Amicus Curiae Brief — United States v. Guana-Sanchez

"ge Nov 1 19%

Supreme Court of the United States rr

Octoper Term, 1974

No. 73-220

—_—

Unrrev States or AMERICA,

Petitioner,

—V.—

Pascua. Guana-Sancuez,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF OF THE MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL FUND AND

THE AMERICAN CIVIL LIBERTIES

UNION, AMICI CURIAE

Heatucote W. Wa.es

Georgetown University Law

Center

600 New Jersey Avenue, NW

Washington, D.C.

Vuma S. Martinez

Sayrorp J. Rosen

Mexican American Legal

Defense and Educational Fund

145 Ninth Street

San Francisco, Calif.

Metvin L. Weir

American Civil Liberties Union

22 E. 40th Street

New York, N.Y. 10016

Attorneys for Amici Curiae

INDEX

Page

Deeee DSRS CPs. 4g 6 00k tise 04bbe 1

Interest of Amici........... saa wae 1

Statement of the Case......... Sa éee 2

l. Evidentiary Hearing......... 3

2. The Ruling of the District

Ee ee an ae ae a eee 9

3. The Ruling of the Court of

Appeals... .cccccccccccsccces 9

Summary of Argument............206. ll

ARGUMENT . cc ccc ccccccccccsccssccccce 13

I. RESPONDENT HAS STANDING TO

OBJECT TO ALL EVIDENCE DIRECTLY

RESULTING FROM VIOLATIONS OF HIS

CONSTITUTIONAL RIGHTS PURSUANT

TO VILLA PARK'S UNCONSTITUTIONAL

PROCEDURE OF REQUIRING PROOF OF

IDENTIFICATION FOR ALL OCCUPANTS

OF CARS ENCOUNTERED AT NIGHT.. 13

A. At No Time Prior to the

Events in the Police Sta-

tion did the Officers have

Reasonable Cause to Stop

or Probable Cause to

DETOR ce cceeesacseseseces AD

ii

Page

B. Respondent has Standing

to Object to the Use of

All Evidence Directly

Resulting from Police

Violation of His Consti-

pS a ee 25

Deterrence of the Illegal

Police Procedure in this

case will have Particular

Impact on the Rights of

Mexican Americans and Other

Minority Groups.......... 35

2)

te rey > Ta ae ea nee 39

iii

TABLE OF AUTHORITIES

Page

CASES:

Abbott v. United States,

138 A.2d 485 (D.C. Mun. Ct.

ae) Re re a See 33

Alderman v. United States,

ae Oe Dee Le és die ewanasen 29,34

Almeida-Sanchez v. United States,

Sas O5es wee CROFT a) ce ween 13-14,21,39

Brown v. United States,

Bae. UL, Bee SEPP Rin keeeutaene a2

Cady v. Dombrowski,

Gas Us. CMe Leela 6th ddwnswades 16

Carroll v. United States,

eer Us Bee Tes 6 hb o6 be cuuede 20

Commonwealth v. Cephas,

447 Pa. 500, 291 A.2d 106 (1972) 33

Commonwealth v. Swanger,

435 Pa. 107, 307 A.2d 875 (1973) 17

Davis v. Mississippi,

Be aes Te ee sé kd oe PR wee eek 20,21

Garcia v. Hoobler,

Civ. Act. 74-301-T (S.D.Cal.,

Complaint filed June 20, 1974).. 39

Giordenello v. United States,

aa? Wn Se UBM cies banker des 26,27

Gissendanner v. Wainwright,

482 F.2d 1293 (5th Cir. (1973).. 33

Kastigar v. United States,

a Se ee ROPE be ee + ae aca es 34

Lawn v. United States,

wa Uses Bee CEOS kk hd Hawwneee 20,26

iv

Page

Loya v. Immigration and

Naturalization Service, Civ.

Act. 73-1435-FW (C.D.Cal.,

Complaint filed June 22, 1973... 38

McLindon v. United States,

329 F.2d 238 (D.C.Cir. 1964).... 33

Nardone v. United States,

ee Se ee Ce bx 6 4A 4% a eee 29

Palmer v. City of Euclid, Ohio,

Re Ee 15

Palmore v. United States,

290 A.2d 573 (D.C. App. 1972)

aff'd on other grounds, 411

Re Re a os ) rar a L?,a9

Papachristou v. City of Jacksonville,

ae I Se eS 4 14-15,35

People v. Albea,

* Shdu 26 2h7, 136 8.8. 24

ae ce sd G's we «ks oh Oe 33

People v. Francis,

4 I1l. App. 3d 65, 280 N.E. 2d

og | DU er a 19

People v. Harr,

93 Ill. App. 2d 146, 235 N.E.

(oe ae, ee (Reeiene dua 18

People v. Mickelson,

49 Cal. 2d 448, 30 Cal. Rptr.

te, 200 2.26 G58 (E963) onc nccce 33

Silverthorne Lumber Co. v.

United States, 251 U.S. 385

ROE oe oh bebe A ke ke «eles 28

Smith v. United States,

344 F.2d 545 (D.c. Cir.

Smith and Bowden v.

United States,

324 F.2d 879 (D.C.Cir.

Stanley v. Georgia,

394 U.S.

State v. O'Bremski,

70 Wash.

SOG {2967S ks oc

State v. Rogers,

27 Ohio Op. 2d 105,

2a 796 (C.P. 1963)

Terry v. Ohio,

1 (1968)..

States v. Alston,

392

United

557 (1969)..

2a 402, 423 P.2d

311

United

296 (D.C.

States v. Beasley,

485

Jnited

F.2d 60 (10th Cir.

States v. Calandra,

414

Un: ted

338 (1974)

States v.

154

Unit2d

F.2d 813 (8th Cir.

States v. Falley,

489

United

F.2d 33 (2d Cir.

States v. Hoffman,

385

United

(7th Cir.

Stat s v. Hunt,

366

United

172 (N.D.Tex.

Stes v. Mallides,

473

United

, 2 SSP (een Car.

States v. Marder,

474

United

F.2d 48 (5th Cir.

States v. Nagelberg,

1967) ....

434

P.24 585 (2d Cir. 1970)....

