United States v. Garcia-Beltran ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30434
Plaintiff-Appellee,
v.  D.C. No.
CR-01-00336-BR
FILIMON GARCIA-BELTRAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted November 18, 2005*
Portland, Oregon
Filed April 6, 2006
Before: Susan P. Graber and Johnnie B. Rawlinson,
Circuit Judges, and S. James Otero,** District Judge.
Opinion by Judge Otero
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable S. James Otero, United States District Judge for the
Central District of California, sitting by designation.
3835
3838 UNITED STATES v. GARCIA-BELTRAN
COUNSEL
Stephen R. Sady, Chief Deputy Federal Public Defender, and
Nancy S. Bergeson, Assistant Federal Public Defender, Port-
land, Oregon, for the defendant-appellant.
Kent S. Robinson, Assistant United States Attorney, Portland,
Oregon, for the plaintiff-appellee.
OPINION
OTERO, District Judge:
Defendant-appellant Filimon Garcia-Beltran appeals the
district court’s grant of the government’s motion to require
Garcia-Beltran to provide a pretrial fingerprint exemplar. The
district court granted this motion after having first suppressed
defendant’s fingerprint exemplars taken while defendant was
in custody after an arrest lacking probable cause. The decision
to suppress defendant’s fingerprints followed from the district
court’s finding that the fingerprints had been taken for both
investigative and identification purposes. The district court’s
finding came at the direction of this court to hold an evidenti-
ary hearing to determine the government’s purpose in taking
the fingerprints.
UNITED STATES v. GARCIA-BELTRAN 3839
Garcia-Beltran contends that the law of the case doctrine
and the rule of mandate preclude the district court from grant-
ing the motion to compel a new set of fingerprint exemplars.
In addition, Garcia-Beltran asserts that, without an indepen-
dent basis for fingerprinting, the evidence is subject to the
exclusionary rule and, hence, cannot be used by the govern-
ment at trial. We reject both arguments, and we affirm the dis-
trict court’s ruling on the government’s motion to require
Garcia-Beltran to provide a pretrial fingerprint exemplar.
I
The government charged defendant-appellant Filimon
Garcia-Beltran with violating 8 U.S.C. § 1326(a) and (b)(2),
illegal re-entry after deportation, and violation of 8 U.S.C.
§ 1325(a), illegal reentry without inspection. Following his
arraignment and plea of “Not Guilty,” Garcia-Beltran filed a
Motion to Suppress certain evidence; he particularly objected
to the use of fingerprint exemplars that had been taken of him
following his arrest. The district court denied the motion.
Thereafter, Garcia-Beltran entered a conditional guilty plea
for violation of 8 U.S.C. § 1326(a), thereby preserving his
right to appeal.
Garcia-Beltran appealed the district court’s denial of his
Motion to Suppress. This court held that an evidentiary hear-
ing was needed to determine if the fingerprints at issue in
Garcia Beltran’s Motion to Suppress had been taken for
investigative purposes or for identification purposes. We
determined that fingerprints taken solely for investigative pur-
poses must be suppressed, while those taken for identification
purposes would not be suppressed. United States v. Garcia-
Beltran, 389 F.3d 864, 865 (9th Cir. 2004). As a result of this
court’s analysis, the district court’s judgment was vacated and
the matter remanded for an evidentiary hearing.
As instructed by this court, the district court held an evi-
dentiary hearing to determine the purposes for which Garcia-
3840 UNITED STATES v. GARCIA-BELTRAN
Beltran was fingerprinted after his arrest. We rely on the fac-
tual findings of the district court pursuant to this court’s
remand order for our factual narrative, reviewing for clear
error. United States v. Guzman-Bruno, 27 F.3d 420, 421 (9th
Cir. 1994).
The exact circumstances prior to the arrest that occurred on
August 14, 2001, are largely unimportant, as the government
conceded that Garcia-Beltran was arrested without probable
cause. However, there are a few noteworthy background facts
pertaining to the circumstances immediately following the
arrest. After his arrest, Garcia-Beltran produced a Resident
Alien Card and a Mexican voting card in the name of “Jose
Luis Garcia-Hernandez.” The arresting officer was suspicious
of these documents and determined that they were forgeries.
The officer issued defendant-appellant a “Uniform Criminal
Citation” accusing him of “Forgery 2.” After issuing this cita-
tion, the officer left Garcia-Beltran at the Multnomah County
Detention Center (MCDC)1 for a “mug/print.” Garcia-
Beltran’s true identity was yet unknown at this time.
