actions i counsel for me the matthew price will be focusing on the why the lopez mentos standard should not apply to a state office thank you very much may please the court monitor to be here this case involves an egregious violation of the fourth amendment because the seizure was based on race and because it was committed by an officer acting without any reasonable suspicion of a crime and without any authority to enforce federal immigration laws undergone as marcuse first lynch this court should suppress all evidence obtained from this agrees a seizure and terminate our client's removal proceedings the b a a correctly accepted the premise that officer acker violated our client's fourth amendment rights the issue before the court today therefore is not whether our client's rights were violated but rather whether the manner in which they were violated was egregious while all of the on as marcus factors way toward suppression here five most clearly suspicion of a criminal activity to arrest our client fourth for fourth amendment purposes this was a particularly lengthy seizure and fifth abstract or knowingly acted without any authority to conduct an immigration when the officer leaned into the vehicle and persistently began asking our client in unrelated question to the purpose of this encounter which was retrieval of the nissan we were to conclude that seizure her as you say when were sees was there not a fact finding that seizure heard after the criminal a statement mr sanchez well your honor i believe that the the record reflect s and demonstrates the fact that the seizure actually occurred well earlier at the point that the officer was asking the question but i'm saying it we determine that the seizure occurred with the man for the keys if you if that's the point where the court finds this was the seizure your honor whatever your client may or may not have said to the officer it did not give him probable cause or reasonable suspicion of criminal activity to detain our client and he specified that he detained our client for purposes of an immigration violation which is civil infraction and he also stated that was the purpose when our client asked him why he was being arrested and again this really goes to whether there was a fourth amendment violation and under santos this was clearly a fourth amendment violation our focus here is on  and this what i think that my colleagues questions go to that very point of agree just yes and what i think that you have to take into account is what was said to the immigration court what the testimony was and what findings what the immigration judge relied on and that i think a lack in perhaps your presentation in your briefs and maybe in your answers to questions for better or for worse where the you agree with there or not you're stuck with what those findings were more your honor in tassie verse holder this court held that when i just finding is clearly erroneous a reasonable fact finder what i found to the contrary if they want to go on that stand but i think it seems to me it's pretty thin to say on this record that these are clearly erroneous judge the judge might have were old differently might have just construed into facts differently might have decided some of these issues differently but ok if you want to say there's clear are on well your honor and that's a pretty hard thing to prove absolute honor and it's not that we're arguing that he construed you know these facts differently or he weighed these facts differently it's that he didn't weigh these facts at all when he rendered the finding that this wasn't a racially motivated seizure he based that solely on the fact that the officer asked alone the statement alone are you legal or illegal but that blatantly ignored several credible statements in the record about other racially charged statements that this officer made he referred to the driver in the nissan as pedro a stereotypical latino name not john doe not john smith you referred to him as a spanish guy which is a blaine reference to that as you refer to him as a very deep human izing term and he testified the officer testified that there speaking spanish was quote a real problem language is a proxy for race your honor as the supreme court held in hernandez versus new york and that's exactly how this officer used it he generalized about our client's immigration status based on the language that he was speaking and that's not the only factor here that i demonstrated so  understanding of the state of the law your honor the state of the law at the time of this to agree just seizure goes to one factor and one factor only that's the intentionality of the officers and that's the ninth circuit standard that's qualified immunity this court and you're on his mark explicitly rejected that standard we look at the totality of the circumstances at the time of that arrest it was unlawful to detain someone solely for purposes for local office or to detain someone for purposes of an immigration violation and that argument that the government about santos is undercut by the fact that the officer testified on the record that he knew that he had no authority to do what he was doing and yet he did so anyways because two ok so let's stop there so you're saying that regardless of what we honor he testified on the record on a ministry of record page by forty eight he was asked do you have authority to enforce immigration law and he said no ma'am and yet he proceeded undeterred to arrest our client for an immigration first suspected immigration violation he was acting above the law and that's particularly egregious when it's done by those tasked with enforcing it well he says and maybe this doesn't make a difference but he used the term that as a rose is there a difference no your honor there's no subjective intent in aggregate this is all about you're saying that he this is particularly egregious and you're looking at his subjective intent well that's