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(the magistrate) as required by law. (emphasis added]73
The Fourth Amendment authorizes issuance of warrants upon probable cause, “supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Here, however, the warrants did not authorize any search for persons, much less particularly describe them. It authorized only the search for and seizure of property.78
INS officers executed the warrant on March 30, 1978, and arrested 15 alien employees at the restaurant. Some of the arrested aliens had entered the country lawfully, while others had entered unlawfully. The return of service required by the warrant disclosed that: “The following is an inventory of property taken pursuant to the warrant: see attachment: [listing arrestees].”75
The plaintiff in that case claimed that the INS search and the subsequent arrests “violated rights guaranteed by the Fourth Amendment and was an actionable trespass." The United States District Court for the District of Columbia held that the INS search conducted with the rule 41 warrant was "unreasonable and unlawful,” and therefore the court entered a declaratory judgment in favor of the plaintiff.76
Rule 41 warrants, the court held, authorized searches only for property." Because "persons are not property," searches for undocumented workers could not be conducted under such warrants. As the court reasoned:
[I]t does not follow that the aliens in the restaurant are "tangible objects" and proper subjects of a search and seizure on a warrant issued pursuant to Rule 41. The government contention that the aliens in the restaurant were such “tangible objects” clashes with a fundamental written into our Constitution in the 1860's: no human being in the United States may be dealt with as property by government officials, or by any one else.
In Blackie's, the District of Columbia court also refused to justify the search on the administrative inspection theory, holding that "[t]he plaintiff here had not impliedly consented to the search by entering a regulated business."83
As a result of the decision of the District of Columbia court, the INS has begun using a civil search warrant, at least in the District of Columbia, to conduct area control operations of business establishments. After the invalidation of the rule 41 warrant, INS again conducted an area control operation at Blackie's House of Beef, under the civil warrant.84 The affidavit supporting that warrant alleged the presence of “known illegal aliens" on the
Neither the Fourth Amendment nor any statute permits government officials to use a warrant commanding a search for property as authority to enter a privately owned restaurant in Washington, D.C. in search of illegal aliens believed to be working there.
73 Id. 76 The Commission recognizes that persons who entered the United States legally but remained in violation of the law may be arrested without a warrant under exigent circumstances. 8 U.S.C. $1357(a)(2). No such issue was raised in Blackie's House of Beef, however, as the case focused on the validity of the search warrant used by INS. 15 Blackie's House of Beef, Inc. v. Castillo, 467 F. Supp. 170 (D.D.C. 1978). A copy of the return of service and the attachment accompanies the order in appendix B. Id. at 176–77. 76 Id. at 174. 77 Fed. R. Crim. P. 41 has since been amended to authorize issuance of search warrants for persons where probable cause exists. See discussion in n. 69 of this chapter.
70 467 F. Supp. at 173.
Almeida-Sanchez v. United States, 413 U.S. 266 (1973). The Court held that the warrantless search in that case was not supported by constitutional or statutory authority and was thus unreasonable and illegal. “ Administrative inspections conducted under warrant are permissible under the fourth amendment. See Camara v. Municipal Court, 387 U.S. 523 (1967); See v. City of Seattle, 387 U.S. 541 (1967). ** Almeida-Sanchez v. United States, 413 U.S. at 271. ss Blackie's House of Beef, Inc. v. Castillo, 467 F. Supp. at 174. * Blackie's House of Beef, Inc. v. Castillo, 480 F. Supp. 1078 (D.D.C. 1979).
violate the fourth amendment requirement for specific articulable facts, as it suggests a type of general search which the framers of the Constitution intended to prevent.
premises. Except for a few first names, however, the specific names of these “known” persons were not given. The warrant itself contained no names or any other identifying description of the persons sought, nor did it indicate the number of allegedly deportable aliens involved or whether such persons were employees, patrons, or passers-by. Although the warrant limited the search to daylight hours, it made no reference to the nature of Blackie's House of Beef's business or to the interests of innocent employees and patrons present during the lunchhour inspection. A Federal court in the District of Columbia held that this search was illegal for three reasons: the search as conducted was unconstitutionally broad, the warrant was defective because it failed to describe with particularity the persons sought, and the warrant was defective because it failed to indicate that the magistrate had considered the search's effects on the restaurant's operations.
