Federal judge tosses Kansas immigration indictment (AP c/o Wichita Eagle)

Federal judge tosses Kansas immigration indictment
Posted on Tue, May. 24, 2011
By ROXANA HEGEMAN

WICHITA, Kan. - A federal judge on Tuesday dismissed charges against a man accused of falsely claiming U.S. citizenship in a case that upholds the right of immigrants to remain silent under questioning from immigration authorities.

U.S. District Judge Eric Melgren granted the government's motion to dismiss charges against Jose Manuel Ortiz-Del Rio with prejudice, meaning the same charges cannot be filed again.

Prosecutors had sought the dismissal in the wake of Melgren's ruling last month that suppressed statements Ortiz-Del Rio made during questioning by immigration agents. The agents had gone to an apartment in November to arrest another man for deportation proceedings after a drug trafficking conviction. The agents did not have a warrant.

The judge ruled in April that armed federal agents from Immigration and Customs Enforcement lacked reasonable suspicion when they detained Ortiz-Del Rio in what amounted to custodial questioning after happening to find him in the apartment. Melgren noted that Ortiz-Del Rio was ordered out of a bedroom, asked to sit on the floor and repeatedly questioned about where he was born.

Any responses Ortiz-Del Rio gave at the time - in the absence of the Miranda warning about self-incrimination - must be suppressed, Melgren ruled. He also said any subsequent statements the suspect made when taken to the ICE station for processing must also be suppressed as "fruit of the poisonous tree."

"In our view, the ruling in this case is based on a unique set of circumstances that are not likely to occur again in other cases," Jim Cross, spokesman for the U.S. attorney's office in Kansas, said in an email.

Assistant public defender Syovata Edari said the judge determined that the statement was the product of an "unconstitutional interrogation." She said in an email that her client's alleged statement was the sole basis for the charges in the superseding indictment.

"Since the statement was ordered suppressed the prosecution no longer had the evidence it needed to prove its case," Edari said.

None of the facts presented by the government established that authorities had reasonable suspicion to believe any person at the apartment other than the man they were seeking would be violating the law, Melgren wrote in his ruling.

"Moreover, the agents had no reason to suspect that Ortiz-Del Rio had committed or was in the process of committing a crime," the judge said. "Any indicia of a consensual encounter ended when Ortiz-Del Rio was questioned five times, a clear indication that the agent was rejecting his prior answers, and ordered to answer a question about his birth place orally."

Prosecutors noted in a filing earlier this month that even if the government moved to dismiss the criminal charges, Ortiz-Del Rio would go into ICE custody as his civil immigration case.