     Case: 12-30793        Document: 00512290210       Page: 1   Date Filed: 06/27/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                        FILED
                                                                       June 27, 2013

                                        No. 12-30793                   Lyle W. Cayce
                                                                            Clerk

UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee
v.

JOSE LUZ HERNANDEZ-MANDUJANO,

                                                Defendant - Appellant



                     Appeal from the United States District Court
                        for the Western District of Louisiana


Before REAVLEY, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:
      Jose Hernandez-Mandujano (“Hernandez”) was indicted for and pled guilty
to unlawful re-entry1 after two U.S. Border Patrol Agents stopped him as he was
driving eastbound at Mile Marker 15 on Interstate 10 near Lake Charles,
Louisiana. Hernandez argued before the district court that all evidence deriving
from this stop should be suppressed because the agents lacked reasonable
suspicion at the time of the stop. The district court disagreed and denied
Hernandez’s motion to suppress. Although we conclude that the agents lacked
reasonable suspicion, and clearly violated the Fourth Amendment in stopping



      1
          28 U.S.C. § 1326(a) and (b)(2).
    Case: 12-30793     Document: 00512290210     Page: 2   Date Filed: 06/27/2013



                                  No. 12-30793

Hernandez, we AFFIRM the judgment of the district court because “neither
[Herandez’s] identity nor his INS file are [sic] suppressible.” United States v.
Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999).
                                        I.
      On April 18, 2011, shortly after 10:00 a.m., U.S. Border Patrol Agents
Brett Sullivan and Jeremy Taylor stopped Hernandez as he was driving
eastbound on Interstate 10 near Lake Charles, Louisiana, approximately 450
miles from the nearest United States-Mexico border crossing. When Hernandez
first drove past the agents, they noticed his hands were “locked” on the steering
wheel of his white Ford Explorer SUV; his grip was tight and his arms were
straight out, and he allegedly did not display the relaxed nature of most drivers.
Because the agents believed Hernandez was exhibiting nervous behavior, they
began to follow him. As they followed, they noticed Hernandez’s speed dropped
from around 70 miles per hour (the posted speed limit) to about 60 miles per
hour. Furthermore, when the agents were behind Hernandez, they noticed him
talking to the person in the passenger’s seat, but when they pulled alongside
Hernandez, the conversation ceased—only to resume again when the agents
dropped back.
      The agents additionally noticed the car had a Tinkerbell steering wheel
cover and, upon checking the vehicle’s license plates, learned the car was
registered to a woman, but was not reported stolen, had no outstanding
warrants or criminal activity associated with it, and had not recently crossed the
border. Nonetheless, after following Hernandez for approximately five miles, the
agents felt convinced Hernandez was transporting illegal aliens and pulled him
over. The agents then learned from their questions Hernandez’s name, that he
is a Mexican national, and that he was present in the United States illegally.
      Thus, based on this stop, Hernandez was charged with one count of re-
entry without permission by an alien deported after conviction for an aggravated

                                        2
    Case: 12-30793     Document: 00512290210      Page: 3   Date Filed: 06/27/2013



                                  No. 12-30793

felony, in violation of 28 U.S.C. § 1326(a) and (b)(2). Hernandez filed a motion
to suppress all evidence deriving from the warrantless stop, arguing it did not
comport with the definition of an “extended border search” and that the agents
lacked reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968). After
holding an evidentiary hearing, the district court agreed the stop was not an
extended border search, but denied Hernandez’s motion to suppress because it
found the agents had a reasonable suspicion of illegal activity.
      Hernandez then pled guilty, specifically preserving his right to appeal the
district court’s ruling regarding the motion to suppress. He was sentenced to 33
months of imprisonment and three years of supervised release, and was ordered
to pay a $100 special assessment. He timely appealed.
                                        II.
      In this appeal, we must address whether the agents violated the Fourth
Amendment in stopping Hernandez, and, if so, whether we may grant
Hernandez’s motion to suppress.
                                        A.
      The first question we consider is whether the agents had reasonable
suspicion of illegal activity when they stopped Hernandez. In resolving this
question, we review the district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Soto, 649 F.3d 406, 409 (5th Cir.
2011).
      When conducting roving patrols, border patrol agents may temporarily
stop a vehicle “only if they are aware of specific articulable facts, together with
rational inferences from those facts, that reasonably warrant suspicion that the
vehicle’s occupant is engaged in criminal activity.” Id. (quoting United States v.
Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001)). The Supreme Court in Brignoni-
Ponce articulated several factors for “deciding whether there is reasonable
suspicion to stop a car in the border area.” United States v. Brignoni-Ponce, 422

