Identity and the Exclusionary Rule: Why United States v. Farias-Gonzales Was Wrong To Apply Hudson v. Michigan Balancing:

By Orin Kerr on February 6, 2009 3:39 pm

On Tuesday, the Eleventh Circuit handed down an important decision on the Fourth Amendment’s exclusionary rule: United States v. Farias-Gonzales, written by Judge Cox, and joined by Judge Pryor and Judge Black. Farias-Gonzales applies the Hudson v. Michigan, 547 U.S. 586 (2006), balancing framework to hold that identity information cannot be suppressed under the Fourth Amendment.

Although the ultimate result is plausible, I think the court’s reasoning is clearly incorrect: Hudson cannot properly be applied in the way the Court did. In this post, I want to explain why the Eleventh Circuit misapplied Hudson. I’ll also explain why the court’s approach is very troubling, and why other courts need to be aware of the Eleventh Circuit’s error. Finally, I’ll speculate as to how this error happened: This may have been another example of a court reaching out and deciding an issue not briefed, and then getting it wrong without the benefit of briefing.

I. The Issue

Imagine the police stop a person suspected of being an illegal immigrant. The police unlawfully search the suspect in violation of the Fourth Amendment, and the unlawful search leads the police to learn the suspect’s identity as an immigrant who was previously kicked out of the United States and then illegally reentered. The government brings criminal charges for illegal reentry, and to prove its case seeks to use evidence of the suspect’s identity learned as a fruit of the unlawful stop. Here’s the interesting Fourth Amendment question: Is the evidence of identity admissible?

It’s a surprisingly tricky question, I think. On one hand, the evidence was obtained as a fruit of an unlawful stop, so you could say it should be suppressed. On the other hand, identity is not a fact about a specific act; it is more like a status. So if the evidence gets suppressed, the feds still know who the person is. Can they just re-arrest the person on the spot at the suppression hearing? Or do they have to let the person go and forget what they know? These sorts of puzzles have sometimes led the Supreme Court to treat identity as sui generis in criminal cases. See, e.g., Pennsylvania v. Muniz (adopting “routine booking exception” for Miranda that exempts identity from suppression); Hiibel v. Sixth Judicial District Court (considering when identity can be self-incriminating for Fifth Amendment purposes).

In the Fourth Amendment context, courts have generally dealt with this issue by relying on dicta from INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). Lopez-Mendoza involved suppression of identity evidence on Fourth Amendment grounds at a civil deportation hearing. Although that involved a civil case, and its holding seems limited to civil cases, Justice O’Connor’s majority opinion also contained this very broad statement that on its face also applies to criminal proceedings:

The “body” or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred. See [Gerstein v. Pugh,] 420 U. S. 119 (1975); Frisbie v. Collins, 342 U. S. 519, 342 U. S. 522 (1952); United States ex rel. Bilokumsky v. Tod, supra, at 263 U. S. 158.

This line is technically dicta, and the cases cited as authority don’t back up the statement. But circuit courts generally have concluded that this passage pretty much settles things based on the certainty and broad scope of the Supreme Court’s language. See United States v. Bowley, 435 F.3d 426 (3rd Cir. 2006), United States v. Navarro-Diaz, 420 F.3d 581 (6th Cir. 2005), United States v. Roque-Villanueva, 175 F.3d 345 (5th Cir. 1999); United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir. 1994).

II. The Eleventh Circuit’s Decision in Farias-Gonzales

That brings us to this week’s decision, an opinion by the Eleventh Circuit in United States v. Farias-Gonzales, written by Judge Cox, and joined by Judge Pryor and Judge Black. Farias-Gonzales reaches the same result as the other circuits — the court allowed the identity information — in a case with nearly identical facts as the other cases. But it did so using a very different and far-reaching rationale. Instead of concluding that the issue was settled by Lopez-Mendoza, the Eleventh Circuit held that identity information is not subject to suppression under the balancing framework of Hudson v. Michigan, 547 U.S. 586 (2006).

The court reasoned that under Hudson, the proper question was one of cost-benefit: “whether the exclusion of identity-related evidence in a criminal prosecution, where the evidence is offered solely to prove the identity of the defendant, is justified on the ground that the deterrence benefit of excluding the evidence outweighs its social costs.” The court reasoned that the social costs of excluding identity evidence in criminal cases was high: A suspect’s identity is often needed to prove elements of crimes (like proving a person is a felon for a felon-in-possession charge) or to make accurate sentencing enhancements. In contrast, the deterrent role of suppression would be low, because the police could find identity another way and re-indict the defendant based on the alternative method of proving identity.

The Court concluded:

As in Hudson, the social costs of excluding evidence in this case are great, while the deterrence benefits are minimal. Therefore, we hold that the exclusionary rule does not apply to evidence to establish the defendant’s identity in a criminal prosecution, and accordingly, the fingerprint and photograph evidence in this case offered to prove Farias-Gonzalez’s identity is not suppressible. The district court did not err in concluding that identity-related evidence is not suppressible.

