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

Visitor Again:
If this court's analysis is correct, it's virtually the end of the exclusionary rule--which may well be to the liking of some U.S. Supreme Court justices. That's so because this type of analysis could be made across the entire breadth of fourth amendment violations. What happened to the old proposition that a search is not justified by what it turns up?
2.6.2009 4:11pm
It's even worse . . .:
I think you might have missed the most galling (and intellectually dubious ) part of the whole opinion: the analysis behind its balancing test.

On the cost side, the court notes its grave concerns about suppressing identity evidence because suppressing such evidence would keep the court from knowing who the defendant is. This would, among other things, have the result of depriving the sentencing judge the ability to properly know the depth of the defendant's criminal history. It would also prevent the Government from prosecuting crimes "where an official Government record is necessary to prove one element of a crime," such a felon in possession. These costs are, as the court tells us, "significant."

On the other side of the ledger, the deterrence value of the exclusionary rule in this context is minimal. Why? Because "there is no evidence at issue here which could not be otherwise obtained without violating the Fourth Amendment. The Constitution does not prohibit the Government from requiring a person to identity himself to a police officer." Later, the court observes that "even if a defendant in a criminal prosecution successfully suppresses all evidence of his identity and the charges are dropped, the Government can collect new, admissible evidence of identity and re-indict him."

You got that? Costs high because without this evidence certain crimes could not be prosecuted and sentences would not be as high as they should be. Deterrence level low because the evidence is otherwise easily obtainable. Huh? If the evidence is otherwise easily obtainable, then there should be no costs at all to exclusion.

This is what happens when you let law school externs write published opinions.
2.6.2009 4:14pm
BZ (mail):
Well, alienage, so Brignoni-Ponce, 422 U.S. 873 (except at the border, questioning suspected alien requires only articulable facts which might come within experienced officers' particular expertise, but further search requires more)?
2.6.2009 4:34pm
Fernando H. Berbert Fontes (mail):
The distinction between the type of information illegally obtained and the type of violation is artificial. Forth Amendnment analysis has to focus instead in the type of concrete factual situation in order to make sense. It is inherently a case-by-case analysis. The only useful guidance is precedent. Unfortunately the balancing tests applied by the SCOTUS in cases such Hudson and Herring are bad as a matter of judicial policy.
2.6.2009 4:43pm
OrinKerr:
Fernando,

I don't quite understand your comment, but I don't think the legal distinction is artificial. Consider Hudson v. Michigan: The issue was whether to suppress for a knock and announce violation, not whether to suppress for the discovery of guns and drugs.
2.6.2009 4:51pm
Dilan Esper (mail) (www):
Obviously, the exclusionary rule involves a cost-benefit analysis-- everyone knows this. Think of Cardozo's famous question about whether the criminal should go free because the constable has blundered.

The trick is how to incorporate that cost-benefit analysis without turning the entire Fourth Amendment into a cost-benefit analysis, which would basically make the thing very easy to circumvent, as often invasions of Fourth Amendment rights lead to huge payoffs in terms of solving a crime.

Professor Kerr's analysis seems to me to be a very good way of approaching this problem.
2.6.2009 6:32pm
whit:

If this court's analysis is correct, it's virtually the end of the exclusionary rule--which may well be to the liking of some U.S. Supreme Court justices. That's so because this type of analysis could be made across the entire breadth of fourth amendment violations. What happened to the old proposition that a search is not justified by what it turns up?


please, not another "oh noes, the sky is falling, the constitution means nothing now that this ruling has come down" post.

again, exclusionary rule was invented. it is not in the constitution. it's a remedy, and it has LIMITS.

this ruling (although i didn't know the case law) is pretty much par for the course for what i've been taught for a very long time, that a question of identity is not excludable evidence. it was well put. it's a status, not a crime.

the miranda point is also spot on. a person who has invoked miranda will sometimes not want to even give his name. even if he asks for a lawyer, it is clearly NOT a violation of miranda for me to press him and keep asking him his name, whereas it would be a violation of miranda (and any evidence supressible) if i tried to persuade him to talk to me about the crime.

if asking a person his name, post-miranda invocation isn't a violation of the spirit or thelaw of miranda, for instance, that's pretty strong evidence that identity is not 'evidence' like the type we see routinely dismissed due to exclusionary rule concerns in any # of cases.