                                        3
    Case: 12-30793     Document: 00512290210      Page: 4    Date Filed: 06/27/2013



                                  No. 12-30793

U.S. 873, 884 (1975). While we have not yet determined whether a “border area”
has specific geographical limits, we need not make this determination today, as
the stop in question fails under both the specific Brignoni-Ponce and the more
general Terry inquiries. The Brignoni-Ponce factors include (1) proximity to the
border; (2) characteristics of the area; (3) usual traffic patterns; (4) the agents’
experience in detecting illegal activity; (5) the driver’s behavior; (6) particular
aspects or characteristics of the vehicle; (7) information regarding recent border
crossings or narcotics transportation in the area; and (8) the number of
passengers and their appearance and behavior.          United States v. Moreno-
Chaparro, 180 F.3d 629, 631-32 (5th Cir. 1998).
      The government relies primarily upon the following in arguing that
Hernandez’s motion to suppress was properly denied: (1) the agents’ experience;
(2) Hernandez’s behavior; (3) the nature of the car; and (4) the passenger’s
behavior. Considering the totality of the circumstances, however, we find this
evidence unpersuasive.
      This Court’s decision in United States v. Moreno-Chaparro is particularly
instructive in analyzing the case now before us. In Moreno-Chaparro, officers
stopped Moreno after he drove past a temporarily closed immigration checkpoint
in a black Chevrolet pickup truck. As he passed the checkpoint, Moreno “slowed
and appeared surprised to see the patrol car alongside the checkpoint,” but did
not make eye contact with the agent. Id. at 631. The agent ran a license check
and learned the car was registered to a woman in El Paso, Texas. Id. He then
stopped Moreno and proceeded to question him and investigate the vehicle. Id.
      The court first found the agent lacked reasonable grounds to believe
Moreno had come from the border, as the stop occurred 60 miles north of the
Mexican border. Id. at 632. It went on to note that, generally, whether a driver
looks at an officer should be accorded little weight, because to find otherwise
“would put the officers in a classic ‘heads I win, tails you lose’ position.” Id.

                                         4
    Case: 12-30793     Document: 00512290210       Page: 5   Date Filed: 06/27/2013



                                   No. 12-30793

(quoting United States v. Escamilla, 650 F.2d 1229, 1233 (5th Cir. 1977)).
Similarly, the court found the fact that the car Moreno was driving was
registered to a woman was unavailing, because it was “obvious . . . that it is not
unusual for a man to drive a vehicle registered to a woman.” Id.
      Moreover, the court declined to conclude the agent had reasonable
suspicion because Moreno was driving a Chevy. The court stated that although
“the Border Patrol carefully watches ‘Chevys in general,’ it would be manifestly
unreasonable to target every Chevrolet pickup truck driven on Texas highways.”
Id. Indeed, the court ultimately found the vehicle was “just an average pickup
truck,” noting the “agent could not point to anything suspicious about [it]. . . . It
contained no visible passengers, it had not been modified in an obvious way, and
it was not riding low to the ground as if it were loaded down with people or
contraband; it was neither particularly clean nor particularly dirty.” Id. at 632-
33 (emphasis in original).
      Here, the stop occurred 450 miles from the nearest international border
crossing and, plainly, there are no reasonable grounds for assuming Hernandez
had come from the border. See id. at 632. Although this factor alone is not
controlling, it is vital, id., and, in its absence, “we examine the remaining factors
charily.” United States v. Rico-Soto, 690 F.3d 376, 380 (5th Cir. 2012) (citing
United States v. Olivares-Pacheco, 633 F.3d 399, 402 (5th Cir. 2011)).
      Hernandez was stopped on Interstate 10, which is a major corridor for
illegal alien-smuggling between cities in Texas, such as Houston, and the East
Coast. Rico-Soto, 690 F.3d at 379. Agent Sullivan was a senior agent with 16
total years of experience, including four years in the Lake Charles area. These
two factors, however, are the only ones that may weigh in favor of the stop;
considered along with the remaining factors, the evidence fails to satisfy the
agents’ claim to reasonable suspicion. First, the agents contend Hernandez’s
driving posture was highly suspicious and indicated nervousness, because he

