[00:00:00] Speaker 02: and go on to the next case on the calendar. [00:00:05] Speaker 02: United States versus Flora Altamirano, 22-50267. [00:00:46] Speaker 04: Good morning. [00:00:47] Speaker 04: May it please the court. [00:00:47] Speaker 04: My name is Howard Schneider. [00:00:49] Speaker 04: I'm here on behalf of the appellant, Jorge Luis Flores Altamirano. [00:00:53] Speaker 04: With the court's permission, I'd like to reserve two minutes for rebuttal, but I'll watch the clock. [00:00:57] Speaker 02: OK. [00:00:58] Speaker 04: This case presents a constitutional issue under the Fourth Amendment, as well as a statutory issue under Section 1357. [00:01:05] Speaker 04: If the court finds a constitutional violation, then that will be the end of the matter. [00:01:10] Speaker 04: So I will start with the Fourth Amendment issue here. [00:01:14] Speaker 04: ICE officers did not have probable cause that Mr. Flores Altamirano committed a crime before his arrest. [00:01:21] Speaker 02: Also, you can use your time, of course, the way you want. [00:01:23] Speaker 02: It strikes me as you're picking your hardest argument. [00:01:26] Speaker 04: I will move on then to what I think is probably the heart of the issue about whether a violation of section 1357 has suppression as an available [00:01:38] Speaker 02: I think that's it. [00:01:39] Speaker 02: Let's talk about that. [00:01:40] Speaker 04: Sure. [00:01:41] Speaker 04: I agree. [00:01:41] Speaker 04: And I think the correct framing for that issue is whether the court can use its supervisory powers to suppress. [00:01:49] Speaker 04: And to be very clear about what we're asking for is, in our view, a modest request to remand to the district court to decide in the first instance whether suppression is appropriate. [00:01:59] Speaker 04: We're not asking this court to order suppression. [00:02:03] Speaker 04: We're simply asking for this court to remand so that the district court can make that assessment in the first instance. [00:02:08] Speaker 04: There are two main bases for suppression under the court's supervisory authority. [00:02:14] Speaker 04: One of them is to deter future violations of a statute. [00:02:18] Speaker 04: And that line of cases stems from McNabb and goes through Roberts and Dreyer in the Ninth Circuit. [00:02:25] Speaker 04: Another basis, though, separate and apart from that, comes from the outrageous government misconduct line of cases, such as Fernandez, that talk about flagrant government misconduct coupled with substantial prejudice to the defendant. [00:02:37] Speaker 04: And the cleanest line here, I think, comes from Dreyer in that line of cases in terms of the court having the supervisory power to suppress. [00:02:47] Speaker 04: And that's to deter future statutory violations. [00:02:50] Speaker 04: What we have in this case is we have a situation where ICE officers did not get a warrant before the arrest when they easily could have and should have. [00:02:59] Speaker 04: Instead, they arrested without a warrant. [00:03:02] Speaker 02: No, because, of course, either that or they're really bad record keepers, right? [00:03:06] Speaker 02: They indicated I think there's indication in the record that they thought they did get one then they couldn't find it It's certainly the fact that they say they thought they got one certainly forecloses the argument that they didn't have time to get one I'll grant you that The district court assumed that they didn't get one Because they couldn't produce it, right? [00:03:25] Speaker 04: That's correct. [00:03:26] Speaker 02: What do you think we should do with that fact pattern? [00:03:28] Speaker ?: I [00:03:28] Speaker 04: So I think it's important to remember that although the district court made that assumption, the district court noted in footnote two of its order that it was extremely troubled by what happened here. [00:03:40] Speaker 04: In particular, and this is at ER 184 footnote two, the court says, notwithstanding the court's alarm, [00:03:48] Speaker 04: that officers sought to recreate a believed missing warrant. [00:03:52] Speaker 04: It doesn't change the court's analysis, but the court urges the government in the strongest terms possible to educate the officers in the ERO that recreating [00:03:59] Speaker 04: and backdating, a missing warrant would be considered evidence tampering and would be sanctionable conduct. [00:04:05] Speaker 