i can also ask the person's date of birth, even if they requested a lawyer despite the fact that birthdate itself can prove an element of any # of crimes (minor in possession, statutory rape (in my state, a person has to be a certain # of months older than a 15 or 14 yr old for it to be rape) etc.

again, if the person tells me their dob (or name) post miranda invocation, does anybody honestly think that should be suppressed?
2.6.2009 7:09pm
jimmysnuka (mail):
Scotus has previously held that identity-related evidence is excludable as the result of an illegal arrest. In Davis v. Mississippi and again in Hayes v. Florida the reason for the violation was to obtain the identity-related evidence — fingerprints — and they were excluded. The Fourth Circuit in Oscar-Torres relied on these cases in reaching the opposite conclusion from the Eleventh, though without addressing any Hudson balancing.
2.6.2009 7:18pm
Profane (mail) (www):

again, exclusionary rule was invented. it is not in the constitution.


Does not this also hold true for Terry searches? Protective sweeps? Searches incident to arrest? Searches under 'exigent circumstances'? I will trade you the exclusionary rule for all these other 'inventions'.
2.6.2009 10:20pm
whit:

Does not this also hold true for Terry searches? Protective sweeps? Searches incident to arrest? Searches under 'exigent circumstances'? I will trade you the exclusionary rule for all these other 'inventions'.


not really. for example, terry stops (and in some cases frisks) were done long before the terry decision.

they just weren't called terry stops.

cops just did them. and generally, they were deemed "reasonable".

the terry decision specifically codified what the evidence threshold for a field interview/stop WAS.

so, terry as a term is invented, and the specific rules were fleshed out.

the same can be applied to your other procedures.

all the constitution says about searches and seizures is that they must be REASONABLE. so, it's a given that courts would need to flesh out which were reasonable and which weren't/

the exclusionary rule is wholly different. it is an invented construct - viewed as a remedy for bad searches by discincentivizing him.

so, in brief... no, it does not "also hold"

they are entirely different things.

note this says nothing about whether the exclusionary rule is good policy or good law, merely that it's an invented remedy to a problem, and may or may not be a good idea.
2.6.2009 10:35pm
Visitor Again:
this ruling (although i didn't know the case law) is pretty much par for the course for what i've been taught for a very long time, that a question of identity is not excludable evidence. it was well put. it's a status, not a crime.

Obviously you've read neither the opinion nor Professor Kerr's analysis of it. The court specifically rejected reliance on the question of identity ground and rested its decision instead on a cost-benefit analysis that does indeed pose dangers for the continued viability of the exclusionary rule.
2.6.2009 10:39pm
Profane (mail) (www):

all the constitution says about searches and seizures is that they must be REASONABLE.


Your argument fails to take account of the fact that the fourth amendment has something to say about warrants - and that courts have consistently held that any warrant-less search or seizure is UNREASONABLE. Unless, of course, it falls into the category of one of the exceptions to the fourth amendment which courts have 'invented'.
2.6.2009 10:47pm
whit:
"Your argument fails to take account of the fact that the fourth amendment has something to say about warrants - and that courts have consistently held that any warrant-less search or seizure is UNREASONABLE. Unless, of course, it falls into the category of one of the exceptions to the fourth amendment which courts have 'invented'."

wrong. the courts have held that any warrantless search or seizure is PRESUMED unreasonable. that is a huge difference.

similarly, all defendant are PRESUMED innocent until proven guilty.

you would say it "all defendants ARE innocent"

do you grok the difference?

you claimed the 2nd.

the 4th DOES have something to say about warrants. it ALSO has something to say about the standards for searches and seizures - REASONABLE.

again, what cops do know, what we call "terry stops" were done prior to the terry decision. the decision merely codified when they could be done.

however, the exclusionary rule invented an entirely new procedure and claimed it was constitutionally required.

regardless, my point is and was - exclusionary rule is an invented construct and has limits.

it would be nice if the supreme court said all searches and seizures require a warrant (or maybe it wouldn';t be nice) . regardless, it DOESN'T.

read the text.
2.6.2009 10:54pm
whit:
last line should be "it would be if the CONSTITUTION said all..."
2.6.2009 10:55pm
Profane (mail) (www):

read the text.


Been there, done that. As you have evaded, avoided, and misread, I will not bother with further response.
2.6.2009 11:06pm
zippypinhead:
What a mess... I'm still scratching my [pin]head. Almost sounds like something a Sixth Circuit panel might concoct, except they'd probably have come down with the opposite holding on the same reasoning.