The district court found that once Garcia-Beltran was at
MCDC, another Portland police officer took the first of three
sets of Garcia-Beltran’s fingerprints as part of the “mug/print”
process. A records search that was conducted based on these
fingerprints showed that defendant-appellant had previously
been identified by the Portland Police Bureau as “Garcia, Fili-
mon Beltran, DOB 112264” and by immigration authorities as
“Garcia Beltran, Taurino.”
Once Garcia-Beltran was so identified and while he was
still at MCDC, the Portland Police Bureau contacted federal
immigration officials2 with a “Special Report.” The Special
1
The Multnomah County Detention Center is the county booking facil-
ity and jail located in Portland, Oregon.
2
At the time of Garcia-Beltran’s arrest, the Immigration and Naturaliza-
tion Service (INS) was the federal agency in charge of handling
immigration-related offenses. The INS is now known as Immigration and
Customs Enforcement (ICE).
UNITED STATES v. GARCIA-BELTRAN 3841
Report stated that defendant-appellant had been identified by
fingerprint comparison as being the persons named above and
was being detained. The report also contained Garcia-
Beltran’s “A-File” number, tying him to his A-File. In
response to the Special Report, immigration officials
requested that a detainer be placed on Garcia-Beltran. Immi-
gration officials also were alerted to Garcia-Beltran’s previ-
ous charges of illegal entry and his deportation earlier that
year.
The following day, Garcia-Beltran was fingerprinted again,
this time by immigration authorities. This second set of fin-
gerprints was compared to the fingerprint found on the War-
rant of Deportation located in Garcia-Beltran’s A-File.
Because this second set of fingerprints was later deemed inad-
equate for identification purposes, Garcia-Beltran was finger-
printed yet again, for the third and final time. This set of
fingerprints was compared against the fingerprint on the War-
rant of Deportation, and it was found that the prints matched.
Based on these findings of fact and concessions made by
the government, the district court focused on Garcia-Beltran’s
third set of fingerprints for the purposes of the remand order.
The district court found that the third set of fingerprints had
been taken in part for investigative purposes and consequently
granted the Motion to Suppress as to the Third Set of Finger-
prints. Garcia-Beltran then withdrew his previous conditional
guilty plea. Shortly thereafter, the government submitted a
Motion for Order Requiring Defendant to Provide Fingerprint
Exemplar for use at trial, which the district court granted. Fol-
lowing this ruling, Garcia-Beltran once again entered a condi-
tional guilty plea.
Garcia-Beltran timely appealed to this court the district
court’s granting of the government’s motion to compel
Garcia-Beltran’s submission of a new set of fingerprint exem-
plars.
3842 UNITED STATES v. GARCIA-BELTRAN
II
On appeal, Garcia-Beltran contends that the law of the case
doctrine and the rule of mandate preclude the district court
from ordering the new set of fingerprints, unless the govern-
ment proves an independent source.
A
[1] According to the law of the case doctrine, on remand a
lower court is bound to follow the appellate court’s decision
as to issues “decided explicitly or by necessary implication.”
Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir.
1982). However, the lower court is so bound only as to those
issues addressed by the appellate court. See United States v.
Cote, 51 F.3d 178, 181 (9th Cir. 1995) (quoting Luckey v.
Miller, 929 F.2d 618, 621 (11th Cir. 1991)). Hence, in apply-
ing the law of the case doctrine, the district court in the instant
matter was required to follow this court’s decisions, but only
as to issues actually addressed and explicitly or implicitly
decided upon in the court’s previous disposition, Garcia-
Beltran, 389 F.3d 864.
[2] The lower court must also adhere to the rule of man-
date. “The rule of mandate is similar to, but broader than, the
law of the case doctrine.” Cote, 51 F.3d at 181 (citing Her-
rington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir.
1993)). The rule of mandate requires a lower court to act on
the mandate of an appellate court, without variance or exami-
nation, only execution. In re Sanford Fork & Tool Co., 160
U.S. 247, 255 (1895); accord Stamper v. Baskerville, 724
F.2d 1106, 1107 (4th Cir. 1984). Thus, in the instant matter,
the district court cannot grant the government’s motion if so
doing would exceed the boundaries as delineated by this
court’s previous mandate.
