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May 21, 1984


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


Kotler Industries, Inc. ("Kotler") is an Illinois corporation with two factories located at 2646 West Fulton and 300 North Oakley in Chicago. Since the fall of 1980, the Immigration and Naturalization Service ("INS") has made several attempts to search Kotler's employment records and premises for illegal aliens. Acting under two warrants issued by a United States magistrate, the INS searched Kotler's factories on July 20, 1983, and arrested more than thirty Kotler employees on the basis of their illegal presence in this country. Kotler then filed this suit, seeking a declaratory judgment that the INS searches of its premises and the arrests of its employees violated Kotler's rights under the Fourth, Fifth and Ninth Amendments to the United States Constitution. Kotler also requests an injunction prohibiting the defendants from conducting "constitutionally impermissible area control operations" against it in the future. The parties agree that there are no disputed issues of material fact in this case, and they have filed cross-motions for summary judgment. For the reasons set forth below, Kotler's motion for summary judgment is denied, and the defendants' motion for summary judgment is granted.

Kotler, the owner of the factories which the INS searched, is the only plaintiff in this action None of Kotler's employees who were questioned or arrested by the INS are parties. The INS searches implicate two distinct interests: Kotler's interest in being free from unreasonable searches of its factories and the employees' interests in being free from unreasonable searches and seizures. Cf. Steagald v. United States, 451 U.S. 204, 216, 101 S.Ct. 1642, 1649-50, 68 L.Ed.2d 38 (1981) (distinguishing interests of subject of arrest warrant and third party in whose home government agents searched for subject). Kotler blurs this distinction and repeatedly asserts certain rights of its employees. For example, Kotler requests a declaration that the arrests of its employees were illegal. However, Kotler does not have standing to assert its employees' claims, and we decline to reach any questions concerning the individual employees' constitutional rights. E.g., Garcia v. INS, No. 81-F-680, slip op. at 8, 23, 25 (D.Colo. Nov. 4, 1982); see also Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978) (Fourth Amendment rights are personal and may not be asserted vicariously); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969) (same); Babula v. INS, 665 F.2d 293, 297 (3d Cir. 1981) (employees cannot assert Fourth Amendment rights of factory owner); Illinois Migrant Council v. Pilliod, 531 F. Supp. 1011, 1020 n. 18 (N.D.Ill. 1982) (same).*fn1 Kotler's interests in this case are thus limited to ensuring that the search warrants were properly issued, supported by the requisite degree of probable cause and executed in a manner consonant with the language authorizing the search.


Kotler argues first that the magistrate had no authority to issue civil warrants permitting the INS to search for illegal aliens. This contention is meritless. As the District of Columbia Circuit Court of Appeals has explained, the power of the INS to obtain search warrants for commercial premises may be inferred from its general statutory power to seek out and question suspected illegal aliens. Blackie's House of Beef Inc. v. Castillo, 659 F.2d 1211, 1219-22 (D.C.Cir. 1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982). The United States Supreme Court made this same inference quite recently in INS v. Delgado, ___ U.S. ___, 104 S.Ct. 1758, 1763 n. 5, 80 L.Ed.2d 247 (1984) (INS agents acting under search warrants were "lawfully present" in factory). Since the INS may seek and use civil warrants for factory searches, it is clear that federal magistrates and judges may properly issue such warrants. Cf. 28 U.S.C. § 1651 (courts may issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law"); United States v. Illinois Bell Telephone Co., 531 F.2d 809 (7th Cir. 1976) (district court had authority to order installation of pen register).


Kotler also claims that the magistrate issued the search warrants without a sufficient showing of probable cause. Kotler argues that the traditional criminal law standard of probable cause should be applied to the search warrants in this case. Citing Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965), and Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), for the proposition that general searches are forbidden by the Fourth Amendment, Kotler reasons that the evidence presented the magistrate and the warrants which the magistrate issued should have particularly described each of the suspected illegal aliens to be searched for by the INS.

The defendants argue that a less rigid standard of probable cause should be applied to warrants obtained by the INS for factory searches. They assert that because the detention and deportation of illegal aliens is a civil law enforcement activity,*fn2 the INS search warrant differs significantly from a traditional criminal warrant. The defendants urge this Court to follow the District of Columbia Circuit's decision in Blackie's House of Beef Inc. v. Castillo, 659 F.2d 1211 (D.C.Cir. 1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982), which held that a more flexible definition of probable cause is appropriate "to comport with the multiplicity of `hybrid' administrative law enforcement activities in a noncriminal context." Id. at 1222.

The Blackie's Court relied considerably on the Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). In Barlow's, the Court held unconstitutional a statute which allowed OSHA officials to conduct a warrantless search of the work area of any facility within OSHA's jurisdiction. The Court ruled that absent a proper warrant or exigent circumstances, such an intrusion upon commercial premises, even if motivated by a valid regulatory purpose, violates the Fourth Amendment. The Court then discussed the type of warrant sufficient to support a routine OSHA inspection:

  Probable cause in the criminal law sense is not
  required. For purposes of an administrative search
  such as this, probable cause justifying the issuance
  of a warrant may be based not only on specific
  evidence of an existing violation but also on a
  showing that "reasonable legislative or administrative
  standards for conducting an . . . inspection are
  satisfied with respect to a particular

Id. at 320, 98 S.Ct. at 1824, quoting Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (emphasis added). The Seventh Circuit has read Barlow's as holding that criminal probable cause is not required for either routine administrative plan inspections or searches based on specific evidence of an existing violation. Burkart Randall Division of Textron, Inc. v. Marshall, 625 F.2d 1313, 1317 (7th Cir. 1980). The Blackie's Court found the reasoning of Barlow's and Burkart dealing with OSHA factory searches to be equally applicable to INS searches.

We agree with the District of Columbia Court of Appeals that, at least insofar as a factory owner's rights are concerned, the INS may obtain a search warrant by satisfying a more flexible standard of probable cause than that traditionally applied in criminal cases.*fn3 In this case, the INS presented specific evidence to a United States magistrate that Kotler was employing illegal aliens. Such evidence that persons illegally present in this country are working for a particular company may be sufficient to support INS searches of that company's premises.

Kotler claims that the INS's reliance on anonymous tips was improper. Not only did the INS lack information about the informants' knowledge or reliability, but the INS learned — before it obtained and executed the search warrants — that some of the suspects named by the anonymous callers were legally present in this country. However, the anonymous tips were corroborated in other respects: some of the suspects named by callers were arrested and determined to be illegal aliens, and some Kotler employees who were apprehended by the INS named other aliens who also had been identified by the anonymous callers. Thus, the totality of circumstances indicates that at least some of the information provided by the callers was accurate. Neither the INS nor the magistrate erred in considering this information. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Taken together, the information provided by the anonymous callers and ...

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