Either I'm totally missing the intended point of the opinion, or this sort of mis-applied "balancing test" in a Fourth Amendment context creates an administrative monster if applied a general rule. Hypothetically, say there's an illegal search, with several items seized. First we have an illegal seizure of obvious contraband (perhaps Michael Phelp's bong, fully loaded and ready for action). Well, maybe that's bad and a social-costs balancing says it should be admitted, so perhaps it's not suppressed under this test. Second, they also seized mere evidence (say, the bill of sale for the bong at Ye Olde Head Shoppe). Well, under a balancing test, mere records aren't so bad and the downside of illegally snatching somebody's private papers can be significant, so that might get suppressed. Finally, they seized alleged fruits of the illegal enterprise (wads of money from the sale of what makes bongs phun). Well, that's something altogether different, so who knows whether that's suppressed?

In other words, under Farias-Gonzales, I'm afraid that the exclusionary rule result can be inconsistently different based on what happens to be seized, even in identical (or the same exact) searches? Yuck... a reviewing court could basically make up whatever social-cost balancing analysis it wants depending on the outcome desired.
2.6.2009 11:29pm
Jon Roland (mail) (www):
As some have indicated, the more fundamental error is in regarding the exclusionary rule as a construction of the Constitution. It is not. The Constitution neither requires nor forbids it. It is the court sitting as a court of equity, and is an equitable holding in each case. As equity it should not be taken as binding precedent, only perhaps persuasive. The decision in each case should be based on the facts in that case. In some cases it might mean excluding the evidence. In others it might mean covening a special grand jury to consider criminal charges against the police, and appoint a special prosecutor for it.
2.6.2009 11:30pm
OrinKerr:
Whit, Profane -- Play nice or don't play at all. And Whit, I am really, really sick of having to warn you to play nice.

Jon Roland, I'm curious, have you ever tried making any of your constitutional arguments in court? I realize you are not a lawyer, but I'm still curious: Your views of the constitution are unlike anything I have ever read or seen from anyone else, and I have read a lot of legal history, studied a good number of early court decisions, etc.

Zippypinhead -- yes, that's exactly right. I've written about this problem in my article "Four Models of Fourth Amendment Protection" -- it explains why lower courts don't apply the REP analysis by making a straight policy inquiry, but why the Supreme Court often does.
2.7.2009 12:31am
traveler496:
I like Orin's analysis of Farian-Gonzalez.

It's an aside but I think the Supreme Court's decision in Hudson is itself based on muddled thinking. They think they did a cost-benefit analysis, but they didn't. Here's their own summary of their reasoning:

"In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial—incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified."

If you read the opinion you'll see that they did start an analysis on the cost side. However, they do not analyze the benefits, and their talk about incentives and other deterrents is just a non sequitir. I may be going out on a limb here, but I think that in order to do a cost benefit analysis, one must actually compare costs to benefits. The reason you don't see such a comparison in their summary is because there's no such comparison in their opinion either (well, at least it's a faithful summary).

Just to see how far out in left field the Court's analysis is, suppose that the exclusionary rule, if applied, would eliminate 50 would-be knock-and-announce violations for every violation that it failed to stop. Then it would seem necessary (though not sufficient) to consider the question: How does the social cost of applying the exclusionary rule in one case compare to the benefit of deterring 50 would-be violations?

Where does the Court come down on this? Answer: There's no way to tell because they didn't weigh in on most of the crucial factors. They're silent on how much they think it benefits society to deter one violation, much less how this benefit compares to the cost of suppressing evidence in one case. They're equally silent on what fraction of would-be violations might be deterred by applying the exclusionary rule (should the 50 be 500 instead? 5000? 0.5? 0.0005? Not a clue). Yet without in some manner considering these factors the Court can't possibly balance the costs of its decision against its benefits.

