                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3855
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska
Martin Guevara-Martinez,                *
also known as Jose Dias-Ibarra,         *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: May 15, 2001

                                  Filed: August 20, 2001
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BRIGHT and BYE, Circuit Judges.
                         ___________

BYE, Circuit Judge.

      The government appeals the district court's1 suppression of fingerprint evidence
obtained as the result of an unlawful arrest and detention. We affirm.




      1
      The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.
                                   BACKGROUND

        On January 31, 2000, two Omaha police officers stopped a car in which Martin
Guevara-Martinez was a passenger. The officers found methamphetamine in the car
and placed Guevara-Martinez under arrest. During the course of the stop, an officer
asked Guevara-Martinez for his name. Initially, Guevara-Martinez did not respond at
all; he later told the officer that he had no identification. In fact, Guevara-Martinez had
identification. The officer removed an ID from Guevara-Martinez's wallet, and
determined that it did not match Guevara-Martinez's appearance.

       The officers transported Guevara-Martinez to the Omaha jail. Suspecting that
he might be an illegal alien, the officers informed a special agent of the United States
Immigration and Naturalization Service (INS) of the arrest. The agent went to the jail
to interview Guevara-Martinez. Guevara-Martinez gave the agent the false name of
Jose Diaz-Ibarra, and admitted that he did not have permission to be in the United
States.

      On the day following the arrest, after the INS interview, Omaha police took
Guevera-Martinez's fingerprints. Nothing in the record shows that Guevara-Martinez
consented to the fingerprinting. Ultimately, the fingerprints revealed Guevara-
Martinez's true identity, which linked him to his INS file. His INS file indicated that
he had previously been deported from the United States.

       On February 24, 2000, Guevara-Martinez was indicted for possession with intent
to deliver methamphetamine. That charge was later dismissed, however, because the
district court ruled that the January 31 traffic stop was illegal, and suppressed the drugs
seized during the stop. The government did not appeal the district court's ruling that
the traffic stop was illegal.




                                           -2-
       On June 22, 2000, seven days after the government dismissed the drug charge,
Guevara-Martinez was indicted a second time, this time for being an illegal alien found
in the United States after deportation, in violation of 8 U.S.C. § 1326. Guevara-
Martinez again moved to suppress all evidence flowing from the illegal traffic stop,
particularly his fingerprints and the statements he made about his identity.
Alternatively, Guevara-Martinez moved for dismissal on the grounds that the
government had an improper motive for the second prosecution (i.e., retaliation for
having to dismiss the drug charge).

        The government opposed the suppression motion. The government relied upon
the Supreme Court's statement that the "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,"
INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984), and two circuit decisions that
have applied Lopez-Mendoza to identity-related evidence introduced in criminal
proceedings brought under § 1326. See United States v. Roque-Villanueva, 175 F.3d
345, 346 (5th Cir. 1999); United States v. Guzman-Bruno, 27 F.3d 420, 421-22 (9th
Cir. 1994).

      Distinguishing Lopez-Mendoza, the district court suppressed both the fingerprint
evidence and the statements Guevara-Martinez made about his identity.2 The
government filed this interlocutory appeal pursuant to 18 U.S.C. § 3731, challenging
only the suppression of the fingerprint evidence.

                                      DISCUSSION

       When a district court grants a motion to suppress evidence, we review its
findings of fact for clear error, and its conclusions of law de novo. United States v.

      2
          The district court did not rule on the motion for dismissal.

                                            -3-
Wells, 223 F.3d 835, 838 (8th Cir. 2000). Here we review a legal issue: whether, in
a criminal prosecution brought for a violation of 8 U.S.C. § 1326, Lopez-Mendoza
requires suppression of fingerprint evidence obtained as the result of an unlawful arrest
and detention. We hold that Lopez-Mendoza does not apply, and that the present case
is controlled by Davis v. Mississippi, 394 U.S. 721 (1969) and Hayes v. Florida, 470
U.S. 811 (1985). In the absence of evidence that Guevara-Martinez's fingerprinting
resulted from routine booking procedures, rather than for the purpose of pursuing INS-
related proceedings against him, we conclude that the district court properly suppressed
the evidence.

