Maria Yanez-Marquez v. Loretta Lynch , 789 F.3d 434 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1605
MARIA YANEZ-MARQUEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 17, 2014 Decided: June 16, 2015
Before KING and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by published opinion. Senior Judge Hamilton
wrote the opinion in which Judge King and Judge Floyd joined.
ARGUED: Amanda Hunnewell Frost, AMERICAN UNIVERSITY, Washington,
D.C., for Petitioner. Jonathan Aaron Robbins, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Margaret Hobbins, MAGGIO & KATTAR, Washington, D.C., for
Petitioner. Stuart F. Delery, Assistant Attorney General, Civil
Division, Daniel E. Goldman, Senior Litigation Counsel, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
HAMILTON, Senior Circuit Judge:
Maria Yanez-Marquez (Yanez), a native and citizen of El
Salvador, petitions for review of a Board of Immigration Appeals
(BIA) decision dismissing her appeal from the order of an
Immigration Judge (IJ) ordering her removal from the United
States to El Salvador. Prior to ordering Yanez’s removal, the
IJ denied her motion to suppress certain evidence and to
terminate the removal proceeding. At the center of Yanez’s
petition for review is her challenge to the denial of this
motion, which was premised on, inter alia, alleged egregious
violations of her Fourth Amendment rights. For the reasons
stated below, we deny the petition for review.
I
A
Because the IJ denied Yanez’s motion to suppress and to
terminate without an evidentiary hearing, we review the evidence
in the light most favorable to Yanez. Cotzojay v. Holder, 725
F.3d 172, 178 (2d Cir. 2013).
In June 2008, agents from the Immigration and Customs
Enforcement (ICE) were investigating Robert Bontempo, Jr. and
Rebecca Bontempo, the owners of Annapolis Painting Services
(APS). The agents suspected that the Bontempos employed and
harbored illegal aliens. The Bontempos owned a property, 402
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Harbor Drive, Annapolis, Maryland (the Premises), which ICE
surveillance revealed was occupied by Jose Umana Ruiz (Umana),
an illegal alien and El Salvadorian citizen. Unbeknownst to the
agents, Yanez, an illegal alien and Umana’s long-time partner,
also lived at the Premises. In June 2008, Yanez was five months
pregnant.
In an affidavit in support of a search warrant for the
Premises and numerous other houses owned by the Bontempos that
were tied to the housing of illegal aliens, ICE Special Agent
Francis Coker (Agent Coker) outlined the extensive background
evidence concerning how employers employ and house illegal
aliens, and the extensive evidence concerning how APS and the
Bontempos engaged in such practices. 1 The affidavit also
included a picture of the Premises and described it as a
“single-family home[,] a single story building with a shingled
roof.” (J.A. 524). 2 A mailbox, with the number “402,” is
1
The search warrant itself incorporated by reference Agent
Coker’s affidavit, thus avoiding any difficulty with the Supreme
Court’s decision in Groh v. Ramirez, 540 U.S. 551 (2004). See
United States v. Hurwitz, 459 F.3d 463, 470-71 (4th Cir. 2006)
(“As a general rule, a supporting affidavit or document may be
read together with (and considered part of) a warrant that
otherwise lacks sufficient particularity ‘if the warrant uses
appropriate words of incorporation, and if the supporting
document accompanies the warrant.’” (quoting Groh, 540 U.S. at
557-58)).
2
The picture of the Premises included in Agent Coker’s
affidavit shows a single story home with a gable roof. It shows
(Continued)
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located in front of the Premises. (J.A. 524). The affidavit
noted that Anne Arundel County land records reflected a sale of
the Premises from Jennifer Scott to the Bontempos in October
2000 for the sum of $156,000.00.
The search warrant that accompanied Agent Coker’s affidavit
had two boxes on its front side, where the issuing judge was
required to designate the time of day when the search was
authorized to occur. The “daytime” box read “in the daytime--
6:00 A.M. to 10:00 P.M.” (J.A. 455). Meanwhile, the
alternative “any time” box read “at any time in the day or night
as I find reasonable cause has been established.” (J.A. 455).
In issuing the warrant for the Premises, a United States
Magistrate Judge in the District of Maryland checked only the
daytime box and struck the language next to the any time box
that would have authorized a nighttime search as follows: “at
any time in the day or night as I find reasonable cause has been
established.” (J.A. 455) (strikeout in original). Thus, the
warrant for the Premises authorized a daytime search only, to be
conducted between 6:00 a.m. and 10:00 p.m. The warrant also
specified that the search was to be completed on or before July
4, 2008. The scope of the items to be seized under the warrant
two windows in the roof facing the street and one window on the
right gable end.
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was broad and included illegal aliens, travel documents,
financial records, and photographs of harbored aliens.
The magistrate judge issued the search warrant on June 24,
2008. The search of the Premises took place six days later, on
the morning of Monday, June 30, 2008. Prior to the search,
several ICE agents, along with officers of the Anne Arundel
County Police Department, assembled in an Annapolis parking lot
for a briefing. ICE Agent Sean Currie (Agent Currie), the ICE
search team leader, assigned responsibilities for the search.
After the briefing, the search team proceeded to the Premises,
which was ten to fifteen minutes away by car, to execute the
warrant.
According to Yanez, the search warrant was executed at the
Premises at 5:00 a.m. 3 Agent Currie knocked on the front door
which was answered by another occupant of the Premises, Jose
Mendoza-Gomez (Mendoza), who immediately was handcuffed and
seated on the couch in the living room for officer safety.
After detaining Mendoza, two agents proceeded upstairs. Umana
and Yanez were awakened by the yelling of “police” and a loud
banging on their bedroom door. (J.A. 141). Umana and Yanez had
3
Agent Currie and ICE agent Richard Federico, Sr. (Agent
Federico) executed declarations that were presented to the IJ.
In their respective declarations, they assert that the search
began at 6:02 a.m. The return on the search warrant states that
the search was completed at 8:56 a.m., but it fails to indicate
when the search began.
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been planning to sleep later than normal that morning because
Yanez had the day off from work. She felt groggy and confused
because “it seemed like it was the middle of the night.” (J.A.
141). She had no idea what was going on. Umana clothed
himself, but before he could reach the locked door, the ICE
agents broke it down, causing the door to hit Umana’s hand. Two
agents “burst” into the room and screamed “police.” (J.A. 142).
One agent grabbed Umana’s neck and threw him to the ground. The
other held a gun to Umana’s head while pinning his body and face
to the floor. The agents screamed “don’t move.” (J.A. 142).
Once Umana was held down, an agent pointed a gun at Yanez’s head
and yelled “don’t move.” (J.A. 142). Yanez, who was wearing a
“nightshirt,” cried and pleaded for permission to cover herself
“with more clothes.” (J.A. 142). The agent again screamed
“don’t move” and pointed his gun at her head. (J.A. 142).
Umana told the agents that Yanez was pregnant and begged them to
allow her to get dressed. A female agent was called for
assistance and came to Yanez, telling her that “it will be
okay.” (J.A. 142). Yanez was scared that she or Umana would be
harmed, and she was not allowed to use the restroom. Although
an agent was speaking in Spanish, loud noise obstructed Yanez
from hearing. The agents handcuffed Umana and escorted him
downstairs. Yanez grabbed a “T-shirt to put over [her]
nightshirt” as she was led downstairs at gunpoint. (J.A. 143).
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Downstairs, Yanez saw four ICE agents in the living room.
She was told to join Umana on the couch. Although the occupants
denied that anyone else was in the house, the agents knocked
down doors and found no one. For five to ten minutes, the
agents questioned the occupants about their identities, asking
repeatedly about Annapolis Painting Services. The occupants
denied knowing anything about the company. The agents were
“extremely hostile,” and Yanez thought that someone would be
harmed if they did not answer the questions. (J.A. 143). The
agents then took the occupants’ fingerprints and escorted Umana
and Mendoza away. Yanez was “never shown a warrant, [never]
told that [she] had a right to an attorney, [and never told]
that [she] could refuse to answer any questions.” (J.A. 143).
The ICE agents searched the entire house, “ripp[ing] apart
each room that they went through,” kicking down doors,
scattering documents, and turning over furniture. (J.A. 144).
During the search, Yanez again was questioned. The agents asked
her if she had a car and keys for it, which Yanez conceded.
Yanez felt she had no choice but to surrender the keys. Her car
was searched. The agents told Yanez that she “had” to sign
“several pieces of paper,” although she did not want to sign
them, asked why she had to sign, and did not understand what
they said. (J.A. 144). Despite no one reading or explaining
the documents to her, she signed them.
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Before leaving, an ICE agent told Yanez that she would get
a letter from “the Immigration Court” and warned her not to move
to a different location. (J.A. 145). When the agents left at
9:15 a.m., they took many of Yanez’s belongings, including her
pay stubs, tax returns, and photo albums. These items were
never returned.
After the search, Yanez left the Premises and spent the
night at her sister-in-law’s house. She returned to the
Premises the following day to find the landlord’s employees
“hauling” off her and Umana’s “belongings . . . to the trash
dump.” (J.A. 145). Later that day, Yanez experienced stress
and severe abdominal pain that she believes were caused by the
search, seizure, and questioning. At 5:30 p.m., she was taken
to the hospital where she was treated and released after a few
hours. Upon her release from the hospital, Yanez was told her
unborn child would be “alright.” (J.A. 145).
Yanez’s statements to the ICE agents were memorialized on
two “Form I–213s” (Record of Deportable/Inadmissible Alien). 4
4
“A Form I–213 is an official record routinely prepared by
an [immigration officer] as a summary of information obtained at
the time of the initial processing of an individual suspected of
being an alien unlawfully present in the United States.” Bauge
v. INS, 7 F.3d 1540, 1543 n.2 (10th Cir. 1993). “Form I–213[s]
. . . are records made by public officials in the ordinary
course of their duties, and accordingly evidence strong indicia
of reliability.” Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir.
1996).
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The forms state that Yanez is a native and citizen of El
Salvador and that she “last entered the United States on or
about April 2007 without inspection.” (J.A. 453). The forms
further reveal that Yanez has been illegally present in the
United States since her April 2007 entry.
B
On July 10, 2008, the Department of Homeland Security (DHS)
issued a notice to appear to Yanez. The notice alleged that
Yanez was “an alien present in the United States who had not
been admitted or paroled.” (J.A. 547); see also 8 U.S.C.
§ 1182(a)(6)(A)(i) (rendering inadmissible an alien who has not
been properly admitted or paroled). In support of this
allegation, the notice alleged that Yanez: (1) was not a United
States citizen; (2) was a native and citizen of El Salvador; (3)
entered the United States at an unknown location on an unknown
date; and (4) was not “admitted or paroled after inspection by
an Immigration Officer.” (J.A. 547).
On February 10, 2010, the DHS filed its “Submission of
Intended Evidence,” which designated the evidence the DHS
intended to introduce in the removal proceeding as follows: (1)
the two Form I–213s; (2) the search warrant executed for the
Premises; and (3) the affidavit in support of the warrant. In
response, on April 21, 2010, Yanez filed a “motion to suppress
and to terminate removal proceedings.” (J.A. 106). Yanez
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claimed that, during the June 30, 2008 search, seizure, and
questioning, the ICE agents egregiously violated her Fourth
Amendment rights, violated her Fifth Amendment due process
rights, and failed to follow five applicable federal
regulations. In her motion, Yanez stressed that the Supreme
Court’s decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984),
permitted the application of the exclusionary rule in a civil
removal proceeding where the Fourth Amendment violations were
either widespread or egregious.
More specifically, Yanez first claimed that the ICE agents
egregiously violated her Fourth Amendment rights when they
executed the search warrant at 5:00 a.m. instead of between 6:00
a.m. and 10:00 p.m. Second, Yanez claimed that the warrant’s
lack of particularity egregiously violated her Fourth Amendment
rights in that (1) she was not specified as an “item” to be
seized in the warrant and (2) the agents should have known the
Premises was a “two-floor, multi-family dwelling.” (J.A. 118).
Third, Yanez claimed that her Fourth Amendment rights were
egregiously violated when the agents used excessive force during
the search and seizure. Fourth, she claimed that the Fourth
Amendment violations committed by the agents were part of a
widespread pattern of ICE misconduct. Fifth, Yanez claimed that
the agents violated her Fifth Amendment Due Process Clause
rights when they coerced her into making incriminating
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statements. Finally, she claimed that the agents violated five
different federal regulations, in particular, 8 C.F.R.
§ 287.8(b)(2) (permitting an immigration officer to detain a
person for questioning if he has reasonable suspicion “that the
person being questioned is, or is attempting to be, engaged in
an offense against the United States or is an alien illegally in
the United States”), 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall
be made only when the designated immigration officer has reason
to believe that the person to be arrested has committed an
offense against the United States or is an alien illegally in
the United States.”), 8 C.F.R. § 287.8(c)(2)(ii) (“A warrant of
arrest shall be obtained except when the designated immigration
officer has reason to believe that the person is likely to
escape before a warrant can be obtained.”), 8 C.F.R.
§ 287.8(a)(1)(iii) (“A designated immigration officer shall
always use the minimum non-deadly force necessary to accomplish
the officer’s mission and shall escalate to a higher level of
non-deadly force only when such higher level of force is
warranted by the actions, apparent intentions, and apparent
capabilities of the suspect, prisoner or assailant.”), and 8
C.F.R. § 287.3(c) (which requires that an alien who is arrested
without a warrant and placed in formal removal proceedings be
informed that she has a right to an attorney and provided with a
list of attorneys that provide free legal services).
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In its response, the DHS first argued that the exclusionary
rule does not apply to civil removal proceedings, also relying
on the Supreme Court’s decision in Lopez-Mendoza. The DHS
stressed that the Court in Lopez-Mendoza “did not affirmatively
state that egregious Fourth Amendment violations are an
exception to the Court’s holding that the Fourth Amendment’s
exclusionary rule is inapplicable in civil deportation
proceedings.” (J.A. 47). Alternatively, the DHS argued that,
even if the exclusionary rule applied, Yanez failed to set forth
facts establishing a prima facie case of an egregious violation
of her Fourth Amendment rights or a violation of her Fifth
Amendment Due Process Clause rights. See Matter of Barcenas, 19
I. & N. Dec. 609, 611 (BIA 1988) (noting that petitioner
challenging the admissibility of evidence in removal proceeding
is required to establish a prima facie case for exclusion).
Finally, the DHS argued that the ICE agents did not violate any
applicable regulations, and, even if they did, it did not
justify suppressing the challenged evidence. Along with its
motion, the DHS submitted the declarations of Agent Currie and
Agent Federico. These declarations take issue with not only
Yanez’s timing assertions, but also her assertions concerning
the manner in which the search, seizure, and questioning were
carried out.
In her decision denying the motion to suppress and to
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terminate, the IJ first rejected the DHS’s contention that the
exclusionary rule did not apply in civil removal proceedings,
relying on Lopez-Mendoza and BIA precedent. The IJ then set
forth the prima facie case framework, noting that Yanez bore the
initial burden of alleging facts constituting an egregious
Fourth Amendment violation. The IJ then turned to Yanez’s
substantive claims and rejected each one of them.
