TABLE OF CONTENTS INTRODUCTION 1072 I. THE FOURTH AMENDMENT'S PROSCRIPTION AGAINST UNREASONABLE SEIZURES 1076 A. What Is a "Seizure"? 1077 B. What Is an "Unreasonable" Seizure? 1078 C. Checkpoints as Constitutional (or Unconstitutional) "Seizures" 1079 II. THE CONSTITUTIONALITY OF WARRANT CHECKPOINTS AT NATURAL DISASTER SHELTERS 1082 A. Warrant Checkpoints at Natural Disaster Shelters as Seizures Within the Meaning of the Fourth Amendment 1083 B. The Reasonableness of Warrant Checkpoints at Natural Disaster Shelters 1089 1. Framing the Public Interest that Warrant Checkpoints Address 1089 2. The Effectiveness of Warrant Checkpoints in Advancing the Asserted Public Interest 1092 3. Balancing the Public Interests that Warrant Checkpoints Advance with Their Intrusion on Privacy 1093 III. THE CONSTITUTIONALITY OF IMMIGRATION STATUS ENFORCEMENT AT NATURAL DISASTER SHELTERS 1097 A. Setting the Stage: Defining Consensual Encounters 1099 B. Challenging the "Consensual Encounter" Label for Immigration Status Enforcement at Natural Disaster Shelters 1100 C. Immigration Status Enforcement Within Natural Disaster Shelters as "Consensual Encounters" 1105 CONCLUSION 1110 INTRODUCTION
As of 2014, an estimated 575,000 undocumented immigrants called Houston, Texas home--making Houston the third largest major U.S. metropolitan area in terms of its total unauthorized immigrant population. (1) The Dallas, Fort Worth, and Arlington, Texas metropolitan area ranked right behind Houston, with an estimated 475,000 undocumented immigrants living there in 2014. (2) Then, against the backdrop of increased enforcement of immigration laws in Texas, came Hurricane Harvey in August 2017. (3)
Prior to Harvey's arrival, the U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) released a joint statement assuring residents that "[r]outine noncriminal immigration enforcement operations will not be conducted at evacuation sites, or assistance centers." (4) Although this comported with ICE and CBP's practices during other recent hurricanes, (5) many undocumented immigrants nonetheless feared that heading to a hurricane shelter would put them at a substantial risk for deportation--placing many of them in a life-threatening predicament. (6)
Take, for example, the story of Maria, an undocumented immigrant living in Houston during Hurricane Harvey. (7) The hurricane's floodwaters began to seep into Maria's home faster and faster. (8) But after restlessly waiting for over three hours for rescuers to reach her and her loved ones, Maria realized that she needed to act. (9) With her wheelchair-bound friend and three younger children situated in an inflatable kiddie pool, Maria led her family for seventy-five minutes through frigid, chest-deep floodwaters to the local hurricane shelter. (10) Yet the floodwaters did not scare Maria the most." Instead, Maria wondered what would happen when she reached the shelter--would they ask her for papers? (12) Despite fearing that the choice to head to the shelter may leave her five American-born children without parents, she continued on. (13)
Less than two weeks later, Florida found itself bracing for Hurricane Irma, "one of the strongest Atlantic hurricanes ever observed." (14) Just days before Irma's life-threatening impact, (15) Sheriff Grady Judd of the Polk County Sheriff's Office took to Twitter to make this proclamation to Polk County, Florida residents: "If you go to a shelter for #Irma, be advised: sworn [law enforcement officers] will be at every shelter, checking IDs. Sex offenders/predators will not be allowed." (16) In a follow-up tweet, Sheriff Judd reiterated: "If you go to a shelter for #Irma and you have a warrant, we'll gladly escort you to the safe and secure shelter called the Polk County Jail." (17) A Polk County Sheriff's spokeswoman later clarified that officials would not be checking entrants' immigration status. (18)
Sheriff Judd's tweets sent Shockwaves throughout the country, (19) and the policy was even subject to a lawsuit in Florida state court. (20) According to court documents, Polk County officers stationed themselves outside of Polk County shelters, stopped every individual seeking entry, and gave each person two options: provide a valid, state-issued ID so that officers could run a warrant check, or provide fingerprints for later analysis. (21) Plaintiffs sought to have this practice declared unconstitutional, claiming that these "checkpoints" were unreasonable searches and seizures under the Fourth Amendment. (22) One Polk County Sheriff's official characterized the lawsuit as "frivolous and without merit." (23)
The decisions Texas and Florida officials made during Hurricanes Harvey and Irma, respectively, raise two seemingly unprecedented constitutional issues--both of which this Note will address. First, does the Constitution allow states and/or the federal government to establish "checkpoints" to screen entrants to state-sponsored natural disaster shelters for outstanding arrest warrants? The Fourth Amendment protects against "unreasonable searches and seizures," (24) yet the Supreme Court permits suspicionless seizures at state-implemented checkpoints if both the "gravity of the public concerns" at stake and the checkpoint's ability to further that public interest outweigh the checkpoint's intrusiveness into personal liberties. (25) With the number of outstanding arrest warrants in large cities across the country ranging from 70,000 to 1.8 million, (26) the legality of general welfare shelter checkpoints likely would substantially influence whether hundreds of thousands decide to seek shelter from a natural disaster.