                                         5
    Case: 12-30793     Document: 00512290210     Page: 6   Date Filed: 06/27/2013



                                  No. 12-30793

had both hands on the steering wheel and was staring straight ahead rather
than adopting a relaxed posture and talking on his cell phone, as many other
drivers do. We will not say that a driver who has both hands on the wheel and
is focusing on the road ahead of him—which is the ideal driving position—is
acting in a manner indicative of criminal activity in a case such as this. Indeed,
it is counterintuitive to condone the notion that drivers are less likely to be
stopped if they are talking on the phone and driving with one hand—or no
hands—on the wheel than they are if they engage in safe driving practices.
      Next, that Hernandez’s speed slowed considerably upon passing the border
patrol agents is unpersuasive in this case. “This is the reaction of any cautious
driver and due little weight.” United States v. Samaguey, 180 F.3d 195, 198-99
(5th Cir. 1999). While continuing to drive below the speed limit may, combined
with other circumstances, contribute to reasonable suspicion, the requisite
circumstances are lacking here.      See id. (finding the fact that Samaguey
continued to drive under the speed limit contributed to reasonable suspicion
when agents stopped him at 5:45 a.m. about 20 miles from the border, at a time
and on a road known for smuggling of illegal aliens and drugs); United States v.
Villalobos, 161 F.3d 285, 289-92 (5th Cir. 1998) (holding deceleration “may be
one factor contributing to the reasonable suspicion justifying a stop such as this
one,” when Villalobos was stopped 59 miles north of the Mexican border after
2:20 a.m. on a route known for alien and drug trafficking (especially late at
night), and the agents had a tip the car was likely smuggling drugs and observed
the car driving in the lead car-load car arrangement). Thus, in this case we
cannot find Hernandez’s speed change contributed to reasonable suspicion.
      Further unavailing is the agents’ argument that Hernandez’s driving of
a vehicle registered to a woman supports reasonable suspicion. First, we have
previously noted “the obvious, i.e., that it is not unusual for a man to drive a
vehicle registered to a woman.” Moreno-Chaparro, 180 F.3d at 632. This vehicle

                                        6
    Case: 12-30793     Document: 00512290210      Page: 7   Date Filed: 06/27/2013



                                  No. 12-30793

was not reported stolen, had no outstanding warrants or criminal activity
associated with it, and had not recently been documented as crossing the border.
Thus, that Hernandez was not the registered owner of the car is not, here, a
contributing factor.
      Moreover, the type of vehicle Hernandez was driving was not suspect.
Although Agent Sullivan testified that smugglers frequently use SUVs like the
Ford Explorer, “it would be manifestly unreasonable to target every” SUV
driving on highways between Texas and the East Coast. See Moreno- Chaparro,
180 F.3d at 632-33. Agents Sullivan and Taylor identified nothing suspicious
about this particular SUV—that is, they noted no aspects of the SUV that
rendered it any more likely than other SUVs to be transporting illegal aliens.
See Rico-Soto, 690 F.3d at 381. Indeed, it was only an average SUV on a
Louisiana highway. See Moreno-Chaparro, 180 F.3d at 633.
      Finally, the agents noticed only one passenger, seated in the front
passenger’s side seat, who did not make eye contact with the agents and whose
conversation with Hernandez stopped when the agents pulled alongside
Hernandez, but resumed when the agents dropped back. This observation does
not measurably contribute to reasonable suspicion in the absence of any other
compelling evidence. We have previously held that “in the ordinary case,
whether a driver looks at an officer or fails to look at an officer, taken alone or
in combination with other factors, should be accorded little weight.” Id. at 632.
Similarly, conversations are subject to natural variation, waxing and waning at
irregular intervals. If there were other strong indicators of reasonable suspicion,
this factor may help contribute, but it is necessarily a weak factor and of
especially light weight in a case such as this.




