Judge allows prosecution despite agents’ illegal search

Federal agents may have illegally obtained a DeKalb County man’s identity, but that does not stop them from prosecuting him for immigration violations, the federal appeals court ruled Monday.

The 11th U.S. Circuit Court of Appeals turned aside arguments its precedent could lead to rampant search-and-seizure violations against members of Atlanta’s immigrant community.

The appeal was raised by Jose Farias-Gonzalez, who entered a guilty plea in January 2008 to illegally re-entering the country after being deported. He is serving a 57-month sentence.

In 2006, two U.S. Immigration and Customs Enforcement agents patrolling an apartment complex saw Farias-Gonzalez working on his car. The agents thought Farias-Gonzalez’s tattoos and haircut were similar to those worn by Hispanic gang members. The agents parked close by and asked Farias-Gonzalez whether he was a member of a gang.

After Farias-Gonzalez said he wasn’t, one officer lifted Farias-Gonzalez’s shirt sleeve to determine if he had any more tattoos.

The agents later got a false ID from Farias-Gonzalez, took photos of his tattoos and scanned his fingerprints on a portable electronic device. The machine identified Farias-Gonzalez and showed he had been deported.

A federal judge in Atlanta earlier ruled the agent’s 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 illegal search, among other actions by the agents, would have made Farias-Gonzalez feel he was not free to leave the scene before the agents questioned him further, the judge said.

On appeal, the 11th Circuit said it assumed for the sake of argument the agents conducted an illegal search. Even so, the court said, the social cost of excluding Farias-Gonzalez’s identity was too great. It would allow him to remain here 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,” said Judge Emmett Cox, writing for a unanimous three-judge panel.

As to whether such a decision would lead agents to conduct illegal searches to gather identity evidence, the threat of civil lawsuits should deter officers from this conduct, Cox wrote.

Farias-Gonzalez’s attorney, Richard Holcomb, said civil suits are not a realistic remedy for most people, let alone recent immigrants.

The 11th Circuit ruling has given agents “carte blanche to engage in pointless harassment of Hispanic residents that doesn’t even help them make their cases, with no downside,” he said.