S.D.Ohio: Undocumented alien was held w/o PC and interrogated; exclusionary rule applies

“This is a story about law-enforcement officers who take shortcuts in their zeal to make arrests and the Fourth and Fifth Amendments to the United States Constitution, which prohibit them from doing so.” Defendant was validly stopped, but he was detained without probable cause or risk of flight to determine his immigration status. See 8 U.S.C. § 1357(a)(2). The exclusionary rule applies to his custodial interrogation without probable cause. United States v. Pacheco-Alvarez, 2016 U.S. Dist. LEXIS 179783 (S.D.Ohio Dec. 29, 2016):

3. Suppression Is Warranted Under the Fourth Amendment Because the Government Did Not Show Probable Cause of an Independent Felony Offense.

Although the ICE officers violated 8 U.S.C. § 1357(a)(2) by arresting Pacheco without probable cause that he posed a risk of escape, that statutory violation—standing alone—does not merit suppression of the derivative evidence the officers obtained. See United States v. Abdi, 463 F.3d 547, 555-57 (6th Cir. 2006). Nevertheless, suppression is warranted here, because the ICE officers lacked probable cause to believe that Pacheco committed an independent felony offense justifying his warrantless arrest. Id. at 557 n.13.

United States v. Abdi controls this case. In Abdi, two ICE officers made a warrantless arrest of a suspected terrorist for alleged immigration violations under 8 U.S.C. § 1357(a)(2). Id. at 552, 558. Over the next several weeks, federal law-enforcement officers took turns interrogating Abdi about his alleged terrorist involvement. Id. at 552-54. On the basis of the statements he provided during those sessions and other evidence that investigators uncovered, Abdi was indicted for several criminal offenses involving providing material support to terrorists. Id. at 554. Abdi then contested his warrantless arrest and moved to suppress all statements and other evidence seized in violation of the Fourth Amendment. Id.

. . .

Third, the exclusionary rule presumptively applies when ICE officers: (1) make a warrantless arrest for suspected immigration violations under § 1357(a)(2); (2) fail to establish probable cause that the arrestee posed a risk of escape; and (3) otherwise lack probable cause to believe that a felony offense has been or is being committed. Id. at 557 & n.13 (“Although we hold that application of the exclusionary rule is not appropriate for the Government’s statutory violation of 8 U.S.C. § 1357 in this case, we emphasize that this decision is based on the specific facts before the court. Specifically, we note that the outcome would be different if the Government’s warrantless arrest had not complied with the Fourth Amendment ….” (emphasis added)); see also, e.g., Khan, 324 F. Supp. 2d at 1187 (granting motion to suppress because “Khan’s arrest was in violation of 8 U.S.C. § 1357(a)(2), and Khan was seized in violation of his Fourth Amendment right to be secure in his person against unreasonable seizures”); United States v. Ravelo-Rodriguez, No. 3:11-cr-70, 2012 U.S. Dist. LEXIS 63801, 2012 WL 1597390, at *18-23 (E.D. Tenn. March 12, 2012) (looking for probable cause of an independent criminal offense), rep. & recommendation adopted, 2012 U.S. Dist. LEXIS 63806, 2012 WL 1598074 (E.D. Tenn. May 7, 2012).

This framework makes sense given the civil nature of most immigration offenses. As the Supreme Court explained, “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States.” Arizona, 132 S. Ct. at 2505. Rather, “an alien who is illegally present in the United States … [commits] only a civil infraction.” Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir. 2011) (quotation omitted). If law-enforcement officers “stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent.” Arizona, 132 S. Ct. at 2505. That is why immigration officers may make warrantless arrests for all suspected immigration violations, including mere civil infractions, “but only where the alien is likely to escape before a warrant can be obtained.” Id. at 2506 (quotation omitted); see also Abdi, 463 F.3d at 568 n.6 (Cole, J., dissenting) (explaining that, if the “warrantless arrest [had] satisfied [8 U.S.C. § 1357(a)(2)], I would presume the constitutionality of the statute and join the majority in holding that there was no Fourth Amendment violation”).

Here, as in Abdi, the suppression issue turns on whether the ICE officers had “probable cause to believe that a criminal offense [had] been or [was] being committed”—i.e., something more than Pacheco’s mere unlawful presence in the United States. See Abdi, 463 F.3d at 557. Though not determinative of that issue, the Court notes that Agent Myers conceded he arrested Pacheco “for immigration offenses”—not for criminal violations. (Doc. 40, PageID 171-73). And Officer Salmon confirmed that they continued to hold Pacheco for a suspected “immigration violation”—namely, “[b]eing present without admission in the United States.” (Id. at 303-04). This makes sense given that the traffic stop revealed no drugs or firearms (id. at 204-05), the mobile fingerprint exam uncovered no past criminal activity or active warrants (id. at 214), and the only evidence of criminal activity that Agent Myers had was an uncorroborated tip from a confidential informant that Pacheco was dealing drugs and guns (id. at 213).