Page

33

33,34

22

33

15,17,25

33

33

29

33

33

33

22

1973) .21,33,37

33

33

iC Sr Cha RE are "

§

vi

Page

United States v. Olivares,

496 F.2d 657 (5th Cir. 1974)... 21

United States v. Peltier,

No. 73-2509 (9th Cir. filed

May 9, 1974) petition for cert.

filed 43 U.S.L.W. 3017 (July

SB, 2974) CR, FaqROO lo oa cc toce 37

United States v. Resnick,

463 7.426 354 (35th Cir. 1973)... 33

United States v. Tane,

329 F.2d 848 (2d Cir. 1964).... 33

United States v. Ward,

488 F.2d 132 (9th Cir. 1973)

Cg |) re 20,23

Williams v. United States,

382 F.2d 48 (5th Cir. 1967).... 33

Wong Sun v. United States,

27k Ux OTe SE wk ce kiwsacas 29,34

CONSTITUTION AND STATUTES:

United States Constitution:

Fourth Amendment............. 2,26

29,30

me eae ek OE 2 2

Smith-Hurd Ill. Ann. Stat.,

Ch. 95-1/2, §6-112 (1970).... 18

MISCELLANEOUS :

Amsterdam, . Federal Constitutional

Restrictions on the Punishment of

Crimes of Status, Crimes of General

Obnoxiousness, Crimes of Displeasing

vil

Page

Police Officers, and the

Like, 3 Crim. L. Bull. 205

(SUP Tt Geet ewan eka sees dacda 36

Foote, Vagrancy-Type Law and Its

Administration, 104 U. Pa. L.

etl thw, we (a ene 36

Hearings on H.R. 982 Before

Subcommittee No. 1 of the House

Committee on the Judiciary, 93d

Cong., lst Sess., 82-83 (1973). 38

Hearings on H.R. 2328 Before Sub-

committee No. 1 of the House

Committee on the Judiciary, 92d

Cong., lst Sess., 722 (1971)... 37,38

tn The

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No. 73-820

UNITED STATES OF AMERICA,

Petitioner,

Vv.

PASCUAL GUANA-SANCHEZ,

Respondent.

On Petition For Writ of Certiorari To The

United Sta*** c»urt of Appeals For The

*“Senth Circuit

~

BRIEF OF THE MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL FUND AND THE

AMERICAN CIVIL LIBERTIES UNION,

AMICI CURIAE

~

Interest of Amici

The Mexican American Legal Defense and

Educational Fund (MALDEF) was established

on May 1, 1968, primarily to secure the

civil rights of Mexican Americans through

litigation and education: In its efforts

to assist the Mexican American community

achieve its rights under the law, MALDEF

has been involved in litigation which has

biel Sah eee Ad

cela SCR Aelia ir

ate

challenged the traditional barriers facing

Mexican Americans: abridgement of parti-

cipatory, constitutional, and political

rights; unequal educational opportunity;

discriminatory employment practices; une-

qual educational opportunity; discrimina-

tory employment practices; unequal distri-

bution of public services; and law enforce-

ment misconduct. Because both citizens

and lawfully admitted resident aliens of

Mexican ancestry are frequently victimized

by overzealous searches for illegal aliens,

MALDEF has challenged such activities in

numerous lawsuits.

The American Civil Liberties Union is

a non-profit private organization with a

quarter of a million members. Its inte-

rest in this case is to vindicate the

rights of citizens and aliens alike which

are protected by the Fourth Amendment.

Law enforcement officers are required to

conform strictly with the requirements of

that amendment so that they do not abuse

their powers. The police officers in

this case, as our brief demonstrates,

failed to do so in several respects and

we urge, therefore, that the decision of

the court below be affirmed.

Statement of the Case

Respondent was indicted February l,

1972. in the United States District Court

for the Northern District of Illinois for

violation of 8 U.S.C. 1324(a) (2), by

-,

transporting three unlawful Mexican aliens

within the United States knowing those

aliens to be unlawfully within the United

States and knowing or having reason to be-

lieve that those aliens had made an entry

into the United States within the three

prior years.

Respondent filed a pretrial motion to

suppress evidence and to dismiss the in-

dictment. After an evidentiary hearing

and the submission of written briefs, the

district court issued a memorandum opinion

and order suppressing all evidence ob-

tained from the interrogation of the three

passengers found in respondent's auto-

mobile, including their future testimony

(Pet. App. 16a-26a)._1/

-1. Evidentiary Hearing. At about

2:3G a.m., November 17, 1971, in the

Chicago suburb of Villa Park, Illinois,

Officers Hall and Tenuto of the Villa

Park police were conducting a traffic stop

in the course of their routine patrol at

the intersection of North Avenue and Addi-

son Road. They observed respondent's auto-

mobile parked in a cut-off joining the

two streets diagonally across the inter-

section from them approximately 150-200

feet away. They could see that the head-

lights and interior dome light of the

l/ "Pet. App." refers to the appendix to

the Petition for Certiorari.

tie ve ¥ ett Deak ati, OO eile Oe ee ee ee

ata

vehicle were on and that there were three

or four occupants, one of whom was looking

at what appeared to be a map (A. 6-9). 2/

Believing the occupants to be lost, the

two officers drove their marked squad car

across the road and parked behind respon-

dent's vehicle. They radioed their dis-

patcher at 2:33 a.m. that they were going

to the aid of a motorist in distress and

requested a license check on respondent's

car (A. 9-11)._3/

The two officers, in full uniform and

wearing badges, revolvers, extra ammuni-

tion, handcuffs, and mace, then approached

respondent's vehicle, one on either side

(A. 16, 56-57). ‘They could see respon-

dent at the wheel looking at a map of the

Chicago area, one passenger in the front

seat, two others in the back seat--one of

whom appeared to be asleep, and three

shopping bags containing clothing or other

material (A. 17). Upon inquiry by Officer

2/ "A" refers to the separate Appendix

filed with the Court.

3/ It is standard operating procedure for

Villa Park officers to radio ina license

plate check any time they plan to leave

their patrol car to investigate an auto-

mobile stop, whether or not the stop con-

cerns a suspected traffic or criminal vio-

lation (A. 10).

~

Hall, stationed on the driver's side of

the car, respondent said that he was

looking for the restaurant of a friend,

located on North Avenue in Lombard, the

suburb immediately to the west of Villa

Park. If that restaurant should not be

open, respondent stated he was looking for

another restaurant in Lombard for which

he had a matchbook advertisement. Officer

Tenuto returned to the squad car to radio

“some of the other towns” and was told

that there were no restaurants open in

those towns later than l a.m. (A. 16-20).

Officer Tenuto then resumed his posi-

tion on the passenger's side of the car

and heard 4/ Officer Hall ask respondent

for some type of identification. Respon-

dent complied by producing a “valid

Illinois driver's license” (A. 20-21).

Respondent's name and address on the li-

cense matched the car registration infor-

mation on the license plate check received

by the officers “three to five minutes"

after they had first radioed their dis-

patcher at 2:33 a.m. _5/ (A. 58). Had

4/ Officer Tenuto was the only witness at

the hearing.