02: Pretty harsh, pretty strong rebuke, to be sure. [00:04:07] Speaker 02: So when we look at the ... I think you're talking about the prong of cases, and necessarily so, where if there's gonna be a decision made about whether the exclusionary rule should be applied, which is not our first instinct, [00:04:20] Speaker 02: by any means. [00:04:20] Speaker 02: We've said it's our last. [00:04:22] Speaker 02: We look to see whether there's been misconduct that needs to be corrected. [00:04:25] Speaker 02: And we have that district court strong language that you've mentioned. [00:04:28] Speaker 02: But the other part of what's happening here is this person had been removed once, found back in the country, picked up and was in jail. [00:04:37] Speaker 02: I think jumped through the hoops correctly. [00:04:39] Speaker 02: I don't mean to be disrespectful in any way in paraphrasing that. [00:04:42] Speaker 02: Ask for a hold. [00:04:43] Speaker 02: The jail let him go. [00:04:44] Speaker 02: So then they're trying to follow the rules. [00:04:48] Speaker 02: Then they go try to find this person again. [00:04:50] Speaker 02: They find him. [00:04:51] Speaker 02: It seems to me they have tons of probable cause, with all respect, right? [00:04:56] Speaker 02: And it seems to me they're trying to do it right. [00:04:57] Speaker 02: So what is it we're deterring, apart from the strong language the judge just, that you just described, they say they went to get this administrative warrant, got it, can't find it, and then somebody tried to recreate it. [00:05:11] Speaker 02: She slapped their wrists hard to say, don't do that again. [00:05:14] Speaker 02: I think correctly, so. [00:05:17] Speaker 02: But at this point, you think the exclusionary rule will be appropriate because? [00:05:21] Speaker 04: Yes, Your Honor. [00:05:22] Speaker 04: So to answer your concerns, I think that it's more of a problem than just a slap on the wrist about what happened after the fact. [00:05:30] Speaker 04: I mean, the strong implication, what the record indicates very strongly is that there was chicanery beforehand, that this pre-arrest warrant, if it existed, there should have been a record of it somewhere. [00:05:41] Speaker 04: They have a record of a post-arrest warrant, which that's what they were trying. [00:05:44] Speaker 04: to play around with, and there's email communications about the post arrest warrant, but there is zero evidence that a pre-arrest warrant actually existed other than their bare assertion and their declarations. [00:05:54] Speaker 04: It's not there. [00:05:55] Speaker 04: And so I think that is a serious problem when coupled with the fact that this is not the first time that this has happened. [00:06:01] Speaker 02: There are other cases where we look to widespread abuse. [00:06:05] Speaker 02: Congress had this rule for a reason that requires that this step be taken. [00:06:10] Speaker 02: And what is your best indication that the government has broadly disregarded this requirement? [00:06:17] Speaker 04: So below, we cited a couple instances around the same time frame of where this has happened in different cases. [00:06:26] Speaker 04: And then in the appeal, we cited some other cases as well where this has been a problem. [00:06:30] Speaker 04: This is an issue where ICE has not gotten pre-arrest warrants or has fabricated [00:06:36] Speaker 04: certain things in the field operations worksheet folder and so I just I think that I would rely on what we cited in the in our briefing and also in the record below but but there is an indication that this is not a one-off and also I will say that just given the ICE officers sort of like nonchalant way that they reacted in this in this case also is indicative of something more serious I know the court your honor reference that it has record-keeping issue but that's not our position our position is it cuts a lot deeper than that [00:07:05] Speaker 02: Well, and I didn't mean to make light of it. [00:07:06] Speaker 02: You know, you did reference our drier opinion, an en banc decision, where we had, you know, very, very serious violations. [00:07:14] Speaker 02: And what we said there is the exclusionary rule is not our first instinct, and that we spent some time [00:07:22] Speaker 02: laying out exactly what the government's burdens were and basically said in that case, we trust you're going to get this right. [00:07:29] Speaker 