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. e du/thir dc ir c uit_1998/150Filed July 8, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7328

UNITED STATES OF AMERICA

v.

BELKI MARIA VASQUEZ DE REYES,

Appellant

On Appeal from the District Court of the Virgin Islands (D.C. No. 96-cr-00079)

Argued December 11, 1997

Before: SLOVITER, STAPLETON and MANSMANN, Circuit Judges

(Filed July 8, 1998)

Patricia Schrader-Cooke (Argued)
Office of Federal Public Defender Christiansted, St. Croix, U.S. Virgin Islands 00822

Attorney for Appellant

David L. Atkinson (Argued) Office of the United States Attorney Christiansted, St. Croix, U.S. Virgin Islands 00822

Attorney for AppelleeOPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant Belki Maria Vasquez De Reyes appeals her conviction for marriage fraud, 8 U.S.C. S 1325(b) ( 1991) (now codified at S 1325(c)), contending that illega lly secured evidence was erroneously admitted. Ms. De Reyes arg ues that the district court erred by admitting, under t he inevitable discovery doctrine, testimonial evidence acquired as a result of an unlawful stop. We have jurisdicti on under 28 U.S.C. S 1291. Our review of the factualfindings is for clear error, and our review of the district court's application of a legal standard is plenary. See United States v . Herrold, 962 F.2d 1131, 1136 (3d Cir. 1992).

I

The relevant facts are undisputed. In November 1996
, agents from the Immigration and Naturalization Serv ice operating in the Virgin Islands received a tip from an informant that three female illegal aliens would be in Maxi's
Bar in Christiansted on the island of St. Croix of the United States Virgin Islands to sell fraudulent numbers fo r permanent residency cards (or "green cards"). The t hree
women were described with minimal characteristics a s follows: one had red hair; another was short and"he fty" with brown hair; the third was named Carmen. The IN S
officers had no other details about the women.

INS agents Thomas Annello and Alec Lee proceeded to the bar where Annello encountered Ms. De Reyes, a n ative of the Dominican Republic, who proceeded to walk aw ay. Annello instructed Lee to stop Ms. De Reyes, a stop the district court found was illegal because there was insufficient cause. In that connection, it is noted that when the issue arose Annello testified Ms. De Reyes appe ared to have a reddish tint to her hair, but Lee testified that she had brown hair. Following the stop, Ms. De Reyes wa s detained and questioned about her citizenship. She admitted she was a citizen of the Dominican Republi c and

2claimed she was legally present in the Virgin Islan ds under

a visa. Ms. De Reyes asked a friend to fetch her pu rse from a nearby residence, and was able to produce papers showing that she was married to Escolastico De Reye s, a resident of the Virgin Islands, but she was unable to produce a document showing she was legally present in the United States. Ms. De Reyes was transported first t o INS headquarters but when she was unable to contact her husband, she was transported by INS to a correction al facility where she was incarcerated overnight.

The next morning Escolastico De Reyes arrived at IN S headquarters looking for his wife. When he was ques tioned by Agent Annello about his marriage, he maintained that Ms. De Reyes was in fact his wife. However, Annello then visited Escolastico De Reyes' home, where he observ ed very few articles of women's clothing, a fact which led him to question whether Ms. De Reyes did live there. Then Escolastico De Reyes' mother told Annello that Ms. De Reyes did not live with Escolastico, following whic h Escolastico De Reyes confessed that the De Reyes ma rriage
was a fraud that had been established to enable Ms. De Reyes to obtain a permanent resident card.

When Ms. De Reyes was confronted with the informati on about her husband's confession and the visit by the INS to his home, she conceded the fraudulent nature of the marriage, and signed a written confession to having committed marriage fraud.

