The opinion of the court was delivered by: Marshall, District Judge.
In addition to area control operations, INS conducts
operations in which individuals are stopped on the street and
The motions for summary judgment currently before the court
present the question of whether the policies of the INS
outlined above are in conformity with the Constitution and the
modified preliminary injunction currently in force. For
purposes of these motions, defendants concede that the order
states the constitutional limitations on the power of the INS
to conduct searches, arrests, and investigatory stops. The only
issue is whether INS policy complies with the injunction and
Before evaluating the specific claims of the parties made in
the motions for summary judgment,
constitutional limitations on INS's power to interrogate and
arrest persons be stated.
The fourth amendment applies to "seizures." The Supreme Court
has stated that a seizure, for purposes of the fourth
amendment, occurs "[o]nly when the [government] officer, by
means of physical force or show of authority, has in some way
restrained the liberty of a citizen. . . ." Terry v.
Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879, 20
L.Ed.2d 889 (1968). See also id. at 16, 88 S.Ct. at
1877 ("[w]henever a police officer accosts an individual and
restrains his freedom to walk away, he has `seized' that
person,"). The Court has consistently followed the
Terry test, requiring some meaningful restraint on the
freedom of movement of a person before it deems a "seizure" to
have taken place. See Michigan v. Summers,
452 U.S. 692, 696, 101 S.Ct. 2587, 2590 n. 5, 69 L.Ed.2d 340 (1981);
Reid v. Georgia, 448 U.S. 438, 440 n. *, 100 S.Ct.
2752, 2753 n. *, 65 L.Ed.2d 1890 (1980) (per curiam);
United States v. Mendenhall, 446 U.S. 544, 552-54, 100
S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980) (opinion of Stewart,
J.); Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637,
2640, 61 L.Ed.2d 357 (1979); Dunaway v. New York,
442 U.S. 200, 207 n. 6, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824 (1979);
United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95
S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975); Davis v.
Mississippi, 394 U.S. 721, 726-27, 89 S.Ct. 1394, 1397, 22
L.Ed.2d 676 (1969).*fn4 However, when a person is not deprived
of liberty, but merely voluntarily cooperates with the
authorities, then he has not been seized for purposes of the
fourth amendment. See Sibron v. New York, 392 U.S. 40,
63, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968). Accordingly,
when a person voluntarily cooperates with INS, is in no
meaningful way detained, and retains his "freedom to walk
away," Terry v. Ohio, 392 U.S. at 16, 88 S.Ct. at
1877, then no "seizure" occurs, and the fourth amendment cannot
be violated. See Cuevas-Ortega v. INS, 588 F.2d 1274,
1276-77 (9th Cir. 1979); Shu Fuk Cheung v. INS,
476 F.2d 1180, 1181-82 (8th Cir. 1973); Cheung Tin Wong v.
INS, 468 F.2d 1123, 1126-27 (D.C. Cir. 1972); Au Yi
Lau v. INS, 445 F.2d 217, 222-23 (D.C. Cir.), cert.
denied, 404 U.S. 864, 92 S.Ct. 64, 30 L.Ed.2d 108 (1971);
Yam Sang Kwai v. INS, 411 F.2d 683, 688-89 (D.C. Cir.)
(McGowan, J., concurring in the result), cert. denied,
396 U.S. 877, 90 S.Ct. 148, 24 L.Ed.2d 135 (1969).*fn5 This
standard is embodied in the preliminary injunction, as
The fourth amendment prohibits unreasonable seizures.
Therefore, once it is determined that a "seizure" has occurred,
the question arises whether it is reasonable. This requires
balancing the public interest in effective law enforcement
against the individual's interest in remaining free of
arbitrary or oppressive governmental intrusions. See, e.g.,
United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96
S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976); United States v.
Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45
L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. at 20-21,
88 S.Ct. at 1879. The general requirement for a reasonable
seizure is probable cause. No one disputes the power of an INS
agent to seize a person when the agent has probable cause to
believe the individual in question is an alien unlawfully in
the United States. Rather, this case involves the scope of
INS's power to operate when it does not have probable cause. In
Brignoni-Ponce, the Supreme Court held that INS may
stop and briefly detain a vehicle and interrogate persons
therein if INS agents "are aware of specific articulable facts,
together with rational inferences from those facts, that
reasonably warrant suspicion that [the persons in question are]
aliens who may be illegally
in the country." 422 U.S. at 884, 95 S.Ct. at 2582 (footnote
omitted).*fn7 Plaintiffs concede that, under
Brignoni-Ponce, INS may stop and briefly detain and
interrogate persons when there is reasonable suspicion that
they may be aliens unlawfully in the country.*fn8 However,
there remains the question, reserved by the Court in
Brignoni-Ponce, whether INS may stop and detain
individuals based solely on a reasonable suspicion that they
are aliens, without any reason to believe they are unlawfully
in the country. See id. at 884 n. 9, 95 S.Ct. at 282.
