FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 03-30355

v.  D.C. No.

JOSE LUIS ORTIZ-HERNANDEZ, CR-00-00071-JAR

Defendant-Appellee. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 03-30371

v.  D.C. No.

JOSE LUIS ORTIZ-HERNANDEZ, CR-00-00071-JAR

Defendant-Appellee. 

UNITED STATES OF AMERICA, 

No. 03-30356 Plaintiff-Appellant,

D.C. No.

v.  CR-02-00550-JAR

JOSE LUIS ORTIZ-HERNANDEZ,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

James A. Redden, District Judge, Presiding

Argued July 14, 2004

Submitted October 27, 2005

Portland, Oregon

Filed October 27, 2005

14799
Before: Thomas M. Reavley,* William A. Fletcher, and

Richard C. Tallman, Circuit Judges.

Per Curiam Opinion;

Dissent by Judge W. Fletcher

*Honorable Thomas M. Reavley, Senior United States Circuit Judge for

the Fifth Circuit, sitting by designation. 

14800 UNITED STATES v. ORTIZ-HERNANDEZ
COUNSEL

Kent S. Robinson, Office of the United States Attorney, Portland, Oregon, for the appellant. 

Paul Papak, Federal Public Defender’s Office, Portland, Oregon, for the appellee. 

OPINION

PER CURIAM: 

The government charged defendant-appellee Jose Luis

Ortiz-Hernandez with illegally reentering the United States in

violation of 8 U.S.C. § 1326(a) and (b)(2). The government

also charged Ortiz-Hernandez with violating the terms of his

supervised release from a prior federal drug conviction by this

illegal reentry. The two proceedings were consolidated in the

district court. The district court suppressed fingerprint eviUNITED STATES v. ORTIZ-HERNANDEZ 14803
dence in both the criminal case and the supervised release

proceeding. United States v. Ortiz-Hernandez, 276 F. Supp.

2d 1113 (D. Or. 2003). The district court then denied the government’s motion to compel new fingerprint exemplars in the

criminal case. United States v. Ortiz-Hernandez, 276 F. Supp.

2d 1119 (D. Or. 2003). 

The government appeals both the suppression orders and

the denial of its motion to compel fingerprint exemplars. In

Ortiz-Hernandez’s criminal case, we affirm the suppression

order but reverse the denial of the government’s request to

compel another set of fingerprint exemplars. In OrtizHernandez’s supervised release case, we dismiss the appeal

based on United States v. Vargas-Amaya, 389 F.3d 901 (9th

Cir. 2004). 

I. Background

We rely for our factual narrative on the district court’s view

of the evidence and on uncontroverted evidence in the record.

See United States v. Vesikuru, 314 F.3d 1116, 1119 (9th Cir.

2002) (findings of fact underlying the district court’s ruling

on a motion to suppress are reviewed for clear error). Most of

the narrative is based on the testimony of Portland Police

Bureau Detective Sergeant Dirk Anderson. The remainder is

based largely on the testimony of Sergeant John Eckhart and

Officer Jeffrey Becker. 

Defendant-appellee Jose Luis Ortiz-Hernandez was

arrested on November 12, 2002 in Portland, Oregon, by

Detective Anderson on suspicion of drug dealing. Detective

Anderson and his partner were eating lunch at a McDonald’s

restaurant in Portland when they saw the defendant and

another man, later identified as Selmo Valenzuela, walking

north on 82nd Avenue from Stark Street. Detective Anderson

testified that he “believed” Ortiz-Hernandez was wearing a

“purple shirt or sweatshirt of some type.” Several minutes

later, Detective Anderson thought he saw the same two men

14804 UNITED STATES v. ORTIZ-HERNANDEZ
drive past the McDonald’s in a red Toyota 4-Runner. He testified that he saw two Hispanic-appearing men in the Toyota,

and that he “believe[d] there was purple clothing in there as

well.” Detective Anderson saw the Toyota circling around the

area of 82nd Avenue and Washington Street in a manner that

led him to believe that the two men might be involved in drug

sales. 

After lunch, Detective Anderson and his partner were driving north on 82nd Avenue when they observed the Toyota

parked in a Safeway grocery store parking lot. Detective

Anderson saw Ortiz-Hernandez and Valenzuela walking

toward the Safeway, away from the parked Toyota. Detective

Anderson did not see them get out of the Toyota. Detective

Anderson saw Ortiz-Hernandez and Valenzuela speak to “another Hispanic male,” later identified as Wilfredo AlvarezQuintana. Alvarez-Quintana then got into the Toyota. The

driver and a Hispanic male passenger then drove the Toyota

out of the parking lot. 

Detective Anderson testified that despite a recent change

eliminating the ability to “call back” on the public payphones

at the Safeway, “there still are drug transactions that occur

there daily.” Detective Anderson testified that OrtizHernandez and Valenzuela used the payphones “intermittently” at the Safeway. When a gray Jeep Cherokee arrived,

Ortiz-Hernandez and Valenzuela spoke to the driver and passengers and got into the back seat. At that time, Detective

Anderson still believed that Ortiz-Hernandez and Valenzuela

had driven the Toyota to the Safeway and that AlvarezQuintana and his passenger had then driven away in the same

Toyota. This belief led Detective Anderson to conclude that

the men in the Toyota were dealing drugs. He requested that

an officer go to the Safeway to watch the Jeep Cherokee

while he followed the Toyota. 

When the Toyota stopped of its own accord at a nearby

parking area, Detective Anderson got out to talk to the driver,

UNITED STATES v. ORTIZ-HERNANDEZ 14805
who identified himself as Wilfredo Alvarez-Quintana.

Alvarez-Quintana said he was the only one who had driven

the Toyota. He also told Detective Anderson that he and his

nephew had driven to Portland from The Dalles, a city about

80 miles east of Portland on the Columbia River, and that he

was “kind of lost.” Alvarez-Quintana told Detective Anderson

that he had spoken briefly at the Safeway parking lot with

someone he mistakenly thought he knew. Detective Anderson

searched the Toyota with Alvarez-Quintana’s consent and

found nothing illegal. He then allowed Alvarez-Quintana and

his nephew to go on their way. 

Meanwhile, Sergeant Eckhart was watching the Jeep Cherokee at the Safeway. He broadcast on the police radio that he

was watching the Jeep from the “handicap spot,” and that the

Jeep was “on the northeast corner, Safeway.” Sergeant Eckhart saw the driver and passengers, including OrtizHernandez, talking with each other. He reported over the

police radio that they were “making some kind of deal in

there.” When the Jeep drove out of the Safeway parking lot,

the driver failed to use a turn signal. Sergeant Eckhart radioed

for a marked police car to stop the Jeep. Officer Becker

responded and pulled the Jeep over in front of a coffee shop.

Officer Becker asked the driver for her license, proof of insurance, and registration. The driver identified herself as Marie

Lewis. Her driver’s license had been suspended. 

