STATEMENT OF THE CASE
On June 3, 2006, Paola Cruz-Sanchez, while pulled to the side of the road
speaking on her cell phone, was approached by a police officer and, after a brief
encounter during which the officer became suspicious of Cruz-Sanchez’s nervousness
and Mexican accent, was directed to vacate the automobile she had been driving. (J.A.
8–10, ¶¶ 6–14.) Officer Gomez, the detaining officer, proceeded to search the vehicle in
violation of the Fourth Amendment. (J.A. 9–10, 18 ¶¶ 14–16.)
Twelve years prior to this search and seizure, Cruz-Sanchez migrated to America
from Mexico as a seasonal migrant worker. (J.A. 8, ¶ 2.) Following the expiration of her
work visa, Cruz-Sanchez continued to reside and work in Ames and its surrounding
states. (J.A. 8, ¶ 2.) Although in 2002, Cruz-Sanchez briefly returned to Mexico
following her deportation for a drug crime (J.A. 8, ¶ 3.), she returned to this country in
2004 and has since resided as an undocumented alien with her partner, Luis Costa-Varga,
and their daughter, both of whom are American citizens. (J.A. 8, ¶ 5.) She is presently
employed as a housekeeper in a private residence. (J.A. 8, ¶ 5.)
Five days prior to Officer Gomez’s unconstitutional search and seizure, CostaVarga had rented a car from Zippy Rent-a-Car. (J.A. 10, ¶ 18.) Although Cruz-Sanchez
had not received explicit permission from her partner to drive this car on June 3 (J.A. 19),
and the rental agreement specified that only Costa-Varga had contractual authorization to
drive the vehicle (J.A. 21–23), Cruz-Sanchez obtained the keys to the car from the
kitchen table of her and Costa-Varga’s home. (J.A. 9, ¶ 8; 19.) Costa-Varga testified that
he had rented similar cars on previous occasions and had given Cruz-Sanchez permission
to drive them. (J.A. 19.)
1
While driving on Route 55 in Ames City, Cruz-Sanchez pulled to the side of the
road and was approached by Officer Gomez. (J.A. 8, ¶ 7.) Despite her confirmation that
she did not require assistance, Gomez became “a little suspicious” of Cruz-Sanchez and
asked for her license and registration. (J.A. 8–9.) Cruz-Sanchez presented Gomez with a
valid State of Ames driver’s license bearing the name “Laura Fonseca,” and a copy of the
Zippy Rent-a-Car agreement. (J.A. 9, ¶ 9.) Following a check of the license that
revealed no outstanding warrants, Officer Gomez noticed that the address was near his
home in Ames City and asked Cruz-Sanchez about particular local businesses. (J.A. 9, ¶
11.) When she was unfamiliar with certain establishments, Gomez’s suspicion, based in
part on Cruz-Sanchez’s appearance, nervousness, and Mexican accent, caused him to ask
her to exit the vehicle so that he could conduct a search. (J.A. 9–10, ¶¶ 12, 14.)
In the course of this concededly illegal seizure and search (J.A. 18), Officer
Gomez searched the glove compartment and discovered a plastic bag containing
methamphetamine and a wallet containing Cruz-Sanchez’s expired Mexican license (J.A.
10, ¶ 15). Officer Gomez then seized the license and questioned Cruz-Sanchez, securing
an admission regarding her true identity. (J.A. 10, ¶ 16.) She was arrested for possession
with intent to distribute a controlled substance and false representation of identity to a
peace officer. (J.A. 10, ¶ 17.)
Gomez brought Cruz-Sanchez to the Ames City Police Department, where Ames
police officers contacted Immigration and Customs Enforcement (ICE) agents regarding
her arrest. (J.A. 19, ¶ 19.) ICE agents arrived at the police station to question CruzSanchez after discovering her previous felony conviction and deportation. (J.A. 19, ¶
19.) These agents asked Cruz-Sanchez about her identity, nationality, and other
2
biographical information, and then directed the police to take her fingerprints and
photograph before transporting her to the city jail. (J.A. 19, ¶ 19.)
Cruz-Sanchez was charged in United States District Court for the District of
Ames with violating 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii) for possession with intent
to distribute a controlled substance, and 8 U.S.C. § 1326(a) and (b)(1) for reentering the
United States without permission after deportation. (J.A. 10, ¶ 17).
Following an evidentiary hearing (J.A. 7), the Ames District Court found that the
search and seizure were illegal because Officer Gomez did not have a reasonable
suspicion. (J.A. 12) Further, the court recognized Cruz-Sanchez’s possessory interest in
the rental car that she was driving and acknowledged her reasonable expectation of
privacy in the vehicle. (J.A. 13–14). The court granted Cruz-Sanchez’s Motion to
Suppress, holding that because the search and seizure were illegal and Cruz-Sanchez had
a reasonable expectation of privacy in the rental car, evidence of her identity had to be
suppressed as fruit of the poisonous tree. (J.A. 14–16.)
SUMMARY OF THE ARGUMENT
Appellee Paola Cruz-Sanchez asks this Court to recognize her legitimate
expectation of privacy in a rental car that she was driving with the implied permission of
the renter and to suppress all evidence obtained as a result of a concededly
unconstitutional search of that car.
Reasonable Expectation of Privacy
This Court should recognize Cruz-Sanchez’s reasonable expectation of privacy in
the rental car she was permitted to drive and should decline to apply a bright-line test
based on explicit authorization and technical licensure status. A bright-line rule that
3
makes an individual’s ability to challenge a constitutionally proscribed search depend on
private contractual obligations is inconsistent with longstanding Supreme Court
precedent directing courts to look beyond such matters to broader societal
understandings. Such a bright-line rule is particularly inappropriate considering its
disconnect from contemporary social norms, which, as illustrated by state-level trends in
insurance regulation, regard permittees of authorized drivers as legitimate drivers of
rental cars.
Instead, this Court should look to the feature that most clearly demarcates socially
acceptable use of a rental car from illegitimate and unlawful conduct: permission. Just as
the borrower of an automobile possesses a reasonable expectation of privacy,
notwithstanding her lack of ownership interest in the car, so too does the permittee of an
authorized driver of a rental car.
Even if this Court factors permission into a broader totality-of-the-circumstances
test, Cruz-Sanchez has still established that she possessed a reasonable expectation of
privacy. Several factors — notably, her ability to produce the rental agreement to a
police officer, permission to drive the vehicle, intimate relationship with the renter, and
possession of a driver’s license — demonstrate that Cruz-Sanchez maintained a
sufficiently close relationship to both the renter and the vehicle to prevail under the
totality-of-the-circumstances test.
Identity-Related Evidence
This Court should hold that there is no exception to the Fourth Amendment
exclusionary rule for identity-related evidence. The Supreme Court’s statement in
Lopez-Mendoza that the “‘body’ or identity of a defendant . . . is never itself suppressible
4
as the fruit of an unlawful arrest” referred only to the longstanding rule that a court’s
jurisdiction over a defendant does not depend on whether lawful means were employed to
bring the defendant before the court. Placing the Court’s statement in context makes it
evident that the Court did not intend to create a broad exception to the exclusionary rule.
Nor should this Court create such an exception. The Supreme Court has already
interpreted the Fourth Amendment to permit police officers to take reasonable steps to
ascertain a suspect’s identity. Moreover, an exception to the exclusionary rule for
identity-related evidence would be inconsistent with the rule’s purpose of deterring
officer misconduct. The costs and benefits of suppression are the same for identityrelated evidence as for all other evidence to which the exclusionary rule traditionally
applies.
Finally, the fingerprint and photograph evidence taken from Cruz-Sanchez
following her illegal arrest are not admissible under a “routine booking” exception to the
exclusionary rule. To fall within such an exception, the evidence would have to have
been obtained legally; however, this Court has directed the parties through its Procedural
Order to address only the admissibility of illegally obtained identity-related evidence, and
therefore the Government is barred from raising this issue on interlocutory appeal.
Further, the Government’s claim lacks merit, as the evidence in question was obtained
not through routine booking procedures, but rather as part of an active criminal
investigation of Cruz-Sanchez by federal immigration agents.
5
ARGUMENT
I.
THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S HOLDING
THAT CRUZ-SANCHEZ POSSESSED A REASONABLE EXPECTATION OF
PRIVACY IN THE RENTAL CAR.
The District Court was correct in concluding that Cruz-Sanchez had a reasonable
expectation of privacy in the rental car. Individuals are entitled to challenge a Fourth
Amendment violation if they can assert “a subjective expectation of privacy . . . that
society accepts as objectively reasonable.” California v. Greenwood, 486 U.S. 35, 39
(1988). Applying this standard, this Court should reject a bright-line rule dictating that a
driver whose name does not appear on the rental agreement and who possesses a valid
but expired license can never have a reasonable expectation of privacy in a rental car.
