705 F.2d 1059 (9th Cir. 1983), 79-7673, Lopez-Mendoza v. I.N.S.

Docket Nº:79-7673, 80-7189.
Citation:705 F.2d 1059
Party Name:Adan LOPEZ-MENDOZA, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent- Appellee. Elias SANDOVAL-SANCHEZ, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent- Appellee.
Case Date:April 25, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1059

705 F.2d 1059 (9th Cir. 1983)

Adan LOPEZ-MENDOZA, Petitioner-Appellant,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent- Appellee.

Elias SANDOVAL-SANCHEZ, Petitioner-Appellant,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent- Appellee.

Nos. 79-7673, 80-7189.

United States Court of Appeals, Ninth Circuit.

April 25, 1983

Argued and Submitted En Banc Dec. 18, 1981.

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Mary L. Heen, American Civil Liberties Union, New York City, Douglas P. Haffer, San Francisco, Cal., for Mendoza.

John E. Huerta, Mexican American Legal Defense & Educational Fund, Los Angeles, Cal., for Sanchez.

Karen Morrisette, Washington, D.C., James P. Morris, Atty., Dept. of Justice, Margaret J. Perry, Washington, D.C., for respondent-appellee.

Petition for Review of an Order of the Board of Immigration Appeals.

Before BROWNING, Chief Judge, and WRIGHT, GOODWIN, WALLACE, HUG, FLETCHER, ALARCON, POOLE, CANBY, NORRIS, and REINHARDT, Circuit Judges.

NORRIS, Circuit Judge:

These consolidated appeals present the question whether the exclusionary rule bars the Immigration and Naturalization Service (INS) from using in deportation proceedings evidence obtained by INS officers in violation of the Fourth Amendment. In separate proceedings, appellants were ordered deported under 8 U.S.C. § 1251(a)(2) on the basis of admissions to immigration officers that they were aliens in this country illegally. At their deportation hearings, both tried unsuccessfully to suppress evidence of their admissions on the ground they were the products of arrests made in violation of the Fourth Amendment. 1 The immigration judge in Sandoval's case ruled

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the evidence admissible on the ground that Sandoval's detention did not violate the Fourth Amendment. The immigration judge in Lopez's case held that the exclusionary rule was inapplicable in deportation proceedings, making it unnecessary for him to decide whether Lopez had been unlawfully detained by immigration officers. The appeals of both Sandoval and Lopez from their respective deportation orders were dismissed by the Board of Immigration Appeals. Both appealed directly to this court. We have jurisdiction under 8 U.S.C. § 1105a (1976).

We reverse Sandoval's order of deportation because we hold that his detention by the immigration officers violated the Fourth Amendment, that the statements he made were a product of that unlawful detention, and that the exclusionary rule bars the INS from using, in deportation proceedings, evidence of statements it obtains illegally. Because the question whether Lopez's detention violated the Fourth Amendment was not adjudicated in his deportation hearing, we vacate his order of deportation and remand for further proceedings in light of our opinion today in Sandoval.

I

On June 23, 1977, INS officers entered a potato processing plant in Pasco, Washington, where Sandoval worked, to search for illegal aliens. According to the testimony of the government's only witness, Officer Bower, the officers did not have a search warrant, but did have permission from company officials to question some of the company employees. Bower testified that several officers surrounded the plant to guard the exits while he and another officer conducted the investigation. The two officers, one of whom wore a Border Patrol uniform, first entered the company lunch room and identified themselves. This caused great confusion among company employees, with some "heading for the exits" and others remaining in the lunch room. When the officers entered the plant itself, more employees "headed for the exits, leaving their machines, and some of those coming in turned and started walking away." The officers then moved to the plant's main entrance where they stood during a shift change. There, they watched for workers "putting their heads down, turning their heads to the sides, avoiding eye contact, or trying to get into a tight group of people going through." Anyone passing through the gate who aroused suspicion in the minds of the officers was asked innocuous questions in English about such things as the weather or pay at the plant. Then, Bower testified, "[t]hose that couldn't answer in English, appeared to have a dumb look on their face, didn't know what was going on, and would almost start to move towards me as if they had known they were caught and the game was up, at that point, I would interrogate them in Spanish as to their right to be and remain in the United States."

