“Roving patrols,” reasonable suspicion, and Perdomo

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Fifty years ago, the Supreme Court ruled in United States v. Brignoni-Ponce that having “roving patrols” stop cars “near the border” whose “occupants appear to be of Mexican ancestry” violated the Constitution. But on Sept. 8, in Noem v. Vasquez Perdomo, the Supreme Court by an apparent vote of 6-3 put on hold a district court order preventing immigration sweeps of locations such as car washes and parking lots if ICE detains people based only on their ethnicity. Attorney General Pamela Bondi exulted that “[n]ow, ICE can continue carrying out roving patrols in California,” a statement that seems to fly in the face of Brignoni-Ponce. 

Justice Brett Kavanaugh should be commended for proposing a concurring explanation in Perdomo (three liberal justices dissented and no other justice published a view). Explanations have been rare on the court’s “shadow docket.” I certainly hope that responsible legal criticism of his concurrence does not discourage his explanatory instinct. But his assertion that Brignoni-Ponce supports the idea that “the Government has a fair prospect of succeeding on the Fourth Amendment issue” in Perdomo is at best an overreading. If accepted by a majority, his view would constitute a significant doctrinal shift in “reasonable suspicion” Fourth Amendment doctrine. 

Gun shows: a hypothetical

I hope a hypothetical will stimulate thinking beyond the immigration context, because I think Fourth Amendment theory cannot be limited to immigration detentions alone.

It has been suggested (but, no surprise, also disputed) that large gatherings of firearms manufacturers, sellers, and firearm enthusiasts – let’s call them “gun shows” – serve as opportunities to circumvent legal regulations governing the buying, selling, or transfer of firearms (let’s call that “illegal conduct”). We can only estimate the percentage of people attending gun shows who are engaged in illegal conduct – let’s guess at 10%. Eighty-two percent of gun owners are white Caucasian men (a lesser percentage of immigrants, about 45%, are Hispanic). May federal law enforcers sweep into gun shows and detain everyone present – or, to reasonably “narrow” the seizures, all white men present – for questioning, based solely on the location and the known possibility that some of those persons are engaged in illegal conduct? That is, does a fair probability of finding criminal violators among a large group equal “reasonable suspicion” to detain and question (briefly, but against their will) everyone in the crowd?

If such broad law enforcement sweeps do not bother you, then this column may. Kavanaugh’s solo explanation in Perdomo for permitting large immigration sweeps at certain locations seems based in part on such a “probabilistic” theory of reasonable suspicion. But the Fourth Amendment rules regarding “Terry stops” (explained below) have for decades been based on an individualized theory – that is, a liberty-protecting requirement that articulable facts must reasonably arouse a suspicion particular to specific individuals, before those individuals can be detained and questioned.

What are the Fourth Amendment rules for “Terry” detentions?

The constitutional framework surrounding detentions and questioning has been relatively well-settled since the Supreme Court’s 1968 decision in Terry v. Ohio. Of course, the “majestic ambiguity” of the Fourth Amendment – which textually protects “the People” only from “unreasonable” seizures and expressly requires “probable cause” only for judicially issued warrants – makes everything subject to debate. Still, I think some constitutional rules have been made relatively clear by Supreme Court interpretation:

         1. “Consensual” questioning by law enforcement is always OK. That is, government agents are always free to ask questions of people they meet in public, just like anyone else. Concurrently, the people they question are free to ignore the agents, remain silent, and walk away – just as you might if any stranger accosted you on the street. When law enforcement officials go beyond consensual questioning, the Fourth Amendment kicks in. 

         2. An arrest, whether with a judicially issued warrant or not, requires “probable cause” (the definition of which has been disputed over time).

         3.  A “stop” of a person, something short of an arrest but demanding answers involuntarily, is called a detention. Involuntary detentions for questioning must be brief, but they are permitted if law enforcement has “articulable” facts (something more than just a “hunch”) that would lead a reasonable person to suspect that the specific individual that agents want to detain and question is committing (or has committed, or intends to commit) a crime. Suspicion must be “particularized” (a word used often, especially in the 2002 case of United States v. Arvizu) or, as the court said in the 1979 case of Brown v. Texas, focused on “the particular individual.” This is the “reasonable suspicion” doctrine of Terry.

         4. Law enforcement agents may use their personal experience to evaluate the facts (to determine whether their suspicion about the individual is reasonable), and should apply a “totality of the circumstances” analysis (as a unanimous court stressed last term in Barnes v. Felix). This means that agents may rely on any special knowledge or experience they have, often beyond that of the average citizen, and may consider all relevant facts in combination – the “whole ball of wax” so to speak.

         5.  Agents may use reasonable force to detain people, but the “stop” must be brief and people must be released from their detention “promptly” unless further facts cause the suspicion to ripen into full probable cause to arrest.

         6.  If a court later finds violations of these constitutionally based rules, the “fruit of the poisonous tree” doctrine can require suppression of information gained through the unlawful law enforcement conduct.

The constitutional linchpin here is Terry v. Ohio, in which the Supreme Court, for the first time, allowed the seizure or “stop” of a person – that is, “restraining his freedom to walk away” from law enforcement questioning – on an evidentiary standard lower than probable cause. This atextual “reasonable suspicion” doctrine has been criticized by some, and the evidentiary standard will be the centerpiece of argument in the upcoming case of Case v. Montana this term.

The Perdomo litigation

With that background, I focus only on the Fourth Amendment issue in Perdomo.

