PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4159

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MARCIO SANTOS-PORTILLO,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Malcolm J. Howard, Senior District Judge. (7:18-cr-00010-H-1)

Argued: March 10, 2021 Decided: May 7, 2021

Before WILKINSON, AGEE, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee joined. Judge Floyd wrote a dissenting opinion.

ARGUED: James Edward Todd, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, North Carolina, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, Eric Brignac, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Brian C. Rabbitt, Acting Assistant Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert J. Higdon, Jr., United States Attorney, Jennifer May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. WILKINSON, Circuit Judge:

Appellant Santos-Portillo unlawfully entered the United States after a prior

deportation resulting from a felony conviction. Federal officials arrested him with probable

cause but without securing the administrative arrest warrant required by

(a).

That arrest produced the evidence that led to Santos-Portillo’s present conviction for illegal

reentry into the United States under

(a).

On appeal, Santos-Portillo argues that we should suppress all post-arrest evidence

against him. But § 1357(a) does not authorize courts to suppress evidence for violations of

the provision. Santos-Portillo argues, however, that the federal courts have a broad

supervisory power to suppress evidence for statutory violations by law enforcement

regardless of whether Congress authorized suppression. But a proper respect for

Congress’s role in determining the consequences of statutory violations compels rejecting

his argument. Even assuming we have the authority to create a suppression remedy where

Congress has not provided one, we decline to exercise it in this case. We therefore affirm

the judgment.

I.

In January 2018, Department of Homeland Security (DHS) Special Agent Thomas

Swivel saw someone whom he thought he recognized from a prior case. This turned out to

be Santos-Portillo. As Santos-Portillo drove away, Agent Swivel wrote down his license

plate number.

Based on a subsequent records check, Agent Swivel learned that Santos-Portillo was

a Honduran national who was in the United States illegally. He discovered a Texas felony

2 conviction for unlawfully fleeing from law enforcement and that Santos-Portillo had

consequently been deported in 2011. Agent Swivel also found a photograph of Santos-

Portillo in his immigration file.

Agent Swivel drove to the address to which the car was registered. He saw the car

but no people. Concluding that Santos-Portillo was in the United States illegally, Agent

Swivel began coordinating with other agents to make an arrest. A few days later, Agent

Swivel and four other agents staked out Santos-Portillo’s house. When Santos-Portillo

exited the house, the agents confronted him. Santos-Portillo then gave his name and

admitted he was from Honduras.

Agent Swivel then arrested Santos-Portillo and took him to a nearby ICE office.

Santos-Portillo was fingerprinted; when Swivel sent the prints to several law enforcement

agencies, they matched the profile of a previously deported alien. Agent Swivel then gave

Santos-Portillo Miranda warnings and interrogated him. During questioning, Santos-

Portillo admitted he was from Honduras, that he had previously been deported, and that he

had not obtained permission to return to the United States.

Santos-Portillo was then criminally charged with violating

(a),

which prohibits illegal reentry of previously removed aliens.

II.

At Santos-Portillo’s detention hearing in February 2018, Agent Swivel testified that

he neither sought nor secured an administrative arrest warrant to detain Santos-Portillo. He

was asked, “Do you ever get arrest warrants? Or is it generally the nature of the crime that

you do these arrests without a warrant?” Swivel answered, “Generally, we encounter

3 people administratively. And, due to his prior deportation, there was an administrative

arrest warrant in the A-File. . . . But–no.” J.A. 36–37.

Subsequently, Santos-Portillo moved to suppress all post-arrest evidence. He based

this motion on an alleged violation of

(a), which permits warrantless arrests

only if agents have probable cause and have a “reason to believe . . . there is [a] likelihood

of the person escaping before a warrant can be obtained.” Santos-Portillo argued that the

agents had ample time to secure a warrant before arresting him. He asked the court to

exercise its supervisory authority to suppress in order to prevent widespread disregard of a

congressional command. J.A. 66.

The government countered by arguing that

(a) was not applicable

to the arrest of Santos-Portillo. It argued that the involved agents had dual authority as

customs agents to execute warrantless arrests based on probable cause alone. It also argued

that the prior deportation order was an adequate substitute for an arrest warrant.

