Pearl Meadows Mushroom Farm, Inc. v. Nelson
United States District Court for the Northern District of California December 11, 1991, Decided ; December 11, 1991, Filed; December 17, 1991, Entered
No. C-82-1896 JW

Reporter: 1991 U.S. Dist. LEXIS 19726 PEARL MEADOWS MUSHROOM FARM INC., et al., Plaintiffs, v. ALAN NELSON, Commissioner, Immigration and Naturalization Service, et al., Defendants.
Judges: [*1] INFANTE, WARE
Opinion by: EDWARD A. INFANTE; JAMES WARE
Opinion
DECLARATORY JUDGMENT
Pursuant to 28 U.S.C. § 2201, the Settlement Agreement ("Agreement") entered into by the parties to this action, and the Court's approval of the parties' Agreement at a hearing held on December 11, 1991,
IT IS HEREBY DECLARED AS FOLLOWS:
A. ENTRY INTO WORKPLACES DURING WORKPLACE SURVEYS

b. Any INS civil warrant authorizing the seizure or arrest of a person or persons is valid only when it names or particularly describes each person to be seized pursuant to the particularily requirement of the Fourth Amendment. Such a warrant is valid only when it is based on probable cause to believe that each such person is an alien illegally present in the United States. International Molders v. Nelson, supra, 799 F.2d at 552 n.5. A civil warrant authorizing seizure of "others" in addition to the named and particularly described persons, is valid only when it specifies that, although the identity of such "others" is [*3] not known, no such person or persons will be detained until after agents have established reasonable, articulable, and individualized suspicion of illegal alienage, and that no such person or persons will be arrested until after agents have established individualized probable cause of illegal alienage. Cf. Ybarra v. Illinois, 444 U.S. 85, 91 (1979); Andresen v. Maryland, 427 U.S. 463, 478-84 (1976).
2. Valid Consent to Enter a Workplace

A workplace entry by INS Agents other than an entry into a public area, open field (except as specified in Section 287(e) of the Immigration and Nationality Act, 8 U.S.C. § 1357(e)), or solely for the purposes of obtaining consent, is valid only when based on a valid warrant, valid consent, or valid exigent circumstances.
1. Valid Warrant in Workplace Surveys
a. A warrant of inspection and its supporting affidavit or affidavits is valid only when it provides "sufficient specificity and reliability to prevent the exercise of unbridled discretion by law enforcement officials," and "narrows down the field of potentially vulnerable persons to those employees whom INS might reasonably believe to be aliens." Blackie's House of Beef v. Castillo, 659 F.2d 1211, 1225 (D.C. Cir. 1981), cert. denied,455 U.S. 940 (1982); [*2] International Molders' and Allied Workers' Local Union No. 164 v. Nelson, 799 F.2d 547, 552-53 (9th Cir. 1986). The warrant is valid when restricted to a single business premises and only when it provides a reasonable restriction on the time it can be executed (e.g., within 10 days of authorization and during daylight hours), and only when it permits searches where the objects of the searches (e.g., illegal aliens), are likely to be found. Blackie's House of Beef v. Castillo, supra, 659 F.2d at 1226.

Consent to enter a workplace is valid only when it is voluntary; when it is not "coerced by explicit or implicit means, by implied threat or covert force," Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973), and when agents do not conduct themselves in a manner that would leave the person asked with a reasonable belief that he or she has no choice but to consent to entry.
Although there is no requirement that an agent advise an employer or employer's representative of the right to refuse consent to enter a workplace, consent is not valid when an agent expressly or impliedly suggests that an employer will face retaliation if he or she declines to consent.
When agents have no warrant, but [*4] intend to obtain consent upon arrival at the work site rather than ahead of time, if they arrive or conduct themselves in a manner that would deliberately provoke flight by workers, then such flight is not valid to justify entry. International Molders v. Nelson, supra, 799 F.2d at 554.
3. Valid Exigent Circumstances in Workplace Surveys
If flight by workers is deliberately provoked by agents in order to justify entries into workplace premises, such flight

1991 U.S. Dist. LEXIS 19726, *4

Page 2 of 2

does not constitute valid exigent circumstances. Id. Exigent unlawfully present in the United States by an INS Agent is

circumstances are not deliberately caused if, for example, one valid only when based on probable cause and when that

or more INS Agents wear a uniform (including a weapon), person "is likely to escape before a warrant can be

wear other clothing identifying them as INS Agents, or drive obtained [*6] for his arrest" as that phrase is used in Section

vehicles bearing indicia of the INS at reasonable speeds under 287(a)(2) of the Immigration and Nationality Act, 8 U.S.C. §

the circumstances.

1357(a)(2).

B. Valid Detentions During Workplace Surveys

D. Persons Detained

1. Absent a valid seizure or arrest warrant or valid exigent circumstances, agents may detain a person during a workplace survey for civil immigration purposes only if they possess reasonable, articulable, and individualized suspicion of (1) a person's illegal alienage, or (2) an alien's failure to carry immigration documents on his person [*5] that he is required to carry by law. Detentions of persons claiming possession of immigration documentation which is not in their immediate possession is valid so long as the detention "lasts only so long as is necessary to carry out its purpose and the investigative methods used [are] the least intrusive means readily available to confirm or dispel the officer's suspicion." Martinez v. Nygaard, 831 F.2d 822, 827 (9th Cir. 1987). The reasonableness of the detention is determined by considering "all the circumstances." Id. at 828.

A valid detention, arrest, or seizure of a person cannot be based solely on that person's ethnic characteristics. See United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
E. Use of Force
The valid use of force to effect a detention or arrest does not include the use of excessive or unnecessary force. The valid use of force means use of only such force as is reasonable "in light of the facts and circumstances confronting" the officer, "including the severity of the [offense], whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 109 S. Ct. 1865, 1872 (1989).

2. Agents at or near workplace entrances may validly question persons entering or leaving, see INS v. Delgado, 466 U.S. 210 (1984), so long as such agents do not prevent ingress or egress of persons unless the agents possess at least enough cause to justify a detention.

Dated: 12-11-91 EDWARD A. INFANTE United States Magistrate - Judge

C. Valid Arrests During Workplace Surveys

Dated: 12-11-91JAMES WARE

Absent a valid seizure or arrest warrant or valid exigent United States District Judge circumstances, a civil immigration arrest of an alien

 
 Case: 5:82-cv-1896 As of: 02/20/2013 04:01 PM PST 1 of 3
CLOSED,REFDIS
U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:82−cv−01896−JW

Intl. Molders' v. INS Assigned to: Hon. James Ware Demand: $0 Cause: 42:1983 Civil Rights (Employment Discrimination)
Plaintiff International Molders' and Allied Workers
Plaintiff Local Union No. 164, AFL−CIO
Plaintiff Meadows Mushroom FM, Inc.
Plaintiff Neve Roses, Inc.
Plaintiff Benecia Foundry and Iron Works
Plaintiff Petaluma Poultry Processors, INC.
Plaintiff Joseph Angel Chavez
Plaintiff Eugene Orsino
Plaintiff Jose Rodriguez
Plaintiff Lona Rogelio
Plaintiff Francisco Rivera
Plaintiff Raquel Zarazua Medrano
Plaintiff Evangelina Mendoza Avalos

Date Filed: 04/29/1982 Date Terminated: 12/11/1991 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant

V. Defendant Immigration and Naturalization Service

Case: 5:82-cv-1896 As of: 02/20/2013 04:01 PM PST 2 of 3
Defendant INS Dist. Director David N. Ilchert
Defendant Alan Nelson
Defendant INS Commissioner Doris Meissner
Defendant Edward O'Connor
Defendant Art Shanks
Defendant Robert Moschorak
Defendant Don Clegg
Defendant Carl J. Riedinger

Date Filed 01/19/1991 03/22/1991 05/03/1991 05/16/1991
06/10/1991
06/13/1991 07/19/1991 11/05/1991 11/05/1991 11/06/1991

# Docket Text
1 MINUTES: ( C/R Unreported) ; Status conference cont'd to 3/22/91 @ 10:30 a.m. further status (btf, COURT STAFF) (Entered: 02/11/1991)
609 MINUTES: ( C/R unreported) (3/22/91); re [608−2] ; Status conference off calendar reset to 5/3/91 at 10:30 a.m. (btf, COURT STAFF) (Entered: 03/27/1991)
610 MINUTES: ( C/R Unreported) ; Status conference off calendar reset to 6/7/91 at 10:30 a.m., before Judge Ware (btf, COURT STAFF) (Entered: 05/04/1991)
611 CLERK'S NOTICE ; Settlement conf (mag) before Mag. Infante on 6/7/91 at 1:30 p.m. by 5/31/91 the parties are directed to submit in camera settlement conference statements to Mag. Infante's Chambers. (btf, COURT STAFF) (Entered: 05/17/1991)
612 MINUTES: ( C/R none) ; (6/7/91) settlement conference held befor Mag. Infante; Settlement conf (mag) continued to 6/28/91 at 1:30 p.m. Lead cunsel shall notify the court by telephone within ten (10) days of the modifications to their respective settlement positions. (btf, COURT STAFF) (Entered: 06/14/1991)
613 CLERK'S NOTICE ; Settlement conf (mag) continued to 7/10/91 at 10:00 a.m. before Mag. Judge Infante (btf, COURT STAFF) (Entered: 06/17/1991)
614 MINUTES: ( C/R unreported) ; Status conference off calendar, case reporte settled dismissal forthcoming (btf, COURT STAFF) (Entered: 07/24/1991)
615 JOINT MOTION for preliminary approval of settlement agreement and for approval of notice to class of fairness hearing with Notice set for 11/6/91 (kk, COURT STAFF) (Entered: 11/08/1991)
616 Plaintiff's MEMORANDUM in support of motion for preliminary approval of settlement agreement and for approval of notice to class of fairness hearing [615−1] (kk, COURT STAFF) (Entered: 11/08/1991)
618 ORDER by Mag. Judge Edward A. Infante granting motion for preliminary approval of settlement agreement and for approval of notice to class of fairness

Case: 5:82-cv-1896 As of: 02/20/2013 04:01 PM PST 3 of 3

11/06/1991 11/07/1991 12/09/1991 12/11/1991
12/11/1991
12/11/1991 12/11/1991 12/11/1991 12/30/1991 01/31/1992 03/13/1992

hearing [615−1] ; Status conference re: determination of fairness, adequacy and reasonableness of settlement to be held 12/11/91 at 10am () (cc: all counsel) (kk, COURT STAFF) (Entered: 11/08/1991)
619 MINUTES: ( C/R Rosita Flores) ; Settlement conf (mag) set 12/11/91 at 10am (kk, COURT STAFF) (Entered: 11/13/1991)
617 DECLARATION by John M. True on behalf of plaintiff re motion for preliminary approval of settlement agreement and for approval of notice to class of fairness hearing [615−1] (kk, COURT STAFF) (Entered: 11/08/1991)
625 AFFIDAVIT of John M. True regarding motion for preliminary approval of settlement agreement and for approval of notice to class of fairness hearing [615−1] (kk, COURT STAFF) (Entered: 12/17/1991)
620 SETTLEMENT AGREEMENT AND ORDER by Judge James Ware and Magistrate Judge Infante; see document for details; defendants to reimburse plaintiffs their attorneys' fees of $409,000.00 and costs of $41,000.00( Date Entered: 12/17/91) (cc: all counsel) (kk, COURT STAFF) (Entered: 12/17/1991)
621 FINAL ORDER APPROVING SETTLEMENT AGREEMENT AND DECLARATORY JUDGMENT by Judge James Ware terminating case ; appeal filing ddl 2/18/92 ( Date Entered: 12/17/91) (cc: all counsel) (kk, COURT STAFF) Modified on 12/17/1991 (Entered: 12/17/1991)
622 DECLARATORY JUDGMENT: see document by Judge James Ware ( Date Entered: 12/17/91) (cc: all counsel) (kk, COURT STAFF) (Entered: 12/17/1991)
623 STIPULATION and ORDER by Judge James Ware :Defendants to pay attorneys' fees of $409,000 plus costs for $41,000.00 payable to Legal Aid Society of SF, Trustee (cc: all counsel) (kk, COURT STAFF) (Entered: 12/17/1991)
624 MINUTES: ( C/R Sue Herfurth)Hearing on final approval of settlement (kk, COURT STAFF) (Entered: 12/17/1991)
626 MAIL [621−1] returned from Post Office, undeliverable to Steven A. Brick and Barbara Moses (bfv, COURT STAFF) (Entered: 01/07/1992)
627 RECEIPT of satisfaction of Check No. 3007 79897537 dated 1/21/92 in the amount of $409,000.00 (bfv, COURT STAFF) (Entered: 02/06/1992)
628 RECEIPT and statisfaction by defendants (bfv, COURT STAFF) (Entered: 03/20/1992)

 
 643 F.Supp. 884 (1986)
INTERNATIONAL MOLDERS' AND ALLIED WORKERS' LOCAL UNION NO. 164, et al., Plaintiffs, v.
Alan NELSON, et al., Defendants.
No. C-82-1896 RPA.
United States District Court, N.D. California.
September 4, 1986.
88567 *885 *886 *887 Patrick Ramirez S. Bupara, Judith Whetstine, Asst. U.S. Attys., San Francisco, Cal., David Kline, Office of Immigration Litigation, Washington, D.C., for defendants.
Morris J. Baller, Susan E. Brown, Mexican American Legal Defense and Educational Fund, San Francisco, Cal., Bill Ong Hing, Golden Gate University, Immigration Law Clinic, Berkeley, Cal., Mort Cohn, Golden Gate University, Constitutional Law Clinic, San Francisco, Ca., William R. Tamayo, Asian Law Caucus, Inc., Oakland, Cal., Alan L. Schlosser, American Civil Liberties Union, Foundation of Northern California, San Francisco, Cal., Kip Steinberg, National Lawyers Guild, San Francisco, Cal., David Grabill, California Rural Legal Assistance, Santa Rosa, Cal., for plaintiffs.

SECOND AMENDED ORDER GRANTING PRELIMINARY INJUNCTION AND DENYING STAY

AGUILAR, District Judge.

This case arises out of approximately fifty workplace raids (also known as "factory surveys" and "area control operations") conducted by the Immigration and Naturalization Service (INS) and Border Patrol during the week of April 26, 1982. These raids took place in Northern California as part of a nationwide campaign known as "Project Jobs" or "Operation Jobs." Plaintiffs also describe numerous other workplace raids conducted after Operation Jobs.[1]

The named plaintiffs are several businesses that have been raided by the INS, individual workers who allegedly have been detained or seized in these same raids, and a labor union that represents some of these workers. The Court already has certified a plaintiff class consisting of

all persons of Hispanic or other Latin American ancestry, residing or working within the jurisdiction

of the San Francisco District Office of the United States Immigration and Naturalization Service

(INS) and/or the Livermore Border Patrol Sector, who have in the past, are now, or may in the

future be subjected to the policies, practices, and conduct of INS and/or the Border Patrol during

888

the course of INS area control operations *888 directed at places of employment other than open

fields.

See International Molders' & Allied Workers' Local Union v. Nelson, 102 F.R.D. 457 (N.D.Cal.1983). The defendants are various commissioners, directors, and agents of the INS and Border Patrol.

Plaintiffs contend that defendants' raids, in which INS and Border Patrol agents arrive at a workplace, position themselves at exits, and enter in force to question workers about their citizenship status, violate plaintiffs' constitutional rights. Plaintiffs claim that these raids are often conducted without a warrant, with an improper warrant, with the coerced consent" of the employer, or after the agents themselves deliberately provoke exigent circumstances to justify their entry. Once inside, agents indiscriminately question employees of hispanic appearance, whether or not the agents have any reasonable, articulable suspicion of alienage. Those workers

who cannot immediately prove their lawful status to the satisfaction of one or more agents are detained or arrested. Other workers are seized and abused even before agents have asked them any questions about their citizenship status. United States citizens and lawful aliens are unlawfully detained, interrogated, harrassed, and assaulted solely because of their appearance or language. Finally, it is primarily Hispanic workers who are so treated; Asian and Caucasion aliens do not suffer the same indignities. Plaintiffs have offered deposition and affidavit testimony describing nearly thirty raids at the premises of twenty-four employers. Defendants have offered rebuttal testimony.
The questions raised by the present motion for preliminary injunction concern 1) the manner in which defendants gain entry into the non-public areas of private business premises, and 2) once on the premises, the manner in which defendants conduct the raids. More specifically, the five central issues[2] are whether the defendants routinely:
1. use general, open-ended "warrants of inspection" that violate the fourth amendment;
2. coerce employer "consent" in order to circumvent the warrant requirement;
3. deliberately create, in bad faith, "exigent circumstances" in order to circumvent the warrant requirement;
4. detain and seize workers without reasonable, articulable suspicion of illegal alienage in violation of the fourth amendment;
5. single out Hispanic workers for interrogation and detention, violating these workers' right to equal protection.
To obtain a preliminary injunction, plaintiffs must either establish a likelihood of success on the merits, or present serious questions and show that the balance of hardships tips sharply in their favor. In either formulation of this "sliding scale" Ninth Circuit test, plaintiffs must demonstrate a "significant threat" of irreparable harm absent the issuance of the injunction. Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985). It bears repeating that on a motion for preliminary injunction this Court is not required to make any binding findings of fact, but need only find probabilities that the necessary facts can be proved. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1423 (9th Cir.1984).
The Court has painstakingly reviewed approximately two thousand pages of evidentiary material comprising 49 deposition transcripts and 64 affidavits of 74 different witnesses. The Court has endeavored to identify the uncontradicted, corroborated, or particularly credible testimony, and that testimony which is vigorously contested, equivocal, or less credible. The Court concludes that, although certain evidence relating to several of the alleged 889 incidents is *889 inconclusive, there is sufficient evidence of several INS policies and practices that result in recurrent constitutional violations to merit a preliminary injunction.
STANDING
As a preliminary matter, defendants argue that the plaintiff class has no standing to object to the entry of third parties onto business premises where the class members are employed; only the owner or manager of the business may so object. Defendants further suggest that because the plaintiff businesses are not class members, and because they cannot vicariously assert the constitutional rights of others, they are not entitled to relief on this motion.
It is true that employers and employees cannot vicariously assert each others' fourth amendment rights. See, e.g., Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 965-66, 22 L.Ed.2d 176 (1969); United States v. Nadler, 698 F.2d 995, 998 (9th Cir.1983). Also, it is uncertain to what degree workers can have any subjective expectation of privacy in the workplace. INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1767, 80 L.Ed.2d 247 (1984) (Powell, J., conc.).
Yet plaintiffs do not suggest that the business plaintiffs and the class plaintiffs are vicariously asserting each other's rights. Rather, the corporate entities have their own rights to assert based on the alleged warrantless entries, improper warrants, coerced consent, or fabricated exigent circumstances involving their properties. E.g.,

Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1216 n. 5 (D.C.Cir. 1981). Although the businesses are not class members, they are nonetheless parties and may seek injunctive relief on their own behalf. Cf. Zepeda v. INS, 753 F.2d 719 (9th Cir.1985).
The individual worker plaintiffs, as the objects of the searches, interrogations, detentions, and seizures, independently meet the traditional Article III standing requirements. They clearly have a "personal stake" in the litigation, owing to their alleged injuries caused by the purported illegal conduct of the defendants, which injuries are likely to be redressed if this Court rules in their favor. See LaDuke v. Nelson, 762 F.2d 1318, 1322-23 (9th Cir.1985). Even if the Court treats the workplace as a public area in which workers have no reasonable expectation of privacy, workers are still entitled to assert their fourth amendment rights against unreasonable searches, detentions, and seizures of their persons, and their fifth amendment rights to equal protection.
All plaintiffs have standing.
INS ENTRIES INTO WORKPLACES
Defendants attempt to justify most of their workplace entries on at least one of three grounds: "warrants of inspection", authorizing entry into the non-public areas of particular premises; "consent" to enter the premises given by an owner or manager; and "exigent circumstances" that require warrantless, non-consenual entry in order to pursue and apprehend fleeing suspects.
Warrants of Inspection
It appears that during Operation Jobs warrants were obtained for eight of the approximately fifty raids. Subsequent to Operations Jobs, warrants were used even less frequently. After this case was filed and the Ninth Circuit decided ILGWU v. Sureck, 681 F.2d 624 (9th Cir.1982), rev'd sub. nom. INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), defendants began to utilize warrants more frequently, and now use them for many, but not all, workplace raids.
The warrants, labeled "warrants of inspection," typically name one or more individuals thought to be illegal aliens who are working at a specified location, but then go on to allow the INS to seek and seize unspecified and unlimited "others" on the premises who may also be illegal aliens. Although a warrant may list from four to thirteen suspected illegal aliens, as many as seventy people may be arrested, and few or none of these will be 890 the people named *890 in the warrant. In the eight warrant-based raids described in this motion, 192 individuals were arrested. Of these, 179 were "others" not identified in the warrants. Of the 51 persons named in the various warrants, only 13 were found on the premises.
The typical INS warrant of inspection reads in pertinent part:
I am satisfied that there is reasonable cause to believe that [several named persons] and others are illegally in the United States and are subject to deportation from the United States, and are located on the above-described premises during normal working hours.
WHEREFORE, YOU ARE HEREBY COMMANDED:
To search within a period of ten (10) days the place named above for the persons specified, and others suspected of being illegal aliens ... and if such persons are found there to seize them....
(emphasis added). INS officers present the magistrate with supporting affidavits as to the named suspects, but the use of "others" is rote language; these "others" usually are not identified or even known with any certainty to exist. The warrants say nothing about how the searches may be carried out, other than permissible hours of entry, or how INS agents are to determine which persons are to be interrogated or seized as suspected "others". The warrants neither direct nor limit agents to the portions of the premises where the named suspects are likely to be found.

