UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4178

STURDY HARRISON,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Herbert N. Maletz, Senior Judge, sitting by designation.

(CR-96-163-PJM)

Argued: October 29, 1998

Decided: January 25, 1999

Before MICHAEL and MOTZ, Circuit Judges, and STAMP,

Chief United States District Judge for the Northern District of

West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Beth Mina Farber, Chief Assistant Federal Public

Defender, Baltimore, Maryland, for Appellant. Jan Paul Miller, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON

BRIEF: James K. Bredar, Federal Public Defender, Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,

Greenbelt, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Sturdy Harrison of knowingly returning to this

country without permission from the Attorney General after having

been deported, in violation of 8 U.S.C.A. § 1326 (West Supp. 1998).

The evidence used to convict Harrison included statements he made

to INS officers before they arrested him and a set of fingerprints taken

after this arrest. Harrison argues on appeal that admission of this evidence constituted error and violated his constitutional rights. For the

reasons discussed below, we affirm.

I.

Sometime prior to March 1996, Harrison co-signed a bail bond to

secure the release of his brother. Although at all relevant times Harrison resided in Washington, D.C., a bail bond company in Prince

George's County, Maryland affiliated with Charles Louis issued this

bond. Louis and his associates had several dealings with Harrison in

attempts to locate Harrison's brother. Harrison testified that during

these encounters the bail bondsmen (whom he refers to as bounty

hunters) treated him roughly, and that he was afraid of them. He also

testified that the bondsmen told him that they would not report him

to immigration authorities if he divulged his brother's location. Harrison refused to tell the bondsmen where his brother was located.

On March 13-15, 1996 Louis contacted the INS office in Baltimore

and notified the INS that he was aware of a Mr. Sturdy Harrison

whom he believed had illegally returned to this country after deportation. An INS report of communications with Louis indicated that Harrison had "not cooperated" with the bail bondsmen in searching for

his brother. INS Baltimore ran several checks and determined that a

Sturdy Harrison from Jamaica had been deported and that his presence in this country would violate the law. The INS then arranged to

 2
have Louis bring Harrison from his home to the bail bond company

in Prince George's County, where the INS would arrest him. The INS

was aware that Louis planned to do this under the guise of a meeting

concerning Harrison's brother.

On March 19, 1996, Louis and two of his associates went to Harrison's home and brought him with them to the bail bond office. Pursuant to the plan, the INS arrested Harrison in the parking lot of the bail

bond company. At that time, but prior to the actual arrest, INS agents

asked the defendant if his name was Sturdy Harrison; he responded

"yes". The INS also asked Harrison where he was from; he responded

"Jamaica". Following his arrest and Miranda warnings, while at the

INS office, Harrison was fingerprinted. It is these statements and fingerprints that serve as the basis for Harrison's principal claims on

appeal.

Harrison argues that he was arrested before he arrived at the parking lot where INS agents formally charged him. He asserts that Louis

and the other bondsmen, acting as agents for the INS, had earlier forcibly arrested him in his home. Harrison further contends that the warrantless arrest by the bondsmen violated his Fourth Amendment rights

and that the district court should have suppressed all evidence

obtained as a result of this unconstitutional arrest.

II.

The role of the bondsmen and their connection, if any, to the INS

presents the threshold issue in this case. Harrison contends that his

original seizure by the bail bondsmen constituted an unconstitutional

arrest because he was taken from his home against his will, without

a warrant, by government agents. Harrison further argues that the

fruits of this arrest by the bondsmen should have been excluded from

evidence. See Wong Sun v. United States, 371 U.S. 471, 484 (1963).

In order to prevail on this claim, Harrison must show that the bail

bondsmen who took him from his home were in fact acting as agents

of the INS, not as private citizens. See United States v. Jacobsen, 466

U.S. 109, 113 (1984) (noting that purely private search does not

implicate the Fourth Amendment); United States v. Kinney, 953 F.2d

863, 865 (4th Cir. 1992) (holding that private citizen's action triggers

 3
constitutional protections only if citizen is acting as instrument or

agent of government).

In determining whether a private citizen has acted as an instrument

or agent of the Government a court must consider: (1) whether the

Government "knew of and acquiesced in" the private activity and (2)

whether the citizen was motivated on the basis of assisting the government -- as opposed to on the basis of private gain. See United

States v. Feffer, 831 F.2d 734, 739 (7th Cir. 1987). If both factors are

present, a private party will be considered to have acted as a government agent. In this case, the parties agree that the bondsmen were

motivated purely out of a desire to aid the INS. Thus only the first

factor is at issue, i.e. whether the Government knew of and acquiesced in the activities of the bondsmen. This is a factual question,

which we review for clear error. Ornelas v. United States, 517 U.S.

690, 699 (1996).

