Blackie's House of Beef, Inc. v. Castillo, s. 79-1057

• Decision Date: 22 July 1981
• Docket Number: Nos. 79-1057,s. 79-1057
• Citation: 659 F.2d 1211
• Parties: BLACKIE'S HOUSE OF BEEF, INC. v. Leonel J. CASTILLO, Commissioner of the Immigration and Naturalization Service, et al., Appellants. et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1211

659 F.2d 1211

212 U.S.App.D.C. 327

BLACKIE'S HOUSE OF BEEF, INC. v. Leonel J. CASTILLO, Commissioner of the Immigration and Naturalization Service, et al., Appellants.

Nos. 79-1057 et al.

United States Court of Appeals District of Columbia Circuit.

Argued March 5, 1981.

Decided July 22, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action Nos. 78-0787 and 78-2338).

Julian S. Greenspun, Atty., Dept. of Justice, Washington, D. C., with whom Eric A. Fisher and James M. Cole, Attys., Dept. of Justice, Washington, D. C., were on the brief for appellants.

John A. Terry, Dennis A. Dutterer, Asst. U. S. Attys., and Lauren S. Kahn, Atty., Dept. of Justice, Washington, D. C., also entered appearances for appellants.

Thomas A. Elliot, Washington, D. C., with whom Mark A. Mancini, Washington, D. C., was on the brief for appellee.

Before McGOWAN, EDWARDS and GINSBURG, Circuit Judges.

Opinion for the Court filed by McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

These consolidated appeals present the important question of when agents of the Immigration and Naturalization Service ("INS") may obtain a warrant to enter a commercial establishment to question employees suspected of entering the United States illegally. In No. 79-1057, the Government appeals the District Court's ruling that the INS may not obtain a search warrant issued on the authority of Rule 41, Fed.R.Crim.P. In No. 79-2358, the Government appeals the District Court's ruling that a search warrant which fails to contain a "particularized description" of each suspected illegal alien is insufficient under the fourth amendment to support an INS search.

We affirm in No. 79-1057, but for reasons which differ from those stated by the District Court. With respect to No. 79-2358, however, we have concluded that a warrant authorizing an INS search of a commercial establishment is in essence a civil administrative warrant which need only be supported by the level of particularized description present in this case; and, accordingly, we reverse.

I

The economy of the United States "has traditionally served as a giant magnet drawing the less fortunate from all over the world," ¹ perhaps never more conspicuously so than in the decades following the second World War, when political and economic upheavals have become commonplace even in previously placid parts of the world. More recently, the problem of illegal immigration has accelerated, coinciding with the simultaneous occurrence in this country of persistent inflation and widespread unemployment.

One unexceptionable response to this problem is strict enforcement of the laws presently made and provided by the Congress, which in turn depends upon greater vigilance with respect to the detection of illegal aliens. ² Two such attempts to increase the effectiveness of INS law enforcement in Washington, D. C. are the sources of the appeals before us.

Blackie's House of Beef, Inc. ("Blackie's"), plaintiff-appellee, operates the Blackie's House of Beef Restaurant and Deja Vu Cocktail Lounge located in Washington, D.C. The Immigration and Naturalization Service ("INS"), defendant-appellant, is the federal agency charged with enforcement of federal immigration laws. Through its limited number of agents, the INS is empowered, inter alia,

without warrant

(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;

(2) to arrest any alien ... in the United States, if he (the INS agent) has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest...

8 U.S.C. § 1357(a)(1) & (2) (Supp. III 1979).

In 1976, the INS began to receive information that illegal aliens were employed at Blackie's. One such indication was a sworn statement by an illegal alien who had been apprehended by the INS and was in the process of undergoing deportation hearings. This informant swore that he had worked at Blackie's and, furthermore, that he had personal knowledge that approximately 20 other illegal aliens were currently employed there. (App. 8). Another such affidavit was executed by an apprehended alien claiming to have worked at Blackie's. In addition to verifying the information provided in the first affidavit, the second informant indicated that "there were many Hispanics employed there and that the names of two illegal aliens who worked there were Rogelio and Pedro." (App. 9, P 2). Other information included three anonymous telephone calls in which informants notified the INS that Blackie's was employing illegal aliens. (App. 9, P 3, 5, 6). Finally, INS officers apprehended two illegal aliens who were carrying wage statements from Blackie's. (App. 9, 10). The latter of the two swore by affidavit that Blackie's was employing illegal aliens from El Salvador and Africa, and supplied the first names of three such employees (App. 10).