02: So hence my question on it, you're obviously familiar with that case, but it looks like Judge Fletcher is winding up for questions. [00:07:35] Speaker 03: Yeah, I do have a question. [00:07:36] Speaker 03: You're asking us to send it back, that is to say, that assumes then that we would disagree with Judge Gee on this second prong of the statutory test, that is to say, worried about escape or timeliness. [00:07:50] Speaker 03: My question is, [00:07:52] Speaker 03: Would we owe some deference to Judge Gee's decision, or is it just a question of law that if we disagree, we disagree? [00:08:00] Speaker 03: I'm trying to figure out if we send it back and Judge Gee rules either for or against you, is it abuse of discretion? [00:08:08] Speaker 03: What's the standard by which we would review Judge Gee? [00:08:11] Speaker 04: That's a good question. [00:08:12] Speaker 04: I don't want to speak out of school on that. [00:08:14] Speaker 04: I'm not 100% sure because I'm not sure if it's purely a legal question or if it might be a mixed question. [00:08:19] Speaker 04: I don't remember finding a clear answer in the case. [00:08:22] Speaker 03: If it's a purely legal question, I would see no reason at all to be mad. [00:08:27] Speaker 03: Why is that? [00:08:28] Speaker 04: because we can simply decide if whatever judge G decides we would simply we decide on our own okay I understand I mean I I just I don't want to speak out of school and say something that's wrong so I could submit something post argument on that point I'm not I'm not a hundred percent sure only if asked okay okay relied on right is this sentence I think on page three [00:08:47] Speaker 02: I just flipped it on three of her order. [00:08:51] Speaker 02: As for the likelihood of escape requirement when the alien's deportability is clear, which it was here, and undisputed, which I think is also true, that circumstance alone may provide a sufficient basis for an immigration officer to believe escape is likely. [00:09:05] Speaker 02: My problem with that rationale is that I think it applied to every case, and yet [00:09:11] Speaker 02: right where someone is found back in the country, and yet Congress required this administrative warrant to be obtained. [00:09:18] Speaker 02: Do you want to respond to that? [00:09:19] Speaker 04: No, I agree with Your Honor on that point, and we pointed out that that was from a second circuit case in Dicta, no less, and we don't think that that's binding case law. [00:09:26] Speaker 04: I'm almost at my time. [00:09:28] Speaker 04: I did want to respond about the dryer point, but I can do it on rebuttal, whatever Your Honor prefers. [00:09:32] Speaker 04: Whatever you prefer. [00:09:34] Speaker 04: If I can have more time in rebuttal, I'll do it now. [00:09:36] Speaker 02: Sure, we'll save your time. [00:09:38] Speaker 02: When you come back, we'll put two minutes on the clock. [00:09:40] Speaker 04: Okay, very well. [00:09:40] Speaker 04: Then just to answer briefly the point about dryer, I think it's very different for a few reasons. [00:09:45] Speaker 04: First of all, as the court- We were gonna put two minutes on the clock so you could- Oh, yeah, I'm sorry. [00:09:48] Speaker 02: Very well. [00:09:49] Speaker 02: Thank you. [00:09:49] Speaker 02: Okay. [00:09:50] Speaker 02: All right. [00:09:50] Speaker 02: Thank you so much. [00:09:51] Speaker 02: We'll hear from opposing counsel, please. [00:09:57] Speaker 00: Good morning, your honors. [00:09:59] Speaker 00: May it please the court? [00:10:00] Speaker 00: I'm Courtney Williams on behalf of the United States. [00:10:04] Speaker 00: This court should affirm the district court's ruling for a couple of reasons. [00:10:08] Speaker 00: First, there was ample amount of probable cause for the officers to believe that the defendant had illegally reentered the country in violation of Section 1326. [00:10:19] Speaker 00: And we believe that that should end the court's analysis, because it was a constitutional stop in this particular case. [00:10:26] Speaker 00: And the evidence that the district court relied on for that particular prong of probable cause is a final order of removal, a positive identification by the officers by comparing the defendant to the photograph in his alien file and then reviewing his Mexican ID. [00:10:46] Speaker 00: Also, there was a detainer, and in the detainer, the detainer noted that