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Judicial Watch • Court Says Illegal Immigrant Search Legal

Court Says Illegal Immigrant Search Legal

Court Says Illegal Immigrant Search Legal

FEBRUARY 04, 2009

A federal appeals court has ruled that federal agents did not violate the law when they searched a suspected gang banger who gave them a fake identification card to conceal that he had been deported.

The illegal immigrant, Jose Farias-Gonzalez, pleaded guilty to illegally re-entering the country after being deported and is serving a 57-month prison sentence. He got busted by a pair of U.S. Immigration and Customs Enforcement agents patrolling an Atlanta-area apartment complex in 2006.

The agents quickly noticed that Farias-Gonzalez’s tattoos and haircut were similar to those worn by Hispanic gang members. Farias-Gonzalez denied belonging to any gangs and one federal officer lifted his shirt sleeve to determine if he had additional tattoos. 

The illegal immigrant proceeded to give the agents a false ID but the officers scanned his fingerprints on a portable electronic device, which revealed he had been deported. His pro bono advocate attorney claimed the agents violated protections against illegal search and seizure by lifting his shirt to see more tattoos.

A federal judge in Atlanta actually agreed with the assessment and ruled that the agents’ lifting of Farias-Gonzalez’s shirt sleeve was an illegal search because he had a reasonable expectation of privacy in areas of his body covered by clothing.

This week the U.S. Court of Appeals for the Eleventh Circuit said the federal agents were within the law when they checked Farias-Gonzalez, even though the three-judge panel assumed for the sake of argument that the agents conducted an illegal search. 

Even so, the unanimous decision says, the social cost of excluding Farias-Gonzalez’s identity was too great because it would allow him to remain in the country illegally and prevent any court from knowing if he had a criminal past.

“Both the court and the government are entitled to know who the defendant is, since permitting a defendant to hide who he is would undermine the administration of the criminal justice system,” wrote Judge Emmett Cox on behalf of the panel. 

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