The Circumstances In Which an Officer May Ask Questions Concerning Alienage
The Circumstances In Which an Officer
May Ask Questions Concerning Alienage
Yule Kim
Legislative Attorney
American Law Division
Summary
This report provides a short overview of the circumstances in which a law
enforcement officer may ask questions concerning alienage. Generally, any officer may
freely ask someone questions about his or her alienage status so long as the individual
can refuse to answer. However, if questioning is sufficiently coercive, it can rise to the
level of a Fourth Amendment seizure, which, depending on the circumstances, requires
either probable cause or reasonable suspicion to justify. This report does not discuss
custodial interrogations. No bills addressing this issue are currently pending.
Introduction
This report discusses the circumstances in which a law enforcement officer may
question an individual about his alienage status without running afoul of a constitutional
protection. It provides background on the legal framework governing these interrogations
and discusses the salient legal issues that may arise. As a general rule, an officer may
freely ask an individual questions concerning his alienage status so long as the individual
can refuse to answer. It is only when the circumstances surrounding the questioning cease
to be consensual and become coercive that the encounter becomes a “seizure” and triggers
the Fourth Amendment prohibition against unreasonable searches and seizures. This
report does not discuss custodial interrogations.
Background On The Fourth Amendment
All persons within the external boundaries of the United States, including aliens,
enjoy Fourth Amendment protections.1 The Fourth Amendment mandates that searches
and seizures of persons, houses, papers, and effects conducted by the government must
1 See INS v. Mendoza-Lopez, 468 U.S. 1032, 1050-1051 (1984); United States v. Verdugo-
Urquidez, 494 U.S. 259, 263 (1990) (stating that a majority of Justices assumed that illegal aliens
in the United States have Fourth Amendment rights); Yick Wo v. Hopkins, 118 U.S. 356 (1886).
be reasonable.2 Reasonableness means that justification is required prior to conducting a
Fourth Amendment search or seizure.3 The degree of justification required varies
depending on the circumstances, though in most cases a search or seizure conducted
without a warrant supported by probable cause4 is presumed unreasonable.5 However, an
officer can conduct a “stop and frisk” if there is a reasonable suspicion6 that the suspect
is planning or has committed a crime.7 Nonetheless, not all encounters between law
enforcement officers and individuals constitute a “seizure” which would trigger Fourth
Amendment protections.
In order to determine whether a Fourth Amendment seizure has occurred, courts look
at the totality of circumstances and ask whether a reasonable person would believe he was
free to leave the encounter with the officer.8 When one cannot leave the presence of the
police for reasons unrelated to police coercion (e.g., the seizure occurs on a bus), the test
is whether a reasonable person would feel free to decline the officer’s requests.9 While
traditional arrests are almost always Fourth Amendment seizures,10 such seizures may also
include brief detentions, such as a “stop,” that fall short of an arrest.11
Consensual Encounters Are Not Fourth Amendment Seizures
Asking someone to identify himself does not in itself constitute a Fourth Amendment
seizure.12 However, if a person refuses to answer questions regarding his identity,
detaining the person in order to continue questioning would fall under Fourth Amendment
2 U.S. Const., Amend. IV.
3 Camara v. Municipal Court, 387 U.S. 523 (1967).
4 “Probable cause to search exists where the known facts and circumstances are sufficient to
warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will
be found.” See Ornelas v. United States, 517 U.S. 690, 696 (1996).
5 Katz v. United States, 389 U.S. 347, 357 (1967).
6 Reasonable suspicion is a less rigorous standard of cause than probable cause. Reasonable
suspicion means “[a] particularized and objective basis for suspecting the person stopped of
criminal activity.” See Ornelas, 517 U.S. at 696.
7 Terry v. Ohio, 392 U.S. 1 (1968).
8 United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“A person has been “seized” within the
meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave.”)
