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Arizona S.B. 1070: A new Fourth Amendment fight looms

June 26, 2012 By: Keiron Jackman Category: Current Events, Headlines, Immigration

S.B. 1070 has no teeth

APLEBLOG readers should not have been surprised by the Supreme Court’s ruling on Arizona’s S.B. 1070. For the last two years APLEBLOG has been consistent in its stance on S.B. 1070’s unconstitutionality and the grounds by which it would be struck down. In all, three of the four challenged provisions were struck down and the one remaining provision was remanded to the state with instructions. Yet this is not the end.

To recap, the Court stated in its opinion that Arizona is attempting to regulate immigration and its attempt is contrary to federal law and most importantly repugnant to Art. I § 8, cl. 4 of the U.S. Constitution. The Court also emphasized the implications of allowing the States to regulate immigration and its affect. Specifically the Court stated that “[p]erceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad,” further that “[i]t is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”

Nevertheless this is not news. The real news is the legality of the provision the Court remanded to the state – section 2(B). The Court interpreted section 2(B) to “require state officers to make a reasonable attempt to determine the immigration status of any person they stop, detain, or arrest on some other legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” The law also provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released,” where immigration status would be verified with Immigration and Customs Enforcement (ICE). Moreover section 2(B) makes clear that a lack of state identification or similar will result in the presumption that the person stopped, detained, or arrested is an alien. This presumption essentially requires every person in Arizona to carry identification at all times or be deemed an alien.

The Court seems to hint that if there is a lawful stop wherein reasonable suspicion or probable cause exists (for a recognizable crime not immigration related) at the conclusion of the inquiry for which that reasonable suspicion or probable cause existed a further inquiry into immigration status will not offend federal law or the Constitution. Thus an officer citing a person for jaywalking, who does not have identification on his person, would be required to make a reasonable attempt to verify his immigration status. And this may be entirely legal.

If United States government were to challenge Arizona the fight would be much more difficult since the Court is leaning toward Section 2(B)’s constitutionality. There are serious implications that can arise from a challenge of section 2(B). First, the issue will be more personal rather than facially unconstitutional. It will be personal in the sense that not in every instance would Section 2(B) be unconstitutional. Rather, it will only be unconstitutional if the Fourth Amendment rights of the person detained, arrested, or stopped is violated. That is what makes it personal rather than facially unconstitutional precluding the government from challenging Section 2(B) under the Fourth Amendment. The second implication is whether an inquiry into a person’s immigration status is a search – the Court has never addressed this issue.

The Fourth Amendment prohibits states through the Fourteenth Amendment from unreasonable searches and seizures. In the context of Section 2(B) the concern would be unreasonable seizures where the State would be implicated for unnecessarily holding a person beyond what is reasonable. For the sake of clarity take for instance, for every lawful traffic stop where there is reasonable suspicion or probable cause an officer may or may not go beyond the scope of the stop. That is, if the officer is stopping you for failing to obey the speed limit (7 miles over), even though the officer has probable cause, it does not, per se, give the officer a right to hold you for a longer time than what it is reasonable to issue a citation. If the officer were to hold you beyond what is necessary simply to delay your travel or delays issuing the citation solely on your failure to obey the speed limit that would be an unreasonable seizure. Moreover, if the officer were to search your vehicle based solely on your failure to obey the speed limit that would be an unreasonable search.

Because one’s immigration status is completely unrelated to most, if not all, lawful stops wherein reasonable suspicion or probable cause lies, absent consent or admission, an officer’s inquiry into a person’s immigration status more often than not would result in an unreasonable seizure under the Fourth Amendment. Therefore, if the government wants to make sure that the aliens legal or illegal are not harassed or detained unnecessarily, they must be aware of the fact that they need not answer to State inquiries about immigration status or remain beyond the scope of the reason for which they were stopped, detained, or arrested.

However, if that same officer or his colleagues were to encounter a person who was formerly detained, stopped, or arrested and the officer has knowledge from ICE that the individual is a removable alien the officer may have probable cause to at least inform ICE if their whereabouts, maybe even detain that person, or may direct a federally authorized officer to arrest that person – although the officer, sua sponte, would not be authorized to arrest that person.

In conclusion Section 2(B) has no teeth and the best chance the government has to challenge Section 2(B) is to bring suit on Equal Protection grounds or under the Privileges and Immunities Clause of the constitution because Section 2(B) draws distinctions based on alienage and or nationality in every instance. Furthermore, since the government has already argued that this scheme would be an obstacle to immigration, it may well try to argue that Section 2(B) draws on the limited resources of the government by inundating the government with immigration inquires.

Thank you for your readership.

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2 Comments to “Arizona S.B. 1070: A new Fourth Amendment fight looms”

  1. This is an excellent analysis of Section 2B. It raises an important issue. However, I don’t think that an immigrant (docment or undocumentd) has a “reasonable expectation of privacy” in his/her immigration status. Therefore inquiry into his/her immigration status may not be considered a search for 4th Amendment purposes. Infact its very likely that possession/production of proof of immigration status is something an immigrant may have agreed to upon entering this country.

    Also, because of the strong government interest in the protection of its laws and borders, one may argue that (just as with our vehicles) immirants may have a lowered expectation of privacy in our immigration status thereby bringing an inquiry into immigration status outside the protections of the fourth amendment.

    However, these arguments may not be applied to citizens.

  2. Keiron Jackman says:



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