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Frimmel Management, LLC v. United States

United States Court of Appeals, Ninth Circuit

July 26, 2018

Frimmel Management, LLC, Petitioner,
v.
United States of America; U.S. Department of Homeland Security; Immigration and Customs Enforcement, Respondents.

          Argued and Submitted April 10, 2018 San Francisco, California

          On Petition for Review of an Order of the Department of Homeland Security DHS-1 OCAHO Case No. 15A00073

          Andrew S. Jacob (argued), Gordon Rees Scully Mansukhani, LLP, Phoenix, Arizona, for Petitioner.

          Andrew N. O'Malley (argued), Senior Litigation Counsel; Surell Brady, Trial Attorney; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondents.

          Before: Dorothy W. Nelson, William A. Fletcher, and Raymond C. Fisher, Circuit Judges.

         SUMMARY [*]

         Immigration/Employment Verification

         The panel granted a petition for review of an Administrative Law Judge's final decision and order in a proceeding before the Office of the Chief Administrative Hearing Officer of the Executive Office for Immigration Review declining to suppress employment records Immigration and Customs Enforcement obtained through an investigation of Frimmel's compliance with employment verification requirements.

         ICE initiated an investigation of Frimmel after the Maricopa County Sheriff's Office ("MCSO"), under Sheriff Joe Arpaio, conducted illegal raids of two restaurants and the home of Bret Frimmel, owner of Frimmel Management. MCSO later e-mailed a Shift Summary to ICE, and issued press releases revealing the results of the raids.

         The panel explained that, even in administrative proceedings in which the exclusionary rule does not ordinarily apply, 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. The panel noted that Frimmel was not arguing for suppression of its identity, but rather suppression of the evidence ICE obtained when ICE conducted an audit after MCSO issued press releases and sent ICE an e-mail with its Shift Summary.

         The panel held that omissions and distortions in MCSO's search warrant affidavits violated the Fourth Amendment, and because a reasonable officer should have known the conduct was unconstitutional, the violation was egregious. The panel also concluded that ICE's evidence was the fruit of MCSO's unlawful search.

         In considering whether the attenuation doctrine applied as an exception to the exclusionary rule, the panel considered temporal proximity, and noted that the ICE investigation closely followed the unconstitutional search. The panel also considered whether there were intervening circumstances that purged the taint of the unlawful search, and concluded that the ICE investigation was not an intervening circumstance, rather, it was itself a direct result of MCSO's earlier unlawful search, and based on MCSO's communication to ICE and publicizing of the raid, the ICE investigation was precisely what MCSO intended. The panel also concluded that MCSO's conduct was flagrantly illegal, and that MCSO had immigration enforcement as its primary zone of interest. The panel held that ICE's investigation was therefore not attenuated from MCSO's illegal raid.

         The panel concluded that application of the exclusionary rule would serve to deter MCSO from Fourth Amendment violations by the probability that illegally obtained evidence would not be useful to ICE, even in a civil proceeding.

         The panel reversed the ALJ's ruling denying suppression of ICE's evidence pursuant to the exclusionary rule, and remanded for further proceedings.

          OPINION

          D.W. NELSON, SENIOR CIRCUIT JUDGE

         OVERVIEW

         Frimmel Management, LLC ("Frimmel") seeks review of the Administrative Law Judge's ("ALJ") final decision and order declining to suppress employment records Immigration and Customs Enforcement ("ICE") obtained through an investigation of Frimmel's compliance with employment verification requirements. ICE initiated the investigation after the Maricopa County Sheriff's Office ("MCSO"), under Sheriff Joe Arpaio, conducted illegal raids of two restaurants and the home of Bret Frimmel, owner of Frimmel Management. MCSO later e-mailed a Shift Summary to ICE and also issued press releases revealing the results of the raids. We GRANT the petition for review, REVERSE the ALJ's ruling that ICE's evidence in the civil proceedings should not be suppressed pursuant to the exclusionary rule, VACATE the judgment, and REMAND.

         BACKGROUND

         I. State Court Suppresses MCSO's Evidence

         On July 17, 2013, MCSO, under Sheriff Joe Arpaio, raided two Uncle Sam's restaurant locations, where Frimmel Management leased employees, and the home of Bret Frimmel, owner of Frimmel Management. MCSO deputies seized employment records based on suspicion that the restaurants hired people who committed identity theft and forgery to obtain employment at Uncle Sam's.

         The State of Arizona then prosecuted Frimmel for violating Arizona's identity theft laws. At an evidentiary hearing, the Maricopa County Superior Court found that eight omissions and distortions in the affidavits that supported the search warrant for the raids were "unreasonable and reckless." After reforming the affidavits, the state court held that there was no probable cause to support the warrants and dismissed the criminal charges against Frimmel.

         II. ICE Audit of Frimmel and Administrative Proceedings

         On July 18, 2013, the day after MCSO conducted the raids, MCSO sent various ICE officials, including ICE Auditor Ryan Miller, a Shift Summary reporting the results of the unlawful search. On July 17, 2013 and July 18, 2013, MCSO issued a press release publicizing the raids and ...


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