Immigration & Naturalization Service v. Delgado

Justice Powell,

concurring in the result.

While the Court’s opinion is persuasive, I find the question of whether the factory surveys conducted in this case resulted in any Fourth Amendment “seizures” to be a close one. The question turns on a difficult characterization of fact and law: whether a reasonable person in respondents’ position would have believed he was free to refuse to answer the questions put to him by INS officers and leave the factory. I believe that the Court need not decide the question, however, because it is clear that any “seizure” that may have taken place was permissible under the reasoning of our decision in United States v. Martinez-Fuerte, 428 U. S. 543 (1976).

*222 In that case, we held that stopping automobiles for brief questioning at permanent traffic checkpoints away from the Mexican border is consistent with the Fourth Amendment and need not be authorized by a warrant. 1 We assumed that the stops constituted “seizures” within the meaning of the Fourth Amendment, see id., at 546, n. 1, 556 , but upheld them as reasonable. As in prior cases involving the apprehension of aliens illegally in the United States, we weighed the public interest in the practice at issue against the Fourth Amendment interest of the individual. See id., at 555 . Noting the importance of routine checkpoint stops to controlling the flow of illegal aliens into the interior of the country, we found that the Government had a substantial interest in the practice. On the other hand, the intrusion on individual motorists was minimal: the stops were brief, usually involving only a question or two and possibly the production of documents. Moreover, they were public and regularized law enforcement activities vesting limited discretion in officers in the field. Weighing these considerations, we held that the stops and questioning at issue, as well as referrals to a slightly longer secondary inspection, might be made “in the absence of any individualized suspicion” that a particular car contained illegal aliens, id., at 562 .

This case is similar. The Government’s interest in using factory surveys is as great if not greater. According to an affidavit by the INS’s Assistant District Director in Los An-geles contained in the record in this case, the surveys account for one-half to three-quarters of the illegal aliens identified and arrested away from the border every day in the Los Angeles District. App. 47. 2 In that District alone, over *223 20,000 illegal aliens were arrested in the course of factory surveys in one year. Id., at 44. The surveys in this case resulted in the arrest of between 20% and 50% of the employees at each of the factories. 3

We have noted before the dimensions of the immigration problem in this country. E. g., United States v. Brignoni-Ponce, 422 U. S. 873, 878-879 (1975); Martinez-Fuerte, supra, at 551-553 . Recent estimates of the number of illegal aliens in this country range between 2 and 12 million, although the consensus appears to be that the number at any one time is between 3 and 6 million. 4 One of the main reasons they come — perhaps the main reason — is to seek employment. See App. 43; Martinez-Fuerte, supra, at 551 ; Select Committee, at 25,38. Factory surveys strike directly at this cause, enabling the INS with relatively few agents to diminish the incentive for the dangerous passage across the border and to apprehend large numbers of those who come. Clearly, the Government interest in this enforcement technique is enormous. 5

*224 The intrusion into the Fourth Amendment interests of the employees, on the other hand, is about the same as it was in Martinez-Fuerte . The objective intrusion is actually less: there, cars often were stopped for up to five minutes, while here employees could continue their work as the survey progressed. They were diverted briefly to answer a few questions or to display their registration cards. It is true that the initial entry into the plant in a factory survey is a surprise to the workers, but the obviously authorized character of the operation, the clear purpose of seeking illegal aliens, and the systematic and public nature of the survey serve to minimize any concern or fright on the part of lawful employees. Moreover, the employees’ expectation of privacy in the plant setting here, like that in an automobile, certainly is far less than the traditional expectation of privacy in one’s residence. Therefore, for the same reasons that we upheld the checkpoint stops in Martinez-Fuerte without any individualized suspicion, I would find the factory surveys here to be reasonable. 6

This case presents no question as to whether a warrant was required for the entry by the INS officers into the plants. As the majority notes, the INS obtained either a warrant or consent from the factory owners before entering the plants to conduct the surveys.

The Solicitor General informs us that the figure in text refers to 1977. For the country as a whole, the INS estimates from its internal records that factory surveys accounted in 1982 for approximately 60% of all illegal *223 aliens apprehended by the INS in nonborder locations. Brief for Petitioners 3-4, and n. 3.

During the course of the the first survey at Davis Pleating, 78 illegal aliens were arrested out of a work force of approximately 300. The second survey nine months later resulted in the arrest of 39 illegal aliens out of about 200 employees. The survey at Mr. Pleat resulted in the arrest of 45 illegal aliens out of approximately 90 employees. App. 51.

House Select Committee on Population, 95th Cong., 2d Sess., Legal and Illegal Immigration to the United States 2,16-17 (Comm. Print 1978) (hereinafter Select Committee); see also Brignoni-Ponce, 422 U. S., at 878 (the INS in 1974 suggested that the number of illegal aliens might be as high as 10 to 12 million).

Despite the vast expenditures by the INS and other agencies to prevent illegal immigration and apprehend aliens illegally in the United States, and despite laws making it a crime for them to be here, our law irrationally continues to permit United States employers to hire them. Many employers actively recruit low-paid illegal immigrant labor, encouraging — with Government tolerance — illegal entry into the United States. See Select Committee, at 25. This incongruity in our immigration statutes is not calculated to increase respect for the rule of law.

The Court in Martinez-Fuerte also held that no particularized reason was necessary to refer motorists to the secondary inspection area for a slightly more intrusive “seizure.” 428 U. S., at 563-564 . Similarly, I would hold in this case that in the context of an overall survey of a factory, no particularized suspicion is needed to justify the choice of those employees who are subjected to the minimal intrusion of the questioning here. The dissent’s claim that INS agents have greater discretion to decide whom to question in factory surveys than they do at traffic checkpoints, post, at 237-238, neglects the virtually unlimited discretion to refer cars to the secondary inspection area that we approved in Martinez-Fuerte .

The dissent also suggests that a warrant requirement for factory surveys, and certain unspecified improvements, would make the surveys constitutional. Post, at 239. I note only that the Court in Martinez-Fuerte declined to impose a warrant requirement on the location of traffic checkpoints, 428 U. S., at 564-566 , and that the respondents here do not argue for such a requirement or for changes in the “duration and manner” of the surveys. I would not address the warrant question until it is fully briefed by both sides.