Defendants admit that they use the warrants to gain entry into workplaces for generalized searches for illegal aliens. Indeed, the evidence indicates that in many raids the INS agents make no particular effort to apprehend the suspects named in the warrants, but rather base their decisions as to which workers to question, detain, or seize solely on information or observation gained after they have entered.
Plaintiffs argue that these are "general warrants" that fail to describe with the requisite particularity the persons to be seized. They authorize searches and arrests without probable cause having been found by a neutral magistrate for each individual, resulting in precisely the kind of discretionary, open-ended "fishing expeditions" that the fourth amendment was designed to prevent. Plaintiffs suggest that defendants use these warrants as a pretext to avoid the stricter requirements of traditional warrants.
Blackie's House of Beef
Few courts have addressed INS' use of these "warrants of inspection." The Ninth Circuit did not reach the issue of the validity of similar warrants in International Ladies' Garment Workers' v. Sureck, 681 F.2d 624, 629 & n. 8 (9th Cir.1982), so the Supreme Court had no occasion to address the problem when it reversed Sureck in INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1760, 80 L.Ed.2d 247 (1984). Defendants rely on the only circuit case on point, Blackie's House of Beef v. Castillo, 659 F.2d 1211 (D.C.Cir.1981), cert. den. 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982).
In Blackie's, the District of Columbia Circuit found a similar INS warrant valid. Although the court noted that "the applicability of the Warrant Clause of the fourth amendment to INS enforcement activities can no longer be doubted," id. at 1217 (citing Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973)), it held that the traditional probable cause standard for criminal searches and seizures did not apply. The court reasoned that 1) INS investigations are civil in nature, 2) Congress contemplated a vigorous INS enforcement program, and 3) without broad search powers the INS would find it difficult to apprehend large numbers of aliens. Id. at 1218-25. The Blackie's court analogized the INS raids to administrative inspections, requiring only an assessment of the "reasonableness vel non" of a particular warrant. Id. at 1223. The court found that the warrant at issue was sufficiently narrow and its supporting affidavits sufficiently particular to meet a reasonableness test.
891 One other court has adopted the Blackie's analysis to uphold a similar warrant. *891 In Kotler Industries v. INS, 586 F.Supp. 72 (N.D.Ill.1984), the court noted:
Assuming arguendo that INS was authorized to search for the listed suspects only, INS agents still would have had to completely search the factories as well as to question every employee who might be listed as a suspected illegal alien. And the discovery of unnamed aliens during the course of the search would in no way be tainted. Factory owners' rights are not violated by the failure of INS to limit its searches to the list of suspects appended to the warrants.
Id. at 76.
Plaintiffs correctly point out that an INS raid logically cannot be analogized to an administrative inspection, the sole purpose of which is to inspect premises rather than to search for or arrest persons.[3] Administrative inspections are conducted pursuant to legislative schemes that authorize and strictly regulate such inspections, and are part of systematic programs to monitor industries or working conditions traditionally subject to close government scrutiny (e.g. OSHA, food and drugs, alcohol, firearms). See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Congress has not legislated any such administrative enforcement scheme for aliens, and INS workplace raids are not strictly regulated.
At least two courts agree. In Illinois Migrant Council v. Pilliod, 531 F.Supp. 1011 (N.D.Ill.1982), the court opined that, assuming arguendo that the Blackie's panel correctly decided that INS may utilize an administrative warrant to enter and search a commercial building, "such a warrant does not authorize the search or seizure of persons

found on the premises." The court reasoned that the Supreme Court has never held that an individual may be searched or seized on anything less than reasonable suspicion that he is engaged in criminal activity. Id. at 1020-21. In United States v. Karathanos, 399 F.Supp. 185, 188 (E.D. N.Y.1975), the court rejected "any analogy" between administrative searches per Camera and INS power under 8 U.S.C. § 1357.[4]Cf. Mendoza v. INS, 559 F.Supp. 842, 847 (W.D.Tex.1982) (warrantless dragnet searches and seizures in commercial establishments violated the fourth amendment).
It cannot be denied that the Blackie's analysis is a radical departure from established fourth amendment doctrine. The Supreme Court recently has affirmed that an individual may not be searched or seized on anything less than reasonable suspicion that he is engaged in criminal activity. E.g., United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). No court has held that a criminal warrant can be based on anything less than probable cause, and at least since the Supreme Court decided Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), a warrant authorizing the search of premises and specified individuals is not an adequate basis to search all the individuals 892 on those premises. Id. at 90-92, 100 S.Ct. at 341-343; see Lo-Ji Sales, Inc. v. New York, 442 U.S. *892 319, 326-27, 99 S.Ct. 2319, 2324-25, 60 L.Ed.2d 920 ("Fourth Amendment does not countenance open-ended warrants, to be completed while a search is being conducted and items seized"); VonderAHE v. Howland, 508 F.2d 364, 368-69 (9th Cir. 1974) (warrant is defective if it is broader than can be justified by the probable cause upon which it is based).
The Blackie's court in part based its rejection of traditional probable cause analysis on the supposed noncriminal, "administrative" character of workplace raids. The Ninth Circuit, however, has made it abundantly clear that INS enforcement activities are to be scrutinized under traditional fourth amendment doctrine. In Zepeda v. INS, 753 F.2d 719 (9th Cir.1985), the court indicated that the power of INS agents to question and seize suspected aliens under 8 U.S.C. § 1357[5] is co-extensive with such power under the fourth amendment. Id. at 726 (citing Babula v. INS, 665 F.2d 293, 295 (3d Cir.1981)). In LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985), the court reaffirmed that in the "nonborder context the Fourth Amendment requires at least articulable suspicion of both alienage and unlawful presence for a detentive stop." Id. at 1331; see Benitez-Mendez v. INS, 760 F.2d 907, 908-09 (9th Cir.1985). Nondetentive interrogations are permissible on reasonable belief of alienage. LaDuke, supra, 762 F.2d at 1331. A warrantless arrest, on the other hand, requires probable cause for belief of illegal alienage. Tejeda-Mata v. INS, 626 F.2d 721, 724-25 (9th Cir.1980). In sum, INS agents may question a worker on suspicion of mere alienage, may detain him on articulable suspicion of illegal alienage, and may make an arrest if there is probable cause to believe that the person is an illegal alien. These cases give no indication that the "warrants of inspection" challenged here merit anything less than the usual probable cause inquiry. Indeed, it would be anomolous to adhere to a probable cause analysis for a warrantless INS arrest, yet discard that analysis when a warrant is at issue.
The Blackie's court also relied on Congress' contemplation of a vigorous INS enforcement program. Yet, as the Supreme Court has often repeated, "no Act of Congress can authorize a violation of the Constitution." AlmeidaSanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). As for the INS' supposed difficulty in apprehending large numbers of illegal aliens, "the INS cannot reasonably assert that it is harmed in any legally cognizable sense by being enjoined from constitutional violations." Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1985).
In light of this history, the defendants bear the laboring oar to demonstrate why the general, open-ended warrants here are not per se violative of the fourth amendment.
Alternate Theories
Defendants argue that courts uphold criminal warrants that provide for searches of "other" things. For example, in United States v. Hillyard, 677 F.2d 1336 (9th Cir.1982), the Ninth Circuit held that
[w]hen there is probable cause to believe that premises to be searched contains a class of generic items or goods, a portion of which may be stolen or contraband, a search may direct inspection of

the entire class of all of the goods if there are objective, articulated standards for the executing officers to distinguish between property illegally possessed and that which is not.
Id. at 1340. See United States v. Pollock, 726 F.2d 1456, 1465-66 (9th Cir.1984). Defendants argue that the "generic contraband" in this case is illegal aliens, whom the INS may arrest upon probable cause even if they are unnamed in the warrant.
Defendants do not adequately explain how people can be equated with items of contraband; people enjoy fourth amendment rights, whereas objects do not. Accepting arguendo that illegal aliens should be treated like generic 893 contraband that can be properly seized under a general warrant, *893 the argument fails on these facts. Unlike the Hillyard case, in which the inspections were not intrusive and the warrant left nothing to the discretion of the agents, the agents in the present case were conducting disruptive dragnet operations with virtually unfettered discretion. Analogous facts are found in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979), in which the Supreme Court held invalid a general warrant and the resulting search and seizure:
Based on the conclusory statement of the police investigator that other similarly obscene materials would be found at the store, the warrant left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure. The Fourth Amendment does not permit such action. Nor does the Fourth Amendment countenance openended warrants, to be completed while a search is being conducted and items seized or after the seizure has been carried out.
Id. at 325, 99 S.Ct. at 2324. Moreover, there is evidence that a number of the suspected illegal aliens who were detained or seized were in fact either United States Citizens or were otherwise lawfully present. It is patently unreasonable to subject citizens or lawful residents to routine violations of their fourth amendment rights, simply because they happen to work among illegal alien contraband. For these reasons, defendants' attempt to reduce suspected illegal aliens to the status of inanimate objects, even if accepted by this Court, is unavailing.
An alternative analysis implicit in the defendants' argument is based on the plain view doctrine: while searching for the specific illegal aliens named in the warrant, any other illegal alien whom defendants come across in plain view should also be subject to arrest. There are two problems with this proposition.
First, assuming once again that objects and people are interchangeable, defendants would have to meet the following Ninth Circuit standard for plain view seizures:
In the course of a legal search, officers may make a warrantless seizure of objects inadvertently found in plain view, if it is `immediately apparent to the police that they have evidence before them....' [A]n officer may inspect an item found in plain view to determine whether it is evidence of a crime if he has a `reasonable suspicion' to believe that the discovered item is evidence.
United States v. Hillyard, 677 F.2d 1336, 1341-42 (1982) (emphasis added). It is clear on this record that the INS agents do not "inadvertently" run across other illegal aliens during these workplace raids; they systematically search them out, and in fact often seem to disregard the names on their warrants altogether. Moreover, as discussed infra there is a serious question whether INS agents always have a reasonable, articulable suspicion of illegal alienage before detaining workers.
Second, defendants may be suggesting that they are entitled to search for and detain anyone present at the workplace as part of their execution of the warrant. The Supreme Court addressed an analogous situation in Ybarra v. Illinois, 444 U.S. 85, 90-96, 100 S.Ct. 338, 341-345. In Ybarra, the police had a warrant to search a tavern and arrest the bartender on drug charges. Upon entering the pub, the officers conducted a pat down search of each patron. The search of patron Ybarra uncovered some packets of heroin. The Supreme Court reiterated that "general" or "open ended" warrants are "constitutionally prohibited," and noted that "a warrant to search a place cannot normally be construed to authorize a search of each individual in that place." Id. at 92 n. 4, 100 S.Ct. at 342 n. 4. The Court held that, although the police were entitled to search the premises and the bartender for evidence of drugs, they had "no authority whatsoever to invade the constitutional protections possessed individually by the tavern's customers." Id. at 92, 100 S.Ct. at 342.

894 The Ybarra Court considered the argument that the important governmental interest *894 in controlling drug trafficking superceded constitutional protections:
we are asked to construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on "compact" premises subject to a search warrant, at least where the police have a "reasonable belief" that such persons "are connected with" drug trafficking and "may be concealing or carrying away the contraband.
Id. at 94, 100 S.Ct. at 344. The Court rejected this contention, and reaffirmed that the "long-prevailing" standard of probable cause is the vehicle by which courts must balance the needs of law enforcement and the rights of citizens. Id. at 95-96, 100 S.Ct. at 344-345.
Although the present case differs in several respects from Ybarra, defendants here similarly are using openended warrants as the basis for searching for and seizing persons not named in the warrant, and are asking this court to approve the practice due to the strong governmental interest in enforcing the immigration laws. To do so would eviscerate the fourth amendment and disregard compelling Supreme Court and Ninth Circuit authority.
In conclusion, The Court finds that defendants routinely use open-ended "warrants of inspection" as a means of gaining entry into workplaces for dragnet-style questioning and seizures of large numbers of workers at a particular site. The Court finds as a matter of law that to the extent the defendants rely on these warrants to search for and arrest unidentified and unknown "others", these warrants violate the fourth amendment and are invalid.[6]
Proper Execution of Warrants
Merely ruling that these warrants are invalid as to unspecified "others" does not resolve the question of how defendants should execute the warrants as to those individuals who are named or identified in the warrant. As the court noted in Kotler Industries v. INS, supra, INS agents might well have to search the entire workplace and question numerous people before finding the suspects named in the warrant. It would seem inevitable that during this search and questioning process agents will find other suspected illegal aliens. Indeed, defendants argue that no previously unidentified suspect is ever arrested merely because of the warrant; probable cause is always obtained independently for each individual arrested. The question therefore arises whether, as a practical matter, defendants can be precluded from systematically searching out all potential suspects at a workplace.
In INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), the Supreme Court was faced with three workplace raids, two of which were conducted pursuant to warrants. These warrants were issued on a showing of probable cause that numerous illegal aliens were employed at the premises, but they did not identify by name any of the particular suspects. The Court did not address the validity of the warrants.
In Delgado, the Court found that the INS agents had moved systematically through the factory asking selected employees up to three questions relating to their citizenship. During the raid, employees continued with their work and were free to walk around within the factory. Although agents guarded the exits, no one was prevented from leaving after the same brief questioning, and some workers who left were not questioned at all. The Court thus found that the questioning of each worker was "nothing more than a brief encounter." Id., 104 S.Ct. at 1764. While the questioning may have caused some disruption, in general the workers went about their work 895 unhindered. Id. passim. Consequently, the Court concluded that workers "who simply went about their business *895 were not detained in any way; nothing more occurred than that a question was put to them." Id. at 1765. These were "classic consensual encounters" that did not offend the fourth amendment. Id. The Court reiterated that 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," mere questioning does not evolve into a detention. Id. at 1763.
Delgado stands for the proposition that once agents are lawfully present at a workplace pursuant to a valid warrant or consent, they may conduct a sweep similar to that described in Delgado without running afoul of the

fourth amendment. The question that the Delgado Court did not have to address, but that is squarely presented here, is whether an open-ended warrant naming "others" is a valid warrant entitling agents to make such a sweep.
This Court is not prepared to break with long-standing fourth amendment jurisprudence and condone a deliberate law enforcement policy of securing non-specific, open-ended warrants for the express purpose of conducting dragnet searches and seizures. Nor can this Court read the limited analysis in Delgado as an endorsement of such a policy and practice. At the same time, defendants must not be unduly hampered in executing warrants on those individuals identified or particularly described in the warrants. The reasonableness inquiry and the balancing of interests that underlie much fourth amendment analysis must be brought to bear to put limits on defendants' hitherto unfettered discretion, without eviscerating INS enforcement efforts.
An obvious solution was overlooked by the Kotler court. It is reasonable to require that the agents, upon their arrival at a workplace to serve a warrant identifying only a small number of individuals, first ask the owner or manager to immediately produce those individuals named or identified in the warrant. The agents can still position themselves at exits and question or detain any workers attempting to flee. If the owner or manager is unwilling or unable to produce the suspects, it then becomes reasonable for the agents to enter and conduct a sweep. Even this sweep, however, must be directed at finding the named suspects as quickly as possible rather than questioning all workers. Any questioning that does transpire must resemble the brief, "consensual encounters" described in Delgado.
Such an approach to the execution of warrants will allow defendants to seize those suspects for whom they have probable cause to believe are in the country illegally. Yet it will also protect untold numbers of workers from violations of their fourth amendment rights. This is an appropriate and necessary accommodation of conflicting interests in this difficult area of immigration enforcement.
Consent
Defendants claim that several of their raids were based on consent. A warrantless search conducted pursuant to a valid consent is constitutionally permissible. In Schneckloth v. Bustamente, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Supreme Court ruled: "Whether a consent to a search was in fact `voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Id. at 227, 93 S.Ct. at 2047. Subtle coercion, implied threat, or covert force will render invalid a purported consent. Id. at 228, 93 S.Ct. at 2048. See United States v. Sanchez, 635 F.2d 47, 58-59 (2d Cir.1980). The prosecution has the burden to prove a valid consent. Bustamente, supra, 412 U.S. at 222, 93 S.Ct. at 2045.
The evidence shows that on at least one occasion INS agents obtained consent in advance for a search.[7] In 896 April, 1983, INS *896 contacted the Levi-Strauss plant in San Jose. INS requested, obtained, and reviewed
employment records, formulated a list of suspected undocumented workers based on those records, and then came at a pre-arranged time to the premises. Management brought the suspects to INS agents in company offices away from the production area, for identification interviews and detention. Work was not disrupted, the operation was orderly, and undocumented workers of a number of nationalities were arrested. INS agents and company officials cooperated fully. This would appear to be the optimal way for the INS to undertake workplace surveys.
The record shows that it is more typical, however, for INS agents to arrive unannounced at premises that they have selected for a raid, and request permission to conduct the raid immediately. Although only the agent in charge makes the request, the other agents who are to participate in the raid are already in position, often guarding each exit. At some raids there are twenty or more agents who are visible to both management and workers. Thus, when consent is requested, it is usually clear that INS has both the intent and the ability to carry out the operation immediately. Plaintiffs' testimony describes the following alleged incidents.
At an April 1984 raid on Shamrock Technology, INS agents arrived at 5 p.m. and demanded consent from an office manager, the ranking company official present. Frightened, she telephoned her superior at home. The INS

agent in charge allegedly told this second manager that if consent was not given for an immediate search, INS would return and "close the shop." Feeling that he had no choice, the manager gave the INS consent to search.
At another raid, numerous INS agents went to the premises of Steak Mate without a warrant, allegedly intending to seek consent for entry. In their answer to interrogatories the defendants asserted that the Steak Mate survey was based on a consent entry. Yet there is no evidence that either manager on the premises gave consent, and one of the managers, Berry, testified that consent was neither requested nor given. Instead, the evidence suggests that INS vehicles and agents first entered at high speed onto the production areas of the premises, across the highway from the location of the office where the agents knew the managers were likely to be found. At that point the agents asserted a right to enter in order to chase suspects who were by that time fleeing.
In another instance, an INS agent entered a 7-11 store in San Jose on May 23, 1983, and asked the manager for consent to search non-public areas. When the manager, a naturalized citizen, refused and asked for a warrant, the agent allegedly told her that her citizenship would be revoked and her store closed down. The agent then accompanied her to a back room.
Having considered plaintiffs' evidence, and the defense testimony contra, the Court finds that plaintiffs have met their burden of raising a serious question as to the validity of the consents obtained by the INS for its workplace raids. It is evident that the agents at times make an abrupt and intimidating appearance, often in force, and do not inform the employers of their right not to consent. There is evidence of threats of retaliation, and it is clear that at least some employers believe they have little choice but to consent. The INS is well aware of alternative means of obtaining consent, and the means for obtaining a warrant. Finally, it is apparent that the agents expect workers to flee upon their arrival. Viewed in their totality, the circumstances of these raids support plaintiffs' contention that defendants often intend to either coerce consent, or rely on exigent circumstances before such consent is obtained, to avoid the inconvenience of obtaining a warrant.
Exigent Circumstances
Defendants contend that "exigent circumstances" justify many of their warrantless, unconsented-to entries. 897 Specifically, *897 defendants assert that when persons present on the premises run at the sight of INS agents,
immediate entry is justified.
Exigent circumstances, such as the pursuit of a fleeing suspect, provide a legitimate exception to the rule requiring warrants for non-consensual entries. E.g. United States v. Blake, 632 F.2d 731, 733 (9th Cir.1980). Such entries and the circumstances on which they are based are normally permitted, however, only when unforeseeable events or emergencies require swift entry. Id. at 734. According to the Ninth Circuit,
When police officers, acting on probable cause and in good faith, reasonably believe from the totality of the circumstances that (a) evidence of contraband will imminently be destroyed ... exigent circumstances justify a warrantless entry, search or seizure of the premises.
United States v. Kunkler, 679 F.2d 187, 191 (9th Cir.1982) (emphasis added). Good faith "means not acting with the intent improperly to circumvent the warrant requirement by purposefully precipitating a situation, `through illegal conduct', in which the destruction of evidence or contraband is likely." Id. at 191 n. 3. See United States v. Garcia, 516 F.2d 318, 320 (9th Cir.1975). If fear that a suspect will escape is "created by the law enforcement officers, it will not support a warrantless search." United States v. Calhoun, 542 F.2d 1094, 1102-03 (9th Cir.1976), cert. denied 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d 781 (1977).
In the instant case, the workplace entries based on exigent circumstances are typically preceded by the arrival of large groups of INS agents in several vehicles immediately outside the premises. It appears that there are often as many agents and vehicles present at these raids as at the warrant-based raids. The arrival of the agents usually becomes quickly known throughout the workplace. The evidence indicates that INS agents are well aware that when they and their vehicles appear at workplaces, at least some individuals are likely to run or hide. The evidence further suggests that INS agents expect more turmoil, fear, and flight when their arrival is unexpected, sudden, and en masse. Plaintiffs' testimony describes the following alleged incidents.

