                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-26-2006

USA v. Bowley
Precedential or Non-Precedential: Precedential

Docket No. 05-3460




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Bowley" (2006). 2006 Decisions. Paper 1661.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1661


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                          PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                       No: 05-3460

            UNITED STATES OF AMERICA,
                           Appellant

                              v.

                    GARY BOWLEY

                Appeal from the District Court
       of the Virgin Islands, Division of St. Thomas
                         and St. John
                 (Crim. No. 04-cr-00169-1)
    District Judge: Hon. Raymond L. Finch, Chief Judge

                Argued: December 8, 2005

        Before: SCIRICA, Chief Judge, McKEE and
              and NYGAARD, Circuit Judges

                 (Filed: January 26, 2006 )

ANTHONY J. JENKINS, ESQ.
United States Attorney
District of the Virgin Islands
KIM L. CHISHOLM, ESQ.

                             1
Assistant United States Attorney
District of the Virgin Islands
RICHARD A. FRIEDMAN, ESQ. (Argued)
Appellate Section, Criminal Division
United States Department of Justice
10th Street & Constitution Avenue, N.W.
Washington, D.C. 20530

Attorneys for Appellant

THURSTON T. McKELVIN, ESQ.
Federal Public Defender
PATRICIA SCHRADER-COOKE, ESQ. (Argued)
Assistant Federal Public Defender
P.O. Box 1327, 51B Kongens Gade
Charlotte Amalie, St. Thomas, Virgin Islands

Attorneys for Appellee

                            OPINION

McKEE, Circuit Judge.

        We are asked to determine if the district court erred in
suppressing certain evidence the government sought to introduce
in this prosecution of an illegal alien for illegally reentering the
United States. The evidence the district court suppressed
pertained to the alien’s identity. For the reasons that follow, we
will reverse and remand to the district court for further
proceedings.


                                 2
       I. FACTS AND PROCEDURAL HISTORY

        In early August 2004, Sergeant Bernard Hendricks of the
Virgin Islands Police Department (“VIPD”) was investigating
a series of armed robberies in the Coral Bay area of St. John.
During the course of that investigation, he learned that Gary
Bowley had been involved in those robberies as well as other
illegal activities, including drug dealing. That information was
provided by individuals who had previously provided reliable
information to the VIPD. Bowley was known to the VIPD as
“Junior.”

        On August 16, 2004, at approximately 11:30 a.m.,
Hendricks and another VIPD officer drove to Bowley’s
residence in their police car. Upon arriving, they called to
Bowley who came out and spoke with the officers. They asked
Bowley if he had any documents that would show that he was
lawfully present in the United States. In response, Bowley
admitted that he was in the United States illegally, and he gave
the officers a Jamaican passport containing his photograph and
the name “Junior Anthony Miller.” Hendricks then asked
Bowley if he would accompany them to the police station, and
Bowley agreed.

       Later that same day, the officers contacted the Office of
Immigration and Customs Enforcement (“ICE”). The next day,
ICE agents took Bowley and two other illegal aliens to St.
Thomas for a hearing before an immigration judge. At the ICE
offices, Bowley’s fingerprints (and those of the two other
aliens) were electronically scanned. The computer database
matched the scan to the fingerprint records of “Gary Bowley.”

                               3
Immigration records showed that Bowley was a citizen of
Jamaica who had previously been deported from the United
States on November 17, 2000, following convictions for selling
marijuana, attempted robbery, possession of a weapon and “bail
jumping.” After matching the fingerprints, an ICE agent
advised Bowley of his Miranda rights and Bowley told the
agent that he did not want to make a statement.1 Nevertheless,
an ICE agent subsequently questioned Bowley about
biographical data such as his parents’ names, his occupation,
and whether he had any children.

       Thereafter, a criminal information was filed charging
Bowley with one count of illegally reentering the United States
after having been previously deported, in violation of 8 U.S.C.
§ 1326(a), (b)(2). Bowley responded by filing a motion “to
suppress all evidence obtained from him, including his
statement that he was illegally in the United States, his passport,
his fingerprints, and the statements that he made after refusing
to waive his Miranda rights.” App. 13-14.2

      At the ensuing suppression hearing, the government
argued that the VIPD officers had reasonable suspicion for an


       1
           See Miranda v. Arizona, 384 U.S. 486 (1966).
       2
         Since the government did not seek to introduce the
biographical information obtained from Bowley after he
received his Miranda warnings, those statements are not at
issue in this appeal.