5/ The license plate check also revealed

that respondent's car was not stolen and

(footnote continued on p. 6)

ee oe a eee

©

ane

is

i

afje

respondent refused to produce his license,

he would have been held or taken to the

station where both he and his car would

have been searched (A. 59-60).

Upon return of respondent's license,

respondent and his passengers were still

not free to leave (A. 23, 64). Pursuant

to a “standard operating procedure” of the

Villa Park Police Department to require

identification of all persons in cars

was not wanted in connection with any

crime (A. 58).

There is some dispute over precisely

when Officers Tenuto and Hall received the

license plate check information. The dis-

trict court, presented with Officer Tenu-

to's recollection refreshed with the use

of the radio log (A. 58), found that the

answer came at 2:35 a.m., two minutes

after the radio request (Pet. App. 17a).

Petitioner claims that the district court

relied upon the radio log alone and that

the log is not clear (Brief for Pet., 7-8

n. 4). There is no evidence to indicate

that the dispatcher did not radio the in-

formation as soon as he received it. This

call could have occurred at the time Offi-

cer Tenuto was radioing to inguire if any

restaurants were open (A. 20, 57-58).

aJe

stopped at night, whether for a suspected

traffic violation or for rendering assis-

tance to motorists in distress (A. 26-28),

Officer Hall then asked respondent's

three passengers for identification (A.

23). The passengers, who had sat silent

throughout the foregoing proceedings,

responded with a shoulder shrug indicat-

ing that they did not understand the re-

quest. Although he had not heard any of

the passengers speak, Officer Hall then

asked respondent to translate his identi-

fication request into Spanish. Respon-

dent complied and the passengers in the

rear seat shook their heads "No." The

passenger in the front seat handed the

officers a card which neither could read.

Officer Tenuto, however, recognized the

words "Army," "military," and "Mexico"

and concluded that it was a Mexican army

identification card (A. 23-25).

Following their standard operating

procedure further, the officers radioed

their sergeant that they had two persons

without identification. When their ser-

geant arrived at 2:37 a.m., the passen-

gers in the rear seat who had failed to

produce identification were "asked"

through respondent to get out of the car

and get into the sergeant's car to be |

taken to the station (A. 25-26). Offi-

cer Hall also "asked" respondent and his

remaining passenger to follow the offi-

cers to the station (A. 28).

Ǥ~

Upon arrival at the police station,

the four were brought into a sergeant's

office where the sergeant obtained the

names and ages of the three passengers by

again using respondent as a translator

(A. 29-30). Meanwhile, other officers

were searching respondent's car without

his consent (A. 63). The sergeant then

called the night officer of the Immigra-

tion and Naturalization Service who could

speak Spanish and directed each of the

three passengers to speak with the offi-

cer on the phone. At the conclusion of

the telephone interrogation, the ser-

geant acting upon the request of the Im-

migration officer, ordered the four

locked up until Immigration could come to

investigate the next morning (A. 31-33).

Officer Tenuto testified that he had

three experiences with illegal aliens

within the preceding four to five years.

In each, he had been asked to assist

other local officers in raiding a house

where illegal Mexican aliens were thought

to be residing. In each case, he and

other local officers had held the persons

apprehended until Immigration officials

came to take them away (A. 39, 44-45).

Officer Tenuto also testified that he was

unable to tell Puerto Ricans from Mexi-

cans and that he did not know whether

Puerto Ricans were American citizens

fA. $5}.

un

2. The Ruling of the District Court.

In an oral opinion delivered June 8, 1972,

the district court granted respondent's

motion to suppress. The court found that

from the time Officer Hall returned res-

pondent's license, there was neither pro-

bable cause to arrest nor reasonable sus-

picion for an investigative stop. The

court found that the ensuing detention of

respondent and his car for the purposes of

interrogating the three passengers was an

unconstitutional detention and search in

violation of respondent's Fourth Amendment

rights (Pet. App. 19a-2la, 25a-26a). The

court specifically disapproved the Villa

Park Police Department policy of obtaining

identification from all persons stopped in

cars at night (Pet. App. 20a-2la, 25a).

Both the identification of the passengers

and their future testimony were suppressed

since they had been discovered "not merely

as a result of illegal police conduct but

in the course of that conduct," and the

government had shown no independent source

and "no attenuating circumstance whatso-

ever" (Pet. App. 24a-25a). The court also

found the officers' conduct in violation

of Illinois law, and that Illinois offi-

cers have no authority to make arrests

for violations of federal immigration

laws (Pet. App. 20a-23a).

3. The Ruling of the Court of Appeals.

The order of the district court was af-

firmed on appeal July 18, 1973. peti-

Be

tioner conceded before the Court of Ap-

peals that the interrogation of the pas-

sengers constituted a search of respon-

dent's car to which respondent had stand-

ing to object. Petitioner also conceded

that the future testimony of the passen-

gers flowed from that search and that it

could be suppressed by respondent if the

Court of Appeals were to agree with the

district court that the detention and

search of respondent's car was illegal

(A. 77-78). The Court of Appeals found

an arrest at the time that the officers

"asked" respondent to drive his car to

the station, and held that action suffi-

cient evidence of police illegality to

support affirmance of the district

court's suppression order. As to the

preceding search, detention, and inter-

rogation, the Court of Appeals expressed

no opinion, concluding: “We have con-

sidered, but need not pass upon, other

points raised" (Pet. App. 5a). 6/

6/ How petitioner can conclude that the

Court of Appeals opinion "eviden‘ly

agreed with the: government that che ini-

tial questioning of the passengers while

in respondent's car was not an unlawful

search" (Brief for Pet., 10), is a mys-

tery.

alte

Summary of Argument

All evidence suppressed below had been

obtained as a direct result of a series

of police violations of respondent's Fourth

Amendment rights. These violations ema-

nated from an unwritten “standard operat-

ing procedure" of the Villa Park police

to require proof of identification from

all persons in cars encountered by the

police at night for any reason. Accord-

ing to Villa Park procedure, failure to

produce proof of identification resuits

in arrest and a trip to the station for

further investigation even when the police

entertain no articulable suspicion of cri-

minal activity on the part of those inves-

tigated.

In the instant case, the police never

entertained any reasonable, articulable

suspicion of criminality on the part of

respondent or any of his passengers un-

til some time after the arrest. Respon-

dent's license and registration were found

in order. His account of where he was

going did not create any reasonable sus-

picion in the minds of the police. The

objective facts in the record create no

reasonable cause for an investigative

stop; the officer who testified indicated

no belief of reasonable cause for an in-

vestigative stop; and the district court

found no such cause. Nevertheless, res-

pondent and his car were detained along

the roadside, his car was searched for

:

’

&

§

%

3

z

&

nite

documentary proof of identification of its

occupants, and he and his passengers were

arrested and taken to the station when

two of the passengers were unable to pro-

duce written proof of identification.

