                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  Nos. 03-30355
                Plaintiff-Appellant,               03-30371
                v.                                 03-30356
JOSE LUIS ORTIZ-HERNANDEZ,                     D.C. No.
                                           CR-00-00071-JAR
              Defendant-Appellee.
                                           District of Oregon,
                                                 Portland

                                                ORDER

                    Filed March 30, 2006

  Before: Thomas M. Reavley,* William A. Fletcher, and
           Richard C. Tallman, Circuit Judges.

                            Order;
                    Dissent by Judge Paez


                           ORDER

   Judges Reavley and Tallman have voted to deny the peti-
tion for panel rehearing; Judge Tallman has voted to deny the
petition for rehearing en banc and Judge Reavley so recom-
mends. Judge W. Fletcher has voted to grant the petition for
panel rehearing and the petition for rehearing en banc.

   The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc. The matter failed to receive a majority of the

  *The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the Fifth Circuit, sitting by designation.

                             3561
3562           UNITED STATES v. ORTIZ-HERNANDEZ
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. 35.

  The petition for panel rehearing and the petition for rehear-
ing en banc are denied.



PAEZ, Circuit Judge, with whom PREGERSON, REIN-
HARDT, HAWKINS, THOMAS, WARDLAW, W.
FLETCHER, FISHER, and BERZON, Circuit Judges, join,
dissenting from denial of rehearing en banc:

                       I.   Introduction

   The majority in this case adopts a misreading of INS v.
Lopez-Mendoza, 468 U.S. 1032 (1984), that our circuit
squarely rejected in United States v. Garcia-Beltran, 389 F.3d
864 (9th Cir. 2004), and that is in direct conflict with the lan-
guage of Lopez-Mendoza itself. In so doing, the majority evis-
cerates, for all practical purposes, the exclusionary rule’s
application to fingerprint evidence, and encourages question-
able police practices. I respectfully dissent from my col-
leagues’ decision not to rehear this case en banc.

   Jose Luis Ortiz-Hernandez was arrested by Portland, Ore-
gon officers on suspicion of drug-related activity. Those
charges were later dropped, and Ortiz-Hernandez was indicted
under 8 U.S.C. § 1326 for illegal reentry. In the § 1326 case,
the district court suppressed fingerprint evidence taken in vio-
lation of Ortiz-Hernandez’s Fourth Amendment rights and
denied the Government’s motion to compel a second set of
fingerprint exemplars. The Government appealed the district
court’s denial of that motion to our court.

   There is but one issue in dispute in this case. All members
of the three-judge panel affirmed the district court’s ruling
that the officers did not have probable cause to arrest Ortiz-
               UNITED STATES v. ORTIZ-HERNANDEZ             3563
Hernandez. All three judges further agreed that Ortiz-
Hernandez’s fingerprints were taken for investigatory pur-
poses and had to be suppressed. In a move that defies logic,
however, the majority held that the Government—which has
not demonstrated any independent source dissipating the taint
of the earlier constitutional violation—may compel a new set
of fingerprint exemplars, effectively gutting the exclusionary
rule. As Judge W. Fletcher explained in his dissent, “the
majority allows the government to accomplish with the sec-
ond fingerprint exemplars precisely the same thing it holds
the government cannot accomplish with the first.” United
States v. Ortiz-Hernandez, 427 F.3d 567, 580 (9th Cir. 2005)
(per curiam) (W. Fletcher, J., dissenting) (emphasis added).

   Recognizing that its “holding here limits the theoretical
effect of suppressing the initial set of wrongfully obtained fin-
gerprint exemplars,” id. at 578 (majority opinion), the major-
ity justifies its result as “compelled by United States v. Parga-
Rosas, 238 F.3d 1209 (9th Cir. 2001),” Ortiz-Hernandez, 427
F.3d at 577. Parga-Rosas is easily distinguished. It is Garcia-
Beltran and Lopez-Mendoza that compel the correct result in
this case: We should affirm the district court’s denial of the
Government’s motion.