Such a rule misconstrues Fourth Amendment jurisprudence and fails to reflect societal
norms. Instead, this Court should adopt the permission test endorsed by the Eighth and
Ninth Circuits, as it encapsulates society’s expectations regarding the use of rental
vehicles and thus adheres to the Supreme Court’s directive in Rakas v. Illinois, 439 U.S.
128 (1978), that a reasonable expectation of privacy may be found in “understandings
that are recognized and permitted by society.” Id. at 143 n.12. If this Court does not
accept the permission test, it should adopt the Sixth Circuit’s totality-of-thecircumstances test, which also is able to reflect society’s acceptance of the borrowing of
rental cars as legitimate. Under either the permission or the totality test, the fact that
Cruz-Sanchez was driving with the permission of the renter and possessed other indicia
of ownership confirm the existence of her reasonable expectation of privacy in the car.
6
A.
The Bright-Line Rule Advocated by the Government Neither Comports
with Fourth Amendment Jurisprudence Nor Reflects Societal Expectations
and Is Therefore Inappropriate.
This Court should reject a bright-line rule that would prevent permittees of
authorized drivers of rental cars, or drivers with expired licenses, from ever possessing a
reasonable expectation of privacy in a rental car. Though bright-line rules are appropriate
when “little would be lost” by their use, Rakas, 439 U.S. at 147, much would be lost by
adopting a rule, such as that proposed by the Government, that utterly fails to track
societal expectations. See id. at 144 (rejecting a bright-line rule as “lack[ing] in fidelity
to the history and purposes of the Fourth Amendment”).
1.
Lack of Authorization in a Rental Agreement Does Not Prevent Permittees
of Authorized Drivers from Possessing a Reasonable Expectation of
Privacy.
Mere lack of formal authorization from the rental company cannot deprive an
individual of a reasonable expectation of privacy. A bright-line rule turning on
contractual authorization impermissibly emphasizes private common law rights at the
expense of societal expectations, which are the touchstone of the reasonable expectation
of privacy inquiry. See Rakas, 439 U.S. at 143 n.12. Socially accepted norms indicate
that permittees of authorized renters of rental cars are not regarded as wrongful drivers
and thus may possess reasonable expectations of privacy.
a.
The Bright-Line Rule, By Predicating Reasonable Expectations of Privacy
on Contractual Obligations, Is Inconsistent with Supreme Court Precedent.
A bright-line rule categorically refusing to recognize that a rental car driver
lacking an explicit and direct relationship with the rental agency can possess a reasonable
7
expectation of privacy contravenes the Supreme Court’s directive not to conflate private
law relationships with Fourth Amendment rights. The bright-line approach reverts back
to a long-rejected, property-focused approach to the Fourth Amendment. See Katz v.
United States, 389 U.S. 347, 353 (1967) (rejecting the premise “that property interests
control the right of the Government to search and seize”). Thus, the reasonable
expectation of privacy inquiry, while not totally divorced from questions of private law
rights, is not limited to such considerations. See Rakas, 439 U.S. at 143 n.12.
Though Rakas rejected the argument that “mere[] passengers” possess a
reasonable expectation of privacy in an automobile, 439 U.S. at 148–49, it did not
resurrect the pre-Katz framework; rather, it held that reasonable expectations of privacy
could be identified “either by reference to concepts of real or personal property law or
[by reference] to understandings that are recognized and permitted by society.” Id. at 143
n.12 (emphases added). Thus, while “lawful possess[ion] or control[]” gives rise to a
reasonable expectation of privacy, id., that concept “need not be defined narrowly.”
United States v. Thomas, 447 F.3d 1191, 1197 (9th Cir. 2006); see also Minnesota v.
Olson, 495 U.S. 91, 98 (1990) (holding that an overnight guest possessed a reasonable
expectation of privacy in the host’s home). Indeed, the Supreme Court recognizes that
“social expectations,” in addition to common law rights, guide the analysis. Minnesota v.
Carter, 525 U.S. 83, 101–02 (1998).
The test for finding a reasonable expectation of privacy cannot, therefore, be
found within the four corners of a rental agreement because such an agreement does not
necessarily reflect “understandings that are recognized and permitted by society,” Rakas,
439 U.S. at 143 n.12; at most, it represents private understandings between particular
8
contracting parties. Moreover, as Justice Holmes famously observed, a contractual
obligation is “a prediction that you must pay damages if you do not keep it — and
nothing else.” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457,
462 (1897). Given that contracts are purely private agreements that give rise to
economic, not social or moral, obligations, the Government’s assertion that the act of
driving a rental car without express authorization is “wrongful” simply “because it
violate[s] the owner’s contractual rights” (Appellant’s Br. 10) cannot succeed.
In rejecting the rule the Government proposes, other circuits have recognized that
such a bright-line test would contravene post-Katz Fourth Amendment law. See, e.g.,
United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001) (“Such a rigid test is
inappropriate, given that we must determine whether Smith had a legitimate expectation
of privacy which was reasonable.”). The Ninth Circuit expressly relied on the Supreme
Court’s rejection of the “arcane distinctions” of private property law in refusing to “base
constitutional standing entirely on a rental agreement.” Thomas, 447 F.3d at 1198–99.
Courts have acknowledged the necessity of looking beyond private agreements in
analyzing reasonable expectations of privacy in the analogous context of lease and rental
expirations. See, e.g., United States v. Owens, 782 F.2d 146, 150 (10th Cir. 1986)
(holding that a hotel guest’s “reasonable expectation of privacy continued past check-out
time”). These courts recognize that private contractual rights do not wholly capture
societal expectations. See, e.g., United States v. Henderson, 241 F.3d 638, 646–47 (9th
Cir. 2000) (holding that a driver of an overdue rental car possessed a reasonable
expectation of privacy because it was “not unusual” for renters to return cars late); United
States v. Cooper, 133 F.3d 1394, 1398–1402 (11th Cir. 1998) (same). The adoption of
9
this approach by a majority of the circuits reflects broad support for the principle that
breach of contractual obligations alone does not mean that society is not willing to
recognize a legitimate privacy interest in the breaching party. The Government’s
proposed bright-line rule, therefore, disregards Fourth Amendment jurisprudence and
attempts to resurrect a discredited doctrine.
b.
The Bright-Line Rule Does Not Account for Socially Legitimate Uses of
Rental Cars.
Society has come to recognize — and courts have come to endorse — an
expectation that the formal terms of a private agreement do not necessarily limit the
proper uses of a rental vehicle. Indeed, far from being the sort of activity society regards
as “wrongful,” Rakas, 439 U.S. at 143 n.12, the act of driving a rental car with the
permission of the authorized driver is considered both “foreseeable and inevitable.”
Allstate Ins. Co. v. Travelers Ins. Co., 370 N.Y.S.2d 675, 677 (N.Y. App. Div. 1975).
In analyzing what society considers reasonable for Fourth Amendment purposes,
the Supreme Court has looked to the laws and practices of the states. See Tennessee v.
Garner, 471 U.S. 1, 15–18 (1985) (identifying state-level trends as relevant in
determining whether society regards certain police procedures as reasonable).1 The
primary context in which states have had occasion to consider socially reasonable uses of
rental cars has been in insurance regulation, where numerous states have determined that
rental companies are required to insure the permittees of authorized drivers. See, e.g.,
1
The propriety of surveying state-level practices is unaffected by Greenwood, in which
the Supreme Court rejected reference to the “law of the particular State in which the
search occurs.” 486 U.S. at 43 (emphasis added). When, however, the practices of all
the states, viewed together, indicate that American society views an expectation of
privacy as reasonable, these practices inform the analysis that Rakas demands. Id. at 43–
44.
10
Nev. Rev. Stat. § 482.305(1) (2005) (providing that the renter of a vehicle is liable for
damages caused by “any person operating the vehicle by or with the permission of the
short-term lessee”); Metro. Prop. & Cas. Ins. Co. v. Hertz Corp., 981 P.2d 1091, 1093
(Colo. 1999) (requiring a rental car company to provide insurance for permittees of
authorized renters even though its rental agreement prohibited use of the vehicle by other
drivers). Recognizing the common usages of rental cars, courts have held that rental
companies give constructive consent to permittees of authorized drivers. See Motor
Vehicle Accident Indemnification Corp. v. Cont’l Nat’l Am. Group Co., 319 N.E.2d 182,
184 (N.Y. 1974) (refusing to disregard the “entirely too great” probability that authorized
drivers would permit others to drive their rental cars).
As state courts have faced this insurance question, they have affirmed the social
acceptability of certain uses of rental cars by the permittees of authorized drivers. See
Roth v. Old Republic Ins. Co., 269 So. 2d 3, 6 (Fla. 1972) (observing that it is “in the
very nature of modern automobile use” for individuals other than the explicitly
authorized renter to drive a rental car); Enterprise Leasing Co. v. Allstate Ins. Co., 671
A.2d 509, 515 (Md. 1996) (adopting the same reasoning).2 Courts have concluded that
an owner’s “private contract or secret agreement with the renter” cannot defeat this
societal expectation or the rights that flow from it. Shuck v. Means, 226 N.W.2d 285,
288 (Minn. 1975).
