United States v. Harrison ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4178
STURDY HARRISON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-163-PJM)
Argued: October 29, 1998
Decided: January 25, 1999
Before MICHAEL and MOTZ, Circuit Judges, and STAMP,
Chief United States District Judge for the Northern District of
West Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Beth Mina Farber, Chief Assistant Federal Public
Defender, Baltimore, Maryland, for Appellant. Jan Paul Miller, Assis-
tant United States Attorney, Greenbelt, Maryland, for Appellee. ON
BRIEF: James K. Bredar, Federal Public Defender, Baltimore, Mary-
land, for Appellant. Lynne A. Battaglia, United States Attorney,
Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury convicted Sturdy Harrison of knowingly returning to this
country without permission from the Attorney General after having
been deported, in violation of 8 U.S.C.A. § 1326 (West Supp. 1998).
The evidence used to convict Harrison included statements he made
to INS officers before they arrested him and a set of fingerprints taken
after this arrest. Harrison argues on appeal that admission of this evi-
dence constituted error and violated his constitutional rights. For the
reasons discussed below, we affirm.
I.
Sometime prior to March 1996, Harrison co-signed a bail bond to
secure the release of his brother. Although at all relevant times Harri-
son resided in Washington, D.C., a bail bond company in Prince
George's County, Maryland affiliated with Charles Louis issued this
bond. Louis and his associates had several dealings with Harrison in
attempts to locate Harrison's brother. Harrison testified that during
these encounters the bail bondsmen (whom he refers to as bounty
hunters) treated him roughly, and that he was afraid of them. He also
testified that the bondsmen told him that they would not report him
to immigration authorities if he divulged his brother's location. Harri-
son refused to tell the bondsmen where his brother was located.
On March 13-15, 1996 Louis contacted the INS office in Baltimore
and notified the INS that he was aware of a Mr. Sturdy Harrison
whom he believed had illegally returned to this country after deporta-
tion. An INS report of communications with Louis indicated that Har-
rison had "not cooperated" with the bail bondsmen in searching for
his brother. INS Baltimore ran several checks and determined that a
Sturdy Harrison from Jamaica had been deported and that his pres-
ence in this country would violate the law. The INS then arranged to
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have Louis bring Harrison from his home to the bail bond company
in Prince George's County, where the INS would arrest him. The INS
was aware that Louis planned to do this under the guise of a meeting
concerning Harrison's brother.
On March 19, 1996, Louis and two of his associates went to Harri-
son's home and brought him with them to the bail bond office. Pursu-
ant to the plan, the INS arrested Harrison in the parking lot of the bail
bond company. At that time, but prior to the actual arrest, INS agents
asked the defendant if his name was Sturdy Harrison; he responded
"yes". The INS also asked Harrison where he was from; he responded
"Jamaica". Following his arrest and Miranda warnings, while at the
INS office, Harrison was fingerprinted. It is these statements and fin-
gerprints that serve as the basis for Harrison's principal claims on
appeal.
Harrison argues that he was arrested before he arrived at the park-
ing lot where INS agents formally charged him. He asserts that Louis
and the other bondsmen, acting as agents for the INS, had earlier forc-
ibly arrested him in his home. Harrison further contends that the war-
rantless arrest by the bondsmen violated his Fourth Amendment rights
and that the district court should have suppressed all evidence
obtained as a result of this unconstitutional arrest.
II.
The role of the bondsmen and their connection, if any, to the INS
presents the threshold issue in this case. Harrison contends that his
original seizure by the bail bondsmen constituted an unconstitutional
arrest because he was taken from his home against his will, without
a warrant, by government agents. Harrison further argues that the
fruits of this arrest by the bondsmen should have been excluded from
evidence. See Wong Sun v. United States, 371 U.S. 471, 484 (1963).
In order to prevail on this claim, Harrison must show that the bail
bondsmen who took him from his home were in fact acting as agents
of the INS, not as private citizens. See United States v. Jacobsen, 466
U.S. 109, 113 (1984) (noting that purely private search does not
implicate the Fourth Amendment); United States v. Kinney, 953 F.2d
863, 865 (4th Cir. 1992) (holding that private citizen's action triggers
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constitutional protections only if citizen is acting as instrument or
agent of government).
In determining whether a private citizen has acted as an instrument
or agent of the Government a court must consider: (1) whether the
Government "knew of and acquiesced in" the private activity and (2)
whether the citizen was motivated on the basis of assisting the gov-
ernment -- as opposed to on the basis of private gain. See United
States v. Feffer, 831 F.2d 734, 739 (7th Cir. 1987). If both factors are
present, a private party will be considered to have acted as a govern-
ment agent. In this case, the parties agree that the bondsmen were
motivated purely out of a desire to aid the INS. Thus only the first
factor is at issue, i.e. whether the Government knew of and acqui-
esced in the activities of the bondsmen. This is a factual question,
which we review for clear error. Ornelas v. United States, 517 U.S.
690, 699 (1996).
