Petition for Review of an Order of the Board of Immigration Appeals. INS No. A27 577 789.
Before: Stephen Reinhardt and Edward Leavy, Circuit Judges, and Linda Hodge McLaughlin,*fn* District Judge.
REINHARDT, Circuit Judge:
This case concerns the application of the rule that evidence obtained as a result of an "egregious violation" of the Fourth Amendment must be suppressed in administrative proceedings. See Gonzalez-Rivera v. I.N.S., 22 F.3d 1441 (9th Cir. 1994); Adamson v. C.I.R., 745 F.2d 541 (9th Cir. 1984). Jacob Ikperha Orhorhaghe, a Nigerian citizen, petitions for review of the decision of the Board of Immigration Appeals which ordered him deported for overstaying his visa. See 8 U.S.C. § 1251 (a)(2) (1988). He claims that the BIA erred in reversing the Immigration Judge's decision to suppress a passport and Form I-94 (Arrival/Departure Record) that were seized in an egregious violation of his rights. We agree. Accordingly, we grant the petition and reverse and remand.
In June of 1986, Michael Smirnoff, an investigator for the Immigration and Naturalization Service, received a call from a professional acquaintance, Karen Muth. Muth worked for the Bank of America, investigating credit card frauds. She had investigated a number of frauds perpetrated by Nigerian nationals, and she was "in the habit" of calling Smirnoff "everytime she [came] across a Nigerian-sounding name and asking [Smirnoff] to verify" whether the individual in question was in the country legally. This time, the "Nigerian-sounding name" belonged to Orhorhaghe.
A check of the INS computer system turned up no record of Orhorhaghe's lawful entry into the United States. Although the relevant computer system apparently did not contain records of entry prior to January 1, 1983, and Orhorhaghe had in fact entered the country legally prior to that date, Smirnoff testified that, based on his experience, Orhorhaghe "was probably an alien, was probably Nigerian, and that he was probably illegally in the United States in the absence of anything to indicate that he was here legally."
Smirnoff decided to investigate. He assembled a team of four agents: himself, Muth, INS Agent James Christenson, and Sergeant Cleaves of the Oakland Police Department. On the morning of June 20, 1986, this team went to Orhorhaghe's apartment building. Earlier that same morning, Muth had telephoned Orhorhaghe and asked if she could meet with him regarding the alleged credit card scheme. At the building, Muth called Orhorhaghe's apartment on the building's security system. When he asked who was there, she announced only herself.
Orhorhaghe told Muth that he would come down and let her in, but before he made it down the three flights from his apartment a man (who later identified himself as the building manager) let in the entire group. When Orhorhaghe arrived downstairs and introduced himself to Muth, the others immediately walked over, and Agent Smirnoff identified himself and showed his badge. Smirnoff testified that Orhorhaghe's "eyes got as big as saucers." Although Smirnoff denied that the agents surrounded Orhorhaghe, there is no serious dispute that they narrowed his avenues of potential escape within the apartment hallway.
After putting his hand on his hip - something he says he did not do "merely to reveal the fact that I was carrying a gun" - Smirnoff told Orhorhaghe words to the effect of "Let's go into your apartment." The agents then followed Orhorhaghe upstairs to his apartment. At the doorway of the apartment, Orhorhaghe asked the four agents if they had a warrant, in response to which Smirnoff told him "that we didn't need a warrant to talk to him." Smirnoff then, somewhat redundantly, asked if the agents could come into the apartment. Orhorhaghe replied "come in," and the agents entered the apartment.
In the apartment, the agents questioned Orhorhaghe. In response to the agents' questioning, he told them that he was a Nigerian citizen. However, he claimed to have lawful immigration status in the United States. Smirnoff asked whether he had a passport, and Orhorhaghe said that he had lost it. He told the agents that he possessed a police report which would explain the loss of the passport. Although Orhorhaghe did not tell the officers where the police report was, he headed toward the rear bedroom.
The agents followed. In the bedroom, Orhorhaghe found a briefcase. He opened it briefly, looked through the contents, and quickly closed it. He told the officers that he could not find the police report. During the moment that the briefcase was open, Smirnoff saw what looked like the green cover of a passport. He told Orhorhaghe to step back, and Orhorhaghe protested. Smirnoff testified that Orhorhaghe asked whether the officers had a warrant, and that he replied by asking "what that had to do with the price of tea in China." Smirnoff opened the briefcase and discovered Orhorhaghe's Nigerian passport. Orhorhaghe's INS Form I-94 was tucked inside the passport. These documents indicated that Orhorhaghe had entered on a tourist visa on October 13, 1982, and that this visa had expired on October 31, 1982, over three and a half years earlier. The agents arrested Orhorhaghe; a subsequent search of the apartment uncovered documents which indicated that he had attempted to obtain a California birth certificate.
An order to show cause issued, which charged that Orhorhaghe was subject to deportation under the former section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1988), "in that, after admission as a nonimmigrant under Section 101(a)(15) of said Act you have remained in the United States for a longer time than permitted." Deportation proceedings took place before an Immigration Judge on August 7 and November 14, 1986, as well as January 9, 1987. The Immigration Judge essentially bifurcated the proceedings. He stated that the proceedings would focus exclusively on the question of deportability. Only if he concluded that Orhorhaghe was deportable would he then entertain any application for relief from deportation. Orhorhaghe denied deportability and filed a motion to suppress all fruits of the June 20 encounter in his apartment building.