       II.   The Majority Misreads Lopez-Mendoza

                               A.

   One seemingly innocuous sentence, reiterating a well estab-
lished principle of personal jurisdiction, has led to amaran-
thine confusion. In Lopez-Mendoza the Supreme Court stated
that “[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.” Lopez-Mendoza, 468 U.S. at
1039. The Court made this statement in the context of
addressing a challenge by Lopez-Mendoza “to the fact that he
had been summoned to a deportation hearing following an
unlawful arrest.” Id. at 1040. Lopez-Mendoza “entered no
3564           UNITED STATES v. ORTIZ-HERNANDEZ
objection to the evidence offered against him.” Id. The Court
cited six cases, which all considered whether jurisdiction over
a defendant or seized res properly existed. Id. at 1039-40. I
see no way to read the “body or identity” sentence in Lopez-
Mendoza as anything other than an affirmation of the estab-
lished principle that an illegal arrest does not bar prosecution
for a crime.

   One need look no further than Lopez-Mendoza itself to con-
firm that the “body or identity” language is inapplicable
where a defendant raises a Fourth Amendment evidentiary
challenge. The second respondent in Lopez-Mendoza,
Sandoval-Sanchez, “objected not to his compelled presence at
a deportation proceeding, but to evidence offered at that pro-
ceeding.” Id. at 1040. Distinguishing Sandoval-Sanchez’s
case from Lopez-Mendoza’s, the Supreme Court cited Wong
Sun v. United States, 371 U.S. 471 (1963), and stated that
“[t]he general rule in a criminal proceeding is that statements
and other evidence obtained as a result of an unlawful, war-
rantless arrest are suppressible if the link between the evi-
dence and the unlawful conduct is not too attenuated.” Lopez-
Mendoza, 468 U.S. at 1040-41. The Court did not create an
exception for evidence that tends to establish a defendant’s
identity, such as fingerprint evidence. Nor did it indicate any
intention to overrule Davis v. Mississippi, 394 U.S. 721
(1969) (holding that fingerprint evidence obtained in the
absence of probable cause to arrest must be suppressed), and
Hayes v. Florida, 470 U.S. 811 (1985) (same).

   The Ortiz-Hernandez majority misreads the “body or iden-
tity” sentence as applying to evidentiary challenges, and in so
doing conflates two distinct lines of cases. The Frisbie v. Col-
lins, 342 U.S. 519 (1952), line of cases holds that a tribunal
has jurisdiction to try a defendant even if his presence in court
was obtained through illegal means. It was the Frisbie line of
cases, addressing personal jurisdiction, that the Supreme
Court cited to immediately after the “body or identity” sen-
tence in Lopez-Mendoza. See Lopez-Mendoza, 468 U.S. at
                 UNITED STATES v. ORTIZ-HERNANDEZ                     3565
1039-40. The Wong Sun line of cases—requiring suppression
of evidence discovered as a consequence of an illegal arrest,
unless an independent source dissipates the taint of the
illegality—is distinct and applies in cases where the govern-
ment seeks to use evidence obtained in violation of the Fourth
Amendment. The majority’s reading of Lopez-Mendoza takes
language from the Frisbie line of cases and applies it to the
Wong Sun line of cases in a way that renders Wong Sun inap-
plicable to fingerprint evidence. The “fruit of the poisonous
tree” doctrine contains no such exception. See Davis, 394
U.S. at 724 (“[A]ll evidence obtained by searches and sei-
zures in violation of the Constitution is . . . inadmissible in . . .
court. Fingerprint evidence is no exception to this comprehen-
sive rule.” (internal quotation marks and explanatory paren-
thetical omitted) (second emphasis added)).

