Ortiz-Hernandez

I. Introduction

The majority in this case adopts a misreading of INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), that our circuit squarely rejected in United States v. Garcia-Beltran, 389 F.3d 864 (9th Cir. 2004), and that is in direct conflict with the lan- guage of Lopez-Mendoza itself. In so doing, the majority evis- cerates, for all practical purposes, the exclusionary rule’s application to fingerprint evidence, and encourages question- able police practices. I respectfully dissent from my col- leagues’ decision not to rehear this case en banc.

Jose Luis Ortiz-Hernandez was arrested by Portland, Ore- gon officers on suspicion of drug-related activity. Those charges were later dropped, and Ortiz-Hernandez was indicted under 8 U.S.C. § 1326 for illegal reentry. In the § 1326 case, the district court suppressed fingerprint evidence taken in vio- lation of Ortiz-Hernandez’s Fourth Amendment rights and denied the Government’s motion to compel a second set of fingerprint exemplars. The Government appealed the district court’s denial of that motion to our court.

There is but one issue in dispute in this case. All members of the three-judge panel affirmed the district court’s ruling…