Yam Sang Kwai v. Immigration & Naturalization Service

J. SKELLY WRIGHT,

Circuit Judge (dissenting) :

Petitioner has been ordered deported to Hong Kong, and seeks review of that order under the appropriate provisions of the Immigration and Nationality Act. 1 Because in my view the finding of de-portability was based in part upon the fruit of an illegal seizure of petitioner’s person, I would set the order aside.

I

Petitioner owned and operated a restaurant in the District of Columbia. On the evening of October 12, 1967, four investigators of the Immigration and Naturalization Service went to petitioner’s restaurant in order to carry out what is described as a “routine search operation.” Two of the investigators were stationed at the rear door, one at the front door, and the fourth entered the front door. No exits to the streets remained unguarded.

The fourth investigator attempted to question petitioner, but language difficulty apparently made communication impossible. Petitioner then sent for a friend to act as intepreter. The investigator waited, while petitioner continued to work in the kitchen. After the investigator spoke with petitioner through the interpreter, petitioner produced two documents. One was an unexecuted warrant for the deportation of petitioner, and the other was an order of supervision (a document applicable to one subject to deportation) in the name of Yung Ing Wa.

At this point the investigator asked petitioner to accompany him to the I&NS office, and told him to close his restaurant for the night. Petitioner went to the office where, after receiving a version of the Miranda, warnings, 2 he admitted that he was an alien, that he had previously been deported from the United States, and that he had re-entered the country by jumping ship, without previously applying for admission into the United States. On the basis of the documents supplied to them at the restaurant, the investigators obtained petitioner’s I&NS file, which contained the executed *690 warrant directing his earlier deportation, and a form indicating that he had been excluded from entry into the country at Philadelphia shortly before he, according to his admission, jumped ship in New York.

At the subsequent deportation hearing, the Government submitted into evidence petitioner’s statement, the executed warrant of deportation, and the form showing that he had been excluded from entry at Philadelphia. On the basis of these items and the testimony of the investigator who had questioned him at the restaurant, petitioner was found to be an alien previously excluded and deported, who had not applied for admission to the United States. 3 He was ordered deported.

At the deportation hearing petitioner’s counsel objected to the admission into evidence of the statement made at the I&NS office, on the ground that it was the fruit of an illegal arrest. The objection was overruled. In reviewing the order of deportation, the Board of Immigration Appeals upheld the admission of the statement, and relied on it to affirm the order. In my view the statement was the fruit of an illegal seizure of petitioner’s person, and should not have been admitted.

When the four I&NS investigators proceeded to petitioner’s restaurant, they had no knowledge of who petitioner was, whether he was an alien, or whether he was illegally in the United States. They were admittedly engaged in a “routine search operation.” Before any of them entered the restaurant, they staked out its public exits. Then one of them entered and started asking questions. Petitioner contends that surrounding the building and sending an officer in to interrogate those inside constituted an arrest without probable cause, any fruits of which cannot be used in evidence.

The Government in its brief describes the initial contact with petitioner as follows:

“ * * * Two of the investigators were posted at the rear door of the restaurant for the obvious purpose of preventing the escape of aliens illegally in the United States. It has been the experience of the Service that if an immigration officer enters a restaurant, word of his presence is quickly spread throughout the restaurant and illegal aliens seek to flee through doors or windows of the restaurant. Investigator Podrasky entered the restaurant and left another investigator outside the front door. Podrasky attempted to query the petitioner concerning his immigration status which he had the right and duty to do under * * * 8 U.S.C. 1357(a) (1), and this Court has held that the mere questioning of a suspect does not amount to an arrest. Green v. United States, 104 U.S.App. D.C. 23, 259 F.2d 180 (1958). * * ” 4

The Government thus does not attempt to characterize the investigator’s action as a simple exercise of one individual’s right to ask another individual a question in a public place, at the risk of having *691 the other individual choose to answer or walk away. 5 It rather regards the action as something requiring authorization, and it seeks that authorization in 8 U.S. C. § 1357(a) (1) (1964), which provides:

“Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—

“(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States[.]” (Emphasis added.)

