Blackie's House of Beef, Inc. v. Castillo

• Decision Date: 05 October 1978
• Docket Number: Civ. A. No. 78-787.
• Citation: 467 F. Supp. 170
• Parties: BLACKIE'S HOUSE OF BEEF, INC., Plaintiff, v. Leonel J. CASTILLO et al., Defendants.
• Court: U.S. District Court — District of Columbia

467 F. Supp. 170

BLACKIE'S HOUSE OF BEEF, INC., Plaintiff, v. Leonel J. CASTILLO et al., Defendants.

Civ. A. No. 78-787.

United States District Court, District of Columbia, Civil Division.

October 5, 1978.

Jack Wasserman, Washington, D. C., for plaintiff.

Earl J. Silbert, U. S. Atty., Robert N. Ford, Dennis A. Dutterer, Asst. U. S. Attys., for defendants.

MEMORANDUM

OBERDORFER, District Judge.

Plaintiff is a corporation which operates restaurants in the District of Columbia. Defendants are the Commissioner of Immigration and Naturalization Service (the Service), the District Director of the Washington office of the Service, and one of the Washington agents.

Plaintiff claims that an entry and search of its restaurant and the arrest there of 15 aliens during the supper hour on March 30, 1978, violated rights guaranteed by the Fourth Amendment and was an actionable trespass. Plaintiff seeks a declaratory judgment, damages, and injunctive relief. Contending that there is no genuine issue of material facts, plaintiff moved for summary judgment.

For reasons more fully stated in the findings and conclusions which follow, the Court will grant plaintiff's motion and schedule hearings on relief at the early convenience of the parties and the Court.

Findings of Fact

The undisputed facts and supporting documents show that:

1. Defendants,¹ on March 30, 1978, entered one of plaintiff's restaurants during the supper hour and arrested there 15 aliens employees. Some of the arrested aliens had entered the United States legally; some had entered illegally.

2. Prior to their search of the restaurant defendants obtained a search warrant from a United States Magistrate in Washington, D.C. The search warrant (Form A.O. 93 (Rev. Apr. 1973)) was in part printed, and in part typed. A copy is attached as Appendix A.

3. The search warrant recited that defendant Foster had made an affidavit before the Magistrate with respect to the premises known as Blackie's House of Beef Restaurant, 22d & M Streets, N.W., Washington, D.C.

4. The printed portion of the warrant made provision for the Magistrate to record that the affiant:

has reason to believe that

on the person of

on the premises known as

there is now being concealed certain property.

There followed a blank in which was printed very minutely the words: "here describe property."

5. On the search warrant issued in this case the printed words "on the person of" and the printed word "property" were marked over by several typewritten letters "x." Above the stricken word "property," was typed the word "persons," so that this portion of the warrant read that defendant Foster "has reason to believe that on the premises known as Blackie's Restaurant there is now being concealed certain persons namely."

6. In the blank space provided for the Magistrate to "describe property," there was written:

Aliens who are believed to be in the United States in violation of United States Code, Title 8, Section 1325 and Section 241(a)(2) of the Immigration and Naturalization Nationality Act in that said aliens entered the United States without inspection.

7. The printed form further recited that the Magistrate was:

satisfied that there is probable cause to believe that the property so described is being concealed on the person or premises so described . . .. Emphasis added.

8. There followed the Magistrate's printed "command" that the defendants search:

the person or place named for the property specified . . . and if the property be found there to seize it, leaving a copy of this warrant and receipt for the property taken, and prepare a written inventory of the property and promptly return this warrant and bring the property before the Magistrate as required by law. Emphasis added.

9. Defendant Foster's affidavit, upon which the Magistrate relied, stated on information and belief that a number of aliens not lawfully entitled to reside in the United States employed at plaintiff's restaurant were subject to interrogation and arrest under §§ 1357(a)(1) and (a)(4) of the United States Code, Title 8. The affidavit identified as the sources of this information and belief affidavits by other aliens who had worked at the restaurant, reports by anonymous informers, documentary evidence, as well as defendant Foster's personal observation of "seven illegal aliens employed there who were subsequently deported from the United States."

