Petition — Immigration & Naturalization Service v. Delgado

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In the Soupceme Court of the

OCTOBER TERM, 1982 =

IMMIGRATION AND NATURALIZATION SERVICE, ET AL.,

PETITIONERS

HERMAN DELGADO, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Rex E. LEE

Solicitor General

D. LOWELL JENSEN a

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ALAN I. HoRowI!ITz

Assistant to the Solicitor General

PaTTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether INS agents violate the Fourth Amendment

when, possessing probable cause to believe that a num-

ber of employees at a factory are illegal aliens, they

conduct a survey of the factory’s employees by sta-

tioning agents at the factory exits and walking through

the factory addressing brief inquiries to individual em-

ployees suspected of being aliens regarding their citi-

zenship or resident alien status.

PARTIES TO THE PROCEEDING

Joseph Sureck, William French Smith, Leonel J.

Castillo (now replaced as Commissioner of INS by Alan

C. Nelson), Gil Clarin, and James Robinson were appel-

lees below in their official capacities and are also peti-

tioners here. Herman Delgado, Ramona Correa,

Francis Labonte, and Maria Miramontes were appel-

lants below and are respondents here. The Internation-

al Ladies’ Garment Workers’ Union, AFL-CIO

(ILGWU) was originally a plaintiff in the district court,

but the court ordered it dismissed as a party (App. G,

infra, 59a-6l1a). ILGWU appealed from the dismissal

order, and thus, while the court of appeals did not rule

on that portion of the appeal (App. A, infra, 48a n.24),

ILGWU is nominally a respondent here.

(1)

TABLE OF CONTENTS

Page

Opinions below . .:.....++«ssseess seen 1

Jurisdiction ........s06es 050 u wenn enn ne 1

Statute involved .....<.cceesss suena 2

Statement .......0sceencueueau se aeeeannnnE 2

Reasons for granting the petition.............. 11

Conclusion ......5<6 ofc wses sane tien 22

Appendix A .......+00sapew eeu wana la

Appendix B .......+0ssss0es sean dda

Appendix C . ... «0.0 oa asin annie 45a

Appendix D .........<00ssss mes sne 49a

Appendix E ..4...+:20s4esn0 mele 53a

Appendix F .......2+0+000e0ene ea 56a

Appendix G .......«ss«u0s «sane een 58a

Appendix H .........6000nue an een 6la

TABLE OF AUTHORITIES

Cases:

Almeida-Sanchez v. United States, 413

U.S. 266 .....cccecue ee enn eee 18, 21

Au Yi Lau v. INS, 445 F.2d 217, cert.

denied, 404 U.S. 864. ....ccasseeassuaee 17, 18

Babula v. INS, 665 F.2d 298 ............ 10, 21

Blackie’s House of Beef, Inc. v. Castillo,

659 F.2d 1211, cert. denied, 455 U.S. 940 21

Camara v. Municipal Court, 387 U.S.

ee er 20

Delaware v. Prouse, 440 U.S. 648 ........ 16

Dunaway v. New York, 442 U.S. 200 ..... ]

Illinois Migrant Council vy. Pilliod, 531

F. Supp. 1011, appea! pending, Nos.

82-1870, 82-1871 (7th Cir.) ..........6... 9

(III)

(IV)

Cases—Continued: Page

Illinois Migrant Council vy. Pilliod, 548

fy Seer rerrrere rc 18

Lee v. INS, GOO F.2d 407 2.2... cccccccces 17, 18

Terry Vv. Ohio, S02 U.S. 1 2... cecccscesess 13, 17 |

United States v. Anderson, 663 F.2d 934 .. i)

United States v. Biswell, 406 U.S. 311 .... 20

United States v. Brignoni-Ponce, 422 U.S.

EE eiaeb ls eawst eas eccaeeee 16, 18, 19, 21

United States v. Caceres, 440 U.S. 741.... 19

United States v. Martinez, 507 F.2d 58.... 18

United States v. Martinez-Fuerte, 428 U.S.

A ee oe pate s 8, 10, 14, 16, 19, 20

United States v. Mendenhall, 446 U.S.

Ce ee rr a bane 6 ale enn 13

Constitution and statutes:

United States Constitution:

Fourth Amendment .............+.- passim

ge | eee Peers ee 7

ee EE ow nce sac es su cveessected 19

ee ED, bias ddinscde veb.eewes 2

Ol ROTUMMED- cccncvsiscces 8, 10, 17, 18, 19

EEE OV cans cdmead pbc ke weet obs 18

Miscellaneous:

Immigration and Naturalization Service,

U.S. Dep't of Justice, Pub. No. M-69, The

Law of Search and Seizure for Immigra-

tion Officers (Rev. June 1979) .......... 4

In the Supreme Court of the Gnited States

OCTOBER TERM, 1982

No.

IMMIGRATION AND NATURALIZATION SERVICE,

ET AL., PETITIONERS

HERMAN DELGADO, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Solicitor General, on behalf of the Immigration

and Naturalization Service and other petitioners, peti-

tions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-43a) is reported at 681 F.2d 624. The opinions of the

district court (Apps. C-G, infra, 45a-60a) are not

reported.

JURISDICTION

The judgment of the court of appeals (App. H, infra,

6la) was entered on July 15, 1982. A petition for re-

hearing was denied on September 30, 1982 (App. B,

infra, 44a). On December 20, 1982, Justice Rehnquist

extended the time within which to file a petition for a

writ of certiorari to and including January 28, 1983. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(@).

STATUTE INVOLVED

8 U.S.C. 1357(a) provides in pertinent part:

Any officer or employee of the Service author-

ized 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; * * *

STATEMENT

Respondents filed two different actions, which were

subsequently consolidated, in the United States Dis-

trict Court for the Central District of California seeking

declaratory and injunctive relief against the Immigra-

tion and Naturalization Service’s (INS) practice of con-

ducting factory surveys for the purpose of locating ille-

gal aliens. Respondents’ primary contention was that

these surveys violated the Fourth Amendment. The

district court entered summary judgment on behalf of

the INS (App. C, infra, 48a). The court of appeals re-

versed and remanded (App. A, infra, la-43a).

1. The specific factual context underlying this case

consists of three factory surveys conducted by the INS

in two garment factories in 1977. The record contains

affidavits by government officials relating to the man-

ner of conducting these and other factory surveys, to-

gether with depositions of the individual respondents

describing the surveys. As the court of appeals found

(App. A, infra, 8a), the material facts are not seriously

in dispute.

a. In both January and September 1977, the INS ob-

tained search warrants authorizing its officers to search

the Southern California Davis Pleating Company (Davis

Pleating) for illegal aliens. The warrants did not identi-

fy any particular illegal aliens by name. Rather, the

warrants were based on reliable information showing

that Davis Pleating employed illegal aliens; they au-

thorized the INS to search the factory for such persons

(App. A, infra, 5a & n.5).1 Pursuant to these warrants,

INS officers arrested 78 illegal aliens from among ap-

proximately three hundred employees present at Davis

Pleating in January 1977. In September 1977, the INS

arrested 39 illegal aliens out of a work force of approxi-

mately two hundred employees. App. A, infra, 4a;

1/17/80 Affidavit of Philip Smith, Exhibit G to Memo-

randum in Support of Defendants’ Motion for Summary

Judgment, filed 1/18/80. In October 1977, the INS con-

ducted a survey of the work force at Mr. Pleat, another

garment factory. This survey also was conducted be-

cause the INS had received information establishing

that Mr. Pleat employed illegal aliens. On this occasion,

however, the INS agents entered with the consent of

Mr. Pleat’s owner, rather than pursuant to a warrant.

This survey resulted in the apprehension of 46 illegal al-

iens out of a work force of approximately ninety em-

ployees. [bid.

1 The affidavit submitted in support of the January warrant

stated that INS investigator Gail Richard Kee had conducted

surveillance outside the Davis Pleating factory and had stopped

three illegal aliens entering the factory. Each of the three wom-

en, who were named in the affidavit, informed Investigator Kee

that Davis Pleating employed many illegal aliens of Latin

extraction.

The September warrant was issued on information volun-

teered by Rachel Mata, an employee at Davis Pleating who was

displeased with the company’s hiring of illegal aliens. Mata re-

ported to the INS that two illegal aliens deported following the

January survey had returned to the United States and resumed

their positions at Davis Pleating. She further stated that many

other employees boasted that they had no immigration docu-

ments. She also reported that Davis Pleating had recently hired

about one hundred employees and that most of them appeared

to be illegal aliens. Information was also supplied to the INS by

an illegal alien who worked at Davis Pleating. She maintained

that four of her coworkers were also illegal aliens.

The factory surveys at both Davis Pleating and Mr.

Pleat were conducted in accordance with standard INS

procedures established on a nationwide basis. See gen-

erally 11/15/79 Declaration of Philip Smith; Affidavit of

Philip Smith, Exhibit B to Memorandum in Support of

Defendant’s Motion to Dismiss, filed 6/30/78; Affidavit of

Gail Richard Kee, Exhibit C; Affidavit of Joseph

Sureck, Exhibit A. A team of plainclothes INS agents

entered the factory to question the employees while

other agents stationed themselves at the doors to pre-

vent suspected illegal aliens from escaping.? The

agents, who did not display any weapons, wore INS

badges, identified themselves, and announced their

purpose. The officers walked slowly through the factory

asking between one and three questions of employees

whom they had reason to believe were aliens.* General-

2 As the record demonstrates (see Delgado Dep. 84-85;

Labonte Dep. 34-36), the agents at the exits do not prevent em-

ployees from exiting the factory. They are stationed at the exits

so that they can observe persons who exit or attempt to exit,

question as to their citizenship status those persons they believe

to be aliens, and arrest those persons whom they have probable

cause to believe are aliens illegally in the United States.

° The court of appeals stated (App. A, infra, 4a) that INS

agents are instructed to question each worker as to his citizen-

ship status, but the record demonstrates that this statement is

erroneous. As a matter of policy, the INS instructs its agents to

question only those persons whom they reasonably suspect of

being aliens. See Immigration and Naturalization Service, U.S.

Dep't of Justice, Pub. No. M-69, The Law of Search and Seizure’

for Immigration Officers (Rev. June 1979), excerpted at Exhib-

it H to Memorandum in Support of Defendent’s Motion for Sum-

mary Judgment, filed 1/18/80. The record, including the deposi-

tions of the respondents, confirms that the agents did not

question all employees. 11/15/79 Declaration of Philip Smith, at

2; Delgado Dep. 52; Correa Dep. 54-56, 66. In addition, the

agents may inquire of employees who are not suspected of being

aliens as to whether they know of other employees who are ille-

gal aliens or who have concealed themselves from the agents.

—

ly, the first question pertained to place of birth or citi-

zenship status. If the individual replied that he was

born in the United States or that he was a citizen, usu-

ally no further questions were asked. If the response

gave the agent reason to believe that the individual was

an alien, the agent would ask the basis for the alien’s

presence in the United States* and would ask to see the

alien’s immigration papers. See, ¢.g., Delgado Dep.

45-55, 80-81; Labonte Dep. 25; Correa Dep. 48-55, 69:

Miramontes Dep. 26-29. Throughout the surveys, the

agents used no force. The employees were free to walk

around within the factory and to continue with their

work. Generally, upon the arrival of the INS agents,

some employees would attempt to flee or hide. The

agents did not chase these employees, but rather con-

tinued their survey until they reached the hiding place

of the illegal aliens. See, e.g., Delgado Dep. 40-46,

61-66, 70, 77.

b. The respondents are four employees who were

present during the surveys at their work place. None of

the respondents was arrested. Respondent Delgado is

employed by Davis Pleating and is a citizen born in

Mayaguez, Puerto Rico (Delgado Dep. 4-5). During the

January survey, he was not questioned by the INS

agents regarding his citizenship or immigration status,

although he was asked by one agent if he had a key for

the back door (id. at 52, 59-60). Delgado walked freely

throughout the factory during the survey, which lasted

between one and one and a half hours (id. at 50, 60-61).

During the September survey, Delgado again was al-

Affidavit of Philip Smith, Exhibit B, supra, at 4. INS agents

are also instructed not to detain individuals except on a reason-

able suspicion that they are illegally present in this country. See

M-69, supra.

* For example, the employee might be present in the United

States as a permanent resident alien or here on a temporary ba-

sis with a valia work permit.

lowed to walk throughout the factory (id. at 77-79). On

this oceasion an INS agent asked Delgado where he

was born. When Delgado responded that he was born in

Mayaguez, Puerto Rico, the agent moved on to another

worker (id. at 79-81). While the survey was being con-

ducted, Delgado left the factory building to load a

truck. He was neither stopped nor questioned by the

INS agent stationed at that door (id. at 84-85).

Respondent Correa also worked at Davis Pleating.

She is a United States citizen who was born and has al-

ways resided in Southern California (Correa Dep. 5, 8).

During the surveys, she was permitted to walk through

the factory without interference from the immigration

officers (id. at 61-66). She was asked no questions dur-

ing the January survey (id. at 56). In September, how-

ever, an agent asked Correa, as she was walking

through the factory, where she was born. After re-

sponding that she was born in California, Correa con-

tinued on her way without further questioning (id. at

69).

Respondent Labonte also worked at Davis Pleating.

She is a resident alien who was born in Mexico (La-

bonte Dep. 5-8). During the September survey she was

seated in front of a machine when an agent tapped her

on the shoulder and asked to see her immigration pa-

pers. She displayed her papers and was not questioned

further (id. at 37-40). At one point, Labonte exited the

factory, approached some INS officers outside the

building, and asked them why they were taking the ille-

gal aliens away (id. at 31, 34-36, 49-50).

Respondent Miramontes, a resident alien, worked at

Mr. Pleat (Miramontes Dep. 6). When the October sur-

vey began, Miramontes was walking to her work sta-

tion from an office when an INS agent asked her if she

was a citizen. When she responded that she was not, he

asked to see her papers. Miramontes showed her pa-

pers, and the agent continued on his way (id. at 18-20).

Miramontes had no other contact with the agents (id.

at 46).

2. Respondents filed two different actions seeking a

declaration that INS factory surveys violate the Fourth

Amendment and asking that INS be enjoined perma-

nently from conducting them.® In particular, respon-

dents challenged the constitutionality of an INS entry

into a factory without the consent of the employees or a

warrant specifically naming the individuals to be ques-

tioned. The second complaint was filed as a class action

on behalf of the respondents and all persons of Latin

ancestry employed in the garment industry or any

other industry in the Central District of California.

Complaint, para. 12. The International Ladies’ Gar-

ment Workers’ Union (ILGWU) was also named as a

plaintiff in both complaints. The district court denied

respondents’ motion to certify the class and also dis-

missed the ILGWU as a party for lack of standing. See

App. A, infra, 6a; App. G, infra, 58a-60a. Thereafter,

the district court granted the INS’s motion for partial

summary judgment, holding that the owner of a

workplace may give a valid consent to entry by the INS

and that a warrant authorizing such an entry need not

identify each person to be contacted by the INS (Apps.

E & F, infra, 53a-57a). Subsequently, the court en-

tered supplemental findings of fact and conclusions of

law, holding, inter alia, that the two warrants issued

to search for illegal aliens at Davis Pleating were valid

and were based upon probable cause (App. D, infra,

49a-52a).

On a second motion for summary judgment, the dis-

trict court considered the Fourth Amendment implica-

tions of the manner in which the factory surveys were

conducted. The court denied respondents’ request for

5 The complaint also asserted that the surveys violate the

equal protection component of the Fifth Amendment, but the

courts below did not reach this issue. See App. A, infra, 7a n.7.

an order enjoining the INS from “‘interrogating or oth-

erwise interferring [sic] with the rights’” of the respon-

dents without an arrest or search warrant naming the

respondents or “‘reasonable suspicion based on specific,

irrefutable facts that [they] are aliens unlawfully in the

United States’” (App. C, infra, 46a). The court found

that none of the respondents had been arrested or de-

tained and that the INS agents were entitled to pose

questions to anyone if they did not detain the person.

Aiternatively, relying on United States v. Martinez-

Fuerte, 428 U.S. 543 (1976), the court held that, even if

respondents technically “had experienced some form of

seizure by placement of INS investigators at the facto-

ry exits, the degree of intrusion on [respondents] was

so minimal that there was no violation of the Fourth

Amendment” (App. C, infra, 47a). The court also con-

cluded that, under 8 U.S.C. 1357(a)(1), any person be-

lieved to be an alien may be questioned about his right

to be in the United States. In sum, the court found that

respondents’ Fourth Amendment rights had not been

violated in the course of the factory surveys, and it

granted the INS’s motion for summary judgment (App.

C, infra, 45a-48a).