2
Although the public policy rationale for requiring rental car agencies to ensure
authorized drivers’ permittees stems from an interest in protecting innocent motorists, it
is notable that the states track social norms of permissible and wrongful driving in
determining how broadly to extend this protection: thus, while several states require that
insurance coverage extend to permittees, none requires that such coverage extend to
drivers of stolen cars. See, e.g., Sternberg v. Liberty Mut. Ins. Co., 340 N.Y.S.2d 550,
552 (N.Y. Sup. Ct. 1972) (noting the relevance of the fact that an unauthorized permittee
is a “lawful” driver in requiring coverage); see also infra § I.B.1.a.
11
Notably, even those courts that have not embraced this approach to insurance law
have not disputed the underlying premise that society expects the permittees of
authorized drivers to drive rental cars; these courts merely contend that general social
norms should have no bearing on private contractual relationships. See, e.g., Travelers
Ins. Co. v. Budget Rent-A-Car Sys., Inc., 901 F.2d 765, 768 (9th Cir. 1990). Yet
regardless of whether it is appropriate policy to import a social norm into contract law,
the approaches states have taken to solving this particular problem manifest an awareness
that a social norm accepting that the permittees of authorized drivers will drive rental cars
does indeed exist.
2.
The Status of Cruz-Sanchez’s Driver’s License Is Irrelevant to Her
Expectation of Privacy in the Vehicle.
Committing a moving violation does not deprive a driver of her reasonable
expectation of privacy.3 In Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court
held that a driver possessed a reasonable expectation of privacy in an automobile
notwithstanding that he was in violation of a Delaware law criminalizing driving under
the influence of drugs and was thus unlawfully operating a motor vehicle. Id. at 650,
662–63; see Del. Code Ann. tit. 21, § 4177 (1975); see also Whren v. United States, 517
U.S. 806, 810 (1996) (holding that a motorist stopped for speeding retains a legitimate
privacy interest in his vehicle). The Eighth Circuit adhered to this precedent in the rental
car context, concluding in United States v. Best, 135 F.3d 1223 (8th Cir. 1998), that
The government’s contention that “a valid license is necessary to legitimize an
expectation of privacy because it is a prerequisite to authorization by contract”
(Appellant’s Br. 11) runs afoul of Rakas by attempting to craft a “reasonable expectation
of privacy” rule based solely on private contractual obligations. See supra § I.A.1.a.
3
12
permission was the sole determinant of the defendant’s reasonable expectation of privacy
even when his license was suspended. Id. at 1224–25.
Indeed, the central premise motivating the Government’s argument, that illegal
activity defeats one’s expectation of privacy, is inconsistent with Fourth Amendment
precedent. See Kyllo v. United States, 533 U.S. 27, 29–30, 40 (2001) (defendant’s use of
his home for unlawful purposes was irrelevant to whether he maintained a reasonable
expectation of privacy); United States v. Fields, 113 F.3d 313, 321 (2d Cir. 1997)
(rejecting the argument that the “illegal nature of [defendant’s] activities made any
expectation of privacy regarding the premises unreasonable”). Thus, the fact that CruzSanchez was guilty of a minor infraction did not diminish her legitimate expectation of
privacy in the vehicle.
B.
This Court Should Hold That Cruz-Sanchez Possessed a Reasonable
Expectation of Privacy in the Rental Car She Was Permitted to Drive.
Instead of prohibiting Cruz-Sanchez from challenging an unlawful search on the
basis of a discarded interpretation of Fourth Amendment rights, this Court should find
that Cruz-Sanchez, a driver acting pursuant to implicit permission from an authorized
renter, possessed a legitimate expectation of privacy in the rental car she was driving.
Unlike the Government’s bright-line rule, both the permission test and the totality-of-thecircumstances test would allow this Court to consider social expectations that
demonstrate an individual’s reasonable expectation of privacy. This Court should adopt
the permission test, which tracks social norms by identifying permission as the dividing
line between legitimate and illegitimate possession of a vehicle. Under either the
permission test or the totality-of-the-circumstances test, however, this Court should
13
conclude that society regards as reasonable Cruz-Sanchez’s expectations of privacy in the
rental vehicle.
1.
This Court Should Adopt the Permission Test, Under Which CruzSanchez Had a Reasonable Expectation of Privacy.
Permission delineates the boundary of legitimate control and possession of
automobiles and tracks social norms regarding the reasonable use of a rental car. It is
therefore appropriate to treat the presence or absence of permission as dispositive of
whether a driver of a rental car lacking formal authorization from the company possessed
a reasonable expectation of privacy. Because Cruz-Sanchez had an intimate relationship
with the renter and a history of sharing rental cars with him, she had implicit permission
to use the vehicle, which is sufficient to find an expectation of privacy under the
permission test.
a.
The Permission Test Best Tracks the Societal Understandings that Give
Rise to a Reasonable Expectation of Privacy.
A permission test, under which a permittee of a rental car driver is deemed to
have a reasonable expectation of privacy, is the analysis that most accurately tracks
societal norms regarding cars in general and rental cars in particular. See Thomas, 447
F.3d at 1197, 1199; Best, 135 F.3d at 1225. Numerous courts have embraced permission
as the crucial factor in finding a reasonable expectation of privacy in a borrowed car.
See, e.g., United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990); United
States v. Griffin, 729 F.2d 475, 483 n.11 (7th Cir. 1984); United States v. Williams, 714
F.2d 777, 779 n.1 (8th Cir. 1983). By permitting an individual to drive, the authorized
driver imparts on her the indicia of ownership that society regards as legitimating an
14
expectation of privacy. See Thomas, 447 F.3d at 1199. Significantly, this legitimacy
does not turn on whether permission is attained directly from the legal owner of the
vehicle. United States v. Valdez Hocker, 333 F.3d 1206, 1210 (10th Cir. 2003) (holding
that a driver had a reasonable expectation of privacy in a borrowed vehicle when the
person who permitted him to use it had rightfully borrowed it from the registered owner).
A permittee of a renter similarly gains possession of the vehicle in a lawful
manner. Nationwide regulatory trends in the insurance context, see supra § I.A.1.b,
confirm that society considers permission the key determinant of whether an individual
possesses a car legitimately: permittees of authorized drivers often receive protection,
whereas car thieves do not. See Nev. Rev. Stat. § 482.305(1) (requiring coverage of
drivers with the “permission” of the lessee); State Farm Mut. Auto. Ins. Co. v. Budget
Rent-A-Car Sys., Inc., 359 N.W.2d 673, 676 (Minn. Ct. App. 1984) (requiring coverage
of an authorized driver’s permittee where the subsequent use of the car fell “short of
actual conversion or theft”). Notwithstanding the private contractual consequences of an
authorized renter’s permittee driving a car, such use is not publicly regarded as unlawful.
See Ins. Co. of N. Am. v. Aetna Life & Cas. Co., 362 S.E.2d 836, 840 (N.C. App. 1987)
(“A person may be in lawful possession of an automobile if he is given possession by
someone using the automobile with the express permission of the owner, even though the
permission granted by the owner did not include the authority to permit others to operate
the automobile.”). If the possessory interest of an authorized driver’s permittee is
marred, it is only due to a technical violation of a rental agreement, which does not
diminish one’s reasonable expectation of privacy in the vehicle. See Thomas, 447 F.3d at
1198; see also Henderson, 241 F.3d at 647 (holding that the lessee of a rental car retains a
15
reasonable expectation of privacy in the vehicle even after the lease period expires). In
light of these social norms, the permission test accurately identifies situations in which
rental car drivers possess a reasonable expectation of privacy.4
Contrary to the Government’s assertion, the permission test for rental car drivers
does not attempt to revive the pre-Rakas “legitimately on the premises” test. (Appellant’s
Br. 14.) Rakas’s rejection of that test did not turn on permission; rather, the relevant
distinction concerned control of the vehicle. The Court held that mere passengers lacked
the requisite control over a vehicle to possess a reasonable expectation of privacy. 439
U.S. at 143 n.12; cf. Olson, 495 U.S. at 99 (noting the importance, in finding a reasonable
expectation of privacy, of the fact that an overnight guest has “a measure of control over
the premises”). The driver of a vehicle, however, necessarily possesses the degree of
control that, coupled with permission, gives rise to a legitimate expectation of privacy.
b.
Cruz-Sanchez Had Implied Permission to Drive the Rental Car, Which Is
Sufficient to Establish a Reasonable Expectation of Privacy Under the
Permission Test.