In quick summary: Almost 50% of the people living in the seven-county Central District of California identify as “Hispanic or Latino”; well over a third speak Spanish at home. “About 10 percent” of the people in the region are estimated to be present without lawful immigration status (“illegal” in Kavanaugh’s words). The Perdomo plaintiffs (dozens of people) alleged that in June, DHS agents started conducting general sweeps of places like Home Depot parking lots, car washes, and farm fields, and detaining everyone there who looked or sounded Latino. This is not, said the plaintiffs, suspicion related to the specific individuals detained; not everyone with an accent at these locations is in the country without proper documentation. (Indeed, some of the plaintiffs forcibly detained were citizens or had lawful immigration status). Unless government agents have facts to reasonably suggest that a specific individual has unlawful status, said the plaintiffs, the agents cannot detain that person to find out. That is, individualized reasonable suspicion must exist before a Fourth Amendment detention, not after.

The government did not significantly contest the facts alleged by the plaintiffs. They argued, instead, that because a large number of undocumented immigrants live in the Los Angeles area and are known to congregate in the locations mentioned, it is reasonable to suspect that many of the persons there are undocumented – that is, committing immigration offenses. In other words, the probability (high, said the government, although the record has no specific numbers) of finding illegal immigrants in the crowd constituted “reasonable suspicion” to detain the entire crowd.

The district court granted an injunction, but it did not stop DHS immigration enforcement efforts in Los Angeles. Rather, the court’s temporary restraining order prohibited detention stops only if they were based “solely” on ethnicity (or accent) and a location (or job) where unlawful immigrants might be found. (I think it’s fair to collapse the four factors the court specified into two: ethnicity and location.) The district court ruled that “sole reliance” on these factors “does not constitute reasonable suspicion,” but that DHS could still consider them in combination with other individualized facts to support specific detentions. 

The U.S. Court of Appeals for the 9th Circuit affirmed. Specifically, the panel agreed that ethnicity plus location cannot alone – that is, “solely” – support the particularized suspicion that a Fourth Amendment detention requires. The ideas that location and ethnicity can create detention suspicion were rejected in Brignoni-Ponce, because roads “near the border … carry not only [unlawful] aliens … but a large volume of legitimate traffic,” and stops based on ethnicity would “cast suspicion on large segments of the lawabiding population.” (One might also add the 2000 ruling in Illinois v. Wardlow that “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion.”)

Kavanaugh’s “reasonable suspicion” explanation in Perdomo

Regarding the “likelihood of success” on reasonable suspicion, here is the heart of what Kavanaugh wrote: “[T]here is an extremely high number and percentage of illegal immigrants in the Los Angeles area,” who “tend to gather in certain locations to seek daily work” and “often work in certain kinds of jobs” (no empirical evidence was cited but put that aside for now). Moreover, he added, “many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.” “Common sense,” he wrote, thus means “those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States.”    

To me, the facts that Kavanaugh recited boil down pretty clearly to suspicion based solely on ethnicity plus location. No? If so, it is a probabilistic theory of suspicion: agents suspect that if they detain a lot of people at locations known to have illegal immigrants, then it is probable they will find some individual criminals. If you buy Kavanaugh’s rationale, then you have adopted a probabilistic theory of reasonable suspicion, and you are abandoning a requirement of individualized suspicion before you detain someone.

I think a general probabilistic theory of reasonable suspicion would be a significant departure from prior Fourth Amendment doctrine. I don’t see how that theory can be cabined to just the immigration context (although Josh Blackman, a constitutional law professor, suggests it could be). The threat to liberty of others – for example, all white males attending gun shows as hypothesized above – forecasts a significant debate when the full court confronts the full implications of Perdomo (which so far is just a temporary stay while the litigation continues).

Much more might be said, but I will note just one further point. In balancing the equities, Kavanaugh wrote that “the interests of illegal immigrants in evading questioning” is “not especially weighty.” The incompleteness of this point is evident: It is the Fourth Amendment liberty interests of the law-abiding public that must be considered. As the Brignoni Ponce court wrote, “[t]o approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference.” The same is true of Latino citizens or lawful immigrants who are visiting Home Depot or a car wash.

Conclusion

If Kavanaugh’s view accurately reflects that of his majority colleagues, it foreshadows potential large changes in existing doctrine as well as practices. First, by ignoring the “no roving patrols” holding of Brignoni-Ponce and not applying the usual Terry “particularized suspicion” rule, Kavanaugh seems to advocate a significant change in the reasonable suspicion standard. Second, if reading his solo concurrence as endorsing such a change is fair, Kavanaugh’s vote on the stay application suggests that lower courts should now attempt to predict whether the current court will change the law, rather than go where precedents seem to lead. Both shifts in approach have far broader legal implications than the interim Perdomo order. 

Finally, let’s briefly return to the gun show hypothetical with which I opened this essay. Facts are always capable of being distinguished, but the law professor’s favorite question follows: is there a distinction that makes a legal difference? If agents can be reasonably sure that people violating the law can be found at a certain location, a location that fosters similar law-breaking in the expert view of experienced agents, doesn’t common sense recommend that they detain and question (briefly) everyone there? It is certain that some law violators will be discovered; they may even fit the ethnic and lifestyle stereotype that the agents would predict.

When Perdomo reaches the full court on its full merits – and it may, although this is not inevitable – the justices will have to address, I think, hypothetical applications of the Fourth Amendment well beyond the immigration context.