In support of its argument that it did not dictate, and indeed was
not even aware of, the tactics used by the bondsmen to retrieve Harri-
son from his home, the Government offered the testimony of INS
Agent Mangiulli. Mangiulli testified that the first contact concerning
Harrison came from Louis and was not initiated by the Government.
He explained that the INS performed a thorough check on the matter
before deciding to proceed; after the check revealed that a Sturdy
Harrison from Jamaica had been deported, the INS contacted Louis
and set up a time and place to meet Harrison and Louis. Mangiulli
further testified that he was unaware that the bondsmen planned to
use force or to take Harrison against his will.
To counter this version of the facts, Harrison points out that (1) the
INS arranged the meeting between Louis, Harrison, and the INS and
(2) the INS had been warned that Harrison had previous encounters
with the bondsmen and that, in these instances, Harrison had not been
cooperative. From these two facts, Harrison deduces that the INS, by
requesting that the bondsmen bring him to the bail bond office know-
ing that he would resist efforts to accompany the bondsmen, encour-
aged and endorsed the bondsmen's actions.
The problem with this argument is that Agent Mangiulli testified
that, although he had read an INS report outlining Harrison's prior
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resistance, he was not aware that the bondsmen would use strongarm
tactics in picking up Harrison. Mangiulli testified that he believed the
bondsmen would bring Harrison to them without incident under the
guise of a meeting about his brother's bond.
The fact that the Government knew of and acquiesced in the ruse
utilized to bring Harrison to the parking lot is not enough to show that
it knew of and acquiesced in the allegedly unconstitutional forcible
arrest by the bondsmen. See United States v. Rhodes, 713 F.2d 463,
467 (9th Cir. 1983) (concluding that there was insufficient evidence
to prove that bounty hunter acted as a government agent when he set
up a meeting between defendant and undercover officer that led to
arrest); Alvarez v. Montgomery County, 963 F. Supp. 495, 498-99 (D.
Md. 1997) (concluding that officers' use of misrepresentation in order
to draw defendant from home and effectuate a warrantless arrest was
proper), aff'd, 147 F.3d 354 (4th Cir. 1998); United States v.
Vasiliavitchious, 919 F. Supp. 1113, 1115-18 (N.D. Ill. 1996) (same);
cf. United States v. Carter, 884 F.2d 368, 374-75 (8th Cir. 1989)
(holding that deceptive statements used by law enforcement agents in
order to obtain consent to search defendant's wallet were relevant but
alone not enough to invalidate consent).
In sum, the record contains ample evidence to support the district
court's finding that the bondsmen did not act as government agents.
As private citizens, their activity could not trigger constitutional pro-
tections. Thus statements Harrison made to INS agents prior to his
arrest by those agents do not constitute the fruit of an unconstitutional
arrest. The district court did not err in refusing to suppress them.
III.
Harrison's fingerprints similarly can not be considered the fruit of
an unconstitutional arrest by the bondsmen. However, because the
fingerprints were taken after the INS arrested Harrison, we must also
consider the validity of that arrest.
The district court found that the INS had probable cause to arrest
Harrison and so its arrest of him violated no constitutional provision;
Harrison does not challenge this finding on appeal. The court, how-
ever, also concluded that the arrest was illegal because, although the
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agents had ample time to do so, they failed to obtain a warrant. Thus,
the court found, their arrest of Harrison violated 8 U.S.C.A.
§ 1357(a)(2) (West Supp. 1998), which authorizes warrantless arrests
by the INS only if the agents have a reasonable belief that an alien
is illegally in the country and that it is likely the alien will escape "be-
fore a warrant can be obtained." Id.The Government initially argues that the arrest was not illegal, that
it did not violate § 1357(a)(2). Alternatively, the Government asserts
that, even if the search did violate the statute, the fingerprints need not
be excluded. We review the district court's legal conclusions de novo.
See United States v. Elie, 111 F.3d 1135, 1140 (4th Cir. 1997), and
its underlying factual findings for clear error. See Ornelas, 517 U.S.
at 699.
A.
In support of its claim that the INS arrest of Harrison did not vio-
late § 1357(a)(2), the Government cites Contreras v. United States,
672 F.2d 307 (2d Cir. 1982). The Government overstates the holding
of this case. In Contreras, the court explained "when the alien's
deportability is clear and undisputed, that circumstance alone may
provide a sufficient basis for an INS officer to believe that escape is
likely before a warrant can be obtained." Id . at 309 (emphasis added).
This does not amount to a holding that in every case in which an alien
is deportable an arrest can be made without a warrant. That interpreta-
tion is contrary to the statute itself, which requires that the INS must
have reasonable belief both that the alien is in the country illegally
and that the alien is likely to escape before a warrant can be obtained.
See 8 U.S.C.A. § 1357(a)(2).
