Judge allows prosecution despite DeKalb cops’ illegal search (Atlanta Journal-Constitution)

Judge allows prosecution despite DeKalb cops’ illegal search

By BILL RANKIN

The Atlanta Journal-Constitution

Tuesday, February 03, 2009

Federal agents may have illegally obtained a DeKalb County man’s identity, but that does not stop them from prosecuting him for immigration violations, the federal appeals court ruled Monday.

The 11th U.S. Circuit Court of Appeals turned aside arguments that the precedent could lead to rampant search-and-seizure violations against members of Atlanta’s immigrant community.

The appeal was raised by Jose Farias-Gonzalez, who entered a guilty plea in January 2008 to illegally re-entering the country after being deported. He is serving a 57-month sentence.

In 2006, two U.S. Immigration and Customs Enforcement agents patrolling an apartment complex saw Farias-Gonzalez working on his car. The agents thought Farias-Gonzalez’s tattoos and haircut were similar to those worn by Hispanic gang members. The agents parked close by, identified themselves and asked Farias-Gonzalez whether he was a member of a gang.

After Farias-Gonzalez said he wasn’t, one officer lifted Farias-Gonzalez’s shirt sleeve to determine if he had any more tattoos.

Farias-Gonzalez later gave the agents a false ID, allowed them to take photos of his tattoos and let them take his fingerprints on a portable electronic fingerprint device. The machine identified Farias-Gonzalez and showed he had previously been deported.

A federal judge in Atlanta ruled that the agent’s lifting of Farias-Gonzalez’s shirt sleeve was an unreasonable search. Farias-Gonzalez had a reasonable expectation of privacy in the areas of his body covered by clothing, the judge said.

This illegal search, among other actions by the agents, would have made Farias-Gonzalez feel he was not free to leave the scene before the agents questioned him further, the judge said.

On appeal, the 11th Circuit said it assumed for the sake of argument that the agents conducted an illegal search. Even so, the appeals court said, the social cost of excluding Farias-Gonzalez’s identity was too great. It would allow him to continue to stay in the United States illegally and prevent any court from knowing if he had a criminal past, the court said.

“Both the court and the government are entitled to know who the defendant is, since permitting a defendant to hide who he is would undermine the administration of the criminal justice system,” said Judge Emmet Cox, writing for a unanimous three-judge panel.

As for the possibility of whether such a decision would lead agents to conduct illegal searches to gather identity evidence, the threat of civil lawsuits should deter officers from this conduct, Cox wrote.