Cruz-Sanchez had implicit permission from her partner, Luis Costa-Varga, to
drive his rental car, which is sufficient to establish a reasonable expectation of privacy
under the permission test. See United States v. Silva, 2006 U.S. Dist. LEXIS 82276, at
*13 (D. Haw. 2006) (finding implied permission to use another’s car sufficient to
The government’s assertion that a renter-permission test would place a “nearly
impossible” evidentiary burden on the government (Appellant’s Br. 14) is meritless.
Defendants still bear the burden of proof in establishing permission, and the government
retains its usual arsenal of effective adversarial techniques, such as cross-examination, to
defeat claims of permission. See, e.g., United States v. Riazco, 91 F.3d 752, 754 & n.3
(5th Cir. 1996). Moreover, the government fails to clarify how its fear that “an
unauthorized driver [would] conspire with a renter in claiming permission” (Appellant’s
Br. 14–15) would in fact be any different from the driver simply asking for permission in
the first instance.
4
16
establish a reasonable expectation of privacy). In adopting the permission test, neither
the Eighth nor the Ninth Circuit required that permission be explicitly granted.5 The
Government’s proposed rule — that permission must be explicitly given for each instance
of use — is unfounded and overly burdensome. To adopt this position would be to
undermine the Supreme Court’s instruction that courts should consider “understandings
that are recognized and permitted by society.” Rakas, 439 U.S. at 144 n.12. It would be
unreasonable to require long-term romantic partners to conduct their everyday activities
in such a formal manner. That Cruz-Sanchez did not obtain express permission on the
morning of June 3 for that particular car trip does not mean that she was in wrongful
possession of the car. Every shared understanding between a couple need not be
explicitly articulated.
Explicitness is rarely essential to a finding of permission; courts have found
implied consent to be sufficient in a number of contexts. For example, courts have
repeatedly held that implied consent to a search meets Fourth Amendment standards.
See, e.g., United States v. Williams, 346 F.3d 796, 799 (8th Cir. 2003). Similarly, agents
often derive from principals implied authority gleaned from past practices. See, e.g.,
Restatement (Second) of Agency § 26 (1958) (stating that “authority to do an act can be
created by . . . conduct of the principal which, reasonably interpreted, causes the agent to
believe that the principal desires him so to act”). Furthermore, both tort and insurance
law adhere to the principle that permission to use an automobile may be inferred. See,
e.g., Whelchel v. Sommer, 413 F.2d 521, 524 (8th Cir. 1969) (finding that the permission
Contrary to the government’s assertion (Appellant’s Br. 15–16), Best and Thomas do
not consider whether permission must be explicit. See Best, 135 F.3d at 1225; Thomas,
447 F.3d at 1195.
5
17
required by the omnibus clause of an insurance policy could be implied from conduct);
Norskog v. Pfiel, 755 N.E.2d 1, 38–39 (Ill. 2001) (noting that, in the negligent
entrustment context, permission may be either express or implied).
The longstanding intimate relationship between Cruz-Sanchez and Costa-Varga,
coupled with their pattern of shared usage of rental cars, provides sufficient evidence that
she had implicit permission to use the vehicle. In United States v. Sanchez, 943 F.2d 110
(1st Cir. 1991), the court held that “a presumption of permission [to borrow a car] could
be drawn” if the driver had established an “intimate relationship with the car’s owner or a
history of regular use of the [vehicle].” Id. at 114. In this case, Costa-Varga testified that
he had let Cruz-Sanchez drive his rental cars on other occasions, establishing a pattern of
use that warranted her borrowing of the car. (J.A. 19) Costa-Varga stated only that he
did not “know she was going out” — he did not claim to have forbidden her from using
the car, and he said nothing that would rebut the presumption established by past practice
that her use of the car was permitted. (J.A. 19)
Cruz-Sanchez and Costa-Varga also share an intimate relationship — they live
together, are romantic partners, and have a child together — which gives rise to a further
inference of permission. Moreover, she had taken the keys from their shared home,
lending further credence to the existence of a tacit understanding of permission between
the two. (J.A.19) See Am. Family Ins. Group v. Howe, 584 F. Supp. 369, 372 (D.S.D.
1984) (finding that implied permission to use another’s car “arises upon consideration of
such factors as the past and present conduct of the insured, relationship between the
driver and the insured, and usage and practice of the parties over an extended period of
time prior to the use in question”); Talbot v. Allstate Ins. Co., 76 So. 2d 76, 82 (La. Ct.
18
App. 1954) (finding implied permission where the owner and the driver were sisters, the
sister had driven the vehicle in the past, and the keys were left at the home of the driver).
Based on this relationship between Cruz-Sanchez and Cost-Varga and their pattern of
sharing rental cars, Cruz-Sanchez had the necessary permission to establish a reasonable
expectation of privacy in the vehicle.
2.
Under the Totality-of-the-Circumstances Test, Cruz-Sanchez Had a
Reasonable Expectation of Privacy.
If this Court does not adopt the permission test, it should follow the Sixth Circuit
in adopting a totality-of-the-circumstances test, see Smith, 263 F.3d 571, 586, and
conclude that Cruz-Sanchez possessed a reasonable expectation of privacy in the rental
car. Smith recognized that “a rigid test is inappropriate” and concluded that when a
driver shares sufficient connections with the renter and the vehicle, the driver becomes a
“de facto renter” who possesses a reasonable expectation of privacy. Id. The
circumstances in this case demonstrate that Cruz-Sanchez, like Smith, was a de facto
renter entitled to an expectation of privacy.
a.
Applying the Factors Set Out In Smith Demonstrates that Cruz-Sanchez
Had a Reasonable Expectation of Privacy.
Under the totality-of-the-circumstances test, Cruz-Sanchez possessed an
expectation of privacy in the vehicle that society regards as reasonable. Smith, without
placing dispositive weight on any single factor, found that a driver not listed on the rental
agreement possessed a reasonable expectation of privacy where he presented the rental
agreement to the police; his wife, the renter, gave him permission to drive the car; he was
intimately related to the renter, and not an “unrelated third party”; he was a licensed
19
driver; and finally, he had a business relationship with the rental company that rendered
his “relationships to the vehicle and its authorized driver” not attenuated. Smith, 263
U.S. at 586. Considered together, these factors demonstrate Cruz-Sanchez’s reasonable
expectation of privacy.
Like Smith, Cruz-Sanchez was able to produce the rental agreement for a police
officer. (J.A. 9, ¶ 9.) While the Government seeks to minimize the importance of this
factor, the Smith court found it compelling evidence of the legitimate connection between
renter and driver — a connection that was absent in cases in which no reasonable
expectation of privacy existed. See Smith, 263 F.3d at 586. Also like Smith, CruzSanchez received permission from the renter of the car, see supra § I.B.1.b, a person with
whom she shared an intimate relationship. Although the Government asks this Court to
place dispositive weight on the formality of the relationship between the renter and her
permittee, the Smith court actually stressed the closeness of the relationship in that case,
contrasting it with cases where the renter was an “‘unrelated third party,’ about whom the
driver could provide little or no information.” Smith, 263 F.3d at 586. Both law and
society recognize that intimate relationships exist outside the context of marriage, see,
e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003); Cruz-Sanchez and Costa-Varga, who
share a home and raise a daughter together, have such a relationship (J.A. 8, ¶¶ 4–5.)
Cruz-Sanchez is also a licensed driver,6 a fact that enhances her reasonable
expectation of privacy in the rental car under the Smith test. The Government is incorrect
Cruz-Sanchez’s Mexican driver’s license entitles her to drive in the United States. See
Convention on Inter-American Automotive Traffic art. VI, opened for signature Dec. 15,
1943, 61 Stat. 1129. Individual states are required to comply with U.S. obligations to
accept foreign drivers, see Missouri v Holland, 252 U.S. 416 (1920), and have recognized
the validity of Mexican driver’s licenses. See, e.g., 37 Tex. Admin. Code § 15.91 (2006)
6
20
in assuming that the expired status of Cruz-Sanchez’s license nullifies its weight in the
totality-of-the-circumstances test. The Sixth Circuit, in describing Smith simply as a
“licensed driver,” did not elaborate a definition of “licensed” and contrasted Smith only
with three drivers with suspended licenses. Id. at 586 (citing Best, 135 F.3d at 1224;
United States v. Frederickson, 1990 U.S. App. LEXIS 18622, at *4 (6th Cir. 1990);
United States v. Pino, 855 F.2d 357, 360 (6th Cir. 1988)). State automobile law has
consistently recognized the substantial differences between an expired license and a
suspended or revoked one. Compare Conn. Gen. Stat. § 14-215 (2006) (providing for
prison time for a first offense of driving with a suspended license) with id. § 14-41
(referring to id. § 14-36) (providing for a small fine for a first offense of driving with an
expired license); see also People v. Davis, 2001 Cal. App. Unpub. LEXIS 1007, at *31
(Cal. Ct. App. 2001) (noting similar disparities in California’s Vehicle Code).
