F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

F R I M M E L M A

N A G E M E N T , L L C, Petitioner
,

v.

U N I T E D S T A T E S O F A M E R I C A ; U.S. D E P A R

T M E N T O F H O M E L A N D S E C U R

I T Y ; I M M I G R A T I O N A N D C U S T O M S E N F O R C E M E N T , Respondents. No. 16-73906

DHS-1 OCAHO Case No. 15A00073

OPI N I ON

O n Petition for Review of an Order of the Department of Homeland Security

Arg ued and Submitted April 10, 2018 San F rancisco, California

F iled J uly 26, 2018

B efore: Dorothy

W . Nelson, W illiam A. F letcher, and Ray mond C. F isher, Circuit J udg es.
Opinion by

J udg e D.W

. NelsonF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 2

SUMMARY *

Im m igration/Em ploym e nt Verif ication

T h e panel g ranted a petition for review o f a n Administrative L aw J udg e ’ s f inal decision and order in a proceeding before the Office of the Chief Administrative H e a r i ng Officer of the Ex e cutive Office for I mmig ratio n Rev i e w d e c l i n i ng to suppress employ ment records I mmig r a tion and Customs Enforcement obtained throug h an investig ation of F rimmel’s c ompliance with employ ment verification requirements.

I CE initiated an investig atio n o f F rimmel after the Maricopa County Sheriff’s Office (“MCSO”), under Sheriff J oe A rpaio, c onducted illeg al raids of two restaurants and the home of B ret F rimmel, owner o f Fr immel Manag ement. M C SO later e-mailed a Shift Summary to I CE, and issued press releases revealing the results of the raids.

The panel ex plained that, even in admin i s trative proceeding s in which the ex clus i o n ary rule does not ordinarily a

pply
, administrative tribunals are still required to

ex c lude e vidence that was obtai n ed by deliberate violations of the F ourth Amendment, or by conduct a reasonable officer should k now is in v iolati o n of the Constitution. The panel

n o t e d that F rimmel was not a rg uing for suppression of i t s identity
, but rather suppression of the evidence I CE obtained when I CE conducted an audit after MCSO issued press releases and sent I CE an e-mail with its Shift Summary

.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.F R I M M E L M G M T

. V

. U

N I T E D S T A T E S 3

The panel held that omissions a nd d istortions in MCSO’s search warra

n t a f f i d a v i t s violated the F o urth Amendment, a nd because a reasonable officer should have known the conduct

was unconstitutional, the violation was eg reg ious. The panel also concluded that I CE’s evidence was the fruit of MCSO’s unlawful search.

I n considering w hether the a ttenuation doctrine applied a s

an ex ception t o the e x clusionary rule, the panel considered temporal pro x i m i t y , and noted that the I CE investig ation closely followed the u nconstitutional search. The panel also considered w hether the r e w e r e intervening circumstances that
p u rg ed the taint of the unlawful search, and concluded that the I CE investig a tion was not an intervening c i rcumstance, rather, it was itself a d irect result of MCSO’s earlier unlawful search, and b a sed o n MCSO’s co m m unication to I CE a nd publiciz ing o f the r aid, the I CE investig ation was precisely what MCSO intended. T h e p anel also concluded that MCSO’s conduct was flag r antly illeg a l, and that MCSO h ad immig ration enforcement as its primary zone of interest. The panel held that I CE ’ s investig ation was therefore not attenuated from MCSO’s illeg al raid.

The panel concluded that application of the e x clusionary rule w ould serve to deter M C S O from F ourth A mendment violations by the probability that illeg ally obtained evidence would not be useful to I CE, even in a civil proceeding

.

The p anel r eversed the A L J ’s ruling deny ing suppression of I CE’s evidenc e p ursuant to the ex clusionary rule, a nd remanded for further proceeding s.F R I M M E L M G M T

. V

. U

N I T E D S T A T E S 4

COUNSEL

Andrew S. J a cob (arg

ued), Gordon Rees Scully Mansukhani, L L P, Phoenix , Ariz ona, for Petitioner.

Andrew N. O’Malley (arg ued), Sen i o r L itig ation Counsel; S u rell B rady
, Trial Attorney ; Chad A. Readler, Actin g Assistant A t torney General; Office of I mmig ration L itig ation, Civil D i vision, United States Department of J ustice, W a shing ton, D.C.; for Respondents.