In support of its argument that it did not dictate, and indeed was

not even aware of, the tactics used by the bondsmen to retrieve Harrison from his home, the Government offered the testimony of INS

Agent Mangiulli. Mangiulli testified that the first contact concerning

Harrison came from Louis and was not initiated by the Government.

He explained that the INS performed a thorough check on the matter

before deciding to proceed; after the check revealed that a Sturdy

Harrison from Jamaica had been deported, the INS contacted Louis

and set up a time and place to meet Harrison and Louis. Mangiulli

further testified that he was unaware that the bondsmen planned to

use force or to take Harrison against his will.

To counter this version of the facts, Harrison points out that (1) the

INS arranged the meeting between Louis, Harrison, and the INS and

(2) the INS had been warned that Harrison had previous encounters

with the bondsmen and that, in these instances, Harrison had not been

cooperative. From these two facts, Harrison deduces that the INS, by

requesting that the bondsmen bring him to the bail bond office knowing that he would resist efforts to accompany the bondsmen, encouraged and endorsed the bondsmen's actions.

The problem with this argument is that Agent Mangiulli testified

that, although he had read an INS report outlining Harrison's prior

 4
resistance, he was not aware that the bondsmen would use strongarm

tactics in picking up Harrison. Mangiulli testified that he believed the

bondsmen would bring Harrison to them without incident under the

guise of a meeting about his brother's bond.

The fact that the Government knew of and acquiesced in the ruse

utilized to bring Harrison to the parking lot is not enough to show that

it knew of and acquiesced in the allegedly unconstitutional forcible

arrest by the bondsmen. See United States v. Rhodes, 713 F.2d 463,

467 (9th Cir. 1983) (concluding that there was insufficient evidence

to prove that bounty hunter acted as a government agent when he set

up a meeting between defendant and undercover officer that led to

arrest); Alvarez v. Montgomery County, 963 F. Supp. 495, 498-99 (D.

Md. 1997) (concluding that officers' use of misrepresentation in order

to draw defendant from home and effectuate a warrantless arrest was

proper), aff'd, 147 F.3d 354 (4th Cir. 1998); United States v.

Vasiliavitchious, 919 F. Supp. 1113, 1115-18 (N.D. Ill. 1996) (same);

cf. United States v. Carter, 884 F.2d 368, 374-75 (8th Cir. 1989)

(holding that deceptive statements used by law enforcement agents in

order to obtain consent to search defendant's wallet were relevant but

alone not enough to invalidate consent).

In sum, the record contains ample evidence to support the district

court's finding that the bondsmen did not act as government agents.

As private citizens, their activity could not trigger constitutional protections. Thus statements Harrison made to INS agents prior to his

arrest by those agents do not constitute the fruit of an unconstitutional

arrest. The district court did not err in refusing to suppress them.

III.

Harrison's fingerprints similarly can not be considered the fruit of

an unconstitutional arrest by the bondsmen. However, because the

fingerprints were taken after the INS arrested Harrison, we must also

consider the validity of that arrest.

The district court found that the INS had probable cause to arrest

Harrison and so its arrest of him violated no constitutional provision;

Harrison does not challenge this finding on appeal. The court, however, also concluded that the arrest was illegal because, although the

 5
agents had ample time to do so, they failed to obtain a warrant. Thus,

the court found, their arrest of Harrison violated 8 U.S.C.A.

§ 1357(a)(2) (West Supp. 1998), which authorizes warrantless arrests

by the INS only if the agents have a reasonable belief that an alien

is illegally in the country and that it is likely the alien will escape "before a warrant can be obtained." Id.

The Government initially argues that the arrest was not illegal, that

it did not violate § 1357(a)(2). Alternatively, the Government asserts

that, even if the search did violate the statute, the fingerprints need not

be excluded. We review the district court's legal conclusions de novo.

See United States v. Elie, 111 F.3d 1135, 1140 (4th Cir. 1997), and

its underlying factual findings for clear error. See Ornelas, 517 U.S.

at 699.

A.

In support of its claim that the INS arrest of Harrison did not violate § 1357(a)(2), the Government cites Contreras v. United States,

672 F.2d 307 (2d Cir. 1982). The Government overstates the holding

of this case. In Contreras, the court explained "when the alien's

deportability is clear and undisputed, that circumstance alone may

provide a sufficient basis for an INS officer to believe that escape is

likely before a warrant can be obtained." Id . at 309 (emphasis added).

This does not amount to a holding that in every case in which an alien

is deportable an arrest can be made without a warrant. That interpretation is contrary to the statute itself, which requires that the INS must

have reasonable belief both that the alien is in the country illegally

and that the alien is likely to escape before a warrant can be obtained.

See 8 U.S.C.A. § 1357(a)(2).