3. The court of appeals reversed (App. A, infra,

la-43a). The court held that the method of executing

the factory surveys by stationing agents at the exits to

prevent illegal aliens from escaping violated the Fourth

Amendment in that it constituted a seizure of the entire

work force.* The court concluded that such a seizure

was illegal in the absence of a “reasonable, individual-

ized suspicion of illegal alienage of each detained work-

er prior to the execution of the surveys” (id. at 40a).

® The court upheld the district court's denial of class certifica-

tion (App. A, infra, 48a n.24). It did not reach the question

whether the district court correctly dismissed the ILGWU as a

party (ibid.), and it did not address the validity of the search

warrants (id. at 9a).

The court first held, relying heavily on J/linois Mi-

grant Council v. Pilliod, 531 F. Supp. 1011 (N.D. IL.

1982), appeal pending, Nos. 82-1870, 82-1871 (7th Cir.),

that the stationing of agents at the exits “sufficiently

intrudes upon the privacy and security interests of the

workers that a seizure of the workforce occurs during

the surveys” (App. A, infra, 12a). The court acknowl-

edged that the respondents “had varying degrees of

freedom to circulate through or exit the factories” (id.

at 19a), but nonetheless held that the work force was

seized for the entire duration of the survey. The court

stated that the number of INS agents and their display

of INS badges “represented a threatening presence of

INS agents to the reasonable worker” (ihid.). More-

over, the stationing of agents at the exits “indicated to

the entire workforce that departures were not to be

contemplated” (jbid.). Quoting United States v.

Anderson, 663 F.2d 934, 939 (9th Cir. 1981), the court

concluded that “even before individual questioning be-

gan, a reasonable worker ‘would have believed that he

was not free to leave"; and hence, the entire work

force was seized within the meaning of the Fourth

Amendment (id. at 20a).?

The court of appeals then held that the Fourth

Amendment permits the INS to engage in detentive

questioning only on the basis of an individualized suspi-

cion that a worker is «1 alien illegally in this country

(App. A, infra, 20a-39a). The court first concluded that

the Fourth Amendment generally requires a suspicion

* In this connection, the court rejected respondents’ conten-

tion that, under Dunaway v. New York, 442 U.S. 200 (1979),

the manner in which the factory surveys were conducted consti-

tuted an arrest of the work force requiring probable cause (App.

A, infra, 1la-12a). To the contrary, the court specifically found

that no one was arrested “until the investigators had sufficient

probable cause to suspect that those in custody were in this

country without proper documentation” (id. at 12a).

of illegality to support a detention and held that the

same requirement applies here (id, at 30a-32a), The

court recognized that 8 U.S.C. 1857(a)(1) expressly au-

thorizes INS agents “to interrogate any alien or person

believed to be an alien as to his right to be or to remain

in the United States,” but it construed that provision

not as a grant of authority but as a “statutory limitation

upon the conduct of INS agents” with respect to their

right to engage in non-detentive questioning of an indi-

vidual (App. A, infra, 24a), Thus, the court held that

Section 1357(a)(1) imposes a restriction under which

INS agents may pose questions only to persons whom

they reasonably suspect of being aliens and, moreover,

that any questioning that constitutes a seizure under

the Fourth Amendment may be conducted only when

an agent reasonably suspects that the individual being

questioned is an alien illegally present in this country.

A different rule, the court concluded, “would grant the

INS impermissible discretion to detain and question at

whim” (App. A, infra, 32a).

The court of appeals further held that any detentive

questioning of an alien had to be based on an individu-

alized suspicion of illegal alienage (App. A, infra,

32a-39a). The court acknowledged that this Court in

United States vy. Martinez-Fuerte, supra, had recog-

nized that-a seizure within the meaning of the Fourth

Amendment could be effected in some circumstances in

the absence of an individualized suspicion of illegality,

but the court distinguished Martinez-Fuerte on the

ground that it entailed a lesser intrusion than the facto-

ry surveys involved here (id. at 32a-35a). Thus, the

court held that reasonable suspicion or even proba-

ble cause to believe that numerous illegal aliens were

working in the factories was insufficient to justify the

seizure of any individual alien; in this connection, the

court explicitly rejected the Third Circuit’s contrary

holding in Babula v. INS, 665 F.2d 298 (1981) (App. A,

infra, 35a-39a). Applying these principles to the instant

case, the court held that the surveys violated the

Fourth Amendment because the entire work force was

seized and the INS agents did not have an individual-

ized suspicion that each employee was an illegal alien

(id. at 39a-42a),

REASONS FOR GRANTING THE PETITION

The court of appeals’ decision, if allowed to stand,

will have far-reaching practical and legal consequences.

First, it will have a direct and significant adverse effect

on the ability of the INS to enforce the immigration

laws. Beyond that, the decision below incorrectly re-

solves important Fourth Amendment questions that

have broad significance outside the particular context of

this case.

From a practical standpoint, the court of appeals’ de-

cision almost completely destroys the utility of an im-

portant and effective tool in apprehending aliens who

are illegally present in this country. Because of the con-

centration of illegal aliens at certain places of employ-

ment and the INS’s limited manpower, a survey of em-

ployees at a factory at which the INS has reason to

believe numerous illegal aliens are employed is one of

the INS’s most effective enforcement techniques. See

Affidavit of Philip Smith, Exhibit B, supra, at 1. In

1977, the year in which the surveys at issue here took

place, more than 20,000 illegal aliens were identified

and arrested in the course of factory surveys in the Los

Angeles area alone. 11/15/79 Declaration of Philip

Smith, at 2.

The decision below severely undercuts the effective-

ness of such surveys. It quite plainly bars under any

circumstances the stationing of agents at exits to pre-

vent illegal aliens from fleeing during a factory survey.

Under the reasoning of the court of appeals, even if

INS agents have probable cause to believe that 99 out

of 100 persons present in a factory are illegal aliens,

agents cannot be stationed at the exits because that

would constitute an illegal seizure of the one person in-

side who is not an illegal alien.* Clearly, the effective-

ness of factory surveys will be greatly diminished, if

not totally destroyed, if the INS is not permitted to sta-

tion agents at the doors of a factory to prevent escape

while the survey is being conducted. Indeed, the court

of appeals itself recognized that its decision barring the

stationing of agents at the exits would reduce substan-

tially the number of illegal aliens apprehended and

hence hinder INS enforcement efforts (App. A, infra,

16a, 42a). Moreover, to the extent the INS is able to

continue with such surveys at all in light of the court’s

opinion, the disorder and danger involved in conducting

the surveys will be greatly increased because illegal al-

iens will be encouraged to flee by the absence of anyone

guarding the exits.

From a legal standpoint, the potential precedential

impact of the decision below on Fourth Amendment law

is even greater. In the specific immigration context, the

court of appeals’ decision calls into question the consti-

tutionality of a federal statute, and it expressly creates

a conflict with a decision of another court of appeals

with respect to the legality of established INS prac-

tices. More broadly, the decision casts doubt on the

validity of longstanding police practices directed at ap-

prehending criminals who have been able to mingle

temporarily with innocent persons. The significant im-

pact on Fourth Amendment law of the erroneous rul-

ings of the court of appeals creates a compelling need

for review by this Court.

1. The court of appeals seriously erred in holding that

the stationing of agents at exits during a factory survey

* Significantly, two of the three factory surveys underlying

the present litigation were supported by a warrant based upon

probable cause to believe that a number of the employees at the

factory named in the warrant were illegal aliens.

constitutes an illegal seizure of the entire workforce.

The court purportedly applied the test set forth by Jus-

tice Stewart in United States v. Mendenhall, 446 U.S.

544, 554 (1980) (footnote omitted), that “a person has

been ‘seized’ within the meaning of the Fourth Amend-

ment only if, in view of all of the circumstances sur-

rounding the incident, a reasonable person would have

believed that he was not free to leave.” See App. A,

infra, 12a-18a, 19a-20a; see also Terry v. Ohio, 392

U.S. 1, 19 n.16 (1968). However, it simply ignores the

realities of the situation to hold that every worker in a

factory is “seized” under this test as soon as INS agents

commence a factory survey by taking up positions at

the exits aod before any questioning at all has occurred.

Preliminarily, we note that it is only in a theoretical

sense that the work force here, or in any typical factory

survey, can be characterized as having a “freedom to

leave” that is restrained by the appearance of the INS.

The factory surveys in this case were conducted during

morning working hours (see Delgado Dep. 66; Correa

Dep. 59; Labonte Dep. 17), At that time the employees

surely were obligated to be present at their work sta-

tions performing their employment duties; quite apart

from the appearance of the INS agents, the employees

were not “free to leave” the factory in any real sense.

Given the undisputed finding (see App. A, infra, 19a)

that during the survey employees were free to walk

through or exit the factory in the course of performing

their duties, the court of appeals’ opinion does not ex-

plain how the INS agents here restrained the “freedom

to leave” of members of the work force in any meaning-

ful sense,

More fundamentally, there is no basis for finding that

employees who were not illegal aliens would have felt

their freedom restrained by the stationing of agents at

the exits. The purpose of the survey was manifest and

was announced by the INS agents, namely, to appre-

hend illegal aliens. Hence, as respondent Correa can-

didly testified (Correa Dep. 76), a citizen or alien legal-

ly present in this country knew immediately that he or

she personally had nothing to fear from the INS; such

individuals could not reasonably have felt threatened or

restrained by the survey. They reasonably should have

understood that the INS agents at the exits were posi-

tioned to stop only illegal aliens from leaving, not to

curtail the movements of others. Thus, contrary to the

court of appeals’ suggestion (App. A, infra, 11a), a citi-

zen or legal alien should not have felt coerced if he saw

workers arrested who were trying to flee.

Furthermore, even accepting the court of appeals’

view that the stationing of agents at the exits is in

some technical sense a seizure of the entire work force,

including those employees who are not illegal aliens,

the court of appeals nevertheless erred in finding that

such precautionary action violates the Fourth Amend-

ment. This Court has recognized that a limited intru-

sion that rises to the level of a Fourth Amendment “sei-

zure” may in some circumstances be effected in the

absence of an individualized basis for suspicion. L’nited

States v. Martinez-Fuerte, 428 U.S. 543 (1976). There,

the Court sanctioned the operation of a fixed checkpoint

on a California highway that required all vehicles to

come to a virtual halt as they passed by, even though

the Court assumed that each car was thereby “seized”

within the meaning of the Fourth Amendment. See id.

at 546 n.1, 556. Moreover, the Court held that the Con-

stitution permitted the selective referral of some vehi-

cles to a secondary checkpoint for three to five minutes

of questioning without an articulable basis for sus-

pecting that the vehicle contained illegal aliens. Jd. at

563-564. Just as in Martinez-Fuerte, the law enforce-

ment interests that make it reasonable to station agents

at factory exits during a survey outweigh the minimal

intrusion occasioned thereby, and hence any theoretical

seizure of the entire work force does not violate the

Fourth Amendment.

The court of appeals’ effort to distinguish Martinez-

Fuerte on the ground that it involves a lesser intrusion

than a factory survey (App. A, infra, 32a-35a) cannot

withstand analysis. To be sure, employees at a factory

do not know in advance when their workplace is going

to be surveyed, while a traveler familiar with the high-

way in Martinez-Fuerte would not have been surprised

to come upon the checkpoint (although he could not

have anticipated being selected for secondary referral).

In the most significant respects, however, the alleged

seizure involved in the factory survey is substantially

less intrusive than the check)oint stop in Martinez-

Fuerte. First, the alleged seizure in connection with the

factory survey is only theoretical; the workers are free

to go about their business and, as a practical matter,

they engage in the same activity that they would if the

INS did not appear. By contrast, the traveler stopped

at a checkpoint is truly “stopped” and is diverted com-

pletely for three to five minutes from what he would

otherwise have been doing.* Furthermore, it is difficult

to see how the factory survey could engender any anxi-

ety in an individual who is legally in this country; be-

cause he is immediately aware that the purpose of the

survey is to apprehend illegal aliens, he knows that he

® The court of appeals sought to distinguish Martinez-Fuerte

on the ground that it involved a detention of much shorter dura-

tion than that involved here (see App. A, infra, 34a). But the

court’s holding that each individual member of the work force is

seized for one and one-half hours during a factory survey is

manifestly erroneous. While the entire survey, during which the

employees are free to continue to go about their work, may last

that long, it is clear that, to the extent there is any detention at

all, the maximum that any individual who wishes to leave is de-

tained is the very short time needed for him to answer an

agent’s question regarding his citizenship status, after which he

clearly is free to leave.

is not subject to arrest and at worst will be asked only

to answer a question about his citizenship status or

show proper documentation to the agents. At a check-

point, however, an individual singled out for selective

referral will be considerably more anxious because he

will often not be aware of the reason he has been

singled out, and hence the seizure is significantly more

intrusive for him.

The error of the court of appeals’ analysis is mani-

fested by the broad and unacceptable implications of its

holding. According to the decision below, if one or more

criminal fugitives were to flee into a building that also

contained innocent persons, the police would not be

permitted to guard the exits of the building and briefly

check everyone who exited because that would consti-

tute an illegal seizure of the innocent occupants. In-

deed, under the court of appeals’ decision, it is difficult

to discern the constitutional basis for a roadblock to

catch a fleeing criminal or to check for safety violations,

since innocent persons would surely be stopped. But

see Delaware v. Prouse, 440 U.S. 648, 663 (1979);

United States v. Martinez-Fuerte, supra, 428 U.S. at

560 n.14. This extraordinary expansion of the Fourth

Amendment by the court of appeals merits this Court’s

review.

2. a. Following up its conclusion that the entire work

force is seized when INS agents station themselves at

the exits during a factory survey, the court of appeals

issued two other important Fourth Amendment rulings

that warrant review by this Court. First, the court an-

swered in tue negative the question reserved by this

Court in United States v. Brignoni-Ponce, 422 U.S.

873, 884 n.9 (1975) —whether an INS agent may stop an

individual reasonably believed to be an alien when

there is no specific reason to believe that he is illegally

in this country. As the court of appeals noted (App. A,

infra, 23a), the lower courts have struggled with this

issue and have reached somewhat divergent results.

Compare Lee v. INS, 590 F.2d 497 (3d Cir. 1979), with

Au Yi Lau v. INS, 445 F.2d 217 (D.C. Cir.), cert.

denied, 404 U.S. 864 (1971). Clarification of this area of

the law by this Court would facilitate the consistent ad-

judication of immigration cases in the lower courts.

Moreover, the court of appeals’ ruling casts serious

doubt on the validity of a federal statute, 8 U.S.C.

1357(a)(1), which provides that INS agents are empow-

ered without warrant “to interrogate any alien or per-

son believed to be an alien as to his right to be or re-

main in the United States * * *.” By its terms, the

statute plainly does not require any suspicion of illegali-

ty as a prerequisite to such interrogation. Although the

court of appeals was of the view that the Constitution

does not permit any seizure of a person on the basis of

alienage alone without a suspiciun of illegality (see App.

A, infra, 31a-32a), the court did not expressly find Sec-

tion 1357(a)(1) unconstitutional. Rather, it interpreted

the statute as referring only to questioning that does

not involve a seizure under the Fourth Amendment

(App. A, infra, 24a).'° Because nothing in the Consti-

tution prevents a law enforcement officer from ad-

dressing questions to anyone on the street so long as no

seizure occurs (see, ¢.g., Terry v. Ohio, supra, 392

U.S. at 34 (White, J., concurring)), the court of ap-

peals reached the surprising conclusion that Section

1° The court did not explain what sort of questioning it had in

mind. Because of its holding here that the entire work force was

seized before any questioning occurred, the court did not con-

sider whether the questioning reflected in the record in and of

itself necessarily involved a seizure. Given its expansive view of

the kind of INS conduct that gives rise to a seizure (see App. A,

infra, 18a), however, it seems clear that the class of ques-

tioning that the court would recognize as non-detentive is small

indeed (see id. at 40a n.23).

1357(a\(1), under its interpretation, was a “statutory

limitation” on INS authority (App. A, infra, 24a).

As a matter of statutory construction, this reading of

Section 1357(a)(1) is, to put it mildly, difficult to justify.

The use of the term “interrogate” hardly connotes an

intent to limit the reach of the statute to non-detentive

questioning. And it is incomprehensible why Congress

should have wished to impose such a special limitation

on INS authority when it was seeking to improve en-

forcement of the Nation’s immigration laws. Thus, both

this Court and the lower courts generally have under-

stood Section 1357(a)(1) to cover questioning that con-

stitutes a “seizure” within the meaning of the Fourth

Amendment. See, e.g., United States v. Brignoni-

Ponce, supra; Lee v. INS, supra, 590 F.2d at 500;

United States v. Martinez, 507 F.2d 58, 61 (10th Cir.