   Other courts have recognized the potential for misreading
the “body or identity” language and correctly concluded that
it applies to jurisdictional, not evidentiary, challenges. See,
e.g., United States v. Garcia, 2005 WL 3556089, at *8 (D.
Utah Dec. 28, 2005); United States v. Olivares-Rangel, 324 F.
Supp. 2d 1218, 1223-24 (D.N.M. 2004); United States v.
Mendoza-Carrillo, 107 F. Supp. 2d 1098, 1105-07 (D.S.D.
2000); State v. Perkins, 760 So. 2d 85, 86-87 (Fla. 2000) (per
curiam); see also United States v. Navarro-Diaz, 420 F.3d
581, 584-86 (6th Cir. 2005) (explaining that Lopez-Mendoza’s
“body or identity” language does not apply to challenges to
fingerprint evidence, but rather requires admission in court of
a defendant’s identity, i.e., who he is).1
  1
    But see United States v. Bowley, 435 F.3d 426, 430-31 (3d Cir. 2006)
(citing Lopez-Mendoza and holding that a defendant’s identity and immi-
gration file are not suppressible); United States v. Roque-Villanueva, 175
F.3d 345, 346 (5th Cir. 1999) (same). Neither Bowley nor Roque-
Villanueva concerned fingerprint evidence. In Bowley, the district court
suppressed illegally obtained fingerprint evidence as fruit of the poisonous
tree. United States v. Bowley, 2005 WL 1398632, at *3 (D.V.I. June 8,
2005). The Government did not appeal that order to the Third Circuit. See
3566             UNITED STATES v. ORTIZ-HERNANDEZ
   Indeed, our court made this distinction in Garcia-Beltran
and even earlier in United States v. $191,910.00 in U.S. Cur-
rency, 16 F.3d 1051, 1063-64 (9th Cir. 1994) (recognizing
that Lopez-Mendoza’s “body or identity” language applies to
jurisdictional, not evidentiary, challenges, in the civil forfei-
ture context), superseded by statute on other grounds as
stated in United States v. $80,180.00 in U.S. Currency, 303
F.3d 1182, 1184 (9th Cir. 2002). In Garcia-Beltran, we
explicitly rejected the Government’s argument that Lopez-
Mendoza’s “body or identity” language applied to fingerprint
evidence:

        Garcia-Beltran, however, did not seek to suppress
     the fact of his identity or “body”; he recognized that
     he could lawfully be compelled to appear in court.
     Rather, he sought to exclude all evidence obtained
     from him as a result of his illegal arrest, including
     evidence that would tend to establish his true iden-
     tity, such as fingerprints, photographs and oral state-
     ments. Contrary to the government’s argument,
     Lopez-Mendoza does not preclude suppression of
     evidence unlawfully obtained from a suspect that
     may in a criminal investigation establish the identity
     of the suspect.

Garcia-Beltran, 389 F.3d at 866-67. We explained that
United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir. 1994),
and United States v. Del Toro Gudino, 376 F.3d 997 (9th Cir.
2004), stood only for the proposition that a defendant may not
suppress the fact of who he is, and we held those cases inap-
plicable to the question of whether to suppress fingerprint evi-

Bowley, 435 F.3d at 429. In the Fifth Circuit, in a case decided subsequent
to Roque-Villanueva, the district court suppressed a defendant’s finger-
prints and confession, but not his body, identity, or immigration file.
United States v. Herrera-Ochoa, 245 F.3d 495, 497 (5th Cir. 2001). The
Court of Appeals affirmed the district court’s rulings. Id. at 498.
                 UNITED STATES v. ORTIZ-HERNANDEZ                      3567
dence. See Garcia-Beltran, 389 F.3d at 866 (“We
acknowledged [the Lopez-Mendoza] rule in Guzman-Bruno
where . . . we said that ‘[a] defendant’s identity need not be
suppressed merely because it is discovered as the result of an
illegal arrest or search.’ ” (third alteration in original)); id.
(quoting Del Toro Gudino as stating, “ ‘We continue to hold
today that the simple fact of who a defendant is cannot be
excluded, regardless of the nature of the violation leading to
his identity.’ ”); id. at 867 n.4 (“Guzman-Bruno did not
directly address the problem of fingerprints taken for an
investigative purpose in the context of potential criminal vio-
lations of immigration law . . . . [Guzman-Bruno] did not
involve fingerprint evidence and the need to classify it as
either investigatory or identification evidence (and thus Hayes
and Davis were not implicated).”).