In rejecting Yanez’s claim that the ICE agents committed
egregious Fourth Amendment violations, the IJ stated:
With respect to the timing of entry, even if ICE
agents entered “at 5 a.m.” as the Respondent asserts,
the Court cannot find that such a violation of the
terms of the warrant — by a single hour — would be
egregious. That simply does not amount to conduct
that “shocks the conscience.” With respect to the
entry into the bedroom, even if an officer . . . had
simply come upon the locked door, banged on it,
announced his presence, and forced it open with
another officer, the Court cannot conclude that such
action would be egregious. The agents were executing
a search warrant. . . . The alleged timing of entry
into the residence and method of entry into the
bedroom were not egregious violations.
(J.A. 543). Turning next to Yanez’s challenge to the amount of
force used by the agents, the IJ rejected this challenge,
noting:
With respect to the force used by the officers in the
home, the Court cannot conclude that excessive force
was used, even considering solely the Respondent’s
account. The Respondent’s affidavit claims that an
officer held a gun to her head. The Respondent
acknowledges that both officers were screaming, “don’t
move!” in English and Spanish. . . . The Respondent
indicates that her partner told the officers that the
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Respondent was pregnant and asked that she be allowed
to put on more clothes. She also indicates that when
the officers heard this, they asked for a female
officer to come up to the bedroom. These actions,
while no doubt extremely frightening for the
Respondent, are consistent with ensuring officer
safety and enabling the officers to control a
potentially dangerous situation. There is no showing
that greater than necessary force was used or that
weapons were drawn any longer than necessary. The
Respondent acknowledges that the officers identified
themselves as police and repeatedly shouted at them
not to move. She acknowledges that a female officer
was called as soon as her partner told them that she
was pregnant. She also acknowledges that she was not
put in handcuffs, that she was not taken out of the
house for further processing, and that she was not
placed in immigration detention. The actions of the
agents and the other officers were reasonable under
the circumstances and reflect that ICE officials took
appropriate account of the Respondent’s pregnancy
throughout the operation. As such, those actions
cannot be found to be egregious.
(J.A. 544).
With regard to Yanez’s claim that the ICE agents violated
her Fifth Amendment Due Process Clause rights, the IJ rejected
this claim, concluding that the circumstances as a whole did not
“reflect an atmosphere of coercion and intimidation that would
render [Yanez’s] statements involuntary.” (J.A. 544).
Next, the IJ rejected two of the five regulatory claims
pressed by Yanez. First, the IJ rejected Yanez’s
§ 287.8(a)(1)(iii) claim on the basis that she had “not made a
sufficient showing that excessive force was used.” (J.A. 545).
Second, the IJ rejected the § 287.3(c) claim because the DHS’s
notice to appear had sufficiently advised Yanez of her right to
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counsel. As for the three remaining regulatory claims, for some
inexplicable reason, the IJ quoted the regulations
(§ 287.8(b)(2), § 287.8(c)(2)(i), § 287.8(c)(2)(ii)), but did
not explain her reasoning for rejecting the claims.
The IJ then addressed Yanez’s widespread ICE misconduct
argument. The IJ rejected this argument, finding “no basis to
suppress evidence in this case on the basis of what may or may
not have occurred in other cases or during other enforcement
operations.” (J.A. 546).
The IJ concluded her opinion by noting that Yanez had “not
met her burden of establishing a prima facie case for
suppression of evidence obtained in violation of the Fourth
Amendment, the Fifth Amendment, ICE regulations, or on any other
theory.” (J.A. 546). Accordingly, the IJ denied the motion to
suppress and to terminate.
On December 13, 2010, the IJ found that the DHS had
satisfied its burden of proving removability by clear and
convincing evidence. See Karimi v. Holder, 715 F.3d 561, 566
(4th Cir. 2013) (“In removal proceedings, the government bears
the burden of proving removability . . . by clear and convincing
evidence.”). Because Yanez had not sought relief from removal,
the IJ ordered that Yanez be removed from the United States to
El Salvador.
On January 11, 2011, Yanez filed a notice of appeal with
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the BIA. In her brief filed with the BIA on April 1, 2011,
Yanez reiterated all of the arguments that she raised before the
IJ, save one. She did not claim, as she did before the IJ, that
the Fourth Amendment violations committed by the ICE agents were
part of a larger, widespread pattern of misconduct by ICE
officials. To be sure, Part III D of Yanez’s motion to suppress
and to terminate filed with the IJ raises the widespread pattern
claim in a section following Part III C iv of the motion, which
raised the § 287.3 claim. In her brief filed with the BIA, the
conclusion section of the brief follows the § 287.3 claim, and
the brief contains no argument concerning widespread
constitutional violations committed by ICE officials.
On April 7, 2011, the DHS filed its brief with the BIA. In
urging the BIA to affirm the IJ’s decision, the DHS
“incorporate[d] by reference the entirety” of the brief it filed
with the IJ. (J.A. 8).
On April 15, 2013, the BIA dismissed Yanez’s appeal. In
its decision, the BIA first noted that the exclusionary rule
does not apply in civil removal proceedings unless the alleged
Fourth Amendment violation is egregious. Next, the BIA rejected
Yanez’s claim that the ICE agents egregiously violated her
Fourth Amendment rights, relying on the reasoning of the IJ.
The BIA also adopted the reasoning of the IJ in rejecting
Yanez’s Fifth Amendment Due Process Clause claim and her
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regulatory claims under § 287.8(a)(1)(iii) and § 287.3(c). With
regard to the three regulations the IJ quoted but did not
address, § 287.8(b)(2), § 287.8(c)(2)(i), and § 287.8(c)(2)(ii),
the BIA determined that no remand was necessary because the IJ
adequately addressed the nature of Yanez’s “detention and
interrogation, as well as the warrant used by the ICE officers.”
(J.A. 5). As a result, the BIA affirmed the IJ’s decision and
dismissed Yanez’s appeal.
Yanez filed a timely petition for review under 8 U.S.C.
§ 1252.
II
A
When the BIA affirms and adopts an IJ’s decision and
includes its own reasons for affirming, we review both decisions
as the final agency action. Ai Hua Chen v. Holder, 742 F.3d
171, 177 (4th Cir. 2014). Legal conclusions made by the IJ and
the BIA are reviewed de novo. Crespin–Valladares v. Holder, 632
F.3d 117, 124 (4th Cir. 2011). We must uphold the BIA’s
decision unless it is “manifestly contrary to the law and an
abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 719 (4th
Cir. 2011). The BIA abuses its discretion if it fails “to offer
a reasoned explanation for its decision, or if it distort[s] or
disregard[s] important aspects of the applicant’s claim.” Id.- 17 -
A petitioner challenging the admissibility of evidence in a
civil removal proceeding “must come forward with proof
establishing a prima facie case before the [government] will be
called on to assume the burden of justifying the manner in which
it obtained the evidence.” Matter of Barcenas, 19 I. & N. Dec.
at 611 (citation and internal quotation marks omitted). Under
this burden-shifting framework, “if the petitioner offers an
affidavit that could support a basis for excluding the evidence
. . . , it must then be supported by testimony.” Maldonado v.
Holder, 763 F.3d 155, 160 (2d Cir. 2014) (citation and internal
quotation marks omitted). Upon the establishment of a prima
facie case by the petitioner, the burden of proof shifts to the
government to demonstrate why the IJ should admit the challenged
evidence. Id.In the case before us, both the IJ and the BIA applied this
framework and concluded that Yanez did not establish a prima
facie case on any of her claims to warrant a suppression
hearing. It is this conclusion that Yanez principally
challenges in this court.
B
In her petition for review, Yanez presses claims under the
Fourth and Fifth Amendments, as well as certain regulatory
claims. The heart of her case is that the Fourth Amendment’s
exclusionary rule requires the suppression of all statements and
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documentation regarding her national origin and citizenship
obtained by the ICE agents, including the two Form I–213s.
Yanez contends that, without the two Form I–213s and her
statements, the government cannot meet its burden of proving her
alienage and removability, and, therefore, her removal
proceeding should be terminated. At a minimum, Yanez claims
that her affidavit and other record evidence provide a basis in
which to exclude the challenged evidence, such that an
evidentiary hearing is required. To resolve Yanez’s
contentions, we must first decide whether the Fourth Amendment’s
exclusionary rule applies in the civil removal proceeding before
us.
C
The Fourth Amendment protects the “right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV.
Although the Fourth Amendment “contains no provision expressly
precluding the use of evidence obtained in violation of its
commands,” Arizona v. Evans, 514 U.S. 1, 10 (1995), to deter
violations of the Fourth Amendment, the Supreme Court
established the exclusionary rule, Weeks v. United States, 232
U.S. 383, 398 (1914), which, “when applicable, forbids the use
of improperly obtained evidence at [a criminal] trial.” Herring
v. United States, 555 U.S. 135, 139 (2009); see also Lopez–
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Mendoza, 468 U.S. at 1040–41 (“The general rule in a criminal
proceeding is 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 conduct is not
too attenuated.”). “[T]he exclusionary sanction applies to any
‘fruits’ of a constitutional violation--whether such evidence be
tangible, physical material actually seized in an illegal
search, items observed or words overheard in the course of the
unlawful activity, or confessions or statements of the accused
obtained during an illegal arrest and detention.” United States
v. Crews, 445 U.S. 463, 470 (1980) (footnotes omitted).
Given the “substantial social costs” of the application of
the exclusionary rule, United States v. Leon, 468 U.S. 897, 907
(1984), namely, “the loss of often probative evidence and all of
the secondary costs that flow from the less accurate or more
cumbersome adjudication that therefore occurs,” Lopez–Mendoza,
468 U.S. at 1041, “the exclusionary rule is not a remedy we
apply lightly,” Sanchez-Llamas v. Oregon, 548 U.S. 331, 347
(2006). Indeed, the Supreme Court has cautioned that the
exclusionary rule’s “massive remedy,” Hudson v. Michigan, 547
U.S. 586, 595 (2006)--the suppression of evidence--is “our last
resort, not our first impulse,” id. at 591.
While the applicability of the exclusionary rule in a
criminal proceeding is settled, the applicability of the rule in
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a civil removal proceeding is not. The Supreme Court has never
applied the rule in a removal proceeding. In fact, in Lopez–
Mendoza, the Supreme Court held that the exclusionary rule
generally does not apply in removal proceedings. 468 U.S. at
1034; see also United States v. Oscar-Torres, 507 F.3d 224, 230
(4th Cir. 2007) (“Lopez-Mendoza establishes that the
exclusionary rule does not apply in civil deportation
proceedings.”).
In Lopez–Mendoza, Adan Lopez-Mendoza (Lopez) and Elias
Sandoval-Sanchez (Sandoval), two citizens of Mexico, were
summoned to separate removal proceedings, and both were ordered
deported after such proceedings. 468 U.S. at 1034. Immigration
and Naturalization Service (INS) agents arrested Lopez at his
place of employment, a transmission repair shop, without a
warrant to search the repair shop or a warrant to arrest anyone
there. Id. at 1035. The repair shop owner refused to permit
the agents to speak with his employees during work hours. Id.
However, while one agent engaged the repair shop owner in
conversation, another agent entered the repair shop and spoke
with Lopez. Id. While he was being questioned, Lopez told the
agent his name and that he was from Mexico with no close family
ties in the United States. Id. After the agent placed Lopez
under arrest, he was transported to an INS office where he
admitted that he was born in Mexico, was still a citizen of
- 21 -
Mexico, and had entered the United States without inspection by
immigration officials. Id.
At his removal hearing, Lopez moved to terminate the
removal proceeding on the basis that he was arrested
illegally. Id. The IJ held that the legality of Lopez’s arrest
was not germane to the removal proceeding, and, therefore,
declined to rule on the legality of the arrest. Id. On the
basis of the Form I-213 and an affidavit executed by Lopez, the
IJ ordered that Lopez be removed from the United States to
Mexico. Id. at 1035-36.
On appeal to the BIA, the BIA dismissed Lopez’s
appeal. Id. at 1036. The BIA noted that the “mere fact of an
illegal arrest has no bearing on a subsequent deportation
proceeding.” Id. (citation and internal quotation marks
omitted). On Lopez’s petition for review, the Ninth Circuit
vacated Lopez’s removal order and remanded the case to the BIA
for a determination of whether Lopez’s Fourth Amendment rights
were violated when he was arrested. Id.
The second petitioner in Lopez-Mendoza, Sandoval, was
arrested at his place of employment, a potato processing plant
in Pasco, Washington. Id. INS agents went to the plant, with
the permission of its personnel manager, to check for illegal
aliens. Id. During a shift change, plant workers were asked
innocuous questions in English by INS agents as they entered the
- 22 -
plant to work. Id. at 1037. Upon seeing the INS agents as he
approached the entrance to the plant, Sandoval “averted his
head, turned around, and walked away.” Id. Sandoval was among
the thirty-seven people detained and transported to a county
jail. Id. At the jail, Sandoval was questioned by an INS agent
and admitted, in a written statement, that he unlawfully entered
into the United States. Id.
At his removal hearing, Sandoval contended that the
evidence offered by the INS should be suppressed as the fruit of
an unlawful arrest. Id. The IJ considered and rejected
Sandoval’s claim that he had been illegally arrested, but ruled
in the alternative that the legality of the arrest was not
relevant to the removal hearing. Id. Based on the written
record of Sandoval’s admissions, the IJ found him
removable. Id. at 1038.
On appeal to the BIA, the BIA dismissed Sandoval’s
appeal. Id. The BIA declined to invoke the exclusionary rule,
concluding that the circumstances of the arrest had not affected
the voluntariness of Sandoval’s written statement. Id. On
Sandoval’s petition for review, the Ninth Circuit reversed the
removal order. Id. The Ninth Circuit opined that Sandoval’s
detention by the INS agents violated the Fourth Amendment, that
the statements he made were a product of that detention, and
that the exclusionary rule barred their use in a removal
- 23 -
hearing. Id.
In resolving the cases before it, the Supreme Court quickly
disposed of Lopez’s challenge to his removal order because the
“mere fact of an illegal arrest has no bearing on a subsequent
deportation proceeding.” Id. at 1040 (citation and internal
quotation marks omitted). According to the Court, “[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, even if it is conceded that an unlawful arrest,
search, or interrogation occurred.” Id. at 1039.
Sandoval’s case meaningfully differed from that of Lopez’s
case in that Sandoval challenged the admissibility of evidence
at his removal hearing, while Lopez only raised a personal
jurisdiction challenge. Cf. Oscar-Torres, 507 F.3d at 229(noting that, in Lopez-Mendoza, Lopez’s case only raised a
personal jurisdictional challenge, that is, Lopez sought
“suppression of [his] body,” while Sandoval conceded personal
jurisdiction, but sought to suppress the evidence in his removal
proceeding). Indeed, the Court in Lopez-Mendoza observed that
Sandoval had “a more substantial claim” because “[h]e objected
not to his compelled presence at a deportation proceeding, but
to evidence offered at that proceeding.” 468 U.S. at 1040. As
a result, the Court considered whether the exclusionary rule
should apply to prohibit the government from using illegally
- 24 -
obtained evidence of Sandoval’s alienage against him in his
removal proceeding. Id. at 1040–41.