Suspension is an affirmative governmental act performed in response to infractions
demonstrating untrustworthiness on the road, see, e.g., Conn. Gen. Stat. § 14-111,
whereas expiration reflects merely an omission on the part of the driver to perform a
routine administrative task. Cf. Mayer v. Laniri, 712 So. 2d 533, 534 (La. Ct. App. 1998)
(holding that a driver with an expired license does not qualify as an “unlicensed driver”).
Thus, Cruz-Sanchez’s possession of a valid, non-suspended driver’s license — a
testament to her driving capabilities — weighs in her favor under the totality-of-thecircumstances test.
Given the support these four factors provide for finding a reasonable expectation
of privacy, Cruz-Sanchez’s lack of a direct business relationship with the rental car
(stating that reciprocal driving privileges extend to drivers who hold a “driver’s permit
(license) issued by a contracting country or state,” including Mexico).
21
company does not shift the balance of the evidence against her. The Government’s
argument to the contrary ignores the underlying purpose the court ascribed to this factor:
to ensure that the driver’s “relationships to the vehicle and its authorized driver [are] not
‘attenuated.’” Smith, 263 F.3d at 586. Indeed, the Smith court demonstrated the
relevance of the business relationship factor by illustrating how the factor distinguished
Smith from defendants in other cases whose lack of connection to the initial renter
defeated their claims to privacy. See id. at 586–87. Confirming this reading of the
totality-of-the-circumstances test, one district court interpreted Smith as placing “special
emphasis on the defendant’s ‘intimate relationship’” with the renter, and thus found that
the defendant had a reasonable expectation of privacy despite having no direct dealings
with the rental company. United States v. Holloway, No. 05-80659, 2006 WL 2946788,
at *2 (E.D. Mich. 2006). Thus, although Cruz-Sanchez lacked direct business dealings
with the rental company, her ability to produce the rental agreement, her intimate
relationship with the renter, her implied permission to use the vehicle, and her status as a
legitimate driver demonstrate an ample connection to both the renter and the vehicle such
that, under the Smith totality-of-the-circumstances test, Cruz-Sanchez had a reasonable
expectation of privacy in the vehicle.
b.
Cruz-Sanchez’s Status as a Previously Deported Undocumented Alien
Does Not Diminish Her Reasonable Expectation of Privacy Under the
Totality-of-the-Circumstances Test.
Cruz-Sanchez’s previous deportation does not reduce the legitimate expectation
of privacy she presently possesses. Although the Government attempts to analogize
Cruz-Sanchez’s position to that of a probationer whose expectation of privacy is
diminished by virtue of being on a “continuum of punishment,” United States v. Knights,
22
534 U.S. 112, 119 (2001), such an analogy is foreclosed by the Supreme Court’s
longstanding admonition that “deportation is not a punishment.” Fong Yue Ting v.
United States, 149 U.S. 698, 730 (1893). Though in the case of probationers and
parolees, curtailed privacy rights may comprise a continuing part of the “terms of the
punishment” (Appellant’s Br. 20), Cruz-Sanchez’s current privacy expectations are
unaffected by a one-time, non-punitive exercise of the Government’s power to exclude
aliens.
Neither does a previous criminal conviction, standing alone, permanently reduce
an individual’s legitimate expectation of privacy. In cases in which the Supreme Court
has found felons’ privacy expectations to be diminished, it has rested its holding on the
fact that the individual is still subject to ongoing punishment. See Samson v. California,
126 S. Ct. 2193, 2199 (2006) (describing parole status as an “an established variation on
imprisonment”); Knights, 534 U.S. at 119 (likening probation to “other punishments for
criminal convictions”). Furthermore, in the sole circuit court case relied on by the
Government for the proposition that status as a convicted felon reduces privacy
expectations, the court only permitted the diminution of privacy rights in a context where
punishment and incarceration were ongoing. See United States v. Conley, 453 F.3d 674,
675 (6th Cir. 2006) (upholding a DNA test required prior to defendant’s supervised
release from prison). In this case, however, Cruz-Sanchez received no punishment
contemplating such privacy intrusions (J.A. 8, ¶ 3), and thus cannot be deemed to have
23
permanently sacrificed her privacy expectations merely by virtue of her status as a past
offender.7
The Government further fails in its attempt to bootstrap Cruz-Sanchez’s status as
a former felon to her status as an undocumented alien. In United States v. VerdugoUrquidez, 494 U.S. 259 (1990), the Supreme Court declined to hold that undocumented
aliens have no Fourth Amendment rights. Id. at 272–73; see also United States v.
Guitterez, 983 F. Supp. 905, 911–16 (N.D. Cal. 1998) (concluding that Verdugo did not
justify a “dramatic modification” of the conventional view according such aliens
constitutional protections). In fact, the Verdugo Court implicitly affirmed that an
undocumented alien with a substantial connection to the United States possesses
constitutional rights. See Verdugo, 494 U.S. at 271 (citing Plyler v. Doe, 457 U.S. 202,
211–12 (1982)).8 Cruz-Sanchez, an individual who has lived in the United States for ten
of the past twelve years (J.A. 8, ¶¶ 2–3, 5) and resides with her American partner and
their daughter (J.A. 8, ¶ 4), has a substantial connection with the United States, one
which mere status as an undocumented alien is insufficient to attenuate. Although the
Government seeks to categorize Cruz-Sanchez as a “previously deported felon,” neither
status as a former felon nor status as a former deportee diminishes one’s reasonable
The government’s case is not aided by its invocation of the purported dangers of
recidivism. When the Supreme Court considers society’s law enforcement interest, it
balances this interest against an independently determined expectation of privacy. See
Knights, 534 U.S. at 592 (accounting for society’s interest in countering recidivism as
part of the governmental interest to be balanced against the defendant’s expectation of
privacy). To hold that a societal interest, however justified, counts both toward the
government’s interest and against the defendant’s reasonable expectation would amount
to impermissible double-counting foreign to Fourth Amendment jurisprudence.
8
Plyler, in which the Court held that undocumented aliens in Texas were entitled to equal
educational benefits, also rebuts the government’s claim that undocumented aliens may
be treated as if they were not in fact present in society. (Appellant’s Br. 22–23.)
7
24
expectation of privacy. There is no further reason why alienage status should
categorically undermine the significant connections Cruz-Sanchez has with the United
States and the reasonable expectations of privacy to which she is entitled.
II.
THE EXCLUSIONARY RULE PROHIBITS THE GOVERNMENT FROM
USING ILLEGALLY SEIZED EVIDENCE TO ESTABLISH IDENTITY.
There is no exception to the exclusionary rule that would permit the Government
to admit illegally obtained identity-related evidence in order to establish Cruz-Sanchez’s
guilt. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), did not create such an exception,
but rather reaffirmed a century-old doctrine that permits courts to exercise jurisdiction
over a defendant regardless of how the defendant was brought before the court. Nor
should this Court create such an exception, as the costs and benefits of suppressing
illegally seized identity-related evidence are no different than those associated with
traditional applications of the exclusionary rule. Finally, the Government’s claim that
some of the evidence the district court suppressed can be admitted under a “routine
booking” exception to the exclusionary rule is both procedurally barred and substantively
incorrect.
A.
Lopez-Mendoza’s “Never Suppressible” Language Refers to the
Jurisdiction of Courts, Not the Admissibility of Evidence.
The evidence strongly suggests that when the Supreme Court in Lopez-Mendoza
stated that the “‘body’ or identity of a defendant . . . is never itself suppressible,” 468
U.S. at 1039, it had in mind not a sweeping and novel exception to the exclusionary rule,
but a longstanding and widely accepted legal principle concerning the jurisdiction of
courts. Whereas the Government would have this Court labor to tease determinate
25
meaning out of this lone, ambiguous statement, Cruz-Sanchez asks this Court to examine
the context of the opinion in which the statement appeared, the two parallel lines of
precedent that the Court brought together in Lopez-Mendoza, and the lengthy legal
tradition in which the “never suppressible” rule stands. Cf. Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137, 160 (2002) (“‘Language of an opinion’ must be ‘read in
context’ and not ‘parsed’ like a statute.” (quoting Reiter v. Sonotone Corp., 442 U.S. 330,
341 (1979)).
1.
The Distinction Drawn by the Court Between Challenges to Jurisdiction
and Challenges to Evidence Suggests that the “Never Suppressible”
Language Should Apply Only to Jurisdictional Challenges.
