Policing the Police: The Status of Immigration Checks in the Context of Rodriguez v. United States
I. Introduction
TOPA recent Supreme Court decision has the potential to change how local and state law enforcement entities enforce immigration laws. In Rodriguez v. United States,1
135 S. Ct. 1609 (2015).
Id. at 1612.
Id.
See Gus M. Centrone & Brian L. Shrader, The Dog Days Are over: Terry Stops, Traffic Stops, and Dog Sniffs After Rodriguez, 62 Fed. Law. 46, 50 (2015).
Arizona v. United States5
132 S. Ct. 2492 (2012).
Id. at 2507–10.
Memorandum from Jeh Johnson, Sec’y of Homeland Security, to Thomas S. Winkowski, Principal Deputy Assistant Sec’y for U.S. Immigration and Customs Enforcement, 1–2 (Nov. 20, 2014), http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf.(https://perma.cc/4MBX-KRRR) (Department of Homeland Security memorandum explaining that the Secure Communities Program would be replaced by the Priority Enforcement Program).
Under a broad interpretation of Rodriguez, this Comment argues that even in 287(g) communities8
287(g) communities are those in which state and local law enforcement receive delegated authority to enforce immigration laws. See Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigration and Customs Enforcement, http://www.ice.gov/287g(https://perma.cc/ZEV8-8AZ3) (last visited Apr. 6, 2016).
This Comment applies Rodriguez to examine the viability of prohibiting immigration status checks during law enforcement stops. Part II provides background on one of the areas of the law that shapes this topic: the evolution of law enforcement stops. Part III examines how circuit courts have applied Rodriguez to cases beyond dog sniff searches and traffic stops. Part IV provides background on the immigration law, the second area of law that shapes this topic and intersects with criminal law. In Part V, this Comment discusses why extending a law enforcement stop to check an individual’s immigration status without reasonable suspicion should be unconstitutional under Rodriguez. This Comment concludes by suggesting that an additional way to comply fully with Rodriguez and avoid allegations of racial profiling would be for Congress to pass immigration reform or legislation directly aimed at ending racial profiling by law enforcement. However, given the current political climate and congressional gridlock, these reforms will likely not materialize in the near future. Thus, the Court should implement a bright-line rule that extends Rodriguez to prohibit inquiries into an individual’s immigration status during the course of a stop, absent reasonable suspicion.
II. Background on Law Enforcement Stops
TOPThis section provides a brief introduction to one of the two areas of law that shape this Comment: law enforcement stops. It discusses the evolution of traffic stops and other law enforcement stops, the relevance of law enforcement’s intent while stopping an individual, and the limitations on law enforcement’s ability to search.
A. Traffic Stops, Terry Stops, and Reasonable Suspicion
TOPThe Fourth Amendment to the United States Constitution was adopted in the face of intrusive searches conducted during the Colonial era:9
See generally Akhil Reed Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30 Suffolk U. L. Rev. 53 (1996); Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L. Rev. 197 (1993).
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.10
10U.S. Const. amend. IV.
Although the Fourth Amendment guarantees that search warrants will not be issued unless there is “probable cause,” in practice, courts have allowed law enforcement some leeway when it comes to investigating individuals suspected of committing a crime.
Terry v. Ohio11
392 U.S. 1 (1968).
Id. at 37 (Douglas, J., dissenting).
Centrone & Shrader, supra note 4, at 47 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975)).
Terry, 392 U.S. at 30.
Almost twenty years after Terry, the Supreme Court held in Berkemer v. McCarty15
468 U.S. 420 (1984).
Id. at 435.
Id. at 439.
See Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1862 (2004).
B. Relevance of an Officer’s Motive when Detaining Individuals
TOPIn Whren v. United States,19
517 U.S. 806 (1996).
Id. at 808.
Id. at 819.
Id. at 810.
Id.
Id.
Id. at 813.
While the Court agreed with the defendants that the Constitution forbids the selective enforcement of the law based on factors such as race, the constitutional basis for challenging intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.26
Id.
See id. at 816–17.
Adrienne Arnold, Note, Rodriguez, Terry, and the Supreme Court’s Evolving Fourth Amendment Jurisprudence: How Rodriguez Does (and Does Not) Clarify the Future of the Fourth Amendment, 6 Houston L. Rev. 135, 145–46 (2015).
Id. at 146 (emphasis in original) (quoting David A. Harris, ‘Driving While Black’ and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997)).
C. Restraints on Law Enforcement’s Ability to Search
TOPWhile the previously discussed opinions expanded the power of law enforcement during traffic stops, Knowles v. Iowa30
525 U.S. 113 (1998).
Id. at 114.
Id.
Id.
The defendant moved to suppress the obtained evidence, arguing that the search did not fall under the “search incident to arrest” exception,34
Id. at 116 (citing United States v. Robinson, 414 U.S. 218 (1973)) (noting that for the search incident to arrest to be justified, the officer must have “(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial.”).
Id. at 117–18.
Iowa Code § 805.1(4) (2016).
Knowles, 525 U.S. at 115.
Id.
The United States Supreme Court reversed the Iowa Supreme Court’s decision, holding that the search did not fall under the search incident to arrest exceptions: (1) officer safety, or (2) the need to preserve evidence.39
Id. at 117–18.