  Garcia-Beltran then cited to and quoted from the Eighth
Circuit’s decision in United States v. Guevara-Martinez, 262
F.3d 751 (8th Cir. 2001), which held that Lopez-Mendoza’s
“body or identity” language applies only in the jurisdictional,
not evidentiary, context. Garcia-Beltran, 389 F.3d at 868. By
adopting a contrary interpretation of Lopez-Mendoza, the
Ortiz Hernandez majority has created an intracircuit split with
our holding in Garcia-Beltran.2
  2
    To the extent, if any, that Guzman-Bruno and Del Toro Gudino held
that Lopez-Mendoza’s “body or identity” language applies in the evidenti-
ary context, they were wrongly decided, and our court unfortunately
passes up an opportunity to reconsider their holdings as part of en banc
reconsideration of Ortiz-Hernandez. In any event, Garcia-Beltran
authoritatively interpreted Guzman-Bruno and Del Toro Gudino as inap-
plicable to the issue of suppression of fingerprint evidence, and the majori-
ty’s holding to the contrary creates an intracircuit conflict on the meaning
of these two cases. The majority may disagree with our decision in
Garcia-Beltran, but it has an obligation to apply the binding law of our
circuit to the facts of Ortiz-Hernandez’s case. Our court errs by not cor-
recting the majority’s failure to discharge this duty.
3568          UNITED STATES v. ORTIZ-HERNANDEZ
                               B.

  As Judge W. Fletcher recognized, Garcia-Beltran is on all
fours with the present case:

    Garcia-Beltran, like Ortiz-Hernandez, was illegally
    arrested by an officer of the Portland Police Depart-
    ment. His fingerprints, like Ortiz-Hernandez’s, were
    taken after arrest. Like Ortiz-Hernandez, he was sub-
    sequently charged with illegal entry. At Garcia-
    Beltran’s criminal trial, the district court admitted his
    fingerprint exemplars as evidence of his identity. We
    reversed and remanded, holding that the fingerprint
    exemplars must be suppressed if they were taken for
    purely investigatory purposes.

Ortiz-Hernandez, 427 F.3d at 580 (W. Fletcher, J., dissenting)
(internal quotation marks and citation omitted). The majority
incorrectly limits Garcia-Beltran to the initial set of finger-
prints. By its clear language, Garcia-Beltran applies to any
fingerprint exemplars taken for purely investigatory purposes.

   The question to ask in this case is whether the Government
seeks fingerprint exemplars to connect a suspect to a crime,
or instead to confirm the identity of a properly charged defen-
dant. Sometimes fingerprint exemplars are insuppressible evi-
dence confirming a defendant’s identity, see Parga-Rosas,
238 F.3d at 1215 (“Because the fingerprints were not taken
for investigatory purposes but for the sole purpose of proving
Parga-Rosas’s identity, the Fourth Amendment is not impli-
cated.”), and sometimes they are evidence connecting a sus-
pect to a crime, suppressible under Mapp v. Ohio, 367 U.S.
643 (1961), see Hayes, 470 U.S. at 813-15; Davis, 394 U.S.
at 724. The distinction turns on whether the fingerprints were
taken for investigatory purposes, or instead are used to con-
firm the identity of a defendant the government already has
probable cause to arrest and indict. See Rise v. Oregon, 59
F.3d 1556, 1560 (9th Cir. 1995) (“Thus, in the fingerprinting
              UNITED STATES v. ORTIZ-HERNANDEZ             3569
context, there exists a constitutionally significant distinction
between the gathering of fingerprints from free persons to
determine their guilt of an unsolved criminal offense and the
gathering of fingerprints for identification purposes from per-
sons within the lawful custody of the state.”), abrogated on
other grounds as recognized in Vore v. U.S. Dep’t of Justice,
281 F. Supp. 2d 1129, 1134 n.1 (D. Ariz. 2003).