The magistrate judge issued a recommendation finding that

(a) did

in fact apply to the arrest. See United States v. Santos-Portillo, No. 7-18-CR-10-1H,

(E.D.N.C. May 31, 2019). She thus concluded the arrest was unlawful

because the agents had time to secure an arrest warrant but did not do so.

at 4–5. In the

process, the magistrate judge rejected the government’s arguments that the DHS agents

had authority to arrest as customs officers and that an arrest warrant was not needed due to

the prior deportation order.

1 However, the magistrate judge recommended denying the

1 The government does not challenge these determinations on appeal, and we therefore do not reach these questions.

4 motion to suppress because the arrest “was consistent with the Fourth Amendment” and

because § 1357(a) did not authorize suppression as a remedy. Id. at 7. The district court

subsequently adopted the magistrate judge’s opinion and held that suppression was not

warranted.

A trial followed where the post-arrest evidence was introduced against Santos-

Portillo. He was convicted and issued a time-served sentence of 15 months. After

conviction, Santos-Portillo was taken into custody by ICE agents and deported again.

Santos-Portillo filed a timely appeal.

III.

A.

Santos-Portillo argues that suppressing the evidence against him is necessary to give

meaning to

(a)’s general requirement that immigration officials secure an

administrative arrest warrant. But our analysis must begin with other statutes.

Congress has expressed its clear desire that aliens who commit felonies in the United

States be deported. See, e.g.,

(a)(2). Santos-Portillo is a felon, having been

convicted in Texas for unlawfully using a vehicle to flee from the police. And moreover,

Congress has expressed its intent that convicted felons who are deported, like Santos-

Portillo, stay outside of the United States.

makes it a federal crime for an

alien who has been deported to reenter the United States without permission. Santos-

Portillo admits he violated that statute, making him a criminal twice-over.

We thus confront a statutory scheme manifesting Congress’s clear intent that

individuals like Santos-Portillo be kept out of the United States. Santos-Portillo asks us to

5 apply

(a) in a way that frustrates that edict. That provision authorizes

immigration officials “to make arrests” without a warrant for “any offense against the

United States,” but only “if the officer or employee is performing duties relating to the

enforcement of the immigration laws at the time of the arrest and if there is a likelihood of

the person escaping before a warrant can be obtained for his arrest.” Both parties agree that

Agent Swivel arrested Santos-Portillo without a serious risk of him fleeing before a warrant

could be obtained.

A legal requirement has thus been violated. But the question of what remedy is

available to Santos-Portillo—or whether one exists at all for violations of this provision—

remains. Absent unusual situations, the power to craft remedies for statutory violations lies

with Congress, which after all enacted the statute, not the federal courts. See, e.g.,

Hernandez v. Mesa,

(2020). There is absolutely no statutory basis for

Santos-Portillo’s argument that we should suppress the evidence against him.

(a) makes no mention of suppression or any other remedy for those arrested without

an administrative warrant. This absence is notable, considering that Congress has

authorized a suppression remedy in other contexts. See, e.g., United States v. Donovan,

, 432 n.22 (1977) (“The availability of the suppression remedy for these

statutory, as opposed to constitutional, violations . . . turns on the provisions of Title III

rather than the judicially fashioned exclusionary rule aimed at deterring violations of

Fourth Amendment rights.”).

In the Fourth Amendment context, of course, the Supreme Court has required the

suppression of incriminating evidence if law enforcement violates the Constitution. See

6 Mapp v. Ohio,

(1961). The exclusionary rule was deemed necessary to

avoid the contamination of court proceedings with unconstitutionally gathered evidence.

See

. But the parties agree there is no constitutional violation in this case. The

Fourth Amendment permits “the warrantless arrest of an individual in a public place upon

probable cause . . . .” United States v. Santana,

(1976). And the Court has

specifically upheld a warrantless arrest with probable cause on the front steps of a house,

, just like what happened here. In this appeal, Santos-Portillo does not challenge

that Agent Swivel had probable cause. Agent Swivel had accessed an immigration file

containing an identifying photo and clear proof that Santos-Portillo was a convicted felon

who had been deported, meaning he was almost certainly in the United States illegally. It

is also worth noting that Agent Swivel did not invade Santos-Portillo’s home to make the

arrest.