Ms. De Reyes entered a conditional plea pursuant to Fed. R. Crim. P. 11(a)(2) and filed a motion to suppress all
evidence of items and statements taken from her and obtained pursuant to the stop outside the bar on th e basis that the INS agents lacked reasonable suspicion to hold and question her. The district court granted the mo tion to suppress because it found the evidence was the frui t of an unlawful stop that was unsupported by reasonable suspicion under the Fourth Amendment. The district court explained that the reasonable suspicion standard wa s not met in light of the agents' contradictory testimony regarding Ms. De Reyes' hair color and the fact that Ms. De R eyes failed to match even the sketchy description given by the informant. That finding is not challenged on appeal

.

3The government moved for reconsideration of the

suppression of Escolastico's statements and Ms. De Reyes' post-Miranda confession. The government argued that the testimonial evidence was acquired independent of th e illegal stop so that suppression was not required and that even if acquired illegally, the evidence would have been in evitably acquired through lawful means. On reconsideration, the district court granted the motion, finding that the se statements would have been inevitably discovered th rough an INS investigation of the De Reyes marriage. The district court's ruling was based in part on the testimony o f Andres Oversen, an INS adjudicator.

Oversen had testified concerning the INS procedures for obtaining a permanent residency card (generally cal led a green card) following the marriage of an alien to a United States (including Virgin Islands) resident. Such a card, which would enable a spouse to receive permission t o live and work in the United States, can be obtained only after the filing of an I-485 form (an adjustment of statu s form). This is preceded by the filing of an I-130 form on behalf of the alien spouse. Although the I-130 form had beenf iled on behalf of Ms. De Reyes, they had not yet moved to t he I-485 form stage. Oversen testified that there is no time limit within which an applicant must file the I-485 form.

After the I-485 form is filed and both spouses are on American soil, the INS ordinarily conducts an inter view of the husband and wife. The spouses are interviewed separately and successively. Each is questioned abo ut how they met, their families, their home life, theirfin ances, their meals, and even any birthmarks each spouse may have . If the answers to these questions differ greatly, the adjudicator may request an investigator to visit th e couple's

home.

A spouse not on United States soil can receive a permanent residency card by the alternate procedure of completing a State Department form available at the United States Embassy of the spouse's home country. In suc h circumstances ordinarily only the applicant alien i s interviewed. However, if the alien had been in the United States illegally prior to completing the form at th e United

4States Embassy, there is a ninety-day waiting perio d before

an interview is scheduled.

Having admitted into evidence the confessions of Ms . De Reyes and the statements of her husband under the inevitable discovery doctrine, the district court f ound Ms. De Reyes guilty of violating the marriage fraud sta tute and sentenced her to time served, deportation and super vised release of three years.

The single issue on appeal is whether the district court erred in admitting the previously excluded evidence of Escolastico De Reyes' statement and Ms. De Reyes' p ostMiranda confession under the inevitable discovery d octrine.1 Ms. De Reyes contends that the admission was errone ous because there are too many variables to find that a routine INS investigation would have inevitably discovered the testimonial evidence it uncovered regarding the sha m marriage.

II

The exclusion of evidence illegally obtained is one of the cornerstones of federal criminal procedure. See Wee ks v. United States, 232 U.S. 383, 391-92 (1914). Similar ly,

___________________________________________________ ______________

1. To the extent that the government contends that the evidence was legally acquired or otherwise purged of the taint o f the illegal stop because De Reyes arguably came to the INS voluntari ly, we disagree. The government relies on New York v. Harris, 495 U.S. 1 4 (1990), which reversed the state court's suppression of a stateme nt because it was made independently of the illegal entry into defend ant's home. Unlike Harris, in this case Mr. De Reyes came to the INS o ffice only after he learned of the arrest of Ms. De Reyes, which was ta inted by the earlier illegality. The district court's initial suppressio n order was apparently predicated on the recognition that Mr. De Reyes' pr esence at the INS was inextricably intertwined with the illegal stop and seizure of Ms. De
Reyes. This case is closer to Brown v. Illinois, 422 U.S. 590 (1975), where the Court held that the prosecution had failed to meet its burden under Wong Sun v. United States, 371 U.S. 471, 486 (1963) , to show that the confession at issue was "sufficiently an act of fre e will to purge the primary taint of the unlawful invasion." Here also, the government has

not shown that the statements were the result of an "act of free will unaffected by the initial illegality." Brown, 422 U .S. at 603.

