United States Court of Appeals For the First Circuit

No. 19-1082

UNITED STATES,

Appellee,

v.

HECTOR ANTONIO CRUZ-MERCEDES, a/k/a Pedro Colon, a/k/a Hector Cruz,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Stahl, and Lipez, Circuit Judges.

John F. Palmer for appellant. Yael T. Epstein, Attorney, U.S. Department of Justice, with whom Andrew E. Lelling, United States Attorney, Richard E. Zuckerman, Principal Deputy Assistant Attorney General, S. Robert Lyons, Chief, Criminal Appeals & Tax Enforcement Policy Section, Stanley J. Okula, Jr., Attorney, and Alexander P. Robbins, Attorney, were on brief for appellee.

December 18, 2019 STAHL, Circuit Judge. During a law enforcement sting

targeting a Stolen Identity Refund Fraud ("SIRF") scheme, Hector

Antonio Cruz-Mercedes was administratively arrested for unlawful

presence in the United States. Following the arrest, he was

fingerprinted during a routine booking. Subsequently, the

government charged him with multiple counts related to his

involvement in the fraud scheme. Prior to trial, Cruz-Mercedes

moved to suppress his booking fingerprints as the "fruit" of what

he contended was an unlawful arrest.

The district court determined that Cruz-Mercedes was

arrested without probable cause prior to his admission of unlawful

presence in the United States. Nonetheless, the court admitted

the fingerprint evidence under the doctrine of inevitable

discovery. Following the district court's ruling, Cruz-Mercedes

conditionally pleaded guilty, reserving the right to appeal the

denial of his suppression motion as to the fingerprint evidence's

admission.

We affirm the district court's denial of the motion to

suppress, albeit on different grounds. Specifically, we find on

these facts that the fingerprints were obtained for routine booking

purposes. Thus, there is no basis in the record of this case for

suppression of the fingerprint evidence, and accordingly we need

not reach the district court's probable cause or inevitable

discovery determinations.

- 2 - I. Factual Background

The relevant facts are drawn primarily from the district

court's findings, see United States v. Cruz-Mercedes,

(D. Mass. 2019) ("Cruz-Mercedes I"),1 "consistent with

record support, with the addition of undisputed facts drawn from

the suppression hearing," United States v. Hernandez-Mieses,

(1st Cir. 2019).

A. The Arrest

In March 2012, the Department of Homeland Security's

Homeland Security Investigations ("HSI") office in Boston received

information from a confidential informant ("CI") about a

fraudulent tax return scheme. According to the CI, the implicated

individuals allegedly used Social Security numbers stolen from

Puerto Rican residents to file false tax returns and fraudulently

obtain refund checks.2 On three separate occasions between April

and May 2012, the CI met with one individual involved in the

scheme, Odalis Castillo-Lopez, with the goal of purchasing

fraudulent refund checks. Subsequently, the CI arranged to meet

1 The district court's opinion is a written explanation of its September 11, 2018 oral rulings granting in part and denying in part Cruz-Mercedes's motion to suppress. See Cruz-Mercedes I,

-30 & n.1. 2 This type of scheme is known as Stolen Identity Refund Fraud.

- 3 - with Castillo-Lopez on June 7, 2012 under the guise of purchasing

approximately $160,000 in fraudulently obtained checks. Agents

from HSI and the Secret Service established surveillance of the

June 7 meeting with the intention of arresting Castillo-Lopez.

The agents convened in a parking lot adjacent to a McDonald's in

South Attleboro, Massachusetts.

Castillo-Lopez arrived at the McDonald's in a white

Volkswagen Passat accompanied by an unknown passenger, later

identified as Cruz-Mercedes. Alma Martinez, the sister of

Cruz-Mercedes's girlfriend Betty Sanchez, was later identified as

the owner of the Passat. The two men exited the vehicle and

entered the McDonald's, followed closely by Special Agents John

Soares and Michael Riley of HSI and Special Agent Fred Mitchell of

the Secret Service. Soares and Mitchell approached Castillo-Lopez

inside the McDonald's, asked him some questions, escorted him

outside, arrested him, and took him to the Boston HSI office for

processing. The officers seized two cell phones from

Castillo-Lopez during his arrest.