Section 1357(a) thus adds a rule for immigration arrests not required by the

Constitution. In fact, the statute’s warrant requirement does not even correspond that well

to Fourth Amendment concerns. In contexts where the Fourth Amendment does require a

warrant, warrant applications must be considered by a “neutral and detached magistrate”

and not “a policeman or Government enforcement agent.” Johnson v. United States,

(1948). That neutral judicial officer determines whether probable cause exists,

free of any loyalty to law enforcement. Under § 1357(a), in contrast, an administrative

official within the Executive Branch issues the arrest warrant. Although this may offer

individuals some protection, it is substantially different from that guaranteed by the Fourth

7 Amendment’s warrant requirement. And it offers yet further evidence that judicial

suppression was decidedly not what Congress had in mind.

In sum, Congress has provided no suppression remedy for § 1357(a) infractions.

The Constitution does not provide a remedy because there has been no constitutional

violation. It would seem therefore that Santos-Portillo’s appeal is at an end.

B.

But no. Pointing to no positive-law authority for suppression, Santos-Portillo

nevertheless appeals to the judiciary’s alleged inherent power to devise remedies for

violations of the law by the government. His primary authority for this asserted judicial

supervisory power is McNabb v. United States,

(1943). There, the Supreme

Court excluded confessions from bootleggers who had been arrested, confined without

counsel, and questioned for two days, all in violation of a federal statute requiring prompt

delivery of arrestees to a judicial officer. The Court reasoned that it had the power and

responsibility to ensure “civilized standards of procedure and evidence” in the federal

courts, and that the “principles governing the admissibility of evidence in federal criminal

trials have not been restricted, therefore, to those derived solely from the Constitution.”

.

As Santos-Portillo points out, McNabb did not identify a positive-law source of

authority for its decision. McNabb is not unique from that period of the Supreme Court’s

history, in which “the Court assumed it to be a proper judicial function to ‘provide such

remedies as are necessary to make effective’ a statute’s purpose.” Ziglar v. Abbasi,

(2017) (quoting J.I. Case Co. v. Borak,

(1964)). For

8 example, the Court repeatedly implied private causes of action for violations of federal

statutes that did not, by their terms, grant private parties permission to sue. See, e.g., Borak,

.

But the winds have changed. Gone are the “heady days in which [the courts]

assumed common-law powers to create causes of action” and other remedies. Correctional

Servs. Corp. v. Malesko,

(2001) (Scalia, J., concurring). The Court has

come to recognize that the creation of remedies for violations of federal statutes is generally

a legislative power, not a judicial one. Hernandez,

(“[A] federal court’s

authority to recognize damages remedies must rest at bottom on a statute enacted by

Congress.”). In the process, it has disavowed earlier cases from the period in which

McNabb was decided, pointedly referring to those cases as being a part of the “ancien

regime.” Alexander v. Sandoval,

(2001). Thus, the once freewheeling

power of the federal courts to create remedies where Congress did not has met only disfavor

from the Court itself.

It is therefore unsurprising that the Supreme Court refused to extend McNabb in the

one modern case in which it considered the question. In Sanchez-Llamas v. Oregon,

(2006), officials arrested and interrogated a foreign national without informing

him, as required under the Vienna Convention, that he could ask for the Mexican Consulate

to be notified of his detention.

. The Court cited the “high cost” of the

exclusionary rule and noted it had historically “applied the exclusionary rule primarily to

deter constitutional violations.”

(emphasis added). The Court went on to explain

that in the “few cases in which [it had] suppressed evidence for statutory violations,” the

9 “excluded evidence arose directly out of statutory violations that implicated important

Fourth and Fifth Amendment interests.”

. Because the provision of the Vienna

Convention requiring consular notification was only “remotely connected to the gathering

of evidence,” the Court declined to suppress the evidence.

.