B
Garcia-Beltran’s main contention in applying the law of the
case doctrine and the rule of mandate is that Garcia-Beltran
UNITED STATES v. GARCIA-BELTRAN 3843
requires the suppression of all fingerprints (1) if the initial fin-
gerprinting of defendant-appellant was done for investigatory
purposes and (2) if the government has not proved an inde-
pendent source. In support of this assertion, Garcia-Beltran
finds fault with the district court’s reliance on United States
v. Parga-Rosas, 238 F.3d 1209 (9th Cir. 2001), vis-à-vis this
court’s reference to the same case in its remand order. How-
ever, Garcia-Beltran’s attempts to broaden the scope of the
court’s remand order by distinguishing Parga-Rosas from the
instant matter are misguided.
In Parga-Rosas, fingerprints of an illegal alien taken imme-
diately after an illegal arrest were suppressed while this court
affirmed the district court’s decision not to suppress finger-
print exemplars taken five months after the arrest. The facts
in Parga-Rosas differed from those in the instant matter in
that there the defendant produced a photocopy of a “green
card” issued in his name when asked for identification by a
law enforcement official. 238 F.3d at 1211. Using the number
on the green card, law enforcement was able to locate the
immigration files connecting the defendant to a prior deporta-
tion. Id. In contrast, in the instant matter Garcia-Beltran gave
law enforcement officials a false name and false identifica-
tion. Hence, Garcia-Beltran was correctly identified only after
his fingerprints, taken after a concededly illegal arrest, were
matched in the relevant database. Garcia-Beltran hopes to use
this factual difference to distinguish Parga-Rosas, thereby
escaping from the same fate of having this court uphold the
district court’s decision not to suppress a later set of finger-
print exemplars.
Garcia-Beltran’s argument is unpersuasive because this
court’s discussion of Parga-Rosas in its earlier disposition of
the instant matter is fully consistent with the district court’s
subsequent decision to grant the government’s motion to com-
pel a new set of fingerprints from Garcia-Beltran. Garcia-
Beltran was limited to the question of suppression of an initial
set of fingerprints, while Parga-Rosas and the instant matter
3844 UNITED STATES v. GARCIA-BELTRAN
deal with the question of suppression of a later set of finger-
prints.
[3] This court clarified the boundaries of its decision in
Garcia-Beltran in its recent opinion, United States v. Ortiz-
Hernandez, 427 F.3d 567 (9th Cir. 2005) (per curiam). Ortiz-
Hernandez is similar to the matter at hand but differs in that
there the district court denied the government’s motion to
compel a new set of fingerprint exemplars after having first
suppressed fingerprints taken after an illegal arrest. In that
case, this court affirmed the initial suppression and reversed
as to the denial of the motion to compel a new set of finger-
prints. Id. at 570.
Indeed, the court in Ortiz-Hernandez explicitly stated:
[R]eliance on Garcia-Beltran is inapposite here. The
Garcia-Beltran court considered only whether an
initial set of fingerprints must be suppressed if
obtained with an investigatory purpose. 389 F.3d at
867-68. There is no discussion of whether a second
set of fingerprints could later be compelled to iden-
tify a defendant once he was under indictment.
Id. at 577 n.4. After thus distinguishing Ortiz-Hernandez from
Garcia-Beltran, the court proceeded to apply Parga-Rosas:
“Only the Parga-Rosas court has addressed that issue [of later
compelling a second set of fingerprints to identify a defendant
once he has been indicted], and we follow that approach
here.” Id. Hence, Garcia-Beltran’s argument that the law of
the case doctrine and the mandate rule preclude the district
court’s ruling granting the government’s motion to compel a
new set of fingerprint exemplars necessarily fails. This court
has already explicitly stated that the Garcia-Beltran remand
order was limited to the question of suppression of an initial
set of fingerprints; the remand order simply did not consider
whether a new set of fingerprints could later be compelled to
identify the defendant after indictment.
UNITED STATES v. GARCIA-BELTRAN 3845
III
Garcia-Beltran continues to argue that, because he was
arrested illegally, and his true identity discovered only as a
result of investigatory fingerprinting, all evidence derived
from that illegal arrest is thus tainted under Wong Sun v.
United States, 371 U.S. 471 (1963). Accordingly, Garcia-
Beltran maintains that the government must produce an inde-
pendent basis for fingerprinting before the government can
make use of any of the evidence.
[4] We look for guidance in the development of evidentiary
case law as it pertains to the exclusionary rule by the U.S.