Id.
Id. at 118–19.
In Illinois v. Caballes,42
543 U.S. 405 (2005).
Id. at 407.
Id. at 406.
Id.
Id.
The Supreme Court held that “[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”47
Id. at 410.
Caballes, 543 U.S. at 407.
In Arizona v. Johnson,49
555 U.S. 323 (2009).
Id. at 326.
Id. at 327.
Id. at 328.
The officer asked to question the defendant away from the front seat passenger, and the defendant complied when the officer asked him to step outside the car.53
Id.
Id.
Id. at 328–29.
Id. at 333.
Id. at 334.
D. Setting the Boundaries of Traffic Stops
TOPIn Rodriguez v. United States, the Supreme Court once again revisited the constitutionality of traffic stops under the Fourth Amendment by building upon the holdings in Caballes and Johnson. A police officer pulled the defendant over after observing the defendant veer onto the highway shoulder, a traffic violation.58
Rodriguez, 135 S. Ct. 1609, 1612 (2015).
Id. at 1613.
Id.
Id.
The officer completed a records check on the passenger and called for a second officer.62
Id.
Id.
Id.
Id.
Id.
Id.
Id.
The defendant moved to suppress the seized evidence, contending that the first officer “had prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff.”69
Id.
Id.
Id. (citing United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006)).
Based on the Magistrate Judge’s factual finding and legal conclusions, the District Court denied the defendant’s motion to suppress, relying on the same Eighth Circuit precedent.72
Id. at 1613–14 (quoting Alexander, 448 F.3d at 1016) (“[D]og sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions.”).
Id. at 1614.
The Supreme Court granted certiorari to resolve a split between lower courts on whether police may regularly “extend an otherwise-completed traffic stop, without reasonable suspicion, in order to conduct a dog sniff.”74
Id.
Id. at 1615. On remand, the Eighth Circuit held that the exclusionary rule exception, present in Davis v. United States, 131 S. Ct. 2419, 2423–24 (2011), did not apply in the defendant’s case. The circumstances of Davis’s seizure fell directly within the Circuit’s case law and the search was conducted in objectively reasonable reliance on the Circuit’s precedent; thus the court affirmed the defendant’s conviction. See United States v. Rodriguez, 799 F.3d 1222, 1224 (8th Cir. 2015).
Based on the precedent it set in cases like Caballes and Johnson, the Court noted that, like a Terry stop, “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, and attend to the related safety concerns.”76
Rodriguez, 135 S. Ct. at 1614 (emphasis added).
Id. at 1615 (citations omitted).
Id.
Rather than addressing safety concerns, a dog sniff is aimed at identifying evidence of criminal wrongdoing.79
Id.
Id.
Id. at 1616.
Id.
III. Circuit Court Application of Rodriguez
TOPIn cases applying Rodriguez where law enforcement had prior knowledge of alleged criminal activity, “the interaction can move forward, and the search will be upheld.”83
Centrone & Shrader, supra note 4, at 50.
613 F. App’x 501 (6th Cir. 2015).
Id. at 507–08.
Although federal courts have not yet addressed immigration checks in the context of Rodriguez, circuit courts have expanded its holding to cases beyond dog sniff searches during traffic stops. For example, in United States v. Evans,86
786 F.3d 779 (9th Cir. 2015).
Id. at 780–81.
Id. at 786.
Id.
The court was not concerned when the ex-felon registration check occurred during the seizure, but instead whether the check added time to the stop.90
Id.
Id. at 786–87.
United States v. Evans, 122 F. Supp. 3d. 1027, 1037–38 (D. Nev. 2015), appeal dismissed (Sept. 16, 2015).
Similarly, the Second Circuit applied Rodriguez in United States v. Watson,93
787 F.3d 101 (2d Cir. 2015).
Id. at 102.
Id.
Id.
Id. at 105 (quoting Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015)).
Thus, Evans and Watson suggest that Circuit Courts of Appeals view Rodriguez as applicable to cases beyond those involving the validity of a dog sniff search. Furthermore, as Watson demonstrates, Rodriguez can be applied to cases involving other types of law enforcement stops, like Terry stops. These cases suggest that an officer should conduct a stop based only upon his or her initial reasoning, absent reasonable suspicion or probable cause that would justify further inquiry.98
Centrone & Shrader, supra note 4, at 50.
IV. The Intersection of Criminal Law, Immigration Enforcement, and Deportation
TOPA. Background on Immigration Law
TOPAlthough the United States has always been a nation of immigrants, it has long struggled with the parameters of immigration enforcement. The Constitution does not explicitly reference the ability of the federal government to oversee the entry of foreigners, but, in the Chinese Exclusion Case,99
Chae Chan Ping v. United States, 130 U.S. 581 (1889).
Michael Kagan, Immigration Law’s Looming Fourth Amendment Problem, 104 Geo. L.J. 125, 136 (2015).
Id. at 138 (citing Fong Yue Ting v. United States, 149 U.S. 698, 702 (1893)).
See Fong Yue Ting, 149 U.S. at 730.
