CA8: Bad faith not enough for deportation exclusionary rule; disagreeing with CA9

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.

1. Egregiousness

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.