In a case of first impression for the circuit, the Fourth Circuit determined that the exclusionary rule should apply in immigration proceedings where the non-citizen can show an egregious violation of the Fourth Amendment by government officials.  The court defined an egregious violation as: (1) a violation of the Fourth Amendment that transgresses notions of fundamental fairness; or (2) a violation of the Fourth Amendment that, regardless of the violation’s unfairness, undermines the probative value of the challenged evidence.  

The court adopted the "totality of the circumstances" test (already employed by the Second, Third, and Eighth Circuits) for evaluating whether a Fourth Amendment violation is egregious.  Factors to be considered under this test include (but are not limited to): (1) whether the Fourth Amendment violation was intentional; (2) whether the violation was unreasonable in addition to being illegal; (3) whether there were threats, coercion, physical abuse, promises, or an unreasonable show of force by the law enforcement officers; (4) whether there was no articulable suspicion for the search or seizure whatsoever; (5) where, when, and how the search, seizure or questioning took place; (6) whether the search, seizure, or questioning was particularly lengthy; (7) whether the law enforcement officers procured an arrest or search warrant; (8) any unique characteristics of the alien involved; and (9) whether the violation was based on racial considerations. 

Those of us who litigate in the Ninth Circuit will surprised to know that we've got it easy: "The Ninth Circuit’s approach requires a suppression hearing any time an alien alleges that the law enforcement officers acted in bad faith.  This sets the evidentiary proffer bar too low." 

In the instant case, the non-citizen alleged three Fourth Amendment violations: (1) the search warrant was invalid because it identified the premises as a single-family home when it was, in fact, a multi-unit dwelling; (2) once the agents entered the [remises, they should have realized that the Premises was a multi-unit dwelling, and, at that point, they should have stopped the search immediately because the warrant was overbroad; (3) the ICE agents were required to list her as an item to be seized in the warrant.  The Fourth Circuit determined that these allegations did "not make out a constitutional violation, let alone an egregious one."  

The non-citizen also alleged that the warrant only allowed the search to be performed between 10 am and 6 pm, but the officers executed the warrant at 5 am.  The court concluded that "the nighttime execution of a daytime warrant violates the Fourth Amendment, absent consent or exigent circumstances."  Despite finding that the officers violated the Fourth Amendment by executing the warrant before 6 am, the court found that the presence of a valid search warrant supported by probable cause negated the severity of the violation.  "If law enforcement officers do not attempt to secure a valid warrant supported by a magistrate judge’s probable cause finding . . . their conduct is more egregious than law enforcement officers who take the time to prepare a valid warrant and present it to a magistrate judge for a probable cause finding.  In the latter case, the law enforcement officers’ conduct is less offensive--they have sought and received authorization for a privacy interest invasion--while in the former case, the law enforcement officers’ conduct borders on abhorrent, which renders the intrusion more severe and, hence, egregious."

Finally, the non-citizen argued "that her statements to the ICE agents were involuntary and, thus, were used against her in violation of her rights under the Due Process Clause of the Fifth Amendment."  The court concluded that she "did not submit evidence of promises, prolonged questioning, interference with her right to counsel, or other indicia of coercion or duress that might suggest that her statements were involuntary, and she was never handcuffed during the entire episode," and thus, she had not established a violation of her right to due process. 

The decision contains a very thorough historical analysis of the caselaw addressing suppression in an immigration context (including case law from several different circuits), and is worth the read for any attorney wanting to refresh their knowledge on the topic.

The very long (92 pages!) decision in Yanez-Marquez v. Lynch can be found here: