The Sixth Circuit holds that a violation of 8 U.S.C. § 1357(a)(2) does not warrant exclusion of evidence from the arrest because there is no statutory remedy of exlusion for violation of the statute. United States v. Abdi, 463 F.3d 547 (6th Cir. September 22, 2006):
The exclusionary rule is a judicially fashioned remedy aimed at deterring constitutional violations, the application of which is appropriate when the Constitution or a statute requires it. Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2680 (2006); United States v. Caceres, 440 U.S. 741, 754-55 (1979); United States v. Giordano, 416 U.S. 505, 524 (1974) (in the absence of Fourth Amendment violation, suppression remedy depends upon provisions of the statute); United States v. Ware, 161 F.3d 414, 424-25 (6th Cir. 1998). It is well-settled that “[s]uppression of evidence . . . has always been our last resort, not our first impulse,” and the exclusionary rule is only applicable “where its remedial objectives are thought most efficaciously served.” Hudson v. Michigan, 126 S. Ct. 2159, 2163 (2006) (citation omitted).
Although exclusion is the proper remedy for some violations of the Fourth Amendment, there is no exclusionary rule generally applicable to statutory violations. Rather, the exclusionary rule is an appropriate sanction for a statutory violation only where the statute specifically provides for suppression as a remedy or the statutory violation implicates underlying constitutional rights such as the right to be free from unreasonable search and seizure. See Sanchez-Llamas, 126 S. Ct. at 2679-682 (finding that suppression is not an appropriate remedy for violation of Article 36 of the Vienna Convention); United States v. Donovan, 429 U.S. 413, 432 n.22 (1977) (denying exclusion for violation of wiretapping statute, 18 U.S.C. § 2518); Ware, 161 F.3d at 424 (6th Cir. 1998) (“statutory violations, absent underlying constitutional violations, are generally insufficient to justify imposition of the exclusionary rule”); United States v. Meriwether, 917 F.2d 955, 960 (6th Cir. 1990) (holding that government violations of the Electronic Communications Privacy Act do not warrant suppression of evidence).
The Supreme Court’s recent decision in Sanchez-Llamas, rejecting the application of the exclusionary rule to violations of the Vienna Convention, supports our holding that application of the judicially created exclusionary rule to a statutory or treaty-based violation is only appropriate in cases where: (1) the evidence arose directly out of the statutory violation and the statute or treaty itself mandates suppression, or (2) the violation implicates important Fourth or Fifth Amendment interests. 126 S. Ct. at 2680-81. See also United States v. Chaparro-Alcantara, 226 F.3d 616, 621-22 (7th Cir. 2000) (finding that “the rights protected by the Vienna Convention are equivalent to the rights protected by a statute because treatises and statutes have been held by the Supreme Court to be ‘on the same footing’ with each other under the Constitution” and holding “[w]e cannot attach the judicially created remedy of suppression to the Vienna Convention without some explicit support from the treaty itself”). Accordingly, to hold that suppression is the necessary consequence for failure to obtain an administrative warrant or satisfy the exceptions to the warrant requirement under 8 U.S.C. § 1357(a)(2), we must find the suppression remedy in the text of the statute.
Immigration agents are permitted, by statute, to make warrantless arrests under certain circumstances. n12 However, it is clear that nothing in the text of 8 U.S.C. § 1357 provides an independent statutory remedy of suppression for failing to obtain an administrative warrant. Accordingly, we find that the district court erred in reading such a remedy into the statute. Meriwether, 917 F.2d at 960; Chaparro-Alcantara, 226 F.3d at 622. Because the statute authorizing ICE agents to arrest persons for immigration violations, like the Vienna Convention, by its terms, does not require the application of the exclusionary rule to violations of the statute, we hold that the district court erred in suppressing Abdi’s statements and the derivative evidence based on the Government’s failure to comply with the statute.
Also, while government can appeal orders suppressing evidence, the defendant cannot cross-appeal orders denying suppression of other evidence. Those issues are already preserved for review after conviction. Id.
Vehicles on the curtilage could be searched under a warrant for the property and vehicles on it. United States v. Sykes, 2006 U.S. Dist. LEXIS 67461 (W.D. N.Y. September 20, 2006).
Smell of marijuana alone is PC. United States v. Nelson, 2006 U.S. Dist. LEXIS 67793 (E.D. Pa. September 19, 2006):
Every other circuit to have considered the issue has held that the smell of marijuana alone provides probable cause for a search. See Humphries at 658; United States v. Foster, 376 F.3d 577, 588 (6th Cir. 2004) (smell of marijuana provides probable cause to search a vehicle without a search warrant); United States v. Wimbush, 337 F.3d 947, 951 (7th Cir. 2003) (same); United States v. Winters, 221 F.3d 1039, 1042 (8th Cir. 2000) (same); United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989) (same); United States v. Barron, 472 F.2d 1215 (9th Cir. 1973) (same); cf. United States v. Parker, 72 F.3d 1444, 1450-51 (10th Cir. 1995) (smell of marijuana provides probable cause to search the passenger compartment of a vehicle).
Reminder: While this is the federal consensus, and that of many states, it does not mean that a state court will not hold differently.