                                        7
    Case: 12-30793     Document: 00512290210      Page: 8   Date Filed: 06/27/2013



                                  No. 12-30793

                                        B.
      Although we have found the agents clearly violated the Fourth
Amendment in stopping Hernandez, our inquiry does not end here, for we must
further ask whether we may grant his motion to dismiss. We note that we may
affirm the district court’s denial of a motion to suppress on any basis established
in the record. United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011), cert.
denied 132 S. Ct. 1949 (2012). When the agents illegally stopped Hernandez, he
admitted that he was a Mexican citizen unlawfully present in the United States.
This evidence led to and is the basis of Hernandez’s conviction and 33-month
incarceration. This evidence is also what Hernandez now seeks to suppress.
      This Court, however, has previously held that an alien’s INS file and even
his identity itself are not suppressible. Roque-Villanueva, 175 F.3d at 346. In
Roque-Villanueva, federal authorities learned of a deported alien’s unlawful
reentry after an allegedly unconstitutional stop. Id. In reviewing the alien’s
motion to suppress all evidence derived from the stop, this Court concluded
neither his identity nor his INS file could be suppressed and affirmed the district
court’s denial of the defendant’s motion. Id. Accordingly, we are bound by
precedent and affirm the denial of Hernandez’s motion to suppress.            The
judgment of the district court is, therefore,
                                                                      AFFIRMED.




                                        8
     Case: 12-30793       Document: 00512290210          Page: 9     Date Filed: 06/27/2013



                                       No. 12-30793

E. GRADY JOLLY, Circuit Judge, Specially Concurring.
       While the majority’s affirmance is correct given our binding precedent, I
respectfully submit that this precedent is based on a misapplication of the
Supreme Court’s holding in I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984). In
Roque-Villanueva, this Court summarily concluded that no evidence pertaining
to an illegal alien’s identity is suppressible, predicating this finding upon a
statement by the Supreme Court in Lopez-Mendoza that “[t]he ‘body’ or identity
of a defendant or respondent in a criminal or civil proceeding is never itself
suppressible as fruit of an unlawful arrest, even if it is conceded that an
unlawful arrest, search, or interrogation occurred.” Roque-Villanueva, 175 F.3d
at 346 (quoting Lopez-Mendoza, 468 U.S. at 1039).
       In the time since we decided Roque-Villanueva, however, other circuits
have attempted to answer the question of whether an alien’s identity may ever
be suppressible, and have come to conflicting conclusions as to the proposition
for which Lopez-Mendoza truly stands. Indeed, the Fourth Circuit recently
noted that “[t]he meaning of the Lopez-Mendoza ‘identity statement’ has
bedeviled and divided our sister circuits.”1 United States v. Oscar-Torres, 507
F.3d 224, 228 (4th Cir. 2007). The issue dividing the circuits is whether the
Lopez-Mendoza statement simply recognizes an established jurisdictional rule,
i.e., that an unlawful arrest does not deprive a court of jurisdiction over the
arrestee, or, instead, whether the statement establishes a blanket rule that a
defendant’s identity—and any evidence related to that identity—is never
suppressible. Compare Oscar-Torres, 507 F.3d at 228-29 (interpreting Lopez-
Mendoza as merely reiterating long-standing jurisdictional rule), and United
States v. Olivares-Rangel, 458 F.3d 1104, 1106 (10th Cir. 2006) (same), and


       1
        That court further noted the Ninth Circuit’s view does not even appear consistent.
507 F.3d at 228 n.2 (citing United States v. Garcia-Beltran, 389 F.3d 864, 868 (9th Cir. 2004);
United States v. Guzman-Bruno, 27 F.3d 420, 422 (9th Cir. 1994)).