Supreme Court and this circuit. The Supreme Court has dis-
cussed fingerprint evidence beginning with its fundamental
holding in Davis v. Mississippi, 394 U.S. 721 (1969). In
Davis, the defendant was one of “at least 24 Negro youths”
who were rounded up and fingerprinted in the police’s
attempt to discover the perpetrator of a rape. Id. at 722. The
Court there ruled that despite the inherent trustworthiness of
fingerprint evidence, the defendant’s fingerprints, which
matched with fingerprints found at the scene of the crime,
were subject to the exclusionary rule as evidence resulting
from an arrest without probable cause. Id. at 723-24. Years
later, the Court affirmed the Davis holding in Hayes v. Flor-
ida, 470 U.S. 811, 813 (1985) (reversing the state district
court of appeal’s affirmance of use of fingerprint evidence
taken during police detention without probable cause). Hence,
it is primarily based on Davis and Hayes that fingerprints
taken for an investigatory purpose are suppressed. See
Garcia-Beltran, 389 U.S. at 867; accord Ortiz-Hernandez,
427 F.3d at 576.
[5] The Court has also focused more directly on the admis-
sibility of evidence establishing identity. In INS v. Lopez-
Mendoza, 468 U.S. 1032, 1035 (1984), the Supreme Court
encountered the situation where Lopez-Mendoza, an illegal
alien, objected to his deportation hearing solely on the ground
3846 UNITED STATES v. GARCIA-BELTRAN
that he had been arrested illegally, i.e., by INS agents lacking
a “warrant to search the premises [where Lopez-Mendoza was
apprehended] or to arrest any of its occupants.” The Court
rejected Lopez-Mendoza’s argument, stating: “The ‘body’ or
identity of a defendant or respondent in a criminal or civil
proceeding is never itself suppressible as fruit of an unlawful
arrest, even if it is conceded that an unlawful arrest, search,
or interrogation occurred.” Id. at 1039. In essence, the Court
declined to hold that the consequences of an illegal arrest,
search, or interrogation is to let the defendant go free because
of the unlawfulness of the arrest, search, or interrogation.
Instead, Lopez-Mendoza established that a defendant, includ-
ing his identity, is properly before a court in a criminal or
civil proceeding despite the initial illegal police action.
The Ninth Circuit has applied the Supreme Court’s holding
in Lopez-Mendoza to numerous situations, both similar and
dissimilar in underlying facts to those found here.3 Notably,
in United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir.
3
In United States v. Ramirez-Garcia, 269 F.3d 945 (9th Cir. 2001), after
applying for a lease and credit check, the defendant was similarly charged
with a violation of 8 U.S.C. § 1326 and sought to suppress certain evi-
dence. This court, citing Lopez-Mendoza, noted there that “the information
he seeks to suppress, his identity and the fact of his presence within the
United States, cannot be suppressed.” Id. at 947.
In United States v. Diaz-Juarez, 299 F.3d 1138, 1140 (9th Cir. 2002),
a narcotics-distribution conspiracy case, despite the lack of unanimity in
the underlying disposition of the case, there was no dissent concerning the
suppression of identity evidence. “From our caselaw [sic], it is clear that
one’s identity cannot be suppressed.” Id. at 1148 n.11 (Ferguson, J., dis-
senting).
In United States v. del Toro Gudino, 376 F.3d 997, 998 (9th Cir. 2004),
cert. denied, 125 S. Ct. 1356 (2005), this court affirmed the district court’s
denial of the defendant’s motion to suppress the false statement of his
identity and the subsequent discovery of his true identity through a finger-
print and photograph match. In addressing the defendant’s contention that
the evidence should have been suppressed as a result of an unconstitu-
tional stop, the court noted: “Our cases treat identity different from other
kinds of evidence.” Id. at 1000.
 UNITED STATES v. GARCIA-BELTRAN 3847
1994), the defendant was arrested without probable cause and
later charged with violating 8 U.S.C. § 1326. Guzman-Bruno
had admitted his name and birthdate to law enforcement offi-
cials and accordingly was connected to his prior criminal his-
tory and deportations. Id. at 421. Guzman-Bruno objected that
the district court should have suppressed evidence of his iden-
tity and his prior record. Id. This court found the evidence
admissible, applying the holding in Lopez-Mendoza and prior
Ninth Circuit case law.4 Id. at 422. Quoting from an earlier
Ninth Circuit opinion, this court noted that “ ‘there is no sanc-
tion to be applied when an illegal arrest only leads to discov-
ery of the man’s identity.’ ” Id. at 421 (alteration omitted)
(quoting Hoonsilapa v. INS, 575 F.2d 735, 738, modified, 586
F.2d 755 (9th Cir. 1978)).
