The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. In criminal cases, evidence discovered during an unreasonable search or seizure, such as during a warrantless arrest, can be suppressed in court. However, in civil cases, this “exclusionary rule” is generally not available.

The American legal system views immigration law proceedings civil matters. This was determined by the Supreme Court in the decision INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). Because of this, the exclusionary rule usually cannot be used by respondents in immigration proceedings, even if the government discovered information about them in an illegal way. Fortunately, the Supreme Court carved out a narrow exception in Lopez-Mendoza for immigration proceedings: if the violation is “egregious,” then respondents have the opportunity to make a motion to suppress the evidence obtained as a direct result of that egregious violation of the law.

Some circuit courts of appeal interpret this standard broadly. Here in the Eighth Circuit, however, the standard is construed very narrowly. The Eighth Circuit uses a “totality of the circumstances” test to determine whether a violation is egregious. Carcamo v. Holder, 713 F.3d 916, 923 (8th Cir. 2013). Examples of egregious conduct in the Eighth Circuit include: unreasonable force during arrest, detention of an individual based on his race or appearance, and detention of an individual without any articulable suspicion. Puc-Ruiz v. Holder, 629 F.3d 771, 779 (8th Cir. 2010).

The Eighth Circuit has denied motions to suppress in a few recent cases that indicate the narrowness of our circuit’s standard. In Carcamo v. Holder, officers arrested the respondent after they entered his home at 6:00am without a warrant or consent. The officers searched the home, took a man’s cell phone away from him while he was trying to use it, and pulled the blankets off a man who was sleeping in his bed. The Eighth Circuit held that none of this amounted to an egregious Fourth Amendment violation, even if the officers did make a warrantless entry into the home. Thus, the Court denied the motion to suppress the evidence obtained during the search.

In Lopez-Fernandez v. Holder, 735 F.3d 1043 (8th Cir. 2013), the Eighth Circuit again upheld a denial of a motion to suppress. There, the officers went to the respondent’s home based on a named informant’s tip, so the officers had some amount of “articulable suspicion.” Furthermore, the respondent opened the door when the officers knocked, and the entry occurred in the morning, when the people in the house were already awake. The Court found that there was no egregious Fourth Amendment violation.

Finally, in Chavez-Castillo v. Holder, 771 F.3d 1081 (8th Cir. 2014), the Eighth Circuit denied the motion to suppress. An officer stopped the respondent for speeding, and also charged him with driving without a license. The respondent argued that the officer stopped him only on the basis of race, but the Court found that this allegation was not supported by the record, which contained the affidavit of probable cause written by the officer regarding the respondent’s speed of nine miles per hour over the speed limit. Thus, the Court did not find an egregious violation of the Fourth Amendment.

The Eighth Circuit’s standard may seem too narrow to allow for adequate relief from Fourth Amendment violations in immigration proceedings, based on the cases above. However, the Court has delineated three specific instances where there may be an egregious violation—(1) unreasonable force during arrest; (2) detention of an individual based on his race or appearance; and (3) detention of an individual without any articulable suspicion.

If USICE has arrested you or a loved one stareted immigration proceedings, and you think your arrest may have fallen in one of these three categories, please call us today.