The Lopez-Mendoza Court considered appeals from two deportation proceedings
that stemmed from unlawful arrests and distinguished between the claims made by each
defendant. The first defendant, Lopez-Mendoza, “objected only to the fact that he had
been summoned to a deportation hearing following an unlawful arrest.” Lopez-Mendoza,
468 U.S. at 1039–40. The Court rapidly disposed of his claim by invoking the “never
suppressible” rule, stressing that he had “entered no objection to the evidence offered
against him.” Id. (emphasis added). In contrast, the second defendant, SandovalSanchez, “objected not to his compelled presence at a deportation proceeding, but to
evidence offered at that proceeding.” Id. at 1040. The Court considered him to have “a
more substantial claim,” id., and proceeded to consider whether the exclusionary rule
should apply at all in civil deportation hearings, see id. at 1040–51. The Court’s
differential treatment of these two claims demonstrates that it intended its “never
suppressible” language to apply only to jurisdictional challenges. See United States v.
26
Olivares-Rangel, 458 F.3d 1104, 1110 (10th Cir. 2006); United States v. GuevaraMartinez, 262 F.3d 751, 753 (8th Cir. 2001).
2.
The Cases the Court Cited in Support of the “Never Suppressible” Rule
Stand for the Proposition that a Prior Unlawful Seizure Does Not Vitiate
Jurisdiction.
Because the Supreme Court relied entirely on cases dealing with personal and in
rem jurisdiction to support its statement that “body” and “identity” are not suppressible,
this Court should read that statement in light of the longstanding jurisdictional rules
embodied in those prior cases. The Court spilled more ink citing precedent in support of
the “never suppressible” language than it did explicating that language, and its decision
not to explicate its reasoning supports the conclusion that it was stating a well-established
and uncontroversial principle of law9 — a principle which is reflected in the cases upon
which it relied.
a.
The Cases the Court Cited in Direct Support of Its Statement Indicate that
It Was Merely Restating a Rule of Personal Jurisdiction.
The cases the Court cited in direct support of the rule are the best guide to its
meaning. None of these cases concern the admissibility of physical or testimonial
evidence offered to prove the defendant’s identity; instead, they all stand for the
established rule that “the power of a court to try a person for crime is not impaired by the
9
In an otherwise contentious case, none of the four dissenting opinions questioned the
validity of the “never suppressible” language, even though two of the dissenters believed
that admitting illegally obtained evidence was a per se violation of the Constitution. See
id. at 1051 (Brennan, J., dissenting); id. at 1060 (Marshall, J., dissenting). Cf. United
States v. Leon, 468 U.S. 897, 933 (1984) (Brennan, J., dissenting) (stating in a case
decided the same day as Lopez-Mendoza that “by admitting unlawfully seized evidence,
the judiciary becomes a part of what is in fact a single governmental action prohibited by
the terms of the [Fourth] Amendment.”).
27
fact that he had been brought within the court’s jurisdiction” by unlawful means. Frisbie
v. Collins, 342 U.S. 519, 522 (1952) (emphasis added), cited in Lopez-Mendoza, 468
U.S. at 1039–1040.
The Supreme Court established this rule of personal jurisdiction a century before
Lopez-Mendoza. In Ker v. Illinois, 119 U.S. 436 (1886), the Court held that the
Constitution did not prevent courts from passing judgment on a defendant who was
brought within their jurisdiction through unlawful state action. The Court explained that
“irregularities in the manner in which [a defendant is] brought into the custody of the
law” do not permit the defendant “to say that he should not be tried at all for the crime
with which he is charged.” Id. at 440; see also Mahon v. Justice, 127 U.S. 700, 708
(1887) (“The jurisdiction of the court . . . is not impaired by the manner in which the
accused is brought before it.”); cf. United States ex rel. Bilokumsky v. Tod, 263 U.S.
149, 158 (1923), cited in Lopez-Mendoza, 468 U.S. at 1039–40 (holding that an unlawful
arrest “would not necessarily invalidate later proceedings in all respects conformable to
law”).10
10
The rule the Supreme Court announced in Ker, as well as the language it used in
Lopez-Mendoza, has deep roots in the common law. Lopez-Mendoza’s reference to the
“body” of a defendant invokes a common law term of art consistently employed in the
context of jurisdiction. The writ of habeas corpus, a command to bring the body before
the court, served as a means of ensuring a particular defendant’s appearance before the
King’s courts. William F. Duker, The English Origins of the Writ of Habeas Corpus: A
Peculiar Path to Fame, 53 N.Y.U. L. Rev. 983, 983–84 (1978); see also William
Blackstone, 3 Commentaries *129–32. If the defendant could not be brought before the
King’s courts through more lenient means, a writ of habeas corpus would be issued,
requiring “the sheriff to take his body” and bring him within the court’s jurisdiction. Id.
at *319. Thus, the Court’s use of quotation marks setting off the term “body” must be
understood against this common law backdrop: a court’s jurisdiction over a defendant
required the presence of his “body” and never turned on the means used to produce it.
28
Frisbie, cited by the Lopez-Mendoza Court to support its “never suppressible”
proposition, demonstrates the continued vitality of the jurisdictional rule. In that case, the
Court held that personal jurisdiction over a criminal defendant does not depend on the
legality of the state’s methods of obtaining custody of the defendant. Id. at 522; see also
id. at 520 n.3 (citing Ker and Mahon). Similarly, Gerstein v. Pugh, 420 U.S. 103 (1975),
another case relied upon by Lopez-Mendoza, cited both Frisbie and Ker for the
“established rule that illegal arrest or detention does not void a subsequent conviction.”
Id. at 119.11
The Court’s invocation of these jurisdictional cases to dismiss Lopez-Mendoza’s
claim indicates that it was applying the well-developed law of personal jurisdiction to
uphold the authority of the Immigration Judge to adjudicate Lopez-Mendoza’s status.
This Court should therefore decline to read Lopez-Mendoza as creating a novel exception
to the exclusionary rule.
b.
The In Rem Cases Cited by the Court Lend Additional Support to the
Exclusively Jurisdictional Reading of Its “Never Suppressible” Statement.
Lopez-Mendoza drew an analogy between the rule governing the “‘body’ or
identity of a defendant” in criminal proceedings and a “similar rule” governing in rem
jurisdiction over property in forfeiture proceedings. See Lopez-Mendoza, 468 U.S. at
The Government, in ascribing significance to the Court’s statement that the “person
and identity” of the respondent are never suppressible in deportation hearings, LopezMendoza, 468 U.S. at 1043, fails to recognize that this statement was simply another
manifestation of the Ker-Frisbie jurisdictional rule. The Court relied on Matter of
Sandoval, 17 I. & N. Dec. 70 (1979), and Avila-Gallegos v. INS, 525 F.2d 666 (2d Cir.
1975). Both these cases rely, in turn, on Guzman-Flores v. INS, 496 F.2d 1245 (7th Cir.
1974), in which the Seventh Circuit, citing both Ker and Frisbie, stated that “it has long
been settled that an unlawful arrest has no effect on the power of a tribunal to try the
person so arrested,” while maintaining that “[e]vidence obtained as a result of an
unlawful arrest may be suppressed.” Id. at 1247–48.
11
29
1040. To support its analogy, the Court cited three in rem cases, all of which stand for
the proposition that “[t]he mere fact of illegal seizure, standing alone, does not immunize
the goods from forfeiture.” United States v. One Harley-Davidson Motorcycle, 508 F.2d
351, 351 (9th Cir. 1974), cited in Lopez-Mendoza, 468 U.S. at 1040. This reference
supports giving a similar, purely jurisdictional reading to the “never suppressible”
language.
The cases the Court cited held that forfeitable property that was unlawfully seized
could nonetheless “be used . . . as the basis for in rem jurisdiction.” Harley-Davidson,
508 F.2d at 351. They acknowledge, however, that permitting courts to exercise in rem
jurisdiction over illegally seized property is not in conflict with the Supreme Court’s
declaration that such property may not be used as evidence in forfeiture proceedings. See
id. at 351 (citing One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965)); see
also United States v. Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293, 296–
97 & n.6 (8th Cir. 1982), cited in Lopez-Mendoza, 468 U.S. at 1040 (upholding the
forfeiture of drug money discovered by an illegal search, but stating that “evidence
derived from [the search] . . . must be excluded at a forfeiture proceeding”).
The rule that a prior unlawful seizure does not vitiate in rem jurisdiction, like the
analogous rule with respect to personal jurisdiction, has a long pedigree that allowed the
Lopez-Mendoza court to summarily invoke it to support the “never suppressible” rule.
See United States v. One Ford Coupe, 272 U.S. 321, 325 (1926); Taylor v. United States,
44 U.S. (3 How.) 197, 205 (1845); The Caledonian, 17 U.S. (4 Wheat.) 100, 103 (1819).
That the Court in Lopez-Mendoza referenced this long-established rule of in rem
30
jurisdiction indicates that it intended to apply the comparable rule of personal jurisdiction
when it refused to suppress the defendant’s “‘body’ or identity.”
B.
Suppression of Illegally Seized Identity-Related Evidence Furthers the
Deterrent Purpose of the Exclusionary Rule.