The evidence suppressed was obtained

in part during the roadside stop and in

larger part from investigation some fif-

teen minutes later at the station. All

evidence suppressed was sought by the

police in furtherance of their unconsti-

tutional “standard operating procedure,"

directed against respondent and his vehi-

cle. No evidence of attenuation or inde-

pendent source was introduced below. Res-

pondent therefore has standing to object

to the direct fruits of police violations

of his Fourth Amendment rights.

The deterrent effect of the exclu-

sionary rule in the instant case is par-

ticularly significant for Mexican Ameri-

cans and other minority groups who have

the most to lose when police discretion

is as broad and uncontrolled as that per-

mitted by the Villa Park "standard ope-

rating procedure."

x

ARGUMENT

I

RESPONDENT HAS STANDING TO OBJECT TO

ALL EVIDENCE DIRECTLY RESULTING FROM

VIOLATIONS OF HIS CONSTITUTIONAL

RIGHTS PURSUANT TO VILLA PARK'S UN-

CONSTITUTIONAL PROCEDURE OF REQUIRING

PROOF OF IDENTIFICATION FOR ALL OCCU-

PANTS OF CARS ENCOUNTERED AT NIGHT.

All evidence suppressed by the district

court in this case is the direct and

proximate fruit of a continuing course of

police violations of respondent's Fourth

Amendment rights of which the illegal ar-

rest conceded by petitioner is only one

stage. This continuing course of police

illegalities has a common denominator:

the “standard operating procedure" of the

Villa Park Police Department to require

proof of identification of all persons in

cars encountered by the police at night

for any reason whatseever. Failure to

offer proof of identification in Villa

Park results in further detention at the

police station for further investigation

(A. 25-28). This "standard operating

procedure," which is not in writing and

has never passed judicial or legislative

scrutiny, flies in the face of the Fourth

Amendment. Nothing like it has ever been

tolerated by this Court. See Almeida-

Sanchez v. United States, 413 U.S. 266

atten

(1973). _7/ Cf. Papachristou v. City of

7/ The instant case differs from Almeida-

Sanchez in that the “standard operating

procedure" involved derives merely from

the oral testimony of Officer Tenuto in

the suppression hearing below and has no

basis in state or federal statutes. In

addition, Villa Park officers are privy

to no special training in the enforcement

of the immigration laws. The Villa Park

4 procedure is like the practice condemned

in Almeida-Sanchez in that it permits “un-

fettered discretion" for the officer in

t the field. 413 U.S. at 270.

PO Te AE ER ete ee a F

3 Officer Tenuto testified that the

E Villa Park procedure had been instituted

because of burglaries in the area, ai-

though he gave no information to support

or make more specific this assertion (A.

27). This Court's response to a similar

argument of law enforcement needs in

Almeida-Sanchez is particularly appro-

priate:

"It is not enough to argue, as does

the Government, that the problem of

deterring unlawful entry by aliens

across long expanses of national boun-

daries is a serious one. The needs of

law enforcement stand in constant ten-

sion with the Constitution's protec-

id tions of the individual against certain

| a asad buses

-15- ge

Jacksonville, 405 U.S. 156, 169 (1972);

Palmer v. City of Euclid, Ohio, 402 U.S.

544 (1971).

A. At No Time Prior to the Events in

the Police Station did the Officers

have Reasonable Cause to Stop or

Probable Cause to Arrest.

From the time Officers Hall and Tenuto

first saw respondent's car to the time

respondent was under arrest at the station,

his car searched, and his passengers being

interrogated over the telephone by Immigra-

tion, the Villa Park Police had no more

than “inarticulate hunches" of criminal

activity. Terry v. Ohio, 392 U.S. 1, 22

(1968). At no time in the suppression

hearing did Officer Tenuto testify that

he or any of his fellow officers harbored

reasonable suspicions of criminal activi-

ty based on articulable facts prior to

learning from the Immigration Officer that

the passengers might have illegally entered

the country. On the contrary, the police

thought their conduct justified on the

basis of their standard operating proce-

dure of obtaining identification of all

exercises of official power. It is

precisely the predictability of these

pressures that counsels a resolute

loyalty to constitutional safeguards."

413 U.S. at 273.

algq

persons in cars encountered by the police

at night. 8/

According to the testimony of Officer

Tenuto, the initial encounter with res-

pondent was motivated by the officers' in-

tent to "see if they are lost or anything

is wrong" (A. 10). Although there is some

evidence to suggest that their motivation

was for general investigation--e.g., the

radio log indicating that they were "check-

ing out" the vehicle (A. 15, 76), the ra-

dio check on the car's license plate (A.

10-11, 15), and the manner in which both

officers approached the car (A. 16, 56-

57)--the district court concluded that the

officers were going to the aid of a moto-

rist in distress (Pet. App. 17a). The

care-taking justification for the offi-

cers' presence, cf. Cady v. Dombrowski,

413 U.S. 433 (1973), came to an end when

they had directed respondent to one of

the restaurants he was seeking and had

radioed to find out whether restaurants

in general in the area were open. Offi-

cer Tenuto testified to no suspicions,

reasonable or otherwise, arising out of

the colloquy about restaurants, and the

8/ Such encounters might range from traf-

fic stops to the police stopping to assist

someone with a flat tire (A. 27-28).

district court found none. 9/

However, respondent was not free to

leave at that point. Pursuant to the

Villa Park procedure of requiring identi-

fications from occupants of cars stopped

at night, Officer Hall asked respondent

for “some type of identification" (A. 20).

Although courts have disagreed over whe-

ther officers must indicate articulable

facts upon which reasonable cause may be

based in order to make routine checks on

driver's licenses, compare Commonwealth v.

Swanger, 453 Pa. 107, 307 A.2d 875 (1973),

with Palmore v. United States, 290 A.2d >

573 (D.C.App. 1972), aff'd. on other

grounds, 41ll U.S. 389 (1973), the require-

ments of Terry v. Ohio are surely present

for all other investigative stops. Pal-

more, supra, at 583 n. 24 (authorities

9/ The dissenting judge in the Court of

Appeals accepted petitioner's assertion

that respondent's "story .. . did not

check out" (484 F.2d at 593, Pet. App. at

6a). This is not a fact found by the dis-

trict court or asserted in the testimony

of Officer Tenuto, and appears to be se-

cond-guessing at best. It does not neces-

sarily follow that if the restaurant was

closed, respondent was lying when he said

he was looking for it. Nor was it ever

established that the restaurant was in

fact closed (A.20).

wed

2 ita. tats nein vad lms 6 ae Pee

SN.E. 2d at 2.