Hence, the critical question remains did the INS believe Harrison

was likely to flee before a warrant could be obtained. In making such

a determination, a court examines the objective facts within the

knowledge of the INS Agents. See Contreras, 672 F.2d at 309. The

district court found that the agents in this case had sufficient time

within which to procure a warrant and that the objective risk of flight

from Harrison was minimal. The record evidence outlined above

offers ample support for this finding.

 6
Nor is United States v. Cantu, 519 F.2d 494 (7th Cir. 1975), upon

with the Government also relies, to the contrary. In that case the

agents could not determine where the defendant, who was traveling

by car, would be when they caught up with her and for this reason

escape was held likely before a site-specific warrant could be

obtained. Id. at 497-98. In our case, there is no evidence that Harrison

was traveling. To the contrary, the bondsmen had been to his house

several times and found him there each time. Furthermore, the court

in Cantu rejected the INS's argument that it did not have probable

cause to arrest the defendant until the agents observed her personally

because the tip that led them to her had been independently corroborated. Id. at 497. Similarly, here the INS verified the bail bondsman's

tip as to Harrison's illegal presence in the country through independent evidence from their database well prior to Harrison's arrest by

the INS. For these reasons, the district court did not err in concluding

that failure to obtain a warrant in these circumstances violated 8

U.S.C.A. § 1357(a)(2).

B.

The question then becomes what effect, if any, this statutory violation has on the admissibility of the fingerprint evidence obtained from

that arrest. The Government maintains that, even if the arrest violated

the statute, the district court properly admitted the fingerprint evidence because the exclusionary rule is constitutionally based and is

not triggered by the violation of a mere statute.

Whether the exclusionary rule generally applies when the Government violates a statute rather than the constitution presents a difficult

question, and one which we need not reach today. Even if the exclusionary rule applies to evidence obtained after an arrest that is illegal

but not unconstitutional, the district court's admission of Harrison's

fingerprints was nonetheless proper because the exclusionary rule

does not apply to fingerprint evidence obtained in the circumstances

presented here. See United States v. Dionisio , 410 U.S. 1 (1972).

In Dionisio, the Court held that governmental officials can constitutionally obtain a "compelled display of identifiable physical characteristics" (in that case a voice exemplar), even without making any

"preliminary showing of reasonableness." Id. at 5, 8. In doing so, the

 7
Court distinguished Davis v. Mississippi, 394 U.S. 721 (1969), upon

which Harrison principally relies. In Davis, the Supreme Court had

refused to adopt an exception to the exclusionary rule for evidence

that is inherently reliable, such as fingerprints, and held that fingerprints obtained as the result of an unconstitutional seizure must be

suppressed. Id. at 724-25. The Dionisio Court explained that "Davis

is clearly inapposite to a case where the initial restraint does not itself

infringe the Fourth Amendment." 410 U.S. at 11. Because the INS

indisputably had probable cause to arrest Harrison, the Fourth

Amendment was not violated by that arrest, and so, Dionisio teaches,

the fingerprint evidence need not be suppressed. See id.; see also

United States v. Crews, 445 U.S. 463, 464 (1980) ("[r]espondent himself is not a suppressible fruit"); United States v. Arias, 678 F.2d

1202, 1206 (4th Cir. 1982) ("the identity of[the] defendant[] is not

suppressible under the exclusionary rule").

IV.

Finally, Harrison contends that the district court erred in admitting

a certain certificate from the INS. As an element of the offense

charged, the Government was required to prove that Harrison was in

this country without having requested and received permission from

the Attorney General. See 8 U.S.C.A. §1326(a).

As proof that a thorough search had been performed, Agent Mangiulli testified that no request notification was found in Harrison's file

as would be standard if such a request had been made. Also, the Government admitted a Certificate of Nonexistence of Record. Harrison

argues that, because the writing on the seal affixed to this certificate

was illegible, the document did not "bear a seal" under Federal Rule

of Evidence 902(1) and so was not self-authenticating. Therefore,

Harrison maintains, its admission was improper. The district court

determined that the document contained a seal "purporting to be" that

of the United States or a political subdivision thereof, as required by

Rule 902(1). The court noted that the seal contained an eagle in the

middle and that it was adequate. The court did not abuse its discretion

in so ruling.

V.

In sum, we hold that the bail bondsmen who brought Harrison to

the site where he was arrested by the INS did so as private citizens.

 8
Thus their actions, however egregious, did not violate Harrison's constitutional rights. Evidence obtained as a result of their actions, specifically Harrison's statements to INS agents prior to his arrest by those

agents, was not subject to the exclusionary rule. We further hold that,

although the INS's arrest of Harrison violated 8 U.S.C.A.

§ 1357(a)(2), the fingerprints obtained as a result of that arrest were

nonetheless properly admitted. Finally, we find no abuse of discretion

in the district court's admission of a document under Federal Rule of

Evidence 902(1) despite the lack of clarity of the lettering on its seal.

For these reasons, the judgment of the district court is

AFFIRMED.

 9