1974). Therefore, the soundest reading of the decision

below is that the court interpreted Section 1357(a)(1) in

this fashion in order to save its constitutionality, rea-

soning that the common sense interpretation of the

statute would violate the Fourth Amendment (see App.

A, infra, 31a-32a). See also Illinois Migrant Council v.

Pilliod, 548 F.2d 715 (7th Cir. 1977) (en bane); Au Yi

Lau v. INS, 445 F.2d 217, 223 (D.C. Cir.), cert. de-

nied, 404 U.S. 864 (1971). This suggestion of the uncon-

stitutionality of a federal statute warrants review by

this Court. Cf. 28 U.S.C. 1252.13

We submit that the court’s conclusion of unconstitu-

tionality is flawed. The primary basis for the holding is

the view that the Fourth Amendment absolutely pro-

hibits effecting a seizure in the absence of a reasonable

suspicion of illegality (see App. A, infra, 22a-31la). But

11 In Almeida-Sanchez v. United States, 413 U.S. 266 (1973),

this Court limited on constitutional grounds the authority to

search granted by Section 1357. That decision in no way affect-

ed, however, the INS’s authority to interrogate conferred by

Section 1357(a)(1).

this analysis ignores this Court’s admonition that “the

Fourth Amendment imposes no irreducible require-

ment of [individualized] suspicion.” Martinez-Fuerte,

supra, 428 U.S. at 561. In the immigration context, it is

“reasonable” under the Fourth Amendment for a stop

to be based on alienage, even in the absence of a suspi-

cion of illegal alienage. By statute, Congress has condi-

tioned each alien’s privilege of residing or working in

the United States on fulfillment of the obligation to car-

ry at all times a registration card evidencing his right

to be here. 8 U.S.C. 1304(e), Aliens who choose to work

or reside here accept that obligation and, by the same

token, the obligation to produce proper documentation

when requested to do so by INS officials pursuant to &

U.S.C. 1357(a)(1). See Brignoni-Ponce, supra, 422

U.S. at 884. If they were free to refuse such a request,

the requirement to carry identification would be ren-

dered virtually meaningless. Thus, it is reasonable un-

der the Fourth Amendment for an INS agent briefly to

detain an individual reasonably suspected of being an

alien so long as the detention is limited to inquiring as

to the alien’s right to be present in the United States. !?

b. Finally, the court of appeals held that the required

suspicion of illegality must be individualized, j.e., the

INS agents’ reasonable suspicion (or even probable

cause to believe) that numerous factory employees

12 As noted above (note 2, supra), as a policy matter the INS

has instructed its agents not to detain individuals for ques-

tioning except on a reasonable suspicion of illegal alienage. This

policy reflects a recognition of the INS’s manpower limitations

and an attempt to formulate a uniform nationwide policy that

comports with the Seventh Circuit’s decision in Jilinois Mi-

grant Council v. Pilliod, supra. Contrary to the court of ap-

peals’ assertion (App. A, infra, 20a n.12), the policy does not

constitute a “concession” that brief questioning of an alien

amounting to a seizure within the meaning of the Fourth

Amendment is prohibited in the absence of a suspicion of illegal-

ity. Cf. United States v. Caceres, 440 U.S. 741 (1979).

were illegal aliens did not justify the seizure of any par-

ticular employee. This holding creates a new Fourth

Amendment requirement that will make it quite diffi-

cult for the INS to act on reliable information concern-

ing concentrations of illegal aliens. The Fourth Amend-

ment simply does not contain any such requirement of

individualized suspicion. Obviously, in order to detain a

single individual, a law enforcement officer must have

reason to believe that that individual is engaged in ille-

gal activity; but there is no reason why the basis for

suspicion must be “individualized.” Thus, for example,

if an officer knows that seven out of ten persons are il-

legal aliens, the knowledge that three of the persons

will turn out to be innocent does not alter the fact that,

in the absence of any additional information dispelling

the suspicion with respect to a particular individual, the

officer has a reasonable suspicion of illegal alienage

with respect to each person sufficient to justify an ini-

tial detention for purposes of inquiry.’

This principle has been recognized by this Court. The

clearest example is in the context of administrative

searches, where the Court has expressly stated that a

warrant for an “area inspection” need not be based on

specific information about any particular building.

Camara v. Municipal Court, 387 U.S. 528, 538 (1967);

see also United States v. Biswell, 406 U.S. 311 (1972).

In the immigration context, the right to stop a car at a

fixed checkpoint does not rest on any individualized ba-

sis for suspicion of a particular car (see Martinez

Fuerte, supra, 428 U.S. at 560-563); by the same token,

the Court has not suggested that the INS may conduct

a roving patrol stop only where it has reason to suspect

‘8 Of course, the reasonable suspicion standard recognizes

that in some cases further inquiry will dispel the suspicion.

Thus, as long as it is supported by reasonable suspicion at the

time, a detention is consistent with the Fourth Amendment

even though the suspicion later turns out to have been unfounded.

that every occupant of a car is an illegal alien or en-

gaged in criminal activity (see United States v.

Brignoni-Ponce, supra). See also Almeida-Sanchez vy.

United States, supra, 413 U.S. at 283-285 (Powell, J.,

concurring).

The court of appeals explicitly recognized (App. A,

infra, 35a-39a) that its holding on this point placed it in

conflict with the Third Circuit’s decision in Babula vy.

INS, 665 F.2d 293 (1981). In that case, the court

upheld a factory survey similar to the ones involved

here. The court rejected the contention that the em-

ployees of the factory could not be “seizec” for ques-

tioning concerning their citizenship status in the ab-

sence of an individualized basis for suspicion (id. at

296-297), holding that the suspicions based “on the mi-

lieu in which the workers were found” (jd. at 296) pro-

vided an adequate basis for the detentions. The decision

below is also fundamentally inconsistent with Blackie’s

House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C.

Cir. 1981), cert. denied, 455 U.S. 940 (1982). In

Blackie’s, the court upheld the issuance of an adminis-

trative search warrant for a restaurant based on proba-

ble cause to believe that illegal aliens worked there, al-

though the warrant did not particularly describe or

name the illegal aliens sought. While the court was not

presented with the precise question of the validity of a

seizure without individualized suspicion, its opinion

makes clear that it understood the INS to be empow-

ered to question employees who appeared to be aliens

on the basis of the same generalized suspicion that sup-

ported the warrant. 659 F.2d at 1225-1226. The need to

resolve this conflict in the circuits also militates in favor

of review by this Court of the decision below.

In sum, both the practical impact of the decision be-

low as a whole and the erroneous resolution by the

court of appea's of the discrete Fourth Amendment is-

sues addressed warrant review by this Court.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

REx E. LEE

Solicitor General

D, LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ALAN I, HOROWITZ

Assistant to the Solicitor General

PATTY MERKAMP STEMLER

Attorney

JANUARY 1983

APPENDIX A

INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION,

AFL-CIO; HERMAN DELGADO; RAMONA CORREA:

FRANCIS LABONTE; AND MARIA MIRAMONTES, ON

BEHALF OF THEMSELVES AND ALL PERSONS SIMILARLY

SITUATED, PLAINTIFFS-APPELLANTS,

JOSEPH SURECK; WILLIAM FRENCH SMITH: * LEONEL

J. CASTILLO; AND THE IMMIGRATION AND

NATURALIZATION SERVICE. DEFENDANTS-APPELLEES.

THE INTERNATIONAL LADIES’ GARMENT WORKERS’

Union, AFL-CIO; HERMAN DELGADO: RAMONA

CORREA; FRANCIS LABONTE AND MARIA

MIRAMONTES, ON BEHALF OF THEMSELVES AND ALL

PERSONS SIMILARLY SITUATED.

PLAINTIFFS-APPELLANTS,

JOSEPH SURECK: GIL CLARIN: JAMES ROBINSON,

WILLIAM FRENCH SMITH:* LEONEL J. CASTILLO; AND

THE IMMIGRATION AND NATURALIZATION SERVICE,

DEFENDANTS-APPELLEES.

Nos. 80-5054, 80-5153, 80-5035 and 80-5152.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 1981.

Decided July 15, 1982.

On Appeal from the United States District Court for

the Central District of California.

“Pursuant to Rule 43(c\1) of the Federal Rules of Appellate

Procedure, William French Smith has been substituted for Ben-

jamin R. Civiletti as the defendant.

Before ANDERSON and Norris, Circuit Judges, and

MUECKE, District Judge”.

J. BLAINE ANDERSON, Circuit Judge:

This case presents another challenge to the methods

used by the Immigration and Naturalization Service

(INS) in its efforts to vigurously enforce the nation’s

immigration laws. Appellant International Ladies’ Gar-

ment Workers’ Union (ILGWU) and the named appel-

lants appeal from district court rulings dismissing the

ILGWU as a representational plaintiff, denying class

certification, and denying two motions for summary

judgment while granting cross motions for summary

judgment in favor of the appellees (all referred to as

“INS”), We reverse the summary judgment granted to

the INS on the challenge to the detention and

questioning.

I. FACTS

Two actions, eventually consolidated, were filed in

the district court requesting declaratory and injunctive

relief from the INS’ pattern and practice of conducting

factory surveys or sweeps through factories and

workplaces for purposes of locating illegal aliens.’ Ap-

pellants challenge the INS activity as violative of the

Fourth and Fifth Amendments,

**The Honorable C. A. Muecke, Chief Judge, United States

District Court for the District of Arizona, sitting by

designation.

! Throughout this opinion, the term “illegal alien” refers to al-

iens who have entered this country and/or are found to be in

this country in violation of the laws of the United States. In this

category are aliens who enter without inspection, aliens who

overstay their non-immigrant visas and pas: °s, and any others

who enter or remain in the United States in violation of immi-

gration and other laws. For most purposes, the term is synony-

mous with deportable alien. See United States v. Martinez-

Fuerte, 428 U.S. 543, 553, 96 S.Ct. 3074, 3080, 49 L.Ed.2d 1116

(1976).

The record demonstrates that at the time this litiga-

tion was initiated, the INS concentrated its Area Con-

trol operations? at workplaces rather than in residential

areas because of the agency's limited resources and its

experience in successfully apprehending large numbers

of illegal aliens employed in various factories, most not-

ably in the garment industry. The record also indicates

that the Los Angeles District Office of the INS was

conducting approximately four factory surveys per

week and, on occasion, more than 100 illegal aliens

were apprehended in a single factory as a result of sur-

veys performed at various establishments.

The record also describes the typical factory survey

as one commenced when the INS receives information,

sometimes from anonymous sources, that a particular

workplace may be employing illegal aliens. In order to

verify this information, INS agents place the suspected

workplace under visual surveillance in an effort to de-

termine from observations of the workforce entering

and leaving the workplace whether the company does

indeed employ illegal aliens. If their information is

verified, the agents are instructed to request permis-

sion of the workplace owner or management for the

INS to enter and question suspected illegal aliens with

the ultimate objective of arresting those found to be in

the country illegally and referring them to appropriate

deportation proceedings. The INS reports that approxi-

mately 90% of the owners and managers consent to the

surveys of their workforce; the INS obtains search war-

rants to enter premises without such consent.

* Record references to Area Control define it as operations

which are designed to locate and apprehend aliens illegally in

the United States. Declaration of Phillip Smith, Assistant Di-

rector for Investigations, Los Angeles District Office of the Im-

migration and Naturalization Service; Exhibit A, C.R. 97. Fac-

tory surveys apparently are considered to be a category pf Area

Control.

The record is free of disputed issues of material fact,

although varying characterizations of the events sur-

rounding the typical factory survey appear. After

receiving consent or pursuant to warrant, INS agents

enter the workplace by stationing agents at exits and

entrances in order to prevent persons from leaving the

workplace? The remaining agents proceed through the

factory, questioning workers as to their citizenship sta-

tus. While the officers and agents are instructed to be

courteous and cause as little disruption as possible, the

survey process often begins with workers’ cries of “la

migra” (the immigration), followed by attempts by

some workers to hide or run from INS officers con-

ducting the survey, Disruption of the workplace usually

occurs, The officers are instructed to question each

worker, although the INS admits that such a task is not

often possible.4

Three particular surveys are challenged in this case,

Search warrants were issued for two surveys conducted

at the Southern California Davis Pleating Company

(Davis) workplace, the first conducted on January 4,

1977, where 78 illegal aliens were apprehended, and the

other conducted on September 27, 1977, where 39 ille-

gal aliens were apprehended. The third challenged sur-

vey occurred at a firm known as Mr. Pleat on October

3, 1977, where the INS entered by consent of the own-

er and where 45 illegal aliens out of workforce of ap-

proximately 90 were arrested, Appellants Delgado and

Correa, United States citizens, and appellant Labonte,

a resident alien, were all subjected to INS questioning

at the Davis plant during the September survey. Ap-

pellant Miramontes, a resident alien, was asked three

questions during the October survey of Mr. Pleat.

3 Affidavit of Phillip Smith; C.R. 14 at 3,

4Jd8 at 4,

The search warrants for the Davis surveys were is-

sued under Fed.R.Crim.P. 41 and did not state with

particularity the names of any individual illegal aliens

sought as the objects of the searches.5 The INS entered

the M’. Pleat facility with the consent of the owner of

the facility and not the consent of all of the workers.

The record also indicates that during the Davis sur-

veys, the INS agents did not question every worker as

policy would usually dictate because manpower limita-

5 The search warrants issued for the January and September

1977 surveys of the Davis facility do not state that particular

named persons were the objects of the surveys, but merely

state that the INS investigator who executed the affidavit in

support of the warrant had reason to believe that on the Davis

premises;

“there is now being concealed certain property, namely

persons, namely illegal aliens which are the fruits and in-

strumentalities and evidence of violations of Title &,

United States Code, Sections 1324 and 1325, ...”

E.R. at 110 and 413,

Both warrants were issued pursuant to information obtained

by INS investigators through their surveillance of the Davis

plant. The affidavit in support of the January 1977 survey did

not list names of particular persons sought, but consisted of

statements made by aliens apprehended while attempting to en-

ter the Davis plant to the effect that they believed other illegal

aliens were presently employed by Davis. In addition, the INS

investigator affiant stated that he personally “noted that twen-

ty persons of apparent Latin decent [sic) entered [the Davis

premises} through the West door.” E.R. at 113.

The affidavit in support of the September 1977 survey war-

rant contained information regarding an alleged complaint by

one of the Davis citizen employees who said she could identify

two named workers at Davis who had returned to work after

having previously been deported as a result of the January sur-

vey. The same complainant suspected that many new hirees

were illegal aliens “based on their behavior and comments.”

Finally, the affidavit stated that an illegal alien apprehended

while approaching the outside of the Davis plant stated that she

personally knew of four additional unnamed illegal aliens em-

ployed at the Davis plant.

tions prevented such a procedure in a factory em-

ploying 200-300 workers as did Davis at the time of the

surveys. Instead, the workers chosen for questioning at

the Davis surveys were selected with the agents’ use of

a combination of objective and subjective factors.®

As the labor organization certified as the exclusive

representative of production and maintenance employ-

ees at the Davis and Mr. Pleat facilities, the ILGWU

asserts its representational capacity to sue on behalf of

its members under the Labor-Management Relations

Act of 1947, 29 U.S.C. §§ 141, ef seg. The ILGWU al-

leges that it represents thousands of garment workers,

the majority of whom are of Latin ancestry employed in

shops throughout the Central Judicial District of

California. It alleges injury to itself and its members as

a result of the INS factory surveys. Acting upon a

motion filed by the INS, the district court ordered the

Union dismissed from the litigation by an order filed on

November 16, 1979, and entered as a final judgment

under Fed.R.Civ.P. 54(b) on December 13, 1979. The

Union appeals from this dismissal in Nos. 80-5035 and

80-5054.

The appellants’ motion to certify a class consisting of

“all persons of Latin ancestry or of a Spanish surname

who are, will be, or have been employed in the garment

industry or in any other industry in the Central Judicial

District of California” was denied by Order entered

May 31, 1979. Appellants appeal from this order in Nos.

80-5152 and 80-5153.

In December of 1979, the parties filed cross-motions

for partial summary judgment on the issues of the con-

6 Some agents describe the selective process as one involving

the use of factors which may indicate that a person is an alien;

e.g., the person’s clothing, facial appearance, hair coloring and

styling, demeanor (i.e., anxiety or fright), language and accent,

and a multitude of subjective factors that one agent described as

“multisensory” factors.

Stitutional validity of the search warrants and the valid-

ity of the surveys conducted with consent of only the

owner of the Mr. Pleat workplace. On these issues. the

district court found for the INS, holding the warrants

valid as issued under Fed.R.Cr.Pro. 41( b\(4), con-

taining sufficient particularity as to the persons to be

seized and based upon sufficient probable cause. As an

alternative holding, the district court found that the ap-

pellants lacked a sufficient privacy interest in their

workplace to contest the surveys pursuant either to

warrant or consent.

