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Can't Stop Illegal Immigrants For No Reason

By William Peacock, Esq. on August 09, 2013 | Last updated on March 21, 2019

She was eating a sandwich while sitting on a curb, waiting for her shift to start. Roxanna Orellana Santos was eating a freaking sandwich.

Meanwhile, two astute officers, patrolling for wretched criminals, stopped her and asked her for her identification. She initially told them that she lacked an ID, but later found a copy of her El Salvadorian national ID. She was then detained, on the curb, while the officers checked for, and found, a civil immigration warrant that called for her immediate deportation.

She was put in the squad car when she tried to go into work to start her shift. It wasn't until forty-five minutes after she reached the police station that Immigration and Customs Enforcement actually requested that she be detained.

Such a detainment and arrest violates the Fourth Amendment, but it wasn't as completely clear as you might believe. There was an agreement between the Attorney General and the sheriff's office regarding immigration enforcement. That agreement, however was limited:

"We conclude that the deputies seized Santos for purposes of the Fourth Amendment when Deputy Openshaw gestured for her to stay seated after dispatch informed him of the outstanding civil ICE deportation warrant. At that time, the deputies' only basis for detaining Santos was the civil ICE warrant. Yet as the defendants concede, the deputies were not authorized to engage in immigration law enforcement under the Sheriff's Office's agreement with the Attorney General. They thus lacked authority to enforce civil immigration law and violated Santos's rights under the Fourth Amendment when they seized her solely on the basis of the outstanding civil ICE warrant."

The news wasn't all bad for the individual officers, however. Because neither the Fourth Circuit nor the Supreme Court had clarified this issue previously, there was no "clearly established federal law" and qualified immunity applied to them as individuals (though not to the Sheriff's Department and related government entities.

Interestingly enough, the decision does seem to leave the possibility of a legal "show me your papers," racial-profiling regime. Had the agreement with the Attorney General empowered individual officers to enforce immigration law, the case may have come out differently.

The court spent pages of its opinion discussing the line between a voluntary police encounter and an involuntary Terry stop. The latter requires particularized suspicion of illegal activity, and presumably, being El Salvadorian and eating a sandwich would not quite suffice.

Had the officers had an agreement in place to enforce immigration laws, they wouldn't have crossed the Terry line until they gestured for her to remain seated. By then, they had already discovered the civil warrant, and may have been able to enforce it under such an agreement.

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