‘ARES

i 2 eee. 0 OFS

i DP

wwins 0 nd85cncaent did not argue below

and does not contend here that this first

identification request violated his con-

stitutional rights. However, it is clear

from Officer Tenuto's account that this

request was the beginning of a series of

‘demands made upon respondent pursuant to

the same illegal police procedure. 10/

10/ Although on direct examination Officer

Tenuto relied entirely on his Department's

night identification policy to justify

the request made of respondent, he added

on cross-examination a reference to Smith-

Hurd Ill. Ann. Stat. ch. 95-1/2, §6-112

(1970), which authorizes Illinois officers

to demand to see the driver's license of

anyone operating a motor vehicle. This

statute has been strictly interpreted,

however, so as to prohibit its use in the

factual setting of the instant case. In

People v. Harr, 93 Ill. App. 2d 146, 235

N.E. 2d 1 (1968), the court noted that the

statute was for purposes of license checks

only and could not be used “for the pur-

pose of finding out who the defendant was,

where he had been and where he was going.

The statute cannot ...be.. .a mere

subterfuge to obtain information or evi-

dence not related to the licensing require-

ment." 93 Ill. App. 2d at 149-50, 235

In addition, officers may

not demand licenses under this statute un-

less the driver is actually operating the

-_-

Still no suspicions, reasonable or

otherwise, had been aroused concerning

the activities of respondent or his pas-

sengers. The check of respondent's li-

cense and the information on the license

plate check run by radio had shown that

respondent resided nearby in Chicago, that

the car was his own, and that his license

and registration were in order. Neverthe-

less, Officer Tenuto testified that if

respondent had attempted to leave at that

point to find the restaurant he was look-

ing for in Lombard, the officers would

have given chase and stopped him again

(A. 64-65). Clearly the district court

was correct in ruling that at this point,

respondent could no longer be legally de-

tained. Palmore, supra, at 583.

The purpose of the continuing deten-

tion of respondent and his car was to

enable the officers to obtain proof of

identification from each of the three pas-

sengers pursuant to the Villa Park pro-

cedure of requiring identifications from

occupants of cars stopped at night. As

petitioner conceded in the Court of Ap-

peals, the district court properly charac-

car. People v. Francis, 4 Ill. App. 3d

65, 280 N.E. 2d 49 (1972) (officer pulled

up behind car drawn partly off the road

to assist motorist in distress and asked

for license--evidence suppressed) .

i in a ia aaa ee A AAS:

er eo

a

w

“

deh ME PR FAS tae

-20—

terized the demand for identifications as

a search of respondent's car. Petitioner

has somehow inferred from the silence of

the Court of Appeals on this point (which

petitioner itself withdrew from that

court's attention) that the Court of Ap-

peals somehow disapproved the district

court's characterization (Brief of Pet.

13). Now, ina footnote, petitioner chal-

lenges the point it conceded below, 11/

contending that the passengers were in

plain view (Brief of Pet., 13 n. 9). Whe-

ther or not the passengers were in plain

view--not an unusual occurrence--their

identities and documentary proof thereof,

which were the object of the police

search, were not in plain view. Cf. Uni-

ted States v. Ward, 488 F.2d 132 (9th Cir.

1973) (en banc). This Court has long held

that detention for purposes of obtaining

identification evidence is a search and

seizure within the meaning of the Fourth

Amendment. Davis v. Mississippi, 394 U.S.

721 (1969). To search respondent's car

in this manner without a warrant, the

petitioner bears the burden of demonstra-

ting probable cause. Carroll v. United

States, 267 U.S. 132 (1925). At the very

1l/ This Court has in the past refused to

hear arguments not made in the Courts of

Appeals. Lawn v. United States, 355 U.S.

339, 362-63 n. 16 (1958).

aie

minimum, reasonable cause to search must

be established. Davis, supra, at 727

(dictum). See also Almeida-Sanchez, supra,

at 275-85 (Powell, J., coneurring). Un-

less petitioner wishes to contend that the

passengers by their appearance, or because

their driver's name was Spanish, created

a reasonable suspicion that they might be

illegal immigrants, there was no justi-

fication for this search for identifica-

tion evidence. Petitioner is doubtless

unwilling to make such a contention in

light of its resounding rejection in other

cases occurring much closer to the Mexican

border, e.g., United States v. Olivares,

496 F.2a 657 (5th Cir. 1974); United

States v. Mallides, 473 F.2d 859 (9th Cir.

1973), and in light of the lack of expe-

rience of the Villa Park officers in im-

migration cases and Officer Tenuto's con-

fessed inability to identify Mexicans. 12

12/ Officer Tenuto's experience with im-

migration offenses was limited to a sup-

porting role in three raids over the pre-

ceding four to five years (A. 39, 44-45).

He testified that he could not tell

Mexicans from Puerto Ricans and did not

know whether the latter were American

citizens. Indeed the district court's

holding that Illinois officers were not

permitted to arrest for violation of fede-

ral immigration law (Pet. App. 20a-23a)

can be seen as reflecting that court's

Le <A op

a2%~

The status of the passengers as aliens

illegally in the country was no more in

the plain view of the officers than the

contents of a film when rolled up ona

reel, Stanley v. Georgia, 394 U.S. 557,

571 (1969) (Stewart, J., concurring), or

the contents of a tape recording before

it is played, United States v. Hunt, 366

F. Supp. 172 (N.D.Tex. 1973).

In order to execute fully their stan-

dard procedure of obtaining identifica-

tion from occupants of cars stopped at

night, Officers Hall and Tenuto not only

detained respondent and searched his car,

they made respondent the instrument of

their search. Respondent was made to

translate for the officers to assist them

in obtaining from his wn passengers do-

cumentary proof of identification. Unlike

most requests for identification evidence,

this particular inquiry was to elicit

evidence directly incriminating respon-

dent. Ina sense, the passengers were

the contraband in the crime of transport-

concern over the efforts of locai law en-

forcement to catch illegal aliens. When

their unguided assistance is encouraged

by Immigration officials, local law en-

forcement may accomplish far greater in-

trusions into liberties of foreign-born

Americans than federal officers could or

would ever attempt.

x7

ing illegal aliens. Their documentary

evidence of identification or lack there-

of constituted a major element of proof

in the indictment against respondent. Cf.

United States v. Ward, 488 F.2d 162 (9th

Cir. 1973) (en banc). Coupled with the

lack of Miranda warnings (A. 61-62), the

translation procedure suggests a viola-

tion of respondent's Fifth Amendment

rights which is not urged in this Court.

However, this procedure also supports the

argument that the object of the officers'

search was not in plain view. To obtain

that object, the officers extended their

intrusion into the interior of respon-

dent's vehicle beyond their plain view

to the evidence they could not see. The

interrogation of the passengers through

respondent's translation was just as much

a search as if respondent had been asked

to open his glove compartment to reveal].

physical evidence of crime. That conduct,

we submit, violated respondent's Fourth

Amendment rights.