I.    Lopez-Mendoza

       In Lopez-Mendoza, the Supreme Court reviewed two civil cases, both involving
deportation proceedings that took place following unlawful arrests. Adan Lopez-
Mendoza challenged an immigration court's jurisdiction over his person following his
unlawful arrest, but did not object to the admission of evidence offered against him in
the proceeding. 468 U.S. at 1040. In contrast, Elias Sandoval-Sanchez didn't object
to the immigration court's jurisdiction over him, but rather to the evidence offered
against him in the proceeding. Id.

       In the jurisdictional case (Lopez-Mendoza), the Court said that the "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." Id. at 1039. But the Court addressed the
evidentiary case (Sandoval-Sanchez) from a different tack. There the Court
acknowledged the "general rule in a criminal proceeding [] that statements and other
evidence obtained as a result of an unlawful, warrantless arrest are suppressible if the
link between the evidence and the unlawful conduct is not too attenuated." Id. at 1040-




                                          -4-
41 (emphasis added).3 Thus, the Court's reference to the suppression of identity
appears to be tied only to a jurisdictional issue, not to an evidentiary issue.

       Notwithstanding the Supreme Court's different approaches to the jurisdictional
and evidentiary challenges brought in Lopez-Mendoza, two circuits have applied the
Supreme Court's suppression-of-identity reference to evidentiary challenges in criminal
proceedings. See United States v. Roque-Villanueva, 175 F.3d at 346 (holding that
neither a person's identity nor his INS file are suppressible in a § 1326 criminal
proceeding even if the defendant was illegally stopped); Guzman-Bruno, 27 F.3d at
421-22 (indicating that a defendant's statement of identity need not be suppressed in a
§ 1326 criminal proceeding merely because it was obtained as the result of an illegal
arrest).

      One court has concluded, however, that Lopez-Mendoza has no bearing upon
the suppression of unlawfully obtained identity-related evidence in a criminal
proceeding:

      [T]he Supreme Court language only addresses the jurisdictional concern
      that the "body" of the defendant is never suppressible, not whether
      statements by a defendant regarding his identity may be suppressed. This
      interpretation is supported by an examination of the authorities cited by
      the Supreme Court: Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43
      L.Ed.2d 54 (1975) and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96
      L.Ed. 541 (1952). In Frisbie, the Court held that "the power of a court to
      try a person for crime is not impaired by the fact that he had been brought
      within the court's jurisdiction" against his will. 342 U.S. at 522, 72 S.Ct.
      at 511. The Supreme Court reaffirmed this holding in Gerstein, stating
      that an "illegal arrest or detention does not void a subsequent conviction."
      420 U.S. at 119, 95 S.Ct. at 865. These cases deal with jurisdiction over


      3
       Ultimately, the Court found the general criminal rule inapplicable to civil
deportation proceedings. Id. at 1051.

                                          -5-
      the person, not evidence of the defendant's identity illegally obtained. The
      language in Lopez-Mendoza should only be interpreted to mean that a
      defendant may be brought before a court on a civil or criminal matter even
      if the arrest was unlawful.

United States v. Mendoza-Carrillo, 107 F. Supp. 2d 1098, 1106 (D.S.D. 2000).

       The district court found the reasoning in Mendoza-Carillo more persuasive than
the broad interpretation given Lopez-Mendoza by the Fifth and Ninth Circuits. So do
we. We find it significant that the Supreme Court didn't distinguish between identity-
related evidence and other types of evidence when discussing Sandoval-Sanchez's
evidentiary challenge. The Court simply referred to the "general rule in a criminal
proceeding." 468 U.S. at 1040. If the Supreme Court meant to exempt identity-related
evidence in a criminal proceeding from the "general rule," we believe the Court would
have said so while discussing the evidentiary challenge, not the jurisdictional challenge.
Our belief is strengthened by the fact that the evidence that Sandoval-Sanchez
challenged, INS Form I-213, see Lopez-Mendoza v. INS, 705 F.2d 1059, 1062 (9th
Cir. 1983), probably contained identity-related evidence. See INS Form I-213 (Rev.
4/1/97) (including spaces for name, aliases, birthdate, and checkboxes to indicate
whether an alien has been photographed or fingerprinted).