As noted by the Court in Padilla v. Kentucky,103
559 U.S. 356 (2010).
See id. at 360.
Id. at 361.
Id. at 361–62.
Id. at 363.
Id. at 363–64.
Recently, the distinction between the civil and criminal implications has begun to fade.109
See Kagan, supra note 100, at 146.
149 U.S. 698 (1893).
Padilla, 559 U.S. 359.
Id. at 374.
The Court recognized that, although a deportation is not in a strict sense a criminal sanction, it is “intimately related to the criminal process.”113
Id. at 365.
Id. at 366.
Id.
B. The Fourth Amendment Rights of Non-Citizens
TOPThere is a binary system of Fourth Amendment rights of non-citizens, depending on where an individual is in relation to the nation’s borders. With a focus on combatting unlawful immigration and contraband entering the United States, the Supreme Court created an exception to the warrant and probable cause requirements for searches and seizures that occur at the border and their functional equivalents.116
See United States v. Ramsey, 431 U.S. 606, 619–22 (1977).
Id. at 616.
Jason A. Cade, Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment, 113 Colum. L. Rev. Sidebar 180, 187 (2013).
But in theory, individuals apprehended within the interior of the United States by local and state enforcement are entitled to full protection under the Fourth Amendment, without regard to their immigration status.119
Id.
Ariz. Rev. Stat. Ann. § 11-1051 (2010), invalidated by Arizona v. United States, 132 S. Ct. 2492 (2012).
Arizona, 132 S. Ct. at 2501–07.
Id. at 2507–10.
Id. at 2509.
V. Extending Rodriguez to Prohibit Suspicionless Immigration Status Checks
TOPLaw enforcement confront a multitude of issues during a traffic or Terry stop. As Rodriguez held, an officer may conduct certain unrelated checks during an otherwise lawful stop, but she may not do so by prolonging the stop unless there is reasonable suspicion justifying the detention of the individual.124
See 135 S. Ct. 1609, 1615 (2015).
Id.
A. Relation of Immigration Status to the Mission of a Stop
TOPThe Rodriguez Court held that beyond deciding whether to issue a traffic citation, an officer’s mission includes “ordinary inquiries incident to [the traffic] stop,” like checking the driver’s license, checking for outstanding warrants on the driver, and examining the vehicle’s registration and proof of insurance.126
Id.
Id.
In addition, checking the immigration status of an individual during a traffic stop parallels a dog sniff search—both would not be fairly characterized as part of the officer’s traffic mission because they do not have the same close connection to road safety as document and database checks do.128
See id.
Driver’s Licenses Map, Nat’l Immigration Law Ctr., https://www.nilc.org/issues/drivers-licenses/drivers-licenses-map/(https://perma.cc/P3AZ-QTDZ) (last visited Oct. 4, 2016).
Furthermore, the immigration status of a person in and of itself does not pose a safety risk to the officer. While the Rodriguez Court recognized that traffic stops are particularly fraught with danger to police officers and thus an officer may need to take “certain negligibly burdensome precautions in order to complete his mission safely,” on-scene investigation of other crimes “detours from that mission.”130
Rodriguez, 135 S. Ct. at 1616.
Id.
Although the act of being present in the United States without authorization violates immigration law, that does not suggest a further propensity to commit serious crimes. First, most immigration violations are handled by civil proceedings. Second, according to the American Immigration Council (AIC), there is actually an inverse relationship between crime and immigration.132
Walter A. Ewing et al., The Criminalization of Immigration in the United States, Am. Immigration Council 4 (July 2015), http://immigrationpolicy.org/sites/default/files/docs/the_criminalization_of_immigration_in_the_united_states_final.pdf(https://perma.cc/6RXM-4F4V).
Id. at 3.
The AIC report relies on U.S. Census Bureau data, which refers to “foreign born” as anyone who was not born a U.S. citizen, which includes naturalized U.S. citizens, lawful permanent residents, temporary migrants (e.g., foreign students), humanitarian migrants (e.g., refugees and asylees), and undocumented immigrants. “Native born” persons refer to individuals born in the United States or one of its territories, or persons born abroad to at least one U.S. citizen parent. See About, U.S. Census Bureau, https://www.census.gov/topics/population/foreign-born/about.html(https://perma.cc/SU9K-RACQ) (last visited Oct. 4, 2016).
Ewing et al., supra note 132, at 5.
Id.
Id.
Id. at 6.
Critics could argue that comparing the foreign-born population to the native-born population fails to account for the possibility that even if foreign-born individuals commit less crime, it is possible that the majority of those committing the crimes are undocumented. However, an empirical study of the Secure Communities Program (S-COMM)139
As discussed infra Part V.B., the program detected and deported undocumented immigrants present in the United States.
See Thomas J. Miles & Adam B. Cox, Does Immigration Enforcement Reduce Crime? Evidence from Secure Communities, 57 J. L. & Econ. 937, 969 (2014).
Id. at 969.
Id. at 970.
In addition, the AIC report uses epidemiological data to examine the likelihood of immigrants versus native-born citizens to engage in criminal behavior. A 2014 study examining violent and/or nonviolent antisocial behavior found that immigrants in the United States were much less likely than native-born Americans to engage in that type of behavior.143
Ewing et al., supra note 132, at 9.