OP INION

D.W . NEL SON, Senior Circuit J udg e:

OVERVIEW

F rimmel Manag ement, L L C ( “F rimmel”) seeks review o f the Administrative L aw J u dg e’s (“AL J ”) final d e c ision a nd order d eclining to suppress employ ment records I mmig r ation and Customs Enforc e m e n t ( “I CE”) obtained throug h an investig ation of F rimmel’s c ompliance with employ ment verification requirements. I CE in i t i a ted the investig ation after the Maricopa County Sheriff’s Office (“MCSO”), under Sheriff J o e A rpaio, conducted illeg al raids o f two restaurants and the home of B ret F r immel
, o w ner of F rimmel Manag ement. MCSO later e-mailed a Shift Summary to I CE and also issued pre s s r e l e ases revealing the results of the

r a i d s. W e G RANT the petition for review , REVERSE the A L J ’ s ruling that I CE’s evidence in the civil p roceeding s should n ot be suppressed pursuant to the ex clusionary rule, VACATE the judg ment, and REMAND.F R I M M E L M G M T

. V

. U

N I T E D S T A T E S 5

BACKGROUND

I. State Court Suppresses MCSO’s Evidence

On J uly 17, 2 0 13, MCSO, under Sheriff J oe Arpaio, raided two U ncle Sam’s r estaurant locations, where F rimmel M a nag ement leased employ ees, and the home of Br et F rimmel, owner of F rimmel Manag ement. MCSO de p u t ies seiz ed e mploy

ment r e c ords based on suspicion that the
restaurants h ired people who committed identity theft a nd forg ery to obtain employ

ment at Uncle Sam’s.

The S t a t e of Ariz o na then prosecuted F rimmel for

v i o lating Ariz ona’s identity theft laws. At an e videntia r y hearing
, the Maricopa County Superior Court found that eig ht omissions and distortions in the affidavits that supported the

s e a rch warrant for the raids were “unreasonable a n d reckless.” After reforming the affidavits, the state court h eld that there was no probable cause to support the warrants a nd dismissed the criminal charg es ag a inst F rimmel.

II. ICE A udit of F rim m el and Adm inistrative P roceedings

On J uly 18, 2013, the day a fter MCSO c onducted the raids, MCSO s ent various I CE officials, including I CE Auditor Ry a

n Miller, a Shift Su mmary reporting the r esults of the unlawful search. On J uly 17, 2013 and J uly 18, 2013, MCSO issued a press release publiciz ing the raids and stated that “[ n ] ine of the suspects have had I CE holds placed on them.”

On Aug ust 9, 2013, I CE served F rimmel with a N otice o f I nspection and an I mmig ration Enforcement Subpoena. TheF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 6

I mmig r a tion Enforcement Subpoena requested that F rimmel provide the orig inal Employ e r Verification F orms I -9 for all
current and former employ ees, copies of a ny identity a

nd employ ment authoriz ation d ocuments attached to the employ e es’ F orms I -9, a list of all employ ees receiving wag e s from Aug ust 9, 2010 to the date of the Notice of I nspection, and other related e m p l o y ee and business records. B ret F rimmel submitted a stack of F orms I -9 to I CE on Aug u st 12, 2013.

This investig ation resulted in I CE f iling a complaint with the O ffice of the Chief Administrative Hearing O fficer of the E x ecutive Office for I mmig ration Review (“OCAHO ” ), alleg ing that F rimmel Manag ement violated v arious provisions of § 274A of the I mmig ration and Nationality Act, 8 U.S.C. § 1324a(a)(1)(B ) and its corresponding reg ulations. I CE Auditor Ry an Miller stated that the a udit of F rimmel was “initiated based [on] information g enera t e d from local television news channels and local news internet websites.”

F rimmel attempted to d epose the employ ees at I CE w ho received the Shift Summary to determine why MCSO sent its Shift Summary to I CE. T h e G o vernment then moved for a protective o r der. Over F rimmel’s o bjections, the AL J issued
t h at protective order, reasoning that the effects o f I CE receiving this e-mail w e re immaterial because F rimmel’s identity was not suppressible. The A L J further ruled that whether F rimmel came to the attention o f I CE auditors “ as a result of a

n alleg edly unlawful p olice action perpetrated b y MCSO is irrelevant to the case filed with OCAHO.”F R I M M E L M G M T

. V

. U

N I T E D S T A T E S 7

III. ALJ’s Sum m ary Decision

O n May 2 5, 2016, the Government filed a Motion f o r Summary D ecision. F ri m m e l opposed that motion, arg uing that the Government’s material evidence must be suppressed under fruit of the poisonous tree doctrine.

A second AL J then issued a F inal Decision and Order on Octob e r 1 4, 2016 that substantially incorporated the

r e a soning in the first AL J ’ s protective order. The AL J f i r s t ruled that F r immel’s identity was n ot suppressible. The AL J further found that “[ t] here is no e vidence to sug g est that Auditor Miller failed to carry out this investig a tion in accordance with DHS g uidelines or that he relied on evidence directly obtained f

r om MCSO’s unlawful conduct,” a nd therefore concluded that F rimmel d id not establish that I CE’s evidence “constitutes fruit of the poisonous tree.”