                                              9
   Case: 12-30793      Document: 00512290210       Page: 10    Date Filed: 06/27/2013



                                   No. 12-30793

United States v. Guevara-Martinez, 262 F.3d 751, 754-55 (8th Cir. 2001) (same),
with United States v. Bowley, 435 F.3d 426, 430-31 (3d Cir. 2006) (interpreting
Lopez-Mendoza as barring suppression of evidence of identity), United States v.
Navarro-Diaz, 420 F.3d 581, 588 (6th Cir. 2005) (same), and Roque-Villanueva,
175 F.3d 346 (same). This is an issue with which this court has never truly
grappled, notwithstanding our precedential holdings.
                                         I.
      To explain the circuit split, it is useful first to consider the facts of Lopez-
Mendoza itself. This case involved two defendants, Adan Lopez-Mendoza and
Elias Sandoval-Sanchez. 468 U.S. at 1034. Lopez-Mendoza was arrested in 1976
by INS agents at his place of employment, a transmission repair shop in San
Mateo, California. 468 U.S. at 1035. The INS agents arrived in response to a
tip; they had not sought a warrant, and the shop’s proprietor refused to permit
them to interview his employees during work hours. Id. One agent nevertheless
approached Lopez-Mendoza, who, in response to the agent’s questions, gave his
name and indicated he was from Mexico and had no close family ties in the
United States. Id. The agent arrested Lopez-Mendoza, and after further
questioning, Lopez-Mendoza admitted he was born in Mexico, was still a
Mexican citizen, and had entered the U.S. without inspection by immigration
authorities. Id. The agents then prepared a “Record of Deportable Alien” (Form
I-213) and an affidavit Lopez-Mendoza executed that admitted his Mexican
nationality and his illegal entry. Id.
      Later, at a deportation hearing before an immigration judge, Lopez-
Mendoza’s counsel moved to terminate the proceeding on the ground that Lopez-
Mendoza had been unlawfully arrested. Id. The judge, however, ruled the
lawfulness of Lopez-Mendoza’s arrest was irrelevant to his deportation. Id. On
appeal, the BIA similarly found “[t]he mere fact of an illegal arrest has no
bearing on a subsequent deportation proceeding,” and, furthermore, found

                                         10
    Case: 12-30793     Document: 00512290210      Page: 11    Date Filed: 06/27/2013



                                   No. 12-30793

Lopez-Mendoza had not objected to the admission of evidence in the Form I-213
or his affidavit. Id. at 1036. The Ninth Circuit, sitting en banc, vacated Lopez-
Mendoza’s deportation order and remanded for a determination as to whether
Lopez-Mendoza’s Fourth Amendment rights had been violated when he was
arrested. Id.
      Finally, the case reached the Supreme Court. It conducted a brief analysis
of Lopez-Mendoza’s claim, which began with the “identity statement,” i.e., “[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.” Id. (emphasis
added). The Court noted that, on that basis alone, Lopez-Mendoza’s claim failed.
Id. at 1040. It further found that “Lopez-Mendoza objected only to the fact that
he had been summoned to a deportation hearing following an unlawful arrest;
he entered no objection to the evidence offered against him.” Id. Reasoning the
mere existence of an unlawful arrest has no implications in a later deportation
proceeding, the Court reversed the Ninth Circuit’s judgment. Id.
      Sandoval-Sanchez, the defendant in the companion case to Lopez-
Mendoza, was similarly questioned and arrested by INS workers at his place of
employment, and later admitted he had unlawfully entered the United States.
He argued that he made the admission because he was unaware he had a right
to remain silent. Id. at 1036-37. At his deportation hearing, Sandoval-Sanchez
contended that the evidence offered by the INS should be suppressed as fruit of
an unlawful arrest. Id. at 1037. The immigration judge determined not only
that Sandoval-Sanchez had not been unlawfully arrested, but further that the
legality of an arrest was immaterial to a deportation hearing. Id. For similar
reasons, the BIA dismissed Sandoval-Sanchez’s appeal. Id. at 1038. Sitting en
banc, the Ninth Circuit reversed Sandoval-Sanchez’s deportation order, holding
that because his detention violated the Fourth Amendment, his statements were