Sanchez-Llamas makes clear that the range of cases where courts can on their own

suppress evidence for a statutory violation is quite limited. In a recent case limiting the

scope of the suppression remedy for constitutional violations, the Court has expressed

concerns about the “costs” of the exclusionary rule and stated that “exclusion has always

been our last resort, not our first impulse.” Herring v. United States,

(2009). (internal quotation marks and quotation omitted). In a subsequent case again

limiting the exclusionary rule, the Court explained that “[e]xclusion exacts a heavy toll on

both the judicial system and society at large” because it “almost always requires courts to

ignore reliable, trustworthy evidence bearing on guilt or innocence.” Davis. v. United

States,

(2011).

Our sister circuits have had no difficulty discerning the Supreme Court’s direction.

Several have declined to suppress evidence obtained in violation of § 1357(a). As the First

Circuit explained, “a statutory violation untethered to the abridgment of constitutional

rights is insufficient to justify suppression.” United States v. De La Cruz,

(1st

Cir. 2016) (internal quotation marks and citation omitted). Or as the Sixth Circuit held:

“Although exclusion is the proper remedy for some violations of the Fourth Amendment,

there is no exclusionary rule generally applicable to statutory violations.” United States v.

10 Abdi,

(6th Cir. 2006). We find these authorities persuasive and decline

to create a circuit split.

Our friend in dissent sees things differently, arguing that we should create a new

rule of evidence as a matter of our “supervisory authority.” But the cases relied upon by

the dissent establish only the unremarkable proposition that courts have traditionally had

the power to regulate proceedings inside the courtroom. See Young v. United States ex rel.

Vuitton Et Fils S.A.,

(1987) (contempt); Ristaino v. Ross,

,

597 n.9 (1976) (voir dire). The dissent proposes a regime to regulate behavior outside the

courtroom by creating rules of evidence at odds with congressional intent. This is a

remarkable assertion of power, one that fails to set forth any discernible limit that would

prevent the power from being put to boundless use. “[T]here is a danger of overreaching

when one branch of the Government, without benefit of cooperation or correction from the

others, undertakes to define its own authority.” Degan v. United States,

(1996). In that spirit, we see a stark difference between the judiciary’s traditional power to

regulate a courtroom proceeding and the dissent’s proposed power to refashion Congress’s

remedial schemes. Moreover, Congress has established a procedure for creating

evidentiary rules; claiming that courts can create their own “suggest[s] that those who

struggled so long and hard for the Rules Enabling Act of 1934 were wasting their time

because the Court could have proceeded without congressional authorization . . .” Stephen

B. Burbank, Procedure, Politics, and Power: The Role of Congress,

, 1688 (2004). Even more to the point: Congress chose not to prescribe

11 suppression for violations of § 1357(a). Suppressing evidence contrary to that choice

cannot be a proper use of the judiciary’s inherent powers.

C.

Santos-Portillo alleges, however, that courts can suppress evidence in cases of

“egregious” or “flagrant” law enforcement behavior. This standard is vague and open-

ended. It invites litigiousness. And it fails on its own terms. This case features a perfectly

lawful arrest. Agent Swivel did not break into Santos-Portillo’s home. He had airtight

probable cause to proceed. Mitigating the chance of mistaken identity, Agent Swivel did

the background work. He confirmed appellant’s previous conviction, his prior deportation,

and his subsequent reentry. He got Santos-Portillo to confirm his identity and country of

origin before arresting him. And while appellant contends that the violation of § 1357(a)

here implicates important Fourth Amendment interests, “the likelihood of the person

escaping” does not affect that Amendment’s core requirement of probable cause.

Santos-Portillo also alleges on appeal that there is widespread disregard of §

1357(a)’s arrest warrant requirement by immigration officials. But Santos-Portillo only

raised this issue in a cursory fashion before the magistrate judge and district court. He did

not present or solicit evidence on this issue at the hearing before the magistrate judge. He

relies instead upon snippets of testimony from Agent Swivel and another agent brought out

in cross-examination. Even assuming that an agent does not secure an administrative arrest

warrant, that does not mean all or even most of those arrests were unlawful. Santos-Portillo

did not ask about and does not present evidence on other individual cases in which the

statute was allegedly violated. This alone is fatal because the statute does not require an

12 arrest warrant if there is a likelihood of flight. In many of those cases, the agents may have

had reason to fear the arrestee would flee. In short, there is before us no evidentiary

foundation for appellant’s “widespread disregard” claim.