[6] The Ninth Circuit has consistently held that evidence
concerning the identity of a defendant, obtained after an ille-
gal police action, is not suppressible as “fruit of the poisonous
tree.” Garcia-Beltran’s efforts to characterize his identity evi-
dence as fruit of the poisonous tree in order to require the
government to provide an independent basis to purge the
allegedly tainted evidence are but fruitless. This court’s
lengthy history of holding that identity evidence cannot be
suppressed extends to the instant matter and, hence, to grant-
ing of the government’s motion to compel a new set of finger-
print exemplars from Garcia-Beltran.
Garcia-Beltran, in an effort to sway the court’s decision,
cites a recent district court case, United States v. Bowley, No.
4
Even prior to Lopez-Mendoza, this court has held that evidence con-
cerning the identity of a defendant and obtained as a result of an illegal
arrest does not fall within the confines of the exclusionary rule. See Hoon-
silapa v. INS, 575 F.2d 735, 738 (9th Cir. 1978) (allowing use of contents
of alien’s INS files to establish identity as alien subject to deportation after
illegal arrest and search of home); accord United States v. Orozco-Rico,
589 F.2d 433, 435 (9th Cir. 1978) (finding no right to suppression of ille-
gal alien’s governmental files, including record of prior deportations, fol-
lowing allegedly illegal arrest).
3848 UNITED STATES v. GARCIA-BELTRAN
CRIM. 2004/0169, 46 V.I. 646, 2005 WL 1398632 (D.V.I.
June 8, 2005). In Bowley, the District Court of the Virgin
Islands held that the defendant’s identity as an illegal alien,
discovered through fingerprint comparison, was fruit of the
poisonous tree as the result of an illegal arrest. Notable about
the Bowley decision is that the district court applied case law
from circuits beyond its own (Third Circuit) to arrive at this
holding. Considering that the Bowley court cited Ninth Circuit
authority in arriving at a holding that seems contrary to what
the Ninth Circuit itself would hold, an examination of the cir-
cuit law cited in Bowley seems appropriate.
In arriving at its decision in Bowley, the district court relied
principally on United States v. Guevara-Martinez, 262 F.3d
751 (8th Cir. 2001). In Guevara-Martinez, the defendant was
arrested after an illegal stop by police. Id. at 752. Guevara-
Martinez’s true identity was established only after he was fin-
gerprinted, thereby linking him to his INS file. Id. The court
in Guevara-Martinez declined to apply Lopez-Mendoza, rea-
soning that the Supreme Court’s reference to the suppression
of identity in Lopez-Mendoza was “tied only to a jurisdic-
tional issue, not to an evidentiary issue.” Id. at 753. In other
words, the Eighth Circuit limited Lopez-Mendoza’s holding to
the question of whether or not a court has jurisdiction over a
defendant’s body after an illegal arrest, and not whether or not
a court must suppress evidence as to a defendant’s true iden-
tity obtained after an illegal arrest. The Eighth Circuit ulti-
mately affirmed the district court’s granting of the motion,
applying Davis v. Mississippi. The court explained its hold-
ing:
In the absence of evidence that Guevara-Martinez’s
fingerprinting resulted from routine booking proce-
dures, rather than for the purpose of pursuing INS-
related proceedings against him, we conclude that
the district court properly suppressed the evidence.
Id.
UNITED STATES v. GARCIA-BELTRAN 3849
This court in Garcia-Beltran cited with approval the Eighth
Circuit’s analysis in Guevara-Martinez. 389 F.3d at 868.
Indeed, the issue in Guevara-Martinez was parallel to that in
Garcia-Beltran: the suppression of initial fingerprints being
dependent upon the purpose for which the fingerprints are
taken following an illegal arrest. Ultimately, there is no con-
flict between the holdings in Guevara-Martinez and Garcia-
Beltran.