If this provision is anything more than an empty recitation of the right of a Government agent to ask an individual a question, it must be taken as an authorization of temporary or limited detention for the purpose of interrogation. The express provision eliminating the need for a warrant lends weight to this reading. Congress would not have suggested that a warrant might be needed for questioning unless it had regarded some form of search or seizure as an adjunct to such questioning.

The Government’s explanation of the posting of investigators at the exits to the restaurant fully confirms that the I&NS views its statutory power to interrogate as a power to detain for interrogation. The Government brief asserts that, when I&NS investigators enter restaurants, persons “flee” through windows and doors. Officers are posted at such exits, then, to prevent such “escapes” — to detain the persons in the restaurant so they may be questioned about their immigration status. Since such “escapes” apparently take place before the investigator inside has time to ask questions and hence to focus on suspects, the purpose of the investigators at the exits is not simply “to prevent the escape of illegal aliens,” but to prevent the departure of all persons who might turn out to be illegal aliens after interrogation.

The Government cites the Green case for the proposition that “the mere questioning of a suspect does not amount to an arrest.” 6 With that proposition I have no argument. But what distinguishes “mere questioning” from detention for interrogation is that the person subjected to “mere questioning” is free to depart at any time. Here the Government has made no effort to rebut the natural inference, arising from the posting of officers at all public exits, that the persons in petitioner’s restaurant were not free to depart. Indeed the Government asserts that those officers stood at the doors to prevent “escape” — a tendentious term which in the circumstances can mean little more than “departure.”

Petitioner did not seek to leave, nor was he restrained from continuing with his work in the kitchen while the interpreter was sent for. Neither of these facts rebuts the proposition that he was detained. A man may be in custody without testing the bounds of that custody. A man may be free to move within a small area, but if he is restrained from going where otherwise he would have a right to go his liberty of movement is restricted.

Finally, the record does not explicitly show that petitioner was aware that officers were posted at the doors of his restaurant. On the other hand, nothing in the record suggests that he suffered the illusion that he could leave without being accompanied by the interrogating officer. Where, as here, the objective circumstances indicate that the officers were operating under apparent statutory pow *692 er to detain for interrogation, I cannot assume that the person detained did not know he was detained. Nor is it true that Fourth Amendment protections extend only to persons who know they have been seized by the authorities. An unconscious or feeble-minded person may in fact be arrested without knowing it; that doés not mean that evidence obtained in such an arrest is not subject to exclusion where the arrest is made without probable cause. In view of all the circumstances, I think that the officers had petitioner in limited custody when one of them entered the restaurant to question him, and that their action was subject to “[t]he right of the people to be secure in their persons * * * against unreasonable * * * seizures * * U.S.Const., Amend. 4.

II

With that constitutional right in mind, I would construe 8 U.S.C. § 1357 (a) (1) differently from the majority in the context of this case. The statute authorizes interrogation “without warrant” of “any alien or person believed to be an alien as to his right to be or to remain in the United States.” As I have argued, the statute, unless viewed as superfluous, must be read to permit detention of persons for such interrogation in some cases. But as the Supreme Court has recently recognized, not' all detentions of individuals amount to arrest, nor need they all be premised upon the “probable cause” traditionally required for arrests. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). Rather, where the seizure of a person is undertaken without probable cause, courts must balance “the need to search [or seize] against the invasion which the search [or seizure] entails,” id. at 21, 22-27 , 88 S.Ct. at 1879 , in order to determine whether the search or seizure was reasonable.