one is that we're trying to actually let you talk really that your strongest argument seems miss and the fact of the matter is your honor that what the officer knew or didn't know really goes to the qualified immunity standard santos found a violation before the santos had occurred novel you can find a violation on novel facts that's a particularly clear and what the officer may or may not have known goes his intent but in this instance he knew that what he was doing was egregious and not only did he know what he was doing was agree just but it was in terms of seizing the client for civil negation for action but this was also a particularly lengthy seizure for port amendment purposes the purpose of this interaction was retrieval of the nissan he completely abandoned that purpose to pursue this race based on lawful immigration enforcement in rodriguez the supreme court found a seventy eight minute unrelated investigation to be unreasonable certainly a three and a half hour unrelated and in law an unlawful investigation should also be deemed but the facts were not agreed do you agree respect their honor i disagree i would say there are several differentiating factors first of all and john is marked as that was an ice rate so there was a baseline of authority this year was an officer acting without any authority knowingly acting without any authority second of all and you're on his mark as the court place considerable emphasis on the procurement of a warrant and probable cause here there was zero no problem cause no reasonable suspicion of criminal being pointed to someone's early morning outside the time period execution of a warrant doors being knocked down it seemed more egregious than these facts although court found it wasn't sufficiently regions may i just really sure your honor first of all that was pursuant to a finding of probable cause by an independent magistrate really where it came down to was the fact that it was five am versus six am and entering the house and where there was a gun pointed out ahead of me on his mark as there was police in racial animus in this case when asked why he was arresting our client he said because you are legal and you're stealing jobs from americans this officer felt it was his job by the way the i j a found on a r three ninety seven he was doing i didn't prompt him to do this this officer was on a mission he was on a crusade and it's a question of law as to how those factors the facts that are found are weighed with respect to a group just this year the immigration judge did find all the relevant facts with respect to the racial remarks that were made in the question is whether the age range is partly wit the immigration judge didn't find all of the facts that you would have liked well what i would say is the immigration judge didn't consider the circumstances that the that he found to exist i mean he the immigration judge credited all the time you also suggesting that the immigration judges findings were clearly erroneous well i think they were but i think the key point here is that it doesn't matter where they were because the standard this is one of the it's a question of law so just  and the state of the law at the time this happened whatever you think of santos the last certainly was clearly established that an officer can't detain an individual motivated by race and that goes back to the b i use decision in matter of torro which is cited in lo mendoza as the quintessential example of an egregious fourth amendment violation but that takes just that holding doesn't necessarily apply to this egregiousness inquiry in immigration case that's regular fourth amendment decision the b i held that evidence should be suppressed when an individual's arrested motivated by race so that is a quintessential example of an egregious violation of the fourth amendment an individual w of being stole a driver who he suspected of being the only car that pulled up and acted that way inconsistent with the officers experience in terms of owners coming to relieve a person driving duty with respect to that subject and then you had an admission sanchez of it with respect to his they were in none of that has anything to do with that's certainly true your honor but i think that the significance of of those factors is not that great in terms of the motivation the officers conduct because as soon as he discovered that the individuals were here on lawfully it banned any interest in searching the car for vehicles or determining whether the car might have been stolen or whether there was drugs i would suggest that if you look at the circumstances in the case race was clearly a dominant the predominant motivating factor behind the encounter a white and you know that his interest was simply in an even if improper or wrong in forcing immigration  dealing with state and local officers who are not supposed to have any role in forcing immigration law at all and the supreme court identified a number of reasons why it applied more restricted exclusionary rule in the immigration context and none of them apply to arrest by state local motions to suppress immigration proceedings that's no longer true and it happens with some frequency now so that's the first point that assumption is no longer the case but the second point i'd make is that it's saying that evidence should be suppressed when it is derived from an unlawful arrest by a state or local officer doesn't require a full blown evidentiary hearing the question is very simple were you arrested by someone who had no authority to arrest you and if the answer to that question is yes then the evidence derived from that of russia be suppressed so this isn't a situation where you need to look into the officers motivations you don't need to look at all the circumstances of the rust all you can only need to ask is was the officer authorized to conduct this arrest was the evidence derived from the arrest and if so it should be suppressed