Detective Anderson heard over the radio that the Jeep had

been stopped and returned to investigate. There were five people in the Jeep. Lewis and an adult man, Dennis Urban, were

in the front seats. Ortiz-Hernandez, Valenzuela, and Lewis’s

three or four-year-old nephew were in the back seat.1 When

Detective Anderson arrived, he had a brief conversation with

Lewis in which she referred to Ortiz-Hernandez as “Juan.”

1Detective Anderson testified to the presence of the boy in the back

seat. Officer Becker, who had made the initial stop of the Jeep, could not

remember seeing him. 

14806 UNITED STATES v. ORTIZ-HERNANDEZ
Detective Anderson testified, “After my brief conversation

with [Lewis], Sergeant Eckhart had also told me, prior to contacting the individuals, that it appeared that the defendant had

swallowed, which is real common for street-level deliverers.”

Detective Anderson explained that street-level dealers sometimes keep drugs in balloons in their mouths and swallow

them in order to avoid being caught with the drugs. He testified, “[T]hey remove them and sell them one at a time. And

if confronted, they’ll just swallow the balloons.” 

After his initial conversation with Lewis, Detective Anderson asked Ortiz-Hernandez and Valenzuela to get out of the

Jeep. Because it was raining, he had them move inside the

coffee shop. He asked for their names and birthdays. OrtizHernandez claimed his name was Ruiz Perez-Cota,2

 and said

that he was born on May 6, 1968. Detective Anderson asked

Ortiz-Hernandez his age, and Ortiz-Hernandez gave an age

that was “a year off” from the birth date he had given. At the

suppression hearing, Detective Anderson could not remember

the actual age Ortiz-Hernandez had given. He could remember only that it was “off.” 

Detective Anderson then returned to the Jeep. Lewis admitted she was on methadone but sometimes “chipping” with

heroin. According to Detective Anderson, this meant that she

was “cheating a little and still using a little heroin.” Detective

Anderson asked her if she had just purchased heroin from the

defendant. Lewis denied it but admitted to the officer that she

had done so in the past. She said that she had not seen him

for a while and that she thought he had been “down in Mexico.” Urban, the adult front seat passenger, had needlemarks

on his arms. He told Detective Anderson that he was a recovering heroin addict. 

2The transcript reads “Ruiz [phonetic] Perez Coda.” The district court

spelled the name “Ruiz Perez-Cota.” Ortiz-Hernandez, 276 F. Supp. 2d at

1116. We follow the spelling used by the district court. 

UNITED STATES v. ORTIZ-HERNANDEZ 14807
Detective Anderson went back into the coffee shop. He

asked Ortiz-Hernandez if he had ever sold drugs. OrtizHernandez said no. Detective Anderson then conducted a strip

search of Ortiz-Hernandez in the coffee shop restroom and

found no drugs or anything else that would have indicated that

he was selling drugs. Detective Anderson examined the contents of Ortiz-Hernandez’s wallet and found a Safeway card

bearing the name of Miguel Valdez. Detective Anderson then

formally placed Ortiz-Hernandez and Valenzuela under arrest

for attempted delivery of a controlled substance. 

After arresting Ortiz-Hernandez and Valenzuela, Detective

Anderson returned to Lewis and told her that he could

impound the Jeep and search it at the station because her

license was suspended. She consented to a search at the scene

instead. The officers found a syringe with unspecified drug

“residue” under the front seat near her purse. The officers

allowed Lewis, Urban, and the boy to leave in the Jeep. They

gave Lewis a warning for failing to signal while turning.

Detective Anderson explained to the district court that he had

allowed Lewis to go free because “[p]rimarily we were interested in the dealers, and we thought we had the dealers.” 

Ortiz-Hernandez and Valenzuela were then taken to the

police station. The officers ran the names “Ruiz Perez-Cota”

and “Miguel Valdez,” as well as various dates of birth,

through the “local system” and the National Crime Information Center system without result. Detective Anderson then

arranged for Ortiz-Hernandez to have a telephone interview

with an Immigration and Naturalization Service (INS) agent.

He testified that he set up the interview because he assumed

that Ortiz-Hernandez “was most likely wanted.” The interview produced no incriminating information. Detective

Anderson then arranged for Ortiz-Hernandez to be fingerprinted at the Multnomah County Justice Center. When his

fingerprints were run through the Automated Fingerprint

Identification System, he was identified as Jose Luis OrtizHernandez. 

14808 UNITED STATES v. ORTIZ-HERNANDEZ
Once he knew Ortiz-Hernandez’s true name, Detective

Anderson was able to discover that Ortiz-Hernandez had a

criminal record. Ortiz-Hernandez had a previous conviction

for eluding examination and inspection by immigration officials, as well as convictions for drug possession and delivery.

After serving a term of 30 months in prison, he had been

placed on a one-year term of supervised release and had been

deported to Mexico on May 3, 2002. 

The state drug charges for which Detective Anderson had

arrested Ortiz-Hernandez were later dropped. On December 5,

2002, a federal warrant and Order to Show Cause were issued

alleging that Ortiz-Hernandez violated his supervised release

by illegally reentering the United States. On December 17,

2002, Ortiz-Hernandez was indicted by a federal grand jury

for illegal reentry in violation of 8 U.S.C. § 1326(a) and

(b)(2). 

The criminal case and supervised release proceeding were

consolidated in the district court. The district court published

two opinions. First, in both the criminal case and the supervised release proceeding, it suppressed the evidence of the

fingerprints obtained at the Multnomah County Justice Center. Ortiz-Hernandez, 276 F. Supp. 2d 1113. Second, it denied

the government’s motion for a fingerprint exemplar in the

federal criminal case. Ortiz-Hernandez, 276 F. Supp. 2d 1119.

The government has timely appealed both rulings. 

II. The Criminal Case

The district court decided two questions in the criminal

case brought under 8 U.S.C. § 1326(a) and (b)(2). First,

should the fingerprint evidence taken by state officers at the

Multnomah County Justice Center be suppressed? Second,

should Ortiz-Hernandez be compelled to provide a second set

of fingerprint exemplars to prove his identity at his federal

trial? We address these questions in turn. 

UNITED STATES v. ORTIZ-HERNANDEZ 14809
A. Suppression of the Fingerprint Evidence

1. Probable Cause

The district court held that Ortiz-Hernandez was arrested

and taken into custody without probable cause. Because we

cannot say that the district court’s factual conclusions are

clearly erroneous, we must agree with the district court’s legal

ruling. 

[1] The existence of probable cause is a mixed question of

law and fact. We review the legal conclusions de novo

because “independent review is . . . necessary if appellate

courts are to maintain control of, and to clarify, the legal principles” involved. Ornelas v. United States, 517 U.S. 690, 697

(1996) (citation omitted). Findings of fact underlying the district court’s legal determinations are reviewed for clear error.