Second, does the Fourth Amendment allow ICE agents to enter a natural disaster shelter and inquire as to the occupants' citizenship status? Immigration status enforcement has not yet occurred at natural disaster shelters. (27) However, given President Trump's approach to immigration issues, (28) ranging from promises to build a wall on the U.S.-Mexico border (29) to the administration's controversial immigrant family separation policy, (30) it is entirely feasible that ICE or CBP would change its policy regarding natural disaster shelters and begin checking entrants' immigration status during the next natural disaster. (31) Therefore, it is important to explore the constitutionality of this practice now, before another natural disaster threatens the lives of thousands because they fear deportation.
This Note will address both of these constitutional concerns in the hypothetical implementation of both "warrant checkpoints" and immigration status enforcement at a natural disaster shelter. In this scenario, a state-sponsored natural disaster shelter employs law enforcement officers to perform warrant checks on each entrant prior to admission, turning away those who choose not to participate. Then, while entrants are inside the shelter, ICE agents perform sweeps of the shelter, looking for any entrants that are potentially in the country unlawfully.
The analysis proceeds in three parts. Part I will provide a brief layout of the applicable Fourth Amendment jurisprudence and establish the relevant analytical framework for subsequent Parts. Part II will address "warrant checkpoints" at natural disaster shelters, analyzing first whether a seizure occurs. (32) Concluding that a seizure does occur in checking each entrant for a warrant prior to entry, (33) Part II subsequently analyzes the reasonableness of that seizure, and ultimately determines that the goal of the "checkpoint"--which can only be characterized as furthering the State's interest in general crime prevention--is not sufficient to justify such suspicionless seizures. (34) Part III then analyzes the constitutionality of the situation when ICE agents enter a natural disaster shelter and interact with its occupants, asking questions designed only to determine citizenship status. This Part concludes that under the Supreme Court's jurisprudence, such questioning by ICE agents is likely a consensual encounter that does not amount to a seizure under the Fourth Amendment. (35)
THE FOURTH AMENDMENT'S PROSCRIPTION AGAINST UNREASONABLE SEIZURES
In order to understand how best to analyze the constitutionality of natural disaster shelter checkpoints, as well as immigration status enforcement within natural disaster shelters, one needs to first understand what a "seizure" is under the Fourth Amendment, what a "reasonable" seizure is, and how checkpoints comport with those constitutional safeguards.
What Is a "Seizure"?
Before attempting to set out which seizures the Fourth Amendment does and does not permit, one must define what exactly constitutes a "seizure" under the Fourth Amendment. (36) As the Supreme Court has made clear, "a seizure does not occur simply because a police officer approaches an individual and asks a few questions." (37) It is important, then, to understand where the Court draws the line between a "consensual encounter" (38) and a seizure.
A seizure occurs under the Fourth Amendment "when there is a governmental termination of freedom of movement through means intentionally applied." (39) Typically, the "means" is either some application of "physical force," or some "show of authority" to which a person submits. (40) Any application of physical force--even when unsuccessful in subduing a person--is sufficient to constitute a seizure. (41) An officer's show of authority, however, is not by itself sufficient to give rise to a seizure. (42) A person must submit to an officer's show of authority before such assertion transforms the encounter into a seizure. (43) A police officer seizes a person, then, when he "accosts an individual and restrains his freedom to walk away" (44) but not when the officer approaches an individual who runs away. (45) In the latter situation, no seizure occurs until officers physically control the fleeing individual. (46)