5incriminating evidence derived from the illegally o btained

evidence, colorfully termed the "fruit of the poiso nous tree," is also excluded. Wong Sun v. United States, 371 U. S. 471, 488 (1963). On the other hand, evidence that the prosecution can show has been discovered independen t of any constitutional violation is not excluded. The u nderlying rationale for the independent source rule is that t he exclusionary rule ensures that the police should no t be in a better position as a result of their illegal acti on, but neither should they lie in a worse position.

That same rationale was used by the Supreme Court when it adopted the inevitable discovery rule. As s et forth in Nix v. Williams, 467 U.S. 431 (1984),"[i]f the p rosecution can establish by a preponderance of the evidence th at the information ultimately or inevitably would have bee n discovered by lawful means . . . then the deterrenc e rationale has so little basis that the evidence sho uld be received." Id. at 444. The rule so applied permits the court to balance the public interest in providing a jury with all relevant and probative evidence in a criminal proce eding against society's interest in deterring unlawful po lice
conduct. See id. at 443.

In Nix, the defendant was arrested for the kidnappi ng and murder of a ten-year old. While transporting th e defendant, a police officer violated the defendant' s right to counsel by interrogating him and thereby discoverin g the location of the body. By that time, the police had begun an exhaustive search that subsequent testimony reveale d would have discovered the body within hours of the defendant's disclosure of the location. The Supreme Court held the improperly acquired information could be a dmitted because the prosecution had proven by a preponderan ce of the evidence that the body would have inevitably be en discovered during the course of the lawful search. See id. at

449-50.

It is the government's burden to show that the evid ence at issue would have been acquired through lawful me ans, a burden that can be met if the government establis hes that the police, following routine procedures, woul d inevitably have uncovered the evidence. See, e.g., United States v. Martinez-Gallegos, 807 F.2d 868, 870 (9th Cir.

61987). However, the Supreme Court made clear in Nix that

the analysis should focus upon the historical facts capable of ready verification, and not speculation. Nix, 46 7 U.S. at 444, n.5.

It follows from the Court's approach that the inevi table discovery doctrine has generally been applied in th e context of acquiring physical evidence, such as drugs or we apons. Thus when the government proves that its officers c onduct a routine search in similar circumstances, a court is likely to adopt the government's argument that the evidenc e would have been discovered in the course of that se arch. An example is presented by the recent decision of t he Tenth Circuit in United States v. Haro-Salcedo, 107 F.3d 769 (10th Cir. 1997), where the court held that cocaine evidence
obtained from an unlawful search of an automobile w as admissible because the police showed that the evide nce would have been inevitably discovered in the invent ory search of the automobile which always follows impoundment. Id. at 773. Similarly, in United State s v. Kennedy, 61 F.3d 494 (6th Cir. 1995), the court hel d that
cocaine in a misrouted suitcase would have been ine vitably
discovered when the airline searched for identifica tion of the owner. Id. at 498. The court explained:

Proof of inevitable discovery involves no sp eculative
elements but focuses on demonstrated histori cal facts capable of ready verification or impeachment and does not require a departure from the usual burde n of proof at suppression hearings. The exception requi res the district court to determine, viewing affairs as they
existed at the instant before the unlawful s earch, what would have happened had the unlawful search never occurred.

Id. (citations and quotations omitted).

In this case, the district court held the statement of Escolastico De Reyes and the confession of Ms. De R eyes admissible under the inevitable discovery rule. The court, relying upon the INS testimony as to the procedures likely to be followed in the course of processing residenc y permits based upon alien marriages, concluded that, followi ng routine procedures, INS agents would have inevitabl y

7uncovered essentially the same evidence of marriage fraud

that resulted in Ms. De Reyes' conviction.