Finally, Santos-Portillo urges us to suppress to maintain the integrity of § 1357(a).

How, he asks, can this provision mean anything if there are no consequences when it is

violated? First of all, we are not convinced that meaninglessness is the sole alternative to a

judicial suppression remedy. The United States is a nation of laws, and we are not prepared

to summarily dismiss the prospect that government officials will generally take statutory

commands seriously, whatever the remedial scheme. Internal disciplinary proceedings

often take cognizance of any expression on Congress’s part. See Ronald J. Allen et. al.,

Criminal Procedure Investigation and Right to Counsel 344-45 (3d ed. 2016) (arguing that

pressure from the public and elected officials will encourage good behavior by law

enforcement). If DHS agents routinely violate rules, they risk consequences, including the

potential loss of employment.

But more fundamentally, Congress has the power to pass laws without creating

specific legal consequences that flow from their violation. Congress is not prohibited by

Article III from passing advisory resolutions and standards. Such hortatory laws encourage

admirable behavior rather than mandate it by the threat of punishment. See Jacob E. Gersen

& Eric A. Posner, Soft Law: Lessons From Congressional Practice,

,

584-85 (2008). Hortatory laws have an ancient lineage. Laws encouraging good behavior

without threat of punishment existed in ancient Greece. See, e.g., Plato, Laws 151

(Benjamin Jowett trans. 2013) (endorsing the use of hortatory “prefaces” in laws so that

13 the citizens will be “as readily persuadable to virtue as possible”). Today, such laws are

ubiquitous in the federal statute books. See, e.g., Hawaii v. Office of Hawaiian Affairs,

(2009) (giving several examples of “conciliatory or precatory” statutory

provisions that do not create “substantive rights”). For example,

provides that

“[n]o disrespect should be shown to the flag of the United States,” and that the flag “should

not be dipped to any person or thing.” Further, “[a]ll private citizens . . . are encouraged to

recognize Parents’ Day.”

(b). Many ethical rules for lawyers are hortatory,

and yet there is fortunately evidence that they are complied with in spite of there being no

clear consequences for breaking them. See Fred C. Zacharias, Steroids and Legal Ethics

Codes: Are Lawyers Rational Actors,

, 703 (2010) (arguing

that “hortatory or generalized rules may sometimes make sense as a means for developing

a culture of introspection and generally moral behavior”).

What are we to make of this? We can draw from the long tradition and ubiquity of

hortatory laws at least the modest lesson that Congress is not required to deploy in any

statutory scheme the full panoply of remedies at its disposal. So it is here. Congress’s

undeniable power to repeal

(a) altogether implies its concomitant power to

make it more in the nature of a hortatory enactment. Or to put it another way, the fact that

Congress has decided not to incur the formidable costs of a judicial exclusionary remedy

does not make the passage of § 1357(a) any less legitimate or any less worthwhile.

14 IV.

Manufacturing a remedy in the course of creating a circuit split would be a dramatic

step. Whether we think a congressional remedial scheme is optimal cannot in the end be

dispositive. We are not lawmakers and must resist the temptation to behave as such.

Because the judiciary has “sworn off the habit of venturing beyond Congress’s intent,”

Sandoval,

, we cannot accept the invitation to refashion the handiwork of

Congress in this case.

The judgment of the district court is accordingly affirmed.

AFFIRMED

15 FLOYD, Circuit Judge, dissenting:

I agree with the majority that

does not create an exclusionary

remedy by statute and that the arresting agents did not violate the Constitution. My

disagreement with the majority is rooted in a difference in opinion over the locus of federal

courts’ exclusionary authority. Because I believe the majority too narrowly views federal

courts’ inherent authority to supervise the proceedings before them, I respectfully dissent.