Petitioner hints that Officer Tenuto's

meager experience with illegal aliens cou-

pled with the apparent inability of the

passengers to understand the officers'

guestions may have provided cause for

their arrest and transportation to the

station (Brief of Pet., 6). Not only is

there no support in law for such a propo-

sition and no argument by petitioner on

the point, it is apparent from both the

testimony and the actions of the officers

saaiosesaake ieee |

on

themselves that they had no suspicions

concerning the immigration status of the

passengers. Only two of the passengers

were placed in the squad car. The pas-

senger who had displayed what the officers

took to be a Mexican Army card was left

in respondent's vehicle (A. 25). Respon-

dent's arrest apparently related to the

officers' need for continuing translation

assistance. The officers indicated from

their actions that their justification

for all their preceding activities, be-

ginning with the request for respondent's

identification, flowed directly and solely

from their unconstitutional standard ope-

rating procedure to require proof of iden-

tification from all occupants of cars

stopped at night.13/ Thus the arrests,

including that of respondent, were simply

the next stage of their illegal procedure

(A. 25-28).

The final stages of the Villa Park

night identification procedure were car-

ried on at the station where the identities

of the passengers were obtained (again

13/ Officer Tenuto testified:

"The sergeant, due to the fact that

they didn't have any identification on

them, the sergeant asked if they would

mind coming to the station through Mr.

Sanchez" (A. 25).

~ =

through the translation of respondent),

respondent's car was searched for physi-

cal evidence, and further incriminating

statements were apparently made by the

passengers over the telephone to an Immi-

gration officer. Only then was reasonable

cause established for any intrusion upon

respondent. Throughout the entire episode,

the Villa Park police perceived themselves

as carrying out a Department procedure

which they thought and may still think le-

gitimate. It is the function of the ex-

clusionary rule to deter such unconstitu-

tional police procedures. 14/

B. Respondent has Standing to Object

to the Use of All Evidence Directly

Resulting from Police Violation of

His Constitutional Rights.

14/ Chief Justice Warren wrote in Terry

v. Ohio, 392 U.S. 1, 15 (1968):

“Under our decision, courts still re-

tain their traditional responsibility

to guard against police conduct which

is overbearing or harassing, or which

trenches upon personal security with-

out the objective evidentiary justi-

fication which the Constitution re-

quires. When such conduct is identi-

fied, it must be condemned by the ju-

diciary and its fruit must be excluded

from evidence in criminal trials."

A Pick) a ee tesa is Wain Sil

Si ea ta See

RAIS A CI et ete A

-_"

Petitioner conceded in the Court of

Appeals that respondent had standing to

object to evidence, including the future

testimony of witnesses, flowing from the

search of respondent's car (A. 77). Peti-

tioner chose to argue instead that the

search was constitutionally permissible.

In this Court, petitioner argues that

respondent has no standing to object to

the evidence suppressed if suppression is

based solely on respondent's illegal ar-

rest. The argument ignores the fact that

the arrest was itself the product of an

illegal search and an integral part of a

procedure of the Villa Park police which

violates the Fourth Amendment. Petitioner

further suggests that it would like to

raise again the issue of whether the fu-

ture testimony of witnesses may be sup-

pressed (Brief of Pet. at 15-16) should

its standing argument fail. This, we

submi.t, petitioner cannot do. Lawn v.

United States, 355 U.S. 339, 362-63 n.

16 (1958); Giordenello v. United States,

357 U.S. 480, 487-88 (1958). 15/7 Should

15/ In Giordenello, the Court rejected

the Government's argument, raised for the

first time in this Court, that the arrest

in issue could be justified as based on

probable cause, even though the warrant

might be defective. Mr. Justice Harlan,

writing for the Court, concluded that to

~~

this Court agree with the district court

that the chain of police illegality began

with the search of respondent's car in

which the police sought proof of identi-

fication from the passengers through res-

pondent's translation, petitioner's ear-

lier concession of respondent's standing

should be accepted and the suppression

order of the district court should be af-

firmed.

"This is so because in the District

Court petitioner, being entitled to

assume that the warrant constituted

the only purported justification for

the arrest, had no occasion to cross-

examine Finley or to adduce evidence

of his own to rebut the contentions

that the Government makes here for the

first time." Giordenello v. United

States, 357 U.S. at 488.

In like measure, if the Court were to

take up the quest ion of whether the fu-

ture testimony of witnesses should be con-

sidered suppressible as the poisoned

fruits of illegal police activity, it

permit the Government's argument would

introduce both legal and factual issues

to which the defendant had not had the

opportunity to respond in the district

court.

sitio Wii AB iOS SARI NED Nal cie! ee

=a20-

would need a fulier factual record on the

issues of attenuation and independent

source. The present record gives little

hint of the degree to which the future

testimony of the passengers against res-

pondent was the product of the voluntary

choice of *he passengers or whether those

passengers are even willing at this time

to testify, at all.

The suppression order of the district

court was limited to the evidence obtained

as a direct result of Villa Park's uncon-

stitutional policy of requiring proof of

identification from all occupants of cars

encountered at night irrespective of the

reasons for the encounter. In the instant

case, that policy caused the police to

detain respondent and his car along the

highway, search the car for documentary

proof of identification of all its occu-

pants, arrest respondent and take him and

his car to the station, use respondent to

further interrogate his passengers at the

station, and search his car thoroughly at

the station for physical evidence of

crime. The incriminating statements of

the passengers were obtained in further-

ance of this policy directed in the first

instance at respmdent, and in close tem-

poral proximity to the violations of res-

pondent's Fourth Amendment rights. At no

time did the Government attempt to show,

nor could they have shown, that there was

an independent source for any of the evi-

dence suppressed, Silverthorne Lumber Co.

v. United States, 25l U.S. 385 (1920), or

a2Qea

that the taint of the violations of res-

pondent's rights had attenuated in any

measure, Nardone v. United States, 308

U.S. 338 (1939).

This Court has repeatedly emphasized

that the exclusionary rule is to be limited

to those cases in which “its remedial ob-

jectives are thought most efficaciously

served." United States v. Calandra, 414

U.S. 338, 348 (1974).

"Thus, standing to invoke the exclu-

sionary rule has been confined to si-

tuations where the Government seeks to

use such evidence to incriminate the

victim of the unlawful search. [Ci-

tations omitted] The standing rule

is premised on a recognition that the

need for deterrence and hence the ra-

tionale for excluding the evidence are

strongest where the Government's un-

lawful conduct would result in impo-

sition of a criminal sanction on the

victim of the search" (dictum).

