liberty not to respond to the questions [emphasis added].34 The fourth amendment guarantees that individuals shall be free of "unreasonable" seizures by government agents. INS officials acknowledge that, under the Supreme Court decision in Brignoni-Ponce, INS officers must at least have a "reasonable suspicion" of alienage based upon "specific articulable facts" prior to interrogation of an individual where no vehicle stop is involved.35 However, there appears to be no uniform INS policy for the selection of interrogatees during its area control operations.36 Testimony indicated that in at least one INS region a conflict existed between high-level INS officials as to what interrogation selection method would be legally permissible. INS Western Regional Counsel Bernard Karmiol testified that the legal standards required to interrogate a person as to alienage were set out in the Supreme Court case of Brignoni-Ponce, which he interpreted to mean that: [M]erely because a person had a brown skin or seemed to be of Latin ethnic derivation, this would not be sufficient to stop this person and speak to him, that other so-called articulable facts [are required].37 He concluded that INS officers must also have a reasonable suspicion of alienage based on specific articulable facts to question employees during factory raids in metropolitan areas: The officer would have to be able to explain at a later time just exactly why, besides the fact that the man had a brown skin, perhaps, he questioned the individual as to his being a 34 Mark Rosenbaum, testimony, Los Angeles Open Meeting Transcript, p. 336. 35 As previously discussed, while the Brignoni-Ponce Court held that a suspicion of illegal presence was necessary where a vehicular stop in a border area is involved, the Court expressly declined to enunciate a rule applicable to other stops. Although no Supreme Court case has settled the question of the standard to be applied in nonvehicle stop cases, at least one Federal court has ruled that a suspicion of illegal presence is required prior to INS interrogation of an individual. See the previous discussion of Dunaway v. New York and Marquez v. Kiley. In light of the confusion among the courts, however, the INS has adopted the lesser standard of suspicion of alienage, which provides the bare minimum of fourth amendment protection to individuals. 36 The legal authority of INS officers to interrogate and arrest persons was interpreted by the Service guidelines in Authority of Immigration and Naturalization Service to Make Arrests, INS Manual M-69 (rev. May 1967). These guidelines were severely criticized by the courts as early as 1975 as "sorely lacking in appropriate guidelines for agents" as well as being "misleading and inadequate." Illinois Migrant Council v. Pilliod, 398 F. Supp. 882, 902 (N.D. III. 1975), aff'd, 540 F.2d 1062 (7th Cir. 1976), modified on rehearing, 548 F.2d 715 (7th Cir. 1977). As of November 1978, no complete revision of these guidelines had been implemented and made available to INS officers. David Crosland, INS General Counsel, testimony, Washington Hearing Transcript, p. 668. citizen or an alien, and then pursued the matter from the point on.38 On the other hand, Joseph Sureck, then Los Angeles District Director, testified that after INS officers enter a factory they can interrogate all persons as to their alienage.39 Testimony indicated that INS officers in some jurisdictions interrogate all persons in the area targeted for control; others select some persons for interrogation based on ethnicity alone; and still others make selections based on a combination of factors. During an area control operation conducted at Terminal Island in California, INS agents searched every cannery and interrogated all 5,000 employees. 40 During factory surveys, according to Philip Smith, Assistant District Director for Investigations, INS agents interrogate almost every employee: I have the authority to establish policy and set guidelines with respect to investigative procedures and to also implement Immigration policies and policies established by the District Director. . . .Immigration officers during the survey usually speak to virtually all persons employed by a company, to either ascertain a person's immigration status or to seek information from that person [emphasis added].11 That the policy and practice is to question all individuals is made clear by the statement of an INS criminal investigator that she questioned "as many persons as possible, either to determine if they are themselves aliens or to obtain information about other persons. "42 This practice of interrogating all employees suggests the absence of a reasonable 37 Karmiol Testimony, Los Angeles Open Meeting, p. 516. 38 Ibid., p. 517. 39 Joseph Sureck, testimony, Los Angeles Open Meeting Transcript, pp. 511-12, 518. 40 Ibid., p. 511. 41 Smith Affidavit. 