   I do not dispute the proposition that, once the government
has independent, untainted evidence that permits it to book
and indict a defendant, it may obtain a fingerprint exemplar
for use at trial. See id. Those facts, however, are not present
in Ortiz-Hernandez’s case. Ortiz-Hernandez was arrested ille-
gally and taken to the police station, where officers proceeded
to run the false names he had provided through their data-
bases. When the officers’ search came up empty, they
arranged for Ortiz-Hernandez to speak with immigration offi-
cials. When that interview produced no useful information,
the officers sent Ortiz-Hernandez for fingerprinting and then
ran his prints through another database. Eureka! Just as the
officers suspected, Ortiz-Hernandez was in this country ille-
gally. The crucial point, however, is that it was not until this
final search produced a hit that the officers learned Ortiz-
Hernandez’s true identity and had probable cause to arrest
him for a violation of § 1326. See Ortiz-Hernandez, 427 F.3d
at 578 (“It is true that the government would not have known
Ortiz-Hernandez’s identity without having unlawfully taken
the first set of fingerprints . . . .”).

   The Government has not made a showing that it has pro-
cured untainted evidence of Ortiz-Hernandez’s guilt. There is
no indication that, after the district court suppressed Ortiz-
Hernandez’s initial set of fingerprints, the Government under-
took an additional investigation to uncover evidence of Ortiz-
Hernandez’s alleged crime or his identity, or that the Govern-
ment had sufficient evidence to indict Ortiz-Hernandez before
they obtained his fingerprints. Without such a showing, the
Government’s request for a second set of fingerprint exem-
3570           UNITED STATES v. ORTIZ-HERNANDEZ
plars is investigatory and must be denied as fruit of the poi-
sonous tree.

                               C.

   The majority’s statement to the contrary notwithstanding,
Parga-Rosas supports this conclusion. Parga-Rosas presented
a “green card” to police, which in turn led to discovery of his
immigration file—prior to any illegal conduct on the officers’
part. It was only after this information was obtained that
Parga-Rosas was questioned without having been read his
Miranda rights. Parga-Rosas then was taken to a border patrol
station and fingerprinted. The district court suppressed the
fingerprints as fruits of an illegal arrest. It was a second set
of fingerprints, taken five months after his initial arrest, that
were at issue in Parga-Rosas. We correctly affirmed the dis-
trict court’s denial of Parga-Rosas’s motion to suppress this
second set of fingerprints on the theory that they were not
taken for investigatory purposes but rather to prove his iden-
tity. Parga-Rosas, 238 F.3d at 1215. The government had
independent, untainted evidence of Parga-Rosas’s crime with-
out the first set of fingerprints. In contrast to Ortiz-
Hernandez’s case, the second exemplar was not investigatory
evidence necessary to build the case against Parga-Rosas, but
instead evidence confirming Parga-Rosas’s identity that was
admissible at trial. The majority’s reliance on Parga-Rosas is
therefore misplaced.

   Contrary to the majority’s conclusion, see Ortiz-
Hernandez, 427 F.3d at 578 n.5 (“While the dissent is correct
to note that the general rule under the Fourth Amendment is
to suppress unlawfully obtained evidence, the [Supreme]
Court [in Lopez-Mendoza] created a specific exclusion from
that general rule for evidence of identity.”), not all “identity”
evidence is insuppressible. Rather, evidence tending to estab-
lish a defendant’s identity is suppressible when unconstitu-
tionally obtained and used for investigatory purposes, but may
               UNITED STATES v. ORTIZ-HERNANDEZ              3571
be introduced in court to confirm the identity of a properly
charged defendant.