Id.
Id.
Critics may argue that any percentage of the immigrant population that are criminals should allow law enforcement to treat the whole population as a safety risk. From efficiency and from community policing perspectives, this viewpoint makes little sense. An examination of the “Stop and Frisk” program utilized by New York City, and similar programs in other cities, provides a useful analogy of the perils of assigning criminality to a group as a whole.
Terry v. Ohio146
392 U.S. 1 (1968).
David Rudovsky & Lawrence Rosenthal, The Constitutionality of Stop-and-Frisk in New York City, 162 U. PA. L. Rev. Online 117, 118 (2013).
Id. (quoting United States v. Arvizu, 534 U.S. 266, 274–75, (2002)).
At the height of stop and frisk in 2011, the NYPD stopped New Yorkers 685,724 times, but 88 percent of the individuals (605,328) were found to be completely innocent.149
Stop-and-Frisk Data, N.Y. Civil Liberties Union, http://www.nyclu.org/content/stop-and-frisk-data(https://perma.cc/EXC2-QX4G) (last visited Oct. 4, 2016).
New NYCLU Report Finds NYPD Stop-and-Frisk Practices Ineffective, Reveals Depth of Racial Disparities, N.Y. Civil Liberties Union (May 9, 2012), http://www.nyclu.org/news/new-nyclu-report-finds-nypd-stop-and-frisk-practices-ineffective-reveals-depth-of-racial-dispar(https://perma.cc/C86L-9C59).
Id.
Kami Chavis Simmons, The Legacy of Stop and Frisk: Addressing the Vestiges of A Violent Police Culture, 49 Wake Forest L. Rev. 849, 857 (2014) (citing Floyd v. City of New York, 959 F. Supp. 2d 540, 558 (S.D.N.Y. 2013)).
Id.
The stop-and-frisk data illustrates the problem when law enforcement assigns wholesale criminality to a particular population—in this case, blacks and Latinos. Based on the data provided earlier that immigrants are less likely to commit crimes, an important corollary can be made: law enforcement should not assign criminality to this population simply because of their immigration status. Given that, as a whole, immigrants are not likely to be more dangerous than the native-born population, they pose no greater risk to officers during a traffic stop. Thus, courts should not consider checking a suspect’s immigration status as part of the mission of a stop.
B. The Risk of Increasing Racial Profiling Allegations when Checking Immigration Status During a Stop
TOPEven though immigration violations are crimes and thus fit within the Government’s endeavor to deter crime in general, most immigration infractions are civil in nature. Unless the officer has reasonable suspicion that the person committed the felony of illegally reentering the United States after being deported,154
8 U.S.C. § 1326(a).
8 U.S.C. § 1328.
Some anecdotal evidence suggests that local police check immigration status after the mission of the stop has been completed and base their decisions on racial profiling, rather than reasonable suspicion or probable cause. A troubling internal email from a Department of Homeland Security (DHS) attorney recently raised questions as to the extent of ethnic and racial profiling used by local police when interacting with immigrants.156
Joseph Tanfani & Brian Bennett, Homeland Security Email Points to Ongoing Racial Profiling by Local Police, L.A. Times (Oct. 15, 2015), http://www.latimes.com/nation/la-na-border-profiling-20151015-story.html(https://perma.cc/X3KV-JNSJ).
Id.
The Editorial Board, Editorial, Wrongly Profiled and Deported, N.Y. Times (Oct. 23, 2015), http://www.nytimes.com/2015/10/24/opinion/wrongly-profiled-and-deported.html?_r=0(https://perma.cc/A556-G8UE).
Id. The two individuals featured in this article were subject to removal orders because they had been previously removed and thus still met the second priority for deportation under the Priority Enforcement Program. Jose Adan Fugon-Cano was deported and Gustavo Barahon-Sanchez is expected to be deported imminently (as of October 2015).
Tanfani & Bennett, supra note 156.
Id.
While the Border Patrol is generally responsible for enforcing immigration laws at the border of the United States, Immigration and Customs Enforcement (ICE) is responsible for enforcing immigration laws within the nation’s interior.162
Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement, http://www.ice.gov/ero.(https://perma.cc/KW4A-U3GH) (last visited Oct. 4, 2016).
8 U.S.C. § 1357(g) (2012).
Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigration and Customs Enforcement, http://www.ice.gov/287g(https://perma.cc/ZEV8-8AZ3) (last visited Oct. 4, 2016).
8 U.S.C. § 1357(g)(10)(B) (2012).
From October 2008 until November 2014, the Secure Communities Program (S-COMM) aided ICE in its efforts to detect and deport undocumented immigrants present in the United States, with the overall purported goal of “keep[ing] communities safer from violent crime.”166
Miles & Cox, supra note 140, at 969.
Sarah Childress, Obama’s Immigration Plan Includes End to “Secure Communities, PBS (Nov. 21, 2014) http://www.pbs.org/wgbh/pages/frontline/immigration-2/obamas-immigration-plan-includes-end-to-secure-communities/(https://perma.cc/JW9W-JJLK).
Johnson Memo, supra note 7, at 1–2.
