                                                                       FILED
                                                                United States Court of
                UNITED STATES COURT OF APPEALS                      Appeals
                                                                    Tenth Circuit
                       FOR THE TENTH CIRCUIT
                                                                   June 25, 2015

                                                               Elisabeth A. Shumaker
UNITED STATES OF AMERICA,                                          Clerk of Court

       Plaintiff - Appellant,

v.                                                  No. 14-1244
                                         (D.C. No. 1:13-CR-00379-WJM-1)
ULISES ARGUETA-MEJIA,                              (D. Colorado)

       Defendant - Appellee.


                        ORDER AND JUDGMENT *


Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.



      This appeal concerns application of the exclusionary rule to evidence

flowing from a traffic stop. The stop was made when Officer Martin

Tritschler allegedly saw Mr. Ulises Argueta-Mejia turn left without

signaling. During the stop, the officer learned that Mr. Argueta-Mejia was

an alien who had previously been removed to another country. With this

information, the officer arrested Mr. Argueta-Mejia. After the arrest, an

immigration agent fingerprinted Mr. Argueta-Mejia and used those

fingerprints to obtain his immigration record. With the benefit of the

*
      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But, the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
immigration record, authorities charged Mr. Argueta-Mejia with illegal

reentry into the United States. See 8 U.S.C. § 1326(a) (2012).

     Claiming the arrest was unlawful, Mr. Argueta-Mejia successfully

moved to suppress evidence of post-arrest statements and identifying

information. The government appeals, and we must address two issues:

     1.    Obviousness of Probable Cause. The first issue involves the
           obviousness of probable cause on a charge of illegal reentry
           into the United States. The defendant insists this argument was
           waived, and the government urges application of the plain-error
           standard. For the sake of argument, we can assume that the
           plain-error standard applies, as the government urges. Under
           this standard, we ask: Did the district court commit an obvious
           error by overlooking the existence of probable cause for illegal
           reentry into the United States? We conclude that if the district
           court erred, the error would not have been obvious because (a)
           there was no evidence regarding one element of illegal reentry
           (the absence of permission to lawfully reenter the country) and
           (b) we lack precedent on the existence of probable cause in
           these circumstances.

     2.    Application of the Exclusionary Rule. When a defendant is
           illegally seized, a court must suppress evidence resulting from
           that seizure (the “fruit of the poisonous tree”). To avoid
           suppression, the government had to show that the fingerprints
           were taken solely because of routine booking procedures;
           suppression was necessary if the fingerprints had been taken at
           least in part to aid the government’s investigation. Thus, we
           ask: Did the government show that Mr. Argueta-Mejia’s
           fingerprints were taken solely because of a routine booking
           procedure? We conclude that the government did not satisfy its
           burden of proof.

I.   The Suppression of Evidence and the Appeal

     In district court, Mr. Argueta-Mejia moved to suppress all evidence

of post-arrest statements and identifying information (including the


                                    -2-
fingerprints and immigration record). Appellant’s App. at 8–14, 29–35. In

this motion, Mr. Argueta-Mejia alleged violation of the Fourth Amendment

on the ground that Officer Tritschler lacked a legal basis for the traffic

stop and arrest. Id. at 10, 77–81.

      Before starting the hearing on the motion to suppress, the court

conducted a status conference. There the government identified two issues,

one of which was whether the police officer could make an arrest on a

federal charge. Id. at 120. 1 Defense counsel identified three issues from his

perspective. The second of these issues involved probable cause 2:

            The second is, assuming that the initial stop was lawful,
      that there was a turn signal violation that justified the stop,
      then the continued detention in this case was based upon a note
      in the NCIC that says that Mr. Argueta-Mejia has
      immigration―I can’t remember exactly, but something along
      the lines of: Previously deported alien. Contact us.

             So the question then becomes―I am phrasing it maybe a
      little bit differently, but, one, yes, can a state officer arrest
      somebody based upon an NCIC note that he’s previously
      deported. And even if a state officer could arrest on a sole
      federal offense, did he have probable cause at that point to
      believe that some federal offense was being committed?
      Obviously just because you are previously deported in the past
      doesn’t necessarily mean that you are not lawfully present now.