   If there was any question whether evidence that establishes
a defendant’s identity could be suppressed under Wong Sun,
that question was answered by the Supreme Court in United
States v. Crews, 445 U.S. 463 (1980). Crews upheld a trial
court’s decision to admit an in-court identification. But prior
to this in-court identification, the defendant in Crews was the
subject of out-of-court photographic and lineup identifications
that were products of an arrest without probable cause. The
Supreme Court reiterated the basic principles of Wong Sun’s
“fruit of the poisonous tree” analysis, id. at 470-71, and
affirmed the trial court’s ruling that the photographic and
lineup identifications (i.e., evidence tending to establish the
defendant’s identity) were inadmissible at trial as “suppress-
ible fruits of the Fourth Amendment violation,” id. at 472.

   In affirming the trial court’s admission of the in-court iden-
tification, the Court emphasized that the victim’s presence in
the courtroom, where she made the identification, was not the
product of any illegal police conduct. Id. at 471-72. Relying
on the Frisbie line of cases, the Court also held that Crews
could not challenge his own presence at trial. Id. at 474.
Because the in-court identification was not tainted by the ille-
gal arrest, it was not suppressed. The Court explicitly recog-
nized that if the out-of-court identifications had affected the
reliability of the in-court identification, the latter would be
tainted and could be suppressed as the fruit of an illegal arrest.
Id. at 472-73. In other words, the Court stated that “identity”
evidence used to build a case against a defendant could and
would be suppressed if it was improperly obtained, under the
principles of Wong Sun.

   Ortiz-Hernandez raises an evidentiary challenge to the use
of illegally obtained fingerprint evidence at his criminal trial.
He does not contest the district court’s jurisdiction over his
person, nor does he argue that the district court must exclude
3572          UNITED STATES v. ORTIZ-HERNANDEZ
at trial the fact of who he is. Under Garcia-Beltran, it is
Hayes and Davis, not Lopez-Mendoza, Guzman-Bruno, or Del
Toro Gudino, that govern the outcome in this case.

 III.   The Majority’s Holding Creates a Split with the
                        Eighth Circuit

                              A.

   Not only does the majority misconstrue the meaning of
Lopez-Mendoza’s “body or identity” language and its applica-
bility to fingerprint evidence, the opinion in Ortiz-Hernandez
creates an intercircuit split. In Guevara-Martinez, which we
quoted with approval in Garcia-Beltran, the Eighth Circuit
“conclude[d] that Lopez-Mendoza’s statement about the sup-
pression of identity only refers to jurisdictional challenges,
not to fingerprint evidence challenged in a criminal proceed-
ing.” Guevara-Martinez, 262 F.3d at 754. The Eighth Circuit
held that Guevara-Martinez’s fingerprints were obtained for
investigatory purposes, applied Wong Sun, and suppressed
them. Id. at 755-56.

   The Eighth Circuit acknowledged that Guevara-Martinez’s
fingerprints could be obtained in civil deportation proceed-
ings, and these validly obtained prints used to reindict him on
criminal charges. Despite this potential practical consequence,
the court refused “to ignore [the Government’s] use of tainted
evidence,” and suppressed the invalidly obtained fingerprints.
Id. at 756.

  The Eighth Circuit has adhered to its rule that illegally
obtained fingerprint evidence may not be used in § 1326 pros-
ecutions despite the government’s ability to obtain exemplars
in civil deportation proceedings. See, e.g., United States v.
Flores-Sandoval, 422 F.3d 711, 715 (8th Cir. 2005); United
States v. Perez-Perez, 337 F.3d 990, 994 (8th Cir. 2003);
United States v. Rodriguez-Arreola, 270 F.3d 611, 619 (8th
Cir. 2001). Whether or not the Eighth Circuit is correct that
              UNITED STATES v. ORTIZ-HERNANDEZ               3573
a civil deportation proceeding is sufficient to dissipate the
taint of an illegality in a § 1326 proceeding, see Silverthorne
Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (stat-
ing that merely requiring an extra step to procure illegally
obtained evidence “reduces the Fourth Amendment to a form
of words”), the Government is not attempting to introduce
properly obtained fingerprints in Ortiz-Hernandez’s criminal
trial. Instead, it seeks an order from the district court judge
compelling production of fingerprint exemplars in the crimi-
nal case.