                                         11
    Case: 12-30793     Document: 00512290210      Page: 12    Date Filed: 06/27/2013



                                   No. 12-30793

a product of that detention and the exclusionary rule barred their use in a
deportation hearing. Id.
      The question before the Supreme Court was then “whether an admission
of unlawful presence in this country made subsequent to an allegedly unlawful
arrest must be excluded as evidence in a civil deportation hearing.” 468 U.S.
at 1034 (emphasis added). The Court first noted “the general rule in a criminal
proceeding is 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 are not too attenuated.” Id. at 1040-41. The Court
then weighed the likely social benefits of excluding the unlawfully seized
evidence against the likely costs, per the framework established in United States
v. Janis, 428 U.S. 433 (1976), and ultimately concluded “evidence derived from
such [unlawful] arrests need not be suppressed in an INS civil deportation
hearing.” 468 U.S. at 1051.
                                         II.
      In applying Lopez-Mendoza, other circuit courts have grappled with
reconciling the broad language of the “identity statement” with the facts and
issues presented in the case. The Fourth, Eighth, and Tenth Circuits—which
concluded the “identity statement” was only a jurisdictional proposition—began
their analyses of the case by noting that all of the cases to which the Court cited
for the proposition that a defendant’s body or identity is not suppressible
addressed a court’s jurisdiction over a defendant himself—not suppression of
unlawfully obtained evidence relating to his identity. See, e.g., Oscar-Torres, 507
F.3d at 228 (“Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (reaffirming the
‘established rule that illegal arrest or detention does not void a subsequent
conviction’); Frisbie v. Collins, 342 U.S. 519, 522 (1952) (‘[T]he 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 by reason of a forcible abduction.’ ’); United States

                                         12
    Case: 12-30793    Document: 00512290210       Page: 13   Date Filed: 06/27/2013



                                  No. 12-30793

ex rel. Bilokumsky v. Tod, 263 U.S. 149, 158 (1923) (‘Irregularities on the part
of the Government official prior to, or in connection with, the arrest would not
necessarily invalidate later proceedings in all respects conformable to law.’)”);
see also Olivares-Rangel, 458 F.3d at 1111; Guevara-Martinez, 262 F.3d at 754.
The Fourth Circuit, citing the Tenth Circuit, further found these citations
telling—they “indicate[] that the Court’s ‘identity statement’ simply references
‘the long-standing rule, known as the Ker-Frisbie doctrine, that illegal police
activity affects only the admissibility of evidence; it does not affect the
jurisdiction of the trial court or otherwise serve as a basis for dismissing the
prosecution.’ ” Oscar-Torres, 507 F.3d at 228 (quoting Olivares-Rangel, 458 F.3d
at 1110).
      Each court then addressed the context in which the Supreme Court
uttered the “identity statement,” finding it further supported the conclusion that
this was a jurisdictional holding. They noted that the Court stated “[t]he ‘body
or identity of a defendant . . . is never itself suppressible” in response to Lopez-
Mendoza’s contention that the immigration court lacked personal jurisdiction
over him due to the illegal arrest, see Olivares-Rangel, 458 F.3d at 1111; but, in
contrast, when analyzing Sandoval-Sanchez’s claim that specific evidence—inter
alia, his statement that he entered the United States unlawfully—was
inadmissible, the court referred to the “general rule in a criminal proceeding.”
Guevara-Martinez, 262 F.3d at 754. The Eighth Circuit found
      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. . . . 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