The AL J went on to reas o n t hat even assuming the evidence w as fruit, it was too attenuated from MCSO’s unlawful conduct because I CE obtained its evi d e nce “as a direct result of an independent i n v e stig ation carried out b y I CE’s [ Homeland Security I n vestig a tions Unit]
, a n e n t i t y wholly separate from MCSO. The AL J then determined that F rimmel “ failed to show that supp r e s s i on of the challeng ed evidence would satisf

y the ex clusionary rule’s primary g oal of dete r ring future unlawful police conduct” because the “OCAHO proceeding is n ot within the ‘z o ne of primary interest’ of the MCSO [ deputies]
, who s oug ht criminal convictions based on Ariz ona’s identity theft laws.”

F rimmel petitioned for review.F R I M M E L M G M T

. V

. U

N I T E D S T A T E S 8

STANDARD OF REVIEW

W e review de novo the AL J ’s conclusio ns of law, i n cluding w hether the ex clusionary r ule applies in a ci v i l proceeding

. See Mester Mfg. Co. v. INS
, 879 F .2d 561
, 5 6 5 (9th Cir. 1989) (citations omitted). “W ithin the d e novo framework, however, we g ive a certain amount of deference
to an a g ency ’s reasonable c o n s t r uction o f a statute it is charg ed with a dministering

. ” Id

. (citing FTC v. Indiana Fed’n of Dentists
, 476 U .S. 4 47, 454 (1986)). W e review for substantial evidence the AL J ’s finding s of fact. Id.

DISCUSSION

I. MCSO Com m itted an Egregious F ourth Am endm ent Violation

The F ourt h A m endment “safeg uard[ s] the privacy a

nd security of individuals ag a inst arbitrary invasions b y g overnment a l officials.” Carpenter v. United States
, 589 U.S. ___, N o. 16-402, 2018 W L 3073916, at *5 (J une 22, 2018) (quoting Camara v. Mun. Court of City & Cty. of S .F.
, 387 U.S. 523, 528 ( 1967)). “ I t i s well settled that evidence seiz ed during an unlawful search cannot constitute pro o f
ag ainst the victim o f th e search.” United States v. Crews
, 502 F .3d 1130, 1135 (9 t h C i r

. 2007) ( citing W o ng S un v

. United States
, 371 U.S. 471, 484 (1963)). This e x clusionary rule ex tends not just to “evidence seiz ed during an unlawful search,” but also to the “ind i rect

. . . products o f such invasions.” W

ong Sun
, 371 U.S. at 484.

I n INS v

. Lopez-Mendoza
, the Supreme Court held th at t h e ex clusionary rule ty pically does not apply i n

a d m i n i s t r a t i v e— s p e ci f

i c al l y , d e p o r t a t i o n

— p r o c e e d i n g s

.F R I M M E L M G M T

. V

. U

N I T E D S T A T E S 9

468 U.S. 1032, 1 050 ( 1984). B ut “the Court ex p ressly left
open the possibility that the ex cl u s i o n ary rule mig ht still apply in c ases involving ‘eg reg ious violations o f F ourth Amendment or other liberties that mig ht transg ress notions o f fundamental fairness and u n d e rmine the probative value o f the evidence obtained.’” O r h o rhaghe v. INS
, 38 F .3d 488, 492–93 (9th Cir. 1994) (quoting Lopez-Mendoza
, 468 U.S. at 1050–51).

W e later interpreted the “eg reg iousness” caveat in LopezMendoza and established that eg reg ious F ourth Amendment violations warrant the application o f the ex clusionary r ule in civil proceeding s. Adamson v. C.I.R.
, 745 F

. 2d 541, 545–46 (9th Cir. 1984). W e “first emphasiz ed that the Court [ in Lopez-Mendoza ] based its g e n e r al h o lding on its conclusion that the ex clusionary rule will have little deterrent effect in the civil contex t.” Gonzalez-Rivera v. I NS
, 22 F .3d 1441, 1448 (9th Cir. 1994). We then “held that, e ven in administrative proceeding s in which

. . . the e x clusionary rule [ d oes not o rdinarily a

pply ]
, administrative tribunals are still required to ex c lude evidence that was obtained by deliberate violations of the F ourth A mendme n t or by conduct a reasonable officer should know is in v iolation of the Constitution.” Lopez-Rodriguez v. Mukasey
, 536 F .3d 1012, 1015 (9th Cir. 2008) (quoting O rh o rhaghe
, 38 F

. 3d at 493). Thus, “ an eg reg ious F ourth Amendment violation warrants suppression

. . . even if the seiz ed evidence is hig h ly reliable and probative.” Orhorhaghe, 38 F .3d at 502.