10. The affidavit further related unsuccessful efforts to obtain plaintiff's permission to enter and interview employees and the plaintiff's refusal to permit entry without a search warrant.

11. Finally the Foster affidavit requested "a search warrant . . . authorizing him and others to enter the restaurant and there to search for and arrest the individuals subject to arrest pursuant to . . Section 1357."

12. This affidavit was attached to another Foster affidavit for search warrant on Form A.O. H-6 (Rev. Apr. 1973) which Foster signed as "Criminal Investigator."

13. On March 31, 1978, defendant Foster executed the return called for by the search warrant. (A copy is attached as Appendix B.) The return disclosed that he had executed the warrant by personal service on a secretary at the restaurant and that:

On March 30, 1978 at 6 o'clock p. m. he searched the person or premises described in the warrant and . . . left a copy of the warrant with the secretary together with a receipt for the items seized. (mailed on 3-31-78.)

The following is an inventory of property taken pursuant to the warrant: see attachment: Emphasis added.

14. In the return defendant Foster further represented that:

This inventory is made in the presence of an Assistant Director of the Service

and

. . . that this Inventory sic is a true and detailed account of all the persons taken by me on the warrant. Emphasis added.

15. Attached to the return was a document prepared in tabular form and signed and dated by Foster. The attachment listed fifteen of what appear to be names of persons with identifying numbers, dates, country of origin, and other identifying data. There followed a recitation that:

The above aliens were apprehended at Blackie's House of Beef, 22nd and M Sts., N.W., Washington, D.C. as a result of an area control operation based upon federal warrant # 78-0269 M Cr, dated 3-27-78 at Washington, D.C. Emphasis added.

16. The return did not refer to any property seized pursuant to the warrant.

17. No arrest warrant is in the record here.

18. Before the Service enters any premises to arrest aliens, its standard operating procedure is to attempt to:

secure voluntary permission to enter . . and only after such permission is denied, does the . . . Service consider securing a search warrant.

If such permission is denied in the future by plaintiff and if the . . . Service believes it is appropriate, it may secure a warrant to enter the premises of plaintiff. Defendants' Statement of Genuine Issues, ¶¶ 4 and 5.

Conclusions of Law

1. A search warrant should be strictly construed. See Keiningham v. U. S., 109 U.S.App.D.C. 272, 287 F.2d 126 (1960).

2. The search warrant issued in this case authorized only a search for "property." The plain terms of the warrant did not authorize the Service to enter and search plaintiff's restaurant to find and arrest aliens employed there.

3. Federal Rules of Criminal Procedure 41 does not enlarge the search warrant here or validate the entry and search made pursuant to it. That rule applies exclusively to searches for "property." Subparagraph (h) of Rule 41 defines the term "property . . . to include documents, books, papers and other tangible objects." It may be, as the government argues, that the fact that certain aliens were in the restaurant (or anywhere else in the United States) was evidence that the aliens were guilty of illegal entry. But it does not follow that the aliens in the restaurant are "tangible objects" and proper subjects of a search and seizure on a warrant issued pursuant to Rule 41. The government contention that the aliens in the restaurant were such "tangible objects" clashes with a fundamental written into our Constitution in the 1860's: no human being in the United States may be dealt with as property by government officials, or by any one else.

4. Neither the Fourth Amendment nor any statute permits government officials to use a warrant commanding a search for property as authority to enter a privately owned restaurant in Washington, D.C. in search of illegal aliens believed to be working there.

The Fourth Amendment authorizes issuance of warrants upon probable cause, "supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Here, however, the warrant did not authorize any search for persons, much less particularly describe them. It authorized only the search for and seizure of property.

5. The government's heavy reliance on the Supreme Court's decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) is seriously...