In January of 1980, the parties filed cross-motions for

summary judgment on the remaining issues involving

the propriety of the INS detention and questioning of

workers during the surveys. On these issues. the dis-

trict court again found for the INS. holding that the ap-

pellants were not arrested, detained or seized in a man-

ner implicating the Fourth Amendment, that the INS

properly conducted the questioning pursuant to statuto-

ry authority contained in 8 U.S.C. § 1357(a)(1), and

that even if appellants had experienced some form of

seizure by the placement of the INS investigators at

factory exits, that the degree of intrusion was so limit-

ed that no Fourth Amendment violation existed.

The American Jewish Committee and the Mexican

American Legal Defense and Educational Fund were

granted leave to file an amicus curiae brief. The amici

concentrate on alleged Fifth Amendment equal protec-

tion violations stemming from the surveys. The record

contains no reference to district court action on the

Fifth Amendment issues raised.?

* Although the Fifth Amendment claim is mentioned in the

First Amended Complaint in CV 78-0740-LEW (PX) (ER at 93),

and in the Complaint in CV-78-324-LEW (PX). and is addressed

briefly in Plaintiffs’ Motion for Summary Judgment filed 1/18/80

ER 655-57) (only three pages), the district court never ad-

dressed the Fifth Amendment issue in any of its orders, find-

Il. STANDARD OF REVIEW

This case appeared before the district court on two

sets of cross-motions for summary judgment. In

granting the motions in favor of the INS, the district

court also adopted, with some changes, the prepared

findings of fact and conclusions of law as submitted to

the court by the INS. The most significant of the find-

ings and conclusions were the district court’s determi-

nations that the plaintiffs did not have a legitimate pri-

vacy interest in the factory premises in order to contest

the issuance of the search warrants, that none of the

named plaintiffs had been arrested, detained or seized,

and that the placing of INS agents at the exits of the

factory during the operation did not rise to a level

implicating Fourth Amendment constraints upon INS

conduct.

Our review of summary judgment findings is de

novo. This court will affirm a grant of summary judg-

ment only if it appears from the record, after viewing

all evidence and factual inferences in the light most fa-

vorable to the appellant, that there are no genuine is-

sues of material fact and that the appellee is entitled to

prevail as a matter of law. Gaines v. Haughton, 645

F.2d 761, 769 (9th Cir. 1981), cert. denied, __ U.S.

102 S.Ct. 1006, 71 L.Ed.2d 297 (1982); Heiniger

v. City of Phoenix, 625 F.2d 842, 843 (9th Cir. 1980).

The appellants and appellees agree that none of the rna-

terial facts are in dispute. The district court acknowl-

edged this as well. Finding of Fact No. 5, filed Febru-

ary 15, 1980, and Finding of Fact IV, filed February

2), 1980. Additionally, we find no evidence in the rec-

ord that the parties intended a trial on stipulated rec-

ord which would suggest a clearly erroneous standard

ings or conclusions, and the defendants/appellees never ad-

dressed it in their papers below. In view of our disposition, we

need not reach these issues.

of review of the district court's findings. See Starsky v.

Williams, 512 F.2d 109 (9th Cir. 1975). We will, there-

fore, consider this case to be governed by the standard

of review of district court findings applicable to summa-

ry judgments, and will review the record with all rea-

sonable evidentiary inferences granted in favor of the

appellants,

Il. INS ENTRY WITH SEARCH WARRANT

AND CONSENT

The searches at the Davis plant were conducted after

the INS had procured search warrants issued by feder-

al magistrates. Appellants assert that the warrants

were defective because they were not supported with

sufficient probable cause, were lacking in particularity

since neither warrant listed the names or identity of

particular aliens sought, and that Fed.R.Crim.P. 4]

does not authorize the issuance of the type of warrant

employed by the INS. We need not reach any of these

questions because we are persuaded that the conduct of

the INS during the factory surveys violated the Fourth

Amendment rights of the factory workers.®

IV. FOURTH AMENDMENT CONSIDERATIONS

REGARDING DETENTIVE QUESTIONING

1, Execution of the Factory Surveys Constitutes a

Seizure Cognizable under the Fourth Amendment.

We now turn to the issues raised by the appellants’

challenges to the conduct of the INS upon entry into

® In any event, the INS admitted during oral argument that

reliance on the warrants was limited to justification for the ini-

tial entry into the workplaces. We therefore consider the deten-

tive questioning of the workers to have been warrantless and do

not pass judgment upon the propriety of the INS’ use of such

search warrants. Cf. Blavkie’s House of Beef v. Castillo, 659

F.2d 1211 (D.C.Cir. 1981). cert. denied, _.. U.S, ___. 108

S.Ct. 1482, 71 L.Ed.2d 651 (1982),

10a

the factories. A critical threshold issue here concerns

the applicability of the Fourth Amendment to the INS

questioning of workers during the factory surveys. The

Fourth Amendment applies to law enforcement activi-

ties involving seizures of the person, including brief de-

tentions short of a traditional arrest. Michigan v. Sum-

mers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340

(1981); United States v. Cortez, 449 U.S. 411, 101 S.Ct.

690, 66 L.Ed.2d 621 (1981); Reid v. Georgia, 448 U.S.

438, 440, 100 S.Ct. 2752, 2758, 65 L.Ed.2d 890 (1980);

Brown v. Teras, 443 U.S. 47, 99 S.Ct. 2637, 61

L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648,

99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v.

Brignoni-Ponce, 422 U.S. 873, 878, 96 S.Ct. 2574, 2578,

45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1,

16-19, 88 S.Ct. 1868, 1877-78, 20 L.Ed.2d 889 (1968).

The INS contends that the facts of this case do not

present a detention or seizure which would implicate

the objective standards required by the F ourth Amend-

ment, relying primarily upon statements from Terry v.

Ohio, supra; United States v. Mendenhall, 446 U.S.

544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Cuevas-

Ortega v. INS, 588 F.2d 1274 (9th Cir. 1979); and Cor-

don de Ruano v. INS, 554 F.2d 944 (9th Cir. 1977). The

INS argues that the test for a seizure is one requiring

an analysis whether a reasonable, innocent person in

the position of plaintiffs would feel free to leave. The

INS answers that question, as applied to the facts of

the present case, in the negative, contending that the

four named plaintiffs circulated throughout the facto-

ries and could not reasonably feel detained by the

apearance of INS investigators. The INS discounts the

stationing of investigators at the exits of the factories

by arguing that the plaintiffs complain only of a single

encounter with INS investigators, who did not display

a weapon or uniform, asking only one to three ques-

lla

tions. These facts, the INS argues, constitute no

Fourth Amendment seizure of the plaintiffs.

Appellants argue that the execution of the factory

surveys involved a seizure in the nature of custodial de-

tention requiring articulation of probable cause for the

arrest of the workers, relying upon Dunaway v. New

York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824

(1979). In the alternative, the appellants contend that

the factory surveys at least rose to the level of a seizure

short of a traditional arrest, citing to Brignoni-Ponce,

supra, and Terry v. Ohio, supra. Appellants maintain

that the surveys are conducted with an exercise of

physical force and a show of authority restraining the

liberty of the workers. They point to the procedure

whereby the exits to the factories are sealed off, while

workers are immediately made aware of this action.

They contend that the entry of the large number of

agents into the workplace wearing badges and the com-

mon observation of immediate arrests of some workers

who are seen attempting to flee increases the coercive

impact of the operation. Appellants conclude that the

plaintiffs are all made aware that for the duration of the

survey, they are effectively detained in the custody of

the INS agents performing the factory survey.

Initially, we would have to disagree with the appel-

lants that a custodial detention of the sort observed in

Dunaway v. New York, supra, is presented by the INS

factory survey procedure. Although the appellants and

other workers are surrounded by investigators placed

at exits, and most workers are subjected to at least a

visual perusal by investigators, if not actual ques-

tioning, the detentive nature of the factory survey,

while intrusive, does not rise to the intrusive level of

the traditional arrest found in Dunaway. Dunaway was

escorted to police headquarters in a police vehicle and

placed in an interrogation room although the officers

did not have probable cause for his arrest. The Court

12a

noted that even though Dunaway was not informed that

he was under arrest at the time he was originally

placed into the custody of the officers, the facts sug-

gested that his detention rose to the level of a tradition-

al arrest requiring the general standard of probable

cause that Dunaway had committed the crime under

investigation.

The facts of the present case do not suggest an arrest

because the record indicates that none of the workers

was handcuffed or placed into custody until the investi-

gators had sufficient probable cause to suspect that

those in custody were in this country without proper

documentation. We therefore find Dunaway

inapposite.

However, we must agree that the procedure used by

the INS involves more than mere questioning or casual

conversation as argued by the INS.® Our reading of the

record in this case leads us to the conclusion that the

execution of the factory surveys, while not rising to the

level of an arrest requiring the general rule of probable

cause, sufficiently intrudes upon the privacy and securi-

ty interests of the workers that a seizure of the

workforce occurs during the surveys.

This court’s test to determine whether the factual cir-

cumstances of law enforcement activity rise to the level

of a seizure under the Fourth Amendment is found in

United States v. Anderson, 663 F.2d 934 (9th Cir.

1981):

“(A] person has been ‘seized’ within the meaning of

the Fourth Amendment only if, in view of all of the

® The INS directs our attention to the oft-quoted statement in

Terry v. Ohio: “Obviously, not all personal intercourse between

policemen and citizens involves ‘seizures’ of persons.” 392 U.S.

at 19 n.16, 88 S.Ct. 1868 at 1879, 20 L.Ed.2d 889. The facts of

this case suggest that questioning during the factory surveys

was other than casual, personal intercourse between workers

and INS investigators.

l3a

circumstances surrounding the incident, a reason-

able person would have believed that he was not

free to leave. Examples of circumstances that

might indicate a seizure, even where the person

did not attempt to leave, would be the threatening

presence of several officers, the display of a weap-

on by an officer, some physical touching of the per-

son of the citizen, or the use of language or tone of

voice indicating that compliance with the officer's

request might be compelled.”

Id. at 939, (quoting United States v. Mendenhall, 446

U.S. 544, 554, 100 S.Ct. 1870, at 1877, 64 L.Ed.2d 497

(1980) (opinion of Stewart, J.)). Although this court in

Anderson noted that the above-quoted test was stated

only in the plurality opinion of Justice Stewart in

Mendenhall (joined only by Rehnquist, J.), the court

proceeded to apply the test to the facts of Anderson.

holding that a seizure was present in that case, 663

F.2d at 939-40. We will apply the above-quoted test to

the facts of this case to determine whether the events

taking place during the factory surveys at the Davis

and Mr. Pleat factories rose to the level of a Fourth

Amendment seizure.

Before applying the test, however, we must recog-

nize that a federal district court has concluded that the

“INS’s policy of stationing agents at all exits during

area control operations, in order to secure the premises

and prevent persons whom the agents have probable

cause or reasonable suspicion to believe are aliens from

leaving the premises during the operation ... results in

‘seizures’ for purposes of the fourth amendment.” ///i-

nois Migrant Council v. Pilliod, 531 F.Supp. 1011,

1018 (N.D.Ill. 1982), granting summary judgment and

permanent injunction as to this issue on remand from

Illinois Migrant Council v. Pilliod, 398 F.Supp. 882

(N.D.I11.1975), affd. 540 F.2d 1062 (7th Cir. 1976),

modified as to remedy, 548 F.2d 715 (7th Cir. 1977) (en

l4a

banc).!° The instant case contains evidence of similar

INS policy of stationing agents at the factory exits and

entrances for similar purposes. While speaking in gen-

eral terms about the area control operations performed

in the Los Angeles area, the Assistant District Director

for Investigations at the Los Angeles office of the INS

stated that “fol]fficers are usually stationed at various

entrances and exits in order to guarantee that individu-

als will not escape.” Affidavit of Philip Smith, at 3, at-

tached as Exhibit B to Defendant's Memorandum in

Support of Defendants’ Motion to Dismiss, C.R. 14.

In Pilliod, the district court concluded that the “rec-

ord reveals that the agents do in fact surround and de-

tain all persons on the premises during control opera-

tions.” 531 F.Supp. at 1018. That court also noted:

“The entire purpose of the policy of ‘securing the

premises’ is to ensure that the agents ‘control’ the

aliens during the course of the ‘control operation.’

The agents stationed at the exits are specifically in-

structed to prevent from leaving those individuals

they suspect are aliens. The record reveals that the

agents do in fact surround and detain all persons on

the premises during control operations.”

10 The district court also denied both parties’ motions for

summary judgment and sent to trial the issue of whether the

INS policy of stopping and questioning during street encounters

amounts to a seizure. The court granted the INS’ motion for

summary judgment on the issue of whether the INS should be

enjoined from the use of “dragnet” search warrants since the

INS had informed the court that the agency had abandoned its

policy of obtaining such warrants. Finally, the district court re-

fused to modify the preliminary injunction at the request of the

INS in order to allow the INS to use civil administrative war-

rants based upon the D.C. Circuit's ruling in Blackie’s House of

Beef v. Castillo, 659 F.2d 1211 (D.C.Cir, 1981), cert. denied,

a ae . 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982), stating

that “{wJarrants to search premises simply do not authorize the

seizure of persons found on the premises.” Pilliod, 531 F.Supp.

at 1020. See also, id., at n.19.

l5a

Id. In response to INS arguments that the workers

subjected to the area control operations voluntar’ly co-

operated with the INS questioning and that the work-

ers were never made aware of any limitation upon their

movement by the presence of the agents stationed at

the exits, the court in Pi//iod remarked:

“Indeed, the entire notion of preventing people

from leaving a given area, and ‘securing’ that area,

requires that the agents rely on their authority, if

not actual threats of force, to restrict freedom of

movement and the ‘freedom to walk away.’

“(T]he entire notion of ‘securing the premises’ nec-

essarily implies that those on the premises are

made aware of the presence of INS agents.

“Indeed when agents are stationed at points of

egress, it is only reasonable to infer that they are

there in order to restrict egress. ... This limitation

on the freedom to walk away means that a seizure

has occurred for purposes of the fourth

amendment.”

531 F.Supp. at 1019 (citations omitted).

We think the reasoning of the Pilliod court is persua-

sive.!! The facts suggesting a seizure of the workforce

in this case mirror the facts involved in the factory sur-

11 The stationing of INS agents at factory exits was also pres-

ent in the search of the H & H factory in Babula v. INS, 665

F.2d 293, 294 (3d Cir. 1981). However, the Third Circuit did not

reach the question of whether the agents’ presence at the exits

in that case rose to a seizure implicating the Fourth Amend-

ment, quite possibly since the court in that case had already de-

termined in Lee v. INS, 590 F.2d 497 (3d Cir. 1979), that any

questioning of workers pursusat to 8 U.S.C. § 1357(a)(1) is

“limited by the restrictions of the fourth amendment.” 665 F.2d

at 295. The court in Babula held that the questioning of all of

the factory workers at the H & H facility was justified by the

“suspicions on the milieu in which the workers were found.” 665

F.2d at 296.

l6a

veys that were the subject of the injunction in Pilliod.

From the record in this case, we additionally observe

that it appears that the stationing of the agents at exits

and entrances is an integral feature of the successfully

executed factory survey. The surrounding and securing

of exits, the obvious function of which is to produce a

captive workforce, in combination with the element of

surprise, directly leads to many of the desired appre-

hensions. The total number of apprehensions would

doubtless be reduced if the INS did not surround the

facility surveyed in order to apprehend those at-

tempting to flee. This flight of workers at a factory sur-

vey is a common occurrence as observed by INS inves-

tigators, as well as the appellants. We find

unpersuasive the INS argument here that detention

does not result from the execution of factory surveys

where the use of detentive techniques significantly con-

tributes to the apprehensions sought.

Nevertheless, the INS relies upon United States v.

Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d

497 (1980), for the proposition that the detention, if

any, that existed during the surveys did not rise to the

level of a seizure contemplated by the Fourth Amend-

ment. In Mendenhall, Justice Stewart, joined only by

Justice Rehnquist, held that the stop and questioning

by Drug Enforcement Agency (DEA) agents of Men-

denhall in the public concourse of the Detroit Metropoli-

tan Airport did not amount to a seizure of Mendenhall’s

person, implicating the Fourth Amendment. We fail to

find Mendenhall dispositive of the seizure issue in this

case,

First, as admitted by the INS in its brief, the conclu-

sion that no seizure occurred in Mendenhall was shared

only by two justices. Three other justices (Powell,

Chief Justice Burger, and Blackmun) did not reach the

seizure issue since it had not been raised in the courts

below, but concurred in the result finding that the DEA

l7a

agents had articulable and reasonable grounds for

believing that Mendenhall was engaged in criminal ac-

tivity. Although this court has adopted the test for sei-

zure as enunciated in the Stewart opinion in Menden-

hall, that test had never been adopted by a majority of

the Supreme Court, nor has a majority of the latter

court decided whether stopping and questioning of per-

sons matching “drug courier profiles” in airport con-

courses amounts to a seizure protected by Fourth

Amendment standards. See also Reid v. Georgia, 448

U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980).