there was probable cause that the defendant was removable based on a final order and biometric confirmation of defendant's identity by comparison to records in the federal database. [00:11:08] Speaker 00: the defendant was characterized and labeled as reinstate and that that has a very specific meaning in terms of it means that the defendant was there was a final order of removal in the record he was removed and then presumptively he's back here in the country illegally but also the on the field operations worksheet which is in the record at um [00:11:34] Speaker 00: The officers indicate that they check the claims database and that shows that they did find records. [00:11:47] Speaker 00: that the defendant did not seek permission to appear here, permission to be back here. [00:11:53] Speaker 03: So this is all still just going to the 14th Amendment claim? [00:11:56] Speaker 00: This is all going to the Fourth Amendment claim? [00:11:59] Speaker 03: You're pushing on an open door. [00:12:00] Speaker 03: You win on that, at least as far as I'm concerned. [00:12:02] Speaker 03: The harder question is the statutory 1357. [00:12:05] Speaker 02: Right. [00:12:06] Speaker 02: So there's a constitutional violation. [00:12:07] Speaker 02: There's still a statute that requires them to get this administrative warrant. [00:12:12] Speaker 02: Can you focus on that? [00:12:13] Speaker 00: I will focus on that. [00:12:14] Speaker 00: Although I do believe, because it was a constitutional arrest, I do think that that ends the issue. [00:12:19] Speaker 03: But I will focus on the issue. [00:12:20] Speaker 03: No, that's not right. [00:12:22] Speaker 02: It doesn't. [00:12:22] Speaker 03: You've got to satisfy 1357. [00:12:24] Speaker 02: Congress put it there for a reason. [00:12:26] Speaker 02: So if you just take that as a given, maybe that's the best use of our time, because at least two of us seem to think that that statute still needs to be complied with, or there needs to be an excuse, or we need to talk about whether the exclusionary rule is properly applied here. [00:12:39] Speaker 00: Sure, Your Honor. [00:12:40] Speaker 00: Well, in this particular case, the district court did find that the officers did comply with both prongs of Section 1357. [00:12:48] Speaker 03: The second prong strikes me as, I'm not so sure I agree, because under the second prong, [00:12:55] Speaker 03: the district judge has to find that the officers were justified in including that he was likely to escape before they could get a warrant well he was there in the same place they waited a month they knew where he was they were pretty leisurely if they thought he was likely to escape [00:13:13] Speaker 00: So that is the textual language of the statute. [00:13:17] Speaker 03: That's right. [00:13:18] Speaker 03: And I think we've got to satisfy the statute. [00:13:21] Speaker 03: I'm a textualist. [00:13:25] Speaker 00: Indeed. [00:13:26] Speaker 00: So that is the textual language. [00:13:27] Speaker 00: But I would argue that we must look to the case law. [00:13:31] Speaker 00: to interpret the textual language. [00:13:34] Speaker 00: And what Contreras lays out is that when an alien's deportability is clear and undisputed, that that circumstance alone may provide sufficient basis for an immigration officer to believe that escape is likely before a warrant can be obtained. [00:13:49] Speaker 02: That's an exception to the statute. [00:13:50] Speaker 02: You've got to go get a warrant unless you think that he's going to get away. [00:13:53] Speaker 02: That's how I read that. [00:13:57] Speaker 02: What I think this record shows, the first problem for the government is they say they did have time to go get a warrant, and they did. [00:14:05] Speaker 02: That's what they're telling us. [00:14:07] Speaker 02: They just lost it. [00:14:07] Speaker 02: They can't find it. [00:14:09] Speaker 00: That's true. [00:14:09] Speaker 02: Okay. [00:14:10] Speaker 02: Then the second problem is I think it's undisputed for the reasons Judge Fletcher's just explained. [00:14:15] Speaker 02: They knew where he was. [00:14:17] Speaker 02: They were watching him. [00:14:18] Speaker 02: They were surveilling him for some period of time, which is why [00:14:21] Speaker 02: I directed opposing counsel to talk about the exclusionary rule. [00:14:25] Speaker 02: If we decide that the statute was violated because they were