See United States v. Sandoval-Venegas, 292 F.3d 1101, 1104

(9th Cir. 2002). We “give due weight to inferences drawn

from those facts by resident judges and local law enforcement

officers.” Ornelas, 517 U.S. at 699. “Probable cause exists

when, under the totality of the circumstances known to the

arresting officers, a prudent person would have concluded that

there was a fair probability that [the suspect] had committed

a crime.” United States v. Buckner, 179 F.3d 834, 837 (9th

Cir. 1999) (internal quotation marks and citations omitted).

Absent probable cause, a warrantless arrest is illegal. Id. 

Police officers may rely on the totality of facts available to

them when determining whether probable cause exists to

make an arrest. For example, “[t]he experience and expertise

of the officers involved in the investigation and arrest may be

considered.” United States v. Hoyos, 892 F.2d 1387, 1392

(9th Cir. 1989), overruled on other grounds by U.S. v. Ruiz,

257 F.3d 1030 (9th Cir. 2001). Officers may also consider the

nature of the area as part of the calculus of suspicion,

although it is not enough on its own to justify a stop or search.

See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Further,

14810 UNITED STATES v. ORTIZ-HERNANDEZ
providing conflicting information in response to police questions can be grounds for suspicion. See United States v. Koshnevis, 979 F.2d 691, 695 (9th Cir. 1992) (suspect’s

contradicting himself and nervousness were a part of the

probable cause determination). If probable cause is established at any early stage of the investigation, it may be dissipated if the investigating officer later learns additional

information that decreases the likelihood that the defendant

has engaged, or is engaging, in criminal activity. A person

may not be arrested, or must be released from arrest, if previously established probable cause has dissipated. “As a corollary . . . of the rule that the police may rely on the totality of

facts available to them in establishing probable cause, they

also may not disregard facts tending to dissipate probable

cause.” Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir.

1988); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986)

(citation omitted) (“The continuation of even a lawful arrest

violates the Fourth Amendment when the police discover

additional facts dissipating their earlier probable cause.”). 

[2] We need not decide whether probable cause existed to

detain and search Ortiz-Hernandez at the coffee shop. We

assume there was reasonable suspicion to justify at least an

initial inquiry into whether there was street-level drug dealing

in progress. See Terry v. Ohio, 392 U.S. 1 (1968). The determinative question before us is whether there was probable

cause when Ortiz-Hernandez was arrested and taken into custody by the Portland officers. When Detective Anderson formally arrested Ortiz-Hernandez, he knew that the men in the

red Toyota 4-Runner were not Ortiz-Hernandez and Valenzuela, whom he had seen walking north on 82nd Avenue. He

also could not show that the men in the Toyota were involved

in drugs. He had observed Ortiz-Hernandez and Valenzuela

talking on the payphones at Safeway. Despite a recent change

resulting in an inability to call back on those payphones, this

was still an area known for drug sales. Detective Anderson

knew that Lewis, Urban, and Lewis’s nephew had picked up

UNITED STATES v. ORTIZ-HERNANDEZ 14811
Ortiz-Hernandez in a Jeep Cherokee at the Safeway parking

lot after they had talked on a payphone. 

After interviewing Lewis, Urban, and Ortiz-Hernandez at

the coffee shop, Detective Anderson had heard Lewis’s statement that she had known Ortiz-Hernandez for some time, that

she had not seen him for some time, and that she had purchased heroin from Ortiz-Hernandez in the past. He knew that

Ortiz-Hernandez had denied selling drugs. He believed,

because Ortiz-Hernandez stated an age that was a year “off”

from the birthdate he provided, and because of the different

name on the Safeway card in his wallet, that Ortiz-Hernandez

had given him a false name. After his strip search of OrtizHernandez in the coffee shop restroom revealed nothing

incriminating, he knew that Ortiz Hernandez had no drugs, no

drug paraphernalia, and no other evidence of drug sales on his

person. 

[3] In its appeal to us, the government emphasizes that

Detective Anderson testified in the district court that Sergeant

Eckhart had told him that he had seen Ortiz-Hernandez “swallow.” He testified, “After my brief conversation with [Lewis],

Sergeant Eckhart had also told me, prior to contacting the

individuals, that it appeared that the defendant had swallowed,

which is real common for street-level deliverers.” The district

court was skeptical of the truth of this statement and discounted it in assessing the evidence. The district court wrote:

Anderson testified at the hearing that Eckhart told

him “the defendant had swallowed,” and that “[Eckhart] already believed that the defendant had swallowed the narcotics” while inside the Jeep. The

prosecutor did not ask Eckhart if he had seen such a

“swallowing motion.” No effort was made by

authorities to determine whether the defendant had,

somehow, swallowed narcotics. 

276 F. Supp. 2d at 1117. Detective Anderson’s testimony in

the district court was, of course, hearsay. Though admissible

14812 UNITED STATES v. ORTIZ-HERNANDEZ
in a suppression hearing, the district court did not have to

believe the testimony. As the district court pointed out, the

government could easily have asked Sergeant Eckhart, a testifying government witness, whether he had seen OrtizHernandez swallow. 

[4] Moreover, Detective Anderson’s statement regarding

Sergeant Eckhart’s observations may not have resonated with

the district court. Sergeant Eckhart reported to Detective

Anderson that it “appeared” that Ortiz-Hernandez had swallowed some drugs while the Jeep was still in the Safeway

parking lot. At that time, Ortiz-Hernandez was in the back

seat of the Jeep. Unbeknownst to Ortiz-Hernandez, Sergeant

Eckhart was observing from the “handicap spot” and the Jeep

was at the northeast corner of the parking lot. The distance

between the two vehicles is unspecified; Sergeant Eckhart

may well have been limited in his ability to observe OrtizHernandez. Importantly, Ortiz-Hernandez also had no reason

to “swallow” at that time because he did not know that he was

under observation. The district court was entitled to conclude

that Sergeant Eckhart’s purported statement was implausible.

[5] Finally, as the district court pointed out, there is no evidence in the record that the police took post-arrest measures,

such as obtaining a body cavity search order, to confirm that

Ortiz-Hernandez had swallowed balloons containing heroin.

Nor is there evidence that the jailers inspected OrtizHernandez’s in-custody defecations for such balloons. Under

these circumstances, we defer to the district court’s skeptical

view of Detective Anderson’s testimony that Sergeant Eckhart saw Ortiz-Hernandez “swallow.” 

[6] Although the facts make this call a close one, we cannot

say that the district court clearly erred when it ruled that considering the totality of evidence upon which Detective Anderson relied when he placed Ortiz-Hernandez under formal

arrest, the evidence was insufficient to establish probable

cause. After Ortiz-Hernandez was arrested, the officers

UNITED STATES v. ORTIZ-HERNANDEZ 14813
searched Lewis’s Jeep and found the syringe containing some

kind of drug “residue” under the front seat next to Lewis’s

purse. They reasonably believed that the syringe belonged to

Lewis, and they found nothing else related to drugs or the

drug trade in the Jeep. Thus, there was nothing that the police

learned after Ortiz-Hernandez’s arrest that supplied the proof

that was lacking to establish probable cause when OrtizHernandez had been arrested a few minutes before. 