As stated earlier, the Arizona v. United States Court expressed caution that the constitutionality of the S.B. 1070 provision would be questioned if individuals were detained solely to verify their immigration status.169
132 S. Ct. 2492, 2509 (2012).
See Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015).
Critics of this approach to searches may assert that an immigrant choosing not to disclose her immigration status does not have a “legitimate interest in privacy,” and thus official conduct determining an individual’s immigration status is not a search subject to the Fourth Amendment.171
Illinois v. Caballes, 543 U.S. 405, 408 (2005) (citing United States v. Jacobsen, 466 U.S. 109, 123 (1984)).
Id. (emphasis in original).
However, it is a stretch to conflate one’s immigration status with contraband. In the immigration context, the interest of the otherwise law-abiding immigrant in not disclosing her immigration status is fundamentally different from the contraband arguments. While ICE and Border Patrol agents have authority to question individuals on their immigration status,173
See 8 U.S.C. § 1357(a)–(c) (2012).
On the other hand, New York City passed an executive ordinance that included immigration status under the umbrella of confidential information that cannot be disclosed by any city officer or employee, unless the individual is suspected by an officer of engaging in illegal activity, other than mere status as an undocumented immigrant.174
New York City Exec. Order No. 41, Office of the Mayor of New York (Sept. 17, 2003), http://www.nyc.gov/html/imm/downloads/pdf/eo-41.pdf(https://perma.cc/KFM3-DEX8).
Id.
C. Policy Recommendations May Alleviate Allegations of Racial Profiling During a Law Enforcement Stop
TOPThis Comment contends that the Supreme Court should extend Rodriguez to hold that checking an individual’s immigration status is unrelated to the “mission” of the stop and thus should not be conducted after the stop is completed. If the Supreme Court chooses not to clarify the reach of Rodriguez in the immigration context, the legislative and executive branches could take indirect action to rein in officers who use law enforcement stops as a pretext to check an individual’s immigration status.
Congress should pass comprehensive immigration reform, because it would allow undocumented people currently living in fear to come forward without fear of deportation. For example, the comprehensive bill passed by the Senate in 2013 (“S. 744”) would have allowed undocumented individuals to apply for legalized status and eventually earn a path to citizenship, in addition to deterring future unauthorized immigration.176
See generally Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (as passed by Senate, June 27, 2013).
S. 744, Border Security, Economic Opportunity, and Immigration Modernization Act 21, Cong. Budget Off. (June 18, 2013). Although the Congressional Budget Office released an updated cost estimate after the Senate passed the bill on June 27, 2013, it noted that estimates of the number of individuals who could legalize their immigration status remained the same. See Letter from Douglas W. Elmendorf, Director of the Congressional Budget Office, to U.S. Senator Patrick J. Leahy, Chairman of the Committee on the Judiciary 5 (July 3, 2013), https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/costestimate/s744aspassed0.pdf(https://perma.cc/ND9Y-L7SR). As of 2014, approximately 11.3 million undocumented individuals live in the United States. Jens Manuel Krogstad & Jeffrey S. Passel, 5 Facts about Illegal Immigration in the U.S., Pew Research Ctr., http://www.pewresearch.org/fact-tank/2015/11/19/5-facts-about-illegal-immigration-in-the-u-s/(https://perma.cc/E269-YHCY) (last visited May 5, 2016).
However, without a bright-line rule from the Court or an explicit legislative provision clarifying that immigration status is unrelated to the mission of a stop and cannot be used to prolong a stop, comprehensive immigration reform is not a panacea. The End Racial Profiling Act (ERPA) is an example of such a legislative provision. Lawmakers have introduced ERPA in every Congress since 2001.178
See, e.g., End Racial Profiling Act of 2001, S. 989, 107th Cong. (2001); End Racial Profiling Act of 2001, H.R. 2074, 107th Cong. (2001).
End Racial Profiling Act of 2015, S. 1056, 114th Cong. (2015).
Id.
Border Security, Economic Opportunity, and Immigration Moderation Act, S. 744, 113th Cong. § 3305, (as passed by Senate, June 27, 2013).
Finally, the Department of Justice could update its racial profiling guidance to include certain DHS actions and local and state law enforcement activities. In December 2014, the Obama administration updated the initial guidance issued in 2003 by Attorney General John Ashcroft.182
See Dep’t of Just., Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity Justice (Dec. 2014).
Id. at 1.
Id.
Sari Horwitz, Justice Dept. Announces New Rules to Curb Racial Profiling by Federal Law Enforcement, Wash. Post (Dec. 8, 2014), https://www.washingtonpost.com/world/national-security/justice-dept-to-announce-new-rules-to-curb-racial-profiling-by-federal-law-enforcement/2014/12/07/e00eca18-7e79-11e4-9f38-95a187e4c1f7story.html(https://perma.cc/U5H7-LMUP).
VI. Conclusion
TOPImmigration enforcement has perplexed the United States for decades. Enforcement is spread out among several federal agencies, in addition to the 287(g) agreements that allow local and state law enforcement to partake in administering immigration law. As a result, the parameters of the Fourth Amendment during traffic stops and Terry stops play an important role in determining the limits for law enforcement. Furthermore, federal priorities are often at odds with local and state priorities, including situations where the current administration is criticized simultaneously for being too lax and too harsh on enforcement.