In an April 1982 raid at Neve Roses, twelve INS agents in six vehicles drove at high speeds into a driveway, which they blocked. Although defendants claim they entered the premises from the adjacent roadway only after they happened to observe fleeing workers, almost all work at Neve is performed inside greenhouses and closed rooms in which workers are not visible from outside the premises. An August raid at the same location transpired in a virtually identical manner.
In a 1982 raid at Petaluma Mushroom, eleven INS agents in several vehicles entered at high speed, again after allegedly observing fleeing workers. Petaluma's manager states, however, that before the raid began there were no workers outside the closed rooms in which the mushrooms are cultivated and processed. INS raided again in August, using four agents and two cars. One of these agents had participated in the April raid.
The evidence suggests that INS agents expected to enter Neve Roses and Petaluma Mushroom, yet defendants have not adequately explained how they intended to gain entry. The record establishes that Neve and Petaluma had been raided many times over several years, that defendants had tips about the presence of illegal aliens on the property, and that warrants were not obtained. Plaintiffs have raised a serious question as to defendants' intent to enter those premises based on the "exigent circumstances" deliberately provoked by the manner of their arrival.
Defendants also use exigent circumstances as an alternative justification for their April 26, 1982 entry onto the Steak Mate premises. After the raid was in progress agents told a manager that they had intended to seek consent but no longer needed it since workers had begun to flee. Eight INS vehicles had entered the premises on 898 private driveways, ostensibly in pursuit *898 of running workers. The manager denies that any workers were running at the time INS entered. Again, the manner of the entry supports plaintiffs' contention that the agents intended to provoke the "exigent circumstances" that would justify their entry.
The court agrees with defendants that without speed and decisive tactics fleeing suspects will get away, and that most of those fleeing are illegal aliens hoping to escape arrest and deportation. This argument might carry the day if there were evidence that defendants first endeavored to secure warrants or consent before entering the premises. On this record, however, even if the Court could find that agents do not consciously intend to provoke flight, their awareness of the effect of their methods precludes a finding of good faith.
First, if defendants have the time and information to secure a warrant, they cannot rely on exigent circumstances. "[A]lthough the fact that adequate time to obtain a warrant exists will not in every case foreclose resort to exigent circumstances ... the availability of such time requires a stronger showing" of exigency. United States v. Blake, 632 F.2d 731, 734 (9th Cir.1980). In many of these raids INS claims it had tips or other information that led it to believe illegal aliens would be present. Yet there is no evidence that the agents attempted to secure warrants, or prior consent. Indeed, during the week of Operation Jobs, raid teams completed about ten raids per day, yet were dispatched each morning with only one or two warrants. Agents took along information about other suspicious employers in the same area as those for whom warrants had been obtained, intending to carry out additional raids as time permitted. The clear implication is that the agents intended to rely on exigent circumstances.
Second, even if the exigent circumstances were genuine and the agents were acting in good faith at the outset of each raid, defendants did not limit their searches and arrests to fleeing suspects; rather, they used the opportunity to question entire workforces, including those workers who did not flee or give any other indication that they were illegal aliens. "A warrantless search must be strictly circumscribed by the exigencies that justify its initiation...." Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978).
Plaintiffs have met their burden of raising a serious question as to defendants' bad-faith provocation of "exigent circumstances" to circumvent the warrant requirement and accomplish dragnet-style searches and seizures.
Entries With No Evident Justification
It appears that in at least two instances defendants made entries without benefit of warrants, consent, or exigent circumstances.

In October 1982 at Mammoth Lakes Lodge, Border Patrol agents entered the employer-provided sleeping cabins of several workers. The entries were late at night. The agents had no warrant, and they did not attempt to get the consent of the owner, plaintiff Armstrong, who was in bed watching television. Nobody was fleeing; in fact, most of the residents were asleep. In July 1983, Border Patrol agents entered two workers' housing quarters in the Hughson area. Again, the agents had no warrant, no consent, and no exigent circumstances.
These entries fall squarely within the holding of LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985) (warrantless searches of farm housing proscribed by fourth amendment), and appear to be illegal.
INS INTERROGATIONS, DETENTIONS, AND SEIZURES
It remains to consider whether, once INS agents are on the premises, they engage in non-detentive sweeps such as those described in Delgado, or routinely seize workers in violation of the fourth amendment. As noted supra, the INS may question a worker on suspicion of mere alienage, may detain a worker on articulable suspicion of 899 illegal alienage, and may *899 make an arrest if there is probable cause to believe that the person is an illegal alien.
The most instructive Ninth Circuit case for purposes of this motion is Benitez-Mendez v. INS, 760 F.2d 907 (9th Cir.1985) (as amended), in which the court reiterated its seizure test:
[A] person has been `seized' ... only if, in view of all the circumstances surrounding the incident, a reasonable 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 weapons by an officer, some physical touching of the person 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 908-09.
In Benitez-Mendez, a field worker did not run when three marked Border Patrol vehicles approached his workplace, and upon questioning he told the agents that his immigration documents were in his car. Agents placed him in a Border Patrol van while they examined his papers. Although the court found that the initial questioning did not constitute a seizure, placing him in the van did. "Once petitioner was placed inside the vehicle and told to wait, it is clear that he reasonably `would have believed that he was not free to leave.'" Id. at 909.
The seizure was illegal, as the Border Patrol officer
was not able to articulate objective facts providing a reasonable suspicion that Benitez-Mendez was an alien illegally in this country. The objective facts known to the officers at the time of petitioner's detention were that petitioner was a field worker whose co-workers had fled upon sight of a marked Border Patrol detail, that he was an alien, and that he claimed to possess documents showing his legal status.
Id. Significantly, the court held that
Petitioner had not yet violated 8 U.S.C. § 1304(e), requiring an alien to "at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him...." Since petitioner stated that his papers were in his car, parked adjacent to the field, the officers should have afforded him the opportunity to produce the papers. Under the circumstances the papers were constructively in petitioner's personal possession. It was reasonable for petitioner to leave the papers in his car while he engaged in heavy agricultural labor. Only if the petitioner refused to produce the papers, or was unable to produce the valid papers, would he have committed a misdemeanor under § 1304(e), giving the INS officers probable cause to arrest him.
Id. at 909 n. 2.

A review of the record in this case in light of Benitez-Mendez and other pertinent authority suggests that while many INS agents conduct themselves in a professional manner during raids, it is not infrequent that others violate the fourth amendment rights of workers. There is considerable evidence, much of which is disputed by defendants, that INS agents often question suspects in a detentive manner and even effect seizures of workers during raids before any questioning to establish articulable suspicion of illegal alienage. The record also suggests that agents often are not inclined to allow suspects to produce documentation. A few of these alleged incidents are described here.
At Pacific Mushroom Farm on April 28, 1982, Rita Brambilla de Silva, Luisa Juarez-Esquivel, Evangelina Mendoza-Avalos, and Santos Gil Robles were seated in a mushroom shed taking a coffee break when approximately six agents entered and yelled in Spanish, "Don't move; you're under arrest; we're from immigration." Agents then proceeded to direct workers into two groups for questioning: those who had "papers" and those who did not.
900 Workers from Pacific Mushroom who were seized were taken handcuffed to vans *900 and then loaded onto a bus that took them to a nearby beach for questioning. When one worker, Ramon Estrada, declined to answer agents' questions, agents allegedly hauled him off the bus, gave him a full body search, twisted his arm behind his back, grabbed his hair, and slammed him against an INS vehicle. The other workers witnessed this and were allegedly told that the same thing would happen to them if they refused to answer questions.
One Pacific Mushroom worker, Antonio Garcia Diaz, told agents he had papers and in fact produced those papers. He was nevertheless forced into a van and then a bus. When Garcia declined to answer questions or sign papers before talking with his lawyer, he was forcibly removed from the bus and had his arm twisted behind his back. He feared that one agent was going to strike him until another intervened.
At Modern Mode, two workers, Javier Lascon-Cerda and Marcos Gutierrez-Arceo, were seized as they merely walked to the restroom at different times during the raid. Lascon-Cerda was grabbed, told to "get the hell over here," pushed to his knees, and handcuffed absent any suspicious activity or questioning. Gutierrez-Arceo was likewise seized without any questioning as he walked slowly to the mens' room. He was handcuffed, told to kneel, and then taken outside.
Defendants entered Petaluma Mushroom on April 26, 1982, blocked entrances to mushroom growing rooms where the pickers were working, handcuffed the workers inside, and lined them up outside against a wall to frisk them. No questions were asked, no papers were requested, and the workers were not permitted to volunteer information about their immigration status.
At Mammoth Lakes Lodge defendants seized plaintiff Antonio Sanchez-Vaca as he slept at night in his employersupplied cabin. Agents awakened him by flashing a light in his face after entering the cabin without consent or warrant. Sanchez-Vaca was told to get up and only then was he asked if he had papers. Two other INS agents were stationed outside the door of the cabin.
At Neve Roses on April 26, 1982, approximately 12 agents and six vehicles entered the property rapidly and without warrant or consent. One worker who remained unaware of INS presence as he cut glass on the ground was grabbed and had his arm twisted behind his back before agents asked him any questions to establish reasonable suspicion of illegal alienage. At no time had the worker tried to flee; indeed, he was not aware of the raid until he was grabbed.
At Petaluma Poultry Processors on April 26, 1982, three different INS officers questioned Francisco Rivera as he continued working at this station on the poultry processing line. The first and second agents examined Rivera's letter from an immigration judge directing him to report to Vancouver, Canada, on May 19 to pick up his permanent residency papers and were satisfied. The third officer, however, stated that he did not "recognize the judge's signature" and would have to take Rivera outside. Rivera was handcuffed, despite protestations that his papers were in order and he was not going to run, taken out of the building by his belt, placed in a van, and locked inside.

Agents were informed twice by different Petaluma Poultry managers that Rivera was not an undocumented alien. When Bill Cuppoletti, maintenance supervisor, told defendants that Rivera was a legal resident, an agent called him an "SOB", told him to keep his mouth shut, and to stay away. John Malone, Rivera's supervisor, also told agents that Rivera was in the country legally, but officers responded that they did not care.
Manager Cuppoletti also described two Hispanic women who were arrested and were forced to walk back-toback with tie wraps securing their arms. As they were being taken to the van, one of the women shouted to the agent that she had her green card. At the van, the tie-wraps were cut with difficulty and both women produced their green cards.
901 *901 At Point St. George Fisheries, plaintiff Rodriguez, a lawful permanent resident, was seized for failing to produce immediately the green card that he did not carry on his person due to the messy nature of his work. Rodriguez' wife, a U.S. citizen, attempted to tell agents that her husband was lawfully in the United States, but was told to shut up. Rodriguez was handcuffed and left in a van for over 15 minutes until his wife returned with his passport and green card.
At Superior Plaster Casting, Felipe Ortiz, a 21-year old, lawful permanent resident, was grabbed by his arms by an INS agent during the raid. He was immediately handcuffed and searched up against a wall. This occurred after Ortiz explained to agents that he was a lawful resident, but had his green card at home. For fifteen minutes he was held in an INS car. Ortiz was released after agents made a radio call to INS headquarters.
As Raquel Zarazua-Medrano sat at her work table at Bell Industries on April 30, 1982, two INS agents entered the room and one positioned himself between her and the door. When asked where she was from, she answered "from here." The agent then began yelling at her, and she did not feel free to leave in order to avoid further interrogation due to the agent's position in front of the door.
Joseph Angel Chavez, a natural born U.S. citizen, was questioned repeatedly by different agents as he worked during the July raid at Benicia Foundry. He was asked where he was born by one agent and then left alone. A second agent questioned him and was also satisfied. These two conversations were conducted in English. A third agent, however, questioned Chavez in Spanish, and Chavez responded in Spanish. The agent seized him by the belt and forced him into an INS van, where he was held for the duration of the raid, driven around and ultimately released.
At some farm labor housing at Hughson, on July 18, 1983, at 9:30 a.m., Border Patrol agents entered the home of several workers without warrant or consent. The three agents were in uniform with visible pistols and badges. Agents remained in the house for ten minutes while documentation was demanded of all four residents.
Maria Socorro Araneta, a United States citizen and owner of a San Jose 7-11 store, was accosted in her store by an INS agent who demanded to see her papers. When Mrs. Araneta told him the date of her naturalization and explained that citizens are not required to carry papers, the agent told her that she was "obstructing justice" and remained in the store for more than an hour questioning Araneta and a friend.
Defendants' practices in the instant action, unlike the polite, casual questioning found by the Supreme Court in INS v. Delgado, include the use of threatening behavior and force to compel workers to answer questions, as well as the seizure of workers prior to any questioning. Also in contrast to Delgado, many of the workers here had a reasonable basis to believe that they were not free to leave. Whereas in Delgado workers "who simply went about their business in the workplace were not detained in any way," here many workers were grabbed, handcuffed, and/or thrown into vans, even when they were attempting to continue their work. In Delgado, workers were permitted to walk away after a few questions; here, workers were interrogated at length, at times by several different agents. There is also considerable evidence here, unlike Delgado, of significant workplace disruption caused by these raids.
Having considered this and all the other plaintiff testimony, as well as the considerable contra defense testimony, the Court finds that plaintiffs have at the very least raised a serious question as to whether defendants routinely violate the fourth amendment and 8 U.S.C. § 1357(a). There is considerable evidence that defendants often detentively question aliens as to whom they have no reasonable, articulable suspicion of undocumented status,

and seize workers prior to any questioning, and in the absence of any other indicia that would establish probable cause for belief of illegal alienage.
902 *902 INS SELECTIVE ENFORCEMENT
Plaintiffs allege that defendants detain and arrest workers solely on the basis of appearance of Hispanic ancestry and inchoate hunches. Some of the testimony suggests that agents do not even bother to question Asian or Caucasion workers during workplace raids, even if they are fleeing.
The Supreme Court noted in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), that appearance is not enough for a stop:
At best the officers had only a fleeting glimpse of the persons in the moving car, illuminated by headlights. Even if they saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, or that the car concealed other aliens who were illegally in the country. Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican Ancestry, and even in the border area a relatively small proportion of them are aliens. The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.
Id. at 886, 95 S.Ct. at 2582. See United States v. Heredia-Castillo, 616 F.2d 1147 (9th Cir.1980). Nevertheless, in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983), the Ninth Circuit noted that
even if it were shown that Peoria police directed an unusual proportion of their law enforcement activities towards persons of Mexican descent, proof of the policies' disproportionate impact would not establish a violation of the equal protection clause. The plaintiffs were required to prove an intent to discriminate, explicit or implicit, to establish the claimed constitutional violation.
Id. at 480.
Although the record is replete with evidence that INS and Border Patrol agents use Hispanic appearance as a primary factor in selecting those individuals to question, the evidence is less clear that agents use this factor to the exclusion of all others, or rely on inchoate hunches rather than articulable suspicion of alienage. The evidence adduced by plaintiffs purporting to show that agents routinely ignore non-Hispanic workers is inconclusive. Indeed, there is credible evidence that in many instances agents do question non-Hispanic workers. Thus the Court cannot find on the evidence currently before it that plaintiffs raise a serious question or are likely to succeed on their equal protection claims. This finding does not preclude plaintiffs from further developing the record in this regard.
THE AVAILABILITY AND SCOPE OF INJUNCTIVE RELIEF
Taking the evidence as a whole, the Court is satisfied that plaintiffs at the very least have presented serious questions going to the merits of their fourth amendment claims and the evident systematic policy and practice of fourth amendment violations of defendants. It is also clear that the balance of hardships tips sharply in favor of plaintiffs. On the one hand, critical constitutional rights of the plaintiffs are in jeopardy for so long as defendants continue their current practices. On the other hand, defendants have not demonstrated that compliance with the fourth amendment will eviscerate their enforcement efforts. Even if such impairment were possible, the INS cannot be heard to complain that it will be injured by compliance with constitutional mandates. Further, due to the constitutional nature of the recurrent violations, plaintiffs are quite likely to suffer irreparable harm absent a preliminary injunction. See LaDuke v. Nelson, 762 F.2d 1318, 1330 (9th Cir.1985). Moreover, the record establishes the ongoing nature of these workplace raids, and that some of the plaintiffs and class members have been subjected to the challenged INS practices on more than one occasion. Cf. LaDuke v. Nelson, 762 F.2d

903 1318, *903 1323-26 (9th Cir.1985). Finally, because a class has already been certified, the scope of the injunction need not be limited to the named plaintiffs. Cf. Zepeda v. INS, 753 F.2d 719 (9th Cir.1985).
PRELIMINARY INJUNCTION
Good cause appearing therefor, the Court preliminarily enjoins defendants and their officers, agents, and employees in the San Francisco District of the United States Immigration and Naturalization Service and the Livermore Border Patrol Sector as follows.
1. Each INS workplace entry, other than in public areas and open fields, must be based on at least one of the following: a valid warrant, a valid consent, or exigent circumstances not deliberately provoked by defendants' own conduct.
2. Every INS warrant must particularly describe each suspect to be questioned or seized pursuant to the particularity requirement of the fourth amendment. There must be probable cause to believe each such person is an alien illegaly present in the United States. A warrant need not in every case identify the suspect(s) by name, but the warrant and its supporting affidavits must contain enough specific identifying information to assure that the search for that person is reasonably likely to result in finding that person.
3. A warrant may not provide that "others" may be searched and seized, if such "others" are unnamed or only conclusorily described by any supporting affidavits.
4. When possible, each warrant must describe the particular area(s) of the workplace where the suspect(s) are likely to be found, in light of the information available to the defendants.
5. Each warrant must provide that the agents executing the warrant, before searching any work area, must show the warrant to an authorized company representative, and ask that representative to produce the suspect(s) named or described in the warrant. Before the suspects are produced, agents may position themselves at exits and question or detain any workers attempting to flee. If the representative is unwilling or unable to produce those suspects within a reasonable time, agents may then enter the work area to search for the suspects. Such searches must be directed at finding the named or described suspects as quickly as possible, rather than for general questioning of the entire workforce. This does not preclude agents from questioning or detaining workers who attempt to hide or flee.
6. When agents have no warrant, but intend to obtain consent upon arrival at the worksite rather than ahead of time, they must not arrive or conduct themselves in a manner that would foreseeably provoke flight by workers, or that would leave a reasonable person with the belief that he had no choice but to consent to the raid. They must inform the representative of the nature and scope of the proposed survey. They may not expressly or impliedly suggest that the employer will face retaliation if he declines to consent.
7. Agents may not deliberately provoke flight by workers in order to justify entries onto workplace premises.
8. Absent a valid warrant or genuine exigent circumstances not deliberately precipitated by the agents themselves, agents may not detain workers without reasonable, articulable suspicion of illegal alienage. During non-detentive questioning, and before agents detain a worker, agents must give the worker a reasonable opportunity to produce his or her relevant documents, even if those documents are not on the worker's person but are in his constructive possession somewhere on the premises. Agents may accompany a worker who must retrieve his documentation.
9. Absent a valid warrant or genuine exigent circumstances not deliberately precipitated by the agents' own conduct, agents may not arrest a worker except upon probable cause, based on articulable facts and reasonable 904 inferences drawn therefrom, that the worker is an alien unlawfully present in the United States and is *904 likely to escape before a warrant can be obtained for his arrest.
10. Defendants shall immediately provide a copy of this order to all officers located in the San Francisco INS District and Livermore Border Patrol Sector, and to any officer who hereafter becomes located in these districts

during the time that this order is effective. Before any more workplace raids are undertaken, defendants shall orally brief each agent in the field regarding the terms of this injunction and their practical significance, and shall give each such agent his or her own copy of the terms of the injunction.
11. Agents seeking a warrant for workplace arrests must cite this opinion to the judicial officer issuing the warrant.
12. This Order supersedes the preliminary injunction order issued October 11, 1985, and will be in effect from October 29, 1985, until further order of this court or until resolution at trial on the merits.
Defendants' Motion for Stay Pending Appeal is denied.
IT IS SO ORDERED.
[1] "Open fields" raids are not the subject of this litigation.
[2] Plaintiffs allege additional fifth and sixth amendment violations that are not before the Court on the present motion.
[3] Plaintiffs further contend that the facts of Blackie's are distinguishable from those of the case at bench. The Blackie's warrant was issued on a compelling showing that there would be numerous illegal aliens on the premises. 659 F.2d at 1226-27 & n. 17. The unnamed "others" of the Blackie's warrant for the most part were not hypothetical individuals who might be discovered during the course of the raid; they had been previously observed and identified through informers and INS stakeouts as likely illegal aliens. This Court does not reach the factual distinctions posed by Blackie's.
[4] 8 U.S.C. § 1357(a)(1) and (2) provide that an INS agent
Shall have power without warrant 0907 (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; (2) to arrest any alien ... in the United States, if [the INS agent] has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest....
Id. (emphasis added).
[5] See supra note 4.
[6] The Court does not here consider the possibility that defendants might be able to make a sufficient showing of probable cause to the magistrate or judge that most or all of the workers at a particular workplace at a particular time will be illegal aliens. The record here does not present such circumstances.
[7] In another instance, defendants obtained a consent from the owner of Benicia Foundry after they had arrived at the premises. Plaintiffs contend that the resulting search exceeded the scope of that consent. See U.S. v. Rubio, 727 F.2d 786, 796-97 (9th Cir.1983). The court finds the evidence to be inconclusive.
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 799 F.2d 547 (1986)
INTERNATIONAL MOLDERS' AND ALLIED WORKERS' LOCAL UNION NO. 164, et al., Plaintiffs-Appellees, v.
Alan NELSON, The Immigration and Naturalization Service, et al., Defendants-Appellants.
No. 85-2745.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 13, 1986. Decided September 11, 1986.
As Amended on Rehearing December 1, 1986. Suggestion Review Denied December 1, 1986.
545890 *548 *549 *550 Alan L. Schlosser, ACLU, Morris J. Baller, Marron, Reid & Sheehy, Susan E. Brown, San Francisco, Cal., Charlotte Fishman, Berkeley, Cal., for plaintiffs-appellees.
Mark B. Stern, Dept. of Justice, Washington, D.C., for defendants-appellants.
Before WRIGHT and FARRIS, Circuit Judges, and RHOADES,[*] District Judge.
Suggestion for En Banc Review Denied December 1, 1986.
EUGENE A. WRIGHT, Circuit Judge.
This action was instituted in April of 1982. Plaintiffs-appellees are a labor union, five employers and nine employees of Hispanic ancestry. They complain of the manner in which the Immigration and Naturalization Service (INS) conducted searches and made arrests in factories and other places where it believed illegal aliens were employed. Specifically, plaintiffs challenge the constitutionality of "factory surveys" occurring in northern California during the week of April 16, 1982, as part of "Project Jobs," a nation-wide enforcement action against undocumented aliens.
Four years have passed since the inception of this action, but it has not yet been brought to trial. In March 1984, plaintiffs moved for a preliminary injunction to prohibit INS factory searches absent either voluntary employer consent, unprovoked exigent circumstances or a search warrant identifying specific persons suspected of being illegal aliens. Eighteen months after the motion was filed, the district court granted the requested preliminary injunction. 643 F.Supp. 884. It denied a motion by INS requesting a stay pending appeal. INS timely appealed.
STANDARD OF REVIEW
Our review of a motion for preliminary injunction is "very limited." Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir.1984).
A decision to grant a preliminary injunction "will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case." Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752 (9th Cir.1982).
An order granting or denying a preliminary injunction will be reversed only for abuse of discretion.[1]Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980).
A preliminary injunction is warranted if the movant demonstrates either: "(1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of 551 hardships tips *551 sharply in its favor." Los Angeles Coliseum, 634 F.2d at 1201.[2]

