Martinez v. Nygaard

• Decision Date: 02 November 1987
• Docket Number: No. 85-4327,85-4327
• Citation: 831 F.2d 822
• Parties: Grace MARTINEZ, Yolanda Muro, Carmen Rayo, Olga Marines, Gabino Nunez, and Laurie Ramirez, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. J. Kent NYGAARD, Carl Houseman, Alan C. Nelson, John H. Colson, William B. Means, James Stenger, Michael Maloney, Charles Childers, Ronald McKinley, James H. Kimball, Crescencio De Alba, James Huffer, Pam Ferguson, Douglas Heasley, Charles W. Thompson and Sheila Poole, individually and in their official capacities and Robert Krueger, individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 822

831 F.2d 822

Grace MARTINEZ, Yolanda Muro, Carmen Rayo, Olga Marines Gabino Nunez, and Laurie Ramirez, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. J. Kent NYGAARD, Carl Houseman, Alan C. Nelson, John H Colson, William B. Means, James Stenger, Michael Maloney Charles Childers, Ronald McKinley, James H. Kimball Crescencio De Alba, James Huffer, Pam Ferguson, Douglas Heasley, Charles W. Thompson and Sheila Poole, individually and in their official capacities and Robert Krueger, individually, Defendants-Appellees.

No. 85-4327.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1987.

Decided June 23, 1987.

Amended Nov. 2, 1987.

D. Michael Dale, Portland, Or., Mark Rosenbaum, Los Angeles, Cal., for plaintiffs-appellants.

Craig J. Casey, Portland, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN and THOMPSON, Circuit Judges, and LYNCH, ^* District Judge.

AMENDED OPINION

GOODWIN, Circuit Judge:

Grace Martinez, a United States citizen, and three resident aliens sued defendants, Immigration and Naturalization Service (INS) agents, alleging that the agents violated their first, fourth, fifth and ninth amendment rights during a "factory sweep" of their workplace, Murakami Produce Company, in Ontario, Oregon. Plaintiffs sought damages and declaratory and injunctive relief. They challenged both the warrant authorizing the entry and the individual questioning that took place after the entry. On defendants' motion for summary judgment, the district court held that plaintiffs lacked standing to challenge the warrant and granted partial summary judgment to defendants. Sitting without a jury, the court then tried the remaining claims based upon unlawful detention, and held that the plaintiffs were not detained in violation of the fourth amendment. Plaintiffs appeal.

In 1984 the INS began receiving tips from a variety of sources that Murakami Produce Company in Ontario, Oregon, was employing illegal aliens. The INS obtained a search warrant for Murakami's plant, and on January 25, 1984, nine INS agents ¹ conducted a "survey" of the factory. ²

The district court's opinion describes the sweep in detail. See Martinez v. Nygaard, 644 F.Supp. 715 (D.Or.1986). Briefly, Agent J. Kent Nygaard led a team of INS agents to the Murakami plant. After showing a search warrant to the plant manager, Nygaard and another agent were admitted to the plant. Several more agents followed them into the plant, while others remained outside and watched the exits.

At Nygaard's request, the manager shut down the machinery so that questioning could proceed at a conversational level. The agents inside the plant systematically questioned workers who appeared to be of Latin American ancestry, asking them for proof of legal residence. The agents did not display their guns during the questioning or bar the exits. Badges and handcuffs were visible only when used to detain specific aliens not parties in this appeal.

Agent Nygaard approached plaintiff Grace Martinez, an American citizen, and asked her in Spanish for her papers. Martinez Agent Colson asked Marines for her papers. Marines replied that her papers were outside in her car. Colson refused Marines permission to go to her car and, taking her by the arm, led her to an area where other suspected aliens were being held. Marines later tried to leave the area to use the telephone, but stopped when Colson warned her that if she moved again he would tie her hands.

responded that she had none, and told Nygaard that she was from Idaho. Nygaard then moved on. Plaintiff Olga Marines, a permanent resident alien, worked directly across from Martinez. Because she kept her immigration papers locked in her car, Marines became worried when she heard Nygaard ask Martinez for papers. Marines asked Martinez to telephone her husband to retrieve her papers. An INS agent, not Nygaard, at first prevented Martinez from leaving the belt area, but let her go a few minutes later when all the workers in her work area had been questioned.