The law of the case on this point is that INS may not so act.
See 540 F.2d at 1070; 398 F. Supp. at 898-99. We are
not inclined to alter this holding, for we are convinced that
it is mandated by the fourth amendment.
The Court has consistently held that an investigatory stop
based on less than probable cause may only be performed if
there is a reasonable suspicion, based on specific articulable
facts concerning the individual in question, that the
individual stopped is engaged in criminal activity.
The Court's most recent statement of this principle is found in
United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690,
66 L.Ed.2d 621 (1981), where it stated, "An investigatory stop
must be justified by some objective manifestation that the
person stopped is, or is about to be, engaged in criminal
behavior." Id. at 417, 101 S.Ct. at 695 (footnote
omitted). The Court then went on to note that investigatory
stops may only be performed when the totality of circumstances
raise[s] a suspicion that the particular
individual being stopped is engaged in wrongdoing.
Chief Justice Warren, speaking for the Court in
Terry v. Ohio, supra, said that "[t]his
demand for specificity in the information upon
which police action is predicated is the central
teaching of this Court's Fourth Amendment
jurisprudence. Id. at 418, 101 S.Ct. at
695 (emphasis deleted) (quoting Terry v.
Ohio, 392 U.S. at 21 n. 18, 88 S.Ct. at
The principle that investigatory stops are only justified when
there is reasonable suspicion of criminal activity was first
enunciated in Terry, where the Court wrote, "a police
officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating
possibly criminal behavior even though there is no
probable cause to make an arrest." 392 U.S. at 22, 188 S.Ct. at
1880 (emphasis supplied). In its fourth amendment jurisprudence
between Terry and Cortez, the Court has
consistently adhered to the principle that suspicion of
criminal activity is required before an investigatory stop can
be made. See Reid v. Georgia,
, 440, 100
S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980) (per curiam); Adams
, 145, 92 S.Ct. 1921, 1922, 32
L.Ed.2d 612 (1972); Sibron v. New York,
64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968).
also Dunaway v. New York,
, 209-16, 99 S.Ct.
2248, 2254-58, 60 L.Ed.2d 824 (1979). To allow INS to conduct
investigatory stops when it suspects only that the person
stopped is an alien is to subvert this fundamental principle of
fourth amendment jurisprudence. In such cases, there is no
suspicion that the individual stopped is engaged in criminal
activity. If the INS had this power, it would be able to
arbitrarily "seize" a large category of persons, many if not
most of whom are presumably engaged in no wrongdoing. That is
the sort of general seizure, not linked to specific facts which
give rise to an inference that the specific individual seized
is engaged in criminal activity, which the fourth amendment
prohibits. See Reid v. Georgia, 448 U.S. at 440-41,
100 S.Ct. at 2753-54; Brignoni-Ponce,
Accord, Cordon de Ruano v. INS,
, 946 (9th Cir. 1977); Marquez v. Kiley,
436 F. Supp. 110, 114 (E.D.N.Y. 1977).
We now turn to the specific issues raised by the motions for
Defendants contend that their policy of stopping and
questioning individuals when agents reasonably suspect the
person stopped is an alien is constitutional. Defendants argue
that this policy does not involve "seizures," since individuals
are never detained and remain free to walk away during these
encounters. To support their position, defendants rely on
United States Department of Justice, The Law of Search and
Seizure for Immigration Officers 4 (M-69, rev. 1979),
reprinted in Plaintiffs' Appendix at 30, which states
that a "stop and question" of a pedestrian requires the
voluntary cooperation of the person stopped. Plaintiffs argue
that this policy does result in "seizures." They rely on the
language in the Stipulated Facts stating that INS "stops"
individuals. The notion of a "stop," plaintiffs argue, connotes
a limitation on freedom of movement. Plaintiffs also rely on a
set of guidelines issued by INS which state that agents should
"insist" on answers to their questions during these "stops."
See Plaintiffs' Appendix at 25.
On this issue, there is a genuine issue of material fact.
Each side has submitted evidence which supports its view of
what the INS policy and practice actually are; neither side's
evidence is conclusive. Since the evidence is in conflict, this
question must be resolved at trial. Summary judgment will not
be granted on this issue. See Fed.R.Civ.P. 56(c).
Next, we turn to INS's policy of stationing agents at all
exits during area control operations, in order to secure the
premises and prevent persons whom the agents have probable
cause or reasonable suspicion to believe are aliens from
leaving the premises during the operation.
It is clear that this policy results in "seizures" for
purposes of the fourth amendment.*fn12 The entire purpose of
the policy of "securing the premises" is to ensure that the
agents "control" the aliens during the course of the "control
operation." The agents stationed at the exits are specifically
instructed to prevent from leaving those individuals they
suspect are aliens. The record reveals that the agents do in
fact surround and detain all persons on the premises during
control operations. See Plaintiffs' Appendix at 88-93,
97-102, 104-09, 145-46.