        Furthermore, the identity-related evidence that the district court suppressed was
fingerprint evidence. Prior to Lopez-Mendoza, the Supreme Court twice applied the
exclusionary rule to fingerprint evidence obtained as the result of unlawful arrests and
detentions. See Davis, 394 U.S. at 727; Hayes, 470 U.S. at 815. Because Lopez-
Mendoza doesn't indicate that Davis and Hayes are overruled, we are bound to apply
those earlier cases. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (warning that the
circuit courts shouldn't conclude that more recent Supreme Court cases have, by
implication, overruled earlier precedents); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)
("[I]t is this Court's prerogative alone to overrule one of its precedents.").


                                           -6-
      We conclude that Lopez-Mendoza's statement about the suppression of identity
only refers to jurisdictional challenges, not to fingerprint evidence challenged in a
criminal proceeding. Therefore, we must determine whether the "general rule in a
criminal proceeding" applies, and if so, whether it requires exclusion of the fingerprint
evidence under the circumstances present in this case.

II.    Fingerprint Evidence and the Exclusionary Rule

       In Davis, police officers in Meridian, Mississippi, unlawfully arrested and
confined a young black man in order to get his fingerprints and compare them to prints
found at the scene of a sexual assault. 394 U.S. at 722-23. The State of Mississippi
argued that the exclusionary rule should not apply to fingerprint evidence because of
its inherent trustworthiness. Although the Supreme Court questioned whether
fingerprint evidence may be less subject to the exclusionary rule than other types of
evidence, the Court nonetheless held that "[d]etentions for the sole purpose of obtaining
fingerprints are . . . subject to the constraints of the Fourth Amendment." Id. at 727.

       The Supreme Court revisited the issue sixteen years later in Hayes, which also
involved a young black man unlawfully detained by police who wanted his fingerprints.
470 U.S. at 813. The Court again suggested that there might be circumstances where
the exclusionary rule would not require suppression of fingerprint evidence: "[n]one of
the foregoing implies that a brief detention in the field for the purpose of fingerprinting,
where there is only reasonable suspicion not amounting to probable cause, is
necessarily impermissible under the Fourth Amendment." Id. at 816. The Supreme
Court nonetheless reaffirmed the Davis holding: "None of [our] cases have sustained
against Fourth Amendment challenge the involuntary removal of a suspect from his
home to a police station and his detention there for investigative purposes, whether for
interrogation or fingerprinting, absent probable cause or judicial authorization." Id. at
815.


                                            -7-
       Since Davis and Hayes both suggest that fingerprint evidence has less Fourth
Amendment protection than other types of evidence, those two cases "should not be
read as declaring that fingerprints taken after an illegal arrest are always inadmissible."
Wayne R. LaFave, Search and Seizure, § 11.4(g) at 323 (3d ed. 1996). But should the
exclusionary rule apply to the fingerprint evidence involved in this case? Admittedly,
the facts aren't quite like those in Davis and Hayes, because the police did not detain
Guevara-Martinez just to get his fingerprints. But neither were the fingerprints
obtained under circumstances the Supreme Court suggested might enjoy less Fourth
Amendment protection (i.e., a brief detention in the field unsupported by probable
cause).

       We reject the government's contention that Davis and Hayes are inapposite
because the police did not detain Guevara-Martinez for the sole purpose of getting his
fingerprints. We apply the exclusionary rule whenever evidence has been obtained "by
exploitation" of the primary illegality instead of "by means sufficiently distinguishable
to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488
(1963) (quotation omitted). Evidence can be obtained "by exploitation" of an unlawful
detention even when the detention is not for the sole purpose of gathering that
evidence.