On the basis of this information, INS Agent Foster twice asked the owner and manager of Blackie's for permission to enter the restaurant and question suspected illegal aliens. Ulysses "Blackie" Auger twice refused such consent. (App. 10, P 8). After receiving the last of the above-described tips, Agent Foster again requested Auger's consent, which was again refused. (App. 10, P 10).

On March 17, 1978, Agent Foster presented the assembled evidence and accompanying affidavits to a federal magistrate, asking that "a search warrant be issued to any Agent of the Immigration and Naturalization Service authorizing him or them to enter with proper assistance ... (Blackie's) and there to search for and arrest the individuals subject to arrest pursuant to Title 8, United States Code, Section 1357." (App. 10). On March 27, 1978, the magistrate issued the requested warrant, which provided that INS agents might, within five days of the issuance of the warrant, search the "entire premises of Blackie's House of Beef" because "there is now being concealed certain persons namely Aliens who are believed to be in the United States in violation of ... Title 8, Section 1325 and Section 241(a)(2)." (App. 13). It was a standard form warrant, with the word "property" marked out and the word "persons" inserted in the above-quoted passage and in a subsequent passage providing that "there is probable cause to believe that the persons so described are being concealed on the person or premises above described." (App. 13) (emphasis added). ³

On March 30, 1978, INS agents executed the warrant, entering Blackie's Restaurant during the dinner hour. (App. 14). As noted on the return document, 15 employees were seized, at least 10 of whom proved to be illegal aliens subject to deportation. (App. 15).

Blackie's subsequently filed suit in the District Court for a declaratory judgment, injunctive relief, and damages, alleging that the search warrant was not supported by probable cause and thus violated the fourth amendment. In a memorandum opinion issued October 5, 1978, the District Court agreed that the warrant was invalid. Blackie's House of Beef, Inc. v. Castillo, 467 F.Supp. 170 (D.D.C.1978) (hereinafter "Blackie's I" ). Recognizing that the word 'property' had been scratched out on the upper portion of the warrant, the court was nevertheless impressed by the bottom portion of the warrant, which directed INS agents to 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 seized and promptly return this warrant.

(App. 13) (emphasis added). From this, the court concluded that the warrant most nearly resembled a warrant for the seizure of property, and was invalid inasmuch as it had been used to authorize a search for persons. See note 3 supra. Furthermore, the court interpreted Rule 41, Fed.R.Crim.P., as only authorizing the issuance of search warrants to seize property. Therefore, the court concluded, the magistrate's reliance on Rule 41 was misplaced in any event. ⁴

The INS continued to receive information that illegal aliens were being employed at Blackie's. The information that upwards of 30 illegal aliens were currently employed at Blackie's was supplied in an affidavit, dated October 27, 1978, by a previously reliable source. (App. 45-46). The affiant was quite specific, revealing names of suspected illegal aliens, explanations as to how he knew the suspects to be illegal aliens, and details as to the places in which such persons might be hiding. Id.

To supplement this information, INS Agent Parry then surveyed Blackie's restaurant for several hours on October 23 and 24, 1978, and observed employees working both inside and outside the restaurant, eighteen of whom Parry believed to be aliens of Hispanic descent, principally because of their attire and seeming inability to speak any language but Spanish. (App. 43, P 4). In addition, Agent Riordan staked out Blackie's on October 27, and observed numerous persons of apparent Hispanic descent entering through the back doors of the restaurant. (App. 43, P 5).

Parry also stated that Blackie's was a known employer of illegal aliens. In support of this assertion, it was said that INS records showed that 48 illegal aliens employed by Blackie's have been apprehended by the Service since January 30, 1974. Further, attached to the affidavit was a recent Washington Post news story which reported the manager of Blackie's as having said that he hires foreign workers because of their reliability and that he does not demand to see their green cards (proof of legal immigrant status) except in Virginia. (App. 43, P 6).

Armed with this information, the INS sought another warrant to search Blackie's. This time the INS claimed to derive its power to search not from Rule 41 but from its...