42 Gail Kee, affidavit executed June 30, 1978, filed in U.S. District Court, Central District of California, ILGWU v. Sureck, No. CV 78-0740-LEW (PX). INS has stated that, in its opinion, such interrogation of almost every person "is perfectly legal and proper. Immigration officers, pursuant to section 287 of the Act, may question persons believed to be aliens regarding their immigration status. There is no prohibition against seeking information about those suspected of being aliens from persons not suspected of being aliens." Leonel J. Castillo, Commissioner, INS, letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights, Sept. 28, 1979, p. 5 (hereafter cited as Castillo Letter). The Commission in no way suggests that INS officers do not have authority under section 287 of the Immigration and Nationality Act to conduct interrogations. But it is the position of this Commission that such interrogations must be conducted according to the prescriptions of the fourth amendment. suspicion based on specific articulable facts that each interrogatee is an alien. As previously stated, the courts have found that interrogations conducted in the absence of a reasonable suspicion based on specific articulable facts violate the fourth amendment guarantee of freedom from unreasonable searches and seizures. Testimony alleged that some INS officers, on the other hand, interrogate certain individuals solely on the basis of their skin color or ethnic appearance: The workers who are questioned once INS enters the workplace are questioned based upon one criteria, and one criteria alone, and that is their skin color, whether or not they appear to be Chicano. That is the only reason that persons are singled out. White persons are not questioned. Black persons are not questioned. Only brown-skinned persons are questioned.13 Similarly, David Carliner, an immigration attorney, testified that INS officers interrogate persons based solely on race or ethnic appearance and described an Immigration Service memorandum previously justifying these actions: Typically an alien who is taken into custody is at a place of work, or apprehended while he's walking down the street, and the procedure is for an immigration officer who may or may not have a substantial basis for knowing that the person is an alien other than his impression of what he looks like. He looks Chinese, he looks foreign, he looks Mexican. He wears certain types of clothes. At one time they had an operational. . . .guideline of Immigration Service officers in New York whose description stated, "People who wore foreign-looking clothing and carried brown bags," they were assumed to be Spanish-speaking aliens from Spanish-speaking countries, because that combination, in the experience of Immigration Service, reflected [that] a person who had his lunch in this brown bag and.. .had foreign-cut clothing...was probably not a citizen of the United States [or probably] not even a permanent resident alien of the United States. 43 Rosenbaum Testimony, Los Angeles Open Meeting Transcript, pp. 33435. "The guideline provided: The dress of an individual plays an important part in choosing to approach an individual and interrogate him. Experience has shown that persons from Latin and South American countries generally will retain their habit of wearing their clothing in a style that they were accustomed to in their native counties. Some may be wearing serapes. Others will be dressed in foreign-cut clothing, which is immediately distinguishable. Generally, their garb will be the type that is not associated with persons who have been residents in the New York area when payroll records are exhibited to these agents by the employer who may or may not know his legal right to refuse to do so, it's been my experience and the experience of my colleagues that the names that are called out for interview are those that sound Latin, that sound Oriental, that sound East European. The Smiths and Joneses and Rosens are not interrogated. The Martinezes and Perezes and Lopezes and for sufficiently long periods of time. Another sign will be the fact that these persons, in addition to their dress, will also be carrying their lunch in brown paper bags. Ben Lambert, INS Assistant District Director for Investigation, New York District, memorandum NYC 50/11, Jan. 16, 1973, printed in U.S., Congress, House, Committee on the Judiciary, Subcommittee on Immigration, Citizenship, and International Law, Review of the Administration of the Immigration and Nationality Act, 93d Cong., 1st sess. (1973), p. 32. 45 David Carliner, testimony, Washington Hearing Transcript, p. 241. "Leon Rosen, testimony, New York Open Meeting Transcript, vol. 1, pp. 222-23. "Los Angeles Times, Nov. 26, 1978, part VII 3, p. 44. v. Brignoni-Ponce, 422 U.S. 873 (1975); Illinois Migrant Council v. Pilliod, 548 F.2d 715 (7th Cir. 1977); Marquez v. Kiley, 436 F. Supp. 100 (S.D.N.Y. 1977). 52 Philip Smith, testimony, Los Angeles Open Meeting Transcript, p. 339. Another witness posed different, more questionable motives in reporting information to the INS: [P]erhaps we haven't witnessed in this country before a situation where family members, neighbors, can take vengeance and wreak vengeance upon one another simply because they can turn in someone who is undocumented. It has broken up families. It has caused terrible human suffering, and all of this because of the state of the present legislation. Karvelis Testimony, New York Open Meeting Transcript, vol. 1, p. 121. INS Definitions of "Reasonable In planning its area control operations, INS relies on several sources for information in determining possible locations or areas to search. Anonymous tips and police tips are all considered justifications for INS area control operations. Philip Smith, Assistant INS District Director for Investigations in Los Angeles, stated that most of the tips received by INS and used as a basis for area control operations are anonymous and the