2. Use of the Initial Fingerprint Exemplars

The next issue is whether the initial fingerprint evidence

obtained from Ortiz-Hernandez at the Multnomah County

Justice Center after his illegal arrest must be suppressed. “We

review de novo the mixed question of fact and law whether

evidence deriving from an illegal search is sufficiently tainted

to require suppression, because legal concepts must be

applied and judgment exercised about the values that animate

the Fourth Amendment.” United States v. Johns, 891 F.2d

243, 244 (9th Cir. 1989); see also United States v. Del Toro

Gudino, 376 F.3d 997, 998 (9th Cir. 2004) (reviewing de

novo the question of whether fingerprint exemplars may be

suppressed). 

The district court concluded that Ortiz-Hernandez’s fingerprints were taken for investigatory purposes, and therefore

should be suppressed under Hayes v. Florida, 470 U.S. 811

(1985), and Davis v. Mississippi, 394 U.S. 721 (1969). The

government contends, however, that Ortiz-Hernandez’s fingerprints were taken only as a means of establishing his identity. As a result, it argues under INS v. Lopez-Mendoza, 468

U.S. 1032 (1984), that the fingerprints should not be suppressed. We agree with the district court. 

[7] It is established law under Hayes and Davis that if fingerprints are taken for investigatory purposes, they must be

suppressed in a criminal trial. We have followed Hayes and

Davis in United States v. Garcia-Beltran, 389 F.3d 864 (9th

14814 UNITED STATES v. ORTIZ-HERNANDEZ
Cir. 2004), in which Garcia-Beltran was arrested in Portland,

Oregon, without probable cause. Garcia-Beltran’s fingerprints

were taken after his arrest and enabled Portland police to

determine Garcia-Beltran’s identity. Once they knew his identity, the police were able to determine that he was an illegal

immigrant. The government then charged Garcia-Beltran with

illegal reentry into the United States in violation of 8 U.S.C.

§ 1326(a) and (b)(2). Garcia-Beltran moved in his criminal

case to suppress the “fingerprint exemplars.” Id. at 865. The

precise circumstances under which Garcia-Beltran’s fingerprints were taken are not clear from the record, so we

remanded to the district court for factfinding. Because, on

remand, the district court found that his fingerprints were

taken in part for an investigatory purpose, they could not be

used as evidence against him. See id.; accord United States v.

Guevara-Martinez, 262 F.3d 751, 755 (8th Cir. 2001) (suppressing fingerprints taken for investigatory purposes after an

illegal arrest). 

[8] We affirm the district court’s ruling suppressing the initial set of fingerprints based on an arrest without probable

cause in violation of the Fourth Amendment in OrtizHernandez’s criminal case (No. 03-30355). The question then

is whether the government is permitted to prove the identity

of Ortiz-Hernandez in a subsequent charge of illegal reentry

after deportation under 8 U.S.C. § 1326 by obtaining another

set of fingerprints. 

B. Motion to Compel Another Set of Fingerprint Exemplars

The government moved in the district court to compel

Ortiz-Hernandez to provide another set of fingerprint exemplars. The district court denied the motion on the ground that

Ortiz-Hernandez’s arrest was an “egregious” race-based violation of the Fourth Amendment and suppressed all identification evidence taken following the arrest. Ortiz-Hernandez,

276 F. Supp. 2d at 1122. This is an appealable order “excluding evidence” under 18 U.S.C. § 3731 and we reverse the disUNITED STATES v. ORTIZ-HERNANDEZ 14815
trict court’s ruling. Regardless of whether there was a racebased constitutional violation, Ortiz-Hernandez’s identity may

not be suppressed.3

[9] Over twenty years ago, the Supreme Court established

the general rule that a criminal defendant cannot suppress his

identity, even when there has been some prior illegality on the

part of the government. Lopez-Mendoza, 468 U.S. at 1039. As

the Supreme Court has declared: “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.” Id. (emphasis added). We have reaffirmed that

“[i]dentity evidence is inherently different from other kinds of

evidence,” and refused to suppress the defendant’s identity in

a 8 U.S.C. § 1326 prosecution even if it was “obtained as a

result of an egregious constitutional violation.” Del Toro

Gudino, 376 F.3d at 1001 (“[W]hen [the Supreme Court] said

the body or identity of a defendant is ‘never’ suppressible, it

meant ‘never.’ ”). 

[10] While the original set of Ortiz-Hernandez’s fingerprints should be suppressed as wrongfully obtained, the government is now aware of Ortiz-Hernandez’s identity; it may

rely on his identity, as well as his criminal and immigration

record, in bringing § 1326 criminal charges against him. See

United States v. Guzman-Bruno, 27 F.3d 420, 422 (9th Cir.

1994) (affirming the district court’s conclusion that neither

the defendant’s “identity nor the records of his previous convictions and deportations could be suppressed as a result of

the illegal arrest”); accord United States v. Roque-Villanueva,

3The record does not support the district court’s conclusion that the

arrest was an “egregious” race-based Fourth Amendment violation. Nonetheless, we need not address that issue because “[w]e continue to hold

today that the simple fact of who a defendant is cannot be excluded,

regardless of the nature of the violation leading to his identity.” GarciaBeltran, 389 F.3d at 868 (quoting Del Toro Gudino, 376 F.3d at 1001). 

14816 UNITED STATES v. ORTIZ-HERNANDEZ
175 F.3d 345, 346 (5th Cir. 1999) (affirming the district court

and refusing to suppress evidence of identity obtained in an

illegal traffic stop, concluding that “[e]ven if the [d]efendant

was illegally stopped, neither his identity nor his INS file are

suppressible”). As we have previously articulated, “there is no

sanction to be applied when an illegal arrest only leads to discovery of the man’s identity and that merely leads to the official file or other independent evidence” being brought before

the court. Guzman-Bruno, 27 F.3d at 422 (internal quotation

and citation omitted). 

[11] The government now may bring Ortiz-Hernandez to

trial on the illegal reentry indictment and compel him to submit to another fingerprinting based on that arrest and arraignment and use the evidence for purposes of identification at

trial. This result is consistent with and compelled by United

States v. Parga-Rosas, 238 F.3d 1209 (9th Cir. 2001). The

Parga-Rosas court concluded that, where initial fingerprint

exemplars obtained as the fruit of an unconstitutional arrest

were suppressed by the district court, a second set of fingerprints taken later after the defendant was indicted under 8

U.S.C. § 1326 was admissible because it was not taken for an

investigative purpose. 238 F.3d at 1215 (citing GuzmanBruno, 27 F.3d at 421). We know of no rule that prohibits

rebooking on the new federal charge and processing the

defendant under it, including fingerprinting and photographing during the subsequent booking. As was the case in PargaRosas, the government already knows Ortiz-Hernandez’s

identity. The new set of fingerprints the government now

requests, after the federal grand jury indictment for a different

offense has been returned, are not sought out of “an investigative purpose” but “serve only to further establish his identity.”

