holding that a Fourth Amendment violation is egregious if “evidence is obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should have known is in violation of the Constitution.” (brackets, internal quotation marks, and emphases omitted)
How later courts described this case
- holding that a Fourth Amendment violation is egregious if “evidence is obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should have known is in violation of the Constitution.” (brackets, internal quotation marks, and emphases omitted)
- holding that a reasonable officer should have known his entry into a home without a warrant, consent, or exigent circumstances constituted a constitutional violation because it was committed against an “unequivocal doctrinal backdrop”
- holding that warrantless search of home without consent or exigent circumstances is egregious violation of the Fourth Amendment
- holding that a reasonable officer should have known his warrantless entry into a home was unconstitutional because it was committed against an “unequivocal doctrinal backdrop” that prohibited such conduct
Written by the judges who cited it.
The opinion
BYBEE, Circuit Judge,
concurring:
I concur fully in the majority opinion. I write separately to caution that our precedent has set us on a collision course with the Supreme Court.
In INS v. Lopez-Mendoza, Justice O’Connor, writing for a five-justice majority of the Supreme Court announced a straightforward rule: the exclusionary rule does not apply in civil deportation proceedings to suppress evidence obtained in violation of the Fourth Amendment. 468 U.S. 1032, 1046, 1050 , 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1984). After the final statement of this rule, Justice O’Connor’s opinion continued, but the fifth vote did not. Writing only for a four-justice plurality, Justice O’Connor announced, in dicta, a possible exception to the rule:
Finally, we do not deal here with egre.gious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.
Id. at 1050-51 , 104 S.Ct. 3479 (Opinion of O’Connor, J.).
In a series of three subsequent cases, we took this dicta from the portion of the opinion that was not binding and adopted an exception of our own. See Orhorhaghe v. INS, 38 F.3d 488 (9th Cir.1994); Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir.1994); Adamson v. Comm’r, 745 F.2d 541 (9th Cir.1984). The exception we adopted is, frankly, rather broad. In our circuit, the exclusionary rule must be applied in a *1020 deportation proceeding if the agents violated the Fourth Amendment and “the agents committed the violations deliberately or by conduct a reasonable officer should have known would violate the Constitution.” Orhorhaghe, 38 F.3d at 493 . If I am reading our decisions correctly, we have linked the exclusionary rule in civil cases to the qualified immunity standard: any constitutional violation for which an officer would lose immunity from suit is sufficient to trigger the exclusionary rule in a civil deportation proceeding. See Saucier v. Katz, 533 U.S. 194 , 202, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). Regardless of how we arrived at this definition of “egregious,” it is a definition of an exception that is almost certain, over time, to swallow up the rule. 1 Moreover, I suspect it is a definition which might even include the unseemly conduct of the INS agents in Lopez-Mendoza, which the Court held did not warrant applying the exclusionary rule in that petitioner’s immigration proceedings. See Lopez-Mendoza, 468 U.S. at 1036-37 , 104 S.Ct. 3479 (describing how INS agents created a chaotic mass exodus of workers from a processing plant and then positioned themselves at the plant exits to observe which fleeing workers could not speak English and which averted their eyes).
The Supreme Court determined that the high costs of the exclusionary rule rendered it too costly to apply in immigration proceedings. See Lopez-Mendoza, 468 U.S. at 1040-51 , 104 S.Ct. 3479 . I need not recite that analysis here. Suffice it to say that the exclusionary rule improves the behavior of law enforcement even as it stymies the enforcement of the law, and Americans of all sensibilities continue to debate its merits. See, e.g., Adam Liptak, American Exception: U.S. Stands Alone in Rejecting All Evidence When Police Err, N.Y. T IMES, July 19, 2008, Late Edition, at Al. Our case law appears destined to import the exclusionary rule, with all of its attendant costs, back into immigration proceedings, after the Court has taken it out. At some point, we may wish to revisit our position.
. The First and Second Circuits appear to have adopted a more stringent definition of "egregious." A mere violation — even an obvious violation — is not grounds for excluding the evidence without some additional aggravating circumstance. See Kandamar v. Gonzales, 464 F.3d 65, 71 (1st Cir.2006) (requiring "specific evidence of ... government misconduct by threats, coercion, or physical abuse" to demonstrate egregiousness); Almeida-Amaral v. Gonzales, 461 F.3d 231, 236 (2d Cir.2006) (“Lopez-Mendoza requires more than a violation to justify exclusion. It demands "egregiousness.” ... Thus, the exclusion may well be proper where the seizure itself is gross or unreasonable in addition to being without a plausible legal ground .... ” (emphasis added)).