In making this inquiry, I would not place too much emphasis on the clumsy and often artificial distinction between criminal and civil proceedings. The Fourth Amendment protects the security of the people against improper official invasion, not merely the security of criminal defendants. As the Supreme Court has recently noted: “It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” 7

I turn then to an examination of the competing factors as delineated by the Supreme Court: the “need to search [or seize]” and the “invasion which the search [or seizure] entails.” With respect to the former, the Government has a legitimate interest in the enforcement of its immigration and nationality laws. It must take steps to insure that only those aliens are in this country whom Congress has said may be here. Enforcement of these laws doubtless requires affirmative investigation for possible violation of them. Since the presence of illegal aliens in the country may not injure or even come to the notice of the general citizenry, reliance on private complaints might permit such aliens to remain indefinitely.

However, it should be noted that analogous difficulties attend the enforcement of laws defining crimes which have no obvious victims — gambling, narcotics and sex laws, for example. And no one will contend that the public interest in the enforcement of the criminal law is less pressing than the interests protected by the immigration and nationality laws. Yet one would be hard put to argue that the Fourth Amendment requirement of particular grounds for suspicion of wrongdoing should be suspended in the enforcement of laws against crimes without victims.

Against the governmental interest in making the seizure, courts must balance its intrusiveness into “the privacy and security of individuals.” Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 528 , 87 S.Ct. *693 1727, 1730 , 18 L.Ed.2d 930 (1967). In Camara the Court sanctioned area-wide inspection of houses for health and safety-defects, noting that “a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime.” Id. at 530 , 87 S.Ct. at 1731 . 8 Housing inspections are imposed upon all occupants of dwellings; thus there is no stigma in being subject to one. Nor do they typically induce fear in those whose property is inspected; violations discovered usually lead to nothing worse than a warning to correct them. The limited nature of the intrusion into “privacy and security” thus justified a less particular factual basis for making the inspection.

Contrast this with the intrusion involved in an I&NS officer’s interrogation of an alien. Such an interrogation can bear only one implication for the alien, his family, and his employer — he is suspected of illegal presence in the country. The interrogating officer carries with him the sanction of immediate deportation, a sanction often indistinguishable from criminal punishment in the shame and distress it brings upon those subjected to it. And often, as indeed in the case before us, immigration law violations are crimes as well as grounds for deportation. 9 Thus while a detention for interrogation may be less intrusive than a full arrest — and hence subject to a lower standard than full probable cause — it is analogous to the kind of on-the-street investigation of criminal suspects sanctioned by the Supreme Court in Terry v. Ohio, supra.

Thus Terry gives appropriate indication of the factual basis required to support a limited detention of an alien for the purpose of pursuing suspicions concerning his immigration status. In Terry police stopped for questioning two individuals who had been observed to walk by a shop window and look it over at least a dozen times apiece, and to confer together on the street corner between those sorties. While the Court did not explicitly approve of a forcible stop of these individuals for questioning, it did permit the observing policemen to precede a brief on-the-street interrogation with a limited frisk of the person. 10

In a companion case to Terry, Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1912 , 20 L.Ed.2d 917 (1968), an officer observed an individual over an eight-hour period, during which time he spoke to six or eight known narcotics addicts. When the officer approached the suspect to question him, the suspect reached in his pocket. The officer immediately thrust his hand in the suspect’s pocket, and *694 found envelopes containing heroin. Applying the standards established in Terry , the Court found that this limited intrusion was not justified by the facts known to the officer at the time.

The general standards employed by the Court to decide these cases are, I believe, useful here. The Court emphatically condemned “intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.” Terry v. Ohio, supra, 392 U.S. at 22, 88 S.Ct. at 1880 . Further, it insisted that “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. at 1880. (Emphasis added.) Thus general or class suspicion is not sufficient; rather the officer must be able to point toward elements of the particular situation which raise a reasonable suspicion of violation of the law.