Although Rodriguez v. United States addressed the dog-sniff searches during a stop, it also has important implications for immigration enforcement. While the Court held that an officer may conduct unrelated checks during an otherwise lawful stop, she may not do so in such a way that it extends the length of the stop, absent the reasonable suspicion typically required to justify detaining a suspect. Circuit Courts have already applied Rodriguez to cases beyond dog-sniff searches.
Within this construct, immigration status should be considered unrelated to the mission of the stop and thus law enforcement should not be allowed to conduct an immigration check if it extends the length of a traffic or Terry stop. Following this guideline would provide a bright-line rule for local and state law enforcement who may not be as well-versed in the complexities of immigration law. In addition, this clear-cut rule would provide a shield against allegations of ethnic or racial profiling perpetrated by law enforcement. Although Congress may pass comprehensive immigration reform and/or the Department of Justice may update its racial profiling guidance, the Supreme Court should nonetheless address future cases of immigration status checks within the context of Rodriguez. The Court is the most appropriate avenue for this change within current Fourth Amendment precedent.
- 1135 S. Ct. 1609 (2015).
- 2Id. at 1612.
- 3Id.
- 4See Gus M. Centrone & Brian L. Shrader, The Dog Days Are over: Terry Stops, Traffic Stops, and Dog Sniffs After Rodriguez, 62 Fed. Law. 46, 50 (2015).
- 5132 S. Ct. 2492 (2012).
- 6Id. at 2507–10.
- 7Memorandum from Jeh Johnson, Sec’y of Homeland Security, to Thomas S. Winkowski, Principal Deputy Assistant Sec’y for U.S. Immigration and Customs Enforcement, 1–2 (Nov. 20, 2014), http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf.(https://perma.cc/4MBX-KRRR) (Department of Homeland Security memorandum explaining that the Secure Communities Program would be replaced by the Priority Enforcement Program).
- 8287(g) communities are those in which state and local law enforcement receive delegated authority to enforce immigration laws. See Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigration and Customs Enforcement, http://www.ice.gov/287g(https://perma.cc/ZEV8-8AZ3) (last visited Apr. 6, 2016).
- 9See generally Akhil Reed Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30 Suffolk U. L. Rev. 53 (1996); Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L. Rev. 197 (1993).
- 10U.S. Const. amend. IV.
- 11392 U.S. 1 (1968).
- 12Id. at 37 (Douglas, J., dissenting).
- 13Centrone & Shrader, supra note 4, at 47 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975)).
- 14Terry, 392 U.S. at 30.
- 15468 U.S. 420 (1984).
- 16Id. at 435.
- 17Id. at 439.
- 18See Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1862 (2004).
- 19517 U.S. 806 (1996).
- 20Id. at 808.
- 21Id. at 819.
- 22Id. at 810.
- 23Id.
- 24Id.
- 25Id. at 813.
- 26Id.
- 27See id. at 816–17.
- 28Adrienne Arnold, Note, Rodriguez, Terry, and the Supreme Court’s Evolving Fourth Amendment Jurisprudence: How Rodriguez Does (and Does Not) Clarify the Future of the Fourth Amendment, 6 Houston L. Rev. 135, 145–46 (2015).
- 29Id. at 146 (emphasis in original) (quoting David A. Harris, ‘Driving While Black’ and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997)).
- 30525 U.S. 113 (1998).
- 31Id. at 114.
- 32Id.
- 33Id.
- 34Id. at 116 (citing United States v. Robinson, 414 U.S. 218 (1973)) (noting that for the search incident to arrest to be justified, the officer must have “(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial.”).
- 35Id. at 117–18.
- 36Iowa Code § 805.1(4) (2016).
- 37Knowles, 525 U.S. at 115.
- 38Id.
- 39Id. at 117–18.
- 40Id.
- 41Id. at 118–19.
- 42543 U.S. 405 (2005).
- 43Id. at 407.
- 44Id. at 406.
- 45Id.
- 46Id.
- 47Id. at 410.
- 48Caballes, 543 U.S. at 407.
- 49555 U.S. 323 (2009).
- 50Id. at 326.
- 51Id. at 327.
- 52Id. at 328.
- 53Id.
- 54Id.
- 55Id. at 328–29.
- 56Id. at 333.
- 57Id. at 334.
- 58Rodriguez, 135 S. Ct. 1609, 1612 (2015).
- 59Id. at 1613.
- 60Id.
- 61Id.
- 62Id.
- 63Id.
- 64Id.
- 65Id.
- 66Id.
- 67Id.
- 68Id.
- 69Id.
- 70Id.
- 71Id. (citing United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006)).
- 72Id. at 1613–14 (quoting Alexander, 448 F.3d at 1016) (“[D]og sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions.”).
- 73Id. at 1614.
- 74Id.
- 75Id. at 1615. On remand, the Eighth Circuit held that the exclusionary rule exception, present in Davis v. United States, 131 S. Ct. 2419, 2423–24 (2011), did not apply in the defendant’s case. The circumstances of Davis’s seizure fell directly within the Circuit’s case law and the search was conducted in objectively reasonable reliance on the Circuit’s precedent; thus the court affirmed the defendant’s conviction. See United States v. Rodriguez, 799 F.3d 1222, 1224 (8th Cir. 2015).
