Ortiz-Hernandez

The government charged defendant-ap-pellee Jose Luis Ortiz-Hernandez with illegally re-entering the United States in violation of 8 U.S.C. § 1326 (a) and (b)(2). The government also charged Ortiz-Hernandez with violating the terms of his supervised release from a prior federal drug conviction by this illegal reentry. The two proceedings were consolidated in the district court. The district court suppressed fingerprint evidence in both the criminal case and the supervised release proceeding. United States v. Ortiz-Hernandez, 276 F.Supp.2d 1113 (D.Or.2003). The district court then denied the government’s motion to compel new fingerprint exemplars in the criminal case. United States v. Ortiz-Hernandez, 276 F.Supp.2d 1119 (D.Or.2003).

The government appeals both the suppression orders and the denial of its motion to compel fingerprint exemplars. In Ortiz-Hernandez’s criminal case, we affirm the suppression order but reverse the denial of the government’s request to compel another set of fingerprint exemplars. In Ortiz-Hernandez’s supervised release ease, we dismiss the appeal based on United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir.2004).

I. Background

We rely for our factual…

dissenting:

I respectfully dissent from Part II.B of the panel’s opinion.

Detective Anderson of the Portland Police Department arrested and detained defendant Ortiz-Hernandez on a drug charge without probable cause. After taking Ortiz-Hernandez to the Multnomah County Justice Center in Portland, Detective Anderson did not pursue the drug charge. Rather, he systematically tried to find out whether Ortiz-Hernandez had violated the immigration laws. First, Detective Anderson ran the false names provided by Ortiz-Hernandez through various data bases without success. Second, Detective Anderson arranged for Ortiz-Hernandez to speak on the telephone with an INS agent. This interview produced no results. Finally, Detective Anderson took exemplars of Ortiz-Hernandez’s fingerprints. Armed with the fingerprints, he finally hit pay dirt. He discovered Ortizr-Hernan-dez’s true name and that he had violated the immigration laws.

We unanimously conclude that Detective Anderson took exemplars of Ortiz-Hernandez’s fingerprints for “investigatory purposes,” in violation of the Fourth Amendment. We therefore hold that the fingerprint exemplars cannot be introduced at trial. So far so good.

But…

I. Background

We rely for our factual narrative on the district court’s view of the evidence and on uncontroverted evidence in the record. See United States v. Vesikuru, 314 F.3d 1116, 1119 (9th Cir. 2002) (findings of fact underlying the district court’s ruling on a motion to suppress are reviewed for clear error). Most of the narrative is based on the testimony of Portland Police Bureau Detective Sergeant Dirk Anderson. The remainder is based largely on the testimony of Sergeant John Eckhart and Officer Jeffrey Becker.

Defendant-appellee Jose Luis Ortiz-Hernandez was arrested on November 12, 2002 in Portland, Oregon, by Detective Anderson on suspicion of drug dealing. Detective Anderson and his partner were eating lunch at a McDonald’s restaurant in Portland when they saw the defendant and another man, later identified as Selmo Valenzuela, walking north on 82nd Avenue from Stark Street. Detective Anderson testified that he “believed” Ortiz-Hernandez was wearing a “purple shirt or sweatshirt of some type.” Several minutes later, Detective Anderson thought he saw the same two men UNITED STATES v. ORTIZ-HERNANDEZ 14805 drive past the McDonald’s in a red Toyota 4-Runner.…