On January 9, 1987, the Immigration Judge rendered his decision. He first granted Orhorhaghe's motion to suppress. He found that Smirnoff's search of the briefcase did not satisfy the requirements of the plain view doctrine and therefore constituted an egregious violation of the Fourth Amendment. Because all of the evidence which showed that Orhorhaghe had overstayed his visa had been obtained as a result of this violation, the Immigration Judge found that the government had not carried its burden of proving that Orhorhaghe was deportable.
On September 21, 1992, the Board of Immigration Appeals reversed. It held that Smirnoff did not violate the Fourth Amendment at any point during the June 20 encounter at the apartment, and that, in any event, he did not commit any "egregious" violation warranting suppression of evidence. The BIA therefore ordered Orhorhaghe deported to Nigeria. On October 6, 1992, the INS filed a motion for reconsideration which pointed out that the BIA had failed to consider whether Orhorhaghe was eligible for relief from deportation. Accordingly, the BIA on November 10, 1992, ruled that he was ineligible - as a matter of discretion - for voluntary departure. The BIA made this ruling despite the fact that Orhorhaghe had not had an opportunity to apply for relief from deportation before the Immigration Judge and he had therefore not had any opportunity to introduce any evidence or arguments relevant to such an application. Orhorhaghe appeals both the finding of deportability and the denial of relief from deportation.
II. Egregious Fourth Amendment Violation
Orhorhaghe argues that Agent Smirnoff and his compatriots committed numerous egregious violations of his Fourth Amendment rights. Although we do not agree with all of his claims, we do conclude that the agents committed egregious violations by seizing Orhorhaghe outside of his apartment, and by conducting a nonconsensual warrantless entry into his apartment, in both instances on the basis of his Nigerian-sounding name. Accordingly, we agree that the BIA erred in reversing the Immigration Judge's grant of the motion to suppress.
In I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984), the Supreme Court held that the Fourth Amendment exclusionary rule does not apply in deportation proceedings. See id. at 1050. However, the Court expressly left open the possibility that the exclusionary rule might still apply in cases involving "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." Id. at 1050-51 (citing, inter alia, Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205 (1952); Matter of Toro, 17 I. & N. Dec. 340, 343 (1980)).*fn2
In Adamson, we took up the Supreme Court's suggestion. We held that, even in administrative proceedings in which the test announced in United States v. Janis, 428 U.S. 433, 49 L. Ed. 2d 1046, 96 S. Ct. 3021 (1976), (and applied in Lopez-Mendoza*fn3) eliminates the exclusionary rule, administrative tribunals are still required to exclude evidence that was "obtained by deliberate violations of the fourth amendment or by conduct a reasonable officer should know is in violation of the Constitution." Adamson, 745 F.2d at 545 (citing Lopez-Mendoza, 468 U.S. at 1050-51). Applying the same balancing test the Supreme Court had applied in Janis and Lopez-Mendoza, we held that when evidence is obtained by such an egregious violation of the Constitution, "the probative value of that evidence cannot outweigh the need for judicial sanction." Id. In Gonzalez-Rivera, 22 F.3d at 1448-52, we applied the "egregious violation" exception - suggested in Lopez-Mendoza and adopted in Adamson - to require the suppression of evidence in a civil deportation hearing.*fn4
Thus, although as a general matter the exclusionary rule does not apply in deportation (and some other types of administrative) hearings, under the clearly established law of this circuit evidence must be suppressed if it was obtained through an egregious violation of the Fourth Amendment. In order to determine whether the agents in this case committed such violations, we must first determine whether the agents violated the Fourth Amendment. If they did, then we must determine whether the agents committed the violations deliberately or by conduct a reasonable officer should have known would violate the Constitution.*fn5
Applying settled principles of Fourth Amendment law to the facts developed before the Immigration Judge, we conclude that Smirnoff and his fellow officers violated that Amendment in at least two respects. First, their contacts with Orhorhaghe inside the apartment building prior to entering his apartment constituted a "seizure" for which the agents did not have a sufficient articulable basis. Second, the agents conducted a warrantless entry into Orhorhaghe's apartment without securing his voluntary consent.*fn6
1. The Contacts Prior to Entering the Apartment - Law enforcement agents have the "liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away." Terry v. Ohio, 392 U.S. 1, 32-33, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) (Harlan, J., Concurring). However, agents are not free to restrain other people at will. When an encounter between a law officer and another person escalates to the point where it is considered a "seizure," the officer must have a reasonable, articulable basis for his actions. (See infra next section for a Discussion of this requirement). Thus, as an initial matter, we must determine whether the agents' conduct prior to entering Orhorhaghe's apartment constituted a "seizure" for purposes of the Fourth Amendment. We conclude that it did.
In Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991), the Supreme Court reaffirmed the established standard for determining when an encounter with law enforcement officers becomes a "seizure": "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" 111 S. Ct. at 2387 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988)); accord United States v. Anderson, 663 F.2d 934, 939 (9th Cir. 1981). The circumstances surrounding the agents' questioning of Orhorhaghe ...