The Fourth Circuit wrestles with the appropriate standard for an “egregious Fourth Amendment violation” for immigration removal cases, and confirms and analyzes a conflict in the circuits and how to interpret SCOTUS’s Lopez-Mendoza. Here, the Fourth Amendment violations were not substantial, and the Fourth Amendment is not a bar to the evidence for removal. Yanez-Marquez v. Lynch, 2015 U.S. App. LEXIS 10107 (4th Cir. June 16, 2015):
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.
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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 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, 72 S. Ct. 205, 96 L. Ed. 183 (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 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. …
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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 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 [*42] 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.
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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.
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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 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)).
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Yanez raises three Fourth Amendment particularity claims. First, she claims that the search warrant was invalid because it 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.