Second, even if the Court had decided that the mini-

mal intrusions involved in Mendenhall and Reid v.

Georgia did not constitute seizures, we would be com-

pelled to view the detention and questioning of the

workforces in the present case as far more intrusive. In

Mendenhall, Justice Stewart concluded that Menden-

hall “was not seized simply by reason of the fact that

the agents approached her, asked her if she would show

them her ticket and identification, and posed to her a

few questions.” 446 U.S. at 555, 100 S.Ct. at 1878. The

Court concluded:

“(Nothing in the record suggests that the respon-

dent had any objective reason to believe that she

was not free to end the conversation in the con-

course and proceed on her way, and for that reason

we conclude that the agents’ initial approach to her

Was not a seizure.”

446 U.S. at 555, 100 S.Ct. at 1878. When comparing

Mendenhall to this case, we note that, in addition to

being questioned as to their citizenship status, the

workers at the factory in the present case were sub-

jected to a procedure that included the intrusive as-

pects noted throughout this opinion; i.e., the threaten-

ing presence of a number of INS investigators, some

stationed at exits, others carrying out the survey by

proceeding methodically down the rows of workers.

18a

The detentive environment created in the surveyed fac-

tories in this case is quite different from the casual

stopping and questioning involved in Mendenhall, Reid

v. Georgia, and our recent decision in United States v.

Beale, 674 F.2d 1327, 1329-30 op. at 1671, 1673-74 (9th

Cir. 1982).

Nor do we find Cuevas-Ortega v. INS, 588 F.2d 1274

(9th Cir. 1979), and Cordon de Ruano v. INS, 554 F.2d

944 (9th Cir. 1977), helpful to the INS’ position that no

seizure occurred. Those two cases involved no Fourth

Amendment violation when illegal aliens were voluntar-

ily questioned in their homes. As is the case with Men-

devhall and Reid v. Georgia, the level of detention and

show of authority involved in Cuevas-Ortega and Cor-

don de Ruano simply do not match that involved in the

present Case,

The INS also cites to Yam Sang Kwai v. INS, 411

F.2d 683 (D.C.Cir.) cert. denied, 396 U.S. 877, 90 S.Ct.

148, 24 L.Ed.2d 135 (1969), for the proposition that sei-

zures must be personal and not general, the implication

being that the stationing of agents at the exits in the

present case could only rise to a general detention or

seizure not cognizable as a Fourth Amendment seizure

of each worker. We disagree.

Yam Sang Kwai does not advance the INS’ position.

Yam Sang Kwai involved a petitioner’s argument that

he was arrested the moment agents surrounded the

outside of the restaurant where he was employed. Yam

Sang Kwai never saw any of these agents until he was

personally confronted. The D.C. Cireuit rejected such

an ex parte arrest notion, observing that a seizure must

contain some element by which the seized person is

made aware that personal liberty has been restrained.

411 F.2d at 686. The petitioner in Yam Sang Kwai was

not aware of the agents’ actions outside the restaurant

and was arrested only after being personally confronted

by an investigator who subsequently discovered proba-

19a

ble cause for Yam Sang Kwai's arrest. In the present

case, by contrast, the appellants noticed the presence of

the INS at the factories immediately as the survey be-

gan. The appellants indicated that they were aware

that the agents stationed at the exits physically pre-

vented many workers from leaving. In addition, the

number of INS investigators, wearing badges and car-

rying handcuffs, gave the workers the impression that

they were tacitly under the detentive powers of the

INS for the duration of the survey. Whatever lack of

awareness Yam Sang Kwai had is not present on the

record before us. Viewing the record with all inferences

drawn in favor of the appellants, as is our obligation un-

der our standard of review, we must conclude that the

workers at the plants surveyed in this case were aware

immediately of the detentive nature of the survey prior

to any personal confrontation or interrogation.

Directly addressing the test for Fourth Amendment

seizure as stated in Anderson, supra, the record indi-

cates that regardless of the fact that some of the four

named appellants had varying degrees of freedom to

circulate through or exit the factories, the number of

INS investigators employed during the surveys and the

method of survey execution represented a threatening

presence of INS agents to the reasonable worker. The

investigators’ authority was announced verbally and

the display of INS badges worn by the investigators

served as a continual reminder of that authority.

Agents stationed at exits indicated to the entire work-

force that departures were not to be contemplated.

Some agents carried handcuffs and used them to detain

those apparently suspected of being in this country ille-

gally. The operation unfolded with surprise and re-

sulted in sustained disruption of the working environ-

ment. The element of surprise was used to prevent

undetected departures, and the methodical execution of

the operation with a line of agents proceeding down the

20a

rows of workers could reasonably be viewed as a

threatening presence. Under these circumstances, we

must conclude that even before individual questioning

began, a reasonable worker “would have believed that

he was not free to leave.” Anderson, supra, 663 F.2d

at 939. We therefore hold that the manner in which the

factory surveys were conducted in this case constituted

a seizure of the workforce implicating the Fourth

Amendment.

2. The Fourth Amendment Prohibits Detentive

Questioning of a Workforce Unless INS Investiga-

tors Can Articulate Objective Facts and Rational

Inferences From Those Facts That Warrant a

Reasonable Suspicion That Each Questioned Per-

son is an Alien Illegally in this Country.

Having determined that a seizure of the workforce

occurs during the factory surveys, our next task is to

determine the constitutional standard applicable to the

INS conduct.

The INS argues that even if a seizure implicating the

Fourth Amendment is found, that the intrusion upon

the privacy and security interests of the appellants was

‘so slight as to constitute no Fourth Amendment viola-

tion, relying upon United States v. Martinez-Fuerte,

428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). !*

12 The INS position, in the event we find, as we do, that

Martinez-Fuerte is inapplicable, apparently is a concession that

the Fourth Amendment requires agents to articulate a reason-

able suspicion of illegal alienage for detentive questioning. The

INS provided the district court with excerpts from the INS

Handbook “M-69” entitled “The Law of Search and Seizure for

the Immigration Officer,” published by the United States De-

partment of Justice, Immigration and Naturalization Service.

The Handbook states:

“To stop and question a person encountered in establish-

ments such as restaurants, factories, or hospitals, or be-

yond 25 miles from any external boundary of the United

2la

The appellants, however, maintain that Dunaway,

supra, requires the INS to question only those it may

have probable cause to arrest during the factory sur-

veys and, in the alternative, for the application of a

standard comparable to that applied to automobile

stops in Brignoni-Ponce. The appellants argue that an

element of illegality and an element of individualized

suspicion are required for sufficient protection of the

Fourth Amendment rights of the workers. We agree

with the appellants.

In other factual contexts, the Supreme Court has

held that for an investigatory seizure or brief detention

to be justified, law enforcement officials must be able to

point to articulable and objective facts that the particu-

lar person being stopped or detained is suspected of

criminal activity. United States v. Cortez, 449 U.S. at

417, 101 S.Ct. at 695, and cases cited therein. The

above standard is an application of the “ultimate

States, regarding his right to enter or remain in the

United States, an officer must have a reasonable suspicion

based on specific articulable facts and rational inferences

drawn from those facts that the person is an alien. How-

ever, to detain such a person, the officer must have a rea-

sonable suspicion that he is an alien illegally in the

United States.”

Memorandum in Support of Defendants’ Motion for Summary

Judgment, Exhibit H, at 64, C.R. 112 (Footnotes omitted, em-

phasis added). “Detention not amounting to arrest” is defined as

“Temporary forcible restraint, usually for the purpose of con-

ducting further investigation.” /d. at 61. A reasonable suspicion

that a person is an alien illegally in this country:

“may be based on such factors as the officer’s knowledge of

a high concentration of illegal aliens in the area or of recent

illegal border crossings, a specific tip from a reliable in-

formant, the subject’s excessive-nervousness or studied

nonchalance upon being in the presence of or questioned by

an immigration officer, or the subject's admissions.”

Id. at 60-61.

Whether the suggested factors sufficiently meet the con-

stitutional standard is another question which we take up

in section IV.3 of this opinion.

22a

standard of reasonableness embodied in the Fourth

Amendment,” Michigan v. Summers, 452 U.S. at

699-700, 101 S.Ct. at 2592-93, and, with the exception

of United States v. Martinez-Fuerte, requires law en-

forcement officials to have a reasonable, individualized

suspicion that the particular person being detained is

engaged in wrongdoing. L’nited States v. Cortez.

This appeal presents two difficult issues regarding

the constitutional standard applicable to INS citizen-

ship status questioning during factory surveys. The

first issue is created by an open question noted by the

Supreme Court; i.e., whether citizenship status ques-

tioning is constitutionally valid when based upon a sus-

picion of alienage alone. The second issue is a question

whether less than an individualized suspicion is suffi-

cient for questioning workers present in a factory

known to employ illegal aliens. We decide the first

question by holding that a suspicion of alienage alone is

insufficient. We answer the second by noting that case

law in other contexts requires an individualized suspi-

cion to justify investigatory seizures and detentions and

should also be required in the context of the INS facto-

ry survey.

a. The Fourth Amendment Requires a Reasonable

Suspicion That Those Detained and Questioned are

in this Country Illegally.

In United States v. Brignoni-Ponce, 422 U.S. 873, 95

S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Supreme Court

announced the Fourth Amendment standard applicable

to non-border vehicular stops:

“Except at the border and its functional equiva-

lents, officers on roving patrol may stop vehicles

only if they are aware of specific articulable facts,

together with rational inferences from those facts,

that reasonably warrant suspicion that the vehicles

contain aliens who may be illegally in the

”

country

23a

422 U.S. at 884, 95 S.Ct. at 2582 (emphasis added).

As for non-vehicular stops and questioning, the Court

noted:

“(W]e reserve the question whether Border Patrol

officers also may stop persons reasonably believed

to be aliens when there is no reason to believe they

are illegally in the country. See Cheung Tin Wong

v. INS, 152 U.S.App.D.C. 66, 468 F.2d 1123

(1972); Au Yi Lau v. INS, 144 U.S.App.D.C. 147,

445 F.2d 217, cert. denied, 404 U.S. 864, 92 S.Ct.

64, 30 L.Ed.2d 108 (1971). The facts of this case do

not require a decision on the point.”

422 U.S. at 884 n.9, 95 S.Ct. at 2582 n.9. The stop-

ping’® and questioning of persons as opposed to the

stopping of vehicles is, of course, the question directly

presented in the instant case.

Since Brignoni-Ponce, various courts of appeal have

struggled with the answer to the question reserved in

footnote 9 quoted above. The D.C. Circuit cases cited

by the Court in footnote 9 of Brignoni-Ponce have es-

tablished the benchmark standards from which the

rules in other circuits seem to have evolved. The D.C.

Circuit has consistently adhered to the rule that an INS

agent, pursuant to statutory authority under section

287(a)(1) of the Immigration and Nationality Act (Act),

8 U.S.C. § 1357(a)(1),!4 may question a person as to his

right to be or remain in the United States without forci-

ble detention as long as the agent has a reasonable be-

lief that the questioned person is an alien; Yam Sang

13 We will assume that the statement referring to “stopping”

applies to the facts indicating a detention in this case.

14 Section 287(a)(1) of the Act, 8 U.S.C. § 1357(a)(1) provides:

“Any officer or employee of the Service anthorized under

regulations prescribed by the Attorney General shal! have

the 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; ...”

24a

Kwai v. INS, supra, and Blackie’s House of Beef v.

Castillo, 659 F.2d 1211, 1226 (D.C.Cir.1981), cert.

denied, ___ U.S. , 102 S.Ct. 1432, 71 L.Ed.2d 651

(1982); but agents may forcibly detain a person

temporarily for questioning ‘under circumstances

creating a reasonable suspicion, not arising to the level

of probable cause to arrest, that the individual so de-

tained is illegally in this country.” Au Yi Lau v. INS,

445 F.2d 217, 223 (D.C.Cir.1971), cert. denied, 404

U.S. 864, 92 S.Ct. 64, 30 L.Ed.2d 108 (1971). See also,

Ojeda-Vinales v. INS, 523 F.2d 286 (2d Cir. 1975). This

dua] standard thus imposes both a constitutional limita-

tion and a statutory limitation upon the conduct of INS

agents. If the nature of the agent’s conduct employed

during the questioning of a suspected alien amounts to

a seizure implicating the Fourth Amendment, an INS

agent must articulate a reasonable suspicion that the

questioned person is an alien illegally in this country. If

no seizure is employed, the agent need not articulate

reasons to suspect the illegal presence of the person

questioned, only a reasonable belief in the questioned

person’s alienage, the authority granted the INS agent

by section 1357(a)(1). Until recently, both standards

have been interpreted to require a particularized or in-

dividualized suspicion or belief regarding each ques-

tioned person in order to justify the intrusion resulting

from the questioning.'®

The Au Yi Lau and Yam Sang Kwai shifting

standards based upon the degree of detention involved

during INS citizenship status questioning appear to be

the standards presently employed in the Seventh Cir-

cuit, Illinois Migrant Council v. Pilliod, 548 F.2d 715

15 See Babula v. INS, 665 F.2d 293, 295 (3d Cir. 1981) (less

than an individualized suspicion, but one based upon the “suspi-

cions on the milieu in which the [questioned] workers were

found,” is sufficient to justify questioning under 8 U.S.C.

§ 1357(a)(1)).

(7th Cir. 1977) (en banc). However, such shifting

standards, when applied to street encounters, were re-

jected forcefully in Marquez v. Kiley, 436 F.Supp. 100,

113-114 (S.D.N.Y., 1977).1® The dual standard was also

modified in Lee v. INS, 590 F.2d 497 (3d Cir. 1979),

where the Third Circuit criticized the fine line drawing

required to distinguish detentive from nondetentive

questioning, and adopted a standard which combines

the detention inquiry with the justification inquiry. The

standard currently employed in the Third Circuit asks

whether the INS stopping and questioning was reason-

ably related in scope to the justification for its initia-

16 In Marquez, the district court observed:

“(Wjhatever theoretical appeal there may be to a rule

which permits casual, voluntary questions upon suspicion

of alienage alone, but requires suspicion of illegality for de-

tention, is in our view substantially undermined by the re-

alities of the matter. It is in the nature of an oxymoron to

speak of ‘casual’ inquiry between a government official,

armed with a badge and a gun and charged with enforcing

the nation’s immigration laws, and a person suspected of

alienage. This is particularly so in the context of area con-

trol operations as described at trial. In such situations a

suspect alien is suddenly confronted by INS officers who

have just driven up in an automobile, left the car and di-

rectly approached, and immediately queried as to his na-

tionality. For a constitutional rule in these matters to de-

pend on the ‘voluntary cooperation’ of the suspect is to

impose a gloss upon real life. When it is further considered

that refusal to cooperate or an attempt to evade such a

‘casual encounter,’ indeed, even the appearance of nerv-

ousness, may well be held to provide reasonable grounds to

suspect unlawful presence and therefore to authorize forci-

ble detention, see, e.g., Au Yi Lau v. INS, supra, 445

F.2d at 220; ef. United States v. Oates, 560 F.2d at 45 (2d

Cir. 1977) (and cases cited there), the rule urged upon us

by the government appears unworkable. Although applica-

tion of the Fourth Amendment requires courts at times to

develop artificial constructs which can never precisely con-

form to the fluid and infinitely various nature of contacts

between government officers and the populace, in

formulating such rules a court should not ignore the reali-

tgs ‘of everyday life.”

26a

tion. Jd. at 502; see also Bahula v. INS, 665 F.2d 293,

295 (3d Cir. 1981) (applying the Lee standard, but al-

lowing less than an individualized suspicion to be suffi-

cient for citizenship status questioning).!”