See Garcia-Beltran, 389 F.3d at 867 (considering PargaRosas, 238 F.3d at 1215).4

4The dissent would instead conclude that the fact that the initial set of

fingerprints was suppressed because it was taken for investigatory purUNITED STATES v. ORTIZ-HERNANDEZ 14817
Admittedly, our holding here limits the theoretical effect of

suppressing the initial set of wrongfully obtained fingerprint

exemplars, but this result is compelled by the nature of the

evidence Ortiz-Hernandez is seeking to suppress—who he is.

The Supreme Court has rejected applying the exclusionary

rule to an individual’s identity.5 With or without the second

poses renders the government forever powerless to compel a new set of

fingerprints for use in identifying Ortiz-Hernandez in the federal criminal

prosecution for his new charge of being in violation of 8 U.S.C. § 1326.

This ignores the clear import of our holding in Del Toro Gudino, where

we unequivocally held that “a defendant’s identity obtained as a result of

an egregious constitutional violation” may not be suppressed. 376 F.3d at

1001. 

Similarly, reliance on Garcia-Beltran is inapposite here. The GarciaBeltran court considered only whether an initial set of fingerprints must

be suppressed if obtained with an investigatory purpose. 389 F.3d at 867-

68. There is no discussion of whether a second set of fingerprints could

later be compelled to identify a defendant once he was under indictment.

Only the Parga-Rosas court has addressed that issue, and we follow that

approach here. 

Finally, the government has no obligation in this appeal to show that it

would have been able to identify Ortiz-Hernandez without the first set of

fingerprints in order to bring him to trial—the government now knows his

identity and that identity may never be suppressed. See Lopez-Martinez,

468 U.S. at 1039; Guzman-Bruno, 27 F.3d at 421-22. 

5The dissent’s disagreement with this proposition is curious, given the

Supreme Court’s clear language in Lopez-Medina. The dissent suggests

that in a criminal proceeding the exclusionary rule requires the suppression of identity evidence obtained as a result of a Fourth Amendment violation. Dissent op. at 14826. While the dissent is correct to note that the

general rule under the Fourth Amendment is to suppress unlawfully

obtained evidence, the Court created a specific exclusion from that general

rule for evidence of identity. See Lopez-Medina, 468 U.S. at 1039. The

court held that “[t]he ‘body’ or identity of a defendant or respondent in a

criminal or civil proceeding is never itself suppressible as the fruit of an

unlawful arrest . . . .” Id. (emphasis added). Surprisingly, the dissent

ignores this unambiguous language in arguing that all unlawfully obtained

evidence must be excluded in a criminal proceeding. The Supreme Court

has clearly articulated the rule: When it comes to identity evidence, no distinction between criminal and civil proceedings shall be made. 

14818 UNITED STATES v. ORTIZ-HERNANDEZ
set of fingerprint exemplars, it is Ortiz-Hernandez’s insuppressible identity, along with his continued illegal presence in

this country, that connects him to the charged crime. It is true

that the government would not have known OrtizHernandez’s identity without having unlawfully taken the first

set of fingerprints, but that harm has no remedy under our

case law beyond suppressing the initial fingerprints. See Del

Toro Gudino, 376 F.3d at 1001; Guzman-Bruno, 27 F.3d at

422. 

[12] We must also consider the nature of the crime OrtizHernandez is facing—the continuing violation of federal law

by his ongoing illegal presence in the United States. As we

concluded in Del Toro Gudino, a constable’s “blunder may

allow the criminal to go free, but we have never suggested

that it allows the criminal to continue in the commission of an

ongoing crime.” 376 F.3d at 1002 (quoting Lopez-Mendoza,

468 U.S. at 1047). Were Ortiz-Hernandez to be released, law

enforcement officials immediately would have probable cause

to re-arrest him based on their knowledge of his identity and

his criminal and immigration records. See Lopez-Mendoza,

468 U.S. at 1047 (noting in a civil deportation context that if,

after excluding evidence obtained in an unlawful arrest, the

government were to release an unregistered alien, “[h]is

release within our borders would immediately subject him to

criminal penalties”). 

[13] To conclude otherwise would lead to an absurd result.

Under our Circuit’s law, “[t]he offense of being found in the

United States ends when an alien is discovered and identified

by the immigration authorities.” United States v. Hernandez,

189 F.3d 785, 791 (9th Cir. 1999) (discussing being “found”

in the United States for purposes of venue); see id. at 789 (citing cases from other circuits for a similar premise). In reaching that conclusion, we rejected the possibility that “a

defendant may be found, over and over again, until the

[authorities] physically arrest[ ] or deport[ ] the defendant[,]”

and determined instead that the crime is limited to “a deported

UNITED STATES v. ORTIZ-HERNANDEZ 14819
alien [remaining] in the United States until he is ‘found’ by

the authorities.” Id. at 790-91 (noting that Congress did not

generally criminalize “remaining in the United States”). But

see Guzman-Bruno, 27 F.3d at 422-23 (declaring that a violation of 8 U.S.C. § 1326 “continues so long as the alien

remains in the country”). 

[14] Ortiz-Hernandez has now been “found” by the authorities; his crime could be considered complete. Were we to conclude that, having discovered and identified Ortiz-Hernandez,

the authorities are prevented from bringing him to trial, he

could effectively be granted a form of judicial immunity

because his continued presence after being “found” would no

longer constitute a crime under 8 U.S.C. § 1326. Moreover,

the statute of limitation begins to run from the date an alien

is “found.” Hernandez, 189 F.3d at 791. Under the dissent’s

approach, the government would have to release OrtizHernandez (presumably granting him “safe conduct” en route

to deportation) and then hope that it might arrest him again

before the statutory time limit ran or he was deported beyond

our jurisdictional reach. We reject this unreasonable result. 

[15] If the government were forced to release OrtizHernandez because the first set of fingerprint exemplars is

suppressed, it would immediately have the authority to rearrest and fingerprint him again in order to obtain the second

set of fingerprint exemplars sought here for use in the new

charge against Ortiz-Hernandez. No interest would be served,

or fundamental right protected, by requiring the government

to do this. Therefore, we conclude that the district court erred

in denying the government’s motion to compel OrtizHernandez to provide a new set of fingerprint exemplars during pre-trial proceedings on the new federal charge. 

III. The Supervised Release Proceeding

Ortiz-Hernandez was originally sentenced to a one-year

term of supervised release, which began on May 3, 2002. On

14820 UNITED STATES v. ORTIZ-HERNANDEZ
December 5, 2002, a warrant and Order to Show Cause was

issued based upon the probation officer’s statements that

Ortiz-Hernandez had violated the conditions of his release.

On May 3, 2003, Ortiz-Hernandez’s supervised release term

was set to expire, but the district court retained jurisdiction

beyond that date pursuant to 18 U.S.C. § 3583(i). 