In determining whether to apply the exclusionary rule in a
removal proceeding, the Supreme Court in Lopez-Mendoza noted
that removal proceedings are “purely civil,” id. at 1038, the
purpose of which is “not to punish past transgressions but
rather to put an end to a continuing violation of the
immigration laws.” Id. at 1039. The Court emphasized that the
evidentiary protections that apply in criminal proceedings do
not apply in removal proceedings because: (1) criminal trials
adjudicate the defendant’s guilt, whereas removal proceedings
determine the alien’s “eligibility to remain in this country”;
and (2) unlike criminal trials, removal hearings do not impose
punishment on the alien. Id. at 1038. Given this, the Court
characterized the intent of a removal hearing as a “streamlined
determination of eligibility to remain in this country, nothing
more.” Id. at 1039.
Viewing a removal proceeding through the proper lens, the
Court employed a cost-benefit analysis to determine whether to
apply the exclusionary rule to removal proceedings, id. at 1041-
50, weighing the “social benefits of excluding unlawfully seized
evidence against the likely costs.” Id. at 1041; cf. Leon, 468
U.S. at 906-08 (concluding that evidence obtained pursuant to
the good faith reliance on a defective warrant should not be
- 25 -
excluded because the cost of exclusion outweighed the benefit of
deterrence); United States v. Janis, 428 U.S. 433, 454 (1976)
(declining to apply the exclusionary rule to a civil tax
proceeding because the cost of exclusion outweighed the benefit
of deterrence). On the benefit side of the ledger, the Court
proffered four reasons why, in the context of removal
proceedings, the deterrent value of the exclusionary rule was
significantly reduced. 468 U.S. at 1043-46. First, the Court
opined that, because deportability can be proven by evidence
independent of the arrest, the legality of the arrest was
irrelevant. Id. at 1043-44. Second, the Court noted that very
few undocumented aliens actually challenge removal orders based
on Fourth Amendment grounds, making it “unlikely” that an
immigration agent would “shape his conduct in anticipation of
the exclusion of evidence” at a removal hearing. Id. at 1044.
Third, because the INS already had its own comprehensive scheme
for deterring Fourth Amendment violations, application of the
exclusionary rule was unnecessary. Id. at 1044-45. Finally,
the Court reasoned that the availability of alternative
remedies, such as civil or criminal sanctions against the
immigration official, further undermined the deterrent value of
the exclusionary rule. Id. at 1045.
The Lopez-Mendoza Court then turned to the cost of
exclusion. First, the Court observed that the effect of
- 26 -
applying the exclusionary rule required courts “to close their
eyes to ongoing violations of the law.” Id. at 1046. Second,
applying the exclusionary rule would significantly complicate
the “simple” and “streamlined” deportation system. Id. at 1048.
Finally, the Court opined that, with respect to the apprehension
of over one million undocumented aliens each year, expecting
immigration agents to provide written details of each arrest and
to attend suppression hearings would severely burden the
administration of immigration laws. Id. at 1048-49.
Weighing the benefits of exclusion against the likely
costs, the Court in Lopez-Mendoza was persuaded that the scales
tipped against applying the exclusionary rule in removal
proceedings. Id. at 1050. In particular, the Court emphasized
that the “costs” of applying the exclusionary rule in removal
proceedings are “high,” noting that such application “would
compel the courts to release from custody persons who would then
immediately resume their commission of a crime through their
continuing, unlawful presence in this country.” Id.
After concluding that the exclusionary rule was
inapplicable to removal proceedings because the costs outweighed
the benefits, a plurality of the Court in Lopez-Mendoza appeared
to limit the scope of its holding by apparently reserving
judgment for cases that presented a “good reason to believe that
Fourth Amendment violations by INS officers were
- 27 -
widespread.” Id. at 1050. 5 In carving out this apparent
limitation, the plurality emphasized that its holding “[did] not
deal . . . with 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 1050-51 (footnote omitted).
Four Justices dissented in Lopez-Mendoza. Each of these
four Justices opined that the exclusionary rule should apply in
removal proceedings. See id. at 1052 (White, J., dissenting)
(“I believe that the conclusion of the majority is based upon an
incorrect assessment of the costs and benefits of applying the
rule in [removal proceedings].”); id. at 1051 (Brennan, J.,
dissenting) (“I fully agree with Justice White that . . . the
exclusionary rule must apply in civil deportation proceedings”
not because it is a deterrent but because “of the Fourth
Amendment itself.”); id. at 1060 (Marshall, J., dissenting) (“I
agree with Justice White that . . . [Supreme Court precedent]
compels the conclusion that the exclusionary rule should apply
in civil deportation proceedings.”); id. at 1061 (Stevens, J.,
dissenting) (“Because the Court has not yet held that the rule
5
While Chief Justice Burger joined the parts of the opinion
(Parts I to IV) holding that the exclusionary rule did not apply
in removal proceedings, he did not join in the part of the
opinion (Part V) recognizing that egregious or widespread Fourth
Amendment violations might warrant application of the
exclusionary rule.
- 28 -
of . . . [Leon] . . . has any application to warrantless
searches, I do not join the portion of Justice WHITE’s opinion
that relies on that case. I do, however, agree with the
remainder of his dissenting opinion.”). Considering the
position of the four dissenting justices, a total of eight
justices in Lopez-Mendoza seem to have agreed that the
exclusionary rule should apply in removal proceedings in some
form.
Since Lopez-Mendoza was decided, circuit courts have
applied the exclusionary rule in removal proceedings in a
variety of circumstances. See, e.g., Cotzojay, 725 F.3d at 179-
83 (addressing whether warrantless entry into alien’s home was
egregious Fourth Amendment violation); Oliva-Ramos v. Att’y
Gen., 694 F.3d 259, 278-79 (3d Cir. 2012) (addressing whether
ICE agents’ entry into apartment and seizure of the alien
egregiously violated the Fourth Amendment, and whether the ICE
agents’ conduct was part of a widespread pattern of Fourth
Amendment misconduct); Puc-Ruiz v. Holder, 629 F.3d 771, 779
(8th Cir. 2010) (addressing whether the arrest of the alien
egregiously violated the Fourth Amendment); Kandamar v.
Gonzales, 464 F.3d 65, 71 (1st Cir. 2006) (addressing whether
alien’s statements were obtained in egregious violation of the
Fourth Amendment and the Due Process Clause of the Fifth
Amendment); Almeida-Amaral v. Gonzales, 461 F.3d 231, 233-37 (2d
- 29 -
Cir. 2006) (addressing whether the alien’s seizure was an
egregious Fourth Amendment violation); Gonzalez-Rivera v. INS,
22 F.3d 1441, 1449 (9th Cir. 1994) (addressing whether stop of
alien egregiously violated the Fourth Amendment). Such courts
have applied the rule even though the Court’s limiting language
in Lopez-Mendoza could be labeled as “dicta” in that the Court
arguably reserved judgment on whether the exclusionary rule
applies in the event of an egregious Fourth Amendment. See,
e.g., Oliva-Ramos, 694 F.3d at 275 (noting that the apparent
limitation in Lopez-Mendoza could be characterized as dicta).
In our case, the IJ, the BIA, and the Attorney General all
agree that the exclusionary rule applies in removal proceedings
to egregious violations of the Fourth Amendment. 6 Although we
have not had occasion to consider the application of the
exclusionary rule in removal proceedings in a published opinion, 7
6
Before the IJ and the BIA in this case, the DHS took the
position that the exclusionary rule does not apply in removal
proceedings under any circumstances. However, the Attorney
General, who represents the government in this court, takes a
position contrary to that of the DHS, and his position
concerning the exclusionary rule is binding on the DHS. See 8
U.S.C. § 1103(a)(1) (providing that the Secretary of Homeland
Security “shall be charged with the administration and
enforcement of . . . all . . . laws relating to the immigration
and naturalization of aliens . . . [p]rovided, however, [t]hat
determination and ruling by the Attorney General with respect to
all questions of law shall be controlling”).
7
In unpublished decisions, we have recognized the
application of the exclusionary rule in removal proceedings.
(Continued)
- 30 -
we are in agreement with those courts that have concluded that
the rule applies to egregious violations of the Fourth
Amendment. 8 To hold otherwise would give no effect to the
language used by the Supreme Court in Lopez-Mendoza expressing
concern over fundamentally unfair methods of obtaining evidence
and would ignore the fact that eight justices in Lopez-Mendoza
seem to have agreed that the exclusionary rule applies in
removal proceedings in some form. Moreover, even assuming the
Court’s limitation in Lopez-Mendoza could be construed as dicta,
we simply cannot ignore the import of the language used by the
Supreme Court in that case. See United States v. Fareed, 296
F.3d 243, 247 (4th Cir. 2002) (following “dictum endorsed by six
justices” of the Supreme Court and citing Gaylor v. United
States, 74 F.3d 214, 217 (10th Cir. 1996) (stating that federal
appellate court is “‘bound by Supreme Court dicta almost as
firmly as by the Court’s outright holdings’”)). Accordingly, we
See, e.g., Samuels v. INS, 993 F.2d 1539, at *1 (4th Cir. 1993)
(unpublished) (“We reject Samuels’ arguments that her confession
should have been suppressed because of alleged Fifth Amendment
violations. The Supreme Court has made clear that the
exclusionary rule does not apply in civil deportation cases,
absent ‘egregious’ constitutional violations. . . . We perceive
no egregious violations here.” (footnote omitted)).
8
All of Yanez’s egregiousness claims pertain to alleged
Fourth Amendment violations. Consequently, we do not decide
what “other liberties” fall within the egregiousness exception.
Lopez-Mendoza, 468 U.S. at 1050.
- 31 -
hold that the exclusionary rule applies in removal proceedings
where the challenged evidence has been obtained by “egregious
violations of [the] Fourth Amendment . . . that might transgress
notions of fundamental fairness and undermine the probative
value of the evidence obtained.” Lopez–Mendoza, 468 U.S. at
1050-51.
Under this holding, an alien seeking the application of the
exclusionary rule to a Fourth Amendment claim in a removal
hearing faces two hurdles at the prima facie case stage. First,
she must allege facts that state a violation of her rights under
the Fourth Amendment. Oliva-Ramos, 694 F.3d at 275. Second,
the alien must show that the alleged violation of the Fourth
Amendment was egregious. Id. To get an evidentiary hearing,
the alien must satisfy both prongs. See Maldonado, 763 F.3d at
162 (“Petitioners were required to proffer affidavits based on
personal knowledge that, taken as true, could support
suppression. Had their affidavits been sufficient, they would
have had an opportunity to confirm those allegations in an
evidentiary hearing.”). If an evidentiary hearing is warranted,
the alien will have the opportunity to present testimony and
evidence in support of her Fourth Amendment claim. Id. Upon
the establishment of a prima facie case, the burden of proof
shifts to the government to demonstrate why the IJ should admit
the challenged evidence. Id.
- 32 -
A court reviewing the alien’s claim may, but is not
required to, address both the constitutional and egregiousness
prongs. Like a § 1983 qualified immunity inquiry, the court can
choose to decline to address whether a Fourth Amendment
violation has occurred and first address whether the
egregiousness prong has been satisfied. See, e.g., Martinez
Carcamo v. Holder, 713 F.3d 916, 922 (8th Cir. 2013) (holding
that alleged Fourth Amendment violations were not egregious and
declining to address whether Fourth Amendment violations had
occurred); Martinez-Medina v. Holder, 673 F.3d 1029, 1034 (9th
Cir. 2011) (“However, we need not and do not decide whether the
seizure violated Petitioners’ Fourth Amendment rights because we
conclude that, even if the seizure violated Petitioners’ Fourth
Amendment rights, the violation was not egregious.”); see
also Pearson v. Callahan, 555 U.S. 223, 235-37 (2009)
(explaining that, in deciding the question of § 1983 qualified
immunity, the court may, but is not required to, address both
the constitutional and clearly established prongs; rather, it
may decide the case solely on the clearly established prong).
Thus, if the alien fails to allege facts sufficient to show that
an immigration official has violated the Fourth Amendment,
relief can be denied alone on that basis. Cf. Evans v.
Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (“[I]f a plaintiff
fails to allege that an official has violated any right, the
- 33 -
official ‘is hardly in need of any immunity and the analysis
ends right then and there.’” (quoting Abney v. Coe, 493 F.3d
412, 415 (4th Cir. 2007))). Alternatively, relief can be denied
where the alien fails to allege facts that an immigration
official egregiously violated the Fourth
Amendment. See Maldonado, 763 F.3d at 160 (“The affidavits in
this case do not suggest egregious constitutional violations,
and therefore could not support a basis for excluding the
evidence.” (brackets, citation, and internal quotation marks
omitted)). If there is an evidentiary hearing on the alien’s
claim, relief can be denied if the alien fails to meet her
evidentiary burden on either prong. Oliva-Ramos, 694 F.3d at
279.
D
As noted above, an alien seeking to invoke the exclusionary
rule in a removal proceeding must demonstrate: (1) a violation
of her Fourth Amendment rights; and (2) that the violation was
egregious. While the standard for establishing the
constitutional violation prong is straightforward--alleging
facts establishing a violation of the Fourth
Amendment, Chalmers, 703 F.3d at 646--the standard for
establishing the egregiousness prong is not so straightforward.
The confusion, and hence uncertainty, stems from Part V
of Lopez-Mendoza.
- 34 -
1
Part V of Lopez-Mendoza sanctions the application of the
exclusionary rule in cases where the evidence was obtained as a
result of “egregious violations of Fourth Amendment or other
liberties that might transgress notions of fundamental fairness
and undermine the probative value of the evidence obtained.”
468 U.S. at 1050–51. The exact meaning of this statement is far
from clear.
The plain meaning of this statement suggests that the
Fourth Amendment violation must “transgress notions of
fundamental fairness” and “undermine the probative value of the
evidence obtained.” Id. However, closer inspection of the
context of this statement reveals that the Supreme Court meant
to use the disjunctive “or” instead of the conjunctive “and” to
create two avenues of relief instead of one such avenue. In
other words, an egregious violation of the Fourth Amendment is:
(1) a violation of the Fourth Amendment that transgresses
notions of fundamental fairness; or (2) a violation of the
Fourth Amendment that, regardless of the violation’s unfairness,
undermines the probative value of the challenged
evidence. See Oliva-Ramos, 694 F.3d at 278 (concluding that an
egregious constitutional violation involves either a
constitutional violation that was fundamentally unfair or,
alternatively, a constitutional violation that, regardless of
- 35 -
its unfairness, undermined the probative value of the obtained
evidence); Almeida-Amaral, 461 F.3d at 234 (“The [Lopez-Mendoza]
Court, seemingly inadvertently, used the conjunctive ‘and’
instead of the disjunctive ‘or’ to link these two possible
grounds for deeming a violation egregious.”); Gonzalez-Rivera,
22 F.3d at 1451 (holding that a “fundamentally unfair Fourth
Amendment violation is considered egregious regardless of the
probative value of the evidence obtained”).