At the same time, Agent Riley briefly conversed with

Cruz-Mercedes inside the McDonald's, but there is no record

evidence of the substance of that conversation. At some point,

Riley escorted Cruz-Mercedes out of the McDonald's, and Special

Agent Cronin of HSI subsequently questioned Cruz-Mercedes in the

- 4 - parking lot.3

Outside the McDonald's, Cruz-Mercedes identified himself

to Cronin as "Pedro Colon" and displayed identification documents

bearing that name, including a Massachusetts driver's license and

a Social Security card. Cronin asked Cruz-Mercedes if the

documents were, in fact, his. Cruz-Mercedes responded that his

name was actually Hector Cruz-Mercedes, that he was a native of

the Dominican Republic, and that he had unlawfully entered the

United States. Cronin then formally arrested Cruz-Mercedes for

unlawful presence in the United States. A search of Cruz-Mercedes

incident to that arrest uncovered two cell phones, which were then

seized. At no point during the interaction did law enforcement

advise Cruz-Mercedes of his rights under Miranda v. Arizona,

(1966).

Cruz-Mercedes was then transported to the Boston HSI

3During the suppression hearing, law enforcement witnesses differed as to whether Cruz-Mercedes was handcuffed by the time he was taken outside by Riley, or if instead he was handcuffed following his conversation with Cronin. Soares testified that Cruz-Mercedes was handcuffed following his formal arrest by Cronin, while Mitchell testified that Cruz-Mercedes was handcuffed by Riley inside the McDonald's. Cruz-Mercedes I,

. Riley was not available to testify at the hearing. The district court said that "Agent Cronin testified that [Cruz-Mercedes] had been placed in custody before being brought out to the parking lot to talk to him."

However, the record also reflects that Cronin recalled Cruz-Mercedes leaving the McDonald's unaccompanied by law enforcement agents. The district court ultimately declined to resolve this factual dispute, and we need not do so.

- 5 - office for processing. There, Agent Cronin created an alien file

for Cruz-Mercedes, who had not previously encountered immigration

authorities and thus had no file. Cronin fingerprinted

Cruz-Mercedes and placed the fingerprint exemplars into his alien

file.

B. Investigation of the SIRF Scheme

Agents impounded the Passat and transported it to the

garage in Boston's O'Neill Federal Building. There, Mitchell and

Soares searched the vehicle and discovered an envelope tucked into

the headliner above the driver's seat containing ten United States

Treasury checks. The envelope also contained a list of individuals

and their personally identifiable information, including names,

dates of birth, and Social Security numbers corresponding to the

payees of the checks.

The search also uncovered a personal check and a bank

deposit slip listing the associated checking account as belonging

to "Anna Cruz," later identified as Cruz-Mercedes's aunt. Through

text messages, Castillo-Lopez had instructed the CI to deposit

proceeds from cashing the fraudulent Treasury checks into that

bank account, as well as a bank account belonging to Maria

Martinez, the mother of Cruz-Mercedes's girlfriend, Betty Sanchez.

HSI sent the evidence obtained from the Passat to the Massachusetts

State Police for fingerprint testing. Those tests recovered one

latent fingerprint clear enough for identification, which matched

- 6 - a fingerprint taken from Cruz-Mercedes during his booking.

As part of his investigation, Agent Soares obtained a

photograph of the real Pedro Colon from the Puerto Rico Registry

of Motor Vehicles and compared it to Cruz-Mercedes, deducing that

the two visibly were not the same person. On August 16, 2012,

Cruz-Mercedes was arrested in Bronx County, New York for the

deceptive use of a Social Security number in violation of

(a)(7)(B) (2012),4 based on his falsely identifying

himself to Cronin as Pedro Colon and his producing a Social

Security card bearing that name. Following arraignment,

Cruz-Mercedes was released on a $10,000 bond and ordered to appear

in the District of Massachusetts on or before August 24, 2012.

Instead, he fled the United States and returned to his native

Dominican Republic.

Separately, Soares obtained and executed a warrant to

search one of Castillo-Lopez's seized cell phones on August 9,

2012. In one set of text communications, an unidentified phone

number instructed Castillo-Lopez to make deposits into a bank

account belonging to Maria Martinez. Castillo-Lopez had relayed

those deposit instructions to the CI. Responding to a grand jury

subpoena, the cellular service provider for the unidentified phone

number gave to Soares the unique identifier of the number's

4 All citations to the United States Code are to the official 2012 edition.

- 7 - affiliated device, which matched that of one of the cell phones

seized from Cruz-Mercedes on June 7.