                                        13
      Case: 12-30793    Document: 00512290210         Page: 14    Date Filed: 06/27/2013



                                     No. 12-30793

        that the evidence that Sandoval-Sanchez challenged, INS Form I-
        213, probably contained identity-related evidence.2
Id.    The Fourth Circuit similarly reasoned that, “if the Court’s ‘identity
statement’ truly prohibited suppression of any evidence relating to identity,
surely the Court would have considered which of Sandoval-Sanchez’s statements
were sufficiently identity-related to render them beyond the reach of the
exclusionary rule and which were not.” Oscar-Torres, 507 F.3d at 229. And the
Tenth Circuit held
        The language in Lopez-Mendoza merely says that the defendant
        cannot suppress the entire issue of his identity. A defendant may
        still seek suppression of specific pieces of evidence (such as, say,
        fingerprints or statements) under the ordinary rules announced in
        Mapp and Wong Sun. A broader reading of Lopez-Mendoza
        would give the police carte blanche powers to engage in any
        manner of unconstitutional conduct to long as their purpose
        was limited to establishing a defendant’s identity. We do not
        believe the Supreme Court intended Lopez-Mendoza to be given
        such a reading.
Olivares-Rangel, 458 F.3d 1111 (emphasis added).
        Contrary to the conclusions of these three circuits, this Circuit and the
Third and Sixth Circuits have concluded that Lopez-Mendoza stands for the
proposition that a defendant’s identity is never suppressible.               See Roque-
Villanueva, 175 F.3d at 346; Navarro-Diaz, 420 F.3d at 588; United States v.
Bowley, 435 F.3d 426 (3d Cir. 2006). None explicitly addressed the analysis the
Fourth, Eighth, and Tenth Circuits presented distinguishing between the
jurisdictional and evidentiary holdings of Lopez-Mendoza. Instead, this Court
established a blanket rule, whereas the Sixth Circuit seemed to focus upon a
distinction between attempts to suppress evidence of the defendant’s identity,

        2
         Note that the Supreme Court explicitly framed the issue in Lopez-Mendoza as
“whether an admission of unlawful presence in this country made subsequent to an
allegedly unlawful arrest must be excluded as evidence in a civil deportation hearing.” 468
U.S. at 1034 (emphasis added).

                                            14
    Case: 12-30793    Document: 00512290210       Page: 15   Date Filed: 06/27/2013



                                  No. 12-30793

such as his name and birthday, and other evidence, such as fingerprints.
Navarro-Diaz, 420 F.3d at 586-88. Moreover, the Sixth Circuit found that this
reading of Lopez-Mendoza does not lead to the dangerous overreach the Tenth
Circuit identified, because “we do not deal here with egregious violations of [the]
Fourth Amendment or other liberties that might transgress notions of
fundamental fairness.” Id. at 587 (quoting Lopez-Mendoza, 468 U.S. at 1050).
The Third Circuit similarly “doubt[ed] 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 o[r] arrest,” and found the Court’s only qualification on
this rule was that it was not considering “egregious violations of [the] Fourth
Amendment.” Bowley, 435 F.3d at 430.
                                        III.
      All the Circuits seem to agree that if a defendant sought only to suppress
his identity itself, he would fail. This conclusion aligns with Lopez-Mendoza’s
finding that Lopez-Mendoza’s claim failed, in part, because “he entered no
objection to the evidence offered against him.” 468 U.S. at 1040.
      The Fourth, Eighth, and Tenth Circuits, however, correctly distinguish
between such a broad attempt to suppress one’s identity itself and an attempt
to suppress evidence relating to one’s identity, such as statements made during
an unlawful arrest. Indeed, the Supreme Court in Lopez-Mendoza seemed to
suggest this analysis; it framed the issue in that case as “whether an admission
of unlawful presence in this country made subsequent to an allegedly
unlawful arrest must be excluded as evidence in a civil deportation hearing.”
Id. at 1034 (emphasis added). After posing this question—and after stating
“[t]he ‘body’ or identity of a defendant . . . is never itself suppressible”—the
Court turned to Sandoval-Sanchez’s contention that his admission that he
entered the United States unlawfully was suppressible. Id. at 1039 (emphasis
added). The court did not summarily conclude that such an admission is not