required to get a warrant and they can't produce one, they didn't get one, district court assumed they didn't have it, and I think she had to assume that because they couldn't produce it, then is the exclusionary rule the right remedy here? [00:14:46] Speaker 00: The exclusionary rule is not the right remedy in this particular case because the statute, section 1357, number one, does not lay out a suppression remedy in the statute. [00:15:00] Speaker 03: And also, the- Does the exclusion remedy exist under the statute? [00:15:08] Speaker 03: I apologize. [00:15:09] Speaker 03: Can you repeat your question? [00:15:10] Speaker 03: You said 1357 doesn't have in it an exclusion remedy. [00:15:15] Speaker 03: But under the case law, we do exclude sometimes when there's been a failure to comply with 1357, correct? [00:15:23] Speaker 00: I believe what my colleague pointed out is that the court can exercise its supervisory powers to exclude. [00:15:33] Speaker 00: I'm not sure it was pertaining to Section 1357, but what my colleague was not able to produce is a single case where this court has actually suppressed evidence for a statutory violation. [00:15:49] Speaker 03: I think this is a generic statement of the case law. [00:15:52] Speaker 03: I think the generic statement of the case law would be that a violation of 1357 can be a basis to exclude the evidence, but it's not the same standard as a 14th Amendment exclusionary standard, and there has to be something more than a simple violation. [00:16:09] Speaker 03: Well, in this particular case... That's an open door for you to make an argument. [00:16:14] Speaker 03: This is not the exceptional case. [00:16:17] Speaker 00: That's correct, Jira. [00:16:20] Speaker 00: In this particular case, we do not believe that it's the exceptional case, because as Judge Christian, as you pointed out earlier, I think the officers in this particular case were attempting and trying to do everything correct in this particular case. [00:16:35] Speaker 00: They drafted a field operations worksheet. [00:16:39] Speaker 00: The field operations worksheet was signed by a supervisor. [00:16:42] Speaker 00: It's stated, reinstated at the top. [00:16:45] Speaker 00: There are several databases that they checked in this particular case. [00:16:50] Speaker 00: They conducted surveillance at the defendant's home. [00:16:55] Speaker 00: In the I-213, which the ERO officers drafted on the record at ER 81 through 84, they put in their report that they told the defendant that there was a warrant out for his arrest, which indicates that they believed that they did have a warrant. [00:17:16] Speaker 00: They requested a detainer. [00:17:18] Speaker 00: They compared the defendant's photograph to his alien file, which they had at the time. [00:17:26] Speaker 00: And then they confirmed his identity through that photograph and then his Mexican ID. [00:17:31] Speaker 00: So what you see here is that these officers are attempting to do everything right. [00:17:35] Speaker 00: and are taking necessary steps. [00:17:38] Speaker 00: You know, the exclusionary rule is usually applied to deter constitutional violations. [00:17:44] Speaker 00: And here, where you have deportation officers who largely operate in the civil deportations, [00:17:54] Speaker 00: any deterrence benefit that would be gained is marginal at best. [00:18:01] Speaker 00: And the societal and social cost of excluding the evidence of this case far outweigh any deterrence benefits that would be received in this particular case. [00:18:13] Speaker 00: So we don't believe that this court should apply the exclusionary rule. [00:18:19] Speaker 02: Other questions? [00:18:20] Speaker 02: I don't have any more either. [00:18:22] Speaker 00: And with that, I'll submit. [00:18:23] Speaker 00: Thank you. [00:18:23] Speaker 02: Thank you very much for your argument. [00:18:25] Speaker 02: Now we're going to let opposing counsel talk about dryer. [00:18:29] Speaker 02: You have two minutes, sir. [00:18:30] Speaker 04: Thank you, Your Honor. [00:18:31] Speaker 04: So in terms of why this is different than Dreyer, so in Dreyer, it was a situation where this court had to decide in the first instance whether suppression was appropriate or not. [00:18:41] Speaker 04: It was also a situation where it dealt with the military. [00:18:44] Speaker 04: And the court noted in its opinion that the military was already