E.D.Ky.: Immigration questions require RS; here they had it

Immigration status questions require reasonable suspicion. It was lacking at first because they thought at first defendant was somebody else, but the officer quickly concluded the correct facts. Then there was reasonable suspicion. United States v. Hernandez-Hernandez, 2018 U.S. Dist. LEXIS 208349 (E.D. Ky. Dec. 11, 2018):

If, as the Report Narrative relates, Officer Sherwood began his investigation by asking whether Hernandez was lawfully present in the country, then Hernandez’s Fourth Amendment rights were violated. Questions of immigration status need to be supported by reasonable suspicion. Brignoni-Ponce, 422 U.S. at 882. But Officer Sherwood’s realization that Hernandez was not Roblero removed any reasonable cloud of suspicion that Hernandez was unauthorized to be present in the country. Indeed, at that point the only evidence that Hernandez was illegally in the United States was his ethnicity. The Court cannot be more clear—ethnicity can never support reasonable suspicion. Id. Officer Sherwood, unsupported by reasonable suspicion, cannot ask Hernandez about his immigration status. Given Officer Sherwood’s position as a longstanding immigration enforcement officer — fluent in the contours of immigration law — all evidence that resulted from this stop would need to be suppressed as fruit of the poisonous tree. U.S. v. Pacheco-Alvarez, 227 F.Supp.3d 863 (S.D. Ohio 2016); U.S. v Jimenez-Robles, 98 F.Supp.3d 906 (E.D. Mich. 2015). In particular, Hernandez’s admission would need to be suppressed.