9 Brendlin v. California, 127 S. Ct. 2400 ( 2007) citing Florida v. Bostick, 501 U.S. 429, 435-436
(1991) (“[W]hen a person has ‘no desire to leave’ for reasons unrelated to the police presence,
the ‘coercive effect of the encounter’ can be measured better by asking whether ‘a reasonable
person would feel free to decline the officers’ requests or otherwise terminate the encounter.’”).
10 Dunaway v. New York, 442 U.S. 200, 212-216 (1979).
11 United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).
12 INS v. Delgado, 466 U.S. 210, 216 (1984). See also Florida v. Royer, 460 U.S. 491 (1983)
(“Interrogations relating to one’s identity or a request for identification by the police does not by
itself constitute a Fourth Amendment seizure.”).
protections.13 Thus, determining whether there is a Fourth Amendment seizure turns on
whether the questioning is consensual or coercive.
It is important to stress that an officer’s questioning may still be consensual without
telling the individual that he is free not to respond.14 The fact that most individuals answer
police questions without being told they are free not to respond does not render these
encounters any less consensual.15 In order for an encounter with an officer to rise to the
level of a Fourth Amendment seizure, the encounter must be so intimidating that a
reasonable person would have believed he was not free to leave if he had refused to
respond to the officer’s query.16
The leading case on this issue is INS v. Delgado.17 In Delgado, Immigration and
Nationalization Service (INS) agents conducted a surprise inspection of a worksite in
order to determine whether undocumented aliens were present among the employees.18
After entering the worksite, the INS posted agents at all the exits, proceeded to approach
employees, and asked them questions regarding their citizenship status.19 If an individual
did not provide a credible reply or admitted he was an alien, he was asked to show his
immigration papers.20 In the meantime, the employees continued with their work and were
free to walk around the worksite.21 The Court held that there was no Fourth Amendment
seizure of the workforce because the workers could not have had a reasonable fear that
they would be detained within the worksite if they attempted to leave.22 The Court
concluded that the possibility of the employees being questioned if they sought to leave
the worksite should not have resulted in any reasonable apprehension that they would be
detained.23 Therefore, the employees were subjected to consensual encounters rather than
Fourth Amendment seizures.24
13 See Brown v. Texas, 443 U.S. 47 (1979) (finding a Fourth Amendment seizure when two
officers physically detained the defendant in order to determine his identity after the defendant
refused the officer’s requests to identify himself).
14 Delgado, 466 U.S. at 216.
15 Id. (“While most citizens respond to a police request, the fact that people do so, and do so
without being told they are free not to respond, hardly eliminates the consensual nature of the
response.”).
16 Id. ( “Unless the circumstances of the encounter are so intimidating as to demonstrate that a
reasonable person would have believed he was not free to leave if he had not responded, one
cannot say that the questioning resulted in a detention under the Fourth Amendment.”).
17 466 U.S. 210.
18 Id. at 211-212.
19 Id. at 212.
20 Id. at 213.
21 Id.
22 Id. at 219.
23 Id.
24 Id. at 220.
From Delgado, it appears that an officer may ask questions regarding alienage so
long as, in the totality of circumstances, a reasonable person would have felt free to
decline to answer. Otherwise, there is a seizure, and it must be shown to be reasonable in
order to pass constitutional muster. Some lower courts have declined to distinguish
questions regarding alienage from more general questions about identification, and have
held that questioning someone about his or her alienage status does not trigger Fourth
Amendment concerns.25 Though these cases deal almost exclusively with immigration
officers, the analysis of whether a Fourth Amendment seizure has occurred would appear
similar when state and local officers are involved.26
Situations That Are Fourth Amendment Seizures
Though officers have broad leeway to ask questions when the encounter is
consensual, if the encounter becomes sufficiently coercive, it will rise to the level of a
Fourth Amendment seizure which an officer must justify by some cause or suspicion.
