Thursday, March 17, 2011

Ortiz-Hernandez Flashback

Back in 2005, the Ninth Circuit reversed the grant of a suppression motion in an illegal reentry case in Ortiz-Hernandez. The district court had found that the stop was racially based and lacked probable cause (276 F.Supp. 2d 1119). Nevertheless, the appellate court reversed in a split decision. The court denied rehearing en banc, with nine judges dissenting, as set out here. The dissenters pointed out that the refusal to apply the exclusionary rule to identity information was inconsistent with Supreme Court authority suppressing fingerprint evidence and conflated the case law barring suppression of the body -- illegal seizure of the person requires suppression of the products of the search but does not immunize the individual from appearance in court. Turns out that this same issue will be argued in the Supreme Court next week in a non-1326 context, as reported here by SCOTUS blog. We'll need to watch for the Supreme Court's decision in Tolentino to see if Ortiz-Hernandez remains good law.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


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