reliability of the informant cannot be checked prior to an operation: The majority are anonymous. When I say anonymous, the person who makes the report refuses to furnish his identity, and I have to presume, because if he is an employee there at the time or is applying for the job, he does not want to have his position put into jeopardy.52 The information provided by unknown informants is also questionable because of its lack of specificity. Mark Rosenbaum of the ACLU testified that INS factory raids are conducted without particular knowledge that certain specific undocumented workers will be present at the factory: First, as is clear, and as I think no one disputes, the raids themselves are raids that take place on the basis of at best. . .anonymous tips as to persons who may be undocumented workers. INS agents come to the factories involved without any particular knowledge that any particular person[s] in the factories have committed any violations or are here in violation of any laws... 53 While such information or tips would not be an acceptable basis for issuance of a criminal search warrant by an impartial magistrate,54 INS finds no impropriety in relying on such information and has used these tips in planning and carrying out its area 53 Rosenbaum Testimony, Los Angeles Open Meeting Transcript, p. 334. 54 The Supreme Court has held that hearsay evidence or tips provided by informants may properly be considered by a magistrate in issuing search warrants where a substantial basis for crediting the hearsay evidence is grounded on independent corroborative information or underlying circumstances which support the affiant's belief that the informant is credible and that his or her information establishes the existence of probable cause to believe that a violation of law has occurred. U.S. v. Harris, 403 U.S. 578 (1970); Aguilar v. U.S., 378 U.S. 108 (1964); Jones v. U.S., 362 U.S. 257(1960). Clearly, the reliability of an informant and of the information he or she provides cannot be determined where the informant remains anonymous and his or her information cannot be independently corroborated by INS because it is not specific. Warrantless searches based only on unverified telephone tips from unknown persons have been found to be without probable cause and therefore unconstitutional. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966). control operations. In a letter to the Commission, the INS stated: It is also implied that the INS has carried out searches based on tips that would not support a search warrant. If consent is granted, no search warrant is needed. If a warrant is sought, it will not be granted if probable cause is lacking. The INS does not make searches unless it has reason to believe that it will find aliens who are illegally in the country. There is no impropriety in relying on tips to plan an area control operation. 55 Certainly, search warrants should issue only upon a finding of probable cause, and consent, if it is a voluntary and knowing waiver, can obviate the need for a warrant. But where informants' tips provide the basis for a search or an area control operation, the tips should meet fourth amendment standards. In selecting sites for its area control operations, INS accepts and at times acts on information provided by police departments. Although INS Regional Commissioner Edward O'Connor testified that, as a matter of policy, INS no longer conducts neighborhood sweeps, 56 INS officers will "assist" police departments under certain circumstances: I said [neighborhood sweeps are] possible. I did not say we were doing it. What we would do would be assist a police department when they needed us, possibly for our language ability. We are not today in this climate going out and sweeping neighborhoods anywhere in this country. We have enough work to do. There are enough people in industry that are here illegally. There are enough illegal aliens on farms and ranches and attempting to cross our borders, but we are not going into neighborhoods.57 55 Castillo Letter. 56 Testimony received by the Commission indicated that INS cooperates with police departments in patrolling certain ethnic neighborhoods. Armando Navarro, executive director of the National Institute for Community Development, testified that the INS, in conjunction with local police, "harassed" persons attending church on Sunday for a period of several months. The church under surveillance was located in a barrio in Ontario, California, in a neighborhood whose population was primarily Mexican American. During this surveillance, residents were: Harassed in the sense that the presence of the police and the INS or the Border Patrol was very apparent every Sunday. In other words, it was commonplace on many occasions for individuals coming to the church on Sundays to be stopped by INS officials and asked for papers and so forth. Armando Navarro, testimony, Los Angeles Open Meeting Transcript, p. 424. 