-file. Those matters are REM AN DED

for further proceedings consistent with this opinion.

- 37 -
No. 04-2194, United States v. Olivares-Rangel

B ALDO C K , Circuit Judge, dissenting:

Unable to agree on the meaning of I.N.S. v. Lopez-M endoza, 468 U.S. 1032

(1984), lower federal courts are divided on the question of whether, given an

unlawful seizure, the “identity” of an illegal immigrant may be suppressed in the

context of a § 1326 prosecution. Compare, e.g., United States v. Guzman-Bruno,

27 F.3d 420 (9th Cir. 1994) (answering no); United States v. Roque-Villanueva,

175 F.3d 345 (5th Cir. 1999) (same); United States v. Navarro-Diaz, 420 F.3d 581

(6th Cir. 2005) (same), and United States v. Bowley, 435 F.3d 426 (3d Cir. 2006)

(same), with United States v. Guevara-M artinez, 262 F.3d 751 (8th Cir. 2001)

(answering yes), and United States v. Garcia-Beltran, 389 F.3d 864 (9th Cir.

2004) (same); see also United States v. Cisneros-C ruz, 1999 W L 444926 (10th

Cir. 1999) (unpublished) (answering no); United States v. Alvarez-Becerra, 33

Fed. Appx. 403, 409 (10th Cir. 2002) (unpublished) (Briscoe, J., concurring)

(same). 1 Today, this Court prematurely and needlessly joins the debate by asking

1
In her concurring opinion in Alvarez-Becerra, Judge Briscoe soundly
refutes this Court’s interpretation of Lopez-M endoza’s language regarding the
identity of a defendant:

Although the Court’s statement was initially m ade in response to the
jurisdictional argument that respondent Lopez-M endoza should not be
subject to prosecution because his arrest w as illegal, the C ourt
reiterated the statement when addressing respondent Sandoval-Sanchez’
evidentiary argument and the relative value of the exclusionary rule in
(continued...)
a question it need never reach, i.e., “whether evidence of a defendant’s identity

(including statements, fingerprints, and an A-file) may ever be suppressed as the

‘fruit’ of an unlaw ful arrest.” Court’s O p. at 9. For reasons to become apparent,

the simple fact is Defendant’s arrest w as not unlaw ful.

In my view, the proper analysis of this case begins with the question of

whether Agent Armendariz’ immediate identification of Defendant as an illegal

immigrant constitutes evidence which the district court may suppress on the basis

of an illegal stop and detention. The answer to this question is critical because,

unlike the facts in any of the foregoing cases, Agent Armendariz’ prompt

recognition of Defendant as an illegal immigrant, prior to any questioning or

fingerprinting, provided the agent probable cause to arrest him and take him into

custody for processing. Probable cause arose from Agent Armendariz’ knowledge

of Defendant’s status and his observation of Defendant’s person. See United

States v. Soto, 375 F.3d 1219, 1222 (10th Cir. 2004) (probable cause demands

more than mere suspicion but does not require facts sufficient for a finding of

1
(...continued)
deportation proceedings. The clear import of the Court’s statement is
that the “identity” of a defendant is not itself suppressible; that is, the
mere fact that a defendant was illegally brought before the court or that
his or her identity was learned as a result of an illegal search or arrest
does not mean that the government will not be allowed to prove the
defendant’s identity.

33 Fed. Appx. at 409 (internal citation omitted) (citing Roque-Villanueva and
Guzman-Bruno with approval).

-2-
guilt). “Once the vehicles were bumper to bumper, Armendariz immediately

recognized the passenger of the pickup as Gustavo Olivares-Rangel . . . , an

immigrant he had arrested a month or two before for being in the United States

illegally.” Court’s O p. at 3 (emphasis added). In Agent Armendariz’ own words:

“The only one person, in my mind, that could not leave w as the [Defendant],

because I already knew he was here illegally.” G ovt’s A pp. at 31 (emphasis

added). If Agent Armendariz’ visual identification of Defendant as an illegal

immigrant cannot be suppressed, neither can discovery of his alien file. This is

because discovery of Defendant’s alien file resulted from a routine booking

procedure, i.e., fingerprinting, following his arrest based on probable cause.

By shirking the obvious, the Court makes this case unnecessarily difficult.