- 76Rodriguez, 135 S. Ct. at 1614 (emphasis added).
- 77Id. at 1615 (citations omitted).
- 78Id.
- 79Id.
- 80Id.
- 81Id. at 1616.
- 82Id.
- 83Centrone & Shrader, supra note 4, at 50.
- 84613 F. App’x 501 (6th Cir. 2015).
- 85Id. at 507–08.
- 86786 F.3d 779 (9th Cir. 2015).
- 87Id. at 780–81.
- 88Id. at 786.
- 89Id.
- 90Id.
- 91Id. at 786–87.
- 92United States v. Evans, 122 F. Supp. 3d. 1027, 1037–38 (D. Nev. 2015), appeal dismissed (Sept. 16, 2015).
- 93787 F.3d 101 (2d Cir. 2015).
- 94Id. at 102.
- 95Id.
- 96Id.
- 97Id. at 105 (quoting Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015)).
- 98Centrone & Shrader, supra note 4, at 50.
- 99Chae Chan Ping v. United States, 130 U.S. 581 (1889).
- 100Michael Kagan, Immigration Law’s Looming Fourth Amendment Problem, 104 Geo. L.J. 125, 136 (2015).
- 101Id. at 138 (citing Fong Yue Ting v. United States, 149 U.S. 698, 702 (1893)).
- 102See Fong Yue Ting, 149 U.S. at 730.
- 103559 U.S. 356 (2010).
- 104See id. at 360.
- 105Id. at 361.
- 106Id. at 361–62.
- 107Id. at 363.
- 108Id. at 363–64.
- 109See Kagan, supra note 100, at 146.
- 110149 U.S. 698 (1893).
- 111Padilla, 559 U.S. 359.
- 112Id. at 374.
- 113Id. at 365.
- 114Id. at 366.
- 115Id.
- 116See United States v. Ramsey, 431 U.S. 606, 619–22 (1977).
- 117Id. at 616.
- 118Jason A. Cade, Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment, 113 Colum. L. Rev. Sidebar 180, 187 (2013).
- 119Id.
- 120Ariz. Rev. Stat. Ann. § 11-1051 (2010), invalidated by Arizona v. United States, 132 S. Ct. 2492 (2012).
- 121Arizona, 132 S. Ct. at 2501–07.
- 122Id. at 2507–10.
- 123Id. at 2509.
- 124See 135 S. Ct. 1609, 1615 (2015).
- 125Id.
- 126Id.
- 127Id.
- 128See id.
- 129Driver’s Licenses Map, Nat’l Immigration Law Ctr., https://www.nilc.org/issues/drivers-licenses/drivers-licenses-map/(https://perma.cc/P3AZ-QTDZ) (last visited Oct. 4, 2016).
- 130Rodriguez, 135 S. Ct. at 1616.
- 131Id.
- 132Walter A. Ewing et al., The Criminalization of Immigration in the United States, Am. Immigration Council 4 (July 2015), http://immigrationpolicy.org/sites/default/files/docs/the_criminalization_of_immigration_in_the_united_states_final.pdf(https://perma.cc/6RXM-4F4V).
- 133Id. at 3.
- 134The AIC report relies on U.S. Census Bureau data, which refers to “foreign born” as anyone who was not born a U.S. citizen, which includes naturalized U.S. citizens, lawful permanent residents, temporary migrants (e.g., foreign students), humanitarian migrants (e.g., refugees and asylees), and undocumented immigrants. “Native born” persons refer to individuals born in the United States or one of its territories, or persons born abroad to at least one U.S. citizen parent. See About, U.S. Census Bureau, https://www.census.gov/topics/population/foreign-born/about.html(https://perma.cc/SU9K-RACQ) (last visited Oct. 4, 2016).
- 135Ewing et al., supra note 132, at 5.
- 136Id.
- 137Id.
- 138Id. at 6.
- 139As discussed infra Part V.B., the program detected and deported undocumented immigrants present in the United States.
- 140See Thomas J. Miles & Adam B. Cox, Does Immigration Enforcement Reduce Crime? Evidence from Secure Communities, 57 J. L. & Econ. 937, 969 (2014).
- 141Id. at 969.
- 142Id. at 970.
- 143Ewing et al., supra note 132, at 9.
- 144Id.
- 145Id.
- 146392 U.S. 1 (1968).
- 147David Rudovsky & Lawrence Rosenthal, The Constitutionality of Stop-and-Frisk in New York City, 162 U. PA. L. Rev. Online 117, 118 (2013).
- 148Id. (quoting United States v. Arvizu, 534 U.S. 266, 274–75, (2002)).
- 149Stop-and-Frisk Data, N.Y. Civil Liberties Union, http://www.nyclu.org/content/stop-and-frisk-data(https://perma.cc/EXC2-QX4G) (last visited Oct. 4, 2016).