To decide w hether MC S O d eputies committed an “eg reg ious violation” of F rimmel’s r ig hts, “we mus t first determine whether [ MCSO] v iolated the F ourth Amendment. I f [ it] did, then w e must determine whether [ MCSO] committed the violations delib e r at e ly or b y conduct aF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 10

reasonable officer should h av e known would violate the C o n stitution.” Lopez-Rodriguez
, 536 F .3d at 1016 (quoti n g Orhorhaghe , 38 F .3d at 493).

a. MCSO’s K now i n g o r R e ckless Material Om issions and Distortions in Searc h Warrant Af f idavits Resulted in a Search Violating the Fo u rth Am e ndm ent

“I t is estab l i s h ed law that a warrant affidavit must set fo r t h particular facts and circumstances underly ing the

ex istence of probable c ause, so a s to a llo w the mag istrate to make an independent evaluation o f t h e m atter.” Franks v

. Delaware
, 4 38 U.S. 154, 1 65 (1978) (citation s omitted). A search warrant, to be valid, must be supported b y an affidavit establishing probable cause.” U n i ted States v. Stanert
, 762 F .2d 775, 778 (9th Cir.), a mende d
, 7 6 9 F .2d 1410 (9th Cir. 1985).

To prevail on a claim that the police procured

a warrant throug h d eception, the party challeng ing the warrant mu s t show that the

a f fiant deliberately or recklessly made fa l s e statements or omissions that were material to the findi ng of probable cause. See Ewing v

. City of Stockton
, 588 F

. 3 d 1218, 1223 (9th Cir. 2009). O u r evaluation of materiality requires that we cons i der the e ffect of any f a l se statements or omissions. “I f an office r submitted fa l s e statements, the court purg e s t hose statements and d etermines whether w h a t is left justifies issuance of the warrant.” Id. at 1224. “I f the officer omitted facts required to prevent technically t r u e statements in theF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 11

affid avit from being misleading
, the court determines whether the affidavit, once corrected and supplemented, establishes probable cause.” Id.

United States v. Ruiz
, 758 F

. 3d 1144, 1148 (9th Cir. 2014). I f the corrected wa r rant is lacking in p robable cause, then “the s e a r c h warrant must be voided and the fruits of the search ex clud e d t o the same ex tent as if probable cause was lacking on the face of the affidavit.” Franks
, 438 U.S. at 156. “To c redit a confidential source’s information in making a probable cause determination, the affidavit should support an infer en c e that the source was trustworthy a nd that the source’s accusation of c r i m i nal activity was made on the basis of information obtained in a r el i a ble way .” United States v

. Landis
, 726 F .2d 540, 543 (9th Cir. 1984)

. “[ B ] y reporting less than t h e total story , an affiant can manipulate the inferences a mag istrate w ill dra w

. . . [ T] o allow a mag istrate to be misled in such a manner could denude the probable cause requirement of all real meaning

. ” Ruiz
, 758 F .3d at 1148 (citations and quotation marks omitted). Omissions that undermine the credibility of complainants a re material to the finding of pro b a b l e cause. See Illinois v

. Gates
, 462 U .S. 213, 239 (1983) ( reiterating that mere statements that “a f

f iants have received reliable information from a c r e d i ble person and believe that heroin is stored in a home” is not sufficient (citations and quotation m a r ks omitted)).

The Government does n ot d ispute that the omissions a nd distortions in MCSO’s affidavits were reckless and material. MCSO omitted that Complainant #1 had c alled in her complaint the day her husband was a rrested for stealing from F rimmel. MCSO a l s o omitted that Complainant #2 wasF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 12

p r e viously arrested for stealing from F rimmel. The s e omissions “sug g est[ ] the possibility that [ the Complainants] would lie to the police to frame an innocent ma n,” h ere, F rimmel. United States v. Hall , 113 F .3d 157, 160 (9th Cir. 1997). F urther, Detectiv e H e n d erson withheld the fact that both compl ainants w ere a n ony mous tipsters, r ather than confidential informants. Detective Henderson also withheld that a n I RS investig ation resulted in no findi n g s o f
wrong doin g ag ainst F rimmel and “wrong fully stated in the affidavi t s that Complainant #2 was positive that no employ e es h ad to fill out the A -4 state tax form,” even thoug h Complai n ant #2 never made such a statement. Given that nothi n g corroborated the anony mous tips—and MCSO actually withheld information that undermined the credibility of those tips—the inaccuracies in the affidavits were material. As the state c ourt correctly found, all the foreg oing omissions and inaccuracies we re either intentional or reckless g iven h ow sig nificant they were. B a sed on the foreg oing
, w e a lso hold that the MCSO raids that resulted f rom t h e se reckless a

nd material inaccuracies constitute a Fo u r th A mendment violation.