To be sure, the Lopez-Mendoza Court justified its exception
for egregious constitutional violations by citing four cases in
which the evidence was reliable (and therefore its probative
value was not undermined), but nevertheless suppressible because
its admission was fundamentally unfair. The first case cited
was Rochin v. California, 342 U.S. 165 (1952). There, police
officers obtained probative evidence of Rochin’s drug
involvement by forcing him to ingest an emetic solution to
induce vomiting so they could recover recently swallowed
morphine capsules. Id. at 166. The Court held that the
probative evidence was illegally obtained because the method
used offended even “hardened sensibilities” and “shocks the
conscience” of the Court. Id. at 172. In no uncertain terms,
the Court in Rochin opined that reliability is not the sole
touchstone of the Fourth Amendment. Id. at 173 (noting that
coerced confessions are inadmissible in criminal trials “even
- 36 -
though statements contained in them may be independently
established as true” principally because they “offend the
community’s sense of fair play and decency”). Thus, it was the
tactics of the police, not the reliability of the obtained
evidence, that led to the exclusion of the evidence in Rochin.
The three remaining cases concerning egregiousness cited by
the Lopez-Mendoza Court were BIA decisions, Matter of Toro, 17
I. & N. Dec. 340 (BIA 1980); Matter of Garcia, 17 I. & N. Dec.
319 (BIA 1980); and Matter of Ramira–Cordova, No. A21 095 659
(BIA Feb. 21, 1980) (unpublished). In each of these cases, the
BIA decision did not focus on the reliability of the evidence.
Rather, the decision focused on whether the admission of the
contested evidence would be fundamentally fair. See Matter of
Toro, 17 I. & N. Dec. at 343-44 (suggesting that a stop based on
Hispanic appearance alone would constitute an egregious Fourth
Amendment violation if the Border Patrol officers acted in bad
faith, regardless of the probative value of the evidence
obtained); Matter of Garcia, 17 I. & N. Dec. at 320-21
(excluding statements obtained after agents repeatedly ignored
detainee’s request for counsel); Matter of Ramira–Cordova, No.
A21 095 659, slip op. at 3-4 (suppressing evidence obtained as a
result of a nighttime warrantless entry into the aliens’
residence).
The Lopez-Mendoza Court’s use of the cited authority only
- 37 -
makes sense if fundamental unfairness is not tethered to the
probative value of the evidence obtained. As noted by the court
in Orhorhaghe v. INS, “[w]ere the rule to the contrary, the
egregiousness exception would have little meaning, for the
fruits of an illegal search or seizure ordinarily consist of
physical evidence, the reliability of which is in no way
affected by the manner in which the evidence is obtained.” 38
F.3d 488, 501 (9th Cir. 1994). Given this, it is no surprise
that the three circuits to have meaningfully considered the
unsettled “and/or” issue raised by Part V of the Lopez-Mendoza
opinion have opted to replace the opinion’s “and” with an “or”
to create a workable, disjunctive standard. Oliva-Ramos, 694
F.3d at 278; Almeida-Amaral, 461 F.3d at 234; Gonzalez-Rivera,
22 F.3d at 1451; but see Lopez-Rodriguez v. Holder, 560 F.3d
1098, 1105 (9th Cir. 2009) (Bea, J., dissenting from the denial
of rehearing en banc) (“Finally, the Mendoza dicta seems to
posit a conjunctive test. To trigger application of the
exclusionary rule, the egregious conduct must both (1)
transgress notions of fundamental fairness and (2) undermine the
probative value of the evidence obtained.” (emphasis, footnote,
citation, and internal quotation marks omitted)).
In our case, Yanez does not challenge the probative value
of the evidence obtained as a result of the alleged wrongful
search, seizure, and questioning. Consequently, the challenged
- 38 -
evidence cannot be excluded on the basis that its probative
value is undermined by the activities of the ICE agents.
Rather, the challenged evidence can only be excluded if the
actions of the agents amounted to a violation of the Fourth
Amendment that transgresses notions of fundamental fairness.
This begs the question: When does a violation of the Fourth
Amendment transgress notions of fundamental fairness? We turn
to this question next.
2
A review of the case law demonstrates that there is no
consensus on when a violation of the Fourth Amendment is
egregious such that it transgresses notions of fundamental
fairness. However, two different approaches to assessing
egregiousness have emerged in the fact-specific case law. The
first is the qualified immunity approach, which is applied in
the Ninth Circuit. The second is the totality of the
circumstances approach, which is applied in the Second, Third,
and Eighth Circuits. 9
a
9
Other circuits have raised and disposed of claims of
egregiousness without setting out a detailed standard. See,
e.g., Kandamar, 464 F.3d at 74 (refusing to find egregiousness);
United States v. Olivares-Rangel, 458 F.3d 1104, 1118 n.11 (10th
Cir. 2006) (citing the Lopez-Mendoza examples of egregiousness);
Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 (1st Cir. 2004)
(refusing to find egregiousness for voluntary statements made by
alien while not in custody).
- 39 -
The Ninth Circuit’s qualified immunity approach is the most
alien-friendly test for egregiousness, linking the inquiry to a
qualified immunity analysis. In Gonzalez-Rivera, the Ninth
Circuit held that all “bad faith” violations of the Fourth
Amendment are egregious, warranting the application of the
exclusionary rule. 22 F.3d at 1449 & n.5. A bad faith Fourth
Amendment violation occurs when “evidence is obtained by
deliberate violations of the [F]ourth [A]mendment, or by conduct
a reasonable officer should have known is in violation of the
Constitution.” Id. at 1449 (emphasis omitted). Applying that
standard in Gonzalez-Rivera, the court held that stopping an
individual based solely on a person’s race constitutes an
egregious violation of the Fourth Amendment because “the
officers should have known that their decision to stop [the
alien] based solely on his Hispanic appearance was
unconstitutional.” Id. at 1450.
In another case, the Ninth Circuit found an egregious
violation where officers entered a home without trying to
procure a warrant, without exigent circumstances, and without
consent, because “reasonable officers should have known that
they were violating the Fourth Amendment.” Lopez-Rodriguez v.
Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008). In the court’s
view, “reasonable officers would not have thought it lawful to
push open the door to petitioners’ home simply because [the
- 40 -
petitioner] did not ‘tell them to leave or [that] she did not
want to talk to them.’” Id.Building on Lopez-Rodriguez, the Ninth Circuit in Martinez-
Medina noted that whether “a reasonable officer should have
known his conduct violated the Constitution depends in part on
whether the constitutional right was clearly established in the
particular context at issue.” 673 F.3d at 1034. There, a
deputy sheriff was told by two Mexican nationals that they were
illegally present in the United States. Id. at 1031. The
deputy sheriff detained them solely by verbal instruction until
an immigration officer arrived. Id. at 1031-32. The aliens
admitted to the immigration officer that they were illegally
present in the United States. Id. at 1032. The Martinez-Medina
court found no egregious violation of the aliens’ Fourth
Amendment rights because “a reasonable officer would not have
known he lacked probable cause to detain Petitioners.” Id. at
1035. In the court’s view, “the deputy sheriff, unlike the
officers in Lopez–Rodriguez, was not acting against an
unequivocal doctrinal backdrop.” Id. In other words, because
the “law was unclear as to whether an alien’s admission to being
illegally present in the United States created probable cause to
seize the alien for violating federal immigration law,” there
was no egregious violation of the aliens’ Fourth Amendment
rights. Id.
- 41 -
b
On the other end of the spectrum is the totality of the
circumstances approach. In Oliva-Ramos, the Third Circuit
criticized the Ninth Circuit’s linking of the exclusionary rule
in removal cases to the qualified immunity standard. Oliva-
Ramos, 694 F.3d at 277. The court said that it could not adopt
an egregiousness standard that is “perched on the fulcrum of the
good faith of the police.” Id. The Third Circuit noted that
the Ninth Circuit’s test would “permit conduct that may be
objectively reasonable based on directives of the [DHS], but
nevertheless result in routine invasions of the constitutionally
protected privacy rights of individuals.” Id. Finding such a
result untenable, the court in Oliva-Ramos indicated that the
egregiousness analysis “must, by its very nature, differ from an
inquiry into an officer’s good faith.” Id. at 259 n.21.
In Oliva-Ramos, the alien alleged several Fourth Amendment
violations, including that the officers lacked proper consent
before entering his apartment at 4:30 a.m., arrested him without
probable cause or a warrant, and seized him without reasonable
suspicion. Id. at 261-62. The BIA denied the alien’s request
to supplement the record with new, previously unavailable
evidence of widespread Fourth Amendment violations and egregious
conduct, concluding that Part V of Lopez-Mendoza was only
dicta. Id. at 262-70. On the ensuing petition for review, the
- 42 -
Third Circuit vacated the BIA’s decision and required it to
reopen the proceedings so that the alien could present evidence
of widespread and egregious conduct. Id. at 274-82.
The court in Oliva-Ramos opined that “evidence will be the
result of an egregious violation within the meaning of Lopez-
Mendoza, if the record evidence establishes” that a Fourth
Amendment violation that was fundamentally unfair had
occurred. Id. at 278. In setting the contours of this
standard, the Oliva-Ramos court discerned “guiding principles”
from the Second Circuit’s decision in Almeida-Amaral. Id.
First, “courts and agencies must adopt a flexible case-by-case
approach for evaluating egregiousness, based on a general set of
background principles which fulfill the two-part Lopez-Mendoza
test.” Id. at 278-79. Second, fact-finders who “evaluat[e] the
egregiousness of the violation should pay close attention to the
‘characteristics and severity of the offending conduct.’” Id.
at 279 (citation and internal quotation marks omitted). Quoting
the First Circuit’s decision in Kandamar and the Eight Circuit’s
decision in Puc-Ruiz, the Oliva-Ramos court explained that
“‘evidence of any government misconduct by threats, coercion or
physical abuse’ might be important considerations in evaluating
egregiousness,” id. (quoting Kandamar, 464 F.3d at 71), and
“evidence of ‘physical brutality’” and an “‘unreasonable show or
use of force’” also may be relevant, id. (quoting Puc-Ruiz, 629
- 43 -
F.3d at 778-79). Succinctly put, the Oliva-Ramos court
concluded that “there is no one-size-fits-all approach to
determining whether a Fourth Amendment violation is egregious”
and that the Supreme Court in Lopez-Mendoza did not “suggest or
imply that any strict test-based approach is appropriate or
warranted.” Id. Rather, the totality of the circumstances
should guide the analysis, and the court required the BIA to
consider on remand factors such as:
[W]hether Oliva-Ramos can establish intentional
violations of the Fourth Amendment, whether the
seizure itself was so gross or unreasonable in
addition to being without a plausible legal ground,
(e.g., when the initial illegal stop is particularly
lengthy, there is an unnecessary and menacing show or
use of force, etc.), whether improper seizures,
illegal entry of homes, or arrests occurred under
threats, coercion or physical abuse, the extent to
which the agents re[s]orted to unreasonable shows of
force, and finally, whether any seizures or arrests
were based on race or perceived ethnicity.
Id. The court further explained that its list of factors was
merely “illustrative . . . and not intended as an exhaustive
list of factors that should always be considered, nor is any one
factor necessarily determinative of the outcome in every case.
Rather, the familiar totality of the circumstances must guide
the inquiry and determine its outcome.” Id.Because the court in Oliva-Ramos took “no position . . . on
the underlying question of whether the circumstances here are so
egregious . . . as to justify a suppression order,” id. at 282,
- 44 -
it did not apply the totality of the circumstances test.
Instead, the court remanded the case to allow the alien to
marshal evidence concerning widespread and egregious Fourth
Amendment violations. Id.
The Second Circuit’s case law is in line with that of the
Third Circuit. In Almeida-Amaral, a border patrol agent stopped
a Brazilian national. 461 F.3d at 232. The court found a
Fourth Amendment violation because the arresting agent had no
legitimate basis for stopping the alien. Id. at 236. However,
these facts were not sufficient to find an egregious violation
requiring exclusion of the evidence obtained following the
stop. Id. The court concluded that stopping the alien without
“valid reason or suspicion” constituted a Fourth Amendment
violation but was not egregious because it was not “particularly
lengthy” and there was no show of force. Id. According to the
court, egregiousness must be gauged “based on the
characteristics and severity of the offending conduct. Thus, if
an individual is subjected to a seizure for no reason at all,
that by itself may constitute an egregious violation, but only
if the seizure is sufficiently severe.” Id. at 235. Thus, like
the Third Circuit, the Second Circuit’s egregiousness approach
involved an assessment of the totality of the objective facts in
the record.
The Second Circuit followed Oliva-Ramos in its decision
- 45 -
in Cotzojay. In that case, an alien from Guatemala, who was
seized by ICE agents at his home in Riverhead, New York at
approximately 4:00 a.m., asserted that his Fourth Amendment
rights, among others, had been violated and thus endeavored to
exclude the evidence obtained by ICE as a result of the seizure,
including a Form I-213, his passport, and his statements to the
agents. 725 F.3d at 174-77. Of note, the agents did attempt to
obtain a warrant to enter the alien’s home, and they entered the
home without the alien’s consent or exigent circumstances. Id.
at 174, 177. The IJ and the BIA refused to suppress the
challenged evidence because the alien did not claim he was
“physically threatened or harmed in the course of the nighttime,
warrantless raid.” Id. at 179.
On appeal, the Second Circuit vacated and remanded the case
to the BIA. Id. at 184. The court first observed that it had
never found a violation sufficiently severe to meet the
egregious standard in a removal case. Id. at 180. The court
then moved to the uncontroversial proposition that the Fourth
Amendment applies to aliens and citizens alike. Id. at 181.
The court noted that, in the absence of consent or exigent
circumstances, the Supreme Court has consistently held that an
entry into a home to conduct a search or make an arrest is
unreasonable under the Fourth Amendment unless done pursuant to
a warrant. Id. In the court’s view, “if a Fourth Amendment
- 46 -
violation is measured by what is reasonable, then an egregious
violation must surely be something more than unreasonable.” Id.
at 182. In fact, the court observed that the test for
egregiousness is more demanding than the test for overcoming
qualified immunity. Id. at 183 n.10. 10 The court agreed that
the Third Circuit’s list of factors may be useful for
determining whether a Fourth Amendment violation is sufficiently
egregious to require application of the exclusionary rule,
adding that no “single aspect of a constitutional violation
elevates its status from merely unreasonable to egregious.” Id.
at 183. The court observed that,
although an unlawful search does not become an
egregious search merely because it invades the privacy
of the home, . . . that government agents intrude into
one’s home (versus a workplace or vehicle, for
example) is an important factor in assessing the
egregiousness of a Fourth Amendment violation because
the home is where its protections should be at their
peak.
Id. (alteration, citation, and internal quotation marks
omitted).