Factual findings in support of a decision to grant a preliminary injunction are reviewed for clear error. Zepeda v. United States INS, 753 F.2d 719, 725 (9th Cir.1983). Legal issues underlying a decision to grant an injunction are reviewed de novo, as is a district court's finding that plaintiffs are likely to succeed on the merits of those issues. Lopez v. Heckler, 725 F.2d 1489, 1498 (9th Cir.1984), vacated on other grounds, 469 U.S. 1082, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984).
In deciding a motion for a preliminary injunction, the district court "is not bound to decide doubtful and difficult questions of law or disputed questions of fact." Dymo Industries, Inc. v. Tapewriter, Inc., 326 F.2d 141, 143 (9th Cir.1964). A grant of a preliminary injunction will not be reversed unless the district court failed to consider the relevant factors or committed a clear error of judgment. Zepeda, 753 F.2d at 725.
ANALYSIS
I. Introduction
This preliminary injunction consists of 11 substantive provisions. INS focuses its challenge on the two provisions requiring that warrants specifically identify persons targeted in its factory searches. It also challenges the remainder of the injunction as an improper restriction on INS enforcement, arguing plaintiffs failed to show "systematic misconduct contrary to official INS policy."
II. Propriety of Injunctive Relief
The first issue confronting us is whether the preliminary injunction was warranted. We conclude that the district court did not abuse its discretion in granting preliminary injunctive relief.
INS raises a weak argument that injunctive relief is unwarranted here because the evidence shows "merely sporadic violations of official policy by individual agents." The record supports the district court's finding of an "evident systematic policy and practice of fourth amendment violations" by INS. The extensive evidence of INS agents exceeding official policy can hardly be characterized as "[a]n ambiguous, isolated incident [not warranting] injunctive relief." INS v. Delgado, 466 U.S. 210, 218 n. 6, 104 S.Ct. 1758, 1764 n. 6, 80 L.Ed.2d 247 n. 6 (1984). [3]
Plaintiffs observe correctly that INS has raised no specific challenges to the detailed factual findings on which the district court based the injunction.
INS argues that injunctive relief should not have been granted because plaintiffs failed to show a "substantial risk of repetition of past incidents." The district court made an explicit finding that, absent an injunction, "plaintiffs are quite likely to suffer irreparable harm" from continued fourth amendment violations by INS. "[P]roof of past injury, especially of a repetitive character, is not immaterial to the issue of likely recurrence." LaDuke v. Nelson, 762 F.2d 1318, 1324 n. 8 (9th Cir.1985), amended on other grounds, 796 F.2d 309 (9th Cir.1986).
INS is correct that courts are reluctant to enjoin law enforcement agencies entitled to "the widest latitude in the 552 `dispatch of [their] own internal affairs,'" Rizzo *552 v. Goode, 423 U.S. 362, 378-79, 96 S.Ct. 598, 607-08, 46
L.Ed.2d 561 (1976) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961)). However, the INS has "no discretion with which to violate constitutional rights." LaDuke, 762 F.2d at 1325. The district court's findings of fourth amendment violations were sufficient to support the decision to grant some preliminary injunctive relief.
III. Restrictions on Entry Warrants
Next we must decide whether the specific provisions in the preliminary injunction order were proper and whether the terms of the injunction resulted from a proper application of substantive law.

A. Specificity of the Entry Warrant
The INS contends that paragraphs two and three of the injunction[4] are invalid. It relies on the District of Columbia Circuit's decision in Blackie's House of Beef v. Castillo, 659 F.2d 1211 (D.C.Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982), for the proposition that a factory search may be based on a warrant that identifies no illegal aliens by name.
Blackie's rejected the contention that the INS open-ended warrant was comparable to the routine administrative inspection warrant upheld in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). 659 F.2d at 1218. Instead, it defined a hybrid standard of probable cause applicable to INS enforcement. See 659 F.2d at 1222-25. A showing less than that required for criminal warrants was deemed appropriate because (1) Congress contemplated vigorous INS enforcement, including entries onto private premises to question aliens, and (2) INS activities are "not analogous to a criminal investigation" where the employer faces "no sanctions of any kind" for employing illegal aliens. 659 F.2d at 1218.
The court in Blackie's, while accepting a hybrid probable cause standard for INS entry warrants,[5] emphasized the need for "sufficient safeguards to assure that nothing impermissible would be left to the discretion of the INS agents." 659 F.2d at 1226. We have held that an application for a search warrant "must have sufficient specificity to enable the judge to make an independent determination of whether probable cause exists and to prevent the agents from having uncontrolled discretion to rummage everywhere in search of seizable items once lawfully 553 within *553 the premises." United States v. Condo, 782 F.2d 1502, 1505 (9th Cir.1986) (emphasis in original).
Here, the district court stopped short of requiring the INS to identify all suspected illegal aliens by name to obtain an entry warrant. But, it required the INS, through "the warrant and its supporting affidavits," to provide information of sufficient specificity to assure that finding such persons is "reasonably likely." (Emphasis added).
At oral argument, we pressed plaintiff's counsel to propose a particularity standard for the INS to use in obtaining entry warrants for factory raids targeted at undocumented aliens. Counsel's inability to propose a workable standard reflects the difficulty of enforcing immigration laws where little documentary or descriptive information is available concerning suspected undocumented aliens.
The requirement to "identify the suspect(s) by name" or to provide "enough specific identifying information to assure that the search for that person is reasonably likely to result in finding that person" imposes an unreasonable and impractical burden on the INS. We agree with the District of Columbia Circuit that "warrants and accompanying affidavits [that] narrow down the field of potentially vulnerable persons to those employees whom INS agents might reasonably believe to be aliens," 659 F.2d at 1226, satisfy the requirements of the Fourth Amendment even where the targeted persons are not identified by name.[6] The specificity that paragraphs two and three of the injunction order demand for entry warrants is not required under the Fourth Amendment.
B. Restrictions on Consensual Questioning
Paragraph two also requires that every INS warrant contain a specific description of each suspect to be questioned and be based on "probable cause to believe each such person is an [illegal alien]." An arrest requires probable cause to believe that the worker is an illegal alien, see Tejeda-Mata v. INS, 626 F.2d 721, 724-25 (9th Cir.1980), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982), and a worker may not be detained absent "reasonable suspicion of illegal alienage," Benitez-Mendez v. INS, 760 F.2d 907, 909 (9th Cir.1983). But, non-detentive questioning is permitted based solely on a reasonable suspicion that the person is an alien. See LaDuke, 762 F.2d at 1327. Such "consensual encounters" do not implicate the employee's Fourth Amendment rights. Delgado, 466 U.S. at 221, 104 S.Ct. at 1765.
The Court in Delgado stated that no detention occurs in a factory survey as long as INS agents' conduct has "given [workers] no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer." 466 U.S. at 218, 104 S.Ct. at 1764. Where a worker merely

"refuses to answer," id. at 216, 104 S.Ct. at 1763, but does not attempt "to flee or evade the agents," id. at 220, 104 S.Ct. at 1765, any "additional steps" taken by the agents must be supported by "some minimal level of objective justification to validate the detention or seizure." Id. at 216-17, 104 S.Ct. at 1763.
We find paragraphs two and three of the injunction order to have been improvidently entered. We strike these paragraphs from the injunction order because they exceed the particularity requirements of the Fourth Amendment and unduly restrict INS's ability to engage in consensual questioning.
Because of our conclusions as to paragraphs two and three of the injunction order, it is necessary also to strike 554 paragraph *554 five.[7] The procedures specified in paragraph five make no sense in the absence of a warrant
specifically identifying the targeted workers. Moreover, the restriction on generalized questioning is inconsistent with the holding of Delgado, at least where the INS agents have a reasonable suspicion that those questioned are aliens. See LaDuke, 762 F.2d at 1327.
C. Provocation of Flight
INS objects also to the restrictions in paragraph six of the injunction order which provides in part: "When agents have no warrant, but intend to obtain consent upon arrival at the worksite rather than ahead of time, they must not arrive or conduct themselves in a manner that would foreseeably provoke flight by workers, or that would leave a reasonable person with the belief that he had no choice but to consent to the raid." (Emphasis added).
INS contends that this provision is unreasonable and overbroad since flight by workers is virtually always a "foreseeable" consequence of INS agents' arrival at a factory.
We note that the court used the word "deliberately" in stating a similar restriction in paragraph seven. That appears to us to be a more understandable and enforceable standard than "foreseeable" provocation.
We direct that paragraph six be modified to substitute "deliberately" for the word "foreseeably."
IV. Scope of Injunctive Relief
We construe the dispute over plaintiff employees' "standing" as an attempt by INS to limit the injunction to workplaces of the named employers rather than the workplaces of the employee class. INS suggests that the district court lacked jurisdiction to enter an injunction order affecting non-party employers. Its reliance on Zepeda, 753 F.2d 719, is misplaced. This court in Zepeda limited the injunction "to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs." Id. at 727. That holding does not limit the court's power to bind the INS when it has necessary personal and subject matter jurisdiction. Id.
"[A]n injunction benefiting nonparties is permissible `if such breadth is necessary to give prevailing parties the relief to which they [individually] are entitled.'" Id. at 729 n. 1 (quoting Professional Association of College Educators v. El Paso County Community College District, 730 F.2d 258, 274 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984).
We find that the provisions of the preliminary injunction properly apply to workplaces of the employee class. Such injunctive relief is not overbroad, does not needlessly benefit nonparty plaintiffs, and is necessary to provide effective relief to the prevailing party.
V. Evidentiary Hearing
INS contends that the district court erred in granting injunctive relief "solely on the basis of affidavits or depositions." It contends that an evidentiary hearing was required to resolve disputed facts. Dopp v. Franklin National Bank, 461 F.2d 873, 879 (2d Cir.1972). Rule 65(a)(1), Fed.R.Civ.P., has been interpreted to mean that parties have a right to be heard in opposition to a motion for a preliminary injunction, and that the right includes

555 presenting *555 oral testimony when the pleadings and affidavits are conflicting. Sims v. Greene, 161 F.2d 87, 88-89 (3d Cir.1947).
We choose not to follow the Sims presumption in favor of evidentiary hearings. San Francisco-Oakland Newspaper Guild v. Kennedy, 412 F.2d 541, 546 & n. 6 (9th Cir.1969) (Presentation of many affidavits and the oral argument constituted "sufficient opportunity to present [the] case [opposing preliminary injunction] without using oral testimony.").
Where sharply disputed the facts are simple and little time would be required for an evidentiary hearing, proceeding on affidavits alone might be inappropriate. See Aguirre v. Chula Vista Sanitary Service and SaniTainer, Inc., 542 F.2d 779, 781 (9th Cir.1976) (citing SEC v. Frank, 388 F.2d 486, 490-91 (2d Cir.1968)). But an evidentiary hearing should not be held when the magnitude of the inquiry would make it impractical. Frank, 388 F.2d at 490.
The language of Rule 65(a) does not require a purely technical rule on this point. One authority suggests:
Such requirements as there may be for hearings in applications for preliminary injunctions must stem, therefore, from general concepts of fairness, the underlying practice, the nature of the relief requested, and the circumstances of the particular cases.
7 J. Moore, J. Lucas & K. Sinclair, Moore's Federal Practice ¶ 65.04[3] at 65-59 n. 12 (2d ed. 1986).
Here, some facts are in dispute, but the real problem involves the application of correct substantive law to those facts. The INS apparently never requested an opportunity to present oral testimony. In at least one circuit, failure to request an evidentiary hearing constitutes a waiver. See Jacobson & Co., Inc. v. Armstrong Cork Co., 548 F.2d 438, 442 (2d Cir.1977).
INS has not been unfairly deprived of the chance to show opposition to the issuance of a preliminary injunction. The district court did not abuse its discretion in granting the preliminary injunction without an evidentiary hearing.
VI. Duration of Preliminary Injunction
Finally, we consider the duration of this preliminary injunction. We note with concern the delay that has accompanied the dispute. At oral argument we asked counsel whether a trial date had been fixed or was reasonably foreseeable. We were given no encouraging assurances that the case would proceed to trial on the merits in the near future.
It is clear that plaintiffs have received all, indeed more than, the relief to which they are entitled. Having obtained this relief, they appear to have little or no incentive to press for a trial on the merits. We do not countenance such delay. This case should have been tried and decided long ago.
We do not suggest that the district judge was responsible for any of this delay because we suspect that the parties are to blame.
We have previously pointed out that we can assist very little in the final resolution of critical legal and factual issues until a permanent injunction is granted or denied. Zepeda, 753 F.2d at 723. Our observations in Zepeda apply here:
Furthermore, in many cases, appeal of a district court's preliminary injunction order will result in unnecessary delay to the parties and inefficient use of judicial resources. We think it likely that this case, for instance, could have proceeded to a disposition on the merits in far less time than it took to process this preliminary appeal. The parties, apparently have made no effort in the district court to finalize this litigation.... In addition, our disposition of this appeal will affect the rights of the parties only until the district court renders judgment on the merits of the case, at which time the losing party may appeal again. One properly may wonder whether this is an efficient use of limited judicial facilities.

Id. at 724 (citation omitted).
556 *556 From statements made at oral argument, we concluded that this case had been unduly delayed and terminated the injunction to prevent further delay. Subsequent review of the record has convinced us that this conclusion was unwarranted.
It appears that discovery will be completed by May 1, 1987 and trial will commence later that summer. This schedule, while not ideal, is not unexpected in a case of this scope and complexity. The injunction will not be terminated on October 28, 1986.
The district court should ensure that this action proceeds to trial or other final resolution as rapidly as possible. If the district court, in its discretion, determines that plaintiffs are not prosecuting this action with all due diligence, it should dissolve the preliminary injunction.
We remand with instructions to modify the injunction as directed by this opinion.
[*] Of the Southern District of California.
[1] An abuse of discretion will be found if the district court: (1) applied incorrect substantive law or an incorrect preliminary injunction standard; (2) based the decision on a clearly erroneous finding of a material fact; or (3) applied an acceptable preliminary injunction standard in a manner that results in an abuse of discretion. Zepeda v. United States INS, 753 F.2d 719, 724 (9th Cir.1983).
[2] Although this formulation appears to state two separate tests, "in fact there is only one, best described as a continuum in which the required showing of harm varies inversely with the required showing of meritoriousness." San Diego Comm. Against Registration and the Draft v. Governing Bd., 790 F.2d 1471, 1473 n. 3 (9th Cir.1986).
The critical element is the relative hardship to the parties. Benda v. Grand Lodge of the International Association of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). "If the balance of harms tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." Id. The "irreducible minimum" showing of likelihood of success accepted by this court is either "a fair chance of success on the merits" or "questions ... serious enough to require litigation." Id. (citations omitted).
[3] Ironically, INS cites with approval the portion of the district court's order which found that "it is not infrequent that [INS agents] violate the fourth amendment rights of workers."
[4] Paragraphs two and three of the injunction proscribe the use of "administrative warrants" to search for and arrest unnamed and otherwise unidentified persons suspected of being illegal aliens.
"2. Every INS warrant must particularly describe each suspect to be questioned or seized pursuant to the particularity requirement of the fourth amendment. There must be probable cause to believe each such person is an alien illegaly [sic] present in the United States. A warrant need not in every case identify the suspect(s) by name, but the warrant and its supporting affidavits must contain enough specific identifying information to assure that the search for that person is reasonably likely to result in finding that person.
3. A warrant may not provide that `others' may be searched and seized, if such `others' are unnamed or only conclusorily described by any supporting affidavits."
[5] The district court found that a typical warrant authorized not only entry into and search of the premises, but seizures of persons "suspected of being aliens." Although, this finding is amply supported by the record, the INS concedes that the warrants could properly authorize only entry into the workplace to question suspected aliens. Thus, it is unnecessary for us to decide whether the hybrid probable cause standard that Blackie's applied to entry warrants should apply to warrants that, on their face, authorize seizure of suspected illegal aliens.
Having now taken this position, INS cannot object to a permanent injunction that prohibits warrants to seize suspected aliens unless the warrants meet the particularity requirements applied to arrest warrants. To the extent

the warrants authorize INS to seize employees, the Supreme Court's holding in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), requires "probable cause particularized with respect to that person." Id. 444 U.S. at 91, 100 S.Ct. at 342 (emphasis added). "This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be." Id.
[6] We recognize that the Supreme Court in INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), did not expressly decide the particularity requirement for an entry warrant used in INS factory raids. Yet the Court made explicit reference to the agents' lawful presence in the factories based on warrants that did not identify any suspected illegal aliens by name. See 466 U.S. at 212, 217 n. 4, 104 S.Ct. at 1760, 1762 n. 4.
[7] Paragraph five of the injunction order provides:
"Each warrant must provide that the agents executing the warrant, before searching any work area, must show the warrant to an authorized company representative, and ask that representative to produce the suspect(s) named or described in the warrant. Before the suspects are produced, agents may position themselves at exits and question or detain any workers attempting to flee. If the representative is unwilling or unable to produce those suspects within a reasonable time, agents may then enter the work area to search for the suspects. Such searches must be directed at finding the named or described suspects as quickly as possible, rather than for general questioning of the entire workforce. This does not preclude agents from questioning or detaining workers who attempt to hide or flee."
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 674 F.Supp. 294 (1987)
INTERNATIONAL MOLDERS' AND ALLIED WORKERS' LOCAL UNION NO. 164, et al., Plaintiffs, v.
Alan NELSON, Commissioner of the INS, et al., Defendants.
No. C-82-1986-RPA.
United States District Court, N.D. California.
November 24, 1987.
Susan E. Brown, Francisco Garcia-Rodriquez, Denise Hulett, Mexican American Legal Defense and Educational Fund, San Francisco, Cal., Antonia Hernandez, E. Richard Larson, Linda Wong, John Nockleby, Mexican American Legal Defense and Educational Fund, Los Angeles, Cal., David Grabill, California Rural Legal Assistance, Santa Rosa, Cal., Alan L. Schlosser, Margaret C. Crosby, Edward M. Chen, American Civil Liberties 295 Union Foundation of Northern *295 California, Inc., Steven A. Brick, Barbara Moses, Orrick, Herrington & Sutcliffe, John M. True, Employment Law Center, San Francisco, Cal., for plaintiffs.
Joseph P. Russoneillo, U.S. Atty., Judith A. Whetstine, Chief, Civ. Div., San Francisco, Cal., David J. Kline, Asst. Director, Ellen Sue Shapiro, Attorney Office of Immigration Div., Civ. Div., Dept. of Justice, Washington, D.C., for defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
AGUILAR, District Judge.
I. INTRODUCTION.
The question before the Court is the validity and effect of a warrant issued by an United States Magistrate permitting defendant the Immigration and Naturalization Service (the "INS" or the "Government") to raid the workplace of plaintiff Petaluma Poultry Company ("PPC"). The Government argues that the warrant was valid, that it was properly supported by a specific and reliable affidavit, and that the actions taken pursuant to the warrant were justified. Plaintiffs counter by arguing that the warrant was inadequately supported, that the warrant itself was invalid, and that the subsequent seizure of illegal aliens by use of the warrant was illegal.
After full briefing and oral argument, the Court deemed submitted the parties' cross-motions for summary judgment. The Court has now reviewed all papers submitted in connection with the motions and reviewed the relevant authorities. Good cause appearing therefor, the Court finds and orders as follows.
II. FACTS.
An overview of the facts is provided here. More complete details are provided in the earlier opinion of this Court, 643 F.Supp. 884 (1986), remanded with modifications, 799 F.2d 547 (9th Cir.1986).
This suit arises from a series of workplace raids conducted by the INS pursuant to their authority under the immigration laws. Plaintiffs challenge these raids as violative of the Fourth and Fifth Amendments to the Constitution. In the context of these motions, plaintiffs assert that the INS employed "warrants of inspection" as licenses generally to interrogate and seize employees. Plaintiffs allege that in a typical raid, the INS would block

the exits from the work area and systematically question primarily hispanic workers about their immigration status. Although the warrant might refer to no more than four specific individuals, the INS would use the "general warrant" to interrogate and to seize employees or any other suspects en masse resulting in the arrest or detention of as many as seventy persons in a single workplace raid.

