The Eighth Circuit doesn’t follow Ninth on bad faith equaling an “egregious” Fourth Amendment violation warranting the exclusionary remedy in an alien removal case. They have a damages remedy [ha!]. Carcamo v. Holder, 2013 U.S. App. LEXIS 7841 (8th Cir. April 19, 2013):
If the "massive remedy," Hudson v. Michigan, 547 U.S. 586, 595, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006), of exclusion is ever appropriate in the civil context of a removal proceeding, it should be granted only because of an "egregious" or "widespread" Fourth Amendment violation. Lopez-Mendoza, 468 U.S. at 1050-51; see also Puc-Ruiz, 629 F.3d at 778. We have not had occasion to join other circuits in holding an egregious or widespread violation affirmatively compels exclusion in a removal proceeding, and we need not decide today whether to do so. See Lopez-Gabriel, 653 F.3d at 686. Assuming Martinez's and Garcia's accounts of the ICE officers' conduct are true, any Fourth Amendment violations they suffered were not sufficiently egregious to entitle them to the remedy they seek—exclusion of decisive evidence in a civil removal proceeding.
We have not developed "an exhaustive list of the conduct that could constitute an egregious constitutional violation," Puc-Ruiz, 629 F.3d at 779, and in previous cases our egregiousness inquiry has been neither mechanical nor formulaic. See, e.g., Garcia-Torres v. Holder, 660 F.3d 333, 336-37 (8th Cir. 2011). Consistent with this approach, we have expressly rejected the Ninth Circuit's "bad faith" standard. Compare Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448-49 (9th Cir. 1994) (holding a "bad faith" violation is an egregious violation), with Garcia-Torres, 660 F.3d at 337 n.4 (declining "to adopt the Ninth Circuit's standard ... that an 'egregious violation' is nothing more than a 'bad faith' violation"). Instead, like the Third Circuit, we do not consider a "one-size-fits-all approach" appropriate in this context. Oliva-Ramos, 694 F.3d at 279. As in Puc-Ruiz, Garcia-Torres, and Lopez-Gabriel, we look to the totality of the circumstances to determine whether a constitutional violation is egregious.
2. Present Case
Martinez and Garcia argue that the ICE officers' conduct in this case was egregious for three reasons: (1) the officers invaded an area—the home—at the heart of the Fourth Amendment's protections, (2) the officers acted based on race, and (3) the officers' violation was "deliberate." Each argument falls short. ...
. . .
For these reasons, we perceive no egregious violation of the Fourth Amendment in Martinez's and Garcia's accounts of June 22, 2008. Though the record alludes to Fourth Amendment violations by ICE officers in other cases, Martinez and Garcia have not argued—and the record before us does not sufficiently establish—that "Fourth Amendment violations by [immigration] officers were widespread," Lopez-Mendoza, 468 U.S. at 1050. Although Martinez and Garcia are not "without remedy," Marbury, 5 U.S. (1 Cranch) at 164; see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395-96, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), they are not entitled to the particular remedy they seek here.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
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—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
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—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
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—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
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—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)