- 150New NYCLU Report Finds NYPD Stop-and-Frisk Practices Ineffective, Reveals Depth of Racial Disparities, N.Y. Civil Liberties Union (May 9, 2012), http://www.nyclu.org/news/new-nyclu-report-finds-nypd-stop-and-frisk-practices-ineffective-reveals-depth-of-racial-dispar(https://perma.cc/C86L-9C59).
- 151Id.
- 152Kami Chavis Simmons, The Legacy of Stop and Frisk: Addressing the Vestiges of A Violent Police Culture, 49 Wake Forest L. Rev. 849, 857 (2014) (citing Floyd v. City of New York, 959 F. Supp. 2d 540, 558 (S.D.N.Y. 2013)).
- 153Id.
- 1548 U.S.C. § 1326(a).
- 1558 U.S.C. § 1328.
- 156Joseph Tanfani & Brian Bennett, Homeland Security Email Points to Ongoing Racial Profiling by Local Police, L.A. Times (Oct. 15, 2015), http://www.latimes.com/nation/la-na-border-profiling-20151015-story.html(https://perma.cc/X3KV-JNSJ).
- 157Id.
- 158The Editorial Board, Editorial, Wrongly Profiled and Deported, N.Y. Times (Oct. 23, 2015), http://www.nytimes.com/2015/10/24/opinion/wrongly-profiled-and-deported.html?_r=0(https://perma.cc/A556-G8UE).
- 159Id. The two individuals featured in this article were subject to removal orders because they had been previously removed and thus still met the second priority for deportation under the Priority Enforcement Program. Jose Adan Fugon-Cano was deported and Gustavo Barahon-Sanchez is expected to be deported imminently (as of October 2015).
- 160Tanfani & Bennett, supra note 156.
- 161Id.
- 162Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement, http://www.ice.gov/ero.(https://perma.cc/KW4A-U3GH) (last visited Oct. 4, 2016).
- 1638 U.S.C. § 1357(g) (2012).
- 164Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigration and Customs Enforcement, http://www.ice.gov/287g(https://perma.cc/ZEV8-8AZ3) (last visited Oct. 4, 2016).
- 1658 U.S.C. § 1357(g)(10)(B) (2012).
- 166Miles & Cox, supra note 140, at 969.
- 167Sarah Childress, Obama’s Immigration Plan Includes End to “Secure Communities, PBS (Nov. 21, 2014) http://www.pbs.org/wgbh/pages/frontline/immigration-2/obamas-immigration-plan-includes-end-to-secure-communities/(https://perma.cc/JW9W-JJLK).
- 168Johnson Memo, supra note 7, at 1–2.
- 169132 S. Ct. 2492, 2509 (2012).
- 170See Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015).
- 171Illinois v. Caballes, 543 U.S. 405, 408 (2005) (citing United States v. Jacobsen, 466 U.S. 109, 123 (1984)).
- 172Id. (emphasis in original).
- 173See 8 U.S.C. § 1357(a)–(c) (2012).
- 174New York City Exec. Order No. 41, Office of the Mayor of New York (Sept. 17, 2003), http://www.nyc.gov/html/imm/downloads/pdf/eo-41.pdf(https://perma.cc/KFM3-DEX8).
- 175Id.
- 176See generally Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (as passed by Senate, June 27, 2013).
- 177S. 744, Border Security, Economic Opportunity, and Immigration Modernization Act 21, Cong. Budget Off. (June 18, 2013). Although the Congressional Budget Office released an updated cost estimate after the Senate passed the bill on June 27, 2013, it noted that estimates of the number of individuals who could legalize their immigration status remained the same. See Letter from Douglas W. Elmendorf, Director of the Congressional Budget Office, to U.S. Senator Patrick J. Leahy, Chairman of the Committee on the Judiciary 5 (July 3, 2013), https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/costestimate/s744aspassed0.pdf(https://perma.cc/ND9Y-L7SR). As of 2014, approximately 11.3 million undocumented individuals live in the United States. Jens Manuel Krogstad & Jeffrey S. Passel, 5 Facts about Illegal Immigration in the U.S., Pew Research Ctr., http://www.pewresearch.org/fact-tank/2015/11/19/5-facts-about-illegal-immigration-in-the-u-s/(https://perma.cc/E269-YHCY) (last visited May 5, 2016).
- 178See, e.g., End Racial Profiling Act of 2001, S. 989, 107th Cong. (2001); End Racial Profiling Act of 2001, H.R. 2074, 107th Cong. (2001).
- 179End Racial Profiling Act of 2015, S. 1056, 114th Cong. (2015).
- 180Id.
- 181Border Security, Economic Opportunity, and Immigration Moderation Act, S. 744, 113th Cong. § 3305, (as passed by Senate, June 27, 2013).
- 182See Dep’t of Just., Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity Justice (Dec. 2014).
- 183Id. at 1.
- 184Id.
- 185Sari Horwitz, Justice Dept. Announces New Rules to Curb Racial Profiling by Federal Law Enforcement, Wash. Post (Dec. 8, 2014), https://www.washingtonpost.com/world/national-security/justice-dept-to-announce-new-rules-to-curb-racial-profiling-by-federal-law-enforcement/2014/12/07/e00eca18-7e79-11e4-9f38-95a187e4c1f7story.html(https://perma.cc/U5H7-LMUP).