Decided: June 16, 2015
The Fourth Circuit denied the petition for review.
This case stemmed from an original notice to appear to Maria Yanez-Marquez (“Yanez”) an alleged illegal immigrant who was summoned to a removal hearing to determine if she should remain in the country. At the hearing, Yanez moved to suppress evidence gained during a raid in which she claimed her Fourth Amendment rights were egregiously violated, her Fifth Amendment rights were violated, and Immigration and Customs Enforcement (“ICE”) agents failed to follow five federal regulations, relying on INS v. Lopez-Mendoza, a case that permitted the exclusionary rule in a civil removal proceeding where Fourth Amendment violations “were either widespread or egregious.” The Department of Homeland Security (“DHS”) argued that the exclusionary rule did not apply, and alternatively, that even if it did apply, Yanez failed to set forth a prima facie case, and that the ICE agents did not violate any regulations, and any violations were insufficient to require suppression. The Immigration Judge (“IJ”), although rejecting DHS’s argument that the exclusionary rule did not apply in removal proceedings, set forth what was required to make a prima facie case, and held that Yanez had not carried her burden, and denied the motion to suppress and to terminate. The Immigration Judge then found that the government had sustained its burden, and ordered Yanez removed from the United States, a decision that Yanez appealed to the Board of Immigration Appeals (“BIA”), who subsequently dismissed her appeal. Yanez then appealed that decision to this court.
The Fourth Circuit began by addressing the nature of its review, determining that it would review the BIA’s affirmation of the IJ’s decision as a final agency action, and would uphold it absent the decision being “manifestly contrary to the law and an abuse of discretion,” and then further determined the burdens of proof.
The Fourth Circuit then turned to the primary question of whether the ICE agents’ conduct violated the Fourth Amendment, and whether the exclusionary rule could apply in a civil removal action. This was followed by an extensive and in-depth examination of the Fourth Amendment doctrines and Rule 41 of the Federal Rules of Criminal Procedure. This included an in-depth discussion of the Lopez-Mendoza case that Yanez primarily relied upon in her appeals, and the court concluded that the exclusionary rule, although a remedy that could be available at a civil removal hearing, should nonetheless be used sparingly in order to prevent complicating the “simple” and “streamlined” deportation system. The Fourth Circuit held that the exclusionary rule could be used in cases where there were “egregious violations of the Fourth Amendment.” This meant that immigrants attempting to use the exclusionary rule had to satisfy a two-prong test: (1) whether the facts allege a violation of their Fourth Amendment rights, and (2) whether the facts allege that the violation was egregious. The court then examined the definition of what constituted an egregious violation, examining a variety of cases that had decided what constituted egregious. Although there are two circumstances in which evidence should be excluded, on the basis that its probative value is undermined by the activities of government agents or that the actions of government agents transgressed notions of fundamental fairness, the court concluded that in this case, only the fundamental fairness prong would be appropriate. To decide what violations transgressed notions of fundamental fairness, the court looked to the Ninth Circuit’s qualified immunity doctrine on the one hand and compared it to the Second, Third, and Eighth Circuits’ totality of the circumstances doctrine on the other hand, concluding that it would follow the totality of the circumstances line of cases and conducted an in-depth examination of the cases in those circuits.
The court then turned to address Yanez’s claims. First, the court examined Yanez’s contentions that the warrants failed the particularity requirements because they misidentified the type of home she lived in, that the agents should have stopped searching once they realized she lived in a multi-dwelling home, and that she should have been listed on the warrant as an item to be seized. However, the court concluded that the ICE agents had conducted a reasonable investigation that was not invalidated by the description in the warrant because their belief that the house Yanez dwelled in was a single-family dwelling was reasonable, and, furthermore, that the presence of a locked bedroom was unusual enough to have caused the agents to realize the home was a multi-family dwelling. The court then looked at Yanez’s claims that the time of the execution of the warrant violated her Fourth Amendment rights, in another exhaustive examination of the Fourth Amendment as well as an examination of Rule 41 of the Federal Rules of Criminal Procedure that implemented the protection against warrantless searches. Specifically, the court looked at the time requirements that warrants are normally executed in the daytime unless there is good cause for serving a warrant at night, and focused on the Third and Tenth Circuit decisions. The court also noted that the Attorney General had similarly concluded that a “daytime warrant does not convey authority to conduct a nighttime search,” and held that a “nighttime execution of a daytime warrant violates the Fourth Amendment, absent consent or exigent circumstances,” and listed several good cause factors that could be considered. However, the Fourth Circuit also held that such a violation was a Rule 41 violation and not a constitutional violation, meaning that a violation would result in suppression “only if the party seeking suppression suffered prejudice or the government intentionally violated the rule,” choosing to follow the reasoning from the Third and Tenth Circuits and the Supreme Court, and choosing not to follow the Second, Sixth, and Eighth Circuits. In applying this holding to Yanez’s case, the court found that the ICE agents had a daytime warrant that expressly rejected a nighttime search and that the agents violated that requirement, a violation that would be construed against the ICE agents. Although the court determined that the agents did indeed violate Yanez’s Fourth Amendment rights, an examination of whether that violation was egregious led the court to conclude that, despite the fact that the violation occurred in her home and during the night, the totality of the circumstances did not end in an egregious violation. Specifically, the court found that because the officers had a valid search warrant and no excessive force was used, determined by using the Fourth Amendment’s “reasonableness” standard, the violation did not rise to the level of egregiousness.
The Fourth Circuit then examined whether or not Yanez’s statements were involuntary and therefore used against her in violation of her rights under the Fifth Amendment. The court quickly disposed of this issue, however, and found that there was no evidence of involuntariness, and rejected her reliance on the Second Circuit case Singh v. Mukasey.
Finally, the Fourth Circuit examined Yanez’s claims that the ICE agents failed to follow five regulations, but again, quickly disposed of those arguments, and denied Yanez’s petition for review.
Jennie Rischbieter