Applying the totality of the circumstances standard,
the Cotzojay court held that “the deliberate, nighttime,
warrantless entry into an individual’s home, without consent and
10
The Cotzojay court rejected the Ninth Circuit’s qualified
immunity approach because the court found that approach too
broad in that it places “too much emphasis on the good or bad
faith of government agents.” 725 F.3d at 183 n.10.
- 47 -
in the absence of exigent circumstances, may constitute an
egregious Fourth Amendment violation regardless of whether
government agents physically threaten or harm residents.” Id.
According to the court, its egregious Fourth Amendment violation
holding was further supported by other objective evidence,
namely, that the ICE agents “pounded” on the alien’s bedroom
door following the home entry, “corralled” the alien and “other
handcuffed residents in the living room,” searched the alien’s
“room for desirable identification documents, informed arrestees
that they could relieve themselves in a restaurant parking lot
while [the agents] ate breakfast, and, in total, detained [the
alien] for approximately eighteen hours.” Id. at 183-84 n.12.
As a result, the court remanded the case for further proceedings
to give the government a meaningful opportunity to show that its
officers obtained consent to enter the home. Id. at 183-84.
In Maldonado, the Second Circuit stressed the difficulty of
establishing a prima facie case of egregiousness. In that case,
aliens from Ecuador were among persons gathered in a park in
Danbury, Connecticut, to seek work. 763 F.3d at 158. The
Danbury Police Department (DPD) and the ICE were jointly
conducting an operation in that area. Id. The aliens entered
an unmarked vehicle operated by an undercover DPD officer (with
the expectation that they were destined to a work-site). Id.
The aliens were arrested, and their incriminating statements
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about their alienage were memorialized on Form I-213s. Id.
Before the IJ, the aliens moved to suppress the Form I-213s and
to terminate the removal proceedings based on Fourth Amendment
violations, arguing that the ICE agents seized them without
reasonable suspicion and on the basis of their race. Id. The
IJ concluded that the aliens did not make out a prima facie case
and denied the motion. Id. Following the BIA’s affirmance, the
aliens sought review in the Second Circuit. Id.
In denying the petition for review, the Maldonado court
emphasized that a removal hearing was designed to provide a
quick method of determining an alien’s eligibility to remain in
the country. Id. at 159. As for the contours of the
egregiousness standard, the court observed that “‘egregious’ by
definition is very bad indeed.” Id. Thus, according to the
court, the egregiousness standard is “stringent” and “entails a
shock to the conscience.” Id.; see also id. at 165 (“Something
egregious is by nature extreme, rare, and obvious.”). Applying
the totality of the circumstances standard, the court found no
egregious Fourth Amendment violations. Id. at 160-63. In so
holding, the court noted that the affidavit in Cotzojay was
deemed to satisfy the egregiousness standard “because it averred
facts that were appalling under any standard: a deliberate,
nighttime, warrantless entry into an individual’s home without
consent and in the absence of exigent circumstances.” Id. at
- 49 -
160 (citation and internal quotation marks omitted).
Contrasting the facts in Cotzojay to the facts before it, the
court pointed out that the aliens did not allege that they were
treated in a particularly severe manner and found nothing in
their account suggesting that they were “gathered by the
authorities, let alone that they were selected by the
authorities on the basis of race.” Id. at 161. Rather, the
court declared that the aliens “self-selected on the basis of
their willingness to seek and accept day labor.” Id.
The Eighth Circuit’s case law is in line with that of the
Second and Third Circuits. In Puc-Ruiz, the Eighth Circuit
affirmed a removal order issued by the BIA, which upheld a
decision by the IJ, who refused to suppress evidence obtained
following the alien’s apprehension by a local police officer.
629 F.3d at 775-83. There, the alien, a native and citizen of
Mexico, was arrested at a restaurant by local police, who were
responding to a tip that the restaurant was serving alcohol in
violation of a municipal ordinance. Id. at 775. The police
entered the restaurant without a warrant and asked the patrons
to produce identification. Id. After the alien presented his
valid Missouri driver’s license, he was arrested and transported
to the police station, where he was fingerprinted and
detained. Id. After he was taken into ICE custody, the alien
was interviewed, resulting in the preparation of a Form I-
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213. Id. at 775-76. Before the IJ, the alien moved to suppress
the evidence resulting from his arrest, including the Form I-
213, on the basis that his arrest violated the Fourth
Amendment. Id. at 776.
On review in the Eighth Circuit, the Puc-Ruiz court held
that the police conduct at issue did not rise to the level of an
egregious Fourth Amendment violation. Id. at 778-79. The court
acknowledged that egregious violations are not limited to those
of physical brutality and cited to the principle that the lack
of any valid basis whatsoever for a seizure sets the stage for
egregiousness, but more than that single factor would be
needed. Id. The court indicated that there was no evidence in
the record that the local police employed an unreasonable show
of force. Id. at 779. It emphasized that the alien did not
advance any argument that the decision to arrest him was based
on race or appearance, such as to trigger an egregious
violation, as has been recognized in other circuit court
decisions. Id. The court considered that this was not a case
in which police officers invaded private property and detained
individuals with no articulable suspicion whatsoever. Id. 11
In Martinez Carcamo, the Eighth Circuit rejected the
11
The Puc-Ruiz court also rejected the alien’s due process
claim on the basis that the statements were voluntarily made.
629 F.3d at 779-80.
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aliens’ challenge to the IJ’s denial, and the BIA’s affirmance,
of their motion to suppress. 713 F.3d at 922-26. The motion to
suppress challenged the warrantless entry into the aliens’
trailer home “[b]efore approximately” 6:00 a.m. on the basis
that a warrantless entry into a home egregiously violates the
Fourth Amendment. Id. at 918. Before entering the home, the
ICE agents took away one man’s cell phone while he was trying to
make a call, and, after entering, pulled a blanket off another
man lying in his bed. Id. at 918-19. In upholding the denial
of the motion to suppress the passports the agents obtained as a
result of the warrantless entry, the court applied the totality
of circumstances approach outlined in Oliva-Ramos. Id. at 923. 12
Under that standard, the court found that the agents’ entry into
the home was not an egregious Fourth amendment violation
“because nothing in our previous cases indicates that an
unreasonable search becomes an egregious search merely because
it invades the privacy of the home.” Id. The court further
found that the aliens’ allegations that they were targeted on
12
The Martinez Carcamo court noted that it previously had
rejected the Ninth Circuit’s qualified immunity approach in
Garcia-Torres v. Holder, 660 F.3d 333 (8th Cir. 2011). Martinez
Carcamo, 713 F.3d at 923. In Garcia-Torres, the Eighth Circuit
rejected the Ninth Circuit’s approach because “[s]uch a standard
would likely eviscerate Lopez–Mendoza insofar as the Fourth
Amendment prohibits only ‘unreasonable’ searches and seizures
and the Ninth Circuit’s standard applies whenever ‘a reasonable
officer should have known’ his conduct was illegal.” Garcia-
Torres, 660 F.3d at 337 n.4.
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account of their race were speculative. Id.
In Lopez-Fernandez v. Holder, the Eighth Circuit denied a
petition for review of a removal order issued by the BIA, which
upheld a decision by the IJ, who refused to suppress evidence
obtained following the aliens’ apprehension by ICE agents who
went to the aliens’ home following relevant information the
agents received from a named informant. 735 F.3d 1043, 1045
(8th Cir. 2013). Prior to the 7:00 a.m. entry, the agents did
not attempt to procure a warrant. Id. at 1044-45. Rather, they
“forced” their warrantless entry after one of the aliens opened
the front door. Id. at 1044. In resolving the aliens’ Fourth
Amendment claim, the court assumed the entry into the home
violated the Fourth Amendment. Id. at 1046. Applying the
totality of the circumstances test, the court held, citing Puc-
Ruiz, Garcia-Torres, and Martinez Carcamo, that the aliens had
not established that the assumed Fourth Amendment violation was
sufficiently egregious to justify suppression of the
government’s evidence, including Form I-213s and the aliens’
passports. Id. at 1047-48. In so holding, the court found two
facts particularly relevant. First, there was “no evidence of
egregious force in the manner of entry.” Id. at 1048. Second,
the search occurred in the “morning when the Petitioners were
already awake, not in the middle of the night” as
in Cotzojay. Id.
- 53 -
c
Our survey of the case law from the Ninth Circuit on the
one hand and the Second, Third, and Eighth Circuits on the
other, informs us that we should align ourselves with the
Second, Third, and Eighth Circuits and apply a totality of the
circumstances test.
Any analysis into the appropriate egregiousness standard
should begin with the recognition that a removal hearing is
intended to “provide a streamlined determination of eligibility
to remain in this country, nothing more.” Lopez-Mendoza, 468
U.S. at 1039. As the Supreme Court noted in Lopez-Mendoza, the
removal hearing system is designed to “permit the quick
resolution of very large numbers of deportation actions, . . .
[and] [t]he prospect of even occasional invocation of the
exclusionary rule might significantly change and complicate the
character” of removal hearings. Id. at 1048. Considering the
views espoused by the Supreme Court, especially its admonishment
that we do not change and complicate the character of removal
proceedings, it is evident that a suppression hearing in a
removal proceedings is, at most, supposed to be a very rare
occurrence. Cf. Maldonado, 763 F.3d at 167 (noting that
invocation of the exclusionary rule in removal proceedings
should not be a “common-place tactic”). Thus, to stay faithful
to the dictates of the Supreme Court, it follows that an alien’s
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evidentiary proffer concerning egregiousness must be high,
otherwise a suppression hearing on the question of egregiousness
would be commonplace, and the very heart of the Lopez-Mendoza
decision would be undermined. Cf. id. at 159 (noting that
“‘egregious’ by definition is very bad indeed”); Garcia-Torres,
660 F.3d at 336 (noting that an egregious violation must be more
than a “mere garden-variety” violation); Almeida-Amaral, 461
F.3d at 235 (noting that, “if an individual is subjected to a
seizure for no reason at all, that by itself may constitute an
egregious violation, but only if the seizure is sufficiently
severe” (emphasis omitted)).
The Ninth Circuit’s approach requires a suppression hearing
any time an alien alleges that the law enforcement officers
acted in bad faith. This sets the evidentiary proffer bar too
low. Bad faith allegations often are difficult to resolve
without an evidentiary hearing because the outcome turns on the
subjective motivations of the law enforcement officers. It is
easy to see how the bad faith standard can be manipulated by
clever lawyers and encourages aliens to file frivolous improper
motivation claims. Thus, we see the Ninth Circuit’s standard as
stymieing, rather than promoting, the streamlined nature of the
removal hearing process as recognized by the Court in Lopez-
Mendoza. Relatedly, the Ninth Circuit’s standard runs the risk
of routinely requiring the arresting law enforcement officer to
- 55 -
appear at a suppression hearing to testify concerning
motivation, which the Court noted in Lopez-Mendoza would
unacceptably burden the administration of the immigration laws.
468 U.S. at 1049.
The Ninth Circuit’s standard is inconsistent with Lopez-
Mendoza on another front. The cases cited by the Lopez-Mendoza
Court in support of the egregiousness exception, in
particular Rochin, turned on the conduct of the law enforcement
officers not on the knowledge or intent of the law enforcement
officers. The Court in Rochin did not resolve the case on the
basis of what the law enforcement officers knew or intended, but
rather what they did--they forcibly arrested the defendant and
obtained inculpatory evidence without his consent by forcing a
tube down his throat to pump his stomach. 342 U.S. at 166.
Thus, the outcome of the egregiousness inquiry does not solely
turn on the knowledge or intent of law enforcement officers,
though intent may be one among other relevant
factors. See Oliva-Ramos, 694 F.3d at 279 (noting that intent
may be one among many other factors to be considered under the
totality of the circumstances). Yet, the Ninth Circuit’s
standard permits the application of the exclusionary rule in a
removal proceeding any time law enforcement officers knowingly
or intend to violate the Fourth Amendment regardless of the
severity of their conduct. Eliminating the severity of the law
- 56 -
enforcement officers’ conduct essentially guts the definition of
egregiousness envisioned by the Court in Lopez-
Mendoza. Cf. Martinez Carcamo, 713 F.3d at 923 (“We decline to
allow the Fourth Amendment rights of citizens or aliens to turn
on a federal agent’s personal state of mind.”).
The Ninth Circuit’s approach faces another obstacle as
well. As noted by the court in Oliva-Ramos, the Ninth Circuit’s
approach allows law enforcement officers a free pass any time
they unconstitutionally act pursuant to an agency regulation.
694 F.3d at 277. Such a standard makes little sense because
potentially it permits “routine invasions of the
constitutionally protected privacy rights of individuals,” id.,
by allowing law enforcement officers to invade such interests
pursuant to an agency regulation that permits unconstitutional
conduct.
In our view, the sounder egregiousness approach is the
totality of the circumstances standard as applied in the Second,
Third, and Eighth Circuits. This standard is a flexible case-
by-case standard, taking into account a variety of factors. Id.
It allows the court to examine all of the facts it deems
relevant to the egregiousness inquiry and focuses on the
unreasonableness of the conduct of the law enforcement
officers. Id. at 276, 278. Factors a court may consider
include: (1) whether the Fourth Amendment violation was
- 57 -
intentional; (2) whether the violation was unreasonable in
addition to being illegal; (3) whether there were threats,
coercion, physical abuse, promises, or an unreasonable show of
force by the law enforcement officers; (4) whether there was no
articulable suspicion for the search or seizure whatsoever; (5)
where, when, and how the search, seizure or questioning took
place; (6) whether the search, seizure, or questioning was
particularly lengthy; (7) whether the law enforcement officers
procured an arrest or search warrant; (8) any unique
characteristics of the alien involved; and (9) whether the
violation was based on racial considerations. Maldonado, 763
F.3d at 159-60; Oliva-Ramos, 694 F.3d at 279; Puc-Ruiz, 629 F.3d
at 779; Kandamar, 464 F.3d at 71. This list is not meant to be
exhaustive, as there is “no one-size-fits-all approach to
determining whether a Fourth Amendment violation is
egregious.” Oliva-Ramos, 694 F.3d at 279. The facts of each
case will dictate the relevant factors for consideration.
Importantly, the alien’s evidence, in its totality, must support
a basis to suppress the challenged evidence under a finding of
egregiousness, even at the prima facie case stage. Such
evidence cannot be based on intuition or speculation, especially
as it relates to the intent of law enforcement
officers. See Maldonado, 763 F.3d at 161 (noting the danger of
vague “improper motivation” allegations); Lopez-Gabriel v.
- 58 -
Holder, 653 F.3d 683, 686 (8th Cir. 2011) (no suppression
hearing required where the alien stated only that he “feels” the
police stopped him because of his race, and he “believe[d]” the
police treated him differently than they would “treat white
people”). Suppression hearings should be the exception, not the
rule in removal proceedings, so the alien’s evidentiary burden,
even at the prima facie case stage, is high. Lopez-Mendoza, 468
U.S. at 1049-50.
E
With the appropriate standard set forth, we can proceed to
address the substance of Yanez’s Fourth Amendment claims. 13
1
Yanez raises three Fourth Amendment particularity claims.
