New Mexico Civil Rights Law Blog : New Mexico Civil Rights Lawyer & Attorney : Kennedy Law Firm : Albuquerque NM Excessive Force & Police Misconduct

          Law enforcement officers and the public often have the misconception that an entry into a person's home, absent an active "looking for something or someone", is not a search under the Fourth Amendment. However, the physical act of crossing a home's threshold constitutes a "search" within the meaning of the Fourth Amendment. Payton v. New York, 445 U.S. 573, 576 (1980). Always remember that "search" is a legal term of art that means more than simply seeking out something or someone. Our courts describe a "search" as an intrusion upon a person's reasonable expectation of privacy.

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          Arizona's new law compels law enforcement officers to make inquiry into the immigration status of a person who law enforcement has "reasonable suspicion . . . is an alien who is unlawfully present in the United States".   Many on the radio and on the web suggest that this provision only applies when a law enforcement officer has lawfully stopped someone for suspicion of criminal activity or for a traffic violation. This is untrue.

          The new statute presupposes a "lawful contact" between law enforcement and the person suspected of being an illegal alien.  However, "lawful contact" between law enforcement and citizens includes police walking up to people in a public area and asking for identification.  Florida v. Bostick,  501 U.S. 429 (1991); Florida v. Royer, 460 U.S. 491 (1983).  However, the police may not demand identification and may not arrest for a refusal of a person to identify himself, unless reasonable suspicion exists that the person refusing to identify himself is engaged in some criminal act.  Hiibel v. Humboldt County, 542 U.S. 127 (2004).  So, while the police may not have probable cause to arrest the person detained for the crime he is suspected of committing, they can arrest the person, under most state laws, if the person refuses to identify himself, while being lawfully detained.  In my experience, police understand that a verbal identification, which includes date of birth, is sufficient identification in most circumstances.  

          The genius [some would say evil genius] of the Arizona "stop and identify" law is that it creates a new crime under state law - illegal alien trespass.  Thus, "lawful contact" is expanded to include all sorts of factors that did not amount to suspicion of a criminal conduct before the criminalization of illegal alien trespass.  Thus, what would normally be considered profiling is transformed into reasonable suspicion of trespass.  Lawful contact can now include detaining persons who appear to be Mexican and speak Spanish or speak English with a foreign accent.  Once lawfully detained, law enforcement may require identification under threat of arrest. 

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          My focus in this post is the "stop and identify" feature of the new Arizona immigration law and its potential impact on New Mexicans traveling to Arizona.  

          In 1928, Supreme Court Justice Louis Brandeis famously observed that the most cherished American right is the right to be let alone.  Our country has a long antipathy toward "stop and identify" laws. In Brown v. Texas, 443 U.S. 47 (1979). our Supreme Court stated that police may not demand, under threat of arrest, identification of persons in public.  In Hiilbel v. Humboldt County, 542 U.S. 177 (2004), the Supreme Court allowed law enforcement officers to enforce identification statutes if the person who refused to identify himself is lawfully detained for suspicion of criminal activity.  The Court left open the question of what type of identification the state can require. However, I read the Hiilbel case to suggest that anything beyond verbal identification would be difficult to justify.  

          The most noxious feature of the Arizona statute is that it allows police officers to demand identification of person's suspected of being illegal aliens.  Through experience we know that many suspects are innocent.  Many suspected of being illegal aliens will be citizens and visitors legally in the United States.  Reasonable suspicion requires a minimal level of objective information that a person is committing or has committed a criminal act.  Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000).  This minimal level of information will involve police accounts detailing "furtive movements", "an area known for the pick-up of day laborers", 'failure to make eye contact" , and "Spanish speaker" in order to justify detentions and demands for identification.  

          Whether the failure to produce identification, once a person is detained on suspicion of being an illegal alien, provides sufficient cause for arrest will likely be for the courts to decide. The legislature gave law enforcement no guidance as to what constitutes reasonable suspicion of illegal alien status invoking law enforcement's right to demand identification.  That lack of guidance and the failure to explain whether lack of accepted identification provides probable cause upon which an officer may make an arrest for trespass are troubling in a country that prides itself on freedom of movement.

          The statute provides:  "Any person who is arrested shall have the person’s immigration status determined before the person is released."  Whether that provision is related to all arrests for any crime or simply to arrests for illegal alien trespass is not clear.  The arrest provision in the "stop and identify" portion of the statute implies that one can be arrested for trespass if one does not have the required documents.  Most notable for New Mexicans is that our state issued driver's licenses are not proof of legal residency in the United States, under Arizona law.  Additionally, if the provision refers to all arrests, it is in direct conflict with our Eighth Amendment right to reasonable bail.  

Here is the relevant portion of the law:

 B.  For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.  Any person who is arrested shall have the person’s immigration status determined before the person is released.  The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c).  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.  A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

1.  A valid Arizona driver license.
2.  A valid Arizona nonoperating identification license.
3.  A valid tribal enrollment card or other form of tribal identification.
4.  If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.                              

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          Law enforcement likes consent to search a home.  With consent to search a home, law enforcement does not need to apply for a search warrant.  The law prefers search warrants, but allows consent when "freely given".