        We conclude that officers obtained Guevara-Martinez's fingerprints by exploiting
his unlawful detention, instead of by means sufficient to have purged the taint of the
initial illegality. First, we note that Guevara-Martinez did not consent to the
fingerprinting. We often find that consent is sufficient to purge the taint of an unlawful
detention, e.g., United States v. Lyton, 161 F.3d 1168, 1171 n. 3 (8th Cir. 1998);
United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994), and so the absence of
consent counsels in favor of applying the exclusionary rule.

       Second, the fingerprints were obtained during the unlawful detention, not as the
result of a subsequent investigation. Cf. United States v. Watson, 950 F.2d 505, 508

                                           -8-
(8th Cir. 1991) ("[W]here a law enforcement officer merely recommends investigation
of a particular individual based on suspicions arising serendipitously from an illegal
search, the causal connection is sufficiently attenuated so as to purge the later
investigation of any taint from the original illegality.") (emphasis added). Thus, there
is little, if any, attenuation between Guevara-Martinez's unlawful detention and the
fingerprinting.

       Third, we find it significant that the fingerprinting occurred only after the INS
had interviewed Guevara-Martinez. The government has offered no evidence that the
fingerprints were obtained as a matter of course through routine booking procedures,
rather than for the purpose of assisting the INS investigation. Cf. People v. McInnis,
494 P.2d 690, 693 (Cal. 1972) (holding that a photograph taken during routine booking
procedures following an illegal arrest could be used in connection with an unrelated
charge); Paulson v. State, 257 So. 2d 303, 305 (Fla. Dist. Ct. App. 1972) (holding that
fingerprints routinely taken after illegal arrest could be used in a subsequent
prosecution for another crime). The absence of evidence that the fingerprinting
resulted from routine booking, and the concomitant inference that an INS-related
purpose motivated the fingerprinting, also counsel in favor of applying the exclusionary
rule.

       A district court decision upon which the government relies, United States v.
Ortiz-Gonzalbo, 946 F. Supp. 287, 289-90 (S.D.N.Y. 1996), aff'd on other grounds,
133 F.3d 908 (2d Cir. 1997) (unpublished table decision), can and should be
distinguished. In Ortiz-Gonzalbo, the defendant was arrested for second-degree murder
on a New York state charge and fingerprinted. It was subsequently discovered that his
fingerprints matched those in an INS deportation file, and he was charged in federal
court under § 1326. He moved to suppress the fingerprint evidence in the federal
proceeding on the ground that the state arrest was unlawful. 946 F. Supp. at 287. The
district court rejected the challenge, holding that "[u]nless the state arrest here was


                                          -9-
motivated by a desire to gather fingerprints, there would be no deterrent effect to be
achieved by suppressing them." Id. at 289-90.

       Here, the authorities desired to gather the fingerprints, and were able to take
advantage of the unlawful detention in order to get the fingerprints. Under these
circumstances, we believe that suppressing the fingerprint evidence will achieve a
deterrent effect.

       As a final, separate matter, the government points out that a set of untainted
fingerprints can be obtained in the civil deportation proceedings that Guevara-Martinez
will inevitably face. Since Guevara-Martinez can be recharged using the new set of
fingerprints, the government asks us to ignore its use of tainted evidence in this case.
We decline to reverse the district court on this alternate ground. In Davis, the Supreme
Court refused to affirm a conviction because the authorities there could have used a
second set of prints that were validly obtained, stating that "[t]he important thing is that
those administering the criminal law understand that they must [obtain the evidence the
right way]." 394 U.S. at 726 n.4 (quoting Bynum v. United States, 262 F.2d 465, 469
(D.C. Cir. 1958)).

       For the reasons stated, we affirm the district court's suppression order.

       A true copy.

              Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -10-