Although in their earlier motion for a preliminary injunction plaintiffs referred to eight separate incidents of raids, the Sixth Amended Complaint (the "Complaint") presently on file in this case refers to but a single occasion of a raid conducted pursuant to a general warrant. That incident was the raid on PPC. Thus, for purposes of ruling on the question of the validity of the INS' "general warrants" the only controversy presently before the Court is the raid on PPC.

The warrant used to gain entry to PPC was issued on April 23, 1982, by U.S. Magistrate Richard S. Goldsmith. Magistrate Goldsmith stated that there was "reasonable cause to believe" that five named individuals "and others" were illegally in the United States and could be found at PPC during normal working hours. The warrant authorized the INS:

To search within a period of ten (10) days the place named above for the persons specified, and

other suspected of being illegal aliens, serving this warrant and making the search in the daytime

(8:00 a.m. to 5:30 p.m.), and if such persons are found there to seize them, leaving a copy of this

warrant and receipt for the persons taken, and prepare a written inventory of the person seized

296

and promptly return this warrant and the written inventory *296 before Magistrate Richard S.

Goldsmith, as required by law.

The sole basis for the issuance of the warrant was an affidavit sworn to by Joseph Brandon of the INS. Detailed examination of the affidavit is provided below. At this point, it is sufficient to note that the affidavit contained seven items in support of the request for a warrant. The gist of the affidavit was that illegal aliens had been apprehended at the PPC factory in 1978 and that there was evidence suggesting that illegal aliens were again on the premises. Solely on the basis of this affidavit, the magistrate issued the warrant.

III. DISCUSSION.

(A) Seizure of the Five Named Alien Suspects:

The first question is whether the warrant was valid as a seizure warrant with respect to the five named individuals.[1] The standard to test validity is whether the warrant and supporting affidavit contain sufficient specificity and reliability to prevent the exercise of unbridled discretion by law enforcement officers. Delaware v. Prouse, 440 U.S. 648, 653-55, 99 S.Ct. 1391, 1395-97; 59 L.Ed.2d 660 (1979); see also U.S. v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986) ("The description [in the warrant] must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized."). The purpose of this requirement is "to prevent the agents from having uncontrolled discretion to rummage everywhere in search of seizable [persons] once lawfully within the premises." Int'l Molders, 799 F.2d at 552-53, quoting U.S. v. Condo, 782 F.2d 1502, 1505 (9th Cir.1986).[2]
The evidence presented in a warrant application must be particularized enough to allow a "neutral and detached" magistrate or court, Steagald v. U.S., 451 U.S. 204, 212, 101 S.Ct. 1642, 1647-48, 68 L.Ed.2d 38 (1981), to make an independent determination that probable cause exists for the seizure of a particular person. Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983) ("An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause.... [the magistrate's] action cannot be a mere ratification of the bare conclusions of others."); Molders, 799 F.2d at 552-53; see also U.S. v. Rubio, 727 F.2d 786, 795 (9th Cir.1984) ("The magistrate must be provided with sufficient facts from which he may draw the inferences and form the conclusions necessary to a determination of probable cause.").
As defendants correctly have pointed out, whether a warrant is adequate and based on probable cause are questions to be decided on the face of the warrant and its supporting affidavit. U.S. v. Anderson, 453 F.2d 174,

175 (9th Cir.1971), cited with approval in U.S. v. Grandstaff, 813 F.2d 1353-55 (9th Cir.1987). The warrant cannot be supported by outside or after-the-fact information. U.S. v. Rubio, 727 F.2d 786, 795 (9th Cir.1984). The facts 297 upon which the magistrate predicates his probable cause determination "must appear within *297 the four corners of the warrant affidavit." Id.; Grandstaff, 813 F.2d at 1355.
The affidavit in this case contained sufficient particularized and reliable information to allow the magistrate to find probable cause for the issuance of the warrant with respect to the five named individuals. The Brandon affidavit stated that an October 1978 raid on PPC uncovered seventeen (17) illegal aliens employed by the company. Fifteen of the seventeen failed to appear for INS interviews, allegedly because of warnings of potential deportation given to the employees by PPC. The affidavit further states that on November 5, 1981, an anonymous informant reported that PPC was employing approximately thirty illegal aliens, many of whom had been arrested and deported previously. Among those thirty, was Enrique Farias, who the informant stated had been deported to Mexico once before. An examination of INS' records showed that Mr. Farias had indeed been deported before 0907 on October 24, 1978, a date coinciding with the prior raid on PPC. Brandon's affidavit further related that the Petaluma Police Department had advised the INS that many illegal aliens were working at PPC.
When the INS attempted to follow up on these leads, PPC was not forthcoming with information. After PPC denied employment of illegal aliens, the INS subpoenaed PPC's personnel files. A review of the files revealed that five PPC employees had records of illegal status and prior apprehensions. Those five individuals 0907 David Valencia-Mendoza, Jose Valencia-Mendoza, Audomaro Farias-Vargas, Enrique Farias-Vargas, and Baudelio Carrillo-Navarro0907were then named specifically in the warrant as targets of seizure.
Thus, the affidavit, including the INS' records with respect to Mr. Farias and his four cohorts, contained specific and reliable information from which a neutral magistrate could find probable cause for the seizure of the five named employees suspected of being illegally present in the U.S.. Based upon the information provided, the magistrate was able independently to surmise that probable cause existed for the search of the named individuals. See Illinois v. Gates, 462 U.S. at 239, 103 S.Ct. at 2332-33. Moreover, the warrant issued by the magistrate contained sufficient particularity (it actually named the five individuals) to prevent the INS from exercising unbridled discretion in seeking the suspects. See Int'l Molders, 799 F.2d at 552. In light of these facts, "the magistrate had a substantial basis for concluding that probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332; quoting Jones v. U.S., 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960). Therefore, the warrant is constitutionally valid insofar as it permitted the INS to seek out and arrest the five individuals named in the affidavit in support of the warrant.
(B) Seizure of "[O]thers Suspected of Being Illegal Aliens":
The same legal standards mentioned above must be applied to the affidavit and warrant vis-a-vis seizure of the ten people seized on April 23, 1982, who were not named in the warrant.[3] Defendants try to avoid this determination in at least two ways. First, the INS alleges that the warrant was designed to permit inspection, not seizure. Indeed, the warrant used to enter PPC's business premises was dubbed a "warrant of inspection." However, it is clear that it is properly described as a "general warrant." The "general" aspect of the warrant is that it does not name all of those to whom it was intended to apply; instead, the warrant mentions five specific individuals and refers to "others." Furthermore, the warrant authorized far more than simply inspection. If the INS found the specified individuals or "others suspected of being illegal aliens," the INS was authorized "to seize them." In fact, seizure of illegal aliens was a chief purpose of the INS' "Operation Jobs." Because both in intent 298 and practice the INS' warrants *298 were aimed at seizure of illegal aliens, it is a misrepresentation to describe them merely as "warrants of inspection." Accordingly, the Court adopts the nomenclature of plaintiffs and henceforth will refer to the PPC warrant as a "general" or "open-ended" warrant.
The second argument advanced by the INS to avoid judicial pronouncement on this issue of seizure of the ten unnamed individuals is that the warrant, as a matter of law, could authorize only entry. Defendants make this concession in their papers now as they did earlier in their appeal to the Ninth Circuit. The concession and its consequence are elaborated in the circuit's opinion:

[T]he INS concedes that the warrants could properly authorize only entry into the workplace to question suspect aliens.... Having now taken this position, INS cannot object to a permanent injunction that prohibits warrants to seize suspected aliens unless the warrants meet the particularity requirements applied to arrest warrants.[4]
Despite the INS' Orwellian attempts to contradict the literal language of the warrant by describing it as an "inspection warrant," it is undeniable that the warrant gave the INS the authority to seize unnamed persons suspected of having illegal statuses. No matter how the INS wishes to recast, recharacterize, or otherwise misrepresent the warrant, it remains true that the warrant was fundamentally a license for the INS to seize people simply because they were "suspected of being illegal aliens," whatever that means. Under the Ninth Circuit's ruling in this case and the unambiguous language of the Supreme Court in Ybarra, the Court concludes, once again[5], that the warrant unconstitutionally authorized seizure of persons without probable cause. In this respect, the warrant was patently invalid. Defendants are permanently enjoined from seeking or employing such warrants in the future.
(C) The Warrant's Invalidity Cannot Be Purged By Post-Facto Conduct:
The Government argues that "the INS used the warrants of inspection solely for entry purposes and, after entry, independently developed the probable cause to arrest illegal aliens." Defendants' Response to Plaintiffs' Motion for Partial Summary Judgment at 15:10-13. Thus, according to the INS, "even if the warrant is somehow defective, no legal violations occurred." Id. at 15:13-14.
The flaw in this argument is that once the warrant is found invalid, the INS' presence inside PPC is no longer legally supported.[6] Without consent, a warrant, or probable cause along with some sort of exigent circumstance (which has not been argued or shown here), the INS was not legally entitled to enter the premises. As this and other circuits have ruled on numerous occasions, a "lack of probable cause cannot be made up in hindsight by a 299 hypothetical variation in the basis on which *299 a search was conducted." U.S. v. Branch, 545 F.2d 177, 186 n. 24 (D.C.Cir.1976), quoting U.S. v. Cunningham, 424 F.2d 942, 943 (D.C.Cir.1970), cert. denied, 399 U.S. 914, 90 S.Ct. 2218, 26 L.Ed.2d 572 (1970); see also Llaguno v. Mingey, 739 F.2d 1186, 1191 (7th Cir.1984) ("The officers needed probable cause before they entered the house." (emphasis in original)), vacated on different grounds after rehearing en banc, 763 F.2d 1560 (7th Cir.1984), cert. dismissed, ___ U.S. ___, 107 S.Ct. 16, 92 L.Ed.2d 783.
This principle has been affirmed by this circuit in U.S. v. DiCesare, 765 F.2d 890 (9th Cir.1985), modified on other grounds, 777 F.2d 543 (9th Cir.1985). In DiCesare, the court ruled that "the acquisition of probable cause during an unlawful seizure does not cure the illegality and does not constitute an independent source of probable cause." 765 F.2d at 899. See also U.S. v. Taheri, 648 F.2d 598, 600-01 (9th Cir. 1981). Hence the contention that the INS, in effect, successfully "hedged its bet" once inside PPC by conducting "surveys" of the sort authorized in Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), cannot be permitted to obfuscate the fact that it was the warrant that allowed the INS inside the factory in the first instance. The fact that the warrant was invalid cannot be circumvented, nor the warrant resuscitated by the INS' tactics once inside the factory.
(D) The Warrant as a Warrant of Inspection:
Notwithstanding the conclusion that the warrant was for seizure, the Court will go on to consider the warrant as a warrant of inspection. For despite the fact that the warrant in this case is invalid insofar it purported to authorize indiscriminate seizure of any person who was suspected of being an illegal alien, there remains the possibility that the warrant could be upheld in part, as a warrant of inspection.[7] In order to make this determination, the standard to be applied is that articulated in Blackie's House of Beef v. Castillo, 659 F.2d 1211 (D.C.Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982). In order to be valid:

[The] warrant and accompanying affidavits [must] narrow[] down the field of potentially vulnerable persons to those employees whom INS agents might reasonably believe to be aliens.
659 F.2d at 1226.
The standard constructed in Blackie's was adopted by this circuit in its review of this Court's preliminary injunction ruling. See 799 F.2d at 553. The panel appeared to adopt the standard reluctantly, noting that the litigants were not able to propose a viable alternative. Id. The Court also observed that the Supreme Court did not expressly decide the particularity requirement for an entry warrant used in INS factory raids in INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), instead leaving the question open to the circuits. Id. n. 6. Instead of using this as a basis to explore for a viable alternative to Blackie's, the Court stated that the Supreme Court in Delgado "made explicit reference to the agents' lawful presence in the factories based on warrants that did not 300 identify any suspected illegal aliens by name. (emphasis in original). See 466 U.S. *300 at 212, 217 n. 4, 104 S.Ct. at 1763 n. 4 [sic, means n. 5]." What the Court failed to mention was that the issue of the validity of the warrant in Delgado was explicitly not decided by the Ninth Circuit panel prior to the appeal. See International Ladies Garment Workers' Union, AFL-CIO v. Sureck, 681 F.2d 624, 629 (9th Cir.1982), reversed sub nom. INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247. Furthermore, Justice Rehnquist in writing for the majority explicitly noted that the "warrants were issued on a showing of probable cause by the INS," a fact that immediately distinguishes Delgado from any case involving application of Blackie's "hybrid" standard of review.
These observations aside, the fact remains that Blackie's has been adopted by this circuit and it is the controlling law in this case. The question presented is whether under that standard the warrant in this case can pass muster as a "warrant of inspection." The Court concludes that the warrant here, even if limited to allowing entry for purposes of inspection, is deficient as a matter of law.
To begin with, the warrant is distinguishable from the warrant in Blackie's on the basis of the facts in the cases. Second, this warrant is deficient under the legal standard identified in Blackie's. Finally, the warrant in this case needlessly threatens the Fourth Amendment rights of others present in the targeted workplace.
(i) The Factual Distinction Between this Case and Blackie's:
Blackie's involved INS raids on a restaurant in Washington, D.C. Two raids were conducted, the second following upon the district court's suppression of the evidence procured in the first raid. After the second raid was struck down by the lower court, the Government appealed to the D.C. Circuit. For purposes here, only the second warrant, which was based on the INS' statutory authority, is relevant.
Although it made no reference to seizure,[8] the warrant in Blackie's was similar to the warrant in this case. Both warrants specified the place to be searched, the period of time within which the search had to be completed, and the time period during the day in which the search could be undertaken. In these respects, the warrants are not distinguishable in any significant way.
What does distinguish the warrants are not the warrants themselves, but rather the affidavits supporting the warrants. In Blackie's, the INS assembled an impressive corpus of information which was presented to the magistrate. An informant who had worked at Blackie's swore on personal knowledge that approximately twenty other illegal aliens were employed there. A second affidavit from an apprehended alien who had worked at Blackie's verified information in the first affidavit, and named "Regelio" and "Pedro" as two of many illegal Hispanics currently employed at the restaurant. The INS also apprehended two illegal aliens who were carrying wage statements from Blackie's. One of the two supplied a third affidavit stating that Blackie's was employing illegal aliens from El Salvador and Africa, and related the first names of three of those employees.
After the district court threw out the first warrant (which was based on the foregoing information) because of lack of specificity in the warrant itself, the INS redoubled its investigative efforts. First, the INS received a fourth affidavit from a previously reliable source reporting that thirty or more illegal aliens were currently employed at Blackie's. This affidavit provided specific details including names of suspected illegal aliens, places they might be

hiding, and evidence suggesting that these persons were in the United States illegally. Next, an INS agent "staked out" Blackie's for several hours on successive days. The agent observed employees both inside and 301 outside the restaurant. The agent swore to his belief that many of the employees *301 were illegal aliens because of their attire and apparent inability to speak any language except Spanish. Three days after the first agent completed his stake out, a second agent surveyed Blackie's during working hours. The agent observed numerous persons "of apparent Hispanic descent entering through the back doors of the restaurant." 659 F.2d at 1215.
In addition to this first hand information, an INS agent's affidavit provided to the Magistrate swore that the INS had apprehended forty eight (48) illegal aliens at Blackie's in the preceding five years. The agents supplemented this affidavit with a clipping from a Washington Post news story which reported the manager of Blackie's as having stated that he hires foreign workers.
Totalling up this information, the magistrate was presented with six affidavits, five of which contained first-hand testimony. Among the affiants were individuals who had worked or were working at Blackie's, a reliable informant with detailed information, and two INS agents who personally observed the situation at Blackie's. Among the material information procured were pay stubs from Blackie's on the persons of two illegal aliens, INS records showing Blackie's history of employing illegal aliens, and a news article containing essentially an admission of hiring illegal aliens by the manager of Blackie's. Interspersed through all this information were names of suspected illegal aliens working at Blackie's, descriptions of their person and their clothing, and identification of where these suspects might be hiding on the premises of the restaurant.
The information submitted in support of the warrant in Blackie's stands in sharp contrast to the warrant application in this case. Whereas the INS provided the magistrate with six affidavits and several potent pieces of documentary evidence in Blackie's, here the INS could muster but a single affidavit. Worse still, Joseph Brandon's affidavit is not based on personal knowledge; instead it consists of cullings from the INS' files. Of the seven pieces of information, two items are three and one-half year old references to a single incident in the past wherein illegal aliens were discovered at PPC. One of the tips received indicating the presence of illegal aliens at PPC was anonymous and general. The only other tip was received from the Petaluma Police Department, but this in turn was admittedly based upon "numerous anonymous calls" none of which the police corroborated. Finally, employment records at PPC did indicate that five employees of PPC were illegal aliens, but no grounds are set forth for a belief that others also were employed there.
Unlike Blackie's, the supporting material in this case contains no first-hand information, neither from informants nor INS agents. Both in terms of quality and quantity, the supporting material for the warrants in the two cases is radically different. On this factual basis alone, this case is distinguishable from Blackie's.
(ii) The Warrant Fails Under the Blackie's Standard:
These factual distinctions have significant legal implications. The most obvious is that this warrant simply fails to meet the standard in Blackie's. In sizing up the second warrant in Blackie's, the D.C. Circuit placed considerable weight on the body of information accompanying the warrant. The Court stated:
Taken in conjunction with the warrant, which authorized the INS to enter the premises and make a search ... these papers established that the INS agent were empowered to enter Blackie's only for the purpose of questioning those employees whom the agents might reasonably suspect of being illegal aliens.... This warrant and accompanying affidavits narrowed down the field of potentially vulnerable persons to those employees whom INS agents might reasonably believe to be aliens.
659 F.2d at 1226.
In other words, the Court interpreted the warrant to incorporate the affidavits which formed the basis for the 302 warrant application. This is consistent with the Supreme Court's decision in Massachusetts v. Sheppard, *302
468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed. 2d 737 (1984).[9] This approach was the D.C. Circuit's method of satisfying the requirement that the warrant must "advise the [subject] of the scope and objects of the search,

beyond which limits the [officer] is not expected to proceed." 659 F.2d at 1217, quoting Marshall v. Barlow's, Inc., 436 U.S. 307, 323, 98 S.Ct. 1816, 1825-26, 56 L.Ed.2d 305 (1978). In Blackie's, the supporting affidavits functioned to flesh out the scope and nature of the investigation. The manifold affidavits told the Government information about the suspects' identities, their features, their appearance including type of clothing, and likely hiding places. All of this information was read into the warrant, acting as a safeguard to assure that the individual's reasonable expectation of privacy was not "subject to the discretion of the official in the field." Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979), quoting Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732-33; 18 L.Ed.2d 930 (1967).
No such safeguards were present in this case. On its face, the warrant is quite similar to that in Blackie's. However, unlike Blackie's, when the warrant is sized up in connection with its supporting application, it is toothless. The INS agents here had no facts with which to fill in the details of who these "others suspected of being illegal aliens" might be, what their names were, what they were wearing, or where they might be hiding. To uphold a search on the basis of the sparse information provided here would be to apply a hybrid standard so eviscerated as to constitute little more than an administrative warrant standard.
(iii) The Threat to the Fourth Amendment Rights of Others:
On the balance of interests that is supposed to characterize the trade off between the government's need to enforce the law and the individual's right to freedom and privacy,[10] the magistrate assigned disproportionate weight to the Government's position. In contrast to the magistrate in Blackie's, the magistrate in this case did not have enough information to enable him to make an intelligently informed decision. Although the standard here is not the traditional "probable cause" of the ordinary search warrant, a constant requirement is that the application for a warrant "must have sufficient specificity to enable the judge to make an independent determination of whether" the standard for the issuance of the warrants has been satisfied. Molders, 799 F.2d at 552 (emphasis in original). Without such information, the magistrate could not assess the competing law enforcement and privacy value. Absent a reasonable balance, this Court must find that the relevant standards were not met to justify the issuance of the warrant. In terms of the Blackie's standard, the warrant and supporting affidavit did not contain "sufficient specificity and reliability to prevent the exercise of unbridled discretion by law enforcement officials." 659 F.2d at 1225.
IV. CONCLUSION.
As discussed above, the warrant used to raid PPC was a seizure warrant. The warrant did authorize the INS to 303 "search," but the purpose was not to inspect but rather *303 to seize. Once "others suspected of being illegal
aliens" were found, seizure was authorized 0907 without any inquiry into whether the suspicion was correct. Under the relevant precedent, the warrant is invalid. Moreover, even if it is scrutinized under the relaxed "hybrid" criterion of Blackie's, the warrant is deficient. The warrant and the supporting affidavit simply did not provide enough information to place limits on the unbridled discretion of the INS. Absent such a check, the warrant was constitutionally infirm and its execution violated the Fourth Amendment rights of the plaintiffs present at PPC. Therefore, the Court hereby grants plaintiffs' motion for partial summary judgment concluding that the warrant used at PPC was invalid. Defendants' motion for partial summary judgment is hereby denied.
IT IS SO ORDERED.
[1] The Government argues that only PPC is challenging the validity of the warrant and that only PPC has standing to pose such a challenge. As plaintiffs pointed out at oral argument, all plaintiffs present at PPC during the raid are challenging this warrant. Their right to contest the validity of the warrant is discussed in the Court's prior opinion. See 643 F.Supp. at 889.
This case is distinguishable from Martinez v. Nygaard, 820 F.2d 1024 (9th Cir.1987), because Martinez involved a warrant that authorized only a search. The court ruled that employees had no standing to challenge the warrant to search their workplace. The target of the warrant was the workplace itself. In contrast, the employees here