Following Cruz-Mercedes's failure to appear in court on

August 24, 2012, Soares attempted to locate him at his last known

address. While there, Soares interviewed Cruz-Mercedes's

girlfriend, Betty Sanchez, who provided two cell phone numbers

belonging to Cruz-Mercedes. One of the provided numbers was the

same phone number that directed Castillo-Lopez to make bank

deposits. Relying on that information and the unique identifier

provided by the cellular provider, on November 9, 2012, Soares

obtained a search warrant for one of Cruz-Mercedes's seized cell

phones. The resulting search confirmed that the number associated

with the device matched the phone number that had provided

Castillo-Lopez with deposit instructions.

II. Procedural Background

On February 26, 2014, a grand jury in the District of

Massachusetts indicted Cruz-Mercedes on twenty counts related to

the SIRF scheme, one count for fraudulent use of a Social Security

number, and one count for failure to appear on August 24, 2012.5

5Altogether, the indictment contained: ten counts of conversion of government property under

; one count of money laundering under

(a)(3)(B); one count of conspiracy to commit money laundering under

(h); eight counts of aggravated identity theft under 18 U.S.C. § 1028A; one count of fraudulent use of a Social Security number under

(a)(7)(B); and one count of failure to appear on August 24, 2012 under

.

- 8 - Cruz-Mercedes was arrested in the Dominican Republic on January

25, 2017 and subsequently extradited to the United States. He

made his initial appearance on December 1, 2017. Cruz-Mercedes I,

.

In anticipation of trial, Cruz-Mercedes moved to

suppress all evidence obtained as a result of his June 7, 2012

arrest.

He argued that his arrest was unlawful because it

was unsupported by probable cause and that the relevant evidence

constituted the fruits of an unlawful seizure requiring

suppression under Wong Sun v. United States,

(1963).

Cruz-Mercedes I,

. The district court held

a suppression hearing on August 29, 2018.

On September 11, 2018, the district court determined

that Cruz-Mercedes was under de facto arrest when he was removed

from the McDonald's and questioned by Cronin in the parking lot

without a Miranda warning.

at 40 & n.15. The district court

also found that law enforcement agents lacked probable cause to

arrest Cruz-Mercedes until he answered Cronin's interrogation with

his true identity and unlawful presence in the country.

. The district court suppressed those responses as both fruits

of an unlawful arrest under the Fourth Amendment and violative of

Miranda under the Fifth Amendment but admitted Cruz-Mercedes's

initial false identification as Pedro Colon under the booking

- 9 - exception to Miranda.6

at 40-41 & n.16. Though also

determining that Cruz-Mercedes's booking fingerprints were

suppressible as fruit of an unlawful arrest, the district court

reasoned that law enforcement inevitably would have arrested and

fingerprinted Cruz-Mercedes even without the unlawful arrest and

interrogation on June 7.7

. The district court

therefore admitted the fingerprint evidence pursuant to the

doctrine of inevitable discovery.

On September 13, 2018, Cruz-Mercedes entered a

conditional guilty plea, reserving the right to appellate review

of the fingerprint evidence's admissibility.

at 29 n.1,

33-34. On January 9, 2019, the district court sentenced Cruz-

Mercedes to imprisonment of 36 months and one day and ordered that

he pay restitution of $34,800 and a mandatory assessment of $2,200

and that he be deported following his release.

. This

timely appeal followed.

6 The booking exception permits "questions to secure the biographical data necessary to complete booking or pretrial services" that are "requested for record-keeping purposes only." Pennsylvania v. Muniz,

(1990) (internal quotation marks omitted). 7 Specifically, the district court determined that admissible evidence would have led agents to investigate Anna Cruz, Maria Martinez, and Betty Sanchez, who in turn would have identified Cruz-Mercedes. Cruz-Mercedes I,

. Thus, the district court said that standard database searches then would have revealed Cruz-Mercedes not to be Pedro Colon, giving law enforcement probable cause to arrest Cruz-Mercedes for fraudulent use of a Social Security number and allowing them to obtain his fingerprints lawfully.

- 10 - III. Discussion

A. The Exclusionary Rule's Applicability to Booking Fingerprints

"In reviewing the denial of a motion to suppress, [this]

court accepts the district court's 'factual findings to the extent

that they are not clearly erroneous,' and 'review[s] its legal

conclusions de novo.'" United States v. Davis,

(1st Cir. 2018) (second alteration in original) (quoting

United States v. Sanchez,

(1st Cir. 2010)). We

assume arguendo that the district court correctly determined that

Cruz-Mercedes was placed under de facto arrest without probable

cause when he was removed from the McDonald's. We proceed to

review de novo the district court's legal conclusion that the

defendant's fingerprints are subject to suppression under the

exclusionary rule.