1
      The other issue was the validity of the stop. Appellant’s App. at 120.
2
      The other two issues involved the validity of the stop and the
applicability of the exclusionary rule. Appellant’s App. at 120-21.

                                     -3-
Id. at 121. 3

      Because the government lacked a warrant, the district court correctly

placed the burden on the government to demonstrate that Officer Tritschler

had acted lawfully. Id. at 92; see United States v. Maestas, 2 F.3d 1485,

1491 (10th Cir. 1993). Attempting to meet this burden, the government

argued that the arrest was lawful under federal immigration statutes

because Officer Tritschler had acted in cooperation with federal

immigration officials and had complied with the statutory procedures.

Appellant’s App. at 40–44; see 8 U.S.C. § 1357(g)(10) (2012). But the

government never challenged Mr. Argueta-Mejia’s argument about the

absence of probable cause.

      The district court declined to address the issue of probable cause.

Instead, the court granted the motion to suppress based on Officer

Tritschler’s failure to comply with the statutory procedures governing

immigration officials.


3
      The defendant’s written motion to suppress did not expressly refer to
the absence of probable case. But the government did not object to defense
counsel’s identification of the probable cause issue, and the Federal Rules
of Criminal Procedure would have allowed defense counsel to orally
supplement the motion to suppress at the status conference. See United
States v. Gonzales-Rodriguez, 621 F.3d 354, 368 (5th Cir. 2010) (“The
Federal Rules of Criminal Procedure permit oral . . . pretrial motions.”);
United States v. Perez, 603 F.3d 44, 49 (D.C. Cir. 2010) (“[T]he [Federal
Rules of Criminal Procedure] treat oral and written motions the same.”);
see also United States v. Navarro Viayra, 365 F.3d 790, 792 (9th Cir.
2004) (stating that Fed. R. Crim. P. 47 clearly allows oral motions “even
outside the context of a trial or hearing”).
                                     -4-
      On appeal, the government contends the arrest was constitutional

because Officer Tritschler had probable cause to believe Mr. Argueta-

Mejia was committing the crime of illegal reentry.

II.   Probable Cause: The Absence of an Obvious Error

      The defendant argues that the government waived its present

argument on probable cause; the government insists on the plain-error

standard of review. For the sake of argument, we can assume that the issue

was not waived. Even if the government did not waive the argument,

however, we would decline to find plain error. 4




4
       In United States v. Martinez, 643 F.3d 1292, 1293 (10th Cir. 2011),
the government appealed a district court’s suppression order arising from
law enforcement’s unlawful entry. On appeal, the government made a new
argument to justify law enforcement’s entry into the defendant’s home.
Martinez, 643 F.3d at 1298. We declined to entertain the government’s new
argument, stating: “We will not consider a suppression argument raised for
the first time on appeal absent a showing of good cause for why it was not
raised before the trial court.” Id.

      Mr. Argueta-Mejia relies on Martinez, arguing that the government
waived its present argument on probable cause. The government contends
that Martinez simply “assumed” the existence of a waiver. But the
government acknowledged in oral argument that the so-called “assumption”
in Martinez was “not really academic” because it had “consequences” to
the decision. Oral Arg. at 2:18-2:51. We need not assess the government’s
parsing of Martinez or decide whether the government waived its newly
asserted argument on probable cause. Even if we were to apply the plain-
error standard (as the government urges) rather than deem the
government’s new argument waived (as the defendant urges), the existence
of probable cause would not have been sufficiently obvious to merit
reversal.
                                    -5-
      A.      The Necessity of an Obvious Error

      For plain error, the error must be “clear and obvious under current

law.” United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003)

(quoting United States v. Fabiano, 169 F.3d 1299, 1302–03 (10th Cir.

1999)). If the district court had erred, the error would not have been clear

or obvious.

      B.      The Absence of an Obvious Error

      The district court concluded that (1) Officer Tritschler had failed to

comply with 8 U.S.C. § 1357(g) (2012) and (2) the government had not met

its burden to demonstrate another lawful reason for the arrest. Appellant’s

App. at 106–07. In challenging the first conclusion, the government

contends that Officer Tritschler did not need to comply with § 1357(g)

because it applies only when state officers are performing “immigration

officer functions.” 8 U.S.C. § 1357(g) (2012).

