Arizona Immigration Law MAY Be Violative of 4th Amendment

[George Costanza]

Let's take another look at this new Arizona immigration law. I think, when we do, we are going to see that it is much worse than originally anticipated. Here is the language of the actual law (SB 1070):

FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON.

The portion highlighted means that, before a police officer can question someone about their immigration status, there has to be a "lawful contact" in the first instance.

I had originally thought that a "lawful contact" meant an otherwise legal stop or detention based upon reasonable cause to believe the person was involved in some type of criminal activity other than being an illegal immigrant. Example: Cop pulls someone over for DUI. The guy is clearly under the influence and he is also Mexican. Cop can both bust him for DUI and ask to see proof of legal citizenship. Does that pass Constitutional (4th Amendment) muster? Probably.

On further review, however, I don't think that's what this "lawful contact" phrase actually means. In California, and I am sure in most states (including AZ), there is such a thing as a "consensual encounter." An officer can walk right up to someone on the street and engage them in conversation. If the person consents to talk to the officer, a "consensual encounter" is underway. Consensual encounters can be for whatever reason the officer chooses - no reason at all, if that's what he wants. After all - the citizen is always "free to walk away" from a consensual encounter any time he/she likes, right?

Typically, during a "consensual encounter," the officer will ask whether or not the person he is talking to has anything illegal on his/her person. The person will often (but not always) say no. The officer will then say, "do you mind if I search you?" The person will invariably say, "sure, go ahead." If the officer finds contraband, he can arrest based on what he finds, since he is conducting a consented-to search, which is tottally legal.

So I'm wondering - under the wording of this new AZ law, is it OK for a cop to walk up to a Mexican on the street, engage them in a "consensual encounter" and, if the Mexican person consents to talk with the cop, here we go . . . . "Your PAPERS, please?"

I suspect this may be the case. If it is, I think the new, Arizona law is violative of the 4th Amendment because it appears to authorize detentions which are, de facto, not based upon reasonable suspicion that a crime is being committed, ii.e., racial profiling.

 

[lawbuff]

So I'm wondering - under the wording of this new AZ law, is it OK for a cop to walk up to a Mexican on the street, engage them in a "consensual encounter" and, if the Mexican person consents to talk with the cop, here we go . . . . "Your PAPERS, please?"

I suspect this may be the case. If it is, I think the new, Arizona law is violative of the 4th Amendment because it appears to authorize detentions which are, de facto, not based upon reasonable suspicion that a crime is being committed, ii.e., racial profiling.

A consensual encounter is NOT a detention, you seem to point that out, than miss it at the same time?

 

[CrusaderFrank]

Yet, amazingly ObamaCare does not violate the 4th Amendment

 

[ihopehefails]

I want to know if a cop thinks someone is illegal are they not allowed to act because of that suspicion?

Anyways, how is this different than any other crime? When a cop thinks a drug dealer is dealing drugs are they allowed to initiate an encounter to ascertain if they are dealing drugs?

It also says 'reasonable suspicion' at which the cop has to state why he thought he was illegal. Perhaps it was because the guy can't speak a word of english? Perhaps his car is registered in another country?

Perhaps its because he is mexican which could happen and is prohibited under the governors orders. Its also not wise to do that in a state of 50% hispanic since it would invite a major lawsuit. I mean there are a whole lot of reasons to think someone is illegal other than their race so what is wrong with grounding your suspicion on those reasons that are not realated to race? Is an officer prohibited from making an arrest based on those reasons?

 

[George Costanza]

So I'm wondering - under the wording of this new AZ law, is it OK for a cop to walk up to a Mexican on the street, engage them in a "consensual encounter" and, if the Mexican person consents to talk with the cop, here we go . . . . "Your PAPERS, please?"

I suspect this may be the case. If it is, I think the new, Arizona law is violative of the 4th Amendment because it appears to authorize detentions which are, de facto, not based upon reasonable suspicion that a crime is being committed, ii.e., racial profiling.

A consensual encounter is NOT a detention, you seem to point that out, than miss it at the same time?

A "consensual encounter" is, in almost every case, a de facto detention.

Practically speaking, when a police officer comes up to someone on the street and engages them in seemingly pleasant conversation, the person is not going to walk away for two reasons. The first reason is that most people, when spoken to politely by anyone, will return the conversation, rather than rudely walk away. A more compelling reason, however, is that most of the type of people cops try to engage in "consensual encounters" are people who know full well that if they just keep walking, the next words out of the cop's mouth are going to be: "HOLD IT!" So they stay where they are, and the "consensual encounter" is underway.

 

[George Costanza]

I mean there are a whole lot of reasons to think someone is illegal other than their race . . .

Oh? Like what? Remember now - these reasons must be something that is evident to the officer BEFORE he ever detains or stops the person. They cannot be reasons which the officer learns about AFTER making the stop.

OK - go ahead. Tell me what some of those reasons might be.

. . . so what is wrong with grounding your suspicion on those reasons that are not related to race? Is an officer prohibited from making an arrest based on those reasons?

No, provided the reasons are objectively and reasonably related to the issue of illegality, and, as mentioned above, further provided that they are discovered by the officer prior to any stop or detention.

 

[Big Black Dog]

Let's take another look at this new Arizona immigration law. I think, when we do, we are going to see that it is much worse than originally anticipated. Here is the language of the actual law (SB 1070):

FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON.

The portion highlighted means that, before a police officer can question someone about their immigration status, there has to be a "lawful contact" in the first instance.

I had originally thought that a "lawful contact" meant an otherwise legal stop or detention based upon reasonable cause to believe the person was involved in some type of criminal activity other than being an illegal immigrant. Example: Cop pulls someone over for DUI. The guy is clearly under the influence and he is also Mexican. Cop can both bust him for DUI and ask to see proof of legal citizenship. Does that pass Constitutional (4th Amendment) muster? Probably.

On further review, however, I don't think that's what this "lawful contact" phrase actually means. In California, and I am sure in most states (including AZ), there is such a thing as a "consensual encounter." An officer can walk right up to someone on the street and engage them in conversation. If the person consents to talk to the officer, a "consensual encounter" is underway. Consensual encounters can be for whatever reason the officer chooses - no reason at all, if that's what he wants. After all - the citizen is always "free to walk away" from a consensual encounter any time he/she likes, right?

Typically, during a "consensual encounter," the officer will ask whether or not the person he is talking to has anything illegal on his/her person. The person will often (but not always) say no. The officer will then say, "do you mind if I search you?" The person will invariably say, "sure, go ahead." If the officer finds contraband, he can arrest based on what he finds, since he is conducting a consented-to search, which is tottally legal.

So I'm wondering - under the wording of this new AZ law, is it OK for a cop to walk up to a Mexican on the street, engage them in a "consensual encounter" and, if the Mexican person consents to talk with the cop, here we go . . . . "Your PAPERS, please?"

I suspect this may be the case. If it is, I think the new, Arizona law is violative of the 4th Amendment because it appears to authorize detentions which are, de facto, not based upon reasonable suspicion that a crime is being committed, ii.e., racial profiling.

I understand what you are trying to put across BUT what about the law that requires any alien present in this country to have their green card physically on their person? If the police officer suspects the person is an alien, it's already a law to have the green card with you at all times, then why is it such a bad thing for him to check that alien's green card? If the alien, legal or not, does not have the green card, then they are breaking the law. If the alien has the green card then the policeman can wish him or her a good day and go about his business. If they do not have the green card then additional steps should be necessary because a crime is being committed. Why is this so hard to understand? it's the law. Seems pretty simple to me.