The INS asserts that the use of such civil warrants is authorized under the concurring opinion of Justice Lewis F. Powell in Almeida-Sanchez. 86 Although Justice Powell suggested that an area
area warrant procedure might be permissible, that suggestion was directed to roving automobile searches in border areas. 87 Because the nature of the intrusion in automobile searches was far less than in other situations, he indicated that such searches might be permissible. As he stated in his concurring opinion:
Effects of Area Control Operations
Area control operations as currently conducted by INS can have adverse effects on U.S. citizens and residents as well as on undocumented aliens. Austin Fragomen, an immigration attorney, testified that he believed most United States citizens would greatly dislike being interrogated by a law enforcement officer simply because of their ethnic appearance. “I think there are very few Americans who wouldn't find that offensive," he said. 89 Although the Commission has received testimony that persons are at times interrogated during INS area control operations based solely on their ethnic appearance, 90 INS has stated that it does not condone this practice. 91
Another immigration practitioner stated that one effect of INS area control operations is to subject many persons, including U.S. citizens and residents, to unconstitutional searches and seizures 92 where no specific articulable facts concerning the presence of particular aliens unlawfully in the country exist to justify INS interrogations. He described a July 1978 incident in which the INS, with the cooperation of the Illinois State Police, the Iroquois County Sheriff, and a local police officer, allegedly barricaded the major thoroughfareso in and out of Onarga. The INS visited several business establishments or factories and arrested 30 to 40 persons and then conducted a door-to-door search in some sections of Onarga where a significant number of Mexican An, ricans resided. INS officers also conducted investigative stops of cars and people on the street, and some individuals were interrogated several times.94
United States citizens and residents who own and operate businesses that are surveyed by INS can also be adversely affected. Testimony received by the
[s]ignificantly, these are searches of automobiles rather than searches of persons or buildings. The search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one's person or a building. This Court “has long distinguished between an automobile and a home or office."88
Thus, the Powell concurrence does not explicitly authorize the use of a search warrant to search for persons suspected of immigration law violations in a business establishment. Moreover, a warrant lacking specificity in identifying the persons sought would
65 Id. The court, however, did not address the question of whether INS is
to obtain advance judicial approval of the decision to conduct roving
"frustrate the governmental purpose behind the search."
*9 Austin Fragomen, testimony, New York Open Meeting Transcript, vol.
Armand Salturelli, INS Southern Regional Commissioner, testified that
al, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.98
Commission indicates that, contrary to INS statements,95 INS area control operations do cause confusion and pandemonium among all factory employees, thereby disrupting a factory's operations and decreasing production.96
Undocumented persons who are arrested and detained by the INS during factory surveys but who are documentable and not immediately deported can also be adversely affected by INS area control operations. Until their immigration status is clarified by INS (which could take several weeks), their job prospects for that period would be uncertain:
[O]ne of the problems, among many, [is] that after the survey is concluded, probably within the next 48 hours, a good many of those people will be back in the employment office asking for their old jobs back, and it is not easy_to ascertain whether their detention by the Department of Justice resulted in any clarification of their status, or whether they are just as unclear when they come back after the survey than they were before the survey. .I am sure that (for) people who are apprehended in the survey [it] might possibly be several weeks before their status might be clarified. . . .97
However, immigration law enforcement activities by local police, sometimes a direct result of previous encouragement by the Immigration and Naturalization Service, 99 have not been confined to the harboring section of the statute.
A Domestic Council committee study in 1976 found that the involvement of local law enforcement authorities in immigration created problems other than those normally arising from INS activities. It attributed these difficulties to “agencies. . .often unaware of usual policies in the enforcement of immigration law or hostile to the feelings of ethnic communities.”100
Attempts by local police to enforce the immigration laws can infringe on the rights of United States citizens and legal residents. In Moline, Illinois, the city police department instituted a practice whereby its officers would enter local neighborhood establishments and interrogate persons of Latin ancestry about their status in the United States. Although the overwhelming majority of interrogatees were United States citizens or legal residents, the practice continued. A lawsuit was filed, alleging that United States citizens were arrested and placed in the local jail solely on a suspicion of violating Federal immigration laws. The Moline Police Department ultimately settled the suit and issued a statement of apology to the Latino community.101 Although they have not yet been adjudicated, other lawsuits have been filed in California and Texas challenging the practice of local police enforcement of Federal immigration laws. 102 One case involved the arrest and incarceration for 3 days of an American citizen of Hispanic ancestry who was a passenger in a truck
* In a letter to the Commission, the INS stated:
In discussing the effects of area control operations conducted by the
who are likely to react with fear, confusion and flight. Castillo Letter. 95 George Lundquist, testimony, Texas Open Meeting Transcript, vol. 3, p. 9. Another factory owner agreed that INS surveys can result in loss of money and business to employers:
[E]very time we are inspected, we sit down and talk to them (INS), say, “How are we going to avoid these inspections because it is very costly and disruptive. In fact we feel you are invading the rights of the citizens that are working here because they get no work done, and you are invading my rights because it costs me a lot of money to have my production line shut down for 3, 4, or 5 hours." Production is ruined for the whole day and possibly-in fact, production is ruined for a month, until we get back to normal in a plant our size.