* * *

The majority asserts that the supervisory authority relied on in McNabb v. United

States,

(1943), has lost its vitality, and has been cabined such that—

practically speaking—suppression is warranted only when (1) there is a constitutional

violation, or (2) it is explicitly provided for by statute. And because § 1357 evinces no

intent on the part of Congress to create an exclusionary rule, the majority argues that we

usurp Congress’s role by creating one. In reaching this conclusion, the majority situates

the exclusionary rule among other judicially crafted remedies—in particular, implied

causes of action—that have fallen into disfavor.

Under this reading of post-McNabb precedent, the case is a relic of a bygone era in

which federal courts often crafted remedies in the face of congressional silence. But

judicially implying a cause of action into a statute—thereby creating rights and imposing

external liabilities where none previously existed—is a different exercise of judicial

authority than imposing evidentiary sanctions. Previously, federal courts purported to

create implied causes of action either as an exercise of statutory interpretation as to a

16 statute’s remedial purpose or as an exercise of federal common law. See, e.g., J. I. Case

Co. v. Borak,

, 431–32 (1964); Tex. & Pac. Ry. Co. v. Rigsby,

(1916). The Supreme Court’s modern rejection of that doctrine emphasizes that federal

courts lack common-law powers, so the judicial branch cannot simply graft causes of action

onto substantive statutory law. See, e.g., Alexander v. Sandoval,

, 286–87

(2001). Of course, it is for Congress to create substantive law along with causes of action

to enforce that law. And I share the majority’s concern that federal courts should resist the

impulse to improve upon a statute or undercut its objectives.

But the authority of federal courts to order evidentiary suppression for statutory

violations does not turn on whether we can imply such a remedy into the statute—either as

an act of statutory interpretation or of federal common-law. The Supreme Court in

McNabb considered the violation by federal officials of the presentment statute. In

deciding that the violation in that case merited suppression, the Court declined to address

whether the officers’ actions independently violated the Constitution. McNabb,

. Nor did the Court consider whether the statute somehow implied an exclusionary

remedy. Rather, the Court located its power in the “supervisory authority over the

administration of criminal justice in the federal courts,”

, which tasks courts with

“establishing and maintaining civilized standards of procedure and evidence,”

.

Thus, supervisory authority is a power inherent to federal courts over the

proceedings before them. Our exercise of that authority does not invade the province of

the legislature in the same way as other judicially created remedies because it does not seek

to supplement or improve upon a statutory scheme, nor does its scope turn on a statute’s

17 purpose. Instead, supervisory authority seeks to govern the integrity of “the enforcement

of the federal criminal law in the federal courts.”

. Viewed as an exercise of

supervisory authority, suppression is merely an evidentiary remedy to deter government

reliance on illegally obtained evidence at trial. See, e.g., United States v. Payner,

(1980) (describing the rule as an “exclusionary sanction”); Herring v. United

States,

(2009) (“[T]he exclusionary rule is not an individual right . . . .”).

Accordingly, the question presented by this case is how far federal courts should

extend their supervisory authority over federal proceedings. For the reasons set forth

above, I do not share the majority’s view of Sanchez-Llamas v. Oregon,

(2006), as the natural culmination of a broader turn away from supervisory authority. In

the years following McNabb—and contemporary to the Supreme Court’s rejection of

implied causes of action—the Court continued to affirm its supervisory authority in a

variety of contexts. See, e.g., Young v. United States ex rel. Vuitton Et Fils S.A.,

(1987) (“The use of this Court’s supervisory authority has played a prominent

role in ensuring that contempt proceedings are conducted in a manner consistent with basic

notions of fairness.”); Ristaino v. Ross,

, 597 n.9 (1976) (holding that voir dire

concerning racial prejudice can be required as an exercise of supervisory authority); Bank

of N.S. v. United States,

(1988) (Scalia, J., concurring) (“I agree that

every United States court has an inherent supervisory authority over the proceedings

conducted before it.”).