This Court should not create an exception to the exclusionary rule for identityrelated evidence. Contrary to the Government’s suggestion, whether a particular officer’s
misconduct was “severe” as opposed to “nominally unlawful” (Appellant’s Br. 6, 27) has
no bearing on whether the exclusionary rule should apply. Further, the Supreme Court
has already addressed law enforcement’s need to identify suspects by interpreting the
Fourth Amendment to protect reasonable identity requests. The Court’s decision not to
exempt identity-related evidence from the exclusionary rule is supported by the fact that
the cost-benefit calculus associated with suppressing such evidence is the same as that for
all other types of evidence covered by the exclusionary rule.
1.
The Decision to Suppress the Illegally Seized Identity-Related Evidence
Does Not Turn on the Severity of Officer Gomez’s Misconduct.
The Government argues that the “technically illegal” detention of Cruz-Sanchez
and the full-blown search of her rental car did not constitute “misconduct grave enough to
warrant deterrence.” (Appellant’s Br. 27–28.) However, the Supreme Court does not
recognize a category of “technically illegal” Fourth Amendment violations that are not
worth deterring. Instead, it has repeatedly emphasized that the purpose of the
exclusionary rule is to deter “police misconduct” as opposed to “objectively reasonable
law enforcement activity.” United States v. Leon, 468 U.S. 897, 916, 919 (1984).
31
Moreover, the proposed inquiry is inappropriate because it would require the
judiciary to declare a category of police conduct unlawful but desirable. The
Government would have this Court condemn Officer Gomez’s behavior as
unconstitutional while simultaneously adopting an exception to the exclusionary rule
specifically designed “not [to] discourage police officers from behaving in the same way
as Officer Gomez did.” (Appellant’s Br. 28.) Such a Janus-faced rule, reproaching with
one breath and rewarding with the next, would legitimize unconstitutional behavior and
mire the judiciary in self-contradiction. No doubt recognizing these dangers, the
Supreme Court has eschewed such doctrinal incoherence in its Fourth Amendment
jurisprudence: although the Court has created numerous exceptions to the exclusionary
rule based on the rule’s occasional inability to deter police misconduct, it has never
justified one on the ground that the law should encourage the underlying constitutional
violation.
2.
Law Enforcement’s Legitimate Need to Ascertain a Suspect’s Identity
Does Not Justify Admitting Illegally Seized Identity-Related Evidence
Because the Supreme Court Already Protects Reasonable Identity
Requests.
This Court should refuse to adopt a “rule rejecting suppression of identity
evidence” that the Government claims is necessary to avoid “[e]ncumbering police
officers’ efforts to ascertain identity.” (Appellant’s Br. 30–31.) The Government’s
proposed rule ignores the doctrinal protections already extended to reasonable identity
requests. The Supreme Court has held that an officer conducting a Terry stop may
inquire into a suspect’s identity, and that a state may require the suspect to provide a
truthful answer. See Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185–88 (2004)
32
(stating that “questions concerning a suspect’s identity are a routine and accepted part of
many Terry stops”); cf. Brown v. Texas, 443 U.S. 47, 51 (1979) (holding that even a brief
detention to ascertain identity is unconstitutional when the officer does not have
“reasonable suspicion, based on objective facts, that [the individual is] involved in
criminal activity”). These rules represent the balance the Supreme Court has struck
between the law enforcement interests noted by the Government and the privacy interests
that citizens retain in their identities. See, e.g., Hiibel, 542 U.S. at 188.
Because the Supreme Court has already extended the protective cloak of Fourth
Amendment reasonableness to cover legitimate identity requests, there is no need for this
Court to shield identity-related evidence from the exclusionary rule. Whereas the
approach taken by the Supreme Court ties the admissibility of evidence to the propriety
of the officer’s conduct and thus encourages the officer to keep her investigation within
constitutional limits, the Government’s proposed rule would make admissibility depend
upon the nature of the evidence, allowing officers to obtain such evidence by whatever
means necessary.
This case illustrates the troubling implications of the Government’s proposed rule.
The Government argues that the law should distinguish “requests for identity evidence,”
which it says should be exempt from constitutional scrutiny, from “searches for physical
evidence,” which it concedes are “unacceptable intrusions on a person’s privacy absent
reasonable suspicion of wrongdoing.” (Appellant’s Br. 29–30.) The Fourth Amendment
violation in this case, however, was no mere request for identification; rather, it was a
full-blown search of Cruz-Sanchez’s car, including her glove compartment, and her
wallet. (J.A. 9–10.) Yet the Government urges this Court to admit the physical evidence
33
obtained as a result of this concededly unlawful search and seizure simply because it is
being offered to prove her identity — thus demonstrating that the Government’s approach
frustrates the deterrent purpose of the exclusionary rule.
Contrary to the Government’s assertion, the exact magnitude of defendant’s
privacy interest in her identity does not affect this analysis. The fruits of an unlawful
search, whatever they may be, are suppressible because the Fourth Amendment is
concerned with officer conduct that leads to the acquisition of evidence, not with the
nature of the evidence so acquired. For example, while no one can have a legitimate
expectation of privacy in illegal drugs or other contraband, see, e.g., Illinois v. Caballes,
543 U.S. 405, 408–09 (2005), a search that carries the possibility of invading legitimate
privacy interests — even if it uncovers only contraband — is subject to Fourth
Amendment scrutiny. See Kyllo v. United States, 533 U.S. 27, 38–40 (2001)
(suppressing illicit drugs discovered through the use of a thermal-imaging scanner on a
private residence because the scan of the home could have revealed legitimately private
information). Thus, even if Cruz-Sanchez had no reasonable expectation of privacy in
evidence of her identity, that evidence must nevertheless be suppressed to deter police
misconduct akin to the concededly unconstitutional behavior of Officer Gomez.
3.
Suppressing Identity-Related Evidence Carries the Same Costs and
Benefits as Other Applications of the Exclusionary Rule Upheld by the
Supreme Court.
The Supreme Court has consistently held that identity-related evidence obtained
through an illegal arrest is fruit of the poisonous tree and is therefore inadmissible. See
Hayes v. Florida, 470 U.S. 811, 813–15 (1985) (holding that fingerprints taken
subsequent to an illegal arrest were inadmissible fruits of an illegal detention); Davis v.
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Mississippi, 394 U.S. 721, 727 (1969) (same). The Government, however, urges this
Court to create an exception to the fruit of the poisonous tree doctrine and hold that
identity-related evidence, even when obtained through unconstitutional means, is never
suppressible. Because the deterrent benefits expected from the exclusionary rule are
greatest when the rule is applied to paradigmatic Fourth Amendment violations like the
one before this Court, and because the costs of applying the rule to identity-related
evidence are no different than those encountered in traditional applications of the
exclusionary rule, this Court should not adopt the proposed exception.12
a.
The Benefits of Suppression in This Context are at Least as Great as
Those Traditionally Associated with the Exclusionary Rule.
Applying the exclusionary rule to Cruz-Sanchez’s identity-related evidence will
produce the same deterrence benefit that is normally associated with application of the
rule. Officer Gomez’s conduct — detaining a motorist without reasonable suspicion and
searching her car without probable cause — was of a sort that reasonable police officers
should recognize as unconstitutional. Thus, his conduct was deterrable. See Leon, 468
U.S. at 919.
12
Moreover, an exception for identity-related evidence would be problematic due to the
difficulty of defining the category of evidence to which it would apply. Most evidence
offered in a criminal trial is designed to prove some fact about the defendant, but it is not
clear where the boundary lies between those facts that constitute the defendant’s core
“identity,” and those that merely describe or characterize her. The Government offers,
unhelpfully, to define identity as “information . . . that distinguishes a person.”
(Appellant’s Br. 26.) A defendant’s name and address likely fall within this definition,
but many other forms of evidence — such as fingerprints, DNA, and witness testimony
identifying the defendant as the person who committed a particular crime — would
arguably fall within the Government’s definition as well. This Court should not read
ambiguous language in Lopez-Mendoza to require such an unmanageable and ill-defined
exception to the exclusionary rule.
35
The Government suggests that suppression of identity-related evidence in illegal
reentry prosecutions will have no appreciable deterrent effect because the “opportunity
for repeat prosecution” renders suppression and dismissal a purely “symbolic” exercise.
(Appellant’s Br. 31–32.) However, the Government underestimates the obstacles to
speedy reindictment in cases like this one. To support its argument, the Government
points to United States v. Flores-Sandoval, 474 F.3d 1142 (8th Cir. 2007), in which an
alien who won dismissal of illegal reentry charges against him after the court agreed to
suppress evidence of his identity was immediately re-arrested, re-prosecuted, and
ultimately convicted. However, Flores-Sandoval was reindicted only after he
consensually provided his fingerprints and other evidence of his identity to ICE agents
subsequent to his release from prison. See id. at 1142. ICE did not rearrest him after his
release, presumably because it could not have justified the seizure of his person without
relying on the previously suppressed evidence. See United States v. Flores-Sandoval,
422 F.3d 711, 712 (8th Cir. 2005) (holding that detention of an illegal reentry suspect
“without any admissible reason to believe the person is an illegal alien” violates the
Constitution (emphasis added)). Thus, Flores-Sandoval could have benefited from the
suppression of identity-related evidence in his first trial, as it would have afforded him an
opportunity to leave the country.
