FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FRIMMEL MANAGEMENT, No. 16-73906 LLC, Petitioner, DHS-1 OCAHO Case No. v. 15A00073 UNITED STATES OF AMERICA; U.S. DEPARTMENT OF OPINION HOMELAND SECURITY; IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondents. On Petition for Review of an Order of the Department of Homeland Security Argued and Submitted April 10, 2018 San Francisco, California Filed July 26, 2018 Before: Dorothy W. Nelson, William A. Fletcher, and Raymond C. Fisher, Circuit Judges. Opinion by Judge D.W. Nelson 2 FRIMMEL MGMT. V. UNITED STATES SUMMARY* Immigration/Employment Verification The panel granted a petition for review of an Administrative Law Judge’s final decision and order in a proceeding before the Office of the Chief Administrative Hearing Officer of the Executive Office for Immigration Review declining to suppress employment records Immigration and Customs Enforcement obtained through an investigation of Frimmel’s compliance with employment verification requirements. ICE initiated an investigation of Frimmel after the Maricopa County Sheriff’s Office (“MCSO”), under Sheriff Joe Arpaio, conducted illegal raids of two restaurants and the home of Bret Frimmel, owner of Frimmel Management. MCSO later e-mailed a Shift Summary to ICE, and issued press releases revealing the results of the raids. The panel explained that, even in administrative proceedings in which the exclusionary rule does not ordinarily apply, administrative tribunals are still required to exclude evidence that was obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should know is in violation of the Constitution. The panel noted that Frimmel was not arguing for suppression of its identity, but rather suppression of the evidence ICE obtained when ICE conducted an audit after MCSO issued press releases and sent ICE an e-mail with its Shift Summary. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FRIMMEL MGMT. V. UNITED STATES 3 The panel held that omissions and distortions in MCSO’s search warrant affidavits violated the Fourth Amendment, and because a reasonable officer should have known the conduct was unconstitutional, the violation was egregious. The panel also concluded that ICE’s evidence was the fruit of MCSO’s unlawful search. In considering whether the attenuation doctrine applied as an exception to the exclusionary rule, the panel considered temporal proximity, and noted that the ICE investigation closely followed the unconstitutional search. The panel also considered whether there were intervening circumstances that purged the taint of the unlawful search, and concluded that the ICE investigation was not an intervening circumstance, rather, it was itself a direct result of MCSO’s earlier unlawful search, and based on MCSO’s communication to ICE and publicizing of the raid, the ICE investigation was precisely what MCSO intended. The panel also concluded that MCSO’s conduct was flagrantly illegal, and that MCSO had immigration enforcement as its primary zone of interest. The panel held that ICE’s investigation was therefore not attenuated from MCSO’s illegal raid. The panel concluded that application of the exclusionary rule would serve ...
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