were the targets of a seizure warrant. Plaintiffs here certainly have a legitimate expectation of maintaining their own privacy 0907 an expectation which seizure would severely compromise. See Martinez, 820 F.2d at 1027.
[2] This precise concern was voiced over sixty years ago by the Supreme Court in Marron v. U.S., 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927):
"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."
[3] "Plaintiffs' Statement of Material Facts Not On [sic] Dispute," filed on August 14, 1987, at page four, reports that fourteen people were arrested during the raid on PPC on April 23, 1982. Only four of the fourteen people were named in the warrant.
[4] The circuit panel went on to articulate the established standard for the issuance and validity of such warrants:
To the extent the warrants authorize INS to seize employees, the Supreme Court's holding in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), requires "probable cause particularized with respect to that person." Id. at 91, 100 S.Ct. at 342 (emphasis supplied by circuit panel). "This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be." Id.
[5] See 643 F.Supp. at 894:
The Court finds as a matter of law that to the extent the defendants rely on these warrants to search for and arrest unidentified and unknown "others," these warrants violate the fourth amendment and are invalid.
[6] See Massachusetts v. Sheppard, 468 U.S. 981, 988 n. 5, 104 S.Ct. 3424, 3428 n. 5, 82 L.Ed.2d 737 (1984):
The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional. [citations omitted] That rule is in keeping with the well-established principle that "except in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant." Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967).
[7] In review of this Court's preliminary injunction, the Ninth Circuit seemed to indicate that it is willing to review the warrant according to its characterization by the INS. Thus, in footnote five, despite the fact that this Court's finding that the warrants authorized seizures was "amply supported by the record," the circuit panel found it "unnecessary ... to decide whether the hybrid probable cause standard that Blackie's applied to entry warrants should apply to warrants that, on their face, authorize seizure of suspected illegal aliens." 799 F.2d at 552 n. 5.
With all due respect, this Court has concluded once again that this warrant does authorize seizure 0907indeed, it is a seizure warrant 0907 and it is not enough passively to accept the INS' good-faith mischaracterizations. Furthermore, this Court submits that the circuit panel decided precisely what it said it need not, i.e., that any warrant which authorizes seizures must be supported by "probable cause particularized with respect to that person." 799 F.2d at 552 n. 5, quoting Ybarra, 444 U.S. at 91, 100 S.Ct. at 342 (emphasis added by circuit panel). Accordingly, the warrant here is invalid as to all but the five named individuals.
[8] This distinction alone, in this Court's view, is determinative. The comparison between the two warrants is an "apples versus oranges" proposition simply by virtue of what the warrants authorized. Nevertheless, in deference to the circuit, the Court will simply ignore the distinction in the discussion that follows.
[9] Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) is a companion case to U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), wherein the Supreme Court created a "good faith exception" to the exclusionary rule. The Court then relied upon that exception in Sheppard to find that a defective warrant containing overbroad authorization for a search of a suspect's home would not result in the suppression of evidence that had been specifically mentioned or described in the affidavit accompanying the warrant. The Court ascribed no significance to the fact that the affidavit had not been incorporated explicitly into

the warrant. For a discussion of Sheppard see 1 Ringel, Searches & Seizures, Arrests and Confessions § 5.6 at 5-27 to 5-29 (Clark Boardman Co., Ltd. 1987). [10] See Delaware v. Prouse, 440 U.S. at 654, 99 S.Ct. at 1396 ("[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." [citations omitted]).
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 723 F.Supp. 432 (1989)
PEARL MEADOWS MUSHROOM FARM, INC., et al., Plaintiffs, v.
Alan NELSON, et al., Defendants.
No. C 82-1896 RPA.
United States District Court, N.D. California.
August 24, 1989.
43345 *433 *434 *435 Joseph P. Russoniello, U.S. Atty., and Patrick Ramirez S. Bupara, Asst. U.S. Atty., San Francisco, Cal., and David J. Kline, Asst. Director, Parker Singh and Norah A. Schwarz, Attys., Office of Immigration Litigation, Civ. Div., Dept. of Justice, Washington, D.C., for plaintiffs.
John M. True, Employment Law Center, San Francisco, Cal., for defendants.
AMENDED ORDER DENYING RULE 41(b) MOTION
AGUILAR, District Judge.
Plaintiffs allege that the Immigration and Naturalization Service (INS) has engaged in a pattern and practice of carrying out workplace raids in violation of the Fourth Amendment. The INS and Border Patrol agents arrive at workplaces in such a manner so as to provoke exigent circumstances to justify a warrantless entry. Otherwise, the agents enter with constitutionally deficient warrants, or without warrants and without consent. Consent, when requested, is coerced or involuntary. Once inside, the agents target employees of Hispanic appearance for 436 questioning and detention, whether or not the agents have *436 reasonable, articulable suspicion of illegal alien status. Workers are forcibly detained and arrested without probable cause.
A preliminary injunction was issued in 1985, enjoining defendants from conducting workplace raids in a manner which would provoke exigent circumstances. The injunction ordered that INS entries onto workplaces must be based on either a valid warrant or valid consent. Detentive questioning of workers must be based on articulable reasonable suspicions of illegal alienage. Agents may not arrest a worker except upon probable cause. International Molders' v. Nelson, 643 F.Supp. 884 (1986), remanded with modifications, 799 F.2d 547 (9th Cir.1986).
After four calendar months of trial, plaintiffs have closed their case-in-chief. Defendants now move for a Rule 41 (b) dismissal of the action. After hearing oral argument on the motion, the Court denied the motion from the bench. This Order serves to provide explanation for the Court's ruling.
For the purposes of this Order, the Court has only addressed those claims which required some explication of the applicable law and a determination of the appropriate burden of proof. The Court is unable, in this short order, to address each of the minor issues raised in the over 300 pages of briefing.
I. DISCUSSION
A. Legal Standards
Under F.R.Civ.Pro. 41(b), the trial court judge, sitting as the finder of fact, may review the evidence and its weight and issue judgment for defendant if plaintiff has not shown a right to relief. The trial judge has the discretion to grant a Rule 41(b) motion even if plaintiff has made out a prima facie case, if the evidence preponderates against the plaintiff. S.E.C. v. Murphy, 626 F.2d 633, 658-59 (9th Cir. 1980).

The Court has received, read and considered the extensive briefing submitted on this motion, it has painstakingly reviewed the complaint, trial transcript and its own copious notes. In addition, the Court heard the oral argument of counsel. Good cause appearing therefor, the Court finds that plaintiffs have shown not only a prima facie case on their claims, but also that the evidence preponderates in their favor at the close of their case-in-chief.
B. Plaintiffs' Standing
This suit challenging the INS' practices during work place raids is brought by five employers and a certified class of "persons of Hispanic or other Latin American ancestry ... subjected to the policies, practices and conduct of the INS and/or Border Patrol during the course of INS area control operations directed at places of employment." Defendants argue that plaintiffs, as named employers and class representatives, have failed to show they have standing to pursue the asserted claims.
(1) Are the class representatives Hispanic?
Defendants contend that plaintiffs Edward Armstrong, Francisco Rivera, Evangelina Mendoza Avalos, Antonio Sanchez-Vaca, and Jose Rodriquez have failed to show they are "persons of Hispanic or other Latin American ancestry" and as such, cannot represent the class.[1] According to defendants, the class-wide claims must be dismissed in the absence of testimony from a representative with standing as an Hispanic.
Edward Armstrong is not alleged to be a class representative in the Seventh Amended Complaint. Although 437 plaintiffs noted this in the opposition papers, defendants *437 reiterated their assertions that Edward Armstrong
had failed to show he was Hispanic, in their reply memorandum. Edward Armstrong's racial status is irrelevant to the class claims.
At first glance, defendants' attack on the remaining class plaintiffs appears frivolous and an exercise in re-stating the obvious. Defendants note that the Court cannot take judicial notice of plaintiffs' racial status. This admonition notwithstanding, the Court, as trier of fact, is competent to make this finding based on the pleadings and evidence submitted at trial.
In their complaint, plaintiffs asserted they were Hispanics of Mexican and Salvadoran descent. All the class representatives have Spanish surnames. The Court observed these plaintiffs testify at trial, their physical characteristics denote Hispanic heritage. In addition, the witnesses spoke Spanish and testified through interpreters. Based on the Court's observations, and in the absence of evidence to the contrary, the Court finds that Joseph Angel Chavez, Francisco Rivera, Evangelina Mendoza Avalos, Antonio Sanchez-Vaca, and Jose Rodriquez are "persons of Hispanic or Latin American ancestry" and possess standing to represent the class.[2]
Rogelio Lona did not testify at trial and no evidence was presented relating to Mr. Lona. Mr. Lona is HEREBY DISMISSED from the case.
(2) Plaintiffs' Standing To Object To A Pattern And Practice Of Using Constitutionally Infirm Warrants
The Court has not certified an employer class. Accordingly, the named employer plaintiffs must have standing to object to the entry of the INS onto business premises where the class members are employed. Only the owner or manager of the business has standing to object to unlawful entries. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978) (Fourth Amendment rights may not be vicariously asserted.) As this Court has previously held, although the employee class members have suffered injury from the allegedly unconstitutional interrogations, detentions, and seizures, "the corporate entities have their own rights to assert based on the alleged warrantless entries, improper warrants, coerced consent or fabricated exigent circumstances involving their properties." International Molders' v. Nelson, 643 F.Supp. 884, 889 (N.D. Cal. 1985) (Order granting preliminary injunction). In that Order, the Court ruled that "all plaintiffs have standing." Id. The

employers have a personal stake in the litigation and an expectation of privacy in their business establishments. Marshall v. Barlow's, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819-20, 56 L.Ed.2d 305 (1977) (Constitutional protection of commercial establishments is historically rooted in the Fourth Amendment.) At the same time, however, the employers are seeking injunctive relief, and this Court may, and must, look to evidence of a pattern of unlawful activity to determine whether injunctive relief is appropriate. See Allee v. Medrano, 416 U.S. 802, 815, 94 S.Ct. 2191, 2200, 40 L.Ed.2d 566 (1973). The inquiry necessarily entails taking evidence of INS conduct at other businesses not named as plaintiffs.
Plaintiff Petaluma Poultry asserts the claim that the INS enters workplaces with general warrants that provide for the seizure of named employees and "others," without particularized probable cause to arrest those unnamed workers.
Defendants argue that this claim must be dismissed because Petaluma Poultry, the only named plaintiff subjected to a general warrant, did not testify at trial. Although several witnesses testified to the events occurring at Petaluma Poultry, none of the witnesses asserted they were testifying on behalf of the business. According to 438 defendants, it follows that plaintiffs *438 failed to produce any witness with standing to challenge the entry into Petaluma Poultry premises.
Defendants have confused the evidentiary proof needed to meet the standing requirement. Defendants' attack does not focus on plaintiffs' showing of an injury or a personal stake in the litigation, but rather on whether plaintiff has authorized the suit. Plaintiff Petaluma Poultry, the business, has initiated and prosecuted this suit.[3] In the complaint, plaintiff Petaluma Poultry contests the use of the general warrant. Petaluma Poultry is not under a duty to send a business representative to reiterate that challenge at trial. Petaluma Poultry is already represented through counsel. The standing requirement is met if Petaluma Poultry can produce evidence of injury resulting from the allegedly unconstitutional activity. Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).
That question has already been answered in the affirmative. On November 24, 1987, this Court granted summary judgment in favor of Petaluma Poultry's claim that the general warrant used in the raid of its business establishment was constitutionally infirm, both as an inspection warrant and as a seizure warrant. International Molders v. Nelson, 674 F.Supp. 294 (N.D.Cal. 1987). Subsequently, plaintiffs amended their complaint to allege a claim that as a pattern and practice, the INS employs general warrants to gain entry to businesses and seize unnamed "others".
At trial, plaintiffs submitted evidence of the use of general warrants at thirty-one different businesses. This evidence establishes the claim that the INS has a pattern and practice of using general warrants to secure entry into workplaces. Through this evidence, plaintiffs are not attempting to vicariously assert the rights of others, but are instead producing material and relevant evidence necessary to establish a right to injunctive relief. Allee v. Medrano, 416 U.S. at 815, 94 S.Ct. at 2200; City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
Defendant raises the same flawed standing argument to attack the first, second, third, fourth and fifth claims for relief. Each of these claims challenges the constitutionality of the INS' entry into plaintiffs' businesses. Once again, defendants do not purport to allege that the named employer plaintiffs do not have an expectation of privacy in the businesses. Instead, defendants assert that the named plaintiffs' failure to testify at trial defeats whatever standing they may possess. The Court holds that direct testimony from a named plaintiff is not required if the necessary elements of the asserted claim are adduced through the testimony of other witnesses.
In this instance, based on the pleadings and the evidence submitted at trial, plaintiffs have met this burden and possess standing to pursue their first, second, third, fourth and fifth claims for relief.
C. Plaintiffs Have Shown A Persistent Pattern Of Unlawful Entries Into Workplaces
The Court has previously determined that the use of open ended warrants of inspection as a means of gaining entry into workplaces for dragnet-style questioning and seizures of large numbers of workers at a particular cite is

unconstitutional. At this point, the Court must determine whether the raids conducted without a warrant meet constitutional mettle. Defendants argue that the warrantless searches were conducted with the consent of the proprietors of the businesses. Plaintiffs assert that this consent was either lacking, limited, or obtained through coercion.
(1) Warrantless Entries Without Consent
Plaintiffs' first claim for relief alleges that defendants' have a policy, custom and practice of entering business 439 premises without a warrant, without consent and *439 without exigent circumstances. The Fourth Amendment
prohibits warrantless intrusions into non-public areas unless a recognized exception to the warrant requirement is established. Marshall v. Barlow's Inc., 436 U.S. at 312-13, 98 S.Ct. at 1820-21. Although 8 U.S C. § 1357 authorizes INS agents to question and seize suspected aliens, the agents are nevertheless constrained by the protections of the Fourth Amendment, Zepeda v. INS, 753 F.2d 719 (9th Cir.1985), including the warrant requirement.
All but seven of the eighty-eight raids conducted during the week of Operation Jobs were warrantless raids. Nineteen of the workplace raids covered at trial were warrantless raids. Plaintiffs assert that ten of the raids were conducted without any consent. (Neve Roses, Petaluma Mushroom, San Jose Brick, American Electro Finishing, Sweet Sensations, El Torito, Monterey Restaurant, Skylark Nurseries, RJF Enterprises and Oneto Metals).
Defendant argues that no warrant was required at Skylark Nurseries, Neve Roses, Petaluma Poultry, American Electro, RJF Enterprises, or San Jose Brick because there is "no such thing as Constitutional protection for commercial curtilage." Defendants assert that the holdings of Dow Chemical v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1985) and Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) taken together suggest that there is no constitutionally justified expectation of privacy violated by the INS's entries onto premises not enclosed by building walls.
Oliver v. United States reaffirmed the holding that "`the special protection accorded by the Fourth Amendment to the people in their persons, houses, papers, and effects is not extended to the open fields.'" 466 U.S. at 176, 104 S.Ct. at 1740 (quoting Hester v. U.S., 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924)). In Oliver, a field of marihuana over a mile from the house and fenced in marihuana patches located in the woods behind a house were found to be open fields undeserving of Fourth Amendment protection. The Court distinguished these open fields from curtilage, wherein a person would have a reasonable expectation of privacy. The curtilage of a home has always enjoyed an expectation of privacy. In contrast, "[t]hese fields, by their very character as open and unoccupied, are unlikely to provide the setting for activities whose privacy is sought to be protected by the Fourth Amendment." 466 U.S. at 179, n. 10, 104 S.Ct. at 1742, n. 10. However, the opinion contained no reference to whether commercial curtilage should enjoy the same protections afforded the curtilage of a private residence.
In Dow Chemical Co. v. United States, the corporation argued that its expectation of privacy in its commercial curtilage was violated when the Environmental Protection Agency took precision aerial photographs of the 2,000 acre plant complex. Dow had taken elaborate precautions to secure the complex from ground intrusions. The Sixth Circuit Court of Appeals held that whatever the protections afforded commercial curtilage barring ground level intrusions, the aerial photographs did not violate any expectations of privacy. Id. at 236, 106 S.Ct. at 1825-26. The Supreme Court explicitly refrained from ruling that commercial curtilage did not enjoy constitutional protections. "Any actual physical entry by EPA into any enclosed area would raise significantly different questions, because the businessman, like the occupant of a residence, has a constitutional right to go about his `business free from unreasonable official entries upon his private commercial property.'" Id. at 237, 106 S.Ct. at 1826 (quoting See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967)). In addition, the Court concluded that the open areas of an industrial plant complex spread over 2,000 acres are "not analogous to the curtilage of a dwelling for purposes of aerial surveillance." 476 U.S. at 239, 106 S.Ct. at 1827 (emphasis added). The Court noted at this point that it was not reaching the issues raised by the Court of Appeals for the Seventh Circuit in United States v. Swart, 679 F.2d 698 (7th Cir.1982) involving actual physical 440 entry onto business premises. 476 U.S. at 239, n. 7, 106 S.Ct. at 1827, n. 7. In U.S. v. Swart, *440 the Seventh Circuit explicitly ruled that the curtilage of a business is subject to Fourth Amendment protections.

The Supreme Court's admittedly narrow holding in Dow Chemical does not suggest, as defendants argue, that commercial curtilage has no constitutional protections. Instead, the Courts' deliberate limitations suggest that the Supreme Court did not want to completely exclude commercial curtilage from the protections of the Fourth Amendment. This Court finds that under existing law, commercial curtilage is subject to the Fourth Amendment. However, as in all Fourth Amendment analysis, the Court must determine whether the reasonable expectations of privacy in the commercial curtilage of each of the businesses were violated by the INS' entry onto the premises. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
The centrally relevant consideration in determining the extent of the curtilage is "whether the area in question is so intimately tied to the home itself that it should be placed under the home's `umbrella' of Fourth Amendment protection." United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987). The Dunn Court identified four factors useful in analyzing curtilage questions: (1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (3) the steps taken by residents to protect the area from observation by people passing by. Id. at 301, 107 S.Ct. at 1139-40. The Court refused to adopt a bright line rule that curtilage should extend only to the nearest fence. Fences, however, are to be considered in defining the curtilage. Id. at 301, n. 4, 107 S.Ct. at 1139 n. 4.
The Court finds that these factors, with some adaptation to the nature of business premises, are equally relevant in determining the extent of commercial curtilage. See Dow Chemical, 476 U.S. at 245-246, 106 S.Ct. at 1830-31. (Powell J. dissenting) (Review of Fourth Amendment application to businesses parallels application to private homes, except administrative or regulatory searches may be considered reasonable in business context.) The third factor, "the nature of the uses to which the area is put" is especially relevant where the nature of the business requires production within the curtilage adjacent to buildings. The curtilage in these instances is usually an integral part of the commercial establishment and production process. If steps are taken to protect these areas from public intrusion, the business has a reasonable expectation of privacy in the curtilage to be free from physical entries and searches without a warrant.
Skylark Nursery produces ornamental plants and containers for sale to the wholesale trade. The operation includes a greenhouse, a work building, and a maintenance shop. A fence encircles the nursery premises. At the entrance to the nursery are two stone pillars on either side of a driveway with signs stating the hours of operation and "No Retail Sales." Periodic signs along the front and back fences say "Private Property, "No Trespassing." Some of the work occurs inside the structures and greenhouses, while some production work takes place outside where the containerized plants are arranged. Roads run throughout the property. There is a posted sign that says "15 mph".
In the first operation, Mr. Farmer-Bowers, Skylark's working president/general manager, heard his sales manager shouting about a vehicle speeding by the office. Two vehicles entered the premises and INS officers arrested several workers. The INS never asked for permission to enter and search the premises, nor was Farmer-Bowers or any one else ever presented with a warrant. The second raid was similar to the first; Mr. Farmer-Bowers observed a speeding vehicle enter the premises. He followed the vehicle. No warrant was presented and no permission to enter was ever requested. The third raid took place at the parking lot. Once again, the INS officers never sought consent. Indeed, the INS did not even speak with any of the supervisory personnel. By the fourth 441 incident, Mr. Farmer-Bowers was able to stop *441 the INS vehicles from entering the premises. He met the agents at the top gate, indicated that the property was private and requested a search warrant. The INS agents left and did not return.
The government argues that Skylark Nurseries is open fields and a warrant was not required to enter the property. Although Skylark Nurseries would undoubtedly be subject to aerial photos of its business, the INS entered into areas of the business where the public is normally restricted entry. Parts of the business would be visible from the highway. The INS agents, however, did not limit their search to observations from strategic viewpoints, but entered onto the premises, speeding by at twice the normal speed.
The Court finds that Skylark's reasonable expectations of privacy entailed an expectation to be free from physical entry onto fenced off business premises, where production work takes place, and the public is not granted