While this case was on appeal, we held in Vargas-Amaya,

389 F.3d at 907, that a “district court’s jurisdiction to revoke

supervised release can be extended beyond the terms of supervision under 18 U.S.C. § 3583(i), based upon a warrant issued

during the term of supervision, only if the warrant was issued

‘upon probable cause, supported by Oath or affirmation,’ as

required by the Fourth Amendment.” (quoting U.S. CONST.

amend. IV). In this case, the warrant supporting the extension

of Ortiz-Hernandez’s period of supervised release was not

based on an oath or affirmation. As a result, the district

court’s jurisdiction over the revocation of the supervised

release ended on May 3, 2003. Accordingly, we dismiss the

government’s appeal related to the supervised release proceedings, and remand to the district court for appropriate disposition. 

We AFFIRM the district court’s suppression of OrtizHernandez’s fingerprints in his criminal case (No. 03-30355).

We REVERSE the district court’s denial of the government’s

motion to compel fingerprint exemplars in his criminal case

(Nos. 03-30356, 03-30371). We DISMISS the appeal of

Ortiz-Hernandez’s supervised release proceeding in No. 03-

30371. We REMAND for further proceedings consistent with

this opinion. 

W. FLETCHER, Circuit Judge, dissenting: 

I respectfully dissent from Part II.B of the panel’s opinion.

UNITED STATES v. ORTIZ-HERNANDEZ 14821
Detective Anderson of the Portland Police Department

arrested and detained defendant Ortiz-Hernandez on a drug

charge without probable cause. After taking Ortiz-Hernandez

to the Multnomah County Justice Center in Portland, Detective Anderson did not pursue the drug charge. Rather, he systematically tried to find out whether Ortiz-Hernandez had

violated the immigration laws. First, Detective Anderson ran

the false names provided by Ortiz-Hernandez through various

data bases without success. Second, Detective Anderson

arranged for Ortiz-Hernandez to speak on the telephone with

an INS agent. This interview produced no results. Finally,

Detective Anderson took exemplars of Ortiz-Hernandez’s fingerprints. Armed with the fingerprints, he finally hit pay dirt.

He discovered Ortiz-Hernandez’s true name and that he had

violated the immigration laws. 

We unanimously conclude that Detective Anderson took

exemplars of Ortiz-Hernandez’s fingerprints for “investigatory purposes,” in violation of the Fourth Amendment. We

therefore hold that the fingerprint exemplars cannot be introduced at trial. So far so good. 

But after suppressing the fingerprint exemplars, the panel

majority takes an inexplicable turn. The panel majority compels the production of a second set of exemplars. These compelled exemplars (unlike the suppressed exemplars) may be

introduced at trial. In other words, the majority allows the

government to accomplish with the second fingerprint exemplars precisely the same thing it holds the government cannot

accomplish with the first. 

In so holding, the majority brushes aside our recent decision in United States v. Garcia-Beltran, 389 F.3d 864 (9th

Cir. 2004). Majority op. at 14817-18 n. 4. Garcia-Beltran, like

Ortiz-Hernandez, was illegally arrested by an officer of the

Portland Police Department. His fingerprints, like OrtizHernandez’s, were taken after arrest. Like Ortiz-Hernandez,

he was subsequently charged with illegal entry. At Garcia14822 UNITED STATES v. ORTIZ-HERNANDEZ
Beltran’s criminal trial, the district court admitted his “fingerprint exemplars as evidence of his identity.” Id. at 866. We

reversed and remanded, holding that the fingerprint exemplars

must be suppressed if they were taken for purely investigatory

purposes. Our decision in Garcia-Beltran is good law, binding on this panel. The majority decision is flatly inconsistent

with it. The majority may not like Garcia-Beltran, but the

solution is to go en banc rather than to brush it aside. 

I. Established Law

It is established law under Hayes v. Florida, 470 U.S. 811

(1985), and Davis v. Mississippi, 394 U.S. 721 (1969), that

fingerprints taken for purely investigatory purposes must be

suppressed. It is also established law under Wong Sun v.

United States, 371 U.S. 471 (1963), that not only evidence

obtained in violation of the Fourth Amendment, but also evidence “come at by exploitation of the illegality,” must be suppressed. Id. at 488. Under Hayes, Davis, and Wong Sun, this

is a very simple case. 

We all agree that Detective Anderson took OrtizHernandez’s fingerprint exemplars for an illegal investigatory

purpose. We also agree that, because of the Fourth Amendment violation, the fingerprint exemplars must be suppressed.

Further, it is undisputed that the exemplars taken by Detective

Anderson led directly to the discovery that Ortiz-Hernandez

could be charged with illegal reentry into the United States.

Without the Fourth Amendment violation, Ortiz-Hernandez

would not be standing trial for illegal reentry and the government would neither need nor want additional fingerprint

exemplars. 

II. INS v. Lopez-Mendoza

The majority evades the established law of Hayes, Davis,

and Wong Sun by its categorical assertion that “identity evidence” can “never” be suppressed. Majority op. at 14816. For

UNITED STATES v. ORTIZ-HERNANDEZ 14823
that assertion, it relies on a single sentence by the Supreme

Court in INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-40

(1984):

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. 103,

119 (1975); Frisbie v. Collins, 342 U.S. 519, 522

(1952); United States ex rel. Bilokumsky v. Tod, [263

U.S. 149,] 158 [(1923)]. 

The majority misreads this sentence and misunderstands

Lopez-Mendoza. Far from supporting the majority’s conclusion, Lopez-Mendoza directly conflicts with it. 

There were two respondents in Lopez-Mendoza. The quoted

sentence is relevant only to the first of them, Lopez-Mendoza.

After an illegal arrest, Lopez-Mendoza was placed in deportation proceedings. The immigration judge, relying on a familiar and established rule, held that the illegality of LopezMendoza’s arrest could not be used as a defense in his deportation proceeding. Id. at 1035. The Supreme Court made

quick work of Lopez-Mendoza’s argument to the contrary in

the single sentence just quoted, invoking the same rule upon

which the immigration judge had relied. 

The three cases cited by the Court in support of its sentence

all refer to and rely on this same established rule. In Gerstein,

at the page cited in Lopez-Mendoza, the Court wrote, “Nor do

we retreat from the established rule that an illegal arrest or

detention does not void a subsequent conviction. Frisbie v.

Collins, 342 U.S. 519 (1952)[.]” 420 U.S. at 119. In Frisbie,

at the cited page, the Court wrote, “This Court has never

departed from the rule . . . that the power of a court to try a

person for a crime is not impaired by the fact that he had been

brought within the court’s jurisdiction by reason of a ‘forcible

14824 UNITED STATES v. ORTIZ-HERNANDEZ
abduction.’ ” 342 U.S. at 522. Finally, in Bilokumsky, at the

cited page, the Court wrote, “Irregularities on the part of the

Government official prior to, or in connection with, the arrest

would not necessarily invalidate later proceedings in all

respects conformable to law.” 263 U.S. at 158. 

There is no hint in Lopez-Mendoza that the quoted sentence

was intended to go beyond the familiar and established rule.