it's a very simple inquiry so i don't think it would need this the complicated immigration proceedings and all the supreme court also focused the most important factor to the court was that i an ass had a comprehensive scheme for deterring violations of the fourth amendment including training and and other sorts of supervision and these are in the regulations that are to eighty seven point five that's entirely absent here and you can also see in section thirteen fifty seven g in situations where the federal government wants state local officers to be enforcing immigration law it requires that they get certain training that they get certain certifications that there's a written agreement between the federal government and the state or local authority that's going to be acting as immigration or cers again that's entirely absent here and so there of immigration well that's the law your honor but unfortunately our experience is that officers don't always all the law and the point the point of the exclusionary rule is to deter violations of law that might otherwise take place because some officers unfortunately are not scrupulous in following the constraints on their authority that's why we have the exclusionary rule hopefully it's a rule that's never used because nobody listens take place but we all know unfortunately that that's not true and so we need to deterrence now the supreme court did emphasize honor is that in this case fourth amendment generally applies yeah sure i think i think the supreme court decided to apply us especially narrow rule in the context of federal officers for the reasons that gave but those reasons don't apply to what ordinarily would be an appropriate use of the exclusionary rule in immigration proceedings there is one more central point to the supreme court's case that like to address like good which is the fact there's an ongoing violation of law the supreme court was troubled by the fact  i think the arizona case makes clear that that's not so anymore we understand now that immigration violations are civil violations not criminal ones and that ice exercises lots of discretion in deciding whether to enforce immigration law and in this case t individuals in the car got prosecutorial discretion and the federal government has decided the circumstances under which it wants state officers in forcing immigration law and there's thirteen fifty seven g agreements to do that those circumstances are absent here  federal if if if the state had commanded the officer to make this arrest that war would have been preempted because the federal government doesn't want state officers making immigration policy and so but respectfully here congress has thought about the social cost of not allowing these which was pretty clearly tied to characteristics of the immigration structure and immigration law they don't really translate to sta they are different but it's different in a way where the if should be less the case issue should not be the case that a state officer who is not working within the same interest as an circuit after santos vs frederick county in two thousand and thirteen that local officers do not have authority to detain persons based solely on civil immigration violations absent direction from the federal government and again as we have here is a that is a different yes but maybe it doesn't cut in your favor well the state officer in this case what he did the story clear federal violation and what he did was then refer that person or or transfer custody of that person to the appropriate federal agency that enforces such violations and at the time in two thousand and nine there was a circuit split on the issue so are you saying that the problem in this case was never  him to the appropriate inforce me agency now of course that's no longer the case after united states versus arizona and certainly in this circuit but if i understood your response to my question even after arizona an officer who teaches this conduct bit you know because there that you argue a lot of cases we're not concerned just with the case here but the case down the road and that's the difference between the judge just a lawyer if you want to win the case you have and we want to make a rule that applies to cases  after and the rule could be if you are ready to concede on behalf of the united states that in cases under the present law that this could be just her saying egregious violation well i'm not authorized to concede any point it makes a difference because the officer doesn't it well it does make a difference ok because the officer here said he did not have its enforcement already but at the same time he says that's why we detained again this goes back to the officers understanding of his duty as a law enforcement officer if he sees a clear violation of federal law is he to look the other way and ignore it or is he to transfer that person to the appropriate agency at the time in two thousand and nine it was arguably permitted for state officer  to when he sees a clear violation of federal law to detain that person in order to transfer him to the custody of the immigration enforcement agency and so at the time you know the officer testified to the s that it was arguably permitted at the time then there was an arguable fourth amendment violation then necessarily there is not been an egregious violation you mean it's only arguably is that what you're also his testimony his previous testimony about working with ice so again this isn't and also he also testified that just in the past year at times two thousand and nine of the eight hundred or nine hundred traffic stops that there were three on documented cases so taking all of the statements together this appears to be something that this officer given his experience with immigration was something that he would probably was routinely asking every person's case again i mean that fact is not flushed out because petitioners did not further pursue that