Nor is the Fourth Amendment's exclu-

sionary rule limited to physical evidence.

Alderman v. United States, 394 U.S. 165

(1969); Wong Sun v. United States, 371

U.S. 471 (1963). In Alderman, the Court

explained that even the verbal evidence

of third parties could be suppressed when

that evidence was obtained by intruding

upon the premises of the defendant in vio-

lation of the defendant's Fourth Amend-

=30—

ment rights. Mr. Justice White, writing

for the Court, explained why:

“If the police make an unwarranted

search of a house and seize tangible

property belonging to third parties--

even a transcript of a third-party

conversation--the homeowner may object

to its use against him, not because he

had any interest in the seized items

as ‘effects' protected by the Fourth

Amendment, but because they were the

fruits of an unauthorized search of

his house, which is itself expressly

protected by the Fourth Amendment."

394 U.S. at 176-77.

In the instant case, the police searched

respondent's car, using him as translator,

for physical evidence of identification

of respondent and his passengers. Upon

discovering the Mexican Army card of one

passenger, and the absence of identifica-

tions for the other two passengers, they

took the next step in their unconstitu-

tional policy of requiring identifications

at night by arresting all four persons

and taking them to the station for fur-

ther interrogation. Once at the station,

the police obtained the names and birth-

dates of all three passengers orally

through respondent's translation. They

then used this information to check out

all three passengers with a federal Im-

migration officer. This check resulted

directly in further oral evidence incri-

minating respondent.

| oe

At all times in this transaction the

goals of the Villa Park police remained

the same: to obtain proof of identifi-

cation and to check to see if there was

any evidence of criminality associated

with those names. Had they not obtained

an answer from their check with Immigra-

tion, it is uncertain when this investi-

gation would have ended or how much fur-

ther the police would have piled up their

record of illegal intrusions to satisfy

their curiosity. The evidence of iden-

tification or lack thereof, along with the

direct fruits of the police effort to

check out identificetion, was the basis

for the indictment of respondent and is

the evidence which the district court

suppressed.

The Government argued no evidence of

an independent source for any of this

information and the district court found

none. Indeed it is difficult to imagine

how three illegal aliens might come to

risk their own deportation and prosecu-

tion by coming forward of their own free

will to incriminate respondent. Nor is

it likely that the Villa Park police,

whose normal duties do not include en-

forcement of federal immigration law,

might otherwise come across three illegal

aliens who had the misfortune of passing

thrcugh Villa Park on their way to ano-

the. destination.

ivi preera:

«320

Nor is there any suggestion that any

evidence was suppressed, the taint of

which may have become attenuated. If the

Government wishes to return to the dis-

trict court and try this case with evi-

dence which it believes untainted because

of the principle of attenuation, it re-

mains free to do so. There is no evidence

befcre this Court on which to base a fid-

ing of attenuation and none was urged

below. _16/

Finally, petitioner dangles before the

Court the issue of whether the future tes-

timony of witnesses is suppressible as

the poisoned fruit of police illegality

(Brief for Pet. at 15-16). We agree with

petitioner's earlier statement that “this

case does not present a suitable vehicle

for the issue" (Pet. at 11-12 n. 4), but

for different reasons. Fixst, the lower

courts have largely ignored such a per se

rule, resolving the problem on a case-by-

case basis pursuant to the doctrines of

16/ The district court found:

". . « no attenuating circumstance

whatsoever. The witnesses whose tes-

timonys [sic] are sought to be sup-

pressed were discovered not merely as

a result of illegal police conduct but

in the course of *hat conduct" (Pet.

App. 24a).

a$3=

attenuation and independent source. _17/

17/ See, e.g., United States v. Falley,

489 F.2d 33 (2d Cir. 1973); United States

v. Beasley, 485 F.2d 60 (10th Cir. 1973);

United States v. Resnick, 483 F.2d 354

(Sth Cir.), cert. denied 414 U.S. 1008

(1973); Gissendanner v. Wainwright, 482

F.2d 1293 (5th Cir. 1973): United States

v. Marder, 474 F.2d 1192 (5th Cir. 1973);

United States v. Mallides, 473 F.2d 859

(9th Cir. 1973); United States v. Evans,

454 F.2d 813 (8th Cir. 1972); United

States v. Nagelberg, 434 F.2d 585 (2d Cir.

1970); United States v. Hoffman, 385 F.2d

501 (7th Cir. 1967); Williams v. United

States, 382 F.2d 48 (5th Cir. 1967); Brown

v. United States, 375 F.2d 310 (D.C.Cir.

1966); Smith v. United States, 344 F.2d

545 (D.c. Cir. 1965); United States v.

Tane, 329 F.2d 848 (2d Cir. 1964);

McLindon v. United States, 329 F.2d 238

(D.C. Cir. 1964); Smith and Bowden v.

United States 324 F.2d 879 (D.C. Cir.

1963), cert. denied 377 U.S. 954 (1964);

United States v. Alston, 31l F. Supp. 296

(D.C. 1970); People v. Mickelson, 59 Cal.

2d 448, 380 P.2d 658, 30 Cal.Rptr. 18

(1963) (en banc); Abbott v. United States,

138 A.2d 485 (D.C. Mun. Ct. App. 1958);

People v. Albea, 2 I11.2d 317, 118 N.E.

2d 277 (1954); State v. Rogers, 27 Ohio

Op.2d 105, 198 N.E.2d 796 (Ct. Com. Pleas

1963); Commonwealth v. Cephas, 447 Pa.

500, 291 A.2d 106 (1972); State v. O°

Bremski, 70 Wash.2d 402, 423 P.2d 530

(1967).

:

cs

7

OE Ere

o340

Second, this Court has always assumed

that oral testimony and the identity of

potential witnesses, like physical evi-

dence, is suppressible under the poisoned

fruits doctrine. Alderman, supra, at 176,

182; Wong Sun, supra, at 484-86. Cf.

Kastigar v. United States, 406 U.S. 441,

453, 459-60 (1972). Third, there is ari

inadequate factual record in this case on

which to base such a sweeping change in

the law. 18/ Facts concerning the wit-

nesses’ “attributes of will, percept:.on,

memory and volition" are absent from this

record. Smith and Bowden v. United States,

324 F.2d 879, 881 (D.C. Cir. 1963), cert.

denied, 377 U.S. 954 (1964). Fourth,

whereas the “name of a potential witness"

may be “of no evidentiary significance,

per se” in many cases, Smith and Bowden,

supra, at 881, the names of respondent's

passengers in the ins’ant case, coupled

with their documentary proof of identi-

fication or lack thereof, were of immense

evidentiary significance to respondent.