b. The F ourth Am e ndm ent Violation Was Egregious because MCSO Acted Unreasonably

The G overnment also concedes that MC S O ’ s c o n d u c t was

an eg reg ious F ourth Amendment violation. As stated above, “a F ourth Amendment violation is eg reg ious if e v i d e n ce is

o b t a i n e d b y deliberate viol a t i o n s o f t h e [ F] o u r t h [ A] mendment, or by conduct a reasonable officer should [ have known] is in violatio n o f the Constitution.” LopezRod r i g u ez , 536 F .3d at 1018 (citation, q uotation marks, a

nd emphasis omitted).F R I M M E L M G M T

. V

. U

N I T E D S T A T E S 13

Under Franks
, a police officer who recklessly disreg ards the truth or k

nowing ly includes false material information in,

or omits material information from, a search warrant affidavit

“ cannot be said to have acted in a n o bjectively reason a b l e

m a n n er.” Branch v. Tunnell
, 9 37 F .2d 1 382, 1 387 ( 9 th C i r. 1991) ( q uoting Olson v

. Tyler
, 771 F .2d 277, 2 8 1 (7t h C i r. 1985)), overruled on other grounds by Galbraith v. County of Santa Clara
, 307 F.3d 1119, 1127 ( 9 th Cir. 2002). I n other words, if a

n o f f i c e r recklessly omits or falsifies material information, the officer has acted unreasonably a nd thus the officer’s actions are sufficient to q ualify as eg reg ious conduct under Adamson

.

As d iscussed above, MCSO made several reckless material omissions or d istortions in the affidavits. “B ecause the [ Franks ] p rinciple w as firmly established at the time [ the MCSO detectives obtained the warrant and searched Uncle S am ’ s restaurants and the home of B ret F rimmel]
, we conclude that a reasonable officer sho u l d h ave known that both the seiz ure of [employ ment records ] a n d the unlawful entry into [ Uncle Sam’s and B ret F rimmel ’ s home] v iolated the Constitution.” Orhorhaghe
, 38 F .3d at 503. W e therefore hold that MCSO’s “F ourth Amendment violations were eg reg ious.” Id.

II. ICE’s Investigation Is Not Attenuated f rom MCSO’s Illegal Raid

The AL J found, and the Government now a r gu es, that

even assuming there was a F ourth Amendment violation, the I CE investig ation w as too attenuated from MCSO’s illeg al conduct. There are three ex ceptions to the ex clusionary rule that implicate the causal relationship between the illeg al act and discovery of the evidenc e : 1) the independent sourceF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 14

d o c t r ine; 2) the inevitable discovery doctrine; and 3) th e attenuation doctrine. Utah v. Strieff
, 1 36 S. Ct. 2 0 5 6
, 2 0 61 (2016). “To apply

the ex clusionary rule to the unique set o f facts presented here, w e must consider the r ule’s d ual
purposes: to deter similar police misconduct in the future a nd
to preserve the integ r ity o f the courts.” United States v

. $186,416.00 in U

.S. Currency
, 5 90 F .3d 942, 950 ( 9 th Cir. 2010).

“ [ U] nder the ‘attenuation doctrine,’ evidence i s admissible when ‘the c onnection between the ill egality a nd the challeng ed evi d en c e’ has become so attenuated ‘as to dissipate the taint caused by the illeg ality .’” United States v

. Gorman , 859 F .3d 706, 718 (9th Cir. 2017) (quoting United States v. R amirez-Sandoval
, 872 F

. 2 d 1392, 1396 ( 9th Cir. 1989)). “ Of course, the line between taint and attenuation is
not an easy one to draw

. . . [ T] here is not now and doubtless

never will be any litmus-paper test for determining when there is only an attenuated connection bet w e e n a F ourth Amendment v i olation and certain derivative evidence.” United S tates v

. Smith
, 155 F .3d 105 1
, 1 060 (9th Cir. 1 998) (citations and internal quotatio n marks omitted). The test, however, “is more akin to a prox ima t e causation analy sis,” rather than a “but for” test. I d.