First, she claims that the search warrant was invalid because it
13
Because Yanez abandoned before the BIA her claim that the
alleged constitutional violations she experienced were part of a
larger, widespread pattern of unconstitutional misconduct by ICE
agents, we decline to address the merits of her Fourth Amendment
widespread pattern claim. See Kporlor v. Holder, 597 F.3d 222,
226 (4th Cir. 2010) (“It is well established that an alien must
raise each argument to the BIA before we have jurisdiction to
consider it.” (internal quotation marks omitted)); Massis v.
Mukasey, 549 F.3d 631, 638-40 (4th Cir. 2008) (“[U]nder 8 U.S.C.
§ 1252(d)(1), an alien’s failure to dispute an issue on appeal
to the BIA constitutes a failure to exhaust administrative
remedies that bars judicial review.”); see also Rodriguez-
Benitez v. Holder, 763 F.3d 404, 405 (5th Cir. 2014) (“The REAL
ID Act of 2005 grants this Court subject-matter jurisdiction
over constitutional claims and questions of law that were
exhausted before the BIA.” (footnote and internal quotation
marks omitted)).
- 59 -
identified the Premises as a single-family home when it was, in
fact, a multi-unit dwelling. Alternatively, she claims that,
once the agents entered the Premises, they should have realized
that the Premises was a multi-unit dwelling, and, at that point,
they should have stopped the search immediately because the
warrant was overbroad. Finally, she claims the ICE agents were
required to list her as an item to be seized in the warrant. We
reject these claims for the simple reason that they do not make
out a constitutional violation, let alone an egregious one. 14
14
We note that neither the IJ nor the BIA specifically
addressed Yanez’s particularity claims. Ordinarily, such an
error would require a remand to the BIA for further proceedings
pursuant to SEC v. Chenery Corp., 318 U.S. 80 (1943). Under
Chenery, generally we may only affirm on the grounds relied on
by the BIA and may not affirm on unstated alternate grounds.
Id. at 94-95. Chenery is based on the proposition that, unlike
lower courts, agencies exercise their discretion as the
repositories of a Congressionally-delegated power to make
policy; thus, just as an appellate court cannot take the place
of a jury in finding facts, it may not take the place of an
agency in advancing a rationale for agency action. Id. at 88.
However, where, as here, we are dealing with a purely legal
conclusion, that is, whether Yanez has established a prima facie
case, a remand is not compelled. See Hussain v. Gonzales, 477
F.3d 153, 158 (4th Cir. 2007) (no remand required where the
record was conclusive that the alien failed to establish a prima
facie case for adjustment of status); cf. N.C. Comm’n of Indian
Affairs v. U.S. Dep’t of Labor, 725 F.2d 238, 240 (4th Cir.
1984) (“We do not . . . perceive there to be a Chenery problem
in the instant case because the question of interpretation of a
federal statute is not a determination or judgment which an
administrative agency alone is authorized to make.” (citation
and internal quotation marks omitted)). In this case, the
record is complete, Yanez’s arguments are fully briefed, and the
only question before us is purely a legal one. As in Hussain, a
remand to the BIA “would serve no useful purpose,” and the
(Continued)
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The Fourth Amendment provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const.
amend. IV. The requirement for particularity “ensures that the
search will be carefully tailored to its justifications, and
will not take on the character of the wide-ranging exploratory
searches the Framers intended to prohibit.” Maryland v.
Garrison, 480 U.S. 79, 84 (1987). The particularity requirement
is satisfied when an officer in possession of a search warrant
describing a particular place to be searched can reasonably
ascertain and identify the intended place to be
searched. United States v. Owens, 848 F.2d 462, 463 (4th Cir.
1988). Even if the description of the place to be searched is
mistaken, there is no Fourth Amendment violation when the
officers executing the search reasonably believe that the
warrant is sufficiently particular and that they are searching
the correct location. Garrison, 480 U.S. at 84-89. An
erroneous description or a factual mistake in the warrant will
not necessarily invalidate the warrant and the subsequent
search. Owens, 848 F.2d at 463-64. “The validity of the
warrant must be assessed on the basis of the information that
result on remand is a “foregone conclusion.” 477 F.3d at 158.
- 61 -
the officers disclosed, or had a duty to discover and to
disclose, to the issuing Magistrate.” Garrison, 480 U.S. at 85.
“Those items of evidence that emerge after the warrant is issued
have no bearing on whether or not a warrant was validly
issued.” Id.We conclude that, under the circumstances, the ICE agents
conducted a reasonable investigation of the Premises in
preparation for obtaining the search warrant, and further
conclude that the description of the Premises in the warrant did
not invalidate it. The agents placed the Premises under
surveillance, and such surveillance revealed that the Premises
was occupied by Umana, an illegal alien and El Salvadorian
citizen. Based on their surveillance of the Premises, the
agents reasonably believed that it was a single-family home, as
the picture of the Premises in the record depicts a small,
single-story home. The Premises has just one mailbox, with the
numbers “402” on it, (J.A. 524), and the land records search did
not reflect that the Premises was a multi-unit dwelling. The
investigation of the Premises and its description in the warrant
unquestionably complied with the dictates of Garrison
and Owens. Cf. United States v. Clark, 638 F.3d 89, 96 (2d Cir.
2011) (“‘[I]f the [multi-unit] building in question from its
outward appearance would be taken to be a single-occupancy
structure and neither the affiant nor other investigating
- 62 -
officers nor the executing officers knew or had reason to know
of the structure’s actual multiple-occupancy character until
execution of the warrant was under way, then the warrant is not
defective for failure to specify a subunit within the named
building.’” (quoting 2 Wayne R. LaFave, Search & Seizure: A
Treatise on the Fourth Amendment § 4.5(b), at 581-82 (4th ed.
2004))). Accordingly, we reject Yanez’s claim that the warrant
was invalid because it identified the Premises as a single-
family home.
Yanez also claims that, once the ICE agents entered the
Premises and approached the bedroom occupied by her and Umana,
the agents should have known it was a multi-unit dwelling
because the bedroom door was locked. Upon this realization,
Yanez claims, the agents immediately should have terminated the
search in order to secure a search warrant for Yanez’s “separate
dwelling.” Petitioner’s Br. at 32.
The Supreme Court indicated in Garrison that “the validity
of the search of respondent’s apartment pursuant to a warrant .
. . depends on whether the officers’ failure to realize the
overbreadth of the warrant was objectively understandable and
reasonable.” 480 U.S. at 88. “It is only after the police
begin to execute the warrant and set foot upon the described
premises that they will discover the factual mistake and must
reasonably limit their search accordingly.” Id. at 89 n.14.
- 63 -
Thus, we must determine whether the ICE agents should have
realized this alleged factual mistake during the search and
thus stopped the search at that time.
Yanez’s claim founders for the simple reason that the ICE
agents reasonably believed that the Premises was a single-family
home when they arrived at the locked bedroom door. A locked
bedroom door in a home does not necessarily mean or imply that
the home is a multi-unit dwelling. See United States v. Kyles,
40 F.3d 519, 523–24 (2d Cir. 1994) (permitting the search of a
locked bedroom inside a single-family home that did not
objectively appear to be a separate unit); United States v.
Ayers, 924 F.2d 1468, 1480 (9th Cir. 1991) (“A search warrant
for the entire premises of a single family residence is valid,
notwithstanding the fact that is was issued based on information
regarding the alleged illegal activities of one of several
occupants of a residence.”). Moreover, there is nothing special
or unusual about the bedroom door in this case that would have
put the agents on notice that it was an entrance to a separate
living unit. Along a similar vein, Yanez mentions nothing about
the interior of the Premises that would have led the agents to
believe that it was a multi-unit dwelling.
In any event, even if the ICE agents were somehow mistaken,
and we do not suggest or imply they were, we must make
allowances for “honest mistakes that are made by officers in the
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dangerous and difficult process of making arrests and executing
search warrants.” Garrison, 480 U.S. at 87. Unlike Garrison,
in which the officers clearly were confronted with two
apartments where they expected to find only one, nothing in this
case should have made it obvious to the agents that the warrant
was overbroad.
Yanez’s final claim concerning particularity is that the
search warrant is invalid because the affidavit did not list her
as an item to be seized. This claim is premised on her claim
that the warrant is invalid because the affidavit did not
identify the Premises as a multi-unit dwelling and, more
particularly, did not identify her separate dwelling unit as a
place to be searched. Since we have rejected the premises on
which this final claim rests, we reject this claim as well.
2
Yanez also argues that the timing of the execution of the
search warrant--5:00 a.m. instead of between 6:00 a.m. to 10:00
p.m.--violated her Fourth Amendment rights. Basically, Yanez
contends that the nighttime execution of a daytime warrant
violates the Fourth Amendment, absent consent or exigent
circumstances, which are not presented here. 15
15
Understandably, because the record must be viewed in a
light most favorable to Yanez, the government does not suggest
that exigent circumstances or consent excused the alleged
(Continued)
- 65 -
a
The Fourth Amendment protects individuals from
“unreasonable searches and seizures,” guaranteeing their right
“to be secure in their persons, houses, papers, and effects.”
U.S. Const. amend. IV. That Amendment was specifically crafted
to thwart the unbridled discretion of law enforcement officers.
Our Founding Fathers intended to impede “the abuses of the
general warrants that had occurred in England and of the writs
of assistance used in the Colonies.” Steagald v. United States,
451 U.S. 204, 220 (1981). 16 General warrants and writs of
assistance bestowed upon the executing officials a high degree
of deference and, crucially, “provided no judicial check” on a
judicial officer’s determination that an intrusion into a home
or dwelling house was justified. Id. The Founders imposed that
missing “judicial check” by adopting the Fourth Amendment, which
requires neutral and detached judicial officers to assess
failure to timely execute the warrant.
16
A general warrant, utilized extensively in England before
the American Revolution, “specified only an offense . . . and
left to the discretion of the executing officials the decision
as to which persons should be arrested and which places should
be searched.” Steagald, 451 U.S. at 220. Similarly, a writ of
assistance, utilized extensively by the English in the Colonies,
“noted only the object of the search--any uncustomed goods--and
thus left customs officials completely free to search any place
where they believed such goods might be.” Id.- 66 -
whether probable cause has been shown for searches of persons,
houses, papers, or effects. Johnson v. United States, 333 U.S.
10, 13-14 (1948). If probable cause exists and is shown under
oath, then a judicial officer is entitled to issue a warrant,
authorizing the appropriate search.
Though the Fourth Amendment protects against unreasonable
searches of persons, houses, papers, and effects, dwelling
houses and residences are protected with special
jealousy. See Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013)
(“But when it comes to the Fourth Amendment, the home is first
among equals.”). 17 The common law viewed “a man’s house as his
castle of defense and asylum,” warranting even greater
protection from intrusion. Wilson v. Arkansas, 514 U.S. 927,
931 (1995) (internal quotation marks omitted). Because an
individual’s expectation of privacy is “at [its] apex in one’s
home,” United States v. Gray, 491 F.3d 138, 146 (4th Cir. 2007),
warrantless searches of homes are unconstitutional under the
Fourth Amendment, Brigham City, Utah v. Stuart, 547 U.S. 398,
403 (2006), absent some type of justification. In exceptional
17
The Fourth Amendment’s guarantee against unreasonable
searches of “houses” extends to owners, boarders, and tenants of
homes, apartments, and other dwelling places. United States v.
Gray, 491 F.3d 138, 144 (4th Cir. 2007). The Fourth Amendment
also protects travelers in hotels and motels, relatives who
regularly stay in a residence, and overnight guests. Id.- 67 -
situations, law enforcement officers may be justified in
conducting warrantless searches of homes, particularly in
“exigent circumstances.” Id. at 403-04. 18 A warrantless search
of a home pursuant to an occupant’s voluntary consent is also
reasonable under the Fourth Amendment. Schneckloth v.
Bustamonte, 412 U.S. 218, 219-23 (1973). Absent such
justification, however, warrantless searches of dwellings by
government agents are “the chief evil against which the wording
of the Fourth Amendment is directed.” Welsh v. Wisconsin, 466
U.S. 740, 748 (1984) (citation and internal quotation marks
omitted). The law is thus settled that the Fourth Amendment
shields individuals from warrantless intrusions into their
homes, even where probable cause otherwise exists to justify
searches. Jones v. United States, 357 U.S. 493, 497-98 (1958).
Our nation’s historic aversion to the warrantless searches
of dwelling houses and residences reaches its zenith when such
searches are conducted at night. Nighttime searches have long
18
Exigent circumstances justifying a warrantless search of
a home may include, by way of example: fighting a fire and
investigating its cause; preventing the imminent destruction of
evidence; engaging in “hot pursuit” of a fleeing felon;
rendering emergency assistance to an injured occupant; or
preventing an occupant from imminent injury. Stuart, 547 U.S.
at 403-04; see also Mincey v. Arizona, 437 U.S. 385, 393-94
(1978) (“[W]arrants are generally required to search a person’s
home or his person unless the exigencies of the situation make
the needs of law enforcement so compelling that the warrantless
search is objectively reasonable under the Fourth Amendment.”
(internal quotation marks omitted)).
- 68 -
been recognized as more intrusive than searches conducted during
the day. See Coolidge v. New Hampshire, 403 U.S. 443, 477
(1971) (characterizing midnight entry into dwelling as
“extremely serious intrusion”). In fact, the Supreme Court has
deemed it “difficult to imagine a more severe invasion of
privacy than the nighttime intrusion into a private
home.” Jones, 357 U.S. at 498. That proposition is valid
because, during the nighttime hours, searches of dwellings by
government agents tend to involve “rousing the residents out of
their beds, and forcing them to stand by in indignity in their
night clothes,” all of which “smack[s] of a police state lacking
in the respect for” individual privacy rights. Gooding v.
United States, 416 U.S. 430, 462 (1974) (Marshall, J.,
dissenting) (citation and internal quotation marks omitted).
Thus, warrantless nighttime searches of homes were characterized
by the second Justice Harlan as creating “a grave constitutional
question.” Jones, 357 U.S. at 499; see also Monroe v. Pape, 365
U.S. 167, 210 (1961) (Frankfurter, J., dissenting) (describing
warrantless nighttime searches of dwellings as “evil in its most
obnoxious form”).
Rule 41 of the Federal Rules of Criminal Procedure
implements the Fourth Amendment’s protections against
warrantless searches. Jones, 357 U.S. at 498. It provides that
a judicial officer must issue a search warrant if a federal law
- 69 -
enforcement officer or an attorney for the government presents
an affidavit or other information showing probable cause to
search a property. Fed. R. Crim. Proc. 41(b)(1). Additionally,
Rule 41 sets forth procedures controlling the time at which a
warrant may be executed, reflecting that “increasingly severe
standards of probable cause are necessary to justify
increasingly intrusive searches.” Gooding, 416 U.S. at 464.
Once issued, a warrant can normally be executed solely “in the
daytime,” between 6:00 a.m. and 10:00 p.m., “unless the judge
for good cause expressly authorizes execution” during the night.