Hence, the critical question remains did the INS believe Harrison
was likely to flee before a warrant could be obtained. In making such
a determination, a court examines the objective facts within the
knowledge of the INS Agents. See Contreras, 672 F.2d at 309. The
district court found that the agents in this case had sufficient time
within which to procure a warrant and that the objective risk of flight
from Harrison was minimal. The record evidence outlined above
offers ample support for this finding.
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Nor is United States v. Cantu, 519 F.2d 494 (7th Cir. 1975), upon
with the Government also relies, to the contrary. In that case the
agents could not determine where the defendant, who was traveling
by car, would be when they caught up with her and for this reason
escape was held likely before a site-specific warrant could be
obtained. Id. at 497-98. In our case, there is no evidence that Harrison
was traveling. To the contrary, the bondsmen had been to his house
several times and found him there each time. Furthermore, the court
in Cantu rejected the INS's argument that it did not have probable
cause to arrest the defendant until the agents observed her personally
because the tip that led them to her had been independently corrobo-
rated. Id. at 497. Similarly, here the INS verified the bail bondsman's
tip as to Harrison's illegal presence in the country through indepen-
dent evidence from their database well prior to Harrison's arrest by
the INS. For these reasons, the district court did not err in concluding
that failure to obtain a warrant in these circumstances violated 8
U.S.C.A. § 1357(a)(2).
B.
The question then becomes what effect, if any, this statutory viola-
tion has on the admissibility of the fingerprint evidence obtained from
that arrest. The Government maintains that, even if the arrest violated
the statute, the district court properly admitted the fingerprint evi-
dence because the exclusionary rule is constitutionally based and is
not triggered by the violation of a mere statute.
Whether the exclusionary rule generally applies when the Govern-
ment violates a statute rather than the constitution presents a difficult
question, and one which we need not reach today. Even if the exclu-
sionary rule applies to evidence obtained after an arrest that is illegal
but not unconstitutional, the district court's admission of Harrison's
fingerprints was nonetheless proper because the exclusionary rule
does not apply to fingerprint evidence obtained in the circumstances
presented here. See United States v. Dionisio , 410 U.S. 1 (1972).
In Dionisio, the Court held that governmental officials can consti-
tutionally obtain a "compelled display of identifiable physical charac-
teristics" (in that case a voice exemplar), even without making any
"preliminary showing of reasonableness." Id. at 5, 8. In doing so, the
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Court distinguished Davis v. Mississippi, 394 U.S. 721 (1969), upon
which Harrison principally relies. In Davis, the Supreme Court had
refused to adopt an exception to the exclusionary rule for evidence
that is inherently reliable, such as fingerprints, and held that finger-
prints obtained as the result of an unconstitutional seizure must be
suppressed. Id. at 724-25. The Dionisio Court explained that "Davis
is clearly inapposite to a case where the initial restraint does not itself
infringe the Fourth Amendment." 410 U.S. at 11. Because the INS
indisputably had probable cause to arrest Harrison, the Fourth
Amendment was not violated by that arrest, and so, Dionisio teaches,
the fingerprint evidence need not be suppressed. See id.; see also
United States v. Crews, 445 U.S. 463, 464 (1980) ("[r]espondent him-
self is not a suppressible fruit"); United States v. Arias, 678 F.2d
1202, 1206 (4th Cir. 1982) ("the identity of[the] defendant[] is not
suppressible under the exclusionary rule").
IV.
Finally, Harrison contends that the district court erred in admitting
a certain certificate from the INS. As an element of the offense
charged, the Government was required to prove that Harrison was in
this country without having requested and received permission from
the Attorney General. See 8 U.S.C.A. §1326(a).
As proof that a thorough search had been performed, Agent Mangi-
ulli testified that no request notification was found in Harrison's file
as would be standard if such a request had been made. Also, the Gov-
ernment admitted a Certificate of Nonexistence of Record. Harrison
argues that, because the writing on the seal affixed to this certificate
was illegible, the document did not "bear a seal" under Federal Rule
of Evidence 902(1) and so was not self-authenticating. Therefore,
Harrison maintains, its admission was improper. The district court
determined that the document contained a seal "purporting to be" that
of the United States or a political subdivision thereof, as required by
Rule 902(1). The court noted that the seal contained an eagle in the
middle and that it was adequate. The court did not abuse its discretion
in so ruling.
V.
In sum, we hold that the bail bondsmen who brought Harrison to
the site where he was arrested by the INS did so as private citizens.
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Thus their actions, however egregious, did not violate Harrison's con-
stitutional rights. Evidence obtained as a result of their actions, specif-
ically Harrison's statements to INS agents prior to his arrest by those
agents, was not subject to the exclusionary rule. We further hold that,
although the INS's arrest of Harrison violated 8 U.S.C.A.
§ 1357(a)(2), the fingerprints obtained as a result of that arrest were
nonetheless properly admitted. Finally, we find no abuse of discretion
in the district court's admission of a document under Federal Rule of
Evidence 902(1) despite the lack of clarity of the lettering on its seal.
For these reasons, the judgment of the district court is
AFFIRMED.
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