      We agree. The federal constitution allows a state law enforcement

officer to make an arrest for any crime, including federal immigration

offenses. See United States v. Santana-Garcia, 264 F.3d 1188, 1193–94

(10th Cir. 2001) (in the absence of contrary state or local laws, state law

enforcement officers can make arrests for violation of federal immigration

laws). As a result, we must decide whether probable cause would have been

obvious for an arrest on federal charges.



                                     -6-
      Probable cause exists when the officer has reasonably trustworthy

information that would warrant a prudent person’s belief that the defendant

was committing a criminal offense. United States v. Rodriguez, 739 F.3d

481, 485 n.2 (10th Cir. 2013). The parties disagree about the application of

this standard to the crime of illegal reentry (8 U.S.C. § 1326(a)).

      This crime is committed when

           an alien,

           previously removed from the United States,

           is later found in the United States

           without permission to reenter.

8 U.S.C. § 1326(a) (2012).

      We need not decide whether Officer Tritschler had probable cause.

See p. 10 n.9, below. Even if he did, the district court’s error would have

constituted plain error only if the existence of probable cause had been

obvious. Probable cause would not have been obvious because

           there was no evidence on the fourth element of illegal reentry
            and

           we have no precedents addressing the existence of probable
            cause when evidence exists on some but not all of the elements
            of an offense.

      Officer Tritschler had only a report

           stating that Mr. Argueta-Mejia was a felon who had previously
            been deported and


                                     -7-
           containing an unexplained notation of “FUG.” 5

Appellant’s App. at 237. A reasonable jurist could conclude that this

information did not address whether Mr. Argueta-Mejia had permission to

reenter the country.

      The government’s insistence on probable cause is undermined by its

own representations to the district court. Commenting on the routine

procedure after discovery that Mr. Argueta-Mejia was a deported felon, the

government stated to the district court:

      As I understand the process, ICE is contacted, and they pull up
      information on the individual that they’re contacted about.
      Based on that information, database checks, I believe they
      determine whether or not the individual is an alien, confirm the
      removal and determine whether or not that individual has
      sought or received permission to come back to the United
      States.

      If all of that information comes back, I guess affirmative,
      whether or not the individual is an alien or whether or not he
      has been previously removed from the United States, and in the
      negative, whether he’s received permission to return, then I
      believe that individual has probable cause that the violation of
      Title 8, United States Code, Section 1326(a) has been violated.

Id. at 133–34.

      From this statement, the district court could have understood the

government to be acknowledging the absence of probable cause until

immigration officials learned whether the alien had obtained permission to

reenter. Officer Tritschler did not receive this information until after the

5
     Officer Tritschler acknowledged that the computer entry had not
shown a warrant for Mr. Argueta-Mejia. Appellant’s App. at 176.
                                      -8-
arrest. Therefore, the government’s representation to the district court

would have clouded any finding that Officer Tritschler had probable cause

at the time of the arrest.

      The government argues that one can infer the absence of permission

to reenter based on the fact of a previous deportation. 6 That inference is

possible, but reasonable jurists could also draw the opposite inference; the

problem is that we lack any precedential decisions on probable cause

without evidence addressing permission to reenter the country. 7

      Even more generally, we lack precedential decisions on the necessity

of probable cause for each element of a suspected crime. On that issue, the


6
      In oral argument, the government argued for the first time that
permission to reenter is “not that easy to come by.” Oral Arg. at 7:01-7:33.
We reject this argument for two reasons. First, the argument is waived
because it was raised for the first time in oral argument. See United States
v. Burns, 775 F.3d 1221, 1223 n.2 (10th Cir. 2014). Second, the
government has not presented any evidence, either in district court or on
appeal, about the difficulties in obtaining permission to reenter or the
frequency in which permission is given. In the absence of such evidence,
neither our court nor the Supreme Court has ever held that a judge can rely
on the infrequency of permission for reentry into the United States. Thus,
we cannot base plain error on the government’s statement in oral argument
that permission to reenter is “not that easy to come by.”
7
      The government relies on a report (an “NCIC” alert), but has not
cited any cases regarding the effect of an NCIC alert. Instead, the
government relies on Virginia v. Moore, 553 U.S. 164 (2008). There the
Supreme Court considered whether evidence from an arrest supported by
probable cause is admissible when the arrest violated state law. Moore, 553
U.S. at 175-78. But we must determine whether the existence of probable
cause was obvious, not whether an arrest supported by probable cause
would have been lawful. Moore does not bear on the obviousness of
probable cause from the NCIC alert.
                                     -9-
circuits are divided. Compare Spiegel v. Cortese, 196 F.3d 717, 724 n.1