The Court reasons that because the G overnment has conceded D efendant’s arrest

was unlawful, it has no choice but to proceed accordingly. Court’s Op. at 6-7 &

nn. 2,3. Although the Government’s argument (both oral and written) in this case

is lacking, I can find nowhere in the record, briefs, or oral argument recording

where the Government concedes D efendant’s custody was unlaw ful once Agent

Armendariz recognized Defendant as an illegal immigrant. Rather, the

Government concedes only that Agent Armendariz lacked probable cause (or

more properly reasonable suspicion) to stop the vehicle and detain Defendant. 2

2
Of course, a vehicle stop constitutes a detention of both driver and
(continued...)

-3-
The clearest expression of the Government’s concession is contained in its reply

brief:

The government has not appealed the district court’s determination that
Border Patrol’s stop of Olivares-Rangel was unlawful. The government
concedes that point for purposes of this appeal. But even assuming that
Olivares-Rangel’s identity was discovered as a result of an illegal stop,
his identity and status as a deported alien cannot be suppressed.

Govt’s Reply Br. at 6. The Court fails to distinguish, as it did in its questioning

at oral argument, between Agent Armendariz’ lack of probable cause to stop the

vehicle and detain D efendant, and Agent Armendariz’ probable cause to arrest

Defendant once he recognized Defendant as an illegal immigrant.

The district court made the same mistake by conflating the stop and

detention with the arrest:

Agent Armendariz stopped the vehicle in which Olivares-Rangel was
riding without reasonable suspicion or probable cause. The stop and
arrest violated the Fourth Amendment. . . .

Agent Armendariz’s recognition of Olivares-Rangel cannot provide a
valid foundation for reasonable suspicion [or probable cause] because
it w as obtained by the exploitation of the illegality of the arrest. . . .

United States v. Olivares-Rangel, 324 F.Supp.2d 1218, 1222-1223 (D.N.M . 2004).

That the district court erroneously viewed the agent’s recognition of Defendant as

the “fruit” of an unlawful stop and detention (or an arrest as the district court and

2
(...continued)
passenger. See United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989)
(recognizing a passenger’s standing to challenge a vehicle stop as a form of
detention).

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Government sometimes inartfully refer to it), rather than as an independent basis

for probable cause to arrest Defendant, is painfully apparent. This Court’s failure

to recognize this critical distinction leads it to erroneously conclude the

Government has conceded Defendant’s arrest w as unlaw ful.

View ing the Government concession in the proper context, the faulty

premise underlying any conclusion that Defendant was entitled to suppression of

his fingerprints and alien file is simply this: Defendant’s arrest was unlawful

because the prior stop of the vehicle in which he was a passenger w as unlawful.

That premise, on which the district court based its decision, has certain appeal.

But for the illegal stop, Agent Armendariz might never have recognized

Defendant as an illegal immigrant whom he had arrested a few weeks prior. Yet

the Supreme Court has “never held that evidence is ‘fruit of the poisonous tree’

simply because it would not have come to light but for the illegal conduct of the

police.” Hudson v. M ichigan, 126 S.Ct. 2159, 2164 (2006) (internal quotations

omitted). 3

3
Although my dissent does not turn on the cost/benefit analysis underlying
the exclusionary rule’s application, I find interesting that the Court makes scant
mention of Lopez-M endoza’s lengthy discussion as to why suppression of an
illegal immigrant’s identity has little deterrent effect on illegal detentions. 468
U.S. at 1042-46. The Supreme Court observed that “only a very small percentage
of arrests of aliens are intended or expected to lead to criminal prosecutions.” Id.
at 1043. Rather, a border patrol agent’s primary objective is to obtain the
deportation of illegal immigrants. Indeed, Agent Armendariz testified that the
other three men in the vehicle with Defendant w ere simply returned to M exico.
(continued...)

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 Nor has the Supreme Court ever held a “[defendant’s] person should be

considered evidence, and therefore a possible ‘fruit’ of police misconduct.”