There is no bright line that separates a consensual encounter from a coercive encounter;
the distinction depends on the totality of the circumstances. Because of this, there are
several situations in which there can be a Fourth Amendment seizure that falls short of
a traditional arrest.
Refusal To Answer. A refusal to respond to a question concerning alienage
cannot be the sole basis to support a Fourth Amendment seizure. If an officer attempts to
compel an answer, there is a possibility that a seizure may take place. For example, in
Brown v. Texas, the defendant was standing in an alley when a pair of police officers
asked him for identification.27 After the defendant refused to identify himself, he was
arrested for violating a state provision requiring individuals to identify themselves to
police when lawfully stopped.28 The Supreme Court ruled that this situation rose to the
level of a seizure and was unsupported by the reasonable suspicion that the Fourth
Amendment required.29 From this case, it is clear that a refusal to provide identification30
is not enough on its own to support a Fourth Amendment seizure. Even if an arrest is
effected because of a refusal to answer, it would appear that a suspected undocumented
alien may not be compelled to answer when arrested for violating a criminal provision of
the INA because of the Fifth Amendment prohibition against self-incrimination.31
25 United States v. Angulo-Guerrero, 328 F.3d 449 (8th Cir. 2003); Zepeda v. INS, 753 F.2d 719
(9th Cir. 1983).
26 But see INA § 287(a)(1) (empowering immigration officers to interrogate without warrant any
person believed to be an alien as to his right to be in the United States).
27 443 U.S. at 48.
28 Id. at 49.
29 Id. at 51-52.
30 Accord Hiibel v. Sixth Judicial Court of Nevada, 542 U.S. 177 (2004).
31 It should be noted that the Fifth Amendment prohibition against self-incrimination extends only
to criminal violations, while illegal presence within the United States is generally a civil
violation.
Inquiry which results in an arrest. Generally, a law enforcement officer may
use information obtained in a consensual interrogation to provide the reasonable32
suspicions needed to support a “stop” of a suspect. Likewise, federal immigration
officers can also use reasonable suspicions arising from a consensual interrogation to
support a brief detention of a suspected undocumented alien. This is because of their
statutory authorization to arrest aliens for illegal presence within the United States.33
However, it is not clear whether state or local officers can conduct a “stop” after obtaining
information that would give rise to a reasonable suspicion of illegal presence since they
do not have the same statutory authorization to detain suspected undocumented aliens as
federal immigration officers.
The Difference Between Federal and State or Local Officers
When an officer takes additional steps to compel an individual to answer questions
concerning alienage by detaining him, the Fourth Amendment imposes “some minimal
level of objective justification” in order to validate the detention effected for the
questioning.34 It would seem that a “minimal level of objective justification” would vary
depending on whether the questioning officer was either a federal immigration officer or
a state or local officer.
Federal Immigration Officers. A federal immigration officer has statutory35
authorization to interrogate and arrest undocumented aliens without warrant. Due to this
authorization, immigration officers who have reasonable suspicions that a suspect is in
the United States without legal status may detain the person for further questioning, and
if probable cause should arise, to arrest the individual.
State or Local Officers. Though federal immigration officers can detain a
suspected undocumented alien with only reasonable suspicions of illegal presence, state
and local officers lack federal statutory authorization to do so. In most cases, state and
local officers may only detain individuals and then question them about alienage when the
detention is conducted during exercise of law enforcement duties, such as during an arrest
32 See United States v. Springer, 946 F.2d 1012, 1017 (2d Cir. 1991) (reasonable suspicion to
detain individual who gave contradictory responses to consensual questions and implausibly
denied ownership of suitcase); United States v. Winfrey, 915 F.2d 212, 216-17 (6th Cir. 1990)
(reasonable suspicion to detain individual when consensual encounter revealed traveled under
variation of surname, had large sum of cash, and no documentation relating to alleged business
purpose of trip); United States v. Sterling, 909 F.2d 1078, 1083-84 (7th Cir. 1990) (reasonable
suspicion to detain individual who did not have identification and provided implausible
explanation for travel during consensual questioning); United States v. Delaney, 52 F.3d 182,
184-85 (8th Cir. 1995) (reasonable suspicion to detain individual who appeared nervous and
disavowed knowledge of bag he checked when consensual questioning revealed traveling under
false name); United States v. Kopp, 45 F.3d 1450, 1454 (10th Cir. 1995) (reasonable suspicion
to detain individual when consensual questioning of two persons in a car revealed inconsistent
and implausible stories).
