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.