The Fourth Amendment protects "[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures," but "contains no provision

expressly precluding the use of evidence obtained in violation of

its commands." Arizona v. Evans,

(1995) (citing

United States v. Leon,

(1984)); see U.S. Const.

amend. IV. The Supreme Court long ago recognized the exclusionary

rule in response to the perniciousness of unlawfully obtained

evidence. See Weeks v. United States,

(1914)

- 11 - (adopting the exclusionary rule); Mapp v. Ohio,

(1961)

(applying the exclusionary rule to the states).

The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion.

Wong Sun,

. While that prohibition reaches evidence

obtained through a direct Fourth Amendment violation and the

derivative "fruit of the poisonous tree," the Court has

consistently rejected the presence of a causal relationship

between police misconduct and the obtaining of the relevant

evidence as a litmus test for the rule's applicability. See

Utah v. Strieff,

(2016); Herring v.

United States,

(2009) (citing Illinois v. Gates,

(1983)); Wong Sun,

. Rather,

the operative inquiry is whether "the interest protected by the

constitutional guarantee that has been violated would . . . be

served by suppression of the evidence obtained." Strieff,

(quoting Hudson v. Michigan,

(2006)).

Under the particular factual circumstances of two

cases - Hayes v. Florida,

(1985), and Davis v.

Mississippi,

(1969) - the Supreme Court has held that

the exclusionary rule required suppression of fingerprint

evidence. The suppression of fingerprint evidence in both cases

- 12 - hinged upon the undisputed facts of police officers' obtaining the

challenged fingerprints through an "investigative detention,"

without probable cause, for "investigative purposes" related to a

specific crime. Hayes,

; see Davis,

. The Court's focus on the criminal context and

investigatory motivation behind law enforcement's obtaining of the

fingerprint evidence in both cases suggests that the exclusionary

rule does not block routine booking fingerprints taken for

administrative purposes. See Hayes,

; Davis,

; United States v. Oscar-Torres,

(4th Cir. 2007).

"Certain routine administrative procedures, such as

fingerprinting, photographing, and getting a proper name and

address from the defendant, are incidental events accompanying an

arrest that are necessary for orderly law enforcement and

protection of individual rights." United States v.

Olivares-Rangel,

(10th Cir. 2006). Routine

administrative fingerprinting during booking presumptively is not

implicated by the rule that "[t]he indirect fruits of an illegal

search or arrest should be suppressed when they bear a sufficiently

close relationship to the underlying illegality." United States

v. Delgado-Perez,

(1st Cir. 2017) (quoting

New York v. Harris,

(1990)); see United States v.

Dowdell,

(1st Cir. 2010) ("[B]ooking information

- 13 - [i]s taken in a routine, nonadversarial setting." (second

alteration in original) (quoting United States v. Haughton,

(5th Cir. 2007))).

The "sole purpose" of the exclusionary rule, the Court

has repeatedly held, "is to deter future Fourth Amendment

violations." Davis v. United States,

(2011)

(citing Herring,

& n.2; Leon,

,

921 n.22; Elkins v. United States,

(1960)).

Exclusion is "not a personal constitutional right," nor one meant

to "redress the injury" caused by a Fourth Amendment violation.

at 236 (quoting Stone v. Powell,

(1976)).

The exclusionary rule therefore "applies only where it 'result[s]

in appreciable deterrence.'" Herring,

(alteration

in original) (quoting Leon,

). The inquiry must

also consider the "substantial social costs" generated by the

exclusionary rule. Davis,

(quoting Leon,

). The gravity of those costs requires that the rule be

"applicable only . . . where its deterrence benefits outweigh its

substantial social costs." Strieff,

(alteration

in original) (quoting Hudson,

).

Broad suppression of fingerprints taken for

administrative purposes following unlawful arrests would be

disproportionately costly. That is because the effect of

fingerprinting during routine booking is to enforce the

- 14 - uncontroversial proposition that "[i]n every criminal case," even

those following unlawful arrests, "it is known and must be known

who has been arrested and who is being tried." Hiibel v.