                                4
investigative detention of Bowley from the time they
encountered him at his home. The government also argued that
Bowley “was not under arrest when he was handcuffed,
transported to the police station in St. John, [and] held
overnight in a cell . . . but was merely detained pending further
diligent investigation.” App. 14. The district court denied
Bowley’s motion in part and granted it in part.

       The district court agreed with the government that the
VIPD officers had reasonable suspicion to investigate Bowley
based on the information they had received from people in the
area concerning his involvement in illegal activities including
the robberies the police were investigating. The district court
based that conclusion on the fact that those people had
previously given reliable information, and that their reports
corroborated each other. Therefore, the district court denied
Bowley’s motion to suppress his Jamaican passport as well as
his admission that he was illegally in the United States.

       However, the district court rejected the government’s
argument that Bowley was not under arrest when handcuffed,
taken to the police station, and held over night. The court held
that that detention did constitute an arrest. The court reasoned
that, although Bowley was not formally arrested, he was
handcuffed and placed in a cell, and that restraint was more than
an investigative detention. Rather, it “was akin to arrest.” App.
20.

       However, since the crime the VIPD officers initially
arrested Bowley for (illegal reentry in violation of 8 U.S.C. §
1326(a), (b)(2)) is a misdemeanor, the district court held that

                               5
Bowley’s arrest was unlawful. Virgin Islands police can only
arrest for a misdemeanor when the crime is committed in their
presence. See 5 V.I.C. § 3562. The district court ruled that
“[i]llegal reentry is not a continuing violation, but is completed
at the time of entry . . . or when an alien has reached a place of
repose within the country.” App. 7. Accordingly, Bowley had
not violated 8 U.S.C. § 1326(a), (b)(2) in the police officers’
presence, and the court therefore concluded that the police
officers lacked statutory authority to arrest him.

        Accordingly, the court suppressed “all evidence obtained
after officers . . . handcuffed [Bowley], placed him in their
police vehicle, transported him to the police station and held
him there in a cell.” App. 11. That included all of the evidence
police had gathered about Bowley’s identification from the
fingerprint scan, his biographical information, and his Jamaican
passport. The court found “a close causal connection between
[Bowley’s] illegal seizure and [that evidence].” App. 20. The
court reasoned that suppression of that evidence was necessary
“to deter similar police misconduct in the future and to preserve
the integrity of the courts.” Id.

        The government did not appeal that suppression order.
Instead, at the beginning of trial, it proposed to prove Bowley’s
illegal reentry by producing the warrant of deportation from his
immigration file (including an attached photograph), and
offering the testimony of the federal agents who had been
present when Bowley was deported. Bowley moved in limine to
exclude that testimony arguing that the evidence was precluded
by the district court’s suppression order. The government
responded by arguing that Bowley’s identity and documents in

                                6
his immigration file could not be suppressed. The government
also claimed that Bowley had lawfully been in the custody of
the ICE agents when they scanned his fingerprints.

        The district court construed the government’s opposition
to Bowley’s motion in limine as a motion to reconsider its
original suppression order. It granted reconsideration, but
denied the motion to reconsider on the merits. Although the
court agreed that identity cannot be suppressed, it ruled that “a
defendant’s body and identity cannot be suppressed only in the
sense that . . . a defendant whose identity is discovered through
unconstitutional means may be physically brought to trial and
tried under his or her true name.” App. at 7-10. The court
reasoned, however, that “the elements of the charged crime,
including Defendant’s identity, must be proved using untainted
evidence,” and the discovery of Bowley’s identity was the fruit
of his illegal arrest. App. 7.

        The district court also rejected the government’s
argument that the scan of his fingerprints was proper because it
was part of administratively processing a suspected illegal alien.
The district court concluded that although Bowley’s custody by
ICE was itself legal, it was the fruit of Bowley’s illegal arrest by
the VIPD. In rejecting the government’s claim that Bowley’s
identity was admissible as part of a routine booking procedure
as opposed to a criminal investigation, the district court held
that “[t]he fingerprint impressions were taken to investigat[e]
Defendant’s immigration status and therefore are not admissible
to prove Defendant’s identity.” App. 9.

