United States v. Santos-Portillo

997 F.3d 159

UNITED STATES of America, Plaintiff – Appellee,

v.Marcio SANTOS-PORTILLO, Defendant - Appellant.

No. 20-4159

United States Court of Appeals, Fourth Circuit.

Argued: March 10, 2021

Decided: May 7, 2021

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.

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.

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 8 U.S.C. § 1357(a). That arrest produced the evidence that led to Santos-Portillo's present conviction for illegal reentry into the United States under 8 U.S.C. § 1326(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 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 8 U.S.C. § 1326(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 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 8 U.S.C. § 1357(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 8 U.S.C. § 1357(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 8 U.S.C. § 1357(a) did in fact apply to the arrest. See United States v. Santos-Portillo , No. 7-18-CR-10-1H, 2019 WL 3047427 (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. Id. 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. Id.¹ However, the magistrate judge recommended denying the 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 8 U.S.C. § 1357(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. , 8 U.S.C. § 1227 (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. 8 U.S.C. § 1326 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 apply 8 U.S.C. § 1357(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 , ––– U.S. ––––, 140 S. Ct. 735, 742, 206 L.Ed.2d 29 (2020). There is absolutely no statutory basis for Santos-Portillo's argument that we should suppress the evidence against him. 8 U.S.C. § 1357(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 , 429 U.S. 413, 432 n.22, 97 S.Ct. 658, 50 L.Ed.2d 652 (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 Mapp v. Ohio , 367 U.S. 643, 657, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The exclusionary rule was deemed necessary to avoid the contamination of court proceedings with unconstitutionally gathered evidence. See id. at 659, 81 S.Ct. 1684. 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 , 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). And the Court has specifically upheld a warrantless arrest with...