Car Stops, Borders, and Profiling: the Hunt for Undocumented (illegal?) Immigrants in Border Towns

• Publication year: 2021

89 Nebraska L. Rev.709. Car Stops, Borders, and Profiling: The Hunt for Undocumented (Illegal?) Immigrants in Border Towns

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Brian R. Gallini(fn*) and Elizabeth L. Young (fn**)

Car Stops, Borders, and Profiling: The Hunt for Undocumented (Illegal?) Immigrants in Border Towns

TABLE OF CONTENTS

I. Introduction..........................................709

II. The Supreme Court and Officer Discretion.............714
A. Cases of Nationwide Applicability..................714
B. A Few Border-Specific Cases.......................719

III. Immigration Law and Car Stops ...................... 721
A. Immigration Law: The Basics.....................721
B. What Is Illegal about Being an Illegal? ............725
C. Local Law Enforcement and Immigration ..........727

IV. The Constitutionality of Immigrant Profiling..........731

V. Conclusion............................................737

I. INTRODUCTION

Days before his death, southern Arizona rancher Robert Krentz found large quantities of illegal drugs on his 35,000-acre farm and reported it to the police.(fn1) On March 27, 2010, Krentz was shot and killed by an unknown assailant while he worked on an isolated corner

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of the ranch.(fn2) Many speculated that the assailant who killed Krentz was in the country illegally, and,(fn3) for many, Krentz's death justified associating the immigration issue with danger.(fn4)

Three weeks later, the Governor of Arizona had the Support Our Law Enforcement and Safe Neighborhoods Act (the Act or the Arizona Act) on her desk.(fn5) Otherwise known as SB 1070, the patchwork set of laws makes it a misdemeanor to lack proper immigration paperwork in Arizona.(fn6) More controversially, the Act also enables officers who develop a "reasonable suspicion" to believe that someone is undocumented to stop that individual and determine the person's immigration status.(fn7) An individual's inability to provide government-issued identification proving legal residency, such as a driver's license, subjects that individual to twenty days in jail for the first violation (thirty for subsequent violations) and a fine of up to $100 plus jail costs.(fn8) In an effort to soften the Act's obvious ethnic and racial implications, it expressly states that "[a] law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution."(fn9)

Public response to the Act has been extreme and appeared from unlikely sources. Arizona's professional basketball team, the Phoenix Suns, wore their orange "Los Suns" jerseys on May 5, 2010, in the second game of their playoff series against the San Antonio Spurs in

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part to express opposition to the new Arizona immigration law.(fn10) In a press release issued before the game, the Suns' owner, Robert Sarver, suggested that "frustration with the federal government's failure to deal with the issue of illegal immigration resulted in passage of a flawed state law."(fn11)

Major League Baseball has also protested the law. Approximately 27% of Major League Baseball players are Latino, and nearly half of the teams hold their spring training camps in Arizona.(fn12) Protestors turned out to Wrigley Field in Chicago to rally against the Act just before the Chicago Cubs were set to take on the Arizona Diamondbacks.(fn13) Given the Major League Baseball Players Association's opposition to the Act, there is growing speculation that fans will boycott the MLB's 2011 All-Star game-currently scheduled in Phoenix.(fn14)

Of course, the athletic community is hardly alone in voicing displeasure with the Act. Rallies nationwide-including in New York, Los Angeles, Chicago, Dallas, and Denver-have unified thousands in favor of federal immigration reform and to protest the passage of the Arizona Act.(fn15) University of Arizona students have pressed the university's president, Robert N. Shelton, to publicly denounce the Act and, in doing so, have noted that "[t]he families of a number of out-of-state students (to date all of them honors students) have told us that they are changing their plans and will be sending their children to universities in other states."(fn16) Moreover, city councils in Oakland and

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San Francisco have voted to economically boycott Arizona.(fn17) other cities are actively contemplating doing the same.(fn18)

Perhaps most importantly, however, the federal judiciary recently weighed in by enjoining enforcement of most of the Act.(fn19) United States District Court Judge Susan R. Bolton found that "preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be en-forced."(fn20) By enjoining enforcement of the Act on preemption grounds, the accompanying Fourth Amendment issue remains unresolved.

Preemption aside, the Act seems to suggest that "driving while black"(fn21) is out with the 2000s, and in Arizona "driving (or breathing?) while brown" is now "in."(fn22) Are citizens therefore no longer concerned with law enforcement profiling African-Americans? of course not.(fn23)

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The Arizona Act merely serves to continue an effort-this time at the legislative level-to broaden the discretionary power of law enforcement. Yet, a fascinating question lies at the base of the public's pervasive criticism of the Act: where have all of you people been? Numerous Supreme Court cases already allow for law enforcement to engage in the very practice-racial and ethnic profiling premised on "reasonable suspicion"(fn24)-that has incited the emotions of so many

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citizens nationwide. Thus, regardless of whether the Act is preempted, the very conduct codified by the Act and objectionable to so many is already condoned by a series of Supreme Court cases.

This Article therefore argues that the Arizona Act, while notable for the public response to it, is merely emblematic of a much larger and systemic problem that exists because of the collective core holdings from several Supreme Court Fourth Amendment cases. indeed, law enforcement stops of persons lawfully present in the United States using an "illegal immigrant" profile existed before the Act and will remain permissible regardless of the Act's ultimate fate. Part i of this Article compiles and synthesizes varied Supreme Court cases that bestow upon local law enforcement an inordinate amount of discretionary law enforcement power both on the street and in an automobile. Part ii offers a primer on immigration law in order to thereafter explain what exactly is illegal about being an "illegal immigrant." it also considers the available law enforcement agencies-both federal and state-charged with enforcing immigration law. Part III contends that the combination of law enforcement tools and immigration consequences provides law enforcement with a level of power and discretion comparable to that bestowed by the Arizona Act. That power, Part III asserts, allows for the pervasive de facto or express creation of an "illegal immigrant" profile and a corresponding propensity by law enforcement to stop individuals or cars using that profile.

II. THE SUPREME COURT AND OFFICER DISCRETION

This Part seeks to non-exhaustively synthesize several Supreme Court cases that, when applied at the border, equal or exceed the level of discretion bestowed upon officers by the Arizona Act. In doing so, section II.A first considers notable Supreme Court cases that apply nationwide-without regard to a suspect's relationship to the border. Then, section II.B briefly reviews a handful of border-specific Supreme Court cases.

A. Cases of Nationwide Applicability

To be clear at the outset, the Fourth Amendment to the United States Constitution serves as the limitation on the government's ability to impede or otherwise limit citizens' freedom of movement.(fn25)Within the context of stopping a vehicle or detaining a citizen on the street, the first question is whether, during that stop or detention, officers have "seized" the individual within the meaning of the Fourth Amendment. The importance of that question cannot be overstated;

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indeed, if the police activity is not a "seizure," then the Fourth Amendment simply does not apply to the governmental conduct.(fn26)

Unlike the word "search," which has only one constitutional defini-tion,(fn27) the word "seizure" has two: one that relates to property and the other that relates to the seizure of persons.(fn28) In the case of persons, law enforcement must have adequate cause to seize an individual, and, in the specific case of an in-home arrest, officers must ordinarily possess an arrest warrant.(fn29) Regardless of whether an arrest warrant is required, however, an arrest or its functional equivalent must be supported by probable cause.(fn30)

The Court has, however, also held that circumstances short of an arrest may constitute a less intrusive seizure, subject to a less stringent level of Fourth Amendment review. In the context of officer-citizen encounters, a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave.(fn31) Assuming a person has been seized...