III. My Analysis

Several circuits have held that identity evidence cannot be suppressed in criminal cases based on the dicta from INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), and given the broad language from that case, I cannot fault them. However, reaching the same result using Hudson v. Michigan balancing is clearly incorrect.

To read the rest of this post, click here.

The problem is that the balancing approach for the exclusionary rule balances deterrence and costs for particular types of Fourth Amendment violations. The Fourth Amendment has been interpreted to impose hundreds of different rules and standards that apply in different situations, and balancing cases like Hudson and the more recent Herring v. United States applied the balance over a set of specific category of situations. Thus, in Hudson, the Supreme Court applied balancing for knock and announce violations. In Herring, it applied balancing for “isolated negligence” that led to the arrest of the wrong guy. In each case, the Supreme Court considered the cost/benefit over the defined legal category of the error. It then reached a decision as to whether suppression is available for that category of errors.

The Eleventh Circuit panel in Farias-Gonzales did something quite different. It applied balancing to the type of information illegally obtained instead of the type of violation. The Fourth Amendment error in Farias-Gonzales was a warrantless search of the person; that unlawful search led to the police learning who the suspect was. But instead of considering the category of “warrantless searches of persons,” and balancing the effect of the exclusionary rule over that set of facts, the court considered the effect of excluding the category of information obtained, defined rather arbitrarily by the court as “identity information.” But that is simply incorrect. Indeed, in Hudson, the violation didn’t lead to the discovery of any information at all: there was no cause and effect relationship betwee the knock and announce violation and the evidence. If the Hudson approach were to applying balancing over the type of information obtained, it would have been a balance over a null set.

It’s important to see where this sort of analysis can lead. If courts generally adopt a balancing approach to exclusion based on the category of information obtained, it will let every state and federal court do pretty much whatever the court wants with every Fourth Amendment violation raised in every motion to suppress. The problem is that defining the category of information is arbitrary, as courts can construe that as narrowly or broadly as they wish. Courts can construe the category very narrowly (for example, “evidence of identity learned in a traffic stop after unlawfully moving a illegal immigrant’s shirt to reveal gang tattoos”), very broadly, (for example, “information about suspects”), medium broadly, (for example, “identity information in immigration cases”), substantially broadly (for example, “identity information in criminal cases generally”), or anywhere in between.

By deciding the scope of cases, however, each court gets to determine what is balanced and it therefore can usually pick what the outcome of the balance will be. If a court wants to keep the exclusionary rule strong, it can pick a balance over a set of facts that will maximize deterrence and minimize social cost. If it wants to allow the evidence, it can pick a balance to minimize deterrence and maximize social cost. As I said, this will often give individual courts — every trial court, every appellate court, both state and federal — considerable freedom to craft new Fourth Amendment rules that can support the result the court wants to reach in that case.

This probably sounds a bit far-fetched, but stay with me for an example. Imagine a homicide case in which the murderer committed a brutal murder, photographed himself with the body of the victim, and then kept the photographs in his home. The police have no leads, and the case is going cold, but one police officer has a hunch that a particular person committed the offense. The police search the suspect’s home without a warrant and find the photographs. If you take the lead of Farias -Gonzales, it’s easy for a court to craft a rule that says that the evidence is admissible. Just say that the category is “evidence that a suspect committed a murder,” or, if you want a narrower category, “photographs that conclusively prove a suspect committed a brutal murder.” You can pretty much draw the category in a way that the suppression of the evidence in that category would impose a cost higher than the deterrent benefit. And voila, the evidence of crime isn’t suppressed under an approach that is billed as, but isn’t actually, Hudson balancing.

I suspect the Farias-Gonzales judges just didn’t think of the differences between their case and Hudson, and in particular the key difference between balancing over a type of violation and balancing over a type of information obtained. But I think the difference is essential, and the Farias-Gonzales court committed a major error in applying Hudson balancing to identity information.

IV. How Did This Happen?

My last question is, how did this error happen? Did the parties just not argue the point very effectively? Well, I found the briefs on Westlaw, and it turns out that neither the government nor the defendant cited Hudson v. Michigan or argued that the balancing approach applies. My understanding is that the government at oral argument made some references to the policy consequences of suppressing identity evidence in the case, but that it did not expressly argue that Hudson balancing applied. Instead, the parties argued about whether the Fourth Amendment was violated and whether to apply INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

I’m not sure, but my sense is that the panel might have come up with the Hudson analysis on its own after oral argument. If that understanding is correct, this case might be another example of a Court of Appeals trying to address an issue on its own that wasn’t raised in the briefs or explored at argument — and then getting it wrong.

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