When examined further about his criteria for stopping and questioning those entering and exiting the plant, Bower repeated that he had looked for "evasive movements, trying to be bunched up in groups, being right next to somebody, or trying to walk in parallel with somebody to avoid being spoken to ...." Eventually, he concluded, he questioned those at the plant "when it [came] to the point where I firmly believe that they are an illegal alien." He knew that point because, "[i]t is something each officer develops, some sooner than some others." After stopping a suspected illegal alien, the investigators would ask him whether he "had papers." Though Sandoval was stopped at the plant, Officer Bower testified that he had no specific recollection of Sandoval and that there was a "50-50 chance" that he had detained Sandoval and an equal chance that his partner had effected the detention. Bower thus did not know how Sandoval had responded to any questions he may have been asked or, indeed, whether he had responded at all.

"Because of the large number of people coming in and out of there," those initially stopped at the plant gate whom the officers wished to question further were detained in a men's restroom and clean-up area. There

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is no evidence in the record indicating whether Sandoval was questioned while in the men's room. Eventually, thirty-seven aliens who had been detained in the men's room, including Sandoval, were transported to the Franklin County Jail and processed in the training room of the Pasco Police Department. Once the suspects arrived at the jail, they were sorted into two groups. Those who wished to depart for Mexico voluntarily were processed immediately and placed on a bus leaving that day. Those who demanded a deportation hearing were detained and processed later in the day. Sandoval was one of the latter group. During his processing, Sandoval was not orally advised of his rights but did read and refuse to sign Form I-274, a Spanish-English language form which explains the right to a deportation hearing and to counsel. Sandoval was then asked a series of questions regarding his immigration status. Based on the answers to these questions, Officer Bower completed INS Form I-213, indicating on the form that Sandoval was a native of Mexico and that he had entered the United States without inspection. The finding of alienates by the immigration law judge was based upon the Form I-213. 2

In rejecting Sandoval's contention that he had been seized in violation of the Fourth Amendment, the immigration judge reasoned that Sandoval "could have at some time ... reacted in a furtive manner in the presence of the officials" and that " this plus foreign appearance would constitute enough articulable facts [to] give rise to a suspicion of alienage." 3 Accordingly, the judge ruled that Sandoval's detention, first in the men's room of the processing plant and later at the Franklin County Jail, did not violate the Fourth Amendment. On appeal, the BIA held that Sandoval's statements were voluntary and found "no basis to conclude upon review of the record as a whole ... that the circumstances of the respondent's arrest affected the statements contained in the Form I-213." The Board did not address the question of the legality of Sandoval's arrest or the applicability of the exclusionary rule to his deportation proceeding.

On appeal to this court, Sandoval contends that because his statements were the product of an illegal arrest, the INS should be barred from using Form I-213 as evidence in his deportation proceeding. The government first argues that Sandoval's detention at the plant was at most an investigative stop and that the stop was lawful because the "officers' observations were sufficient to support a reasonable suspicion of the illegal nature of petitioner's alienage." Yet Officer Bower could not remember Sandoval or describe his behavior. It is thus difficult to imagine that there was the requisite individualized suspicion of illegal alienates to justify even a brief Terry stop of Sandoval. See International Ladies Garment Workers Union v. Sureck, 681 F.2d 624, 634-43 (9th Cir.1982). Yet we need not decide that issue, for the dispositive question is not the lawfulness of the initial stop of Sandoval as he entered the plant, but the lawfulness of his detention at the time he was interrogated at the jail. It was there that Sandoval made the statements that were recorded by the INS agents on Form I-213 and used against him at his deportation hearing. By the time of the interrogation at the police station, the initial stop had clearly ripened into an arrest. See Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979) (when a person is taken to a police station and placed in an interrogation room, the detention, "in contrast to the brief and narrowly circumscribed intrusion involved in [the Terry line of] cases ... is in important

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respects indistinguishable from a traditional arrest" and must be supported by probable cause). It is clear that there was no probable cause for Sandoval's arrest. The furtive behavior attributed to the arrestees in Officer Bower's testimony--"turning their heads to the sides," "avoiding eye contact," not answering questions...

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