There is certainly no hint that the sentence was intended to

articulate a categorical new rule, that evidence of the identity

of a criminal defendant could always be introduced in court

regardless of its source. This was not the issue in LopezMendoza. Nor was it the issue in Gerstein, Frisbie, and

Bilokumsky. The question in those cases was whether a defendant could assert as a defense in a deportation or a criminal

case that he had been illegally arrested. The answer, under

long-established law, was “no.” 

The second respondent in Lopez-Mendoza was SandovalSanchez. His case is directly comparable to the case now

before us. Sandoval-Sanchez was arrested in an immigration

sweep conducted by the Immigration and Naturalization Service (INS). After his arrest, Sandoval-Sanchez stated his name

to INS investigators and admitted that he had re-entered the

country illegally. At his civil deportation hearing, he contended that his arrest had been illegal. He therefore challenged

the admission of the Form I-213 on which his name, as well

as his illegal re-entry, were recorded. Petition for Writ of Certiorari at 111a, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)

(No. 83-491). That is, Sandoval-Sanchez did not merely challenge the legality of his arrest. Rather, he challenged the

admission of evidence — including evidence of his identity

(his name) — obtained as a result of the illegal arrest. The

Supreme Court explicitly recognized the difference between

his challenge and Lopez-Mendoza’s. It wrote, “Respondent

Sandoval-Sanchez has a more substantial claim. He objected

not to his compelled presence at a deportation, but to evidence

offered at that proceeding.” 468 U.S. at 1040. 

UNITED STATES v. ORTIZ-HERNANDEZ 14825
The Court held that the challenged evidence, including evidence of Sandoval-Sanchez’s identity, was admissible. But

the Court held that it was admissible only because SandovalSanchez was appearing in a civil deportation hearing. In a

lengthy discussion, the Court described the ways in which a

civil deportation proceeding is different from a criminal trial.

Based on these differences, it concluded that the Fourth

Amendment exclusionary rule does not apply in a deportation

proceeding: “In these circumstances, we are persuaded that

the . . . balance between costs and benefits comes out against

applying the exclusionary rule in civil deportation proceedings held by the INS.” Id. at 1050. 

However, the Court was explicit in saying that the evidence

contained in Sandoval-Sanchez’s Form I-213 would have

been properly suppressed if it had been a criminal proceeding.

Citing Wong Sun, the Court wrote, “The general rule in a

criminal proceeding is that statements and other evidence

obtained as a result of an unlawful, warrantless arrest are suppressible if the link between the evidence and the unlawful

conduct is not too attenuated.” Id. at 1040-41. If the proceeding is criminal, the exclusionary rule requires the suppression

of identity evidence obtained as a result of the Fourth Amendment violation. But if the proceeding is a civil deportation

hearing, the evidence is admissible. As the Court wrote,

“When the crime in question involves unlawful presence in

this country, the criminal may go free, but he should not go

free within our borders.” Id. at 1047 (emphasis added). 

The conclusion reached by the majority in this case is thus

not supported by Lopez-Mendoza. Quite the opposite. The

sentence upon which the majority relies was applied to

Lopez-Mendoza’s case, where the only issue was whether a

defendant could defend against deportation based on his illegal arrest. The Court gave the established answer: When a

defendant’s only defense is the illegality of his arrest, he cannot suppress his “ ‘body’ or identity.” Id. at 1039. By contrast,

in Sandoval-Sanchez’s case, where the issue was whether a

14826 UNITED STATES v. ORTIZ-HERNANDEZ
criminal defendant could object to the introduction of illegally

obtained evidence (including identity evidence) in a criminal

proceeding, the answer was quite different: Any illegally

obtained evidence (including identity evidence) must be suppressed. As the Court wrote, in differentiating SandovalSanchez’s case from Lopez-Mendoza’s, “[Sandoval-Sanchez]

objected not to his compelled presence at a deportation proceeding, but to evidence offered at that proceeding.” Id. at

1040. 

In United States v. Guevara-Martinez, 262 F.3d 751, 753,

754 (8th Cir. 2001), the Eighth Circuit carefully analyzed

Lopez-Mendoza and came to the same conclusion:

In the jurisdictional case (Lopez-Mendoza), the

Court said that the “body or identity of a defendant

or respondent in a criminal or civil proceeding is

never itself suppressible as the fruit of an unlawful

arrest.” [468 U.S. at 1039] But the Court addressed

the evidentiary case (Sandoval-Sanchez) from a different tack. There the Supreme Court acknowledged

the “general rule in a criminal proceeding [ ] that

statements and other evidence obtained as a result of

an unlawful, warrantless arrest are suppressible if

the link between the evidence and the unlawful conduct is not too attenuated.” Id. at 1040-41 . . .

(emphasis added). Thus, the Court’s reference to the

suppression of identity appears to be tied only to a

jurisdiction issue, not to an evidentiary issue. 

* * *

We conclude that Lopez-Mendoza’s statement

about the suppression of identity only refers to jurisdictional challenges, not to fingerprint evidence

challenged in a criminal proceeding. 

To the same effect are United States v. Olivares-Rangel, 324

F. Supp. 2d 1218, 1224 (D.N.M. 2004) (explicitly following

UNITED STATES v. ORTIZ-HERNANDEZ 14827
the Eighth Circuit’s decision in Guevara-Martinez); United

States v. Mendoza-Carrillo, 107 F. Supp. 2d 1098, 1106, 1007

(D.S.D. 2000) (“The language in Lopez-Mendoza should only

be interpreted to mean that a defendant may be brought before

a court on a civil or criminal matter even if the arrest was

unlawful.” “This Court will not read the language of LopezMendoza to preclude the suppression of fingerprints[.]”). 

III. Ninth Circuit Cases

The majority relies on three decisions of this court and

brushes aside a fourth, more recent decision. The three decisions upon which the majority relies misunderstand the

“ ‘body’ or identity” sentence from Lopez-Mendoza, just as

the majority misunderstands that sentence. Of course, a threejudge panel does not have the power to overrule these decisions, and I must, for present purposes, accept these three

decisions of our circuit as binding law. But these three decisions do not go as far as the majority goes in this case. The

fourth decision, which the majority brushes aside, distinguishes and limits the reach of the first three decisions. In my

view, the fourth decision is flatly inconsistent with the decision reached by the majority. Absent an en banc proceeding,

the majority is bound by that fourth decision, just as we are

bound by the first three. 

I begin by discussing the three decisions that misunderstand

the “ ‘body’ or identity” sentence from Lopez-Mendoza. First,

in United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir.

1994), Guzman-Bruno was arrested by agents of the INS. For

purposes of our decision, we assumed that the arrest was illegal. After his arrest, Guzman-Bruno admitted his name, and

admitted that he had prior drug convictions and deportations.