United States v. Crew s, 445 U.S. 463, 475 (1980) (plurality); see also New York

v. Harris, 495 U.S. 14, 18 (1990). And I would not so hold today. This is

because an individual has no reasonable expectation of privacy in his visual

appearance when exposed to the public eye. See United States v. Santana, 427

3
(...continued)
Govt’s App. at 47. Little deterrent value attaches to squelching illegal detentions
because the “person and identity” of an illegal immigrant are not suppressible in
civil deportation proceedings. 468 U.S. at 1043. M oreover, 97.5% of arrested
illegal immigrants agree to voluntary deportation:

Every [border patrol] agent knows, therefore, that it is highly
unlikely that any particular arrestee will end up challenging the
law fulness of his arrest . . . . W hen an occasional challenge is
brought, the consequences from the point of view of the officer’s
overall arrest and deportation record will be trivial. In this
circumstances, the arresting officer is most unlikely to shape his
conduct in anticipation of the exclusion of evidence . . . .

Id. at 1044. Finally, because a defendant may be reindicted for violating § 1326
notwithstanding an illegal detention, suppressing his identity would have little
practical deterrent effect on border patrol agents. See United States v. Ortiz-
Hernandez, 427 F.3d 567, 576-79 (9th Cir. 2005); Navarro-D iaz, 420 F.3d at 588.
The cost of suppression on the other hand is far from slight, see Court’s Op. at 26
n.9, because, among other reasons, the inquiry into an agent’s subjective
motivations places yet another burden on border courts already sw amped with
immigration cases. Accordingly, Lopez-M endoza may mandate that Defendant’s
motion to suppress his fingerprints and alien file be denied notwithstanding any
Fourth Amendment violation. See Hudson, 126 S.Ct. at 2163 (noting the
exclusionary rule is “applicable only where its remedial objectives are thought
most efficaciously served, that is, where its deterrence benefits outweigh its
substantial social costs”) (internal quotations and citations omitted).

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U.S. 38, 42 (1976). No one, Defendant nor anyone else, had any legitimate

expectation of privacy in his appearance when Agent Armendariz spotted him.

See United States v. Carter, 360 F.3d 1235, 1239-40 (10th Cir. 2004) (recognizing

that looking through a car’s window invades no legitimate expectation of

privacy). W hen Defendant stepped into the vehicle, he placed himself in a

position for all the world to see:

The general public could peer into the interior of . . . [the] automobile
from any number of angles; there is no reason . . . [Agent Armendariz]
should be precluded from observing as an officer what would be
entirely visible to him as a private citizen. There is no legitimate
expectation of privacy shielding that portion of the interior of an
automobile which may be viewed from outside the vehicle . . . .

Texas v. Brow n, 460 U.S. 730, 740 (1983) (plurality) (internal citations omitted).

The illegality of the initial stop and detention does not dictate this Court’s

analysis of the suppression issue because it revealed something which cannot be

suppressed, namely, Defendant’s appearance. The law did not require Agent

Armendariz to “hide his eyes and count to ten” before lawfully arresting

Defendant based on his unlawful presence in this country, an ongoing crime. See

United States v. Jimenez-Borja, 378 F.3d 853, 857 (9th Cir. 2004) (“The crime of

being ‘found in’ is a continuing offense.”). If Agent Armendariz had recognized

Defendant as a fugitive from justice convicted of murder, would D efendant’s

arrest have been unlaw ful? “The constable’s blunder may allow the criminal to

go free, but we have never suggested that it allows the criminal to continue in the

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comm ission of an ongoing crime.” Lopez-M endoza, 468 U.S. at 1047. Under

these circumstances, Agent Armendariz’ failure to arrest Defendant would have

“clearly frustrate[d] the express public policy against an alien’s unregistered

presence in this country. Even the objective of deterring Fourth Amendment

violations should not require such result.” Id. 4

Because, prior to any questioning or fingerprinting, Agent Armendariz

identified Defendant’s person as that of an illegal immigrant, this case is unlike

4
Any suggestion that an ultimate resolution in favor of Defendant in this
case will exempt him from criminal prosecution under § 1326 is mistaken. The
Government is now aware of Defendant’s identity and, after thirty months, that
knowledge is surely sufficiently attenuated from Agent Armendariz’ initial
encounter with Defendant on February 2, 2004. Because the violation of § 1326
is an ongoing crime, the Government may make use of its knowledge to recharge
Defendant with illegal entry and require him to submit to fingerprinting. See
Garcia-Beltran, 443 F.3d at 1127-35. Perhaps the Sixth Circuit said it best in
Navarro-Diaz, 420 F.3d at 587:

If [defendant’s] identity may be suppressed, the m oment the court
lets him go, he is immediately comm itting the continuing violation of
being present in the United States after having been deported. . . .