       The district court also rejected the government’s

                                 7
alternative argument that police would have inevitably
discovered Bowley’s identity once he admitted that he was in
the United States illegally. The court reasoned that “an ICE
arrest of Defendant was not inevitable even after the VIPD
learned that he was present in the United States illegally,”
because Bowley “could have evaded detection by the ICE, if he
had not been arrested by the VIPD.” App. 8. Finally, the district
court rejected the government’s proffered reliance on the
testimony of federal agents who participated in Bowley’s prior
deportation. The court ruled that those witnesses were
discovered after the fact and were also the fruit of Bowley’s
illegal arrest and fingerprinting.

       This appeal by the government followed.3


       3
         We have jurisdiction of this interlocutory appeal
pursuant to 18 U.S.C. § 3731, captioned “Appeal by the
United States,” which provides, in relevant part, as follows:

       An appeal by the United States shall lie to a
       court of appeals from a decision or order of a
       district court suppressing or excluding evidence
       or requiring the return of seized property in a
       criminal proceeding, not made after the
       defendant has been put in jeopardy and before
       the verdict or finding on an indictment or
       information, if the United States attorney
       certifies to the district court that the appeal is
       not taken for purpose of delay and that the
       evidence is a substantial proof of a fact material

                               8
                       II. DISCUSSION

       The government argues that even if Bowley’s arrest by
the VIPD was illegal, evidence the government sought to
introduce regarding his true identity and his prior deportation is
admissible because such evidence is not subject to suppression.
 We agree.

        In INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984),
the Supreme Court stated: “[t]he ‘body’ or identity of a
defendant or respondent in a criminal or civil proceeding is
never itself suppressible as a fruit of an unlawful arrest, even if
it is conceded that an unlawful arrest, search, or interrogation
occurred.”4     Lopez-Mendoza concerned “the exclusion of
credible evidence gathered in connection with peaceful arrests
by INS officers.” Id. at 1051. Here, of course, we are concerned
with illegally obtained evidence that was to be introduced in a
criminal prosecution rather than in a civil prosecution; as was
the case in Lopez-Mendoza.

      Nevertheless, we doubt that the Court lightly used such
a sweeping word as “never” in deciding when identity may be
suppressed as the fruit of an illegal search of arrest. See United


       in the proceeding.


       4
         Lopez-Mendoza concerned “the exclusion of credible
evidence gathered in connection with peaceful arrests by INS
officers.” Id. at 1051.

                                9
States v. Del Toro Gudino, 376 F.3d 997, 1000-01 (9th Cir.
2004) (noting the Court’s “exceptionally broad statement, using
the rarely employed word “never”).
       The Court in Lopez-Mendoza was careful to qualify its
broad statement by noting that it was not considering “egregious
violations of Fourth Amendment or other liberties that might
transgress notions of fundamental fairness and undermine the
probative value of the evidence obtained.” 486 U.S. at 1051.
Similarly, we are not here concerned with any such egregious
transgression either.

        Although we have not previously addressed this precise
question, a number of other courts of appeals have addressed it,
and each has refused to suppress a defendant’s immigration file
or identity in the context of a criminal prosecution for illegal
reentry in violation of § 1326. See, e.g., United States v.
Navarro-Diaz, 420 F.3d 581 (6th Cir. 2005); United States v.
Del Toro Gudino, supra; United States v. Roque-Villaneuva,
175 F.3d 345 (5th Cir. 1999); United States v. Guzman-Bruno,
27 F.3d 420 (9th Cir. 1994).          Furthermore, an alien
charged with illegal reentry has no possessory or proprietary
interest in his/her immigration file or the documentary evidence
contained in that file. United States v. Pineda-Chinchilla, 712
F.2d 942, 943-44 (5th Cir. 1983). Similarly, an alien has no
reasonable expectation of privacy in a file that is maintained
solely by a government agency for official purposes and kept in
the custody of that agency. Accordingly, absent the kind of
egregious circumstances referred to in Lopez-Mendoza, we hold
that the Fourth Amendment does not provide a basis for an alien
to suppress his/her immigration file, or information in that file.
Id.; see also Hoonsilapa v. INS, 575 F.2d 735, 738 (9th Cir.

                               10
1978) (“[T]here is no sanction to be applied when an illegal
arrest only leads to discovery of the man’s identity and that
merely leads to the official file or other indepent evidence.”),
modified on other grounds, 586 F.2d 755 (9th Cir. 1978).

                     III. CONCLUSION

       For the above reasons, we will reverse the district court’s
June 8, 2005, suppression order.




                               11