(7th Cir. 2000) (stating that probable cause is unnecessary on each element

of a crime), and Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir.

1994) (“[A]n officer need not have probable cause for every element of the

offense.”), with Williams v. Alexander, Ark., 772 F.3d 1307, 1312 (8th Cir.

2014) (“For probable cause to exist, there must be probable cause for all

elements of the crime.”), and United States v. Joseph, 730 F.3d 336, 342

(3d Cir. 2013) (“To make an arrest based on probable cause, the arresting

officer must have probable cause for each element of the offense.”).

Neither our court nor the Supreme Court has weighed in on this circuit

split. 8

           Without precedent on the issue, we conclude that the district court

did not commit a clear or obvious error in failing to find probable cause

without at least some evidence on Mr. Argueta-Mejia’s permission to

reenter the United States after his prior removal. 9



8
      The Supreme Court has held that “[p]robable cause does not require
the same type of specific evidence of each element of the offense as would
be needed to support a conviction.” Adams v. Williams, 407 U.S. 143, 149
(1972). But the Court has not decided whether probable cause can exist
without at least some evidence on every element of a suspected crime.
9
      We do not suggest how the district court should have ruled on the
issue of probable cause. That issue is not before us. We hold only that
under the plain-error standard, which the government asks us to apply, the
existence of probable cause was not sufficiently clear and obvious to
require reversal.
                                         -10-
III.   Application of the Exclusionary Rule

       In light of the arrest without probable cause, the district court

correctly excluded the resulting evidence.

       A.    Standard of Review

       When a defendant is illegally seized, a court must suppress evidence

derived from that seizure that is the improper fruit of the poisonous tree.

See Wong Sun v. United States, 371 U.S. 471, 485–88 (1963). To justify

suppression under this doctrine, the defendant must show a factual nexus

between the illegal seizure and the challenged evidence. United States v.

Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000). Once this nexus is

shown, the government can avoid suppression only by proving that the

evidence “was so attenuated from the illegality as to dissipate the taint of

the unlawful conduct.” Id.

       On review, we accept the district court’s factual findings unless they

are clearly erroneous. Id.

       B.    The Suppressed Evidence

       The government contends that even if probable cause was absent, the

district court erred in suppressing the fingerprints and immigration record

because their discovery was attenuated from the illegal arrest. We reject

this contention.

       The issue is whether “the illegal arrest [was] in part for the purpose

of obtaining unauthorized fingerprints so Defendant could be connected to

                                      -11-
additional illegal activity.” United States v. Olivares-Rangel, 458 F.3d

1104, 1116 (10th Cir. 2006) (emphasis added). In United States v.

Olivares-Rangel, we distinguished between fingerprints obtained to aid an

investigation after an illegal arrest (which generally are suppressed) and

fingerprints that are obtained merely as part of a routine booking procedure

(which generally are not suppressed). Id. at 1112–14.

     Fingerprinting is

          investigatory if the “purpose of obtaining Defendant’s
           fingerprints [is] to link him to criminal activity” and

          part of the routine booking procedure if the officer seeks to
           confirm that the “person who has been arrested is in fact the
           person law enforcement agents believe they have in custody.”

Id. at 1113, 1116.

     The district court found four facts bearing on application of the

exclusionary rule:

     1.    Mr. Argueta-Mejia was arrested because he was a previously
           deported felon.

     2.    Officials of the Immigrations and Customs Enforcement Office
           conducted the booking process, and the agency’s entire
           purpose is to enforce immigration laws.

     3.    The purpose of the booking process was to obtain Mr. Argueta-
           Mejia’s fingerprints to identify him as a previously deported
           felon.