Fed. R. Crim. P. 41(e)(2)(A)(ii). 19 Good cause for a nighttime
warrant might exist, for example, where necessary to prevent the
destruction of evidence. See United States v. Searp, 586 F.2d
1117, 1121 (6th Cir. 1978) (“The Rule recognizes that there are
times when a night search is necessary; if, for instance,
19
The relevant inquiry in determining when a search warrant
was executed is the time at which the search began, not when it
ended. See, e.g., United States v. Keene, 915 F.2d 1164, 1167
(8th Cir. 1990). Furthermore, it is generally recognized that
law enforcement officers who properly execute a daytime warrant,
between the hours of 6:00 a.m. and 10:00 p.m., may extend their
search into the nighttime hours. See, e.g., United States v.
Squillacote, 221 F.3d 542, 556 (4th Cir. 2000) (“Because the
search of the Appellants’ home was commenced in the daytime, as
required by the warrant, the FBI agents reasonably could have
believed (if their actions after 10:00 p.m. could be considered
a search) that it was proper to continue the search into the
night.”); United States v. Burgard, 551 F.2d 190, 193 (8th Cir.
1977) (“Searches which began during daytime and continued into
the night have been held not to violate [Rule 41].”).
- 70 -
execution would be impossible in the daytime or the property
sought is likely to be destroyed or removed before daylight.”).
Because of the separate, heightened burden of proof required for
issuance of a nighttime warrant, the existence of a daytime
warrant ordinarily does not justify a nighttime
search. O’Rourke v. City of Norman, 875 F.2d 1465, 1474 (10th
Cir. 1989).
b
That a nighttime search would be unconstitutional absent
consent or exigent circumstances if it was conducted under color
of a daytime warrant is not a novel concept. The Third and
Tenth Circuits have reached that very conclusion. See O’Rourke,
875 F.2d at 1474-75 (determining that nighttime search violated
Fourth Amendment despite daytime warrant); United States ex rel.
Boyance v. Myers, 398 F.2d 896, 899 (3d Cir. 1968)
(same); United States v. Merritt, 293 F.2d 742, 746 (3d Cir.
1961) (same). In O’Rourke, the officers obtained a daytime
bench warrant to arrest a third party for contempt of court.
875 F.2d at 1467. The officers, however, entered the
plaintiff’s residence during the nighttime hours and conducted a
search, contravening the explicit terms of the warrant. Id.In Boyance, two officers received reports that the petitioner
was suspected of committing a burglary. 398 F.2d at 897.
Thereafter, at 1:00 a.m., the officers sought a warrant to
- 71 -
search the petitioner’s residence. Id. The judge issued the
warrant, which indicated on its face that the officers were only
to “search in the daytime.” Id. The officers disregarded the
terms of the warrant, however, and entered the petitioner’s
residence at 2:30 a.m. Id. Similarly, in Merritt, the
officers, after suspecting that the defendant was involved in
drug activity, obtained a warrant explicitly limited to the
daytime hours but executed it at the defendant’s apartment in
the nighttime. 293 F.2d at 743. In each of these cases, the
court ruled that the nighttime searches violated the Fourth
Amendment.
In reaching their determinations that the nighttime
searches violated the Fourth Amendment, the Third and Tenth
Circuits focused on the scope of authority conveyed by the
explicit terms of the search warrants. See, e.g., id. at 744(determining that search warrant’s specific limitation “in the
daytime” was conclusive). Because each warrant authorized a
daytime search only, the warrant only could be executed during
daytime hours. As the courts of appeals emphasized, to
determine otherwise would “completely eviscerate the issuing
magistrate’s determination of reasonableness,” O’Rourke, 875
F.2d at 1474, and would “nullify the requirement of a prior
impartial determination that a particular search will be
reasonable,” Boyance, 398 F.2d at 898-99.
- 72 -
c
Beyond the Third and Tenth Circuits, it is notable that the
Attorney General has taken the position that a daytime warrant
does not convey authority to conduct a nighttime search. Jones,
357 U.S. at 496. In Jones, the prosecutors conceded in the
district court that, “by the time petitioner’s house was
searched [by law enforcement officers in the nighttime,] the
daytime search warrant had expired.” Id. As a result, the
Attorney General disclaimed to the Supreme Court that the
officers had sought to execute the daytime warrant when they
commenced their nighttime search. He contended, however, that
the search was nonetheless lawful because there was probable
cause to search the home. Id. Both the Fifth Circuit and the
Supreme Court accepted the Attorney General’s concession that
the nighttime search under color of a daytime warrant violated
the Fourth Amendment, and, thus, assessed whether the search of
a home without a warrant but with probable cause that contraband
would be found there violated the Fourth Amendment. See id.(recognizing that officers’ “daytime search warrant had expired”
when it was executed in nighttime); Jones v. United States, 245
F.2d 32, 34 (5th Cir. 1957) (“[T]he[] [officers] did not execute
the day[time] search warrant.”). The Court concluded that such
a search was not compatible with the Fourth Amendment, reasoning
that, if “federal officers [were] free to search without a
- 73 -
warrant merely upon probable cause to believe that certain
articles were within a home, the provisions of the Fourth
Amendment would become empty phrases, and the protection it
affords largely nullified.” Jones, 357 U.S. at 498.
d
Following the persuasive decisions of the Third and Tenth
Circuits, as well as the Supreme Court’s decision in Jones where
the Court accepted that the government’s concession that a
nighttime search conducted pursuant to a daytime warrant
violated the Fourth Amendment, we hold that the nighttime
execution of a daytime warrant violates the Fourth Amendment,
absent consent or exigent circumstances. 20
In so holding, we note that our court, in an unpublished
20
Although the nighttime execution of a daytime warrant is
a Fourth Amendment violation, absent justification, some courts
have excused the execution of a search warrant past its
expiration date. These courts have inquired into whether the
probable cause that supported the warrant’s issuance continued
to exist at the time of the search. See, e.g., United States v.
Burgess, 576 F.3d 1078, 1096-97 (10th Cir. 2009) (deeming search
warrant valid forty-four days after expiration date because
“[p]robable cause to search was unaffected” by delay).
Executing a warrant beyond its facial expiration date where
probable cause remains present, however, is materially distinct
from seeking to execute a daytime warrant during the nighttime
where there is no showing that a nighttime search is required.
In the former scenario, the magistrate unquestionably would
reissue the warrant for the search because probable cause is
still present, while in the latter scenario, there is no basis
in which to conclude that the magistrate would issue, let alone
reissue, the warrant to authorize a nighttime search that is not
required.
- 74 -
opinion, has treated a nighttime search conducted under the
aegis of a daytime warrant as a mere Rule 41 violation, rather
than as an unconstitutional search. See United States v. Davis,
313 F. App’x 672, 674 (4th Cir. 2009). In concluding that the
defendant’s suppression motion was properly denied, the Davis
court relied on precedent not involving an unauthorized
nighttime search, but rather on precedent that states that a
Rule 41 violation will result in suppression only if the party
seeking suppression suffered prejudice or the government
intentionally violated the rule. See id. (citing Hurwitz, 459
F.3d at 472 n.6). Some of our sister circuits have employed
that same standard in refusing to suppress evidence obtained
during unauthorized nighttime searches. See United States v.
Schoenheit, 856 F.2d 74, 76-77 (8th Cir. 1988); Searp, 586 F.2d
at 1124-25; United States v. Burke, 517 F.2d 377, 385-87 & n.14
(2d Cir. 1975). Those courts have considered factors such as:
whether good cause could have been shown for a nighttime warrant
had one been requested; whether the executing officers believed
in good faith they had authority to conduct a nighttime search;
whether the search was executed a short time before or after
nighttime; and whether the search was in fact more abrasive
because it was conducted in the nighttime. See Schoenheit, 856
F.2d at 76-77; Searp, 586 F.2d at 1124-25; Burke, 517 F.2d at385-87 & n.14. For the reasons we espouse, we decline to follow
- 75 -
the Second, Sixth, and Eighth Circuits or our
nonprecedential Davis decision. See Collins v. Pond Creek
Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (“[W]e ordinarily
do not accord precedential value to our unpublished
decisions.”). Instead, we adhere to the well-reasoned decisions
of the Third and Tenth Circuits, and the Supreme Court’s
decision in Jones. 21
21
In United States v. Rizzi, 434 F.3d 669 (4th Cir. 2006),
we held that 21 U.S.C. § 879 (“A search warrant relating to
offenses involving controlled substances may be served at any
time of the day or night if the judge or United States
magistrate issuing the warrant is satisfied that there is
probable cause to believe that grounds exist for the warrant and
for its service at such time.”) and not Rule 41(e)(2)(A)(ii)
(commanding executing officer to execute “the warrant during the
daytime, unless the judge for good cause expressly authorizes
execution at another time”) governs a search warrant issued in a
drug case. Id. at 671-75. We further held that § 879
authorizes a warrant in a drug case to be executed “day or night
so long as the warrant itself is supported by probable cause.”
Id. at 674. Of note, in rejecting the defendant’s
constitutional challenge to § 879 based on the argument that
§ 879 could not provide a blanket authorization for a nighttime
search, we noted that the “Supreme Court . . . has never held
that the Fourth Amendment prohibits nighttime searches, despite
the disapproval voiced occasionally by a Justice in dissent.”
Id. at 675. We further noted that “constitutionalizing a
standard for when warrants can be served would involve so many
variables that any rule would be difficult to articulate, much
less serve as a component protection of the Fourth Amendment.”
Id. We do not read our Rizzi decision as foreclosing the result
we reach here, namely, that a nighttime execution of a daytime
warrant, absent justification, violates the Fourth Amendment.
Rizzi involved a valid warrant that was validly executed at
night. Our case involves a valid warrant that was invalidly
executed at night. It is the invalid execution that rendered
the search here unconstitutional under the Fourth Amendment, not
the fact that a nighttime search took place. To be sure, for
(Continued)
- 76 -
e
Applying the foregoing principles to Yanez’s Fourth
Amendment timing claim reveals that the 5:00 a.m. search of the
Premises violated the Fourth Amendment. Not only did the
magistrate judge specify that the search warrant was to be
executed in the daytime, he crossed out and explicitly rejected
the alternative option that would have allowed the search to
occur in the nighttime. Cf. Youngbey v. March, 676 F.3d 1114,
1125 (D.C. Cir. 2012) (determining that nighttime search was
reasonable under warrant explicitly authorizing search in
daytime or nighttime). There is no indication that the ICE
agents sought or were granted verbal permission by the
magistrate judge to execute the warrant during nighttime
hours. Cf. United States v. Katoa, 379 F.3d 1203, 1207-08 (10th
Cir. 2004) (finding nighttime search reasonable where judge who
issued daytime warrant authorized nighttime search during
subsequent phone call with officers). Nor is there an
indication that any new facts were developed, after the warrant
was issued, to support a nighttime search of the Premises. And,
as noted earlier, there is no evidence concerning the presence
Fourth Amendment purposes, the nighttime search here rendered
the search itself warrantless because the magistrate judge’s
reasonableness finding was premised on a daytime search; by
contrast, the nighttime search in Rizzi did not involve a
warrantless search.
- 77 -
of consent or exigent circumstances that would have justified
the nighttime execution of the daytime warrant.
Rather, the facts are that the ICE agents secured a daytime
warrant and decided to execute it during the nighttime,
exceeding the authority granted by the magistrate
judge. See United States v. Vigo, 413 F.2d 691, 693 (5th Cir.
1969) (reasoning that the “validity [of a daytime warrant]
required it be served in the daytime”). Because the magistrate
judge explicitly rejected a nighttime search, the warrant’s
daytime restriction must be construed against the
agents. See United States v. Kelley, 652 F.3d 915, 917 (8th
Cir. 2011) (“[W]hen police intend at the time they apply for a
warrant to execute the search at night, it is unreasonable under
the Fourth Amendment not to disclose that intent to the issuing
magistrate and to seek express authorization for the night-time
search.”).
At bottom, Yanez’s suppression motion implicates a simple
rule: a daytime warrant does not authorize a nighttime search.
The government implies that 5:00 a.m. essentially is “close
enough” to 6:00 a.m. in the eyes of the Fourth Amendment.
Notably, however, as John Adams observed in successfully
defending British soldiers charged in the Boston Massacre,
“[f]acts are stubborn things.” David McCullough, John Adams 52
(2001). And the stubbornest fact here is that 5:00 a.m. is not
- 78 -
6:00 a.m. At 6:00 a.m., the warrant sanctioned the ICE agents
to enter into the Premises. At 5:00 a.m., the warrant did not
permit such an entry. Because the nighttime execution of the
daytime warrant violated Yanez’s Fourth Amendment rights, as it
was executed without consent or exigent circumstances, we must
turn to the question of whether the agents egregiously violated
Yanez’s Fourth Amendment rights.
f
As noted above, the question of egregiousness turns on an
evaluation of the totality of the circumstances. There are two
circumstances that support Yanez’s egregiousness claim. The
first is that the Fourth Amendment violation occurred in her
home, where her privacy interests are strong. Jardines, 133 S.
Ct. at 1414. The second is that the entry occurred during the
night, a time of day jealously protected by the Supreme
Court. Coolidge, 403 U.S. at 477.
On the other side of the ledger, several factors weigh in
the government’s favor. There is no evidence that the ICE
agents threatened, coerced, or physically abused Yanez, or
promised her anything for her cooperation. Unlike Umana and
Mendoza, she was never handcuffed and was allowed to remain at
the Premises following the search. There is no evidence of
diminished capacity on the part of Yanez, or that the
questioning of her was particularly lengthy. Also, there is
- 79 -
nothing in the record to suggest that the agents were motivated
by racial considerations, and there is no evidence of improper
intent on the part of the agents. 22
While the totality scales at this point tilt in the
government’s favor, two additional facts seal Yanez’s fate: (1)
the ICE agents prepared a valid search warrant; and (2) the
magistrate judge found the existence of probable cause to search
the Premises in the daytime. As to the validity of the warrant,
Agent Coker prepared a detailed and thorough affidavit laying
out the facts in support of probable cause to believe that
illegal aliens (and evidence of the harboring of illegal aliens)
would be found in the Premises during a search. Yanez makes no
challenge to the accuracy of the facts set forth in Agent
Coker’s affidavit, other than the description of the Premises as
a single-story, single-family home. Under such circumstances,
there simply is no doubt that the warrant was facially
valid. Cf. Franks v. Delaware, 438 U.S. 154, 155-56 (1978)
(holding “that, where the defendant makes a substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
22
Indeed, considering the circuit split on whether the
nighttime execution of a daytime warrant, without consent or
exigent circumstances, is a Fourth Amendment violation, it
cannot credibly be argued that the ICE agents in this case
intentionally violated the Fourth Amendment rights of Yanez by
entering the Premises an hour before the warrant permitted.