access. Although the area is large and thus not in close proximity to the actual office, the remaining three factors discussed in Dunn are met in this case.
The nature of the search is relevant to the nature of the protections taken to protect a business' privacy.[4] In this instance, Skylark took steps to protect the curtilage from physical intrusion, not visual observation[5]. Indeed, if the INS had conducted a visual or aerial search, Dow Chemical would undoubtedly apply and Skylark would not be able to contest the constitutionality of the search. That is not the case. Skylark's reasonable expectation of privacy to be free from physical intrusions was violated when the INS agents entered the property without a warrant and without consent.
Neve Roses is also in the wholesale nursery business, and the business has greenhouses as well as parcels of land devoted to containerized planting. The business is not open to the public. The workers are generally in the greenhouses. During one of the raids, Mr. Neve saw border patrol agents enter one of the buildings. He asked one of the agents what they were doing and requested a warrant, he did not receive a response. No workers were seen running or yelling.
The INS/Border Patrol agents violated Neve Roses' reasonable expectations of privacy when they entered the greenhouses, without a warrant and without consent. Under no stretch of the imagination can the greenhouses, enclosed buildings where the business of growing plants is accomplished, be considered open fields under Oliver. The Court need not reach the issue of whether the area used for containerized planting consisted of open fields since the Border Patrol agents did not restrict their search to these areas, but physically entered the greenhouse buildings.
At Petaluma Mushroom, the buildings are surrounded by a concrete slab. At one part of the slab, hay is kept moist to be used later in the growing rooms. The public is not allowed in the areas surrounding the growing rooms. The property boundaries are demarcated with a fence. When the border patrol agents entered the property, they crossed over the slab, parked their vehicles next to the place with the hay and proceeded to enter into the areas around and between the growing rooms. This entry onto the curtilage immediately surrounding the business violated Petaluma Mushrooms' expectations of privacy.
San Jose Brick is a wholesale-only manufacturer of bricks. Access to the fenced-in yard where the bricks are 442 stacked *442 and manufactured is open only to building material dealers with flexibly scheduled appointments to
pick up brick. Members of the general public do not normally enter the brickyard. When unauthorized persons enter the yard, the manager is immediately notified. Signs are posted stating "Wholesale only," "No parking," "Employees only beyond this point." There are two gates between the street and the brick yard. The mail truck regularly enters past the first gate to deliver the mail.
INS agents drove past the two gates, parked by the office and arrested employees near a forklift. The brick yard was not an open field, but the curtilage of a business and an area where the business was in fact conducted. The two gates served to enclose the brick yard, the second gate providing a barrier across which even employee vehicles were not allowed to cross. San Jose Brick had taken reasonable, if not excessive, steps to restrict the entry of the public onto the premises.
The INS violated San Jose Brick's reasonable expectation of privacy and freedom from physical searches when the agents drove into the brick yard to search for and arrest the employees near the forklift. The INS did not possess a warrant, nor was consent even sought to enter the premises. The Court notes that the agents, having parked near the office could easily have requested the consent of the manager to enter and question the employees.
Finally, defendants argue that the search conducted at RJF Enterprises is not subject to the scrutiny of the Court because agents entered the open work area adjacent to the business. This work area is covered, like a carport, although it is not surrounded by walls. The business premises are enclosed by a chain link fence which does not impede visual inspection of the entire work area. This open work area is unlike the open fields discussed in Oliver. It is contained, developed, populated and set aside for a particular business purpose. The premises are not open to the general public and RJF does not conduct walk-in trade.

The two armed agents who ran into the work area, when questioned as to the justification for entering without a warrant, answered that they did not need one "if they could see Mexicans in plain view from the street."[6] While persons of Mexican ancestry may arguably be identified from a street, a worker's Mexican ancestry does not establish probable cause to search a private place. The agents violated RJF's expectation of privacy. In the absence of a warrant or consent, the search was unconstitutional.
In American Electro, defendants assert that because a roll-up garage door was open, affording a clear view to the public of the inside of the premises, agents did not need a warrant or consent to enter and search the factory. The open garage door does not provide authorization to physically enter the factory. Indeed, established policy at the factory dictated that any client or customer arriving at the premises was required to go directly to the office of the owner before doing any business with the company.
Peppered throughout the government's motion to dismiss are suggestions that because the public could possibly see into the businesses, the premises do not enjoy an expectation of privacy from physical intrusion. However, absent an exception to the warrant requirement, viewing alone does not justify a physical entry onto private 443 property.[7] Instead, the proper *443 course is for the agents to secure a warrant based on evidence garnered from what they may have seen from their public vantage point. Defendants fail to appreciate the fact that the entry is a subsequent search which itself must be justified as an exception to the warrant requirement.
At this point in the case, defendants do not argue that the agents viewed anything within the American Electro factory to justify a warrantless entry and search.
At Monterey Restaurant, an agent entered the non-public kitchen area through a closed back service door. Defendants contend that because the kitchen is visible from a window and from the public space in front of the counter, the agent did not need a warrant or consent to enter the premises. The Court finds that the INS violated Monterey Restaurant's expectations of privacy in the non-public kitchen area when the agent entered the kitchen without a warrant and without consent.
Under defendants' theory of the plain view doctrine, every business or residence with a window to the world is subject to a physical search. If the residence or business has an Hispanic or visibly ethnic employee or resident, neither a warrant nor consent is required. Such a scenario is repugnant to this country's historically held notions of freedom and privacy. Businesses are not required to board up their windows and cover their doors in order to enjoy an expectation of privacy. Wilson v. Health & Hospital Corp., 620 F.2d at 1212. And an open window, does not make a private place public.
In this case, application of the plain view doctrine is complicated by the fact that the INS is searching for persons who do not have the proper immigration documentation. Unlike contraband, an undocumented alien is not easily identifiable from any distance. The sighting of an Hispanic worker, even an Hispanic worker speaking Spanish can not, without more, form the basis for a warrantless entry.
Defendants do not contest the unconstitutionality of the searches conducted at Oneto Metals and El Torito Restaurant. At Oneto Metals, agents entered the non-public area of Oneto Metal Products, without presenting a warrant or seeking consent from Chris Lorenz, the Plant Manager. When the plant manager approached the officer and offered to help him, the officer flashed a badge, said "No" and continued his questioning. Even if the offer of assistance could be construed as consent to the search, the officer needed a warrant or consent prior to the commencement of the search. At El Torito, agents entered non-public areas of the restaurant without a warrant and without ever requesting consent from any of the supervisory personnel present that day.
Through the evidence submitted on the warrantless, non-consensual raids conducted at Oneto Metal Products, Skylark Nurseries, American Electro Finishing, San Jose Brick, Monterey Restaurant, RJF Enterprises and El Torito Restaurant, the Court finds that plaintiffs have shown, by a preponderance of the evidence, that the INS has a pattern and practice of engaging in warrantless searches, without consent and without exigent circumstances in violation of the Fourth Amendment to the United States Constitution.

(2) Does the INS coerce consent?
Defendants argue that the INS agents received consent to search many of the businesses presented at trial. In addition, defendants contend that plaintiffs bear the burden of showing that consent was not obtained. "[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 [99 S.Ct. 2319, 2325-26, 60 L.Ed.2d 920] (1979)...." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1982). 444 The rule was followed in LaDuke v. Nelson, 762 F.2d 1318, 1329 (9th Cir.1985). Defendants ignore the Supreme *444 Court and Ninth Circuit cases allocating the burden to the government to prove voluntary consent, baldly stating that LaDuke is "dictum and contrary to other Ninth Circuit Court of Appeals and Supreme Court precedent." Defendants fail to cite contrary authority. This Court will follow Florida v. Royer and LaDuke v. Nelson and leave the burden of showing an exception to the warrant requirement on the government.
Because the government has yet to present its case, the Court will limit its inquiry into whether the circumstances surrounding the search indicate a lack of voluntary consent. If the evidence at the close of plaintiffs' case shows coerced consent, defendants will bear the burden of showing voluntary consent in their case-in-chief.
Because the burden is on the government to prove voluntary consent, their motion to dismiss the raids at Mammoth View Lodge, Pedro's Restaurant, and Garcia's Restaurant on the unsubstantiated speculation that consent may have been given is denied.
At other businesses, plaintiffs assert that consent was involuntary because it was coerced by threats or demands, the search exceeded the scope of the consent granted, and consent was obtained by misrepresentation.
LaDuke v. Nelson, 762 F.2d at 1329, summarized many of the factors considered probative on the factual question of the voluntariness of consent, including: "failure to inform of right to refuse consent," Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); "business sophistication," United States v. O'Looney, 544 F.2d 385, 388 (9th Cir.), cert. denied, 429 U.S. 1023, 97 S.Ct. 642, 50 L.Ed.2d 625 (1976), "show of force by armed officers; display of authority," and "defendant awakened by numerous officers at early morning hour," United States v. Marshall, 488 F.2d 1169, 1187-89 (9th Cir. 1973). In order to show voluntary consent, the facts, in totality, must demonstrate more than mere "`acquiescence to a claim of lawful authority.'" LaDuke v. Nelson, 762 F.2d at 1329 (quoting Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968)).
Although the failure to inform an employer of her right to refuse consent does not, of itself, violate the Fourth Amendment, the INS's own procedures direct agents to explain the alternatives to consenting to a search, "including the fact that the employer may deny officers permission to enter the facility." United States Department of Justice, Immigration and Naturalization Service, Investigator's Handbook, 4-9.12.
At Shamrock Technologies, an agent told the office manager, Marianne Crumb, that "he knew that we had illegals back there and that he was going to get them." Ms. Crumb described the agents demeanor as authoritative, very demanding and persistent. He also told Ms. Crumb that if he had to come back, "he was going to shut the doors down." Ms. Crumb was never asked for consent to search the premises, nor was Ms. Crumb informed of her right to refuse consent. Nevertheless, Ms. Crumb felt that she did not have the authority to allow entry to the INS, and after unsuccessfully trying to contact the owners called the production manager, Rogelio Rodriquez, to ask him what rights employers had to refuse entry.
Ms. Crumb testified that she described her conversation to Mr. Rodriquez, who then asked to speak to the agent. Mr. Rodriquez testified that the agent demanded entry to search the production area. After Mr. Rodriquez informed the agent he didn't have any authority to grant entry, the agent started speaking louder and told Mr. Rodriquez, "For your information, I can come back and close the shop." Mr. Rodriquez told the agent, to go ahead and search, since there was no other choice. Mr. Rodriquez did not want to be responsible for shutting down the plant.

At Rojon Electronics, the agent informed the manager he would return in half an hour with a warrant if consent were not granted, adding "Let me in or else." At Bell Industries, the agent informed Mr. Clifford Zachman that he 445 intended to go *445 through the factory. The Court notes that this is not a request, but an announcement.
These three incidents support plaintiffs' claim that consent was not voluntarily given. In addition to the failure to inform the businesses of their right to refuse consent, which standing alone is insufficient to prove invalid consent, the agents accompanied their requests for entry with either direct or veiled threats and a show of authority which led the consenters to believe they had no choice but to capitulate to the agent's demands. These incidents provide sufficient indications of coerced consent to require defendants to meet their burden of showing willful consent.
Plaintiffs also accuse the border patrol agents of obtaining consent through "trickery," concealing the teams of agents from the view of the person who consented to a search by a single officer. The Ninth Circuit has held that a consent to search may not be validly qualified by the number of officers allowed to conduct the search. United States v. Rubio, 727 F.2d 786, 797 (9th Cir.1983). Plaintiffs do not contend that the INS exceeded the scope of consent by entering with more than one agent. Instead, they argue that consent would not have been granted if the proprietors and managers had known there were whole teams waiting to raid the premises.
The Court recognizes that the type of search conducted with teams of agents is strikingly different than a single agent walking through a plant asking questions. This factor is an element contributing to the totality of circumstances reviewed to determine whether consent was freely and voluntarily given. United States v. SierraHernandez, 581 F.2d 760, 764 (9th Cir. 1978) However, the Court also notes that Rubio reasoned that the entry of additional officers would not diminish the consenters expectation of privacy. 727 F.2d at 797. Unless the agent requesting consent misinformed the consenter as to the scope of the search[8], the consenters' relinquishment of privacy may not have been altered regardless of the number of agents conducting the search. Nevertheless, this is a factual question which the Court will resolve after defendants have a chance to rebut the testimony.
The Court finds that plaintiffs have come forward with sufficient evidence on all of the claims asserting the unlawful entry of the INS agents onto business premises to proceed in the case.

D. Defendant's Detention Of Entire Workforces

In their sixth claim, plaintiffs allege that defendants have a policy, custom and practice of "surrounding business premises, and securing and blocking exits so that employees are prevented from leaving, without cause to believe that all those detained within are aliens unlawfully present in the United States ..."

Defendants argue that this claim is precluded by the holding in INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). The Supreme Court rejected

the claim that the entire work forces of the two factories were seized for the duration of the surveys when the INS placed agents near the exits of the factory sites.

Id. at 218, 104 S.Ct. at 1763.

The presence of agents by the exits posed no reasonable threat of detention to these workers

while they walked throughout the factories on job assignments. Likewise, the mere possibility that

they would be questioned if they sought to leave the buildings should not have resulted in any

reasonable apprehension by any of them that they would be seized or detained in any meaningful

way. Since most workers could have had no reasonable fear that they would be detained upon

446

leaving, we concluded that *446 the work forces as a whole were not seized.

Id. at 219, 104 S.Ct. at 1764 (footnote omitted).

In INS v. Delgado, the Court found that the one attempt to restrain a worker from leaving the factory was an "ambiguous and isolated event." Id. at 218, n. 6, 104 S.Ct. at 1764, n. 6. During the Delgado survey, the

individual encounters retained a consensual character and none rose to the level to constitute detentive interrogation. The Court went on to state that "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." Id. at 216, 104 S.Ct. at 1763.
However, whereas the Delgado survey involved solely non-detentive questioning, the evidence in this case shows coercive, physical detentions and restraints. Unlike the employees at the garment factory, workers here were told they couldn't leave. The agents at the doors of the factories and businesses raided here did not confine themselves to non-detentive questioning of workers exiting the plant, but at times, physically restrained people from leaving the secured areas.
Delgado does not stand for the proposition that all work place surveys, regardless of their character, prophylactically fall within the confines of the Fourth Amendment, free from judicial scrutiny. Instead, Delgado states that the posting of agents at the exits and entrances, without more, does not constitute a detention of the entire workforce. Consensual questioning does not violate the Fourth Amendment, however, INS behavior which exceeds the boundaries of Delgado may be found violative of constitutional protections.
The raid on Dalena's College of Beauty stands in stark contrast to the facts recited in Delgado. The receptionist was told that no one was to leave and that agents would be stationed at the doors to prevent any departures. When an instructor attempted to leave the building during the raid, she was prevented from doing so by an uniformed INS agent stationed at the front door. When she explained that she wanted to buy a pack of cigarettes, he shook his head and refused her exit. A student attempted to leave through the back door, but was prevented from doing so by an agent stationed at the rear exit. When her instructor, who couldn't understand who would keep anybody from leaving the building, went to check, she was unable to open the back door. Although she opened it slightly, an agent pushed it closed. She slowly reopened the door and asked the agent why her student couldn't leave. She was told that no one was allowed to leave. She was unable to open the door again.
Unlike Delgado, the students and instructors were not allowed to move around the building as they would customarily have done during a regular class day. For two hours, the INS agents dictated the physical movement of instructors and students alike, ordering the detainees from one room to another. During those two hours, the individuals at Dalena's college were not restrained by "voluntary obligations to their employers," 466 U.S. at 210, 104 S.Ct. at 1758, but by the sheer force of authority exerted by the INS agents when they commandeered Dalena's College.
Similarly, the raid on Pt. St. George Fisheries goes beyond the Delgado consensual encounters. The agents instructed all of the workers in the room not to move or attempt to leave. One worker was grabbed when he tried to leave the room. He was told he could not leave the room unless he could produce immigration papers. This worker was not given the option, present in the consensual encounters described in Delgado, of refusing to answer and continuing on his way. 466 U.S. at 218, 104 S.Ct. at 1763-64.
At Modern Mode, workers who refused to answer agents' questions were pushed into vans and arrested. At Pacific Mushroom, when agents entered one shed, they shouted, "Don't move; you're under arrest. We are from 447 immigration!" By their actions, the agents effectively detained the *447 entire shed. Indeed, they indicated they had arrested all the employees in the shed.
Although the Court has herein reviewed but a few of the incidences, the record contains sufficient evidence to prove plaintiffs' claim that the INS detains entire workforces without probable cause or reasonable suspicions that the entire workforce is undocumented. This case is distinguished from Delgado where workers were not forcibly detained or prevented from leaving the secured area.
Plaintiffs' claim encompasses not only attempts to surround the worksites, but also the border patrol agents' attempts to detain and arrest, without reasonable suspicion or probable cause, nearly all workers at the sites. Plaintiffs correctly note that defendants' failure to successfully cast their net around every worker in the plant does not change the nature of defendants' actions.

E. Detentions, Arrests and Abuse Of Individual Workers
Plaintiffs claim that defendants have a pattern, practice and policy of detaining workers solely on the basis of their Hispanic appearance and without reasonable suspicion of illegal alienage. Plaintiffs assert that defendants have a pattern, practice and policy of arresting Hispanic workers without probable cause, and of engaging in unconstitutional abuse of these arrested workers. Defendants move to dismiss these claims, arguing that the encounters with the immigration agents are at most consensual, and probable cause exists to arrest the workers. In addition, defendants assert that plaintiffs have failed to prove that the INS agents abuse detained and arrested workers.
(1) Unlawful Detentions
Questioning employees on their immigration status, by itself, is not a violation of the Fourth Amendment. However, if "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," a Fourth Amendment detention has occurred. INS v. Delgado, 466 U.S. at 216, 104 S.Ct. at 1762-63. Defendants' extrapolate from Delgado's description of incidences of consensual encounters a theory that all contacts between individuals and INS agents begin with consensual encounters. Once again, defendants seem to ride on Delgado as a magic carpet legitimating all INS enforcement activity at worksites. This is directly contrary to Delgado and subsequent Ninth Circuit opinions on the Fourth Amendment. The question of whether an encounter with an INS agent is consensual or a detention requires an intensely fact based analysis.
In evaluating the test for seizure laid down in Delgado, 466 U.S. at 216, 104 S.Ct. at 1762-63, the finder of fact looks to the surrounding circumstances, including,
the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of a citizen, or the use of language or a tone of voice indicating that compliance with the officer's request might be compelled.
Martinez, 831 F.2d at 826 (quoting U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)).
In addition, the law on investigatory detentions is well settled since Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An investigating officer may detain and question an individual based on "specific and articulable facts." United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (quoting Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880). A detaining officer's reasonable suspicions must "flow from objective facts and be capable of rational explanation. While an officer may evaluate the facts supporting reasonable suspicion in light of his experience, experience may not be used to give the officers unbridled discretion in making a stop." Nicacio v. INS, 797 F.2d 700, 705 (9th Cir.1985). Hispanic appearance or ancestry alone does not provide a legitimate basis for a detention. United States v. Brignoni-Ponce, 422 U.S. at 886-87, 95 448 S.Ct. at 2582-83. Constitutional restraints on unbridled police detentions apply to detentions for questioning on *448 illegal alienage. United States v. Brignoni-Ponce, supra; Nicacio v. INS, 797 F.2d 700, 702 (9th Cir.1985). Finally, a "stop may last only so long as is necessary to carry out its purpose and the investigative methods used should be the least intrusive means reasonably available to confirm or dispel the officer's suspicion." Martinez v. Nygaard, 831 F.2d at 827.
At this point in the case, the Court has not heard defendants' articulation of the reasonable suspicions the agents possessed when they detained workers. However, the Court may review plaintiffs' evidence to determine whether class members were detained within the meaning of the Fourth Amendment.
As discussed above, all of the instructors and students at Dalena's College were detained within the meaning of the Fourth Amendment. In light of the INS's conduct at the school, a reasonable person would not have believed she was free to leave the premises or refuse to answer the agents' questions.

