U.S. v. Pollard
| Decision Date | 18 June 2002 |
| Docket Number | No. Crim. NO. 2001-190.,Crim. NO. 2001-190. |
| Citation | 209 F.Supp.2d 525 |
| Parties | UNITED STATES of America, Plaintiff, v. Camille POLLARD, Defendant. |
| Court | U.S. District Court — Virgin Islands |
Kim L. Chisolm, Assistant U.S. Attorney, St. Thomas, U.S.V.I., for the plaintiff.
Douglas Beevers, Assistant Federal Public Defender, St. Thomas, U.S.V.I., for the defendant.
Imagine that you are at the Philadelphia airport for a flight to Atlanta. You present your ticket along with whatever form of identification the airline requires at the check-in counter. The airline agent then directs you to airport security and the airline departure gate. Imagine that as you approach the security and gate area, you are confronted by another set of counters, identified as an immigration departure checkpoint at which all travelers are required to apply for admission into the United States before they may board their flights from Philadelphia to Atlanta and other U.S. cities. The signs tell all travelers that "proof of citizenship is required," with words to the effect that travelers should have their documents ready. Imagine that everyone who wants to get on that airplane to Atlanta — permanent alien residents, visitors on temporary visas, United States citizens — must stand behind a yellow line until called by an immigration inspector to approach and prove their right to be in the United States.
This Alice-in-Wonderland scenario must be imagined because it can exist nowhere within the fifty United States and the District of Columbia. It would clearly violate the constitutional right of free travel to require every person to apply for admission to the United States each time she flies from one State to another. Yet this is precisely the procedure the United States Government has imposed upon travelers, both citizens and non-citizens, from the Territory of the Virgin Islands. Before any person can fly directly from St. Thomas, Virgin Islands, to the continental United States, or even to Puerto Rico, she must apply to be admitted to the United States and must present herself in person to an immigration inspector for examination of her right to enter the United States.
This criminal prosecution squarely presents the question whether the permanent immigration Departure Control Gate operated by the United States Immigration and Naturalization Service ["INS"] at the St. Thomas airport in the United States Virgin Islands is compatible with the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment or the equal protection component of the Due Process Clause of the Fifth Amendment.
Although I am mindful of the nationwide concern and renewed congressional and executive efforts to tighten control of the flow of aliens across our international borders since the attacks of September 11, 2001, I nevertheless must conclude that the operation of this non-border, internal Departure Control checkpoint is inconsistent with both our well-settled principles of equal protection under the law and freedom from unreasonable searches and seizures. To paraphrase the Supreme Court, the law enforcement needs of the United States in the Virgin Islands are indistinguishable from those in many of the States:
[The Virgin Islands] is not unique because it is an island; like [the Virgin Islands], neither Alaska nor Hawaii are contiguous to the continental body of the United States. Moreover, the majority of all the states have borders which coincide in part with the international frontier of the United States.
Torres v. Commonwealth of Puerto Rico, 442 U.S. 465, 474, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979) ().
Part 235 of title 8 of the Code of Federal Regulations, titled "Inspection of Persons Applying for Admission," governs the procedure for the inspection of persons applying for lawful admission to the United States. Through the mechanism of "preinspection," section 235.5 applies these procedures to the Virgin Islands. See 8 C.F.R. § 235.5(a) ().1 Before an aircraft may depart, each and every person, whether an alien or a United States citizen, flying "directly and without touching at a foreign port or place" from the United States Virgin Islands to Puerto Rico "or to one of the States of the United States or the District of Columbia" must be examined by an immigration officer to determine her or his admissibility to Puerto Rico or the continental United States. See id. § 235.1(d)(1) () ("Each alien seeking admission . . . shall present whatever documents are required and shall establish to the satisfaction of the immigration officer that he or she is not subject to removal ... and is entitled . . . to enter the United States."); id. § 235.1(b) ("U.S. citizens") ( ).
According to the United States, subsection 235.5(a) is the regulatory implementation of section 212(d)(7) of the Immigration and Nationality Act:
The provisions of subsection (a) [] (other than paragraph (7) []) shall be applicable to any alien who shall leave Guam, Puerto Rico, or the Virgin Islands of the United States, and who seeks to enter the continental United States or any other place under the jurisdiction of the United States. . . .
Immigration and Nationality Act § 212(d)(7), 8 U.S.C. § 1182(d)(7). The evidence in this case has established that the Departure Control Gate is the procedural equivalent of a Foreign Arrivals Gate. As will be demonstrated, these statutory and regulatory provisions as applied to the Territory of the Virgin Islands represent a vestigial appendage to the current immigration laws that has long outlived the reasons for its original incorporation in the immigration laws of 1917.
On May 13, 2001, the defendant arrived in the Virgin Islands on a Cape Air flight and presented herself at the Foreign Arrivals Gate at the St. Thomas Cyril E. King Airport as one Katisha Kenya Norris, resident of New York. At Foreign Arrivals, she was examined by an INS inspector and admitted to the United States as a United States citizen. Later that day, the defendant attempted to pass through the Departure Control checkpoint at issue here to board an outgoing flight to New York and encountered another immigration inspector, Allison Haywood. The defendant again presented herself as the U.S. citizen, Katisha Kenya Norris, using a "nongovernmental" New York identification card bearing that name. In response to Inspector Haywood's routine request that she state her citizenship, the defendant replied that she was a United States citizen.2 Inspector Haywood then asked where the defendant was born, and the defendant responded that she was born in Queens, New York. Inspector Haywood asked for a birth certificate, and the defendant presented a New York birth certificate bearing the name Katisha Kenya Norris. Upon further questioning, the defendant stated that she had lived in New York all her life and went to school in New York. Because Inspector Haywood did not detect a "New York accent," she asked the defendant if she could name her school in New York. The defendant could not remember the name of the school, nor could she recall her father's middle name as it appeared on the birth certificate.
Suspicious of these answers and the defendant's "nervous" demeanor, Inspector Haywood called over a secondary inspector. The secondary inspector, James X. Beckerleg, took the defendant from the primary inspection line at the Departure Control Gate to the secondary inspection area near the Foreign Arrivals border checkpoint (through which the defendant had been admitted as a United States citizen only hours earlier). (See Aug. 30, 2001 Hr'g Tr. (excerpt) at 5 (testimony of James X. Beckerleg).) To Inspector Beckerleg, the defendant's New York birth certificate appeared to be a "good document," but he had never seen the kind of nongovernmental New York photo ID that she had presented to Haywood. Inspector Beckerleg asked a series of questions similar to those asked by Inspector Haywood. At the same time, he ran a background check on Katisha Kenya Norris on the FBI's National Crime and Information Center database and the INS's immigration database, which turned up nothing under that name. Concluding that the nongovernmental picture ID was fake, Inspector Beckerleg then read the defendant her Miranda rights on the belief that she had made a false claim to U.S. citizenship. The defendant waived her rights and admitted to Beckerleg that she is a citizen of Guyana and that her true name is Camille Pollard ["Pollard"]. She was charged with violating 18 U.S.C. § 911 ().
Pollard moved to suppress her statement made to Inspector Beckerleg on the ground that it was either involuntary or the product of an invalid waiver of her Miranda rights. At a hearing held August 30, 2001, and after it became clear that Pollard's statement was the voluntary product of a valid waiver of her Miranda rights, Pollard raised the additional grounds that her statement should be suppressed because it was obtained as the result of an unconstitutional seizure under the Fourth...
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