line of questioning but certainly the officers here deny that there was racial motivation behind his questioning of immigration and under the supreme court's decision in deciding two thousand and five an officer may ask about immigration without implicating a separate fourth amendment and well there wasn't just asking about immigration there was there were the statements do or sometimes what we say we did what we did do or sometimes different well when we look at the facts here there are some mention about illegal sure that there is a hold them there's clearly some informal relationship here in addition to that his mention of the name that certainly it doesn't compel the conclusion that there's racial animus here the officer is presented with a case where a person admits to really being here unlawfully the statement came after the arrest and the seizure itself was not racially motivated if the officer had used the the name ricky bobby instead of drew his or any other at the point of seizures or any other evidence of racial items not not not that not not that i call your honor the only other  possible thing is i believe when the officer stopped the first operator here he was talking to ice and the first operator allegedly overheard him say i have a spanish guy so that would  that because they happen to be that look spanish they were speaking in spanish well first and foremost the officers permitted asked immigration crap question without raising a separate fourth amendment issue second  that encounter was consensual is immigration and third at the time he asked that question according to the officer you know the this is what he said was did you know that the first operator was undocumented at which point everybody quieted nervous time so again the encounter was consensual police officers permitted to ask about immigration without in a separate fourth amendment violation a fourth amendment incident and third the police officer here u card they said no and then i started and the ninth circuit said a police officer could ask where they're going i d who they are and immigration without implicating the fourth amendment and changing the encounter from a consensual encounter to a fourth amendment seizure and as far as the length of detention around or the length of the tension here it was at most three and a half hours but should also be noted that one the police officer shorten the length of tension it would have been much longer had he waited rice and two more ice might not have ever elected well i did ask for five five out five additional hours and two is that the detention most of the attention occurred after ice had already directed the officer to detain the person so that the government mission that a state officer can change from during this during the encounter from being just a state officer to being a state officer working in conjunction with the federal government and therefore getting the pretty getting all the protections th talked about well i'm not quite sure about that's what you seem to be suggesting that we should just treat this as a person that is stopped by a state officer but because he then called ice cooperation of already right but you're not suggesting this is a cooperation authority that comes in the middle of the encounter you can't just state officer can't stop somebody illegally and then call up the immigration service and get cooperation authority no no i thought that's what you were suggesting no you're out of the initial seizure here is the fourth amendment violation it's not permitted but the officers here in order to transfer the petitioner to ice you're always going to have stat directed that me it's just a factor to consider i mean if you illegally detained somebody and thirty seconds later you call ice then there is no detention at all because not only been thirty seconds the length of the detention is still at the length of the departure the case should be this thick and instead we have fifteen hundred page record with testimony from experts and a police officer and the petitioner and all these documents it just shows to prove that these types of suppression hearing in the amount of suppression issues in the board and therefore kind exclusionary rule would have more to churn but one hundred fifty three cases they don't distinguish among those which ones involve just state officers and furthermore the board adjudicate thirty thousand rebuttal your honor this is the very type of situation that the supreme court court in arizona versus the united states sought to avoid an instance where an officer unilaterally arrested an individual for an immigration violation for which they had no authority that no quote understanding of cooperation what amount to that type of finding and you know federal immigration enforcement is discretionary this individual w well your honor the government conceded that there was a fourth amendment violation and we don't look just at the moment of the seizure we're looking at the totality of the circumstances here the big picture all of the factors at play here the fact of the matter is you know the govern government here mentioned that the officer testified on the record that he would have done the same he did that post hoc in the face of litigation that's not how he acted in the day of this incident the first thing out of his mouth well the facts demonstrate that because the first thing out of his mouth was are you negro or illegal the only thing he knew at that point about our client was he looked latino he spoke spanish and he was affiliated with an individual who is latino you may not think his testimony was credible but he said he did this with german an officer acting on his racial animus towards latino immigrants knowingly sees our client without any authority to do so we therefore request that you suppress all evidence obtained from this year and terminate our client remove proceedings thank you thank you very much we will