In response to our inquiry, the government was unab le to cite to any decision in which the inevitable discov ery doctrine was applied to admit statements, as distin guished from physical evidence. While we know of no articul ation of the inevitable discovery doctrine that restricts it s application to physical evidence, and we are not pr epared in this case to enunciate such a condition, it is p atent why cases have generally, if not always, been so limite d. A tangible object is hard evidence, and absent its re moval will remain where left until discovered. In contrast, a statement not yet made is, by its very nature, evanescent and ephemeral. Should the conditions under which it was made change, even but a little, there could be no assura nce the statement would be the same. Thus, even if we were to assume both that Ms. De Reyes would not have chosen to return to the Dominican Republic to apply for her r esidency card there, and that under routine INS procedures M s. De Reyes and her putative husband would have been interviewed following her application for a residen cy card, there is no assurance that: (1) Ms. De Reyes would have filed her I-485 form without having taken any steps to create the illusion of a marriage with Escolastico De Reyes; (2) an INS agent would have "inevitably" become sus picious during the interview and would have requested an investigator to conduct a home visit; and (3) the i nterview and the home visit would have "inevitably" disclose d sufficient facts suggesting that the marriage was a sham such that Ms. De Reyes and her husband would have confessed to the fraudulent nature of the marriage. To reach all three conclusions requires engaging in pr ecisely the type of speculation the Court proscribed in Nix

.

One can just as plausibly presume that both Ms. De Reyes and her putative husband would have been prep ared
for the interview and that their friends and relati ves would have been coached to help create the illusion of a legal marriage. We are simply unable to say with any cert ainty that the INS would have discovered anything close t o the kind of conclusive evidence that Ms. De Reyes' conf ession and Mr. De Reyes' statements provided. See United S tates

8v. Namer, 835 F.2d 1084, 1088 (5th Cir. 1988) ("[A] t a

minimum, the government would have to offer a theor y as to the manner in which agents would have made their discovery. We agree with the commentators that emph asis is on `would' not `might' or `could.' ") (citations omitted).

In adopting the inevitable discovery rule, the dist rict court passed over several steps in the investigatio n process. First, the individual interviews are scheduled only after the I-485 form is submitted, which Ms. De Reyes had not yet filed. It is unknown when Ms. De Reyes would have f iled
the I-485 or even whether she would have done so in lieu of returning to the Dominican Republic to apply at the United States Embassy in Santo Domingo. Second, the home visit is ordered only if the interviewing INS agent has suspicions about the application. It is possible th at Mr. and Ms. De Reyes would have been better prepared for th e interview had it followed the usual course absent t he illegal search. Third, even if a home visit were conducted, it is again plausible that the fraud would have been bett er disguised and more convincing.

Moreover, there was no testimony that sham marriage s are inevitably uncovered as a result of interviews and home visits. In many respects, the discovery of a sham m arriage rests upon the skill of the putative spouse at dece ption and
the detective instincts of the INS interviewer. The INS investigation into the De Reyes marriage had not ye t commenced. The investigative process is not foolpro of but depends upon a number of variables.

We believe it requires an unacceptable degree of assumption and speculation to find that the incrimi nating evidence of marriage fraud would have been inevitab ly
discovered. As the Seventh Circuit stated in United States v. Jones, 72 F.3d 1324 (7th Cir. 1995) "[s]peculati on and assumption do not satisfy the dictates of Nix, howe ver. Inevitable discovery is not an exception to be invo ked casually, and if it is to be prevented from swallow ing the Fourth Amendment and the exclusionary rule, courts must take care to hold the government to its burden of p roof." Id. at 1334 (citations omitted). This is a case in whic h the government failed to meet its burden of proof.

9For this reason, we hold that the district court'sf inding

that the testimonial evidence would have been inevi tably discovered by routine INS procedures cannot be sust ained
and we will direct the district court to vacate the conviction.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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