Nicacio v. U.S. I.N.S.

• Decision Date: 19 August 1986
• Docket Number: No. 84-4074,84-4074
• Citation: 797 F.2d 700
• Parties: Pete NICACIO, et al., Plaintiffs-Appellees, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants- Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 700

797 F.2d 700

55 USLW 2178

Pete NICACIO, et al., Plaintiffs-Appellees, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants- Appellants.

No. 84-4074.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 8, 1985.

Decided Aug. 16, 1985.

Amended Aug. 19, 1986.

Daniel G. Ford, Granger, Wash., for plaintiffs-appellees.

Lauri Steven Filppu, Thomas W. Hussey and Marshall Tamor Golding, Washington, D.C., for defendants-appellants.

Appeal from the United States District Court for the Eastern District of Washington.

Before GOODWIN, SCHROEDER, and BEEZER, Circuit Judges.

SCHROEDER, Circuit Judge.

The Immigration and Naturalization Service appeals from a judgment of the district court which concluded that the INS was engaged in a pattern of unlawful stops to interrogate persons of Hispanic appearance traveling by automobile on Washington highways. It declared stops without a warrant unlawful unless the agents have a "particularized reasonable suspicion based on specific articulable facts" that a person in the vehicle is an illegal alien. Nicacio v. INS, 595 F.Supp. 19, 26 (E.D.Wash.1984). The judgment further ordered INS agents to keep a record of each stop and state the reasons for it. ¹

The district court certified a plaintiff class which included "[a]ll persons of Mexican, Latin, or Hispanic appearance who have been, are, or will be traveling by motor vehicle on the highways of the State of Washington." Id. at 21. It entered judgment after hearing considerable testimony from representatives of the class and the INS. This judgment came after the same district court had enjoined the INS from conducting farm and ranch checks of migrant farm housing without a warrant or articulable suspicion. See LaDuke v. Nelson, 560 F.Supp. 158 (E.D.Wash.1982). We affirmed the injunction in that case, LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985), and we affirm here as well.

The INS raises two issues on appeal. The first is whether sufficient basis existed in law and in fact to support the district court's conclusion that the INS had engaged in a practice of detaining members of the plaintiff class, while they were traveling on the highways, without an articulable suspicion of illegal alienage as the law requires. The second issue, related to the first, is whether the district court was justified in requiring the border patrol to document the basis for future vehicular stops.

Before dealing with the issues raised by the appellants, however, we discuss briefly two matters which the appellants do not raise as grounds for reversal but which we find necessary for a proper understanding of the controversy before us.

The first is the question of standing in light of the Supreme Court's decision in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). There, the Court held that a plaintiff, who was subjected once by a police officer to a "chokehold," lacked standing to seek an injunction against future use of such a hold because the possibility of his being injured in the future was purely speculative. Id., 461 U.S. at 111, 103 S.Ct. at 1670, 75 L.Ed.2d 675. In LaDuke, we discussed standing in a context similar to this one, and we upheld plaintiffs' standing. LaDuke, 762 F.2d at 1326.

Here, as in LaDuke, and unlike Lyons, the district court found that the government's conduct was both recurrent and in violation of the plaintiffs' constitutional rights. Here, too, federal courts are dealing with conduct of federal agents; there is no threat of federal entanglement with state processes. Moreover, as in LaDuke, we look not merely to the possibility of injury to one individual, but to the foreseeability of harm to members of an entire class. In the light of our opinion in LaDuke, there can be no remaining question concerning standing in this case. This is, in fact, an even stronger case than LaDuke, for here the district court found that several of the plaintiff class members had actually experienced repeated stops which the court found to have been violative of their rights. The possibility of recurring injury ceases to be speculative when actual repeated incidents are documented. This may account for the government's disinclination even to argue standing in this case.

