Special Concurrence Casts Doubt on Precedent that Identity Evidence Is Never Suppressible

United States v. Hernandez-Mandujano, No. 12-30793 (June 27, 2013) (Reavley, Jolly, Smith) (per curiam)

Two U.S. Border Patrol Agents "clearly violated the Fourth Amendment in stopping Hernandez" 450 miles from the nearest international border. The agents "felt convinced that Hernandez was transporting illegal aliens," but the panel found that the agents’ reasons for stopping Hernandez—because he had both hands on the wheel, was focused on the road ahead of him, stopped talking to the passenger when the patrol car passed him, slowed down after passing the agents, and was driving an SUV registered to a woman—did not rise to reasonable suspicion. After being illegally stopped, Hernandez admitted to being a Mexican national present in the United States without permission.

So, what’s the remedy? Hernandez requested that all evidence from the warrantless stop be suppressed. The district court denied this request, and the panel affirmed based on Fifth Circuit precedent that an immigrant’s identity and his alien file ("A-file") cannot be suppressed. See United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999).

Judge Jolly wrote a special concurrence criticizing this binding precedent. He lays out how the denial of such suppression motions is based on a misapplication of the Supreme Court’s holding in I.N.S. v. Lopez-Menodoza, 468 U.S. 1032 (1984), and how—while all "Circuits seem to agree that if a defendant sought only to suppress his identity itself, he would fail"—the "Fourth, Eighth, and Tenth Circuits . . . 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."

But for the binding precedent of Roque-Villanueva, Judge Jolly concludes the proper disposition of the case would be to remand for further development of the record to determine whether Hernandez made any statements that are potentially suppressible. 

[A]llowing our erroneous interpretation of Lopez-Mendoza 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.

So, file those suppression motions even if the remedy seems precluded by Roque-Villanueva, and read Judge Jolly’s special concurrence.