Sixth Jud. Dist. Ct. of Nev.,

(2004).

B. There is No Basis for Suppression in this Case

Applying these principles here, on this record, we

conclude that the fingerprint evidence is not subject to

suppression. In reviewing a district court's denial of a motion

to suppress, "[w]e assess questions of fact . . . for clear error."

United States v. Oquendo-Rivas,

(1st Cir. 2014).

Under clear error review, we "view the facts in the light most

favorable to the district court's ruling on the motion."

United States v. Candelario-Santana,

(1st Cir.

2016). Accordingly, "[s]o long as 'any reasonable view of the

evidence supports it,' [this court] will uphold the denial of the

motion to suppress."

(second alteration in original) (quoting

United States v. Molina-Gómez,

(1st Cir. 2015)).

Further, this court may "affirm on any ground appearing in the

record—including one that the judge did not rely on."

United States v. Rivera,

(1st Cir. 2016).

The record of this case shows that the defendant's

fingerprints were obtained pursuant to routine booking procedures.

The district court reasonably found that Cronin "formally arrested

Mr. Cruz-Mercedes for being in the United States unlawfully" based

- 15 - on statements Cruz-Mercedes made while under de facto arrest.

Cruz-Mercedes I,

. Cruz-Mercedes's statements

about his identity are not suppressible. See United States v.

Sanchez,

(1st Cir. 2016) (holding the Miranda

booking exception covers routine booking questions seeking

background information such as the suspect's name); Navarro-Chalan

v. Ashcroft,

(1st Cir. 2004). Cruz-Mercedes's

statement of his unlawful presence in the United States, which the

record indicates was freely made and not a result of the questions

or actions of law enforcement, is also not subject to suppression

here. See Sanchez,

(stating that freely made

statements are admissible under Miranda); Herring,

(holding that the exclusionary rule applies only where it

"result[s] in appreciable deterrence" (alteration in original)

(quoting Leon,

)); Oscar-Torres,

.

Cruz-Mercedes's admitted unlawful presence rendered him

deportable. See

(a)(6)(A)(i), 1227(a)(1).8 Cronin

was authorized to administratively arrest Cruz-Mercedes on that

basis. See

§ 1357(a)(2)9;

(c) (2012). It is

8 Section 1182(a)(6)(A)(i) provides that "[a]n alien present in the United States without being admitted . . . is inadmissible." Section 1227(a)(1) renders deportable aliens who were inadmissible at entry or are present in the United States in violation of law. 9 Section 1357(a)(2) empowers an immigration officer "to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or

- 16 - undisputed, and the district court reasonably found, that Cronin

fingerprinted Cruz-Mercedes at the Boston HSI office pursuant to

routine immigration processing. Cruz-Mercedes I,

.

Cruz-Mercedes does not and cannot successfully argue on

this record that his fingerprints were obtained for any purpose

other than routine booking. Accordingly, the fingerprint evidence

cannot be suppressed under the exclusionary rule. Consequently,

this case does not implicate the holdings of some of our sister

circuits recognizing factual circumstances that render booking

fingerprints suppressible. See, e.g., Oscar-Torres,

(holding booking fingerprints are suppressible only where law

enforcement purposefully exploits an illegal arrest to obtain them

in furtherance of a criminal investigation); Olivares–Rangel,

(same); United States v. Guevara-Martinez,

(8th Cir. 2001) (requiring suppression of fingerprints

"obtained . . . by exploiting [defendant's] unlawful detention"

where there was "no evidence that the fingerprints were obtained

as a matter of course through routine booking procedures").10 We

regulation made in pursuance of law regulating the admission . . . of aliens," and "to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest." 10The Ninth Circuit has taken up this question and ruled along similar lines. See United States v. Garcia-Beltran, 389

- 17 - need not and do not resolve these questions in the instant case.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district

court's denial of Cruz-Mercedes's motion to suppress the

fingerprint evidence.

F.3d 864, 868 (9th Cir. 2004) (requiring suppression of fingerprints obtained following the illegal arrest in pursuit of a criminal investigation unless they were obtained "by 'means sufficient to have purged the taint of the initial illegality'" (quoting Guevara-Martinez,

)); but see United States v. Ortiz-Hernandez,

(9th Cir. 2005) (suppressing fingerprints obtained following an illegal arrest under Garcia-Beltran but compelling defendant to submit to rebooking and fingerprinting upon new federal criminal charge).

- 18 -