Directing the district court to grant [defendant’s] suppression motion,
therefore, would not affect the ultimate outcome of the charge
against him. If the government were forced to drop its prosecution
of [defendant], the police could simply approach him on his way out
of the courtroom door and demand that he identify himself.

(internal quotations omitted); see also Ortiz-Hernandez, 427 F.3d at 577 (“W hile
the original set of [defendant’s] fingerprints should be suppressed as w rongfully
obtained, the government is now aware of [defendant’s] identity; it may rely on
his identity, as well as his criminal and immigration record, in bringing § 1326
criminal charges against him.”).

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any case on which the Court relies to support its holding. Davis v. M ississippi,

394 U.S. 721 (1969) and Hayes v. Florida, 470 U.S. 811 (1985), two cases on

which the Court extensively relies, have no bearing upon our case. The issue in

those cases was whether the police, in the absence of probable cause, could

detain defendants for the sole purpose of taking their fingerprints as part of a

criminal investigation. The Court said absolutely not, and correctly so.

“Detentions for the sole purpose of obtaining fingerprints are . . . subject to the

constraints of the Fourth A mendment.” Davis, 394 U .S. at 727. In other words,

“in the absence of probable cause . . . investigative detentions at the police station

for fingerprinting purposes [can] not be squared with the Fourth Amendment.”

Hayes, 470 U.S. at 815. In stark contrast to Davis and Hayes, Agent Armendariz

did not take advantage of Defendant’s initially unlaw ful detention to obtain his

fingerprints. Rather, Agent Armendariz arrested and fingerprinted Defendant

because he had probable cause to do so based upon his visual identification of

Defendant’s person and prior knowledge of D efendant’s status. 5

Properly applying the law to the facts of this case, I cannot agree that

Defendant Olivares-Rangel’s fingerprinting may have been for investigative

5
Agent Armendariz’ identification of Defendant further distinguishes our
situation from Guevara-M artinez, 262 F.3d at 751, an Eighth Circuit case
extensively relied on by this Court. In that case, officers unlawfully detained
defendant while they investigated his immigration status. That investigation
included fingerprinting defendant to reveal his true identity as an illegal
immigrant.

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purposes rather than simply part of a routine booking procedure. No remand for

further fact-finding is necessary. Regardless of whether Defendant’s fingerprints

were taken in anticipation of civil deportation or criminal prosecution, Defendant

was lawfully in custody when taken to headquarters for fingerprinting because

Agent Armendariz had probable cause to arrest him apart from any statements

Defendant may have made. 6 The Government makes the very point – Agent

Armendariz did not take Olivares-R angel into custody to obtain his fingerprints in

the hope of connecting him to a crime: “In this case, the agent immediately

recognized Olivares-R angel as a person he had previously arrested for being in

the United States illegally, and his fingerprints were taken to process him as an

illegal alien[.]” G ovt’s B r. at 10-11. The discovery of Defendant’s A-file follow s

as a routine matter from Defendant’s fingerprinting pursuant to an arrest based on

probable cause. That should be the end of our analysis and the end of

Defendant’s motion to suppress his fingerprints and A-file. 7 I dissent.

6
Of course, I do not agree that Defendant’s subsequent statements may be
suppressed under the Fourth Amendment as the “fruit” of an unlawful arrest.
Those pre-M iranda statements, however, might be suppressed under the Fifth
Amendment’s proscription against self incrimination. See United States v. Parra,
2 F.3d 1058, 1067-68 (10th Cir. 1993).
7
In view of the foregoing analysis, I need not discuss w hether Defendant’s
A-file might be suppressed as the “fruit” of an unlawful arrest. See Guzman-
Bruno, 27 F.3d at 421-22 (W allace, J.) (“[T]here is no sanction to be applied
when an illegal arrest only leads to discovery of the man’s identity and that
merely leads to the official file or other independent evidence.”) (internal
quotations omitted).

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