taking measures to self-correct. [00:18:49] Speaker 04: And that was, I believe, brought up by the government at oral argument. [00:18:52] Speaker 04: This is not that situation. [00:18:54] Speaker 04: This is a situation where ICE officers [00:18:56] Speaker 04: are not taking any measures to self correct and in fact what the record we have in front of us shows that this is a repeated problem. [00:19:03] Speaker 04: And I'll point to in the excerpt of record, ER 22 through 23, where below we argue this was not an isolated incident. [00:19:11] Speaker 04: And then in our opening brief at pages 35 through 37, we also cite examples of why this is not an isolated incident. [00:19:19] Speaker 04: And compounded by that is the flagrancy of the ICE officer's disregard here in not getting a pre-arrest warrant and then trying to cover it up afterwards. [00:19:27] Speaker 04: the again it's not a review that this is a bookkeeping thing this is something where they not only didn't do what they were supposed to do then they tried to cover it up on the back end in ways that don't have a fact finding are you asking us to make one I'm sure you know you're asking us to find that they never got the warrant in the first place and that they misrepresented that to the district [00:19:44] Speaker 02: I don't have evidence of that. [00:19:45] Speaker 04: What I'm asking is for the court to remand so that the district court can do pertinent fact finding, because we believe there was flagrancy here. [00:19:52] Speaker 04: And that is a whole other basis, I will say, aside from Dreyer and the outrageous government conduct line of cases, flagrancy plus substantial prejudice is also a basis to suppress. [00:20:02] Speaker 04: So for both lines of cases, the court below could find suppression is appropriate. [00:20:07] Speaker 04: And all we're asking is for you to remand. [00:20:09] Speaker 04: Again, we're not asking you to find that suppression is appropriate here. [00:20:12] Speaker 01: Do you have any, really quick, do you have any, can you tell me what any of those other cases that you're saying that show this is like a practice of the government? [00:20:20] Speaker 01: What's the brief summary of the facts of any of those other cases? [00:20:24] Speaker 04: The brief is somewhere I can give you. [00:20:25] Speaker 04: Is there other examples of them not getting a pre-arrest? [00:20:27] Speaker 01: I'm trying to figure out like, you know, it's one thing if they were, you know, they're going to somebody's home and they're knocking on the door and arresting them without, this is a little different because they are staking out a place that they think the person might come to, but they don't know if the person's going to come to. [00:20:42] Speaker 01: And then when the person eventually does show up, [00:20:45] Speaker 01: Then it seems clear to everybody, I assume, that if you don't nab them then, then they're gone, right? [00:20:51] Speaker 01: So the likelihood of escape. [00:20:52] Speaker 01: So there's some really challenging questions here because of—and I'm just trying to figure out if these other cases are actually like this or if they're instances where they know the person's at their home, and instead of getting a warrant, they just go and grab the person at their home, living in their home. [00:21:07] Speaker 01: You know, they knocked on the front door and arrest them. [00:21:09] Speaker 04: I believe they are cases like this one. [00:21:11] Speaker 04: And I think the clearest example is the dissenters. [00:21:13] Speaker 01: I don't want to take you too long, but it sounds like you don't know. [00:21:15] Speaker 04: I will just point the court to the dissent in Santos Portillo, which is the Fourth Circuit case that the government relies on in part. [00:21:21] Speaker 04: That gives a good description of the kinds of cases and what I refer to in the record and in our brief. [00:21:26] Speaker 04: I don't have them all at my fingertips, but there are similar circumstances and it does indicate a problem. [00:21:31] Speaker 04: And further fact finding would help flesh that out even more if this is remanded. [00:21:35] Speaker 04: So again, that's what we're asking for is remand. [00:21:37] Speaker 04: Thank you. [00:21:38] Speaker 02: Thank you, Council. [00:21:38] Speaker 02: Thank you both. [00:21:39] Speaker 02: For your arguments, we'll take that case under advisement.