I n determining whether evidence is too att e n uated from illeg al conduct, relevant facto r s include: “[ t] he temporal
pr o x i m i t y of the [MCSO raid] a nd [ I CE’s evidence]
, the
presence of intervening circumstances, and, particularly, the
purpose and flagrancy of the official misconduct. ” Brown v

. Illinois
, 422 U.S. 590, 603–04 ( 1 975) (citations o m i tted) (emphasis added).F R I M M E L M G M T

. V

. U

N I T E D S T A T E S 15

1. IC E ’ s Evidence Is the F ruit of M CSO’s Illegal Raid

“As a p reliminary step, it is plain that the [ evidence I CE obtained] was the p r oduct o f [ MCSO’s] illeg al a ctivit y

. ” $186,416.00 in U.S. Currency
, 590 F .3d at 951. “[ E] vidence qualifies a s the ‘fruit of the poisonous tree’ when ‘the illeg al activi t y t ends to sig nificantly direct the investig ation to the evidence in question.’” Gorman
, 859 F .3d at 716 (quoting United Sta t es v. Johns
, 891 F .2d 243, 245 (9th Cir. 1989)). “‘The focus,’ in other words, ‘is on the causal connection between the illeg ality and the evidence.’” Id. (quoting Johns
, 891 F .2d at 245).

I n United States v

. Johns
, we held that evidence that resulted from an investig ation that was sp u r re d b y identification e vidence that “‘tended sig nificantly ’ to direct the investig ation toward the evidence in question” was fruit, and also not attenuated from the e arlier unlawful stop. 891 F .2d at 2 4 5 (quoting United States v

. Bacall
, 443 F .2d 1050, 1057 (9th Cir. 1971)). I n Johns
, Sheriff’s officers illeg ally stopped two individuals at an airstrip. Id. at 244. “As a r esult of the officers’ identificati o n o f Johns and Hearron
, Customs ag ents d rew upon prior information about J o h n s’ association with suspected narcotic smug g lers a nd quickly beg an surveillance at the house of on e associate. F rom the house, the ag e nts followed several individuals to the marijuana that was subsequently seiz e d.” Id

. (emphasis added). Thus
, w e “[ could not] hold that the r ole of the identification w as insig nificant or de minimis, as the
g overnment contend[ ed] .” Id. at 245 (emphasis omitted).

“ Here, there is an indisputable ‘ causal connection’ between [ MCSO’s unlawful search] and the [ I CEF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 16

investig ation] and its fruits.” Gorman
, 8 5 9 F. 3d at 716 (quoting J

ohns
, 891 F

. 2d at 245). A u d itor Miller testified that h e initiated the audit after MCSO issue d a press release publiciz ing the illeg al raid. There w ere reports of F rimmel’s violations on the tip line, but Auditor Miller’s test i m o n y shows that the I CE invest ig ation was “initiated based o n”

news reports rather than the tips. MCSO’s e-mail to I CE the day after the illeg al raid further supports our conclusion that I CE initi a t ed an audit “[ a] s a result of” MCSO’s illeg al conduct. Id. at 7 16. B a sed o n the information MCSO

co n v e y ed to I CE, I CE “drew upon prior information about [ F rimmel]

. . . and quickly beg an [ an investig a tion]

. ” Johns
, 8 9 1 F .2d a t 244. L ike in Johns
, the identity evidence that resulted from the MCSO r aid “sig nificantly directed” the subsequent investig ation. Id. W e therefore hold that I CE’s evidence is the fruit of MCSO’s unlawful search.

B o th the G o v ernment and the AL J focused on our rule
t h a t identity evidence is not ty pically suppressible under the F ourth Amendment. I n United States v. Del Toro Gudino
, we held “that the simple fact of who a d e fendant is cannot be

ex c luded, reg ardless of the nature of the violation leading to his identity

. Other evidence, o f c ourse, may be suppressed consistent with

. . . our cases apply ing the ex c lusionary rule in the criminal contex t.” 376 F .3d 997, 1001 (9th Cir. 2 004) (emphasis added).

Here, F rimmel is not a

rg u ing for t h e suppression of its identity ; rather, it is argu i n g for suppression of the evidence I CE obtained when I CE conducted a n audit after MCSO issued p r e s s r eleases and sent I CE an e-mail with its Shift Summary

. As discussed above, the evidence resultin g fr om

a later investig ation that is “sig n ificantly directed” by identity evidence learned from earlier unlawful conduct is fruit of theF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 17

poisonous tree. See Johns
, 891 F .2d at 245. Thus, the issue

concerns not suppression o f identi t y e vidence, but “[ o] ther evidence” that resulte d f r om the unlawful raid. Del Toro Gudino , 376 F .3d at 1001.

