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ILLINOIS MIGRANT COUNCIL v. PILLIOD

January 19, 1982

ILLINOIS MIGRANT COUNCIL, ET AL., PLAINTIFFS,
v.
ALVA L. PILLIOD, ET AL., DEFENDANTS. ILLINOIS MIGRANT COUNCIL, ET AL., PLAINTIFFS, V. DAVID VANDERSALL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Marshall, District Judge.

    MEMORANDUM OPINION
  These consolidated cases present a challenge to the practices
of the Immigration and Naturalization Service (INS). Plaintiffs
allege that INS has a systematic practice and policy of
harassing the plaintiff class of all persons of Mexican
ancestry or Spanish surname lawfully in the Northern District
of Illinois. This court entered a preliminary injunction
against certain policies and practices of the defendants.
See Illinois Migrant Council v. Pilliod, 398 F. Supp. 882
 (N.D.Ill. 1975), aff'd, 540 F.2d 1062 (7th Cir.
1976), modified, 548 F.2d 715 (1977) (en banc). The
parties currently have cross motions for summary judgment
pending on the issue of the legality of INS's current policies.
Also, defendants have pending a motion to modify the
preliminary injunction.

The parties have stipulated to a number of facts. For purposes of the pending motions, the following facts are relevant. INS has statutory authority to interrogate aliens as to their right to remain in the United States, and to arrest aliens reasonably believed to be unlawfully present in the United States. 8 U.S.C. § 1357(a)(1) & (2) (1976). Pursuant to this power, INS conducts "area control operations," which are law enforcement operations designed to detect aliens unlawfully present in the United States. Appendix to Plaintiffs' Memorandum in Support of Summary Judgment at 5 [hereinafter cited as Plaintiffs' Appendix]. Area control operations are initiated on the basis of information such as anonymous tips, reports from informants, prior experience with employers, and review of employment records. Id. at 6. It is the policy of INS to focus these area control operations on businesses employing aliens, id. at 5-6, although they also are conducted at places such as landscaping sites, private homes, apartment buildings, O'Hare International Airport, and Union Station in Chicago, id. at 6.

  In conducting area control operations, INS
  criminal investigators are routinely stationed at
  exits to the factories or residences to secure the
  premises and to prevent persons, for whom the
  agents believe there is probable cause or
  reasonable suspicion that such persons are aliens,
  from leaving the premises, while entry to the
  building is effected and the operation is
  conducted. Id. at 7.

In addition to area control operations, INS conducts operations in which individuals are stopped on the street and questioned as to their immigration status.*fn1 In conducting these operations, officials of INS are guided by

  the policy of INS that officers may stop and
  question a person regarding his right to be or
  remain in the United States on probable cause or
  reasonable suspicion based on specific articulable
  facts and rational inferences drawn from those
  facts that the person is an alien. Id. at
  5.

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 the Constitution.*fn2

The modified preliminary injunction enjoins defendants from

    (a) entering homes, dormitories, cottages or
  other dwellings in the Northern District of
  Illinois which are occupied by 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 of Illinois, unless they
  possess a valid warrant to search or arrest, have
  probable cause to enter without such warrant, or
  have received permission voluntarily given by one
  lawfully entitled to give permission to enter;
    (b) arresting 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 of Illinois unless they possess
  a valid warrant to search or arrest such person or
  have probable cause to search or arrest such
  person without a warrant;
    (c) stopping, detaining, and interrogating by
  force, threats of force or a command based upon
  official authority, 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 of Illinois, unless they possess
  a valid warrant to search or arrest 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; provided, however, that defendants and
  those acting pursuant to defendants' instructions
  or in concert with them are not 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.

Before evaluating the specific claims of the parties made in the motions for summary judgment,*fn3 it is essential that the 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 modified.*fn6

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 ...


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