Wednesday, December 07, 2011
For All You 4th Amendment Nerds
Like other law profs across the country, I’m sometimes asked to comment on legal issues for the local media. Pursuant to one such media request, I recently learned about an order for supplemental briefing in a local case that raises some interesting 4th Amendment questions. Those 4th Amendment questions arise out of the ongoing SB 1070 immigration litigation.
The case at issue is a federal lawsuit claiming 4th and 14th Amendment violations based on allegations that the local sheriff’s office is engaging in racial profiling and pretextual traffic stops in order to ascertain the immigration status of Latinos. (More information about the case can be found here and here.) Both parties in the case have filed motions for summary judgment --- the sheriff’s office has moved for summary judgment on both the 4th and 14th Amendment claims; the plaintiffs have moved for summary judgment on the 14th Amendment claim.
Reading through the motion papers, I assume the plaintiffs didn’t move for SJ on the 4th Amendment claim because each of the traffic stops could be justified on non-racial grounds. Whren v. United States, 517 U.S. 806 (1996), tells us that pretextual traffic stops can’t be challenged successfully under the 4th Amendment --- that is, a stop that can be justified under the Fourth Amendment based on a pretextual reason is constitutional even if the officer’s subjective motive for stopping the car cannot be justified under the Fourth Amendment. For example, an officer can stop a car when the driver runs a stop sign even though the officer only wanted to stop the car because she believed the driver was transporting drugs, and that belief was not supported by probable cause or reasonable suspicion.
This case seems to fit squarely within Whren. The lead plaintiff was a passenger in a truck that exceeded the speed limit. There is ample evidence that officers wanted to stop the truck because of immigration violations, but did not have probable cause (or reasonable suspicion) to support their belief of immigration violations. So instead officers followed the truck for a while, waited for the driver to commit a traffic violation, and then pulled the truck over as soon as the driver exceeded the speed limit. During the stop, the officer asked the passengers about their immigration status, requested immigration documentation from the passengers, and arrested the lead plaintiff for what the officer perceived as a violation of federal immigration law.
So why is this an interesting case? The district court just issued an order for supplemental briefing that suggests the ordinary Whren pretextual stop analysis might not apply. In particular, the court stated:
In United States v. Arizona, 641 F.3d 339, 362 (9th Cir. 2011) the Court held that (1) there is no “federal criminal statute making unlawful presence in the United States, alone, a federal crime.” Such violations, as well as other immigration “status” offenses according to the case, constitute civil violations of federal immigration law. The Arizona case also makes clear two additional points: (1) “states do not have the inherent authority to enforce the civil provisions of federal immigration law,” and, (2) that “an alien’s admission of illegal presence . . . does not, without more, provide probable cause of the criminal violation of illegal entry.”
This analysis from United States v. Arizona --- the Ninth Circuit opinion that upheld a preliminary injunction of several sections of Arizona’s controversial SB 1070 --- leads the district court to ask the parties to brief a number of issues, including:
1. What good faith legal basis is there, if any, for [the sheriff’s office] to assert that it has the authority going forward to enforce civil violations of the federal immigration law?
2. What good faith basis is there, if any, for [the sheriff’s office] to assert that it presently has the authority pursuant to any enforceable state or federal law to detain any person based upon a reasonable belief, without more, that the person is not legally present in the United States? [Note: In 2009, after this lawsuit was filed, DOJ revoked the sheriff office’s 287(g) status.]
3. What good faith legal basis is there, if any, for the proposition that Whren v. U.S., 517 U.S. 806 (1996), justifies pretextual stops for the ancillary purpose of investigating civil immigration violations when the officer conducting the stop does not have the authority to enforce civil immigration violations?
While all three of these questions are worth discussing, I think question #3 is particularly intriguing. In an ordinary Whren case, officers are using a pretextual reason for a stop (e.g. a traffic violation) because their subjective reason does not give them sufficient authority --- e.g., because they do not have probable cause to believe the suspect is engaged in a narcotics crime. But in that ordinary case, the officer generally has authority to investigate narcotic crimes, she just doesn’t have authority to stop this particular driver for that particular reason. The district court’s order raises the question whether the ordinary Whren analysis applies when officers don’t have authority to investigate the issue that forms their subjective basis for the stop. Questions #1 & #2 suggest that even if the traffic stop in this case was permissible (because the driver exceeded the speed limit), the officer was not permitted to detain the passengers in the truck to question them about their immigration status.
I know that some courts would assess these issues based solely on whether the officer’s immigration questions unreasonably lengthened the traffic stop. Would those courts take into account the fact that the driver of the truck was never given a citation? Or that other plaintiffs were not subjected to consequences for the pretextual basis of the stop (the traffic violation), so long as they were able to provide proof of citizenship? More generally, what do you 4th Amendment types think about the questions the district court is raising?
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Very interesting questions.
On the limited issue of whether the Fourth Amendment permits state officers to conduct stops based on violations of federal law, cases like Devenpeck v. Alford, 543 U.S. 146 (2004), and Elikins v. United States, 364 U. S. 206 (1960), suggest to me that the answer is probably yes. The cases haven't suggested a limitation based on what kinds of laws that a particular officer can enforce. Such a rule would be hard to apply, I would think, which was a significant concern in Devenpeck: It is common for state officials to help with federal cases, and a limitation on when state officers can enforce federal laws would require some sort of inquiry as to when state officers are sufficiently deputized to enforce federal statutes. That's my off-the-cuff thought, at least.
Posted by: Orin Kerr | Dec 7, 2011 5:17:09 PM
I actually thought Whren was saying that if the subjective motivation was racial profiling (something that would normally violate equal protection), the plaintiffs must bring a claim under the 14 amendment (or 5th amendment if federal gov't) and not the 4th amendment. So even if the true motivation was improper (such as racial profiling) as long as there is an objective reasonable basis for the stop, the 4th amendment is not violated. Consequently, I am puzzled by the 3rd question too. It should not matter that there is no authority for local officials to investigate civil immigration matters (there is also no authority to illegally profile). Under the 4th amendment -- as I read Whren -- the only relevant issue is whether there is an objective basis for the stop that would satisfy the probable cause or reasonable suspicion requirements. It does not matter if the reason is pretextual -- and it does not matter if the real reason is illegal, or something for which there is no authority. (Again, this is just from the 4th amendment perspective). So I think the 3rd question demonstrates a misunderstanding of what the Supreme Court held in Whren (and re-affirmed in the al-Kidd case with the material witness warrant).
Posted by: adjunct law prof | Dec 8, 2011 4:10:54 PM
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