As to the first factor, defendants have cited us to no case
approving administrative warrants authorizing INS searches of
dwellings, and we have found no evidence of a long history of
judicial or public acceptance. In fact, the administrative
warrant procedure INS urges on this court appears to have had
its birth in Blackie's, and even that case did not
apply the procedure to the search of dwellings. As to the
second factor, this case does not involve a threat to public
health and safety such as is the case with building codes.
Moreover, there are techniques beside that suggested by
defendants to enforce the immigration laws. In particular, the
preliminary injunction allows
INS to obtain warrants supported by probable cause. To obtain
such a warrant, INS need obtain only that quantum of evidence
which would warrant a man of reasonable prudence to conclude
that evidence of a crime will be found on the premises to be
searched. We hardly think INS will be crippled if it is not
permitted to conduct those searches which a magistrate believes
are not warranted under this "reasonable prudence" standard. In
fact, the court of appeals stated that the standard contained
in the preliminary injunction serves the public interest.
See 540 F.2d at 1071. As to the third factor, the
searches INS seeks to conduct are "personal in nature." These
searches are designed to result in the interrogation and
detention of those found on the premises who INS suspects are
illegal aliens. These searches are far more intrusive than the
simple building code inspections at issue in Camara.
Therefore, the balancing process mandated by Camara
indicates that INS is not justified in obtaining warrants to
search homes, those areas most highly protected by the fourth
amendment, on the basis of anything less than probable cause to
believe that evidence of violations of the immigration laws
will be found on the premises. The preliminary injunction will
not be modified to allow INS to obtain warrants to search
dwellings under the relaxed probable cause standard of
Blackie's House of Beef.
Finally, we turn to the question of the appropriate relief in
this case. Under the law of the case, injunctive relief is
appropriate, since plaintiffs have demonstrated irreparable
injury by showing that INS has adopted an unconstitutional
policy and practice with respect to detention of persons
believed to be aliens during area control operation.
See 548 F.2d at 1067 ("Because plaintiffs have shown
a specific pattern of conduct, akin to an explicit policy, they
have demonstrated a reasonable likelihood of future harm,
justifying their request for injunctive relief.") The other
requirements for injunctive relief, lack of serious adverse
effects on others and sufficient public interest, are met.
Compelling the INS agents to comply with the
dictates of the Fourth Amendment does not impose
an improper burden upon them. We also do not
believe that enforcement of the injunction will
unduly burden the defendants. The degree of court
supervision of defendants' activity is that upheld
in Allee v. Mendrano, [416 U.S. 802, 94
S.Ct. 2191, 40 L.Ed.2d 566 (1974)] and Hague
v. CIO, [307 U.S. 496, 59 S.Ct. 954, 83 L.Ed.
1423 (1939)]. As in those cases, the defendants
will still be able to exercise the full breadth of
their lawful authority. Further, the injunction
requires the court to review only those actions in
which defendants allegedly violate plaintiffs'
rights. It thereby avoids the problem . . . of
attempting to regulate the internal affairs of the
agency. Finally, the public interest is
served . . . for otherwise the dragnet practices
violating the Fourth Amendment rights of plaintiffs
could continue unabated. 540 F.2d at 1071 (footnote
omitted) (some citations omitted).
Accordingly, the judgment of this court is as follows. On the
issue of INS detention of persons believed to be aliens during
area control operations, plaintiffs' motion for summary
judgment is granted and defendants' motion for summary judgment
is denied. On the issue of INS policy regarding the procurement
of so-called dragnet search warrants, defendants' motion for
summary judgment is granted and plaintiffs' motion for summary
judgment is denied. On the issue of INS "stop and question"
policy, plaintiffs' and defendants' motions for summary
judgment are denied, and the issue of INS's policy and practice
with respect thereto is held for trial. Defendants' motion for
further modification of the preliminary injunction is denied.
Defendants will be permanently enjoined from detaining or
limiting, through force, threats of force, or a command based
on official authority, the freedom of movement of plaintiffs or
any person of Mexican ancestry or of a Spanish surname who is,
will be or has been lawfully present in the Northern District
unless defendants have a valid warrant to arrest or search such
person, have probable cause to search or arrest such person
without a warrant, or have reasonable suspicion based on
specific articulable facts that such person is an alien
unlawfully in the United States, during the course of area
control operations or any other law enforcement operation;
provided, however, that defendants and those acting pursuant to
defendants' instructions or in concert with them will not be
enjoined or restrained from interrogating a person, without
detention, concerning the person's right to be in the United
States if they reasonably believe the person to be an alien.
The cause is set for report on status and to set for trial on
the above identified issue on January 27, 1982 at 10:00