Here there is no intimation that the I&NS officers had any particular grounds for suspecting that anyone was violating any laws when they surrounded and entered petitioner’s restaurant. They were engaged in a “routine search operation.” They knew only that they were investigating a Chinese restaurant. We entirely ignore the letter and spirit of the Fourth Amendment when we sanction detention of an individual for interrogation by law enforcement officers on grounds no more substantial than the ethnic character of his restaurant or his own apparent race or national origin. Thus under the duty of the courts to construe federal statutes subject to constitutional standards, I would hold that the power granted by 8 U.S.C. § 1357 (a) (1) to detain for interrogation “any alien or person believed to be an alien” should be limited to cases where officers have particular grounds to support a reasonable suspicion that the person detained is illegally in the country. Since no such ground was shown in this case, I believe that petitioner was illegally detained in his restaurant during the interrogation.

Petitioner’s inculpatory statement was unquestionably the fruit of the interrogation at the restaurant. The interrogation elicited the two documents, which in turn led the I&NS investigator to take petitioner to the office, where he made the statement which was received at the hearing.

It is well established that statements, as well as items of tangible evidence, which are the fruits of an illegal search or seizure cannot be admitted into evidence. 11 And the exclusionary rule bars illegally seized evidence from deportation hearings as well as from criminal trials. 12 Thus in my view petitioner’s inculpatory statement, labeled Exhibit 2 in the I&NS proceedings, should not have been admitted into evidence.

I believe that the admission of petitioner’s inculpatory statement into evidence was not only error, but was prejudicial. In the statement petitioner admitted all the elements establishing his deportability: that he was an alien, that he had previously been deported and excluded, that he had not subsequently applied for admission into the United States, and that he had then entered the United States. 13 The other evidence against petitioner consisted of a copy of the executed warrant for his previous deportation, and a notation of his subsequent exclusion from the country at Philadelphia.

The Government has relied upon Klis-sas v. Immigration and Naturalization Service, 124 U.S.App.D.C. 75 , 361 F.2d 529 (1966), for the proposition that “the validity of a deportation order will be *695 sustained notwithstanding an illegal arrest, if the order is supported by substantial evidence free of taint.” 14 In Klissas the petitioner was deported on two separate charges: overstaying his admission as an alien seaman, and failing to submit address reports as required by law. The I&NS found him deportable on both counts. The tainted evidence in that case was relied on largely in establishing the first ground for deportation. The failure to submit reports was established by the petitioner’s own admission, made some two and a half years after the improper arrest, that he had not complied with the applicable requirement. The court found that admission not to be the fruit of the illegal arrest.

Here petitioner has been ordered deported on a single charge: that he reentered the country after being deported. The record shows that both the I&NS special inquiry officer and the Board of Immigration Appeals relied heavily upon petitioner’s admission in upholding that charge. The case thus resembles Bong Youn Choy v. Barber, 9 Cir., 279 F.2d 642 (1960). In Bong Youn Choy an alien was ordered deported on the basis of three statements he had made indicating that he had been a member of the Communist Party. The court found that one of the statements had been obtained by coercion. Noting that “[t]he special inquiry officer * * * placed great weight on the [improperly obtained] statement,” the court concluded that “[w]e cannot say whether or not, without it, the special inquiry officer would have concluded as he did,” and set aside the deportation order. 279 F.2d at 647 .

In Bong Youn Choy the determination of Communist Party membership involved conflicting testimony, whereas here petitioner stood mute at his hearing and offered no evidence in his behalf. On that ground the cases may be distinguishable. But here petitioner’s admission was the chief item relied upon by the administrative agency in making its findings. I cannot conclude that the other evidence in the record provides the “clear, unequivocal, and convincing” proof necessary to support an order of deportation. See Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 286 , 87 S.Ct. 483 , 17 L.Ed.2d 362 (1966).

In declining to vote for affirmance on the basis of the untainted evidence in the record, I am influenced by the nature of the error which in my view was committed. Petitioner’s Fourth Amendment rights were violated. The exclusionary rule, as applied to evidence obtained through illegal searches and seizures, is designed primarily to deter improper official conduct. That purpose is not served if the courts too readily find that the introduction of such evidence is harmless error. The Supreme Court has recently taught us that where constitutional error is committed in a criminal trial, the state must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705, 828 (1967). The rule was obviously fashioned with jury trials in mind, and it may be that it does not apply with full rigor to deportation hearings. However, it expresses the principle that error in proceedings affecting the personal liberty of individuals cannot lightly be assumed not to have affected the outcome of those proceedings. With that principle in mind, I believe that the order of deportation against petitioner should be set aside.