57 Edward O'Connor, testimony, Los Angeles Open Meeting Transcript, p. 538. Mr. O'Connor further stated that INS agents do not enter neighborhoods to apprehend aliens unless the police request their assistance in handling a "disturbance," defined as "something that would continually disturb a local police department."58 He conceded that the police would need to communicate specific articulable facts59 to indicate that illegal aliens were indeed involved or that "it is an area that is known that illegal aliens frequent."60 He then cited east Los Angeles, a community with a predominantly Mexican American population, as an area that such aliens were known to frequent.61 Area control operations based on such generalized facts are questionable under current fourth amendment standards as enunciated by the courts.62 They also conflict with INS Central Office policy as to the nature and amount of information to be supplied by police officers before INS conducts surveys of residential areas. Charles Sava, INS Associate Commissioner for Enforcement, stated that INS policy is to enter residential neighborhoods only where specific articulable facts exist to indicate that an undocumented alien is at a particular place: Our policy on going into residential and community areas is that, for area control operations...we go in only when we have information based on articulable facts which would allow us to know somebody is at a given place, a given address, and to work that information. As opposed to that, in non-area-control cases where we do have specific information and we are working a non-area-control type case, where we are not seeking out people in general but are looking for a specific person for a specific reason, to work that information.63 A complaint from a local police authority, he stated, could constitute specific articulable facts if 58 Ibid., p. 515. se In an internal memorandum of the INS Western Region, the Regional Commissioner stated: Service patrol and investigation officers conducting necessary inquiries in residential areas which are based upon receipt of information from responsible law enforcement authorities such as sheriffs, chiefs of police, etc., that undocumented aliens are located at a specific location. This information shall be interpreted as constituting "articulable facts" which warrant investigation. INS Regional Commissioner, Western Region, memorandum to District Directors, Officers in Charge, and Chief Patrol Agents, Western Region, Feb. 7, 1978. 60 O'Connor Testimony, Los Angeles Open Meeting Transcript, pp. 515 16. 61 Ibid., p. 516. 62 See n. 54 of this chapter of the report. 63 Sava Testimony, Washington Hearing Transcript, p. 87. such information was reliable and specified the number and location of suspected undocumented aliens: If we had found him to be responsible in the Search Warrants Used in Area The framers of the Constitution recognized that searches or seizures of individuals could result in the detainment or arrest of innocent persons and thereby cause a significant intrusion by the government upon those individuals. They sought to prevent general searches and seizures of individuals by including in the fourth amendment a provision that searches or seizures of persons could only be conducted where specific indications of a violation of law were present. This amendment states that: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."65 Search warrants are sometimes used by the INS to enter premises to conduct area control operations for apprehending persons suspected of immigration A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property sought is located, upon request of a federal law enforcement officer or an attorney for the government. (b) Property Which May be Seized With a Warrant A warrant may be issued under this rule to search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense. (h) Scope and Definition [T]he term "property" is used in this rule to include documents, books, papers and any other tangible objects. . . the person or place named for the property specified...and if the property be found there to seize it, leaving a copy of this warrant and receipt for the property taken, and prepare a written inventory of the property and promptly return this warrant and bring the property before "The proposition that "persons" are not "property" has been basic to American jurisprudence since the 1860s. "Fed. R. Crim. P. 41 has recently been amended to authorize issuance of criminal search warrants to search for persons under certain circumstances. Rule 41, as amended, provides in pertinent part: (b) Property or Persons Which may be Seized With a Warrant A warrant may be issued under this rule to search for and seize any. . .(4) person for whose arrest there is probable cause, or who is unlawfully restrained. The amended rule took effect on Aug. 1, 1979, and governs all criminal proceedings commenced thereafter. The applicability of the new rule to search warrants obtained by INS for undocumented aliens is unclear, as there has not yet been an opportunity for judicial interpretation and clarification of the rule's language. However, Blackie's House of Beef, Inc. v. Castillo (Blackie's II), 480 F. Supp. 1078 (D.D.C. 1979), although not involving a rule 41 warrant, indicates that search warrants for persons must particularly name and describe those persons who are the subject of the search and that such search warrants do not confer upon INS "officers a 'roving commission' to search the premises." Id. at 1088. 70 Blackie's House of Beef, Inc. v. Castillo, 467 F. Supp. 170 (D.D.C. 1978). INS has appealed this decision, taking the position that the search warrant was properly obtained. Castillo Letter, p. 6. 71 Blackie's House of Beef, Inc. v. Castillo, 467 F. Supp. 170 (D.D.C. 1978). 72 Id. A copy of the search warrant accompanies the order in appendix A. Id. at 175. |