D.N.M.: Admittedly illegal arrest led to fingerprinting and prosecution for illegal entry was exploitation of the illegality

Defendant’s admittedly illegal arrest was used to prosecute him for illegal entry, and the court finds that the police exploited the illegality for the purpose of running all fingerprints of arrestees in Albuquerque. Considering authority from the Tenth, Fourth, and Eighth Circuits, the court finds that the arrest was to exploit fingerprinting of everybody, and the identity evidence was suppressed. United States v. Perez-Partida, 773 F. Supp. 2d 1054 (D. N.M. 2011):

IV. Analysis

At the outset, it is important to acknowledge that the objective of the exclusionary rule is to deter police misconduct. See, e.g., Hudson v. Michigan, 547 U.S. 586, 608-09, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006) (Kennedy, J., concurring in part and concurring in the judgment) (“[T]he driving legal purpose underlying the exclusionary rule [is] the deterrence of unlawful government behavior … [and to] compel respect for the constitutional guaranty … by removing the incentive to disregard it.”). At the evidentiary hearing, the Government argued that the deterrent function was satisfied in this case: Detective Tafoya conducted an unlawful search, and as a result, his illegal drug arrest will not lead to a criminal prosecution. According to the Government, Defendant “reaped some benefit [of the exclusionary rule], in the sense that he doesn’t face narcotics charges.” 2/3/11 Tr. at 69. However, the Government’s argument is incomplete. The purpose of the exclusionary rule would be equally served in cases where the evidence shows that the arresting officer was in fact motivated by a desire to transport a prisoner to the PTC in order to investigate possible immigration violations. Although the evidence presented here unequivocally establishes that all prisoners are subject to ICE screening at the PTC regardless of their perceived race or national origin, no such evidence was presented with respect to the arrest itself. In other words, given Albuquerque police officers’ knowledge of ICE’s presence at the PTC, the exclusionary rule should be applied to identity evidence where doing so would serve the purpose of deterring officers from pursuing unlawful arrests based on an arrestee’s perceived immigration status.

. . .

C. When “Routine Booking” Involves an “INS-Related Purpose”

This Court has carefully examined the rationales offered by both the Fourth and Eighth Circuits in support of their respective conclusions regarding the application of the “fruit of the poisonous tree” doctrine to identity evidence. It appears from Oscar-Torres that the Fourth Circuit arrived at its conclusion in part because the Supreme Court has established a general rule that the exclusionary rule simply does not apply in civil proceedings. See 507 F.3d at 229-30 (citing Lopez-Mendoza, 468 U.S. at 1042-47). The court further relied upon the Supreme Court cases of Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985) and Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969), where “police suspected [the defendants] of criminal activity, and [illegally] detained and fingerprinted them for the clear investigatory purpose of connecting them to specific crimes,” Oscar-Torres, 507 F.3d at 231; from the Supreme Court’s central focus on the criminal nature of the investigations, the Eighth Circuit concluded that “[f]ingerprinting conducted as part of an arrest intended to lead only to an administrative deportation simply does not present the same concerns as the fingerprinting at issue in Hayes and Davis, which was meant to (and did in fact) lead to criminal prosecutions.” Id.

The circumstances surrounding the instant case caution against a hard-line rule allowing the remedy of suppression in a criminal proceeding only when the motivation for taking the fingerprints was for the purpose of pursuing said criminal proceeding, as opposed to civil deportation proceedings. The PTC screening policy embodies a recent trend of blurring the line between the “purely civil” nature of immigration proceedings and the distinctly punitive nature of criminal punishment. Compare I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1037, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry”) with Padilla v. Kentucky, 130 S. Ct. 1473, 1480, 176 L. Ed. 2d 284 (2010) (“Changes to our immigration law … confirm our view that, as a matter of federal law, deportation is an integral part–indeed, sometimes the most important part–of the penalty that may be imposed on noncitizen defendants” (footnote omitted)). Mayor Berry himself titled his address “Ending Sanctuary for Criminals.” Doc. 17, Attach. D. This title, which stems from the label of “sanctuary city” that some placed on Albuquerque prior to Mayor Berry taking office, conveys the mayor’s position that a “sanctuary” for immigrants is in fact a sanctuary for criminals. In fact, the policy to which Mayor Berry referred when he described Albuquerque as a “sanctuary for criminals” is the Albuquerque Police Department’s Standard Operating Procedure (“APD SOP”) regarding the extent to which officers may question suspects or prisoners about their immigration status. See Sean Olson & Dan McKay, Mayor’s Race Turns Nasty, Albuquerque Journal, Sept. 24, 2009 (“What Berry calls a sanctuary city policy actually is a[n Albuquerque Police Department] policy …. Berry is the only [mayoral] candidate who says Albuquerque is a sanctuary city.”).