     4.    The fingerprints were obtained to further the investigation of
           the immigration offense, and the unlawful arrest was exploited
           for the purpose of obtaining the fingerprints.



                                    -12-
Appellant’s App. at 110. From these facts, the district court concluded the

government had failed to show the absence of an investigatory motive. Id.

      We agree with the district court. The government bore the burden of

proving that the evidence was attenuated from the unlawful arrest (see

p. 11, above), and the crime hinged on identity and proof that the Attorney

General had not granted permission to reenter the country. See United

States v. Pena-Montes, 589 F.3d 1048, 1058 (10th Cir. 2009) (stating that

the critical evidence necessary to convict the defendant of illegal reentry

was “identity itself: [the defendant’s] fingerprints and related records”);

see also United States v. Garcia-Beltran, 389 F.3d 864, 868 (9th Cir. 2004)

(“[I]n the investigation of immigration offenses, establishing the identity

of the suspect is an essential component of such an investigation.”). For

these aspects of its burden of proof, the government needed Mr. Argueta-

Mejia’s immigration record. And there is no evidence of the government’s

ability to retrieve the immigration record without Mr. Argueta-Mejia’s

fingerprints. In these circumstances, we conclude that the government

failed to prove that the evidence had been attenuated from the illegal

arrest.

      The government acknowledges that the district court made three

correct factual findings:

      1.    Mr. Argueta-Mejia was arrested because he was a previously
            deported felon.


                                     -13-
     2.    The Immigrations and Customs Enforcement Office conducted
           the booking process.

     3.    The purpose of the booking process was to obtain Mr. Argueta-
           Mejia’s fingerprints to identify him as a previously deported
           felon.

But the government argues the district court wrongly interpreted the

significance of these findings, claiming that

          the “purpose of the arrest” was not to obtain fingerprints,

          the fingerprints were taken as part of a routine booking
           procedure, and

          the purpose of fingerprinting Mr. Argueta-Mejia was to
           verify his identity rather than to obtain additional information.

We reject these arguments. The district court’s inferences from these

factual findings are subject to clear error review (see p. 11, above), and we

have no reason to regard these inferences as clearly erroneous.

     The government also argues that
          the district court misapplied an Eighth Circuit case (United
           States v. Guevara-Martinez, 262 F.3d 751 (8th Cir. 2001)), and
          exclusion of evidence is unwarranted here in light of the
           policies surrounding the exclusionary rule.
These arguments are unpersuasive.

     First, we cannot reverse based on the district court’s reliance on the

Eighth Circuit’s opinion in Guevara-Martinez. There the appellate court

held that an investigatory motive may be inferred when a defendant is

fingerprinted after an interview with immigration officials. Guevara-

Martinez, 262 F.3d at 756. That holding arguably applied here because the
                                    -14-
district court found that the fingerprinting of Mr. Argueta-Mejia was

motivated at least in part to aid an investigation. Though the Eighth Circuit

decision was not precedential in our circuit, it might have been considered

persuasive. Regardless of its persuasive value, however, the district court

made a factual finding that the government had taken the fingerprints at

least in part to aid the investigation. See pp. 12-13, above. Whatever we

think of the Eighth Circuit’s opinion, the district court’s factual finding

binds us under the clear-error standard.

      Finally, we reject the government’s policy argument. The policy

ramifications of the exclusionary rule can be debated. See, e.g., Donald

Dripps, The Case for the Contingent Exclusionary Rule, 38 Am. Crim. L.

Rev. 1, 5-22 (2001) (discussing the policy arguments for and against the

exclusionary rule). But our decision is guided by precedent, not policy

considerations. The district court’s finding of an investigatory motive

compels exclusion under our precedent in Olivares-Rangel.

IV.   Conclusion

      We affirm the district court’s order suppressing the evidence of post-

arrest statements and identifying information. Even if the government did

not waive the argument on probable cause, we would decline to find a clear

or obvious error.

      Without the obvious existence of probable cause, the district court

had to exclude the evidence if law enforcement officers took the

                                     -15-
fingerprints at least in part to aid an investigation into illegal reentry. The

district court found such a motive, and we must uphold this finding under

the clear-error standard.

      Accordingly, we affirm.


                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge




                                      -16-