We refused to suppress evidence of Guzman-Bruno’s identity

in his later criminal prosecution for illegal reentry. We wrote:

A defendant’s identity need not be suppressed

merely because it is discovered as the result of an

14828 UNITED STATES v. ORTIZ-HERNANDEZ
illegal arrest or search. . . . “The ‘body’ or identity

of a defendant . . . is never itself suppressible as a

fruit of an unlawful arrest.” INS v. Lopez-Mendoza,

468 U.S. 1032, 1039 (1984)[.] 27 F.3d at 421-22. 

Second, in United States v. Parga-Rosas, 238 F.3d 1209

(9th Cir. 2001), Parga-Rosas was arrested by San Diego

police. Upon later questioning by the United States Border

Patrol, Parga-Rosas admitted that he was here illegally. After

Parga-Rosas admitted his crime, the Border Patrol took fingerprint exemplars and discovered his identity. Citing

Guzman-Bruno, we held that because his fingerprints had not

been taken to investigate whether he had committed a crime

but rather merely to establish his identity, they could be

admitted in criminal trial. Id. at 1215. 

Third, in United States v. Del Toro Gudino, 376 F.3d 997

(9th Cir. 2004), Del Toro Gudino was arrested by the United

States Border Patrol. After his arrest, Del Toro Gudino admitted that he was here illegally. The Border Patrol thus knew,

based on Del Toro Gudino’s own admission, that he had committed a crime. In order to learn his name, the Border Patrol

then took fingerprint exemplars. Del Toro Gudino sought to

have the fingerprint evidence suppressed on the ground that

he had been illegally arrested. Citing the Supreme Court’s

sentence in Lopez-Mendoza and our decision in GuzmanBruno, we held that this evidence of identity could not be suppressed. 

The majority brushes aside our more recent decision,

United States v. Garcia-Beltran, 389 F.3d 864 (9th Cir. 2004).

Garcia-Beltran was arrested without probable cause by Portland police. After his arrest, exemplars of his fingerprints

were taken. Garcia-Beltran contended that the exemplars had

been taken for purely investigatory purposes. The government

argued that it did not matter whether the exemplars were

taken for investigatory purposes because identity evidence

could always be introduced at trial. The government relied on

UNITED STATES v. ORTIZ-HERNANDEZ 14829
the Supreme Court’s decision in Lopez-Mendoza, and our

decisions in Guzman-Bruno, Parga-Rosas, and Del Toro

Gudino. We rejected the government’s argument. 

We characterized Guzman-Bruno, Parga-Rosas, and Del

Toro Gudino as holding that, when the government already

knows that the defendant has committed a crime, and only

takes his fingerprints to discover his identity, the fingerprint

evidence may not be suppressed. We held that GuzmanBruno, Parga-Rosas, and Del Toro Gudino do not control a

case where the government takes fingerprint exemplars for

investigatory purposes, in order to discover whether the person has committed a crime. Beltran-Garcia is on all fours

with the case now before us. 

The majority contends that Garcia-Beltran does not control

because it involved suppressing the original fingerprint exemplars taken by the Portland police, and did not involve compelling the production of a second set of exemplars. This is a

classic example of a distinction without a difference. In practical effect, the majority holds that the fingerprint evidence

seized in violation of the Fourth Amendment can never be

suppressed. 

Under the majority’s opinion, law enforcement officers

may arrest without probable cause any person who they think

might possibly have committed a crime. They may suspect a

person with a gun of being a convicted felon. Or they may

suspect a Hispanic-looking person of being an illegal immigrant. They may take the fingerprints of this person to discover his or her name, and thereby learn his or her status and

whether he or she has committed a crime. 

Under the majority’s decision, the formalities would, of

course, be observed. The original fingerprints could not be

introduced, for that — heaven forbid — would violate the

exclusionary rule. Instead, a second set of fingerprints, made

available through a motion to compel, would be introduced.

14830 UNITED STATES v. ORTIZ-HERNANDEZ
Same fingers, but different fingerprints. In practical effect, the

Fourth Amendment and the exclusionary rule would be rendered meaningless. More to the immediate point, our recent

decision in Garcia-Beltran would be eviscerated. 

IV. Continuing Crime

The majority argues in support of its result that OrtizHernandez’s crime is different from ordinary crimes. It writes,

“We must also consider the nature of the crime OrtizHernandez is facing — the continuing violation of federal law

by his ongoing presence in the United States.” Majority op. at

14819. This argument was made, and explicitly rejected, in

Lopez-Mendoza. The Supreme Court noted that release of

Sandoval-Sanchez within the borders of this country “would

clearly frustrate the express public policy against an alien’s

unregistered presence in this country.” 468 U.S. at 1047. For

this, among other reasons, the Court held that the exclusionary rule does not apply in civil deportation proceedings.

Under the Supreme Court’s opinion in Lopez-Mendoza,

Sandoval-Sanchez could be deported despite the Fourth

Amendment violation, just as Ortiz-Hernandez, the defendant

in this case, may be deported. 

But the Court in Lopez-Mendoza rejected the conclusion

that the ongoing nature of Sandoval-Sanchez’s immigration

violation required the elimination of the exclusionary rule in

criminal proceedings. The nature of the immigration crime

required the deportation of the illegal alien. But it did not

require the elimination of the exclusionary rule to allow him

to be criminally convicted. Responding directly to the concern

expressed by the majority, the Court wrote in Lopez-Mendoza,

“When the crime in question involves unlawful presence in

this country, the criminal may go free, but he should not go

free within our borders.” 468 U.S. at 1047 (emphasis added).

V. Egregious Fourth Amendment Violation

Finally, relying on Del Toro Gudino, the majority states

that the second set of fingerprint exemplars could be comUNITED STATES v. ORTIZ-HERNANDEZ 14831
pelled even if Detective Anderson’s violation of the Fourth

Amendment were egregious and race-based. Majority op. at

14815-16. This statement ignores the Court’s explicit caution

in Lopez-Mendoza, in discussing Sandoval-Sanchez’s case,

that evidence seized pursuant to an egregious violation of the

Fourth Amendment might be suppressed even in a deportation

proceeding. The Court carefully noted that it was not dealing

with “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness

and undermine the probative value of the evidence obtained,”

468 U.S. at 1050-51, and that its holding was limited to nonegregious violations. If the Court was concerned in LopezMendoza to reserve the question of whether evidence seized

pursuant to an egregious Fourth Amendment violation could

be introduced in a civil deportation proceeding where the

exclusionary rule does not apply, how can we blithely assume

that evidence seized pursuant to an egregious, race-based violation can be admitted in a criminal proceeding? With this

case in its current posture, I am bound by Del Toro Gudino,

but an en banc court would of course be free to reconsider that

holding. 

Conclusion

This panel unanimously agrees that Detective Anderson’s

purely investigatory search violated the Fourth Amendment.

We also unanimously agree that the fingerprint exemplar

taken by Detective Anderson must be suppressed. But the

panel majority compels the production of a second fingerprint

exemplar even though it has suppressed the first one. This

decision conflicts with the Supreme Court’s decision in

Lopez-Mendoza, with the Eighth Circuit’s decision in

Guevara-Martinez, and with our decision in Garcia-Beltran.

I respectfully but emphatically dissent.

14832 UNITED STATES v. ORTIZ-HERNANDEZ