The Ninth Circuit standard is more in doubt. In Cor-

don de Ruano v. INS, 554 F.2d 944 (9th Cir. 1977), this

court rejected an alien's argumen: that her Guatemalen

passport, voluntarily given to INS agents during non-

detentive questioning of her, should have been sup-

pressed at her deportation hearing. This court noted

that the passport was not illegally seized because the

petitioner, Cordon de Ruano, was not “stopped” or “de-

tained,” and quoted dicta from L’nited States v.,

Brignoni-Ponce, supra, as the established rule that

“the INS may not stop or detain persons to question

them about their citizenship ‘on less than a reasonable

suspicion that they may be aliens.’ ” 554 F.2d at 946,

quoting Brignoni-Ponce, 422 U.S, at 884, 95 S.Ct. at

2582, 45 L.Ed.2d at 618. Conspicuously absent from the

quoted rule is any requirement that the INS agents

suspect that the questioned person is in this country il-

legally. That the quoted rule is dicta is made apparent

by footnote 9 in Brignoni-Ponce, where the Court re-

served the question “whether Border Patrol officers

also may stop persons reasonably believed to be aliens

when there is no reason to believe they are illegally in

the country.” Jd. Since Cordon de Ruano did not re-

quire an elicitation of the suspicion standard for stop-

ping and questioning persons since the court found no

stop or detention, the case should be read only in aid of

determining when a stop and/or detention has occurred

which would invoke the appropriate constitutional

standard.

A year after the decision in Cordon de Ruano, this

court found evidence sufficient for the creation of

17 See discussion of Babula at section 1V.2.b. of this opinion.

27a

“founded suspicion to detain” suspected aliens under

section 1357(a), citing the D.C. Circuit cases of Au Yi

Lau, supra, and Yam Sang Kwai, supra, Cabral-Avila

vu. INS, 589 F.2d 957, 959 (9th Cir, 1978), cert. denied,

440 U.S. 920, 99 S.Ct. 1245, 59 L.Ed.2d 472 (1979). The

court in Cabral-Avila, assuming, without deciding,

that probable cause Was necessary prior to arrest of the

petitioners in that case, held that the “founded suspi-

cion that these persons were ///ega/ aliens ripened into

probable cause,..." J. at 959 (emphasis supplied).

Cabral-Avila can be read consistently with Au Yi Lau

to require a suspicion of ///ega/ alienage before deten-

tion is permitted,

Following Cabral-Avila, this court was again called

upon to decide whether the non-detentive questioning

of an illegal alien at the threshold of her apartment,

where she freely admitted her illegal alienage, was vio-

lative of the Fourth Amendment. Cyuevas-Ortega v,

INS, 588 F.2d 1274 (9th Cir, 1979). As in Cordon de

Ruano, the court found no seizure or detention

implicating the Fourth Amendment. In a footnote, the

Cuevas-Ortega court explained that in a situation in

which a seizure is involved, “a non-border stop or de-

tention to question a suspected illegal alien about his

citizenship requires “reasonable suspicion.” Jd., 588

F.2d at 1277. The latter expression of the standard re-

quired for stopping and questioning can also be con-

strued to require a reasonable suspicion of i//legal

alienage because of the immediate reference to

Brignoni-Ponce in the footnote and because the lan-

guage expressing the standard mentions illegal

alienage.

More recently, this court affirmed a district court or-

der suppressing a document which was the basis for an

indictment under 18 U.S.C. § 1426(b) for use of forged

immigration documents, because the document was

elicited from the defendant under circumstances in

28a

which the INS agents failed to articulate “sufficient in-

dependent grounds to suspect [the defendant] of being

an illegal alien.” United States v. Heredia-Castillo, 616

F.2d 1147-49 (9th Cir. 1980) (Merrill, J., dissenting)

(emphasis supplied), the court concluded that the

agents had sufficient justification for stopping the vehi-

cle under Brignoni-Ponce, but the majority decided

that after the agents had discovered the driver of the

vehicle to possess proper papers, the agents had insuffi-

cient justification for questioning the passenger,

Heredia-Castillo, After discounting most of the govern-

ment’s proffered justifications for questioning Heredia-

Castillo, the court noted that only two factors were

supported by the record: that Heredia-Castillo was

found in an area in which illegal aliens were frequently

found, and that he appeared to be of Mexican ancestry.

Those two observations were insufficient to justify the

questioning of Heredia-Castillo. Discussing the latter

factor, this court noted:

“The government has enumerated several facts

which might cast a certain suspicion on every per-

son in the area who appeared to be of Mexican an-

cestry. Under the record before us, such a general-

ized suspicion is not sufficient for us to overturn

the trial court’s ruling.”

616 F.2d at 1150,

Heredia-Castillo is significant for a number of rea-

sons. First, since the court held that the vehicle was

properly stopped based upon the agents’ reasonable

suspicion that the driver might be an illegal alien

(emphasizing the factor that one of the agents recog-

nized the driver as a man he had previously been ar-

rested for being illegally in the country), the court was

not willing to transfer this justification for the addition-

al detention and questioning of the vehicle’s passenger

when the driver was found to be in the country legally.

For this, the court required sufficient independent

29a

grounds to suspect Heredia-Castillo of being an illegal

alien—an individualized suspicion. Since Heredia-

Castillo was already physically stopped when the INS

agents focused their questions upon him, the court then

applied the standard of founded suspicion to suspect il-

legal alienage to justify continued detention and ques-

tioning. For this, the agents were not allowed to focus

merely upon Heredia-Castillo’s apparent Mexican an-

cestry and the fact that he was present in an area

known to contain illegal aliens—such a generalized sus-

picion is insufficient for further detention and

questioning,

Finally, this court interpreted section 1357(aX1) in

Tejeda-Mata v. INS, 626 F.2d 72} (9th Cir, 1980), in a

Way that suggests that section 1357(a)(1) must be inter-

preted consistently with the Fourth Amendment if a

seizure is involved. The court in Tejeda-Mata recited

the language of section 1357(a)(1) and cites to Ojeda-

Vinales, supra Cheung Tin Wong, supra, and Au Yi

Lau, supra. As discussed above, those cases all require

an agent to articulate a reasonable suspicion of illegal

alienage before detentive questioning can occur. In

Tejeda-Mata, the court refused to suppress the alien's

admission of alienage, noting that the petitioner was

not arrested or threatened with curtailment of his liber-

ty, citing Cordon de Ruano, supra.'®

'* Having concluded that no seizure was involved in Tejeda-

Mata, the court went on to explain the reasonableness under

section 1357(a)(1) of the Immigration Officer's belief as to

Tejeda-Mata’s alienage justifying the int.vrogation that took

place in that case. The courts discussion as to the statutory

standard in Tejeda-Mata could be regarded simply as dicta or it

could be seen as this court's acknowledgment that immigration

officials, in the absence of a constitutional violation, must meet

the statutory standard requiring a reasonable belief in the ques-

tioned person's alienage. Sinc» the facts in this case do not re-

quire a decision regarding the statutory standard, we decline to

clarify the discussion of section 1357(a)(1) in Tejeda-Mata.

30a

Our reading of the case law in this circuit regarding

detentive questioning by the INS as discussed immedi-

ately above requires us to hold that INS investigators

may not seize or detain workers for citizenship status

questioning unless the investigators are able to articu-

late objective facts providing investigators with a rea-

sonable suspicion that each questioned person, so de-

tained, is an alien illegally in this country.

The element of illegality contained in the standard

has been suggested by recent Court pronouncements of

Fourth Amendment standards applicable to brief deten-

tions short of formal arrests. In Michigan v. Summers,

the Court discussed its precedent permitting minimal

intrusions and stated:

“These cases recognize that some seizures admit-

tedly covered by the Fourth Amendment consti-

tute such limited intrusions on the personal securi-

ty of those detained and are justified by such

substantial law enforcement interests that they

may be made on less than probable cause, so long

as police have an articulable basis for suspecting

criminal activity.”

452 U.S. at 699, 101 S.Ct. at 2592 (emphasis added). In

United States v. Cortez, supra, the Court stated that

“the detaining officers must have a particularized and

objective basis for suspecting the particular person

stopped of criminal activity.” 449 U.S. at 417-18, 101

S.Ct. at 694-95.!"

The element of illegality contained in the standard is

also required in order to minimize the effects of en-

19 See also Brown v. Texas:

“(E]ven assuming that (prevention of crime] is served to

some degree by stopping and demanding identification

from an individual without any specific basis for believing

he is involved in criminal activity, the guacantees of the

Fourth Amendment do not allow it.”

Id. 443 U.S. 47, 52, 99 S.Ct. 2687, 2641, 61 L.Ed.2d 357 (1979).

3la

forcement procedures felt by innocent workers. Our fo-

cus is not limited to a discussion of the rights of aliens.

As the Court noted in Brignoni-Ponce:

“Although we may assume for purposes of this case

that the broad congressional power over immigra-

tion, ... authorizes Congress to admit aliens on

condition that they will submit to reasonable ques-

tioning about their right to be and remain in this

country, this power cannot diminish the Fourth

Amendment rights of citizens who may be mistak-

en for aliens.”

422 U.S. at 883-84 (citations omitted). The status of

alienage does not imply that any particular aliens is in

this country illegally. An alien, as either an immigrant

or non-immigrant, may be in this country in total com-

pliance with the immigration laws. Reliance upon sec-

tion 1357(a)(1) therefore is insufficient. Although the

statute is silent as to any requirement of suspicion of il-

legal presence, to assert that section 1357(a)(1) justifies

the detentive questioning of an entire workforce simply

ignores the truism that innocent citizens and aliens le-

gally employed at surveyed factories enjoy the same

right to be free of the indignity of arbitrary govern-

ment intrusions which the Fourth Amendment guaran-

tees all individuals. See, e.g., Delaware v. Prouse, 440

U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d

660 (1979).

We realize that our holding here limits section

1357(a)(1) questioning in the context of factory surveys

of the nature presented by the facts of this case. But

this is not the first time the statute has been so limited.

The Court has held that section 1357(a)(1) cannot justi-

fy a constitutional violation, Brignoni-Ponce, supra;

and we are mindful of the Court’s more general admoni-

tion that “no Act of Congress can authorize a violation

of the Constitution.” Almeida-Sanchez v. United

States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37

L.Ed.2d 596 (1973). In view of the above, and the par-

32a

ticular facts involved in this case, we think that a

standard allowing detentive questioning on a suspicion

of alienage alone would diminish the privacy and securi-

ty interests of both citizens and aliens legally in this

country. Random detentive questioning of all who may

appear to be aliens without objective facts giving rise to

a suspicion of illegal alienage would grant the INS im-

permissible discretion to detain and question at whim.

See Delaware v. Prouse, supra.

b. The Fourth Amendment Requires an Individual-

ized Suspicion of Illegal Alienage of Those Subject

to Detentive Questioning.

As with the illegality requirement of the standard,

detentive questioning, if not based upon an individual-

ized, articulable suspicion, would be impermissibly ran-

dom. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391,

59 L.Ed.2d 660 (1979); Heredia-Castillo, supra.

The INS contends that individualized suspicion is not

required. The INS relies upon United States v.

Martinez-Fuerte, 428 U.S. 548, 96 S.Ct. 3074, 49

L.Ed.2d 1116 (1976), arguing that even if a seizure

were present during the factory surveys, that it was

minimal; and, consequently, the government’s interest

in apprehending illegal aliens outweighs any interest of

the questioned workers to be free from this minimal in-

trusion. In Martinez-Fuerte, the Supreme Court sanc-

tioned the practice of the Border Patrol at permanent

checkpoints to refer some vehicles to a secondary in-

spection area for additional questioning of citizenship

status of the passengers of the vehicle on less than a

particularized or individualized suspicion as to each per-

son subjected to the referral, noting that “the Fourth

Amendment imposes no irreducible requirement of [in-

dividualized] suspicion.” Jd., 428 U.S. at 548, 96 S.Ct.

at 3074. The requirement of individualized suspicion

was not imposed in Martinez-Fuerte because the re-

33a

sulting intrusion of the permanent checkpoint stops on

the interests of the motorists was minimal and out-

weighed by the substantial law enforcement interests

involved. The INS argues that the intrusion, if any, in

the instant case, is less than that permitted in

Martinez-Fuerte, and that the same governmental in-

terest in enforcement of the immigration laws makes it

permissible for the INS to question factory workers on

less than an individualized suspicion.

The appellants, on the other hand, find Martinez-

Fuerte inapplicable. The appellants emphasize the

Court's limited holding in Martinez-Fuerte to perma-

nent checkpoints because motorists at these

checkpoints are not taken by surprise and that the rou-

tine operation of the checkpoints involves little discre-

tionary law enforcement. 428 U.S. at 559, 96 S.Ct. at

3083. The appellants argue that the facts of the instant

case are more like a roving border patrol stop than a

permanent checkpoint, contending that the individual-

ized suspicion standard imposed in Brignoni-Ponce

should apply here. We must agree with appellants.

Although we recognize the weighty law enforcement

interests involved,?° the language in Martinez-Fuerte

is more supportive of the appellants’ position than that

of the INS. In discussing the differences between a per-

manent checkpoint stop and a roving patrol stop in

Martinez-Fuerte, the Court noted that while the objec-

tive intrusion (the stop itself, the questioning and visual

inspection) was similar in both cases, the subjective in-

trusion (concern or fright on the part of lawful travel-

ers) in a roving stop was much greater. The Court not-

ed that when compared with a roving patrol stop, the

permanent checkpoint stop was much less intrusive be-

cause motorists were not taken by surprise and that

20 See, e.g., the discussion of the law enforcement problem in-

volved in Martinez-Fuerte, supra, 428 U.S. at 551-53, 96 S.Ct.

at 3080.

S4a

checkpoint operations “both appear to and actually in-

volve less discretionary enforcement activity.” 428 U.S.

at 559, 96 S.Ct. at 3083. Commenting on the procedure

of selective referral at the checkpoints, the Court

stated:

“Selective referral may involve some annoyance,

but it remains true that the stops should not be

frightening or offensive because of their public and

relatively routine nature.”

428 U.S. at 560, 96 S.Ct. at 3084. In comparison to that

statement, the record in the instant case contains evi-

dence that the factory surveys were quite frightening

to the workers, leaving many in a state of anxiety over

perceived recurrence of the surveys and subsequent ar-

rests. Instead of the three or four minute routine de-

tention of lawful motorists at the permanent checkpoint

in Martinez-Fuerte, the record in this case indicates a

relatively greater degree of disruption from the sur-

prise entry of the workplace for the typical hour and

one-half of questioning and for some time thereafter.

Moreover, the actual implementation of the factory sur-

veys in the instant case suggests more random enforce-

ment, giving agents greater discretion than is involved

in the checkpoint operation. By securing exits and

systematically proceeding in a line down rows of work-

ers, the INS factory survey compares more to an

unannounced automobile checkpoint located and oper-

ated by surprise wherein all motorists are detained for

an hour and one-half, while the agents systematically

scrutinize all detained motorists and passengers, choos-

ing those the agents wish to question. The factors in-

volved in a permanent checkpoint on highways that bal-

ance against impermissible discretionary law

enforcement, i.e., no surprise, short duration, minimal

disruption, are simply not present in the instant case.

The factory survey in which an entire workforce is de-

tained and subjected to INS scrutiny, a survey requir-

35a

ing the element of surprise in order to be successful, is

an operation presenting serious dangers to the Fourth

Amendment rights of citizens and legal alien workers.

Such a survey cannot be considered to be as minimally

intrusive as a permanent checkpoint stop. We therefore

reject the notion that Vartinez-Fuerte allows factory

survey questioning of individual workers on less than a

particularized or individualized suspicion of each work-

er questioned.

By rejecting the Wartinez-Fuerte analogy, we neces-

sarily reject Babula v. INS, 665 F.2d 293 (3d Cir.

1981), to the extent that case stands for the proposition

that factory survey questioning is constitutionally per-

missible on less than a particularized suspicion. In

Babula, the INS had received information from a relia-

ble source that H & H Industries at Pennsauken, New

Jersey, had employed illegal aliens. The information

listed seven named Polish aliens and the source in-

formed the INS that the company had employed addi-

tional unnamed illegal aliens. INS record: suggested

that six of the seven named persons were not subject to

deportation. After deciding that the H & H Factory

would be a feasible location for an “area control opera-

tion,” the INS agents carried it out by using six agents,

three posted at the exits of the factory “to prevent any-

one from leaving the factory,” and three entered the

factory. Upon entry, the agents spoke with the general

manager and the night foreman, inquiring about the

seventh named, suspected illegal alien, and were in-

formed that this person no longer worked at the fac-

tory. Thus, with no information as to any particular

named persons who were suspected of being in the

country illegally, the agents began questioning workers

in the factory as to their citizenship status and whether

they had the proper papers. Ten workers were ar-

rested. All petitioners in the Babula case were found

deportable by an immigration judge, the deportation

36a

orders subsequently being affirmed by the Board of Im-

migration Appeals.