Arnold Sbicca, testimony, Los Angeles Open Meeting Transcript, p. 402. »? Russell Parsons, consultant, Merchants and Manufacturing Association, testimony, Los Angeles Open Meeting Transcript, pp. 225-26. * Immigration and Nationality Act of 1652, $274, 8 U.S.C. $1324(c) (1976). 9 The Border Patrol Handbook, page 11-7, provides that the "continued cooperation (of all local law enforcement authorities) must be sought and cultivated." INS encouragement of immigration law enforcement by local police has been recognized in INS correspondence such as form letter LIV 40/15-C of the Pleasanton, Calif., Border Patrol Office which states that "[s]ince.. the early 1950's we have earnestly solicited the assistance of the various sheriff's departments and police agencies in picking up and holding for us aliens illegally in the United States." 100 Domestic Council Committee on Illegal Aliens, Preliminary Report (1976), p. 207. 101 Resnick Testimony, Washington Hearing Transcript, p. 159. 102 Savala v. Castillo, No. F-78-173-Civ. (E.D.Cal. filed Aug. 30, 1978) (verified petition for removal of a civil action from a State court); Rivera v. Ballard, CA3-79-0874-C (N.D. Tex. filed July 6, 1979); Cervantez v. Whitfield, CA2-79-206 (N.D. Tex. filed Dec. 12, 1979).
Q: So you might be putting American citizens in jail?
A: It's possible.
Q: That's all right then?
A: Yes, sir.
driven by a fellow employee. The complaint alleged that he was not charged with any crime but rather he was arrested solely because he did not have on his person the necessary documentation to prove his United States citizenship. 103
The problems created by local police attempting to enforce Federal immigration laws are exemplified by the following testimony from a trial on trafficrelated charges. In that case, an American citizen of Mexican ancestry had also been held in jail for 3 days on a “hold for investigation of illegal entry.” During the trial, the arresting police officer gave the following testimony during cross-examination:104
Q: They have to prove that they are American citizens?
A: Yes, sir.
Q: What was that charge?
A: Investigative charge of illegal entry. Q: That charge, you didn't write him a citation on that charge, did you?
Both the Attorney General and the INS have recently attempted to curtail local police practices of enforcing the immigration laws. In a June 1978 press release, then Attorney General Griffin Bell stated that “the responsibility for enforcement of the immigration law rests with the Immigration and Naturalization Service (INS), and not with state and local police.”105 Therefore, local police officers should “not stop and question, detain, arrest or place an 'immigration hold' on any persons not suspected of crime, solely on the ground that they may be deportable aliens.”106 More than a year prior to that
" press release, the INS Central Office sent the following instructions to its Regional Commission
A: No, sir. That's investigative charge.
Q: And you knew that he was wanted by immigration?
A: No, sir.
Q: But you just filed that charge?
A: Investigative charge.
Q: Investigative charge. Did you ever take that charge off?
A: I don't know. Somebody evidently did. I didn't.
There are no provisions in the (Immigration and Nationality] Act other than Section 274 which [authorize) the arrest and/or detention of aliens
violations of the Immigration and Nationality Act by anyone other than an immigration officer. Accordingly, each office shall take whatever steps are necessary to insure local city, county, and state authorities. . .do not detain or place "holds” on aliens for or in behalf of this Service unless an immigration officer has first made a determination that the alien is prima facie deportable from the United States and has specifically authorized the detention of the alien. 107
Q: You never took the charge off?
A: No, sir.
Q: Now is this the normal routine that you follow when you arrest Mexicans in Grand Prairie?
A: Are you speaking of an illegal alien or a Mexican?
