holding that production of “conflicting documents” calling into question a person’s identity “certainly would ‘warrant a man of reasonable caution in the belief’ that [a subject] was in the United States illegally and that he was likely to abscond” (footnote omitted)
How later courts described this case
- holding that production of “conflicting documents” calling into question a person’s identity “certainly would ‘warrant a man of reasonable caution in the belief’ that [a subject] was in the United States illegally and that he was likely to abscond” (footnote omitted)
- pre-Hodari D. and Mendenhall case largely relying on definition of an investigatory stop from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), itself, for proposition that "[tlhere can be no seizure where the subject is unaware that he is 'seized' "
- adopting constitutional analysis of the D.C. Circuit cases
- interpreting Terry v. *298 Ohio, 392 U.S. at 19, 88 S.Ct. at 1878
Written by the judges who cited it.
The opinion
McGOWAN, Circuit Judge
(concurring in the result):
For the reasons stated hereinafter, I join in the result of leaving the deportation order undisturbed.
The evils of the dragnet detention for investigation in any area of law enforcement are always a legitimate area of judicial concern. But that concern may more properly be pursued at the instance of one who has clearly been detained against his will. In this case appellant did not unsuccessfully try to leave the premises. Nor does it appear that appellant was the unwilling object of a forced submission to questioning. He did not testify that he was, either by reference to the representations or conduct of the investigator who came into his restaurant, or otherwise.
The dissent argues that, because of the presence of investigators outside the restaurant, appellant was in fact such an unwilling object, although he may not have thought himself to be one at the time. All the record shows on this is that the questioning inspector, when asked whether appellant was free to leave, said “I don’t know.” For me there is less ambiguity in this answer than meets the eye, because it must be true that the manner of response to a question to an alien about his status can determine whether he may be detained.
If appellant here had, in response to the first request for information about his status, said that he would respond as soon as he completed some chore in the kitchen, and then had run out the back door with every appearance of a man permanently retiring from the restaurant business, it seems clear that the questioning investigator, if fleet enough to catch up with him, would have had either a reasonable suspicion adequate to detain him for further questioning or perhaps even probable cause to arrest for being in the country illegally. The mere fact that the questioning investigator does not rely on his own ability to deal with this contingency, but instead brings along colleagues who stay outside to provide help if needed, does not without more make the approach inside the restaurant an unreasonable seizure of appellant’s person within the meaning of the Fourth Amendment, at least where as here there is no indication from the record the appellant even knew of the presence of officers outside.
In terms of what actually happened inside the restaurant, the record shows only that appellant was asked to supply information about his status, and that his manner, of response was completely cooperative. While waiting for his interpreter-friend to arrive, appellant was allowed freely to go about his business, including unsupervised trips to the kitchen. When communication was established, he promptly produced documents which, at the least, justified detaining him for further inquiry. I am unprepared to say that, on this record, the mere presence, unknown to appellant, of investigators outside the restaurant effected forthwith an unreasonable seizure of his person.
Appellant here does not challenge the right in the questioning investigator to approach him in the first place, although the statute is in terms limited to the interrogation of “any alien or person believed to be an alien.” This limitation could obviously raise problems for a dragnet detention. Moreover, the “routine search” characterization used by the Government could certainly stand some ventilation in a case involving persons who have clearly felt its impact. Also, *689 I share the view that there has emerged, at least in the field of familiar criminal acts, an important and discernible distinction between arrest on probable cause, and temporary detention for interrogation, with both concepts in particular applications being subject to assay under the Fourth Amendment.
I am not in a position to say, on the basis of what this record tells me, that the Congressional grant of authority to interrogate aliens about their status must be construed as limited to reasonable suspicion for believing that the person approached is illegally in the country. There may, for all I know, be eases of illegal entry where the enforcement authorities have no way of proceeding effectively except by the direct inquiry approach to those who reasonably appear to be aliens. The constitutional issues involve, as the dissent asserts, the balancing of interests in privacy with the needs of law enforcement. This record has not seemed to me an appropriate one for the accomplishment of this delicate undertaking, especially when the only apparent analogies are those of inquiry to see whether a man is about to commit burglary, Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), or has allowed his plumbing to get into a state of disrepair, Camara v. Municipal Court, 387 U.S. 523 , 87 S.Ct. 1727 , 18 L.Ed.2d 930 (1967).