One of the issues raised by the petitioners in Babula

was whether the agents had violated their Fourth

Amendment rights by questioning them at the factory

pursuant to 8 U.S.C. § 1357(a)(1). The Third Circuit

had held previously that section 1357 was limited by the

restrictions of the Fourth Amendment. Lee v. INS, 590

F.2d 497, 499-500 (3d Cir. 1979). Reaching the merits of

the Fourth Amendment contention, the Third Circuit in

Babula noted:

“(IJn this case the agents had observed nothing

specifically about each person questioned, but rath-

er based their suspicions on the milieu in which the

workers were found. We hold that the tip from a

reliable source about the employment of illegal Pol-

ish aliens, combined with the indicia that H & H

did employ Polish aliens, are sufficient to justify

the minimally intrusive questioning that the agents

conducted.”

665 F.2d at 296. The court proceeded to justify its “mi-

lieu” standard by indicting that “individualized suspi-

cion is not required ... when ‘we deal neither with

searches nor with the sanctity of private dwellings.’ ”

Id. The court also emphasized that the INS agents

were not allowed unfettered discretion because “all the

employees rather than a selection of them” were ques-

tioned at H & H. Jd. at 296-97.

We have serious problems with the Babula reasoning

and find it inapposite to the facts of this case. The ques-

tioning of workers at the H & H facility on less than an

individualized suspicion that each questioned worker

was an illegal alien appears to be a departure from the

suspicion required in the Third Circuit’s own case of

Lee v. INS, supra. Even though Lee rejected the dual,

constitutional/statutory standard based upon the de-

gree of detention involved that is the standard sug-

gested in Pilliod, Au Yi Lau and Yam Sang Kwai, the

37a

facts of Lee required the Third Circuit to determine

that the INS agent had sufficient articulable facts con-

cerning Lee individually that the scope of the detention

in that case was reasonably related to the justification

for its initiation. See dissenting opinion of Adams, J.;

665 F.2d at 300. Babula now extends the rule to situa-

tions in which the INS can prove the reasonableness of

the questioning based upon information that the factory

has employed illegal aliens in the past. For this holding,

the Third Circuit notes that although “ ‘some quantum

of individualized suspicion is usually a prerequisite to a

constitutional search and seizure, [there is] no irreduci-

ble requirement of such suspicion ....’” Babula, 665

F.2d at 296 (quoting United States v. Martinez-Fuerte,

428 U.S. 548, 560-561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d

1116 (1976)).

In addition, the Third Circuit noted that the INS

questioned all of the workers at H & H, which the court

apparently felt justified the questioning since the ques-

tioning of all workers does not involve the INS in the

kind of discretionary law enforcement activity that was

struck down in Delaware v. Prouse, supra.?* It is

therefore unclear what the Third Circuit would do were

it presented with a case, such as the one presented to

us here, where less than all workers were questioned.**

Finally, the Babula court attempted to harmonize its

holdings with that of the Seventh Circuit in I/linois Mi-

21 “To insist neither upon an appropriate factual basis for sus-

picion directed at a particular automobile nor upon some other

substantial and objective standard or rule to govern the exer-

cise of discretion ‘would invite intrusions upon constitutionally

guaranteed rights based on nothing more substantial than inar-

ticulate hunches ....'” Delaware v. Prouse, 440 U.S. at 661,

99 S.Ct. at 1400 (quoting Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct.

1868, 1880, 20 L.Ed.2d 889 (1968)).

22 As for theDavis surveys, the INS admits that it was impos-

sible for them to question every worker out of the workforce of

from 200-300 workers. Affidavit of Philip Smith, C.R. 14, at 3.

38a

grant Council v. Pilliod, supra. The Bahula court stat-

ed that the holding in Babula did not imply any disa-

greement with Pilliod because Pilliod involved late

night, warrantless searches of living quarters. 665 F.2d

at 297. This attempted harmonization is difficult to com-

prehend. First, the preliminary injunction in Pilliod

was directed at factory area control operations, as well

as searches of dwellings, dormitories and street encoun-

ters. See Illinois Migrant Cou neil v. Pilliod, 398

F.Supp. 882, 886-891 (N.D.II].1975). Second, the factu-

al discussion in Babula does not express the degree of

detention, if any, that the workers at H & H suffered

while being questioned during the area control opera-

tion there. All we know is that “three agents remained

at the exits to the factory to prevent anyone from leav-

ing the factory.” 665 F.2d at 294. If Babula and Pilliod

can be harmonized, it could only be from inferring that

the Babula court felt that the degree of detention of

the workers at H & H was of the non-detentive nature.

This still does not entirely agree with the relief granted

in Pilliod, for even if non-detentive questioning were

involved at H & H, our reading of Pilliod would still

require the INS agents to have a reasonable belief that

the particular persons questioned without detention

were aliens. On that note, the Third Circuit merely in-

dicates that the agents “had observed nothing specifi-

cally about each person questioned, but rather based

their suspicions on the milieu in which the workers

were found.” 665 F.2d at 296. This “milieu” standard is

simply inconsistent with the standard adopted by the

Seventh Circuit in Pilliod, and, in our minds, inconsist-

ent with that required by the Fourth Amendment.

Thus, Babula provides this court with little assist-

ance in deciding the issues before us. The Babula court

relied heavily upon Martinez-Fuerte, a case we find in-

applicable to the factory surveys that are the basis of

the litigation presented in this case. Also, the Babula

39a

court noted that the methodical questioning of all of the

workers at the H & H facility minimized the random

discretion criticized in Delaware v. Prouse, supra. The

INS admits that each worker was not questioned at the

Davis survey in this case; therefore, any justification, if

such exists, from the fact that all workers were ques-

tioned in Babula, does not transfer to this case.

In sum, the intrusive nature of the factory surveys in

the present case is comparable to that found in a roving

patrol stop discussed in Brignoni-Ponce. Martinez-

Fuerte, and Babula, therefore, cannot be accepted as

models for an announcement that the factory surveys

are not violative of the Fourth Amendment. The deten-

tion and questioning of the workers in the surveyed fac-

tories must be based upon a reasonable suspicion that

each worker subjected to detentive questioning is an al-

i2n illegally in this country, and the Fourth Amend-

ment rights of all workers depend upon a standard re-

quiring the INS to articulate an individualized suspicion

that a questioned person is in this country illegally.

3. The Record fails to Substantiate the INS Claim

That the Fourth Amendment Standard Was Met

During the Factory Surveys.

Finally, we must apply the constitutional standard to

the facts of this case. The INS argues that there was a

sufficient basis for the questioning that occurred at the

two factories. Relying on United States v. Cortez, 449

U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), where

the Court defined reasonable suspicion to include an as-

sessment of the totality of the circumstances surround-

ing a seizure in light of a law enforcement officer’s ex-

perience, the INS points to a number of circumstances

attending the factory surveys that justify the type of

questioning that occurred. The INS directs our atten-

tion to the fact that the two factories surveyed were

garment factories, an industry the INS alleges is

40a

known to employ large numbers of illegal aliens; that

prior to the Davis surveys, INS investigators had ar-

rested several illegal alien employees outside the facto-

ry premises who stated that other illegal aliens were

employed in the factory; that upon entry of the INS in-

vestigators into the plants, the employees shouted “La

Migra” and a large number of employees began running

around the factory or hiding; and that by the time of

the second Davis survey, the INS investigators knew

that they had previously apprehended 78 illegal aliens

from the first survey. In addition, the INS once again

asserts that it could justifiably question appellants

Labonte and Miramontes, resident aliens, under 8

U.S.C. § 1357(a)(1).

None of the above factors alone, or in combination,

can justify the detentive questioning in this case be-

cause we have held that the factory surveys conducted

at the Davis and Mr. Pleat facilities involved a seizure

or detention of the entire workforce by the nature in

which the surveys were carried out. Since the entire

workforce is effectively detained in a manner

implicating the Fourth Amendment standard discussed

above, the circumstances the INS cites to justify the

questioning simply do not aid our analysis of whether

the INS had a reasonable, individualized suspicion of il-

legal alienage of each detained worker prior to the exe-

cution of the surveys. Moreover, we think the

warrantless detention of the workforces in this case

cannot possibly be justified under the standard we find

applicable today.

23 Assuming a factory survey could be, or would be, per-

formed in a non-detentive atmosphere, it is not appropriate in

this case for us to provide the INS with a list of justifying fac-

tors for such a hypothetical survey. The constitutionality of

questioning during such a non-detentive factory survey would

be judged upon the specific facts giving rise to each instance of

interrogation.

4la

We feel the Fourth Amendment rights of workers

would be impermissibly diminished were we to sanction

the unconstrained use of warrantless, detentive ques-

tioning of the sort depicted by this record—questioning

which is frightening to the workers, intrusive, and of-

ten “based on nothing more than inarticulate hunches.”

Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at 1880. The

suggestions in the INS “M-69" handbook that a reason-

able suspicion of illegal alienage may be based on an of-

ticer’s knowledge of a high concentration of illegal al-

iens in the area surveyed, without more, is insufficient.

Heredia-Castillo, supra. The apparent Hispanic ances-

try of one sought for questioning, while possibly rele-

vant, see United States v. Brignoni-Ponce, 422 U.S. at

886-87, 95 S.Ct. at 2582-83, is insufficient, even if no-

ticed in conjunction with the knowledge of the presence

of a person in an area known to contain a high concen-

tration of illegal aliens. Heredia-Castillo, supra. That a

factory happens to be a garment factory, without more,

is insufficient grounds for the effective detention of the

entire workforce in such a factory. Whether “excessive

nervousness” or “studied nonchalance,” of a suspected

illegal alien observed prior to detentive questioning,

would be sufficient to meet the standard announced in

this opinion is basically a factual question to be resolved

on a case-by-case basis. The INS makes no claim here

that such observations were made of the entire

workforces at the surveyed factories.

Certainly, United States v. Cortez, supra, instructs

courts to grant some deference to the field officer’s ex-

perience and his or her view of the totality of the cir-

cumstances attending any particular detention or ap-

prehension. However, Cortez cannot be read to justify

the detention of a workforce and questioning of workers

on subjective or generalized suspicions that some

unidentified workers in a factory may be found to be in

42a

this country without proper documentation. The Court

in Cortez held:

“Based upon [the] whole picture, the detaining offi-

cers must have a particularized and objective basis

for suspecting the particular person stopped of

criminal activity.”

449 U.S. at 417-18, 101 S.Ct. at 694-95 (emphasis

added). The suspicious facts offered by the INS which

provide a general focus upon the factories surveyed,

while possibly true, do not provide sufficient justifica-

tion for the execution of the surveys in a manner which

effectively detains an entire workforce. The factors

listed by the INS fail to provide a particularized and ob-

jective basis prior to the execution of the surveys for

suspecting any of the questioned workers of being al-

iens illegally in this country.

We recognize that our decision today may hinder INS

efforts to seek out illegal aliens in workplaces.

Acknowledging that fact, we think it also appropriate

to acknowledge that this case effectively illustrates the

irony noted by Justice White when he commented some

years ago on the INS’ struggle to contain the heavy

flow of illegal aliens into this country:

“The entire system, however, has been notably

unsuccessful in deterring or stemming this heavy

flow; and its costs, including added burdens on the

courts, have been substantial. Perhaps the Judici-

ary should not strain to accommodate the require-

ments of the Fourth Amendment to the needs of a

system which at best can demonstrate only mini-

mal effectiveness as long as it is lawful for busi-

ness firms and others to employ aliens who are il-

legally in the country.”

Concurring opinion of Justice White, joined by Justice

Blackmun in United States v. Brignoni-Ponce, supra,

422 U.S. at 914-15, 95 S.Ct. at 2597, and in United

States v. Ortiz, 422 U.S. 891, 914-15, 95 S.Ct. 2585,

2597, 45 L.Ed.2d 623 (1975) (emphasis added). To find

43a

the factory survey procedures evidenced by the record

before us constitutional would be, as suggested by Jus-

tice White, straining the Fourth Amendment require-

ments in order to accommodate an intrusive and objec-

tionable method of immigration law enforcement. The

Constitution, as we interpret it, cannot be so accommo-

dating. We therefore reverse the district court’s sum-

mary judgment in favor of the INS on the issue of

worker questioning, 24

V. CONCLUSION

The summary judgment granted in favor of the INS

on the issue of worker questioning is reversed. This

case is remanded to the district court for further pro-

ceedings not inconsistent with this opinion,

REVERSED and REMANDED.

*4 The district court did not abuse its discretion in denying

class certification. See James v. Ball, 613 F.2d 180, 186 (9th

Cir. 1979), and cases cited therein.

Our holdings today also make it unnecessary to reach the is-

sue of whether the district court correctly dismissed the

ILGWU. The effects of our holdings will nevertheless inure to

the benefit of the ILGWU.

44a

APPENDIX B

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION,

AFL-CIO, ET AL., PLAINTIFFS-APPELLANTS,

JOSEPH SURECK, ET AL,, DEFENDANTS-APPELLEES.

INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION,

AFL-CIO, ET AL., PLAINTIFFS-APPELLANTS,

JOSEPH SURECK, ET AL,, DEFENDANTS-APPELLEES

Nos. 80-5054, 80-5158, 80-5035, 80-5152

Filed Sep 30, 1982

ORDER

Before: ANDERSON and Norris, Circuit Judges, and

MUECKE, * District Judge.

The panel as constituted in the above case has voted

to deny the petition for rehearing and to reject the sug-

gestion for a rehearing en banc,

The full court has been advised of the suggestion for

en bane rehearing, and no judge of the court has re-

quested a vote on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sugges-

tion for a rehearing en banc is rejected.

“+The Honorable C.A, Muecke, Chief Judge, United States District

Court, District of Arizona, sitting by designation,

45a

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

I. L. G. W. U., ET AL., PLAINTIFFS,

JOSEPH SURECK, ET AL., DEFENDANTS.

No, CV78-0740-LEW(Px),

No, CV78-3246-LEW(Px)

Filed Feb 20 1980

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

Defendants’ motion for summary judgment and plain-

tiffs’ motion for summary judgment were heard on Feb-

ruary 4, 1980, before the Honorable Laughlin E.

Waters, United States District Judge. Plaintiffs ap-

peared by and through their counsel, Henry R. Fenton.

Defendants appeared by and through their counsel,

Andrea Sheridan Ordin, United States Attorney, Fred-

erick M. Brosio, Jr., Assistant United States Attorney,

Chief, Civil Division, Molly Munger, Assistant United

States Attorney, by Lawrence B. Gotlieb, Assistant

United States Attorney. The Court makes the following

findings of fact and conclusions of law.

FINDINGS OF FACT

This is a consolidated action. The pleadings of both

actions make virtually identical claims, The most recent

complaints on file in this action are the first amended

complaint in No, CV78-0740-LEW (Px) (hereinafter

“FAC”) and the complaint in No. CV78-3246-LEW(Px)

(hereinafter “COMPLAINT”).

46a

The Court granted defendants’ motion for partial

summary judgment on December 3, 1979, and denied

plaintiffs’ cross-motion for partial summary judgment,

finding that plaintiffs’ prayers for an injunction against

the use of search warrants or owner consent to obtain

entry by investigators of the Immigration and Natu-

ralization Service in the Central District of California

(hereinafter “INS") in conducting surveys in work

places were without merit and plaintiffs lacked

standing,

Ill

Plaintiffs’ remaining prayer is “for an order en-

joining the defendants from arresting, detaining, stop-

ping and interrogating or otherwise interferring [sic]

with the rights of the plaintiffs ostensibly because of

their Latin appearance, unless the defendants possess a

valid warrant to search for [sic] arrest with regard to

the individual plaintiffs, have probable cause to search

or arrest individual plaintiffs without a warrant, or

have reasonable suspicion based on specific irrefutable

facts that the plaintiffs are aliens unlawfully in the

United States.” (First Amended Complaint, prayer No.

2).

No material facts are in dispute. Each of the four

plaintiffs was asked a question or questions by an INS

investigator on one occasion during the surveys con-

ducted by INS at Southern California Davis Pleating

Company on January 4, 1977 and September 26, 1977,

or at Mr, Pleat on October 7, 1977. On these dates some

INS investigators were inside the factories and some

were at the exits, At the surveys, 78 illegal aliens were

arrested on January 4, 1977, 39 illegal aliens were ar-

rested on September 26, 1977, and 46 illegal aliens were

47a

arrested on October 7, 1977. None of the four plaintiffs

was arrested or taken into custody.

Any finding of fact which also contains a conclusion

of law shall be deemed incorporated within the conclu-

sions of law,

CONCLUSIONS OF LAW

Plaintiffs request for the proposed injunction is with-

out merit as a matter of law. The conduct of INS inves-

tigators which plaintiffs claim took place is lawful.

