Tuesday, August 12, 2008
Stop. No Warrant; No Entry. Protect your Rights
Egregious Fourth Amendment violation warrants suppression in deportation case despite Lopez-Mendoza
Egregious Payton violation of warrantless entry into the home justifies exclusion of evidence obtained for deportation despite Lopez-Mendoza. Lopez-Rodriguez v. Mukasey, 2008 U.S. App. LEXIS 16847 (9th Cir. August 8, 2008):
In INS v. Lopez-Mendoza, the Supreme Court held that the Fourth Amendment exclusionary rule does not generally apply in deportation proceedings, where the sole issues are identity and alienage. 468 U.S. 1032, 1034 (1984). "However, the Court expressly left open the possibility that the exclusionary rule might still apply in cases involving 'egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.'" Orhorhaghe v. INS, 38 F.3d 488, 492-93 (9th Cir. 1994) (quoting Lopez-Mendoza, 468 U.S. at 1050-51). We have since "t[aken] up the Supreme Court's suggestion" and "held that, even in administrative proceedings in which ... the exclusionary rule [does [*9] not ordinarily apply], administrative tribunals are still required to exclude evidence that was 'obtained by deliberate violations of the Fourth Amendment or by conduct a reasonable officer should know is in violation of the Constitution.'" Id. at 493 (quoting Adamson v. Comm'r, 745 F.2d 541, 545 (9th Cir. 1984)). In assessing whether the INS agents' conduct amounts to an "egregious violation" of the petitioners' rights, "we must first determine whether the agents violated the Fourth Amendment. If they did, then we must determine whether the agents committed the violations deliberately or by conduct a reasonable officer should have known would violate the Constitution." Id. (footnote omitted).
. . .
2. Applicability of the Exclusionary Rule for "Egregious" Violations
The statements sought to be suppressed were obtained from Gastelum and Lopez in the custody immediately following the unconstitutional entry of their residence. The government has made no attempt to bear its burden of showing any change in circumstances or attenuation that would prevent the statements from qualifying as fruits of the Fourth Amendment violation. See Brown v. Illinois, 422 U.S. 590, 604-05 (1975). The statements would therefore be excludible in a criminal case. See Wong Sun v. United States, 371 U.S. 471, 485-86 (1963). In the present proceeding, however, we must next consider whether "the violations were sufficiently egregious to warrant the application of the exclusionary rule in these civil deportation proceedings." Orhorhaghe, 38 F.3d at 501. A Fourth Amendment violation is "egregious" if "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." Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 (9th Cir. 1994) (quoting Adamson, 745 F.2d at 545) (emphasis and final alteration original). We conclude that reasonable officers should have known that they were violating the Fourth Amendment in entering Gastelum's and Lopez's home without a warrant, consent, or exigent circumstances.
Few principles in criminal procedure are as well established as the maxim that "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton, 445 U.S. at 590. Accordingly, although the voluntary consent of a party who has authority over the premises renders the warrantless entry of a person's home by law enforcement personnel constitutionally valid, see, e.g., Matlock, 415 U.S. at 169-71, exceptions to the warrant requirement are "jealously and carefully drawn," Jones v. United States, 357 U.S. 493, 499 (1958). As we have already noted, in keeping with the narrow scope of the consent exception, we "ha[ve] never sanctioned entry to the home based on inferred consent" in the absence of a request by the officers or ongoing, affirmative cooperation by the suspect. Shaibu, 920 F.2d at 1426 (citing United States v. Impink, 728 F.2d 1228, 1233-34 (9th Cir. 1984)); .... Indeed, a full decade before the events giving rise to this litigation took place, we held that "in the absence of a specific request by police for permission to enter a home, a defendant's failure to object to such entry is not sufficient to establish free and voluntary consent. We will not infer both the request and the consent." Shaibu, 920 F.2d at 1428.
Against this unequivocal doctrinal backdrop, reasonable officers would not have thought it lawful to push open the door to petitioners' home simply because Gastelum did not "tell them to leave or [that] she did not want to talk to them." There is nothing ambiguous or arcane about our holding in Shaibu, which was handed down ten years prior to the INS agents' entry of petitioners' home. Nor has the government pointed to any authority in our Fourth Amendment jurisprudence suggesting that the warrant requirement applies with any less force in the administrative context. See Camara, 387 U.S. at 534 (requiring a warrant for civil administrative searches of residences). We conclude that reasonable INS agents should have known that they were violating the Fourth Amendment when they entered Gastelum's and Lopez's residence. Our confidence in this result is further underscored by our cognizance of "the extensive training INS agents receive in Fourth Amendment law." Orhorhaghe, 38 F.3d at 503 n.23 (citing Lopez-Mendoza, 468 U.S. at 1044-45). Thus, the INS agents' Fourth Amendment violation was "egregious" under this Circuit's controlling interpretation of the term. See Adamson, 745 F.2d at 545. The fruits of the constitutional violation accordingly should have been suppressed.