2. Tem poral P roxim ity

F ruit may nonetheless be attenuated after considering the three f actors that g uide the a ttenuation inquiry

. Strieff
, 136 S. C t

. at 2061–62. As to the first factor, attenuation o f derivative evidence is favored when “ substantial time elapses between an unlawful act and when the evidence is obtained.” Id. a t 2 0 62 (quoting Kaupp v. Texas
, 538 U.S. 626, 633 (2003) (per c u r i a m)). B ut there is “no brig ht-line test for temporal prox imity in an attenuation analy sis” and even a two month g a p between an illeg al search a n d t he fruit may not warrant a finding o f attenuation. $ 1 8 6,416.00 in U .S. Currency
, 590 F .3d at 951 (citations and inte rn a l q uotation marks omitted) (holding that a two month ga p between an illeg al search and a defendant’s subseq u e n t declaration was not sufficient to render the declaration attenuated from the search). A fter MCSO conducted the illeg al raid, MCSO emailed t h e S h i ft Summary to I CE the nex t day and issued
press releases the d ay of t h e r a i d a nd the day after. As a result o f the raids, I CE initiated its investig ation three weeks and two d ay s after. I CE’s investig ation therefore “closely

. . . followed the unconstitutional search.” S trieff
, 136 S. Ct. at 2062. Giv e n that there is no brig ht line test, “we must consider whether intervening c ircumstances may have purg ed [ I CE’s eviden c e ] o f taint f r om the illeg al search.” $186,416.00 in U.S. Currency
, 590 F .3d a t 951 (citing Brown
, 422 U.S. at 603–04).F R I M M E L M G M T

. V

. U

N I T E D S T A T E S 18

3. Intervening Circum stances

The second factor requires u s to consider whether intervening circumstan c e s “ purg e the taint” of the MCSO raid. United States v. W

ashington
, 387 F .3d 1060, 1 073 (9th Cir. 2004). I n United States v. Gorman
, police officer Monroe stopped Gorman based o n a minor traffic infraction and unlawfully prolong ed the detention based on a suspicion that G orman was carry

ing drug m o n e y

. 859 F

. 3d at 709. Unable to justify a search of the car, Monroe communicated identification information about the v ehicle and Gorman to a deputy a t the sheriff’s o ffice who later stopped Gorman for a minor traffic infraction, c onducted a r ecords check, and then proceeded to conduct a dog sniff that led to the currency

. Id.
at 7 09–10. W e held that the “investig ation that followed the second stop

. . . was entirely a p roduct of Monroe’s report—a product that was directly and d el i b erately planned a nd intended. The second stop w as thus not a n intervening circumstance; rather, it was itself a direct result of Gorman’s earlier unlawful detention.” Id. at 718. W e e mphasiz ed that it “misses the point to think that a second t r a f f i c i nfraction and stop automatically leg itimate a s ubsequent search when that search was c onducted pursuant t o information obtained during a prior stop.” Id. at 718–19 (internal quotation marks omitted).

As in Gorman
, MCSO eng age d i n a similar ty pe o f

“ g amesmanship” where it “alerted a separate l a w enforcement ag ency ,” i.e., I CE, with information that then “sig nificantly directed” I CE’s investi g ation. Id. at 716–17, 719

. L ike the second stop and search in Gorman
, the I CE investig ation was sufficie n tly connected to MCSO’s initial unlawful conduct even tho u gh it was otherwise lawful. See id. at 718. “The [ I CE investi g a t ion] was thus not anF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 19

intervening c ircumst a n c e ; rather, it w as itself a direct result of [ MCSO’s] earlier u nlawful [ search ] .” Id. B ased on MCSO’s communication to I CE and publiciz ing of the raid, the I CE investig ation w a s p recisely what MCSO intended. W e therefore h old that it c a n n o t c onstitute an “intervening circumstance” under Gorman

.

W e a lso n o t e t h a t this case is d ifferent from U tah v

. Strieff
, w here the Court found that the ex istence of “a wholly unconnected” and valid arrest warrant that “pre- d ated” the illeg al stop w as an intervening c ircumstance because it h ad

no causal connection to the e arlier unlawful stop. 136 S. Ct.
at 2059, 2062–63. Un l i k e the arrest warrant in Strieff
, the I CE investig ation was indeed connected to MCSO’s illeg al raid. And under the third and mos t i m portant a ttenuation factor—as discussed below—the o f ficer in Strieff

, unlike MCSO, “was at most neg lig ent.” Id. at 2063.

4. F lagrancy

F lag r ancy of the F ourth A mendment violation is “particularly sig nificant,” e spec i ally when officers commit the illeg al search with the subjective pur p o s e o f seeking evidence o f the sort at iss u e

. S t r ieff
, 136 S. Ct. at 2062 (internal quotation marks omitted); see also United States. v

. Ceccolini
, 435 U.S. 268, 279–80 (1978) (g iving weig ht to the
g overnment’s showing that the o f f i c ers did not conduct the illeg al search with the intent o f locating the evidence at issue). D er i v a t i ve evidence is therefore more likely to be tainted i f there is evidence that “the illeg al conduct that preceded it involved ‘either purposeful ex traction of evidence

or flag rant illeg ality .’ ” United States v. Shelter
, 665 F .3d 1150, 116 0 ( 9 t h Cir. 2011) (quoting United States v