- 80 -
included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a hearing be
held at the defendant’s request”). As to the presence of
probable cause, the facts set forth in the affidavit undeniably
support the magistrate judge’s probable cause
finding. See Illinois v. Gates, 462 U.S. 213, 238 (1983)
(defining the test for probable cause as “whether, given all the
circumstances . . . , there is a fair probability that
contraband or evidence of a crime will be found in a particular
place”). The agents conducted a painstaking surveillance
operation that produced evidence of a fair probability that
illegal aliens (and evidence of the harboring of illegal aliens)
would be found during a search of the Premises. Like the facial
validity of the warrant, Yanez makes no challenge to the
magistrate judge’s probable cause finding.
The presence of a valid search warrant supported by a
magistrate judge’s probable cause finding diminishes the degree
of the intrusion on a resident’s Fourth Amendment
interests. Cf. Michigan v. Summers, 452 U.S. 692, 701 (1981)
(noting that “[o]f prime importance in assessing the intrusion
[on the defendant’s privacy and liberty] is the fact that the
police had obtained a warrant to search [defendant’s] house for
contraband”). This is so because the magistrate judge has
- 81 -
“authorized a substantial invasion of the privacy” of the
persons residing in the place to be searched. Id.In Cotzojay, the alien’s privacy interests continued to
remain at their zenith--the search took place at night in the
alien’s home and the ICE agents did not attempt to procure a
warrant. Because the agents never attempted to procure a
warrant, it is not surprising that the court there concluded
that a nighttime warrantless search was egregious where the
alien’s privacy interests were so compelling and the conduct of
the agents deplorable. But cf. Martinez Carcamo, 713 F.3d at
923 (holding that Fourth Amendment violation was not egregious
where ICE agents did not attempt to obtain a search warrant and
entered the alien’s home before approximately 6:00 a.m.).
However, in our case, Yanez’s privacy interests were lower than
those in Cotzojay and the conduct of the agents different. The
agents in our case had authorization to search, but not at
night. Thus, our case simply is not on the same plane
as Cotzojay.
Put another way, if law enforcement officers do not attempt
to secure a valid warrant supported by a magistrate judge’s
probable cause finding (as in Cotzojay), their conduct is more
egregious than law enforcement officers who take the time to
prepare a valid warrant and present it to a magistrate judge for
a probable cause finding. In the latter case, the law
- 82 -
enforcement officers’ conduct is less offensive--they have
sought and received authorization for a privacy interest
invasion--while in the former case, the law enforcement
officers’ conduct borders on abhorrent, which renders the
intrusion more severe and, hence, egregious. 23
Sensing that she suffered a “mere garden-variety” violation
of her Fourth Amendment rights, Garcia-Torres, 660 F.3d at 336,
Yanez claims her case for egregiousness is buttressed by the
excessive force used by the ICE agents in executing the warrant.
Unfortunately for Yanez, the force used by the agents was
reasonable.
The Supreme Court has repeatedly made clear that law
enforcement officers, when executing a search, “may take
reasonable action to secure the premises and to ensure their own
safety and the efficacy of the search.” Los Angeles Cnty., Cal.
v. Rettele, 550 U.S. 609, 614 (2007). It is for this reason
that the Supreme Court has underscored that officers may detain
the occupants of the premises while a search is
23
Interestingly, had the ICE agents in Cotzojay obtained a
daytime warrant and executed it at night, the Second Circuit
would not have assessed the claim for Fourth Amendment
egregiousness because such claims in the Second Circuit are
analyzed under a Rule 41 harmless error analysis. See Burke,
517 F.2d at 385-87 & n.14 (applying harmless error analysis to
Rule 41 nighttime execution violation). The upshot of this is
that a nighttime execution of a daytime warrant is not a
constitutional violation, let alone an egregious constitutional
violation, in the Second Circuit.
- 83 -
conducted. Summers, 452 U.S. at 705. Such detentions, the
Court has noted, are appropriate “because the character of the
additional intrusion caused by detention is slight and because
the justifications for detention are substantial.” Muehler v.
Mena, 544 U.S. 93, 98 (2005). 24 “Inherent in Summers’
authorization to detain an occupant of the place to be searched
is the authority to use reasonable force to effectuate the
detention.” Id. 98–99.
Claims of excessive force are analyzed under the Fourth
Amendment’s objective reasonableness standard, judging the
“reasonableness of a particular use of force . . . from the
perspective of a reasonable officer on the scene.” Graham v.
Connor, 490 U.S. 386, 395–96 (1989) (internal quotation marks
omitted). Generally, such claims require “a careful balancing
of the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing
governmental interests at stake.” Id. at 396 (quoting Tennessee
v. Garner, 471 U.S. 1, 8 (1985)) (internal quotation marks
omitted).
The force here at issue consisted of the ICE agents
24
The reasonableness of the seizure in Summers was
justified by three law enforcement objectives: (1) “preventing
flight in the event that incriminating evidence is found”; (2)
“minimizing the risk of harm to the officers”; and (3)
facilitating “the orderly completion of the search” with the
assistance of the detained occupants. 452 U.S. at 702–03.
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breaking down Yanez’s bedroom door, shouting “police” and “don’t
move,” pointing a gun at her, and leading her downstairs at
gunpoint to the living room couch. (J.A. 142). Summers
stresses that the risk of harm to officers and occupants is
minimized if the officers routinely exercise “unquestioned
command of the situation.” 452 U.S. at 703. Yanez was living
in a home that the agents, based on extensive surveillance,
suspected housed illegal aliens. For the safety of everyone
involved, including Yanez, the agents were authorized to
exercise unquestioned command of the situation by breaking the
locked bedroom door down, shouting “police” and “don’t move”,
and leading Yanez downstairs at gunpoint. (J.A. 142). Such
actions in securing the home ensured there was no danger to the
agents, the occupants, or the public. Once she arrived on the
couch, Yanez was subjected to no further exercise of force
during her detention, and, as noted, she was never handcuffed
during the encounter. Cf. Mena, 544 U.S. at 98 (upholding the
use of handcuffs during a two- or three-hour detention during
execution of search warrant for weapons). Moreover, weapons
were drawn no longer than necessary to secure the location in a
potentially volatile situation. Cf. Maryland v. Buie, 494 U.S.
325, 335-36 (1990) (noting that a protective sweep may last “no
longer than is necessary to dispel the reasonable suspicion of
danger” and “no longer than it takes to complete the arrest and
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depart the premises”). The force used here by the agents
unquestionably was measured and by no means excessive (in the
constitutional sense or otherwise). As such, the amount of such
force does not help Yanez’s egregiousness claim based on the
timing of the search. 25
Our discussion of the totality of the circumstances leads
us to conclude that the Fourth Amendment violation here lacks
the severity necessary to support a finding of
egregiousness. Almeida-Amaral, 461 F.3d at 235. We hold that,
although the nighttime execution of the daytime warrant violated
25
Because we hold that the force used by the ICE agents was
measured and not excessive in the constitutional sense, we
reject Yanez’s stand-alone egregious Fourth Amendment violation
claim based on the amount of force used by the agents.
Moreover, to the extent that Yanez challenges the scope and
duration of her seizure on Fourth Amendment egregiousness
grounds, we reject this argument on the basis that her seizure
was reasonable in its scope and duration. Under Summers, law
enforcement officers are entitled to detain occupants of a
premises for the whole length of most warranted searches. 452
U.S. at 705 n.21 (acknowledging possible exceptions to the
Summers rule for “special circumstances” and “prolonged
detention[s],” implying that the general rule of routine
detention of residents of a house while it was being searched
for contraband pursuant to a warrant confers the power to detain
occupants for the length of such “routine” searches); see also
Mena, 544 U.S. at 98 (holding that the resident’s “detention for
the duration of the search was reasonable under Summers because
a warrant existed to search [the premises] and she was an
occupant of that address at the time of the search”). In light
of the two- or three-hour detention of an innocent bystander
deemed “plainly permissible” by the Supreme Court in Mena, we
cannot conclude that Yanez’s seizure here became egregiously
unconstitutional over time. 544 U.S. at 98.
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Yanez’s Fourth Amendment rights, such violation was not
egregious under the totality of the circumstances. 26
Accordingly, both the IJ and the BIA correctly resolved this
Fourth Amendment claim against Yanez.
3
Yanez also argues that her statements to the ICE agents
were involuntary and, thus, were used against her in violation
of her rights under the Due Process Clause of the Fifth
Amendment. See Bustos–Torres v. INS, 898 F.2d 1053, 1057 (5th
Cir. 1990) (“Because deportation hearings must conform to due
process standards, however, an alien’s involuntary statements
cannot be used against him in a deportation hearing.”); see
also Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008) (“The
Federal Rules of Evidence do not apply in immigration
proceedings, and evidentiary determinations are limited only by
due process considerations.”). To establish that her statements
were involuntary, Yanez “must show coercion, duress, or improper
action” by the agents that overbore her will. Puc–Ruiz, 629
26
We note that, even under the Ninth Circuit’s more alien-
friendly qualified immunity egregiousness standard, Yanez would
not prevail. As noted in Footnote 22, the law is unsettled on
the question of whether the nighttime execution of a daytime
warrant, without consent or exigent circumstances, is a Fourth
Amendment violation. Given the state of the law, it cannot be
said that the ICE agents in our case acted pursuant to the
“unequivocal doctrinal backdrop” necessary for a finding of
egregiousness under the Ninth Circuit’s more lenient
egregiousness standard. Martinez-Medina, 673 F.3d at 1035.
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F.3d at 779.
The allegations presented to the IJ failed to establish
a prima facie case of involuntariness. Yanez did not submit
evidence of promises, prolonged questioning, interference with
her right to counsel, or other indicia of coercion or duress
that might suggest that her statements were involuntary, and she
was never handcuffed during the entire episode. See Lopez-
Gabriel, 653 F.3d at 687 (“Without more, prompt questioning of a
handcuffed detainee by an armed and uniformed officer
without Miranda warnings, and questioning by ICE agents after an
arrest, are not sufficient to mandate a hearing or to justify
suppression in an immigration proceeding.”); id. (cases cited
therein). Accordingly, like both the IJ and the BIA, we must
reject Yanez’s Fifth Amendment Due Process Clause claim.
In so rejecting, we note that Yanez’s heavy reliance on the
Second Circuit’s decision in Singh v. Mukasey, 553 F.3d 207 (2d
Cir. 2009), is misplaced. In Singh, the Second Circuit
suppressed a signed statement made during an interrogation
because the officers’ conduct “undermined the reliability of the
evidence in dispute.” Id. at 215 (citation and internal
quotation marks omitted). The court found that the alien was
questioned for four hours in a border inspection station “where
armed, uniformed officers were circulating,” was repeatedly told
he would be sent to jail, broke down and cried during the
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interrogation that occurred in the middle of the night, was
awake for twenty-four hours, and did not read the statement he
signed that contained admissions he allegedly had made. Id.The court also noted that the interrogating officer persisted in
asking the alien the same question until he got the answer he
wanted. Id. at 216. Ultimately, the court found that the
statements at issue were “nuanced and susceptible to corruption”
and were therefore excludable. Id. According to the court, the
statements were not related to “simple, specific, and objective
facts,” such as “whether a person is a foreign citizen or has a
passport and valid visa.” Id. Because the statements were
unreliable, the court excluded them. Id. at 215.
Although the court in Singh discussed the egregious
violation exception in Lopez-Mendoza, id. at 215-16, the court
did not explicitly state whether the signed statement was
suppressed because there was an egregious Fourth Amendment
violation or because there was an egregious Fifth Amendment Due
Process Clause violation. In excluding the statements, the
court stated only that, “[e]ven assuming that the conduct here
was not ‘egregious,’ it nonetheless undermined the reliability
of the evidence in dispute.” Id. at 215 (citation and internal
quotation marks omitted). Thus, the court excluded the evidence
on the basis that the unspecified constitutional violation
undermined the probative value of the challenged evidence. Id.- 89 -
The Second Circuit’s decision in Singh hurts rather than
helps Yanez’s cause. As noted earlier, Yanez does not challenge
the reliability of the evidence obtained as a result of the
alleged wrongful interrogation, which was the basis on which the
court in Singh suppressed the challenged statements. Moreover,
the circumstances surrounding the questioning of the alien
in Singh were decidedly more coercive than the questioning of
Yanez in this case. Unlike Singh, Yanez was questioned at home
for a brief period of time, and she was not repeatedly told she
would be taken to jail. Moreover, unlike the nuanced statements
in Singh, the questioning of Yanez was designed to obtain simple
and objective factual statements, which it did. Finally, unlike
the atmosphere in Singh, where the investigating officer
repeatedly asked the same question until he got the answer he
wanted, such was not the case here.
4
Finally, we turn to Yanez’s argument that the ICE agents
failed to follow five regulations, in particular, 8 C.F.R.
§ 287.8(a)(1)(iii) (regulating use of non-deadly force by
agents), 8 C.F.R. § 287.3(c) (mandating advice concerning right
to counsel), 8 C.F.R. § 287.8(b)(2) (regarding authority to
briefly detain aliens for questioning), 8 C.F.R.
§ 287.8(c)(2)(i) (concerning power to arrest aliens), and 8
C.F.R. § 287.8(c)(2)(ii) (explaining requirement for obtaining
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warrant prior to arresting alien). We have recognized that “an
agency’s failure to afford an individual procedural safeguards
required under its own regulations may result in the
invalidation of the ultimate administrative
determination.” United States v. Morgan, 193 F.3d 252, 266 (4th
Cir. 1999). However, an administrative determination will not
be invalidated unless there is: (1) a violation (2) of a
regulation intended for the alien’s benefit (3) that causes
prejudice to the alien. Id.We reject Yanez’s reliance on the five regulations at
issue. First off, 8 C.F.R. § 287.12 prohibits any construction
of Part 287 of the Code of Federal Regulations “to create any
rights, substantive or procedural, enforceable at law by any
party in any matter, civil or criminal.” 8 C.F.R. § 287.12. As
such, Yanez arguably suffered no prejudice. Cf. Navarro-Chalan,
359 F.3d at 23 (“Finally, even if § 287.3 were applicable and
were violated, INS regulations state that § 287.3 and the other
regulations in its subpart “do not, are not intended to, shall
not be construed to, and may not be relied upon to create any
rights, substantive or procedural, enforceable at law by any
party in any matter, civil or criminal.” (citation and internal
quotation marks omitted)). In any event, even assuming a
violation of the regulations in Part 287 creates an avenue for
suppression, Yanez’s regulatory claims are without merit, either
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because the regulation is inapplicable, see Oliva-Ramos, 694
F.3d at 286 (stating that formal proceedings do not begin until
a Notice to Appear is filed in immigration court, at which point
8 C.F.R. § 287.3(c) is triggered), or redundant to our prior
analyses, see 8 C.F.R. § 287.8(a)(1) (prohibiting excessive
force, which did not exist here), id. § 287.8(b)(2) (permitting
a brief detention for questioning if there is reasonable
suspicion that a person is an illegal alien--such suspicion
obviously was present and, in any event, Yanez’s detention was
permitted while the diligent search took place), id. § 287.8(c)
(circumscribing “arrests” to certain contexts--Yanez was not
arrested, but rather permissibly detained while the diligent
search was conducted).
III
For the reasons stated herein, we deny Yanez’s petition for
review.
PETITION DENIED
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