The second subject, which is not directly in issue but which we should discuss, is the legal standard for warrantless vehicular stops by immigration agents on roving patrols. Stops of persons traveling in automobiles are "seizures" within the meaning of the fourth amendment. See United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). Thus, persons traveling in cars are entitled to some protection under the fourth amendment. As the district court stated in this case, "[i]ndividuals in automobiles traveling on this nation's highways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of law enforcement officials." Nicacio, 595 F.Supp. at 23. Immigration agents on a roving patrol may stop a vehicle only when they have a reasonable suspicion based on specific and articulable facts that the vehicle contains aliens who may be illegally in this country. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975); United States v. Medina-Gasca, 739 F.2d 1451, 1453 (9th Cir.1984); United States v. Ogilvie, 527 F.2d 330, 331 (9th Cir.1975).

As we stated in United States v. Rocha-Lopez, 527 F.2d 476 (9th Cir.1975), cert. denied, 425 U.S. 977, 96 S.Ct. 2181, 48 L.Ed.2d 802 (1976), the "articulable facts" forming the basis of a reasonable suspicion are "measured against an objective reasonable man standard, not by the subjective impressions of a particular officer." Id., 425 U.S. at 477, 96 S.Ct. at 2181 (quoting United States v. Mallides, 473 F.2d 859, 861 (9th Cir.1973)). The reasonable suspicion test has been applied in a variety of circumstances. E.g., United States v. Munoz, 604 F.2d 1160 (9th Cir.1979) (vehicles traveling in tandem with drivers appearing to be of Mexican or Latin extraction and failure of occupants to look at the agents is not reasonable suspicion); Medina-Gasca, 739 F.2d at 1453 (two heavily laden vans, traveling in tandem on a known smuggling route, which dispersed from a roadside stop when an officer approached on foot supported a finding of reasonable suspicion).

Brignoni-Ponce and its progeny make clear that Hispanic-looking appearance and presence in an area where illegal aliens frequently travel are not enough to justify a stop to interrogate the occupants of a vehicle. More is required. 422 U.S. at 884-87, 95 S.Ct. at 2582-83, 45 L.Ed.2d 607.

Were Plaintiffs Subjected to a Pattern of Vehicular Stops

Without a Reasonable Suspicion of Illegal Alienage?

The INS challenges the district court's interpretation of the reasonable suspicion standard, and requests that we review that interpretation de novo as a matter of law. The INS also challenges the sufficiency of the evidence supporting the district court's finding that there was a pattern of stops under the circumstances described by the district court. This is reviewable as a question of fact under the clearly erroneous standard. LaDuke, 762 F.2d at 1321; United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Evaluating these challenges necessitates a review of the record.

The evidence concerned INS stops conducted primarily in the central part of the State of Washington. All parties agree that this is an agricultural area requiring a large amount of seasonal agricultural field labor. That labor force is composed mainly of persons of Hispanic appearance and Mexican heritage, although it is a mixture of United States citizens, legal aliens and illegal aliens. The INS concentrated its efforts during the seasons when the demand for labor was the greatest, because the number of illegal aliens in the area increases during those periods, and there are large numbers of field workers traveling on the roads and highways in central Washington in various types of vehicles.

Twenty-two plaintiff class members, including a United States citizen of German extraction, testified that INS agents stopped them while they were driving on central Washington highways. They testified that neither they nor their companions were illegal aliens. Most testified specifically about the location of the stops, the approximate time of day of the stops, and the circumstances surrounding the stops. Three testified that they had been stopped more than once. The evidence indicates that the INS was aware that persons lawfully in this country were being detained. One witness, for example, testified that an INS agent told him "we are going to be working through here, through this highway here, if we stop you again ... don't get mad."

Most of the witnesses had been detained while traveling in groups with other workers and in older automobiles. None knew of any specific circumstance or suspicious behavior of the occupants of the automobile that might have caused the stop. Most of the witnesses testified that they knew of no reason for being stopped other than their appearance. One witness testified that the INS officers told him they had stopped his car "because there were three of them [in the car]."

The INS presented the testimony of several agents about the basis on which stops are typically made. The INS agents did not, however, testify about the specific instances alleged by plaintiffs because the plaintiffs' witnesses could not testify as to the names of the officers who stopped them, and because the INS kept no records of stops which did not result in arrests. The agents did attempt, however, to articulate the factors, in addition to Hispanic appearance, that they...