“A federal court ‘may, within limits, formulate procedural rules not specifically

required by the Constitution or the Congress.’” Bank of N.S.,

(emphasis

18 added) (quoting United States v. Hasting,

(1983)). A core purpose of

supervisory authority is “to deter illegal conduct.” Hasting,

. And one way

of doing so is the exclusionary rule—although it should be applied with caution. See

Payner,

. As the majority notes, the Supreme Court has narrowed the

applicability of the exclusionary rule since McNabb, and it is not automatically applied to

any violation, constitutional or otherwise. See, e.g., Herring,

; United States

v. Caceres,

, 755–56 (1979). Instead, we ask whether suppression as an

exercise of supervisory authority “serves the ‘twofold’ purpose of deterring illegality and

protecting judicial integrity.” Payner,

n.8. And courts must always ask

whether exclusion’s deterrent benefits outweigh its social costs. Herring,

.

Sanchez-Llamas did not displace this balancing test. In that case, the Court held

that supervisory authority did not apply because the Court was reviewing state court

proceedings. 548 U.S. at 345–46. True, the Court observed that the exclusionary rule has

previously been applied to statutes that implicate constitutional interests. But it did so in

declining to imply that remedy into an international treaty.

at 347–48. The Court did

not thereby limit its understanding of its supervisory authority.

The Court’s language in Sanchez-Llamas creates a closer call as to whether a

standalone violation of § 1357(a) justifies suppression. Indeed, the Supreme Court has

declined in the past to craft a sweeping exclusionary remedy for violations of executive

regulations. See Caceres, 440 U.S. at 755–56. But the ultimate question is always the

balance of suppression’s benefits and harms. I would hold that systemic or repeated

violations of § 1357(a) could tip the balance in favor of the suppression remedy in a given

19 case. The questions of deterrence and culpability loom large in the Supreme Court’s

suppression jurisprudence. See, e.g., Herring,

. The Court has suggested

“recurring or systemic negligence” could trigger exclusion.

Similarly, we have

suggested that we would consider exclusion as an exercise of supervisory authority for

“severe official misconduct,” United States v. Neiswender,

(4th Cir.

1979), or “widespread or repeated [statutory] violations,” United States v. Walden,

(1974); see also United States v. Johnson,

(4th Cir. 2005);

United States v. Sanders,

(4th Cir. 2004) (per curiam).

Santos-Portillo presented compelling evidence of repeated violations in the face of

a plain statutory requirement. Indeed, the record reveals that at least one agent admitted to

routinely failing to secure arrest warrants, that five agents participated in this warrantless

arrest, and that this conduct was blessed by ICE counsel. And in a separate case in the

Eastern District of North Carolina, a similar, 2017 warrantless arrest was found to have

violated § 1357(a). United States v. Segura-Gomez, No. 4:17-CR-65-FL-1, U.S. Dist.

LEXIS 203189, at *1–8 (E.D.N.C. Nov. 30, 2018) (adopting the magistrate judge’s report

and recommendation that the arrest violated § 1357(a)). 1 Further, the evidence suggests

that one of the arresting agent’s primary motivations was to collect evidence for criminal

prosecution, not merely to enforce civil immigration laws. These are the sort of facts that

might justify the use of supervisory authority to prevent the criminal process from

1 For this reason, this case also differs from the standalone violations considered by the First and Sixth Circuits. See United States v. De La Cruz,

, 5–9 (1st Cir. 2016); United States v. Abdi,

, 555–57 (6th Cir. 2006).

20 implicitly endorsing repeated violations of § 1357 to obtain evidence. 2

Nor does this case present the same social costs typically at issue in the suppression

context. There is no risk that suppression would “set the criminal loose in the community.”

Davis v. United States,

(2011). Whatever the outcome of Santos-

Portillo’s criminal trial, he still faced removal. Thus, I respectfully disagree with the

majority’s contention that suppression in a federal criminal trial would undercut Congress’s

broader, civil immigration objectives. Although I do not decide how the district court

should have balanced the scales in this case, Santos-Portillo mustered enough evidence that

the district court should have contended with his argument as to the need to deter

widespread or repeated violations of § 1357(a). See James v. Jacobson,

(4th Cir. 1993) (noting that a failure to exercise discretion is itself an abuse of discretion).

For the foregoing reasons, I respectfully dissent.

2 I note also that this was a remarkably easy procedural safeguard for the arresting agent to comply with. The minimal burden imposed by the statute and its disregard with no suggestion of an exigency also weighs in favor of suppression.

21