United States v. Jose Luis Ortiz-Hernandez

join, dissenting from denial of rehearing en banc:

I. Introduction

The majority in this case adopts a misreading of INS v. Lopez-Mendoza, 468 U.S. 1032 , 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1984), that our circuit squarely rejected in United States v. Garciar-Beltran, 389 F.3d 864 (9th Cir.2004), and that is in direct conflict with the language of Lopez-Mendoza itself. In so doing, the majority eviscerates, for all practical purposes, the exclusionary rule’s application to fingerprint evidence, and encourages questionable police practices. I respectfully dissent from my colleagues’ decision not to rehear this case en banc.

Jose Luis Ortiz-Hernandez was arrested by Portland, Oregon 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 violation 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.…

ORDER

Judges Reavley and Tallman have voted to deny the petition for panel rehearing; Judge Tallman has voted to deny the petition for rehearing en bane and Judge Reavley so recommends. Judge W. Fletcher has voted to grant the petition for panel rehearing and the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

441 F.3d 1061 UNITED STATES of America, Plaintiff-Appellant, v. Jose Luis ORTIZ-HERNANDEZ, Defendant-Appellee. No. 03-30355. No. 03-30371. No. 03-30356. United States Court of Appeals, Ninth Circuit. March 30, 2006. Kent S. Robinson, AUSA, Office of the U.S. Attorney, Portland, OR, for Plaintiff-Appellant. Stephen R. Sady, Esq., Paul Papak Fax, Federal Public Defender'S Office, Portland, OR, for Defendant-Appellee. Before THOMAS M. REAVLEY, * WILLIAM A. FLETCHER, and RICHARD C. TALLMAN, Circuit Judges. ORDER 1 Judges Reavley and Tallman have voted to deny the petition for panel rehearing; Judge Tallman has voted to deny the petition for rehearing en banc and Judge Reavley so recommends. Judge W. Fletcher has voted to grant the petition for panel rehearing and the petition for rehearing en banc. 2 The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. 35. 3 The petition for panel rehearing and the petition for rehearing en banc are denied. 4 PAEZ, Circuit Judge, with whom…