33 See INA § 287(a)(2).
34 Delgado, 466 U.S. at 216-217.
35 See INA § 287(a)(1), (2).
for a state or local criminal violation.36 Moreover, it has been traditionally understood that
state and local officers may only enforce the criminal provisions of the Immigration and
Nationality Act (INA) since the pervasive regulatory scheme that constitute the civil
provisions of the INA appear to evince a congressional intent to preclude state
enforcement.37 This would seem to mean that unless there is a suspicion that the suspect
committed a criminal violation of the INA, suspicion of illegal presence alone may not
be sufficient grounds for a state or local officer to detain a suspected undocumented
alien.38 Under this theory, unless the state or local officer was detaining a suspect for
violating either a criminal provision of the INA or for violating some state or local law,
the officer most likely cannot detain the suspect for further questioning if the only basis
for doing so is a suspicion that the suspect is an undocumented alien.39
An alternative theory posits that states have “inherent authority” to enforce both the
criminal and civil provisions of the INA. This theory is relatively new, and has some
support in case law.40 It has also been endorsed by the Department of Justice in an Office
of Legal Counsel opinion.41 However, no federal court has expressly held that state or
local officers may enforce civil provisions of the INA. It is clear that under either theory,
a state or local officer may detain someone for further questioning for either a suspected
violation of a criminal provision of the INA or for a suspected state or local offense.
However, until there is further guidance from the federal courts, it is an open question as
to whether state or local officers have the authority to detain individuals of suspected civil
violations of the INA. Neither the federal courts nor Congress addressed this issue during
the first session of the 110th Congress.
36 United States v. Salinas-Calderon, 728 F.2d 1298, 1301, n.3 (10th Cir. 1984) (“A state trooper
has general investigative authority to inquire into possible immigration violations.”).
37 Gonzalez v. City of Peoria, 722 F.2d 468, 474-75 (9th Cir. 1983) (“We assume that the civil
provisions of the Act regulating authorized entry, length of stay, residence status, and deportation
constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal
power over immigration.”). See also INA § 274(c) (authorizing “officers whose duty is to enforce
criminal laws” to make an arrest for violating a provision of INA § 274, which imposes criminal
penalties for certain proscribed activities).
38 Dep’t of Justice, Office of Legal Counsel, Assistance by State and Local Police in
Apprehending Illegal Aliens, 1996 OLC Lexis 76 at 2 (February 5, 1996). Subsequently
withdrawn by a 2002 OLC Opinion. See fn. 41.
39 Id.
40 See Salinas-Calderon, 728 F.3d at 1301, n.3 (claiming that state troopers have general
investigatory authority to inquire into possible immigration violations without distinguishing
between criminal or civil violations); United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir.
1999) (holding that a provision of the INA did not preclude any preexisting enforcement power
already in the hands of state or local officers without stating whether enforcement of civil
immigration provisions was a preexisting power); Lynch v. Cannatella, 810 F.2d 1363 (5th Cir.
1987) (“No statute precludes other federal, state, or local law enforcement agencies from taking
other action to enforce this nation’s immigration laws.”).
41 Dep’t of Justice, Office of Legal Counsel, Non-preemption of the authority of state and local
law enforcement officials to arrest aliens for immigration violations, (April 3, 2002),
[ h t t p : / / www.f a i r us.or g/ si t e / DocSer ver / OLC_Opi ni on_2002.pdf ?docID=1041] .