          In USA v. Fox, 2010 U.S. App. Lexis 5804, the Tenth Circuit reversed a felon in possession of a gun conviction because officers illegally searched a defendant's home based upon the defendant's wife's consent to search the home. The problem for the police was that the consent was obtained after an illegal detention of the wife.  The full opinion can be read here: ca10.washburnlaw.edu/cases/2010/03/09-5131.pdf

          The Tulsa police arrested Mr. Fox outside his home for an outstanding warrant.  When Mrs. Fox arrived home, she stopped in the street and asked the officer what was going on.  One officer hopped into the passenger side and told Mrs. Fox to pull into the parking lot of a local convenience store.  Once there, the officer checked Mrs. Fox's license and checked her for outstanding warrants.  The officer then conducted a "consensual" search of Mrs. Fox's car and found an illegal drug - likely methamphetamine.  A that point, the officer told her that he had bigger fish to fry - Mr. Fox.  The officer asked for consent to search the family home.  Mrs. Fox said "yes".  The officers from Tulsa searched the home and found a shotgun.  Mr. Fox was a convicted felon.

          The opinion focuses on whether Mrs. Fox was seized when the officer hopped in her car and directed her to another location.  The Tenth Circuit held that, indeed, Mrs. Fox was seized and that there was no legal basis for the seizure.  Thus, the consent resulting during the illegal seizure was, as a matter of law, coerced or not "freely given".

          For the practitioner, the Tenth Circuit re-stated the factors it considers when deciding whether a seizure occurs:

In determining whether an individual has been seized, we have considered several factors, including:

(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of a person's personal effects; (6) a request to accompany the officer to the police station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of other members of the public.

United States v. Rogers, 556 F.3d 1130, 1137-38 (10th Cir. 2009). No single factor is dispositive, and this list is not exhaustive. Id. at 1138. Another relevant factor that suggests an encounter is not consensual is whether the officer advised an individual that she is free to leave. United States v. Ledesma, 447 F.3d 1307, 1314 (10th Cir. 2006).

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What makes a seizure unreasonable when interpreting the Fourth Amendment to the United States Constitution?  How should reasonable be interpreted at the summary judgment stage, for the purposes of determining whether a police officer is entitled to qualified immunity? Recently, the United States Court of Appeals for the Tenth Circuit significantly clarified competing doctrines in this area, releasing an opinion authored by Judge Tymkovich in the case of Robert and Mary Fisher v. The City of Las Cruces, 2009 U.S. App. LEXIS 22825 (10th Cir. N.M. Oct. 19, 2009).

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     Last week, the League of United Latin American Citizens (LULAC) was courageously joined by the Southern Christian Leadership Conference (SCLC) in its call to ban the use of the Taser device nationwide. On September 8, 2009, the SCLC, whose first President was Martin Luther King, Jr., joined the Latino organization’s call to stop this brutal and inhumane practice by police officers. LULAC started to build momentum for this push to end the use of tasers in Albuquerque, New Mexico on August 15, 2009, holding a national press conference on the steps of City Hall. SCLC will be putting major pressure on the Obama administration (pressing Congress in the coming months) to outlaw a practice already classified as “torture” by the United Nations.

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The decision in Danny Manzanares v. Sean Higdon, 07-2156, an officer of the Albuquerque Police Department, is a major victory for the rights of citizens being interrogated by the police in their own homes. The 7 yr. old case was brought by Dennis Montoya of Rio Rancho, New Mexico.

Danny Manzanares first consented to the officers entering his home to investigate allegations of rape made against a co-worker and friend, Miguel “Rick” Maestas. Danny later revoked consent, commanding the officers to leave and stop asking him questions.  Instead of leaving, the officers arrested Manzanares, who was neither a material witness nor accessory to the crime of rape, but merely stopping short of informing on his friend’s address.

Continued ...

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In a recent, split decision by the United States Court of Appeals for the 10th Circuit, the Court reversed a lower court’s judgement against Sylvia Avila, a Hispanic girl, 13 years old at the time of the incident.  The decision in Glenda Sherouse and Sylvia Avila v. Suzanne Ratchner, et al., No. 08-2105, was written by Circuit Judge McConnell.  The case and appeal was brought by Mary Y.C. Han, Paul J. Kennedy, and Caren I. Friedman for the Plaintiffs-Appellants, in a hard-fought case spanning years. 

The wrongful arrests of the teenage girls arose after three armed robberies, one of which occurred in an Albuquerque Shoes on a Shoestring, a store known for its quality shoes, priced within grasp of the reasonable.  However, because there was enough probable cause supporting the jury’s verdict against Sylvia’s African American friend, then 14 -year-old Glenda Sherouse, the district court denied Sherouse’s Motion for Judgment as a Matter of Law.  Civil Rights attorneys are sedulously scouring the opinion, in order to understand its doctrine and reasoning.
      
Contd ...

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     Today a 13 year-old student from Arizona won an important victory for the privacy of minors in a school setting. Middle-schooler Savana Redding was accused by a fellow student of distributing prescription-strength drugs to other students. She was forced to endure a humiliating strip search by Helen Romero, the school administrator, in addition to a second search by Peggy Schwallier, the school nurse. Savana’s mother, April Redding, sued on behalf of her daughter, while simultaneously managing to avoid any liability issues associated with her minor daughter allegedly throwing unsupervised parties in her own house, where alcohol and drugs were present. In the just-released slip opinion in Safford Unified School District #1, et. al. v. April Redding, 2009 WL 178472, the Court held that the search was a violation of Savana’s Fourth Amendment rights, but also that school officials were entitled to qualified immunity.

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