Marines then asked Martinez to take her keys and retrieve her papers. Martinez walked to the main door where she encountered Pam Ferguson, another INS agent. Ferguson asked Martinez where she was going and told her she could not go outside until everyone had been checked. Martinez replied angrily that she had already been checked. An argument ensued, following which Ferguson grabbed Martinez by the arm and held her for at least thirty seconds. Ferguson let go only when another agent signaled that Martinez could go outside. Once free of Ferguson, Martinez went to the parking lot. She was stopped yet again by another agent, but was allowed to proceed after she insisted that she had been checked. She fetched Marines' papers and Marines was released.

Agent Colson questioned plaintiff Carmen Rayo, a permanent resident alien, and asked her to produce her papers. Rayo replied that her papers were at home and asked permission to telephone her husband, who could bring them to the factory. Colson refused the request and placed Rayo in the part of the plant reserved for detained workers. He later sent her to a detention van for transport to Boise. After Rayo had sat five minutes in the van, her husband, who had been summoned by her co-worker, arrived with her papers. She was released.

Plaintiff Gabino Nunez, a permanent resident alien, happened to walk past Agent McKinlay during the survey. McKinlay, suspecting that Nunez was trying to avoid him, grabbed his shoulder from behind and asked him to stop and show his papers. Nunez showed him the papers and, after a brief argument, McKinlay left to question another worker.

DISCUSSION

I. Standing to challenge warrant ³

The district court held that plaintiffs lacked standing to challenge the search warrant as they had no legitimate expectation of privacy in their workplace. We agree.

Fourth amendment rights may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-25, 58 L.Ed.2d 387 (1978). To establish standing to challenge the search warrant, Martinez and the other workers must show that the warrant violated their personal rights, not merely the rights of Murakami's owners or managers. To make this showing, plaintiffs must prove that they had a legitimate expectation of privacy in the area searched or the things seized. Id. at 143, 99 S.Ct. at 430; United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65 L.Ed.2d 619 (1980); United States v. Nadler, 698 F.2d 995, 998-99 (9th Cir.1983). In Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), the Court found that a union official had a legitimate expectation of privacy in an office he shared with several other officials. The office had a door, and except for union higher-ups and fellow occupants, the official was able to exclude others. Id. at 368-69, 88 S.Ct. at 2123-24.

In this case, plaintiffs worked in a large two-room shed that contained 75 people. Unlike the defendant in Mancusi, the workers had no private space in any part of the building, and no authority to exclude others. They had no possessory interest in the place searched or things seized, and no right to exclude others from the premises. Thus, plaintiffs had no reasonable expectation of privacy in their workplace.

The INS agents relied on the warrant only to enter the factory, not to justify their questioning and detention of its occupants. The INS questioning and detention will be dealt with separately under the standards applicable to warrantless encounters. We hold that because the warrant's purpose and effect were solely to authorize entry, not questioning, the warrant itself did not invade any privacy rights of plaintiffs. Accordingly, plaintiffs have no standing to challenge the warrant.

II. Did a seizure occur in violation of the fourth amendment?

We review de novo an ultimate holding that there was, or was not, a seizure in violation of the fourth amendment. United States v. Sokolow, 808 F.2d 1366, 1369 (9th Cir.1987); LaDuke v. Nelson, 762 F.2d 1318, 1327 (9th Cir.1985). The findings of the historical facts are, of course, reviewed under the clearly erroneous standard, Fed.R.Civ.P. 52(a), but the legal consequences of those facts are questions of law. United States v. Attardi, 796 F.2d 257, 259 (9th Cir.1986); United States v. McConney, 728 F.2d 1195, 1200-05 (9th Cir.) cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

With regard to each of the four plaintiffs, we must decide (1) whether he or she was subjected to a fourth amendment seizure, and if so, (2) whether the seizure was reasonable.

A. Nunez

Nunez alleges that he was unlawfully seized when the INS agents grabbed him by the shoulder in order to get him to answer questions. The district court held that although an agent did grab Nunez, he held him so briefly that any detention did not amount to a fourth amendment seizure. We agree.

A person has been seized within the meaning of the fourth amendment if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1986); United States v. Patino, 649 F.2d 724, 727 (9th Cir.1981). "[C]ircumstances that might indicate a seizure, even where the person did not attempt to leave, [include] the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Anderson, 663 F.2d 934, 939 (9th Cir.1981), quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d...