The INS has recently informed the Commission, however, that it believes there is implicit authority for local police involvement or assistance in the enforcement of the criminal provisions 108 of the Federal immigration laws. It stated:
Q: Well, how can you tell the difference? Do you know what the difference is?
A: No, sir. When I can't determine, that's why I put them in jail for investigative charges.
The absence of express authority in the Immigration and Nationality Act for local police to aid in the enforcement of the immigration laws does not necessarily preclude such assistance. State law may authorize state and local police to enforce the criminal provisions of the federal immigration laws. The Attorneys General of California and Texas, and, to a certain extent, the Attorney General of the State of Washington, have determined that some or all of their state and local enforcement officers do have authority to enforce the federal criminal laws. It is true that it has long been Service and Department of Justice policy, as reaffirmed by the U.S. Attorney General on June 23, 1978, that local police have no authority to arrest persons solely on the ground that they may be aliens illegally in the United States. However, they are encouraged to notify the INS of any persons in local custody for state or local criminal violations whom they suspect of alienage. (emphasis added)109
103 Cervantez v. Whitfield, CA2-79-206 (N.D. Tex. filed Dec. 12, 1979).
Notwithstanding the policy statements of the Department of Justice, some local police have apparently continued in their attempts to enforce Federal immigration laws. One newspaper reported that officers of the El Paso Police Department "pick up the aliens and return them to the Mexican side of the frontier."110 A witness in San Diego charged that local police continue to attempt enforcement of the immigration laws, 111 and even an INS District
, Director acknowledged that local police are continuing to place "immigration holds” on persons suspected of immigration violations:
The type of conduct alleged in the above cases indicates that local police lack sophisticated, technical expertise in immigration law and that they have difficulty making determinations as to citizenship, immigration status, or the validity of immigration documents. Because they receive little or no training in immigration law, it can be expected that local police will make erroneous determinations of immigration law violations or base immigration arrests upon impermissible, even unconstitutional, grounds. The allegations of the above cases illustrate the potential consequences when local police authorities attempt to enforce the immigration laws. In those cases, the local police officers allegedly made some investigative stops and arrests despite the lawful status of the detained person, and they made other investigative stops and arrests on the basis of racial or ethnic characteristics identifiable with major immigrant groups. Courts have consistently held that ethnic appearance alone does not constitute the necessary reasonable suspicion for an investigative stop, much less an arrest. 113
There are currently few restraints on local police to prevent constitutional violations that may result from their immigration law enforcement activities. Although the Attorney General has issued a statement urging local police to refrain from making arrests solely for immigration law violations 114 and the INS has instructed its offices to ensure that local police involvement ceases, local police are not accountable to the Department of Justice. Further, while the Justice Department officially discourages local police involvement, it is the policy of at least some local INS offices to continue accepting persons arrested by local police on suspicion of violating immigration laws. 115
(That earlier witness) may have information that there are some police officers bringing aliens to the county sheriff's office here and placing a hold against them for the Immigration Service. We are having that particular problem
109 Castillo Letter.
It is the El Paso Police Department's policy not to enforce the
and no criminal punishment will be assessed against that person. Roberto A. Duran, police legal advisor, El Paso Police Department, letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights, Feb. 4, 1980. 111 Herman Baca, testimony, San Diego Open Meeting Transcript, p. 96.
112 Joseph Sureck, then INS District Director for Los Angeles, testimony, Los Angeles Open Meeting Transcript, p. 580.
. 113 United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Cheung Tin Wong v. INS, 468 F.2d 1123 (D.C. Cir. 1972); Illinois Migrant Council v. Pilliod, 398 F. Supp. 882 (1975), affd 540 F.2d 1062 (7th Cir. 1976); Marquez v. Kiley, 436 F. Supp. 100 (1977). 114 U.S., Department of Justice, Press Release, June 23, 1978; INS Deputy Commissioner Green, memorandum to INS Regional Commissioners, Jan. 10, 1977. 115 Despite the efforts of the Justice Department, some local police departments are continuing to detain persons on suspicion of immigration law violations under what is commonly referred to as an “immigration hold" until the police deliver the suspects to the INS or the Service picks them up from local police detention facilities. Sureck Testimony, Los Angeles Open Meeting Transcript, pp. 582, 583; Walter V. Edwards, Associate Regional Commissioner for Enforcement, INS Southern Region, testimony, Texas Open Meeting Transcript, vol. 4, p. 371.