However, as pertains to the issues presented in the instant
matter, we recognize that the decisions of the Eighth Circuit
might yield a different outcome than the case law of this cir-
cuit. The Eighth Circuit’s limitation of Lopez-Mendoza would
require that court to suppress post-indictment fingerprints as
not having resulted from “routine booking procedures.” The
Eighth Circuit would thereby require an independent basis to
purge the tainted fingerprints, much as Garcia-Beltran argues.
Regardless of this court’s speculation as to how the Eighth
Circuit might rule on the instant motion, it is clear that the
application of Guevara-Martinez to the matter at hand is lim-
ited, as Guevara-Martinez dealt with the suppression of initial
fingerprints taken after an illegal arrest, not a later set of fin-
gerprints taken for identification purposes.
Seemingly, the holding of the Eighth Circuit is what the
court in Bowley follows. As further support for its holding
that the fingerprint evidence is fruit of the poisonous tree, the
Bowley court also cites United States v. Olivares-Rangel, 324
F. Supp. 2d 1218 (D.N.M. 2004). While the Tenth Circuit has
yet to affirmatively rule on the issue, the district court in
Olivares-Rangel has agreed with the Eighth Circuit. Id. at
1224. In a case involving the suppression of identification and
fingerprint evidence, the district court found the reasoning of
the Eighth Circuit persuasive and consequently suppressed the
evidence flowing from an illegal police stop. Id.
Yet the Ninth Circuit’s interpretation of Lopez-Mendoza
does not stand alone among the circuits. In a case concerning
3850 UNITED STATES v. GARCIA-BELTRAN
an illegal alien stopped unlawfully by Border Patrol, the Fifth
Circuit, in United States v. Roque-Villanueva, 175 F.3d 345,
346 (5th Cir. 1999), affirmed the district court’s denial of the
defendant’s motion to suppress. The Fifth Circuit court held:
“Even if the Defendant was illegally stopped, neither his iden-
tity nor his INS file [is] suppressible.” Id.
Despite the apparent difference in opinion among the cir-
cuits as to the scope of the Supreme Court’s ruling in Lopez-
Mendoza, the law of this circuit is clear. In Ortiz-Hernandez
the court wrestled with the seeming conflict in end result in
the situation where an initial set of fingerprints is suppressed
but a new set of fingerprints is compelled for identification
purposes at trial soon thereafter. The court acknowledged this
seeming conflict, ultimately determining:
While the original set of Ortiz-Hernandez’s fin-
gerprints should be suppressed as wrongfully
obtained, the government is now aware of Ortiz-
Hernandez’s identity; it may rely on his identity, as
well as his criminal and immigration record, in
bringing § 1326 criminal charges against him. . . .
The government now may bring Ortiz-Hernandez
to trial on the illegal reentry indictment and compel
him to submit to another fingerprinting based on that
arrest and arraignment and use the evidence for pur-
poses of identification at trial.
Ortiz-Hernandez, 427 F.3d at 577. The court found this result
fully consistent with prior Ninth Circuit case law: “This result
is consistent with and compelled by United States v. Parga-
Rosas, 238 F.3d 1209 (9th Cir. 2001).” Id. Further, the court
stated:
As was the case in Parga-Rosas, the government
already knows Ortiz-Hernandez’s identity. The new
set of fingerprints the government now requests,
UNITED STATES v. GARCIA-BELTRAN 3851
after the federal grand jury indictment for a different
offense has been returned, are not sought out of “an
investigative purpose” but “serve only to further
establish his identity.” See Garcia-Beltran, 389 F.3d
at 867 (considering Parga-Rosas, 238 F.3d at 1215).
Id.
[7] As in Ortiz-Hernandez, the initial set of fingerprints
obtained by the police following Garcia-Beltran’s unlawful
arrest was rightfully suppressed. However, also as in Ortiz-
Hernandez, the government “is now aware of [Garcia-
Beltran]’s identity.” Id. Therefore, the government may make
use of that information in bringing Garcia-Beltran to face
charges for illegal reentry and to require the defendant to sub-
mit new fingerprint exemplars to establish his identity at trial.
The court in Ortiz-Hernandez also considered the effect of
its holding on the earlier suppression of the initial set of fin-
gerprints. The court acknowledged, “Admittedly, our holding
here limits the theoretical effect of suppressing the initial set
of wrongfully obtained fingerprint exemplars, but this result
is compelled by the nature of the evidence Ortiz-Hernandez
is seeking to suppress—who he is.” Id. at 578. Under Lopez-
Mendoza and Ortiz-Hernandez, we must affirm.
AFFIRMED.