The Government is also mistaken in its claim that illegal reentry differs from
other crimes in that reindictment following application of the exclusionary rule is not
barred by the Double Jeopardy Clause. In fact, double jeopardy does not prohibit
reindictment in the typical exclusionary rule case. Motions to suppress evidence are
adjudicated before trial, see Fed. R. Crim. P. 12(b)(3)(C), 12(d), and it is a settled
36
principle of constitutional law that “jeopardy ‘attaches’ when a jury has been selected and
sworn” and trial begins. Illinois v. Somerville, 410 U.S. 458, 466–67 (1973).
b.
The Costs of Suppression in This Context are No Greater Than Those
Traditionally Associated with the Exclusionary Rule.
The costs of applying the exclusionary rule here are no greater than in any other
case. The Government suggests that if this Court upholds the suppression of evidence
against Cruz-Sanchez, it will be sanctioning the “commission of an ongoing crime,” thus
increasing the cost of suppression. (Appellant’s Br. 31–32.) But contrary to the
Government’s assertions, an illegal reentrant does not commit a continuing offense by
remaining in the country after the dismissal of an indictment. “The offense of being
found in the United States [under 8 U.S.C. § 1326(a)] ends when an alien is discovered
and identified by the immigration authorities.” United States v. Hernandez, 189 F.3d
785, 791 (9th Cir. 1999). See also United States v. Estrada-Quijas, 183 F.3d 758, 761–62
(8th Cir. 1999); United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996);
United States v. Rivera-Ventura, 72 F.3d 277, 282 (2d Cir. 1995). Thus, Justice
Rehnquist’s allusion in dictum to the “commission of an ongoing crime” in LopezMendoza, 468 U.S. at 1047, has since been contradicted by each of the courts of appeals
listed above.
Further, the Government attacks the exclusionary rule’s general legitimacy by
arguing that Hudson v. Michigan, 126 S. Ct. 2159 (2006), is evidence of an “emerging
presumption” against the application of the exclusionary rule. The Government thereby
urges this Court to engage in a rewriting of Fourth Amendment jurisprudence. A better
approach, however, would be for this Court to exercise judicial restraint and apply the
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exclusionary rule as it currently exists — bearing in mind the admonition of Justice
Kennedy, who provided the fifth vote for the Hudson majority, that “the continued
operation of the exclusionary rule, as settled and defined by our precedents, is not in
doubt.” Id. at 2170 (Kennedy, J., concurring). Further, the Government argues that
because “police departments do not shoulder all the costs” of the exclusionary rule, its
application in this case will have a minimal effect on their conduct. (Appellant’s Br. 33.)
Assuming that the Government’s claim is correct, it is an argument against the
exclusionary rule in general, not against its application to identity-related evidence, and
the Supreme Court undoubtedly took it into account when crafting the exclusionary rule.
To the extent that both of these arguments amount to urging this court to ignore a halfcentury’s worth of established precedent by trivializing the exclusionary rule, they are illconsidered and this Court should reject them.
C.
Cruz-Sanchez’s Fingerprints and Photographs Are Not Admissible Under
Any Exception to the Exclusionary Rule.
The Government concedes that “the search and seizure in this case were illegal,”
(J.A. 18), yet it contends that the fingerprint and photograph evidence obtained from
Cruz-Sanchez at the police station is admissible under a “routine booking” exception to
the fruit of the poisonous tree doctrine. (Appellant’s Br. 36–40.) This argument fails
both procedurally and on the merits.
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1.
The Government’s Argument That Cruz-Sanchez’s Fingerprints and
Photographs Are Not Suppressible Because They Were Obtained Through
“Routine Booking” Is Precluded by the Procedural Order.
In order to make its argument permissible under the Procedural Order, the
Government would have to concede that the evidence in question was “illegally seized.”
Indeed, the Government would have to ask this Court to admit not fruits of the poisonous
tree, but the poisonous tree itself. However, the Government’s argument that identityrelated evidence obtained from Cruz-Sanchez at the police station is merely “fruit of the
poisonous tree” necessarily assumes that the evidence was obtained legally. See Wong
Sun v. United States, 371 U.S. 471, 488 (1963). The argument is therefore barred by this
Court’s Procedural Order, which, with respect to identity-related evidence, instructs the
parties to address “only . . . [w]hether the Government may rely on illegally seized
identity-related evidence to establish Defendant’s identity during a criminal immigration
prosecution.” (J.A. 18.) Therefore, the “routine booking” issue is not properly before
this Court, and the Court should not reach its merits.
2.
If This Court Decides to Reach the Merits of the Government’s Claim, It
Should Find that the Fingerprints and Photographs of Cruz-Sanchez Were
Not Taken During a “Routine Booking.”
Evidence obtained during a “routine booking procedure” may not be subject to
suppression. See Olivares-Rangel, 458 F.3d at 1112–13 (10th Cir. 2006). In defining
what constitutes “routine booking procedures,” courts have repeatedly stated that booking
is a “clerical procedure,” occurring soon after the suspect arrives at the police station,
which normally does not involve government agents or interrogation of the suspect.
United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983). However, courts
39
have limited the exception by holding that it does not apply “whenever evidence has been
obtained ‘by exploitation’ of the primary illegality . . . . Evidence can be obtained ‘by
exploitation’ of an unlawful detention even when the detention is not for the sole purpose
of gathering evidence.” Olivares-Rangel, 458 F.3d at 1115 (quoting Guevara-Martinez,
262 F.3d at 755).
The Government attacks this rule and denigrates at length the version of the rule
that prevents admission of fingerprint evidence obtained in “exploitation of” the illegal
arrest. (Appellant’s Br. 39 (criticizing Guevara-Martinez).) Citing Olivares-Rangel, the
Government claims that booking evidence is suppressible only if the illegal arrest was for
the “sole purpose” of obtaining identity-related evidence. (Appellant’s Br. 38.) This
argument misreads Olivares-Rangel, which stated: “Accordingly, we hold that if an
illegal arrest was purposefully exploited for the objective of obtaining fingerprints, then
the fingerprint evidence must be suppressed.” Olivares-Rangel, 458 F.3d at 1115
(emphasis added). Any suggestion that Olivares-Rangel and Guevara-Martinez employ
different “routine booking” exceptions has no basis in any case cited by the Government.
After illegally arresting Cruz-Sanchez, Officer Gomez transported her to the
Ames City Police Station, where her illegal detention was exploited by Immigration and
Customs Enforcement (ICE) agents to obtain her fingerprints and photograph. (J.A. 10.)
Investigating whether Cruz-Sanchez was an alien who had previously been deported, the
ICE agents first “interviewed Defendant further about her identity and nationality and
sought additional biographical information.” (J.A. 10.) These questions were not part of
the “booking process,” but rather sought to determine whether Cruz-Sanchez was guilty
of a crime. See United States v. Poole, 794 F.2d 462, 464–67 (9th Cir. 1986) (holding
40
that questioning by an FBI agent, although related to biographical data, was for
investigatory purposes intended to establish the suspect’s guilt, and thus was not covered
by the “routine booking” exception); see also Mata-Abundiz, 717 F.2d at 1280. The ICE
agents then “asked police to fingerprint her, and take her photograph” (J.A. at 10) in
order to gather additional evidence of Cruz-Sanchez’s culpability — a request made for
the sole purpose of identifying her as an illegal alien.
Courts have found closely analogous fact patterns not to constitute “routine
booking.” For example, in Guevara-Martinez, the court concluded that GuevaraMartinez’s fingerprints had been taken in exploitation of his illegal arrest when his
fingerprinting occurred only after INS agents had interviewed him about his nationality.
262 F.3d at 755–56; see also Flores-Sandoval, 422 F.3d at 715 (affirming the exclusion
of fingerprint evidence taken during an unconstitutional detention by ICE agents for “the
purpose of assisting [their] investigation”). Thus, contrary to the Government’s
suggestion, the ICE agents exploited the illegal detention of Cruz-Sanchez to determine
her alienage and bolster their deportation evidence, and their actions bore “little, if any,
resemblance to routine booking procedures.” Mata-Abundiz, 717 F.2d at 1280.
CONCLUSION
For the foregoing reasons, Paola Cruz-Sanchez respectfully asks this Court to
affirm the district court’s order granting her motion to suppress evidence.
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Respectfully Submitted
PAOLA CRUZ-SANCHEZ
By attorneys,
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Michael Fawcett
Date
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Kimberly Liu
Date
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Paul Mezzina
Date
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David Riskin
Date
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Laura Seaton
Date
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David Zionts
Date
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