Law enforcement officials may ask questions of any-

one so long as the person is not restrained or physically

detained, Terry v. Ohio, 392 U.S. 1 (1968); Cuevas-

Ortega v. Immigration and Naturalization Service,

558 F.2d 1274 (9th Cir. 1979); Cordon de Ruano v. Im-

migration and Naturalization Service, 554 F.2d 944

(9th Cir, 1977),

III

An alien or person believed to be an alien may be

questioned concerning his right to be in the United

States, 8 U.S.C, § 1357(a) (1).

There was no arrest or detention of any of the plain-

tiffs. There was no other seizure of the plaintiffs under

the Fourth Amendment. Terry v. Ohio, 392 U.S. 1

(1968). Even if plaintiffs had experienced some form of

seizure by the placement of INS investigators at the

factory exits, the degree of intrusion on plaintiffs was

so limited that there was no violation of the Fourth

Amendment. Terry v. Ohio, supra, at 20; United

States v. Martinez-Fuerte, 428 U.S. 548, 557-558

(1976),

43a

Accordingly, defendants’ motion for summary judg-

ment should be granted and plaintiffs’ motion for sum-

mary judgment should be denied, and judgment should

be entered in favor of defendants and against

plaintiffs.

Any conclusion of law which also contains a finding

of fact shall be deemed incorporated within the find-

ings of fact.

DATED: This 15 day of Feb., 1980.

UNITED STATES DISTRICT JUDGE

49a

APPENDIX D

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

I. L. G. W. U., ETC., ET AL., PLAINTIFFS,

JOSEPH SURECK, ET AL., DEFENDANTS.

No. CV78-0740-LE W(Px)

No. CV78-3246-LE W(Px)

Filed Feb 15 1980

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

Defendants’ motion for partial summary judgment

and plaintiffs’ motion for partial summary judgment

were heard before the Honorable Laughlin E. Waters,

United States District Judge, on December 3, 1979.

Plaintiffs appeared by and through their counsel, Hen-

ry R. Fenton. Defendants appeared by and through

their counsel, Andrea Sheridan Ordin, United States

Attorney, Frederick M. Brosio, Jr., Chief, Civil Divi-

sion, by Molly Munger, Assistant United States Attor-

ney, and Lawrence B. Gotlieb, Assistant United States

Attorney. On January 4, 1980, defendants moved to

supplement the Findings of Fact and Conclusions of

Law, which motion was not opposed by plaintiffs. The

Court, having duly considered all the arguments by the

parties, makes the following Findings of Fact and Con-

clusions of Law as to the parties’ respective motion for

summary judgment:

FINDINGS OF FACT

1. This is a consolidated action. The pleadings in both

actions make virtually identical claims. The most recent

complaints on file in the actions are the First Amended

Complaint in Civ. No. 78-0740-LEW(Px) (hereafter

50a

“FAC”) and the Complaint in Civ. No. 78-3246-

LEW(Px) (hereafter “Complaint”).

2. Plaintiff 1.L.G.W.U., a labor union, was dis-

missed from this action for lack of standing by order

entered November 20, 1979. Hereinafter “Plaintiffs”

refers to the remaining plaintiffs in this action.

3. Plaintiffs seek a declaratory judgment in the fol-

lowing form:

“[Tjhat surveys of the Immigration status of the

employees of a business establishment are unlawful

unless conducted pursuant to a valid search war-

rant or the consent of the persons to be searched”

“That an employer may not lawfully consent to a

search of his employees” (Complaint, prayer at

€ 1); and

“That defendants may not engage in the pattern

of stopping or questioning the work force in a plant

where the warrant does not specifically describe

the individuals to be stopped or questioned” (Com-

Plaintiffs have also demanded an injunction against:

“(T]he use of search warrants which are not par-

ticularized with respect to the individuals de-

4. These provisions constitute a request that the

Court order as follows:

(A) That the Immigration and Naturalization Service

in the Central District of California (“INS”) may

not enter a workplace to conduct a survey with-

out a warrant unless all of the employees at the

workplace first consent to the entry; and

(B) That the INS may not use a search warrant to

enter a workplace to conduct a survey unless the

search warrant identifies each person with whom

INS will have contact while inside the workplace.

5. No material facts necessary to support these

claims are in dispute. Specifically:

5la

(A) The INS has not in the past followed the practice

of obtaining the consent of all the employees at a

workplace to conduct a workplace survey.

Where a warrant has not been obtained before

entering, the INS has instead relied on the

consent of the owner or manager of the

workplace.

In obtaining a warrant to conduct workplace

surveys, the INS has not in the past identified in

the warrants every employee to be contacted.

access of other persons to the premises in which

they are employed.

6. Any finding of fact which also contains a conclu-

sion of law shall be deemed incorporated within the

conclusions of law.

CONCLUSIONS OF LAW

1. Plaintiffs do not have a reasonable expectation of

privacy in the factory premises in which they are

employed,

2. Plaintiffs have no standing to challenge the entry

of Immigration and Naturalization Service officers into

the factory premises in which they are employed.

3. Plaintiffs have no standing to challenge either the

warrant or the consent procedures by which Immigra-

tion and Naturalization officers gain access to the prem-

ises in which they are employed.

4. Plaintiffs’ request for the proposed declaration and

injunction is without merit as a matter of law.

Specifically:

(A) The owner or manager of a workplace may give a

valid consent to an entry by the INS into his

premises. United States v. Matlock, 415 U.S.

164 (1974); United States v. Gargiso, 456 F.2d

584, 587 (2nd Cir. 1972); United States v.

Friedman, 381 F.2d 155 (8th Cir. 1967).

52a

(B) A search warrant used by the INS to obtain ac-

cess to a workplace for the purpose of INS law

enforcement need not identify each and every

person to be contacted by the INS while inside

the workplace. In no case has this been re-

quired. See Almeida-Sanchez v. United States,

413 U.S. 266 (1973) (concurring opinion by Justice

Powell); United States v. Cantu, 557 F.2d 1173

(5th Cir. 1977); United States v. Pacheco-Ruiz,

549 F.2d 1204, 1207 (9th Cir. 1976); United States

v. Rodriquez, 532 F.2d 834 (2d Cir. 1976); United

States v. Karathanos, 531 F.2d 26 (2d Cir.

1976), cert. denied 428 U.S. 910 (1976).

amended, authorizes the issuance of search war-

rants to gain access to illegal aliens who are pres-

ent in places of employment, F.R.CR.P., 41(b)

(4).

(D) The search warrants which are the subject of

plaintiffs’ motion describe the objects of the pro-

posed searches with sufficient particularity to

meet the requirements of F.R.CR.P. 41 and the

Fourth Amendment.

(E) The affidavits supporting the search warrants

which are challenged by plaintiffs do set forth

sufficient probable cause.

5. Accordingly, partial summary judgment was en-

tered for defendants on December 10, 1979, and the or-

der denying plaintiffs’ motion for partial summary judg-

ment was entered on January 28, 1980.

6. Any conclusion of law which also contains a finding

of fact shall be deemed incorporated within the findings

of fact.

DATED: This 14 day of Feb., 1980.

/s/

UNITED STATES DISTRICT JUDGE

53a

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

I.L.G.W.U., ETC., ET AL., PLAINTIFFS,

JOSEPH SURECK, ET AL., DEFENDANTS.

No. CV 78-0740-LEW(PX)

No. CV 78-3246-LEW(PX)

Filed Dec 4 1979

Hearing Date: December 3, 1979

Time: 9:00 a.m.

FINDINGS OF FACT

AND CONCLUSIONS OF LAW

Defendants having moved on December 3, 1979 for

an order granting partial summary judgment in the

above matter, the matter having been briefed and ar-

gued, and the Court having duly considered the argu-

ments by all parties; the Court makes the following

Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. This is a consolidated action. The pleadings in both

actions make virtually identical claims. The most recent

complaints on file in the actions are the First Amended

Complaint in Civ. No. 78-0740-LEW (PX) (hereafter

“FAC”) and the Complaint in Civ. No. 78-3246-LEW

(PX) (hereafter “Complaint”).

2. Plaintiffs seek a declaratory judgment in the fol-

lowing form:

“(T)hat surveys of the Immigration status of the

employees of a business establishment are unlawful

unless conducted pursuant to a valid search war-

5da

rant or the consent of the persons to be searched”

“That an employer may not lawfully consent to a

search of his employees” (Complaint, prayer at

* 1); and

“That defendants may not engage in the pattern

of stopping or questioning the work force in a plant

where the warrant does not specifically describe

the individuals to be stopped or questioned” (Com-

Plaintiffs have also demanded an injunction against:

“(T)he use of search warrants which are not par-

ticularized with respect to the individuals de-

3. These provisions constitute a request that the

Court order as follows:

(A) That the Immigration and Naturalization Service

in the Central District of California ("INS") may

not enter a workplace to conduct a survey with-

out a warrant unless all of the employees at the

workplace first consent to the entry; and

(B) That the INS may not use a search warrant to

enter a workplace to conduct a survey unless the

search warrant identifies each person with whom

INS will have contact while inside the workplace.

4. No material facts necessary to support these

claims are in dispute. Specifically:

(A) The INS has not in the past followed the practice

of obtaining the consent of all the employees at a

workplace to conduct a workplace survey. Where

a warrant has not been obtained before entering,

the INS has instead relied on the consent of the

owner or manager of the workplace.

(B) In obtaining a warrant to conduct workplace sur-

veys, the INS has not in the past identified in the

warrants every employee to be contacted,

55a

CONCLUSIONS OF LAW

1, Plaintiffs’ request for the proposed declaration and

injunction is without merit as a matter of law.

Specifically:

(A) The owner or manager of a workplace may give a

valid consent to an entry by the INS into his

premises. United States vy. Matlock, 415 U.S,

164 (1974); United States vy. Gargiso, 456 F.2d

584, 587 (2nd Cir. 1972); United States v.

Friedman, 381 F.2d 155 (8th Cir, 1967).

(B) A search warrant used by the INS to obtain ac-

cess to a workplace for the purpose of INS law

enforcement need not identify each and every

person to be contacted by the INS while inside

the workplace, In no case has this been required.

See Almeida-Sanchez v. United States, 413 U.S.

266 (1973) (concurring opinion by Justice Powell);

United States v. Cantu, 557 F.2d 1173 (Sth Cir,

1977); United States v. Pacheco-Ruiz, 549 F.2d

1204, 1207 (9th Cir. 1976); United States v.

Rodriquez, 582 F.2d 834 (2d Cir, 1976); United

States v. Karathanos, 531 F.2d 26 (2d Cir. 1976),

cert. denied 428 U.S. 910 (1976).

DATED: This 3 day of Dec, 1979.

UNITED STATES DISTRICT JUDGE

56a

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

I.L.G.W.U,, ETC., ET AL., PLAINTIFFS,

Uv,

JOSEPH SURECK, ET AL,, DEFENDANTS,

No, CV 78-0740-LEW (PX)

No. CV 78-3246-LEW (PX)

Filed Dee 4 1979

Hearing Date: December 3, 1979

Time: 9:00 a.m,

PARTIAL SUMMARY JUDGMENT

Defendants having moved on December 38, 1979 for

an order granting partial summary judgment in the

above matter, the matter having been briefed and ar-

gued, and the Court having duly considered the argu-

ments by all parties,

IT IS HEREBY ORDERED as follows:

1. The motion for partial summary judgment is

granted,

2. The following portions of the prayers set forth in

plaintiffs’ pleadings are denied:

A. The requests for declaratory relief as follows:

“(T)hat surveys of the Immigration status of the

employees of a business establishment are unlaw-

ful unless conducted pursuant to a valid search

warrant or the consent of the persons to be

searched” (Complaint in Civ. No. 78-3246-

LEW(PX) (“Complaint”), prayer at § 1);

“That an employer may not lawfully consent to

a search of his employees” (Complaint, prayer at

€ 1; and

“That defendants may not engage in the pattern

of stopping or questioning the work force in a

57a

plant where the warrant does not specifically de-

scribe the individuals to be stopped or questioned”

B. The request for an injunction against:

“(T]he use of search warrants which are not

particularized with respect to the individuals de-

scribed.” (Complaint, prayer at € 2.)

3. The following paragraphs from plaintiffs’ pleadings

are ordered stricken as surplusage:

First Amended Complaint in Civ, No. 78-0740-

LEW(PX):; Paragraphs 22, 23, 24, 26, 27, 35, 44,

45, 46. Complaint: Paragraphs 20, 21, 22, 24, 25,

34, 38, 39, 40, 41, 42, 43,

These paragraphs serve no purpose except to support

the portions of the prayers which have now been

denied.

DATED: This 4 day of Dec, 1979,

UNITED STATES DISTRICT JUDGE

58a

APPENDIX G

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

1,L.G.W.U,, ET AL., PLAINTIFFS,

JOSEPH SURECK, ET AL., DEFENDANTS,

No, CV 78-0740-LEW(Px)

No, CV 78-8246-LEW(Px)

Filed Nov 16, 1979

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS PLAINTIFF

INTERNATIONAL LADIES’ GARMENT

WORKERS’ UNION

Defendants’ Motion to Dismiss Plaintiff International

Ladies’ Garment Workers’ Union (“ILGWU” or the

“union”) having come on for hearing before this Honor-

able Court on August 20, 1979, the parties having sub-

mitted their papers for decision, and the Court, having

read and considered the papers filed in connection with

this Motion, as well as the other papers and pleadings

on file in this action, finds as follows:

1. This is an action for declaratory and injunctive re-

lief brought by the ILGWU and four individuals who

are employed in garment factories and are members of

the union,

2. The plaintiffs seek to challenge on constitutional

grounds certain alleged practices of the United States

Immigration and Naturalization Service (“INS”) fol-

lowed by INS in conducting surveys in factories.

3. The ILGWU alleged in the First Amended Com-

plaint that it was suing in its representational capacity

and pursuant to Section %a) of the National Labor Re-

lations Act (29 U.S.C. § 15%a)). In its Opposition to

59a

Defendants’ Motion, the ILGWU also alleged that it

was suing on its behalf.

4, The ILGWU is an international labor organization.

It functions as exclusive collective bargaining repre-

sentative for employees at Southern California Davis

Pleating Company and Mr. Pleat, the two garment fac-

tories which employ the four individual plaintiffs,

5. In order for an association such ag ILGWU to

maintain the instant action, it must satisfy the Article

III constitutional requirement of having standing to

sue, which may be done in one of two ways. First, the

union may sue if it has specific, concrete injury to itself.

Simon v. Eastern Kentucky Welfare Rights Organiza-

tion, 426 U.S, 26, 40 (1976). Warth v. Seldin, 422 U.S,

490, 508 (1975). Second, if it has no injury to itself, the

association may sue as a representative of its members,

but only if, inter alia, the interests it seeks to protect

are germane to the association's purpose, Hunt v,

Washington Apple Advertising Commission, 482 U.S.

333, 343 (1977),

6. The union has made no showing of any specific,

concrete injury to itself which would satisfy the consti-

tutional requirement of standing to maintain this action

on its own behalf.

7. The union has shown no cognizable right of its own

which has been vivlated, Furthermore, Section 9a) of

the National Labor Relations Act (29 U.S.C, § 159(a))

does not confer any express right of action on the union

in this action, Thus, even if the union had been able to

satisfy the constitutional limitation of specific, concrete

injury to itself, conferring standing, it fails to satisfy

the prudential limitations to standing. Warth v. Seldin,

supra, at 499-501,

8. There being no nexus between the purpose of the

union and the relief sought in the instant action, i.e., an

injunction against certain enforcement actions by the

INS allegedly affecting persons of Latin ancestry, the

60a

union lacks standing to maintain this action in any asso-

ciational capacity,

IT IS HEREBY ORDERED that Defendants’

Motion to Dismiss Plaintiff ILGWU is granted, and the

action is dismissed as to plaintiff ILGWU,

Costs are taxed against ILGWU in the amount of

DATED: This 16 day of Nov, 1979,

«/ LAUGHLIN E. WATERS

UNITED STATES DISTRICT JUDGE

6la

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos, 80-5054, 80-5153, 80-5034, 80-5152

DC CV 78-3246, 78-0740

INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION,

AFL-CIO, ET AL., PLAINTIFFS-APPELLANTS

JOSEPH SURECK, ET AL., DEFENDANTS/APPELLEES

INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION,

AFL-CIO, ET AL., PLAINTIFFS-APPELLANTS

JOSEPH SURECK, ET AL., DEFENDANTS/APPELLEES

APPEAL from the United States District Court for

the Central District of California.

THIS CAUSE came on to be heard on the Transcript

of the Record from the United States District Court for

the Central District of California and was duly

submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment

of the said District Court in this Cause be, and hereby

is reversed and remanded.

Filed and entered July 15, 1982

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