IANAL or a law student or teacher, but if I were asked to grade the Court's opinion in this case focusing on the quality of the analysis, I'd give it a C. It looks like the effort of a student being asked to apply a new analytical technique for the first time, and still struggling with the tools - they identify a mix of relevant and irrelevant factors, misuse or (as in this case) simply fail to use the technique they claim to have used, and ultimately arrive at a conclusion unsubstantiated by what precedes it.
2.7.2009 3:43am
Marc Rotenberg (mail) (www):
I don't disagree with Prof. Kerr that it was a mistake for the 11th Circuit to apply a balancing analysis to the admission of "identity information," but even within the construct set out by the panel, an argument can be made that the case was wrongly decided. In an amicus for Hiibel v. Sixth Judicial District, we argued that the modern-day disclosure of name is far more significant than in the days that Terry was decided. The obvious reason is the accessibility of computer databases to law enforcement: a stop is almost guaranteed to turn up something. This is why the Stevens dissent on Fifth Amd grounds in Hiibel is important -- "identity information" can be more important than other kinds of evidence. If that statement is true, then the 11th Circuit misapplied its own test.

Marc Rotenberg.
2.7.2009 9:07am
Profane (mail) (www):
Many apologies Orin. I obviously need to think twice (or more) about posting at the end of a very long day at the end of a very long week.
2.7.2009 12:06pm
Kazinski:
I certainly agree with Orin that the Eleventh's error should be corrected so it is not applied to other cases, but they did get the result right, albeit for the wrong reasons. Given that, do you think the panel is going to republish the opinion, review en banc, or that SCOTUS would grant cert to remand?

I have to think that before law professors got blogs, this would be a tree falling in the forest. And no, nobody would hear it.
2.7.2009 11:55pm
BZ (mail):
Well, it has been a while since I tread into the morass of alienage identification, and apparently my earlier comment was too cryptic (or maybe just wrong), but I think commentors are missing a distinction that makes a difference here.

This is not a case of "identity" alone. It is a case of identity AND status. The question in the first search is whether the person, whoever he was, had a particular status: illegal immigrant. Your identity is partially wrapped up in your status, but it is also separate. For example, your identity may have nothing to do with your alienage; it may just say that you are you, without regard to alienage. Your status, on the other hand, may or may not say something about your identity. Your status may determine the rights you may exercise, but your identity has less of an impact. English novel: John Smith, a drunkard and wastrel, in a better world should not inherit, but John Smith, son of millionaire Orin Smith, probably will.

Thus, when Prof. Kerr says "On the other hand, identity is not a fact about a specific act; it is more like a status.", I think this is conflating two related but different subjects. I think the Court did the same thing, and tried to fudge around the issue; e.g., "identity-related evidence is not suppressible when offered in a
criminal prosecution only to prove who the defendant is." The question, as I saw it, in the first instance, could have been: "STATUS-related evidence is not suppressible."

Perhaps slicing too finely, but the distinction both muddled the opinion and has been lost in this thread.
2.8.2009 10:28am
ArthurKirkland:
Does the Constitution require -- or permit -- the immunity of government officials with respect to constitutional violations? Placing government in jeopardy of dismissal, lost of employment-related benefits, fines, imprisonment and the like might vindicate important rights guaranteed every citizen by the Constitution.

The exclusionary rule could be said to protect government officers at least as much as it benefits those whose rights might be infringed by official conduct. Those rethinking the exclusionary rule should also be reconsidering protections for Constitution-mocking government officials -- if these legal analysts support the Constitution.
2.8.2009 5:59pm
jimmysnuka (mail):

The exclusionary rule could be said to protect government officers at least as much as it benefits those whose rights might be infringed by official conduct. Those rethinking the exclusionary rule should also be reconsidering protections for Constitution-mocking government officials -- if these legal analysts support the Constitution.


The 11th Circuit regularly engages in a qualified immunity analysis that borders on the ridiculous, asking for factually identical precedent before concluding that an officer engaged in a violation of clearly established law. This resulted in the pole-hitching case a few years back that was reversed by SCOTUS and remanded; the 11th had balked at finding a clear violation because there weren't any prior cases telling jailors that one should not tie inmates to posts in the Southern summer sun as a behavior modification technique. The Farias opinion suggests that civil suits are a more appropriate remedy than suppression of illegally-obtained evidence, but the reality is that the barriers to recovery are almost insurmountable in this particular circuit.
2.9.2009 8:05pm
markm (mail):
IIRC, the first immunity - sovereign immunity - was imported by the courts from English common law, in spite of one very large and quite relevant difference between our system and theirs. And that's where the trouble started - when the courts first gave a state government the rights of a monarch ruling "by divine right". I'd very happily trade the exclusionary rule for the end of sovereign immunity and a limitation on any immunity for government officials, but that would take a constitutional amendment.
2.9.2009 8:11pm

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