. W ashington
, 387 F .3d 1060, 1075 n.17 (9th Cir. 2004)).F R I M M E L M G M T

. V

. U

N I T E D S T A T E S 20

MCSO’s conduct easily meets the flag rancy standard. A s

we d iscussed above, MCSO omitted sig nificant a nd material information and distorted facts in the a ffid a vits, making its conduct an eg reg ious F ourth Amendment violation. MCSO also materially falsified another affidavit to support another
warrant for the arrest of B ret F rimmel a nd the c o-ow n e r o f F rimmel Manag ement, sug g esting that MCSO repeatedly
eng ag es in eg reg ious F ourth Amendment violations. And a s

we detail further below, M CSO’s conduct involved “purposeful ex traction” f

or I CE’s enforcement purposes. Id. W e thus conclude that the thir d attenuation factor weig hs heavily in favor of F rimmel.

III. MCSO Had Im m igration Enf orcem ent in Its “Z one Of P rim ary Interest”

As a final step in our ex clusionary rule analy sis, we must determine whether MCSO
, a separate law enforcement
ag ency , would be deterred from f uture u n l a w f

ul conduct if the evidence in the OCAHO p roceeding s were suppressed. United States v. Janis
, 4 28 U.S. 433, 458 (19 7 6 ) ; United States v. Medina
, 181 F .3d 1078, 1082 (9th Cir. 1999). “The Government may not successfull y a s s e r t that the illeg a l act

was d one by state o r local o fficers and theref o r e t h e [ evidence] subsequently [obtained] [ is] admissible in a [ civil proceeding ], w ithout concern as to the method by which they

were obtained.” United States v. Perez-Castro
, 606 F .2d 251, 253 ( 9th Cir. 1979) (citing Elkins v. United S tates , 364 U.S. 206, 223 (1960)).

The crux of our inquiry

is whether MCSO had within its “z one of primary interest” t he later I CE investig a tion a nd OCAHO proceeding s, su c h that the suppression of I CE’sF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 21

evidence in this case would have deterrent effect on MCSO. Janis
, 4 28 U.S. at 458. As the Second Circuit has ex p lained:

in o rder to d ecide whether appli cation of the

ex c lusion a r y sanction is likely to have a sig nificant deterrent effect, the key question is whether the particular challeng ed use of the evidence is one that the seiz ing o fficials were likely to have had an interest in a t the t i m e

– whether it was wi thin their predictable contemplation and, if so, whether it was likely to have motivated them.

Tirado v. C.I.R.
, 689 F

. 2d 3 07, 311 (2d Cir. 1982). W e have held that the z one of primary interes t t e st is satisfied where there the ag ency conducting th e illeg al search had a

“ p r e e xi s t i n g a g r e e m e n t

— e i t h e r i mplicit o r ex plicit”—to sh a r e information w ith a second ag ency

. G rimes v. C.I.R.
, 82 F .3d 286, 290 ( 9th Cir. 1996). B ut an a g reement is n ot required. W h ere, as here, the law e n f orcement a g e n c y c o nducting the unlawful search both has a policy of sharing information with another law enforcement ag ency a nd shares t h e information for the p urpose of spurring t h e second ag ency to initiate an investig ation and enforcement action, the latter enforcement

a c t i o n falls w ithin the initial ag ency ’s z one of primary interest.

Here, we cannot say whether there was a n actu al

a greement—ex plicit or implicit—between the MCSO a nd I CE. There may well have been, but the AL J ’ s discovery ruling s prevented Fr i m mel f rom developing that evidence. The r ecord nonetheless shows that the MCSO had a policy o f sharing information with I CE, and the only reasonable inference is that MCSO shared this informati o n f o r theF R I M M E L M G M T

. V

. U

N I T E D S T A T E S 22

purposes of spurring I CE enforcement acti o n

. T he record shows that the day after MCSO’s raid, MCSO sent three I CE ag ents an e-mail with the Shift Summary of the raid, including the names of em ploy ees arrested for alleg ed identity theft. As the AL J noted, “[ I CE] Auditor Miller also receiv e d an MCSO Shift Summary in J anuary 2014, d e s c ribing the arrests of Mr. F rimmel and Uncle Sam’ s g eneral m anag er, L isa Norton, for violating Ariz ona’s identity theft laws.” W e thus hold that the ex clusionary rule

w ould serve to deter MCSO from F ourth Amend m e n t violations “ by the p r obability that illeg ally obtained evidence will not be useful to [ I CE] , even in a civil proceeding .” Id.

CONCLUSION

F or the reasons set forth above, we G RANT the petition for review, REVERSE the AL J ’s ruling that I CE’s evidence should n ot be suppressed pursuant to the ex cl usionary rule, VACATE the judg ment, and REMAND for f urther proceeding s.