Once the names were checked with Immigra-

tion, it was a short step for the police

to establish probable cause to arrest

respondent for the crime ultimately

charged. In this case, more so than most,

the witnesses were like inanimate eviden-

tiary objects which speak for themselves.

They were the contraband in the crime

with which:respondent was charged.

18/ See note 15 supra.

o3$0

C. Deterrence of the Illegai Police

Procecure in this case will have

Particular Impact on the Rights

of Mexican Americans and Other

Minority Groups.

In concluding his opinion and order,

District Judge Parsons noted:

"T cannot help but wonder whether or

not the fact that the defendant is of

Mexican origin, though a citizen of

the United States, was not simply and

only instrumental in his arrest. Would

the same treatment have been afforded

four Caucasians in the same situation,

with the same circumstances, particu-

larly where the driver's papers were

in order? I believe not" (Pet. App.

25a).

Though the record discloses no hard evi-

dence of racial motivation for the conduct

of the arresting officers (none of the ar-

restees testified), such motivation, where

it exists, need never come to the atten-

tion of a court so long as the night iden-

tification policy of the Villa Park police

is permitted to exist.

The vice in the Villa Park police pro-

cedure, urged here on Fourth Amendment

grounds, is tune same vice this Court has

identified in vagrancy ordinances on due

process grounds. As the Court noted in

Papachristou v. City of Jacksonville, 405

Qype wees

-36-

U.S. 156, 170 (1972):

Where, as here, there are no standards

governing the exercise of the discre-

tion granted by the ordinance, the

scheme permits and encourages an arbi-

trary and discriminatory enforcement

of the law."

The sole difference between the vagrancy

ordinances and the police procedure chal-

lenged by respondent in the instant case

is that a criminal conviction may follow

from the former. But the principal use of

the vagrancy ordinances was to achieve in-

directly what the Villa Park procedure

achieves directly--unfettered police dis-

cretion to investigate wherever their un-

articulable suspicions, their whims, or

their biases might lead them. See gene-

rally, Foote, Vagrancy-Type Law and Its

Administration, 104 U. Pa. L. Rev. 603

(1956); Amsterdam, Federal Constitutional

Restrictions on the Punishment of Crimes

of Status, Crimes of General Obnoxious-

ness, Crimes of Displeasing Police Offi-

cers, and the Like, 3 Crim. L. Bull. 205

(1967).

That Mexican Americans and other per-

sons of Latin-American origin suffer dis-

criminations by law enforcement in this

country is no secret. Though occasionally

condemned by courts, the dark skins ard

racial characteristics of Mexican Ameri-

cans often become an ingredient in police

ata

assessment of reasonable or probable

cause to stop, arrest, or search. See,

e.g., United States v. Mallides, 473 F.2d

859, 861-62 (9th Cir. 1973); Petition for

Certiorari at 4, n. 2; United States v.

Peltier, No. 73-2509 (9th Cir., filed May

9, 1974), petition for cert. filed 43 U.S.

L.W. 3017 (July 8, 1974) (No. 73-2000).

When Mexican Americans are victims of

crime, they are less likely to obtain po-

lice cooperation. Hearings on H.R. 2328

Before Subcommittee No. 1 of the House

Committee on the Judiciary, 92d Cong., lst

Sess., 722 (1971)[1971 Hearings]. Mexican

Americans are frequently the victims of

shakedowns and fraud by private employers

and police who believe they are illegal

aliens and are therefore unable to report

such activities without risking deporta-

tion. 1971 Hearings at 722, 852-55.

Mexican Americans often suffer the biases

of local politicians as well. 1971 Hear-

ings at 745 (statement by Mayor of Blue

Island, Illinois, that Mexican Americans

urinate in the streets).

Most of the abuse suffered by Mexican

Americans at the hands of law enforcement.

officers comes as a result of free-wheeling

efforts to enforce the immigration laws

against illegal aliens. The Immigration

and Naturalization Service possess?2s sta-

tutory discretion to stop, arrest, and

search far in excess of the authority

possessed by other law enforcement agen-

cies. Their abuses of this broad discre-

Rear Cie ee Cae Pherae | -

Te

tion are only occasionally documented.

See, e.g., 1971 Hearings at 800-01; Hear-

ings on H.R. 982 Before Subcommittee No.

l of the House Committee on the Judiciary,

93d Cong., lst Sess., 82-83 (1973). To

check these abuses, lawsuits have been in-

stituted, for example, in the federal dis-

trict court for the Central District of

California to prohibit Immigration offi-

cials from using a person's color as a

basis for detention. Loya v. Immigration

and Naturalization Service, Civ. Act. 73-

1435-FW (C.D.Cal., Complaint filed June

hay 2973).

Immigration cfficials also encourage

state and local law enforcement agencies

to assist in locating illegal aliens, and

their techniques of enforcement and vari-

ations thereon are passed along to state

and local officers. Although Villa Park

officers, according to the record in the

instant case, are only occasionally in-

volved in such activities, the Illinois

state police are considerably more active.

1971 Hearings at 774-77. Nor is this

type of activity limited to Illinois. A

suit has been filed in the federal dis-

trict court for the Southern District of

California, for example, seeking to enjoin

overzealous state and local law enforce-

ment officials from illegally detaining

Mexican American citizens and lawful re-

sidents in the law enforcement officials'

efforts to assist immigration officers in

the apprehension of illegal aliens. Garcia

os

v. Hoobler, Civ. Act. 74-301-T (S.D.Cal.,

Complaint filed June 20, 1974). This

Court has begun to recognize the need to

curb some of the excessive discretion

exercised by the Immigration and Natura-

lization Service. Almeida-Sanchez v.

United States, 413 U.S. 266 (1973). This

case presents one opportunity to curb the

discretion of local police in their

efforts to supplement the broad activities

of federal officers.

The primary function of the exclusion-

ary rule is deterrence. One function of

the standing requirement is to focus the

exclusionary rule upon those cases where

deterrence is most likely to succeed.

This case presents a clear example of a

law enforcement practice which should be

deterred and a defendant who was directly

wronged by that practice.

CONCLUSION

The decision of the court below should

be affirmed.

Respectfully Submitted,

HEATHCOTE W. WALES

Georgetown University Law

Center

600 New Jersey Avenue, NW

Washington, D.C.

‘ilies

VILMA S. MARTINEZ

SANFORD J. ROSEN

Mexican American Legal

Defense and Educational Fund

145 Ninth Street

San Francisco, California

MELVIN L. WULF

American Civil Liberties

Union

22 East 40th Street

New York, New York 10016

Attorneys for Amici Curiae*

October 1974

*/ John McGrane, a student at Georgetown

University Law Center but not a member of

the bar, rendered substantial assistance

in the preparation of this brief.