Agency Nos. A78-184-178 & A78-184-179.
Before: William C. Canby, Jr. and Jay S. Bybee, Circuit Judges, and Justin L. Quackenbush,*fn2 Senior District Judge.
Order; Dissent by Judge Bea
Judge Bybee has voted to grant the petition for rehearing en banc. Judges Canby and Quackenbush have recommended denial of en banc rehearing.
The petition for en banc rehearing has been circulated to the full court. 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. P. 35.
The petition for rehearing en banc is denied.
BEA, Circuit Judge, with whom O'SCANNLAIN, TALL-MAN, BYBEE, and CALLAHAN, Circuit Judges, join, dissenting from the denial of rehearing en banc:
I respectfully dissent from the order denying rehearing en banc because the panel opinion directly contradicts the Supreme Court's decision in INS v. Lopez-Mendoza (Mendoza), 468 U.S. 1032 (1984), regarding when we should apply that singular jewel*fn3 of our legal procedure treasury: the exclusionary rule.
In Mendoza, the Supreme Court clearly held the exclusionary rule does not apply to bar illegally procured evidence from admission in a deportation hearing. Mendoza, 468 U.S. at 1050 (holding that the "balance between costs and benefits comes out against applying the exclusionary rule in civil deportation hearings").*fn4 The panel in Lopez-Rodriguez v. Mukasey (Rodriguez), 536 F.3d 1012 (9th Cir. 2008), held precisely the opposite. How we got there is an interesting- and perhaps cautionary-tale. We seem to have turned Supreme Court plurality dicta into majority dicta simply by saying so. Then, we have applied that dicta, in a manner not consistent with the sole case cited in the dicta, to create a new rule-one never envisioned by either the Supreme Court majority or the plurality.
Let's pick our way through how we got there.
Step one. Identify the dicta to be used: "Finally, we do not deal here with egregious violations of the Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained. Cf. Rochin v. California, 342 U.S. 165 . . . (1952)." Mendoza, 468 U.S. at 1050-51 (plurality opinion of O'Connor, Blackmun, Powell, and Rehnquist, JJ.).
Step two. Mischaracterize the Mendoza dicta by calling it part of the "majority" opinion. Adamson v. Comm'r, 745 F.2d 541, 545-46 (9th Cir. 1984).*fn5 Then, massage the dicta's "test" into a new dicta by asking not whether the conduct of the officers "transgress[ed] notions of fundamental fairness*fn6 and undermine[d] the probative value of the evidence obtained," but whether the officers acted with knowledge-actual or constructive-that their actions, even if mannerly, would violate the Constitution. See id.
Step three. Clothe the Mendoza dicta with a new definition -"all bad faith violations of an individual's fourth amendment rights are considered sufficiently egregious to require application of the exclusionary sanction in a civil proceeding"*fn7 -and then eliminate the possibly additional requirement of the Mendoza dicta that the means of procuring the excludable evidence need undermine the probative value of the evidence obtained in order to apply the exclusionary rule. Gonzalez- Rivera v. INS, 22 F.3d 1441, 1449, 1451 (9th Cir. 1994) (citation, internal quotation marks, and alterations omitted) ("[U]nder both Lopez-Mendoza and ...