                                        15
    Case: 12-30793       Document: 00512290210         Page: 16     Date Filed: 06/27/2013



                                      No. 12-30793

suppressible because one’s identity is not suppressible; instead, the Court
referred to the “general rule” regarding suppressibility in a criminal proceeding,
and conducted the Janis balancing test. The Court found such an analysis
necessary in order ultimately to conclude that such statements need not be
suppressed in the civil deportation hearing. Id. at 1040-51. If the Court had
been saying that statements relating to one’s identity were never suppressible,
this rigorous analysis of the costs and benefits of excluding such evidence in a
civil deportation hearing would have been wholly superfluous. I virtually repeat
myself to observe, as the Fourth, Eighth, and Tenth Circuits highlighted, that
if evidence relating to identity were excluded from the general rule, the Court
almost certainly would have said so, rather than treating it as it would treat any
other potentially suppressible evidence.
       On the other hand, the Sixth Circuit’s reasoning may be considered as
suggesting that some of the alleged evidence is not independent from one’s
identity, but is so inherently intertwined with one’s identity that it necessarily
is tantamount to identity itself. Such evidence, it reasons, includes a person’s
name and birthday.          Other circuits have not addressed these particular
associations with identity.3 The Tenth Circuit in Olivares-Rangel did, however,
find an alien’s statements—including that he was an illegal alien—were
suppressible. 458 F.3d at 1112. It is not immediately clear whether the Sixth
Circuit’s conclusion is consonant with Lopez-Mendoza.                  In that case, the
Supreme Court clearly evaluated whether Sandoval-Sanchez’s statement that
he unlawfully entered the United States was suppressible. See 468 U.S. at 1034.
But it is not obvious what other, if any, statements of his the Court was



       3
        The Tenth Circuit did, in an unpublished opinion, interpret Lopez-Mendoza as
preventing suppression of a defendant’s statement of his name to an officer. United States v.
Cisneros-Cruz, 185 F.3d 875, No. 98-1398, 1999 WL 444926, at *6 (10th Cir. June 30, 1999)
(unpublished).

                                             16
    Case: 12-30793      Document: 00512290210       Page: 17    Date Filed: 06/27/2013



                                    No. 12-30793

considering.    In any event, the reasoning of the Sixth Circuit cannot be
dismissed out of hand.
      Finally, I should make reference to the odd suggestion of the Third and
Sixth Circuits to the effect that we are not dealing with “egregious violations of
[the] Fourth Amendment or other liberties that might transgress notions of
fundamental fairness” in this criminal case. 420 F.3d at 587 (quoting Lopez-
Mendoza, 468 U.S. at 1050). This “take” from Lopez-Mendoza represents a
further misreading of that case. Although it is certainly true that the Supreme
Court observed that no egregious violation occurred in Lopez-Mendoza, it made
that statement only when it was evaluating Sandoval-Sanchez’s argument that
statements he made during his illegal arrest should be suppressed in his
subsequent civil deportation hearing. Furthermore, the Supreme Court in
Lopez-Mendoza went to great length to describe the important differences
between criminal and civil proceedings, noting not only that civil deportation
hearings look prospectively to a defendant’s right to remain in the country
whereas criminal proceedings seek to punish past behavior, but further making
clear that “various protections that apply in the context of a criminal trial do not
apply in a deportation hearing.”4 468 U.S. at 1038-39; see also id. at 1042-50.
                                          IV.
      Hernandez has moved to suppress all the evidence derived from the
unlawful stop he endured, and not merely to suppress his identity. It is unclear
from the record of this case whether Hernandez made statements to the agents,
such as those Sandoval-Sanchez made in Lopez-Mendoza, that could potentially
be suppressible. Therefore, the proper disposition of this case—but for our
precedent—would be to remand for further development of the record. And as
the Tenth Circuit noted, allowing our erroneous interpretation of Lopez-Mendoza

      4
       Moreover, the Court noted “the INS has its own comprehensive scheme for deterring
Fourth Amendment violations by its officers.” 468 U.S. at 1044.

                                          17
    Case: 12-30793    Document: 00512290210      Page: 18    Date Filed: 06/27/2013



                                  No. 12-30793

to persist essentially affords law enforcement officers staggering authority to
detain anyone they suspect of being an illegal alien, for so long as they retrieve
only evidence related to that person’s identity, they will escape any ramifications
for even grossly unconstitutional behavior. Thus, while precedent requires me
to concur with the majority, I hope I have made clear that our precedent is an
incomplete and erroneous reflection of the propositions for which Lopez-Mendoza
stands.




                                        18