   The Eighth Circuit has not, as we now do in Ortiz-
Hernandez, turned a blind eye to the means by which the gov-
ernment obtains fingerprints for use at trial. The Eighth Cir-
cuit has recognized that the government is likely to initiate
deportation proceedings against defendants charged with vio-
lating 8 U.S.C. § 1326 and to obtain fingerprint exemplars in
those civil proceedings. Under the Eighth Circuit’s case law,
the government may then use those untainted prints in the
criminal case. Nothing in the Eighth Circuit’s precedent, how-
ever, would permit the Government to obtain fingerprint
exemplars through compelled production in Ortiz-
Hernandez’s criminal case. To the contrary, the Eighth Circuit
has been crystal clear that it will not tolerate what the Ortiz-
Hernandez majority has allowed the Government to do:

    [T]he 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 under-
3574           UNITED STATES v. ORTIZ-HERNANDEZ
    stand that they must [obtain the evidence the right
    way].”

Guevara-Martinez, 262 F.3d at 756 (quoting Davis, 394 U.S.
at 72[5] n.4) (second and third alterations in original).

   No case of which I am aware, in this circuit or the Eighth
Circuit, has held that fingerprint exemplars may be obtained
through compelled production in a criminal case in the
absence of probable cause to arrest or indict a defendant. No
case, that is, until this one.

                               B.

   As I read the case law, the Government may continue to
prosecute Ortiz-Hernandez for the § 1326 violation. It may
introduce evidence to prove that he is the same person who
previously was removed from the country. But the Govern-
ment must use untainted evidence. There is a price to pay for
obtaining evidence the wrong way, and that price is suppres-
sion. The Government is not suddenly exempted from paying
that price because the evidence at issue is fingerprint evi-
dence.

   Perhaps the Government will be unable to make its case
against Ortiz-Hernandez without using tainted evidence. That
is an accepted consequence of the exclusionary rule. As the
Supreme Court explained in Lopez-Mendoza, when the gov-
ernment illegally obtains evidence of an immigration offense,
the upshot is that the crime might go unpunished. See Lopez-
Mendoza, 468 U.S. at 1047 (“The constable’s blunder may
allow the criminal to go free . . . .”). But the exclusionary rule
does not apply in civil deportation proceedings, and for that
reason Ortiz-Hernandez likely will be deported. See id.
(“When the crime in question involves unlawful presence in
this country, the criminal may go free, but he should not go
free within our borders.”).
               UNITED STATES v. ORTIZ-HERNANDEZ              3575
   There has never been a finding in this case that the taint of
Ortiz-Hernandez’s illegal arrest has been dissipated. The
majority did not so hold. Instead, it relied on an incorrect, pre-
viously rejected interpretation of Lopez-Mendoza’s “body or
identity” language. Our court should correct this error by
rehearing Ortiz-Hernandez en banc.

                       IV.   Conclusion

   The Ortiz-Hernandez majority fundamentally misunder-
stands the Supreme Court’s decision in Lopez-Mendoza. This
misunderstanding leads the majority to a holding that conflicts
with our precedent in Garcia-Beltran and the Eighth Circuit’s
decision in Guevara-Martinez. It also leads to the bizarre
result that Mapp v. Ohio and Wong Sun no longer apply to
fingerprint evidence, because Lopez-Mendoza somehow over-
ruled Davis and Hayes sub silentio. This cannot be correct.

   Because Ortiz-Hernandez creates confusion over the mean-
ing of Lopez-Mendoza in this circuit, produces an intercircuit
conflict with the Eighth Circuit, and renders the exclusionary
rule meaningless when applied to fingerprint evidence, I
believe our court should rehear this case en banc. The majori-
ty’s conclusion that the Government may compel a second set
of fingerprints and substitute them for the illegally obtained
first set can only serve to promote disrespect for the law and
disdain for the judicial process. I respectfully dissent from the
court’s decision to deny Ortiz-Hernandez’s petition for
rehearing en banc.
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The summary, which does not constitute a part of the opinion of the court, is copyrighted
                              © 2006 Thomson/West.