I respectfully dissent.

. 8 U.S.C. § 1105a (1964).

. The I&NS has adopted the standards of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), in interrogating persons held in custody during the investigative stage of deportation proceedings. See 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure (Rev. eel.) § 5.2b (1967 Cum. Supp.); Memorandum for Respondent in Opposition to Granting Petition for Writ of Certiorari in Ah Chiu Pang v. Immigration and Naturalization Service, 3 Cir., 368 F.2d 637 (1966), cert. denied, 386 U.S. 1037 , 87 S.Ct. 1490 , 18 L.Ed.2d 601 (1967).

. The statutory basis for petitioner’s deportation is 8 U.S.C. § 1251 (a) (1) (1964), which provides:

“Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who—

“(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry[.]”

The Government charged that petitioner was excludable at the time of entry by virtue of 8 U.S.C. § 1182 (a) (16) (1964), ■ which provides:

“Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

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“(16) Aliens who have been excluded from admission and deported and who again seek admission within one year from the date of such deportation, unless prior to their reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their reapplying for admission!!.]”

. Brief for Respondent, pp. 7-8.

. See Terry v. Ohio, 392 U.S. 1, 32-33 , 88 S.Ct. 1868 , 20 L.Ed.2d S89 (1968) (concurring opinion of Mr. Justice Harlan) .

. In Green, police officers called two men over to their police car for questioning. One of the men came, but the other fled into a nearby house, over the protest of the occupant of the house. The police arrcsted him for attempted unlawful entry, and this court held that they had probable cause for such an arrest. In the circumstances, asking the men to come to the police car was held not to constitute an arrest. Green v. United States, 104 U.S.App.D.C. 23 , 259 F.2d 180 (1958), cert. denied, 359 U.S. 917 , 79 S.Ct. 594 , 3 L.Ed.2d 578 (1959).

. Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 530 , 87 S.Ct. 1727, 1732 , 18 L.Ed.2d 930 (1967).

. The central thrust of Camara was to overrule the holding of Frank v. Maryland, 359 U.S. 360 , 79 S.Ct. 804 , 3 L.Ed. 2d 877 (1959), and to require that health inspectors obtain a warrant before entering private dwellings without the consent of the occupant. But the Court also rejected the contention that such civil warrants could only issue upon a showing of probable cause that a housing code violation existed within the dwelling. The Court concluded that “area inspection is a ‘reasonable’ search of private property within the meaning of the Fourth Amendment,” and hence that “ ‘probable cause’ to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.” 387 U.S. at 538 , 87 S.Ct. at 1735.

. 8 U.S.C. § 1326 (1964).

. The majority of the Court in Terry avoided, as not squarely presented, the question whether the suspicious behavior of the petitioner justified the police officer’s forcibly detaining him on the street for questioning. 392 U.S. at 19, n. 16, 88 S.Ct. 1868 . The holding was merely that when the officer approached petitioner to question him it was reasonable to frisk him in order to safeguard against an armed attack. Justices Harlan and White in concurring opinions would have made clear that circumstances which justify a limited search of the person cannot fail also to justify a forcible stop for interrogation; in short, that the right to frisk only exists where there is a right to stop. 392 U.S. at 32-33, 34, 88 S.Ct. 1868 .

. Wong Sun v. United States, 371 U.S. 471, 485 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963).

. Klissas v. Immigration and Naturalization Service, 124 U.S.App.D.C. 75 , 361 F.2d 529 (1966); Bong Youn Choy v. Barber, 9 Cir., 279 F.2d 642 (1960); cf. United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155 , 44 S.Ct. 54 , 68 D.Ed. 221 (1923).

. See Note 3, supra.

. Brief for Respondent, p. 7.