In Oliva-Ramos v. Attorney General of the U.S., --- F.3d ----, 2012 WL 4017478 (3d Cir. Sept 13, 2012), an appeal from an order of removal and denial of the petitioner’s motion to reopen the proceedings, the Third Circuit remanded for proceedings to determine whether a 4:30 a.m. ICE raid into an apartment, with five or six armed officers, violated the Fourth Amendment and similar regulatory provisions.
The officers presented an administrative arrest warrant for one person at the apartment of her sister. The subject of the warrant was not home, but the officers, with questionable consent by the sister, entered the apartment, woke everyone inside, questioned them, blocked their exit, kept them sitting down, and eventually arrested anyone who could not document he was legally present in the United States.
The arrestees were handcuffed, placed in a van, and driven to other locations, while agents conducted more raids and filled the van with more people. An immigration judge ordered Oliva-Ramos’ removal and the BIA affirmed. While on appeal to the BIA, Oliva-Ramos submitted additional documentation, obtained through a FOIA request by a law school clinic, to support his argument that the team that conducted the raid engaged in a consistent pattern of constitutional violations.
Although, in the immigration context, the exclusionary rule is only applicable where constitutional violations are “egregious” or “widespread,” the Third Circuit collected useful guiding principles to analyze if a defendant can document a pattern of improper conduct, including whether there were intentional violations of the Fourth Amendment, the seizure was gross or unreasonable and without plausible legal ground (e.g., initial stop is unusually lengthy, unnecessary and menacing use of show of force), there was illegal entry of homes, arrests occurred under threats, coercion, or physical abuse, and any seizures or arrests were based on race or perceived ethnicity.
The Court remanded for consideration of these factors. The Court also remanded for a better record of whether, under the totality of the circumstances, consent was voluntarily given. Factors to consider included: the setting, the parties' verbal and non-verbal actions, the number of officers and displays of force, the age, education, and intelligence of subject, whether the subject was advised of her constitutional rights, the length of the encounter, the repetition and duration of questioning, and the use of physical punishment.