At Modern Mode, Marcos Arceo Gutierrez testified that as he was walking to the bathroom he was approached by an agent who told him not to run and to kneel. He kept walking. The agent repeated his command. Although Mr. Gutierrez protested that he only knelt in prayer, the agent enforced his order and eventually handcuffed Mr. Gutierrez.
At Bay Packaging and Converting, Jose Obedo Torres was detained and handcuffed at his machine. Mr. Torres testified that when an agent demanded to see his "green card," he asked the agent, dressed in civilian clothes, to identify himself. The agent then ordered Mr. Torres to turn off his machine. Mr. Torres, citing his employer's contrary instructions, refused to shut the machine off. He was immediately thereafter handcuffed. This encounter, which even if it could be described as consensual at its initiation, became detentive once the officer began issuing orders to the worker. There can be no doubt that once Mr. Torres was handcuffed, he was, at the very least, detained.
At San Jose Brick, Marciano Gutierrez was concentrating on his work, operating a forklift, when an INS agent grabbed his hand, told him to stop the forklift, and ordered him down from the machine. Immediately thereafter, Mr. Gutierrez was handcuffed and taken to a van. No questions were asked of Mr. Gutierrez before he was handcuffed. At the very least, Mr. Gutierrez was detained within the meaning of the Fourth Amendment.
At United Foam, Ignacio Alejandre was sitting on the ground on his morning break with a co-worker when an agent, dressed in civilian clothes, approached and asked his co-worker for papers. The co-worker stated he didn't have papers and was handcuffed. The agent then turned to Ignacio Alejandre and asked "And you what?" or "What about you?" Although Mr. Alejandre knew the agent was asking for papers, he expected the agent to directly pose the question. "It wasn't proper of him to ask me, `and what about you,' because he didn't know whether I had any papers on me or not." Acting according to his belief of what was proper, Alejandre responded "And me what?" He was immediately handcuffed. Mr. Alejandre's response is just as easily understood as a decision not to answer the agent's question, as an effort to put the agent to the task of asking clear, direct questions on his immigration status. Mr. Alejandre's response is neither unlawful nor probable cause for an arrest. The Court will await defendants' explanation for why Alejandre's question justified his detention, but there is no doubt that he was, at that moment, at the very least, detained.
It is evident from the testimony that the INS has a pattern and practice of entering businesses, often at a run, and grabbing and handcuffing first, asking questions later. For example, this pattern was evidenced at El Torito Restaurant, Pedro's Restaurant, RJF Enterprises, Petaluma Poultry, Modern Mode, and Pacific Mushroom. At Petaluma Poultry, two Hispanic women were handcuffed and taken outside even though they had their green cards on their person.
449 *449 At Pacific Mushroom, Evangelina was standing outside a door, when she was grabbed by the hand. Her request for an attorney resulted in her being taken to a van and transported away. At various businesses, when workers responded to questions with silence or requests to speak to their attorney's, they were uniformly detained and arrested.
Besides forcibly grabbing workers and moving them from place to place, apparently without reasonable suspicions of illegal alienage or probable cause to arrest[9], INS agents also used classic displays of authority and force to lead workers to believe they were not free to leave or free to refuse to answer the agents' questions. At Schmitz Meats, agents drew or displayed their guns when ordering workers to stop and not move. When U.S. citizens protested their treatment and refused to answer the agents' questions, they were intimidated and harassed until they relented and produced documentation. One worker was grabbed and pulled away by an agent with his gun drawn. The worker, Mr. Ruiz, protested that he was an American citizen. When Mr. Ruiz showed his driver's license, he was released.
(2) Warrantless Arrests
Plaintiffs contend that many of these detentions evolved into arrests when the workers were handcuffed, placed in INS vehicles, or otherwise put in custody. Plaintiffs correctly note that an arrest requires more than a

reasonable suspicion of undocumented status, but also probable cause to believe that the suspect is in violation of the immigration laws. Gonzales v. City of Peoria, 722 F.2d 468, 477 (9th Cir.1983).
Title 8 U.S.C. section 1357(a)(2) authorizes INS agents to make arrests without a warrant if the agent "has reason to believe that the alien so arrested is ... in violation of [the immigration laws] and is likely to escape before a warrant can be obtained for his arrest ..." (emphasis added).
Defendants draw from other circuits to argue that, at the most, warrantless arrests are justified, "when the alien's deportability is clear and undisputed." Contreras v. United States, 672 F.2d 307, 309 (2d Cir.1982).
The statutory requirement that there be likelihood of escape before a warrantless arrest is made is "seriously applied" in the Ninth Circuit. United States v. Cantu, 519 F.2d 494, 497 (9th Cir.), cert. denied, 423 U.S. 1035, 96 S.Ct. 569, 46 L.Ed.2d 409 (1975). In Cantu, the likelihood of escape was a serious threat because the arrested immigrants were at all times, highly mobile, and traveling in a car along an interstate.
In contrast, the individuals arrested in this case failed to meet many of the INS' own criteria for determining a likelihood of escape: the existence of altered papers, evidence of previous arrests, lack of ties to the community such as family, home, or a job, and attempts to flee may justify the belief that a detained immigrant is likely to flee. Immigration and Naturalization Service, M-69, p. 16. These factors do not describe many of the arrested workers in this case. Here, workers were long-term employees, had roots in the community, and family with proper immigration status. Several arrested employees were involved in pending immigration proceedings and had attorney representation.
In addition, defendants fail to justify why so many workers were arrested even though they were in constructive possession of immigration papers[10]. The Court cannot countenance an arrest of a lawful permanent resident for, as defendants argue, the convenience of the INS officers busy with other matters at the time. Constitutional 450 protections may not be abridged for the mere convenience of *450 immigration officials. Exigencies of the moment may justify a longer stop than is normally permitted. However, the agents' own practice of detaining workers en masse cause both the unlawful detention and the havoc which delays the release of lawful permanent residents.
For example, Enrique Iñiquez was detained and handcuffed, even though he had his green card in his pocket. With his free hand, he took his green card out and showed it to the agent. Nevertheless, he was taken to a van and handcuffed to a co-worker for another eight minutes before being released. Defendants argue that the agents were too busy to release Mr. Iñiquez. However, if the agents had followed constitutional procedure and posed questions to Mr. Iñiquez prior to handcuffing him, he would not have been unlawfully detained and arrested. In the same vein, the large numbers of unlawful detentions make prompt remedial action more difficult.
Even under defendants' proposed standard 0907 that warrantless arrests are authorized whenever deportability is clear and undisputed 0907 many of the workers were arrested prior to questioning on immigration status. Deportability is not clear when an INS agent knows nothing more about an individual than she is working at a raided business and is Hispanic.
In summary, plaintiffs have shown that the INS has a pattern and practice of detaining workers without reasonable suspicion of immigration law violations. In addition, many of these detentions quickly evolve into arrests, without probable cause, without a warrant and without a showing that the arrested individual is likely to flee before a warrant may be obtained.
(3) Unconstitutional Abuse Of Workers
Plaintiffs claim that the INS agents carry out workplace raids in a climate of fear, intimidation and coercion created by the persistent pattern of verbal and physical abuse directed to Hispanic workers. Graham v. Connor, ___ U.S. ___, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) reviewed the "facts and circumstances" that must be weighed in deciding whether a particular use of force is excessive, including:

the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
Id. ___ U.S. at ___, 109 S.Ct. at 1872.
As plaintiffs correctly note, the "crime" for which these workers are arrested is a civil offense. Nevertheless, the evidence shows that the INS agents verbally and physically abuse the detained and arrested workers. There is evidence the agents grab, push, kick and handcuff workers even in the absence of any indication of attempted flight or resistance. The most egregious example of abuse deserves extensive mention here.
Ramon Estrada was drinking coffee in his car when an INS agent approached him and asked him for papers. Mr. Estrada got out of the car and handed the agent a letter from his attorney. The agent then grabbed Mr. Estrada from the belt and took him to the bus. The bus was driven to El Faro Beach where agents began asking Mr. Estrada questions. Mr. Estrada declined to answer the questions and asked to speak to his attorney. The agent drew his finger across his throat and ordered Mr. Estrada to the front of the bus. Two uniformed agents pulled Mr. Estrada off the bus, mishandling him, "just like a dog would handle a rabbit." He was handcuffed and slammed down against a patrol car. The two agents held him from either side, grabbing his collar and banging his head and face against the patrol vehicle. He was verbally abused and insulted, called a "rascal," "bastard," "stupid," and "pendejo." Mr. Estrada was transported to the detention center in the patrol car.
When Mr. Estrada requested a hearing before a judge and a call to his attorney, he was told that he had no rights in this country. Mr. Estrada was forced to sit in a corner of a room where there was dog excrement. His face was shoved towards the excrement and he was told, "That's what you are."
451 *451 The excessive and abusive treatment of Mr. Estrada is not an isolated event. Indeed, the record is replete with instances of verbal and physical abuse. In light of the civil offense and the lack of evidence of resistance, the Court finds that the INS agents exercise constitutionally unreasonable force when detaining and arresting immigrant workers.
F. Discriminatory Intent
The racial slurs and verbal abuse launched at the Hispanic workers, along with the systematic practice and pattern of relying on racial criteria when making detentions and arrests, supports plaintiffs' claim that the INS acts with animus and racial prejudice against Hispanics. Plaintiffs argue that the evidence of reliance on "explicit racial characteristics" and use of "stereotypic references to individuals," Flores v. Pierce, 617 F.2d 1386, 1390 (9th Cir.1980), combined with evidence of invidious discrimination demonstrates both intent to discriminate and disparate impact on class members. The Court agrees. Defendants' demonstration of a few incidences where non-Hispanics were also questioned does not defray the overwhelming evidence of INS border agents singling out Hispanic workers for detentions. In addition, when non-Hispanic workers were questioned or detained, they were not subjected to the verbal and physical abuse heaped on the Hispanic workers. Witnesses testified that the questioning of non-Hispanics was courteous. In addition, INS agents allowed supervisors to "vouch" for their nonHispanic workers, while supervisor protestations of the treatment of legal Hispanic workers were summarily ignored.
The Court finds that plaintiffs have proven that the INS has a pattern, practice and policy of discriminating against Hispanic persons.
G. A Pattern And Policy Of Fourth Amendment Violations
The unconstitutional practices are so pervasive and widespread that the Court is persuaded they constitute an official policy. Plaintiffs submitted deposition evidence wherein the supervisors acknowledged they were aware of complaints about the INS activities, but found "Operation Jobs" to be normal. INS officials, aware of the agents' actions, have failed to take steps to prevent recurrences and continued constitutional deprivations. Instead, the

INS has been restrained solely because of judicial intervention. Defendants then argue that plaintiffs have failed to show a pattern and practice of unconstitutional conduct because, over the thirteen years covered by this lawsuit, plaintiffs can show violations at only a few raids. However, defendants are restrained from conducting ongoing unconstitutional raids by the preliminary injunction issued in 1985. In addition, plaintiffs have shown a pattern of unconstitutional practices at more than a "few" workplaces. The Court finds that at the close of plaintiffs' case, plaintiffs have established a right to relief on all of their claims, including the claims that the unconstitutional conduct is part of a pattern, practice and policy.
II. CONCLUSION
The Court finds that the class representatives have standing to pursue this action as "persons of Hispanic or other Latin American ancestry."
Rogelio Lona is HEREBY DISMISSED from the case.
The Court finds that the named employer plaintiffs have standing to pursue their claims as asserted in the Seventh Amended Complaint.
The Court finds that the individually named plaintiffs and the plaintiff class have presented evidence in their casein-chief to prove each of their claims by a preponderance of the evidence. Through the evidence of INS conduct at businesses other than those of the named employers, plaintiffs have shown the existence of a pattern and practice of unconstitutional entries into workplaces. At this point in the case, the evidence shows a policy of unconstitutional searches, detentions and arrests.
452 *452 Good cause appearing therefor, the Court HEREBY DENIES defendants' Rule 41(b) motion to dismiss.
IT IS SO ORDERED.[11]
[1] Although defendants vigorously opposed class certification, at no time did they attack or question the class representatives' status as Hispanics capable of adequately representing the class. International Molders' v. Nelson, 102 F.R.D. 457 (N.D.Cal.1983) (Order granting class certification.) In essence, defendants are bringing a motion to decertify the class. Whether the Court considers the motion one for decertification or non-suit, the results are the same 0907 plaintiffs have standing and can adequately represent the class of persons of Hispanic or Latin American ancestry.
[2] In addition, the class has already been certified and the class claims may be prosecuted regardless of the mootness or validity of the claims of the individual class representatives. United States Parole Commission v. Geraghty, 445 U.S. 388, 403, 100 S.Ct. 1202, 1212, 63 L.Ed.2d 479 (1980). Once certified, the class acquires an independent legal status. LaDuke v. Nelson, 762 F.2d 1318, 1322 n. 3; Kuahulu v. Employers Insurance of Wausau, 557 F.2d 1334 (9th Cir.1977).
[3] If defendants are asserting that Petaluma Poultry's authorization for this suit is a sham, deficient or nonexistent, they must produce some evidence to substantiate this serious charge.
[4] In Dow Chemical, the Court emphasized the fact that Dow Chemical had not taken steps to protect itself from aerial survey, only ground intrusion. 476 U.S. at 237 n. 4, 106 S.Ct. at 1826 n. 4. In footnote 5, the Court reiterated the premise that "Fourth Amendment cases must be decided on the facts of each case, not by extravagant generalizations." Thus the type of invasion actually occurring must form the basis of the reasonable expectation of privacy analysis.
[5] "Light waves cross thresholds with a constitutional impunity not permitted arms and legs. Wherever the eye may go, the body of the policeman may not necessarily follow" Moylan, The Plain View Doctrine, 26 Mercer L.Rev. 1047, 1096 (1975).
[6] In 1987, there were 5,879,800 Hispanics in California. Under the border agent's theory, 21.5% of the California population would be subjected to a lowered expectation of privacy simply because of their racial and

ethnic status. California Population Characteristics: Regional Market Update and Projections. Colorado, Center of Continuing Study of the California Economy, 1988.
[7] See Wilson v. Health & Hospital Corp. of Marion Cty., 620 F.2d 1201 (7th Cir.1980) Rejecting the creation of an "open and unsecured" exception to the warrant requirement, the Seventh Circuit held that a building open to the plain view of an officer in the street can not be subjected to a subsequent search within the building. Even if violations were visible from the street, these form the basis for securing a warrant and not an exception to the warrant requirement. 620 F.2d at 1212.
[8] For example, Mr. Tuttle of Benicia Foundry may have been misinformed as to the scope of the consent. There the agent had asked to talk to few of Mr. Tuttle's employees. Mr. Tuttle agreed to the interview. Mr. Tuttle testified that with his consent, he was allowing the agent to enter the shop to interview a couple of people. As Mr. Tuttle accompanied the agent to the shop, the agent radioed to someone and Mr. Tuttle observed 5 to 6 agents run into the production area from another door.
[9] As stated earlier, defendants have not had an opportunity to present evidence of the articulable reasons or probable cause justifying the detentions or arrests. At this point, the Court has only found that forceful detentions did indeed occur at the different worksites.
[10] The Court finds that constructive possession means possession of the documents at the workplace. Constructive possession may not be stretched to include a worker's home, when that employee is at work.
[11] This Order was originally filed June 12, 1989, the Court has refiled the Order for publication on this date without changing any of the substantive rulings contained in the June 12, 1989 Order.
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 International Molders’ and Allied Workers’ Local Union No...., 102 F.R.D. 457 (1983)

102 F.R.D. 457 United States District Court,
N.D. California.
INTERNATIONAL MOLDERS’ AND ALLIED WORKERS’ LOCAL UNION NO. 164, et al.,
Plaintiffs, v.
Alan NELSON, Commissioner, Immigration and Naturalization Service (INS), et al., Defendants.
No. C–82–1896 RPA. | Dec. 19, 1983.
Attorneys and Law Firms
*459 Dan Boone, David A. Rosenfeld, Van Bourg, Allen, Weinberg & Roger, John E. Huerta, Joaquin G. Avila, Morris J. Baller, Susan E. Brown, Mexican Americal Legal Defense & Educ. Fund, San Francisco, Cal., Charlotte Fishman, Berkeley, Cal., Morton Cohen, Golden Gate University Constitutional Law Clinic, San Francisco, Cal., David Grabill, California Rural Legal Assistance, Santa Rosa, Cal., William R. Tamayo, Lynette Jee, Asian Law Caucus, Inc., Oakland, Cal., Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, David Berry, Kip Steinberg, Marc Van Der Hout, William May, National Lawyers Guild, Park, Fong & May, San Francisco, Cal., for plaintiffs.
*460 Patrick R.S. Bupara, Asst. U.S. Atty., San Francisco, Cal., for defendants.
Opinion
OPINION AND ORDER
AGUILAR, District Judge.
Plaintiffs bring this action challenging the legality of raids on workplaces conducted by the United States Immigration and Naturalization Service (INS) and the United States Border Patrol for the purpose of searching for and arresting undocumented aliens. This action is currently before the Court on plaintiffs’ motion for certification of a plaintiff class.
The named plaintiffs to this action are: a labor union that represents a number of the employees who are subjected to the allegedly illegal raids; four businesses whose premises were the location of the raids; a businessman whose premises were the location of a raid; and nine individuals who were subjected to defendants’ raids. The

defendants to the action are: the Commissioner, Deputy Commissioner, and Regional Commissioner of the INS; the District Director, Deputy District Director and Assistant District Director of the San Francisco District Office of the INS; and the Chief Border Patrol Agent of the Livermore Sector.
Plaintiffs allege that the INS and Border Patrol, as part of their authority to execute the federal immigration laws, conduct raids, denominated by them as “surveys” or “are control operations,” on workplaces believed to employ illegal aliens from Mexico. Plaintiffs allege that defendants conduct the raids, or surveys, in a systematic and uniform fashion. Specifically, in conducting the raids, agents of defendants surround the workplace, block all entrances and exits to the workplace, enter the workplace in force to interrogate all persons inside who appear to be Hispanic or of Latin origin, and arrest those persons believed by agents to be in the United States illegally. Plaintiffs further contend that the surveys are often conducted without warrant, or by an insufficient warrant, or with the coerced consent of the employer. According to plaintiffs, once inside the workplace, defendants’ agents indiscriminately approach and question all employees who are of Hispanic or Latin appearance. Because of the “panicky” nature of the raid, violence often ensues when the agents prevent employees from leaving the workplace. Employees are questioned without advice of rights, and are coerced into waiving their rights. Persons who cannot positively prove their status as citizens or otherwise as lawful residents of the United States are arrested and immediately subject to deportation. Often plaintiffs, United States citizens and lawful resident aliens are unlawfully detained, interrogated, harassed, assaulted, transported and falsely arrested solely because of their race, national origin, ancestry and/or language. The sweeping nature of the raids illegally reserves the process of releasing persons not deportable until after completion of the raid.
Plaintiffs allege that defendants’ practices violate the Fourth Amendment and violate constitutional guarantees regarding the right to be free from unlawful discrimination. Plaintiffs seek declaratory and injunctive relief to halt the illegal practices of defendants, as well as monetary damages.
At this time plaintiffs ask the Court to certify a plaintiff class so that this action may proceed in part as a class action. Plaintiffs’ proposed definition of this class is:
all persons of Hispanic or other Latin American ancestry, residing or working within the jurisdiction of the San Francisco District Office of the United States Immigration and Naturalization Service (INS)
1

International Molders’ and Allied Workers’ Local Union No...., 102 F.R.D. 457 (1983)

and/or the Livermore Border Patrol Sector, who have in the past, are now, or may in the future be subjected to the policies, practices and conduct of INS and/or the Border Patrol during the course of INS area control operations directed at places of employment.
The proposed representatives of this class are the nine named plaintiffs who were allegedly subjected to defendants’ illegal *461 practices in conducting the surveys. It should be noted that these individuals, as named plaintiffs and not as class representatives, seek monetary damages for the alleged violations of their constitutional rights. The proposed plaintiff class seeks only declaratory and injunctive relief, and makes no claim for monetary damages.
Federal Rule of Civil Procedure 23(a) provides for actions brought by a class of plaintiffs where: (1) the class is so numerous that joinder of all members is impracticable (the “numerosity requirement”); (2) there are questions of law or fact common to the class (the “commonality” requirement); (3) the claims or defenses of representative parties are typical of the claims or defenses of the class (the “typicality requirement”); and (4) the representative parties will fairly and adequately protect the interests of the class (the “adequacy of representation requirement”). Fed.R.Civ.P. 23(a).
Each of these four prerequisites set forth in Rule 23(a) must be found to be satisfied before the Court may permit an action to proceed as a class action, and in addition one of the provisions of Rule 23(b) must be satisfied. Plaintiffs assert that their class action lawsuit satisfies subsection (2) of Rule 23(b) which provides:

the difficulty or inconvenience of joining all members of the class makes class litigation desirable. Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913–14 (9th Cir.1964). Though satisfaction of the numerosity requirement is not dependent upon any specific number of proposed class members, where the number of class members exceeds forty, and particularly where class members number in excess of one hundred, the numerosity requirement will generally be found to be met. 3B Moore’s Federal Practice, ¶ 23,95[1] (2nd Ed.1948). Additionally, where the class includes unnamed, unknown future members, joinder of such unknown individuals is impracticable and the numerosity requirement is therefore met. Jack v. American Linen Supply Company, 498 F.2d 122, 124 (5th Cir.1974).
[3] Discovery conducted in this case has revealed that at least 456 persons of Mexican or Latin American heritage were detained and questioned during the raids conducted thus far by defendants. Joinder of 456 persons as plaintiffs to this action would be extremely inconvenient, as it would be expensive and burdensome to the parties, and it would create massive organizational problems for the Court. See Harris v. Palm Springs Alpine Estates, 329 F.2d at 913; In re Itel Securities Litigation, 89 F.R.D. 104, 112 (N.D.Cal.1981); In re Gap Stores Litigation, 79 F.R.D. 283, 302 (N.D.Cal.1978). Additionally, the proposed class includes unknown and unnamed future members, making a conclusion that joinder is impracticable particularly compelling. Jordan v. County of Los Angeles, 669 F.2d 1311, 1320 (9th Cir.1982), judgment vacated on other grounds, 459 U.S. 810, 103 S.Ct. 35, 74 L.Ed.2d 48 (1982). Class litigation of this lawsuit is highly desirable. Accordingly, for all the above reasons, the Court finds that the numerosity requirement of Rule 23(a)(1) is satisfied.

the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Whether the proposed plaintiff class satisfies each of the five requirements for class certification is discussed below.
The Numerosity Requirement [1] [2] The numerosity requirement is met where it is determined that joinder of all class members as parties to a single action is impracticable. Fed.R.Civ.P. 23(a)(1). Joinder need not be impossible; rather, it is sufficient if

Commonality Requirement [4] Rule 23(a)(2) requires that there be questions of law or fact common to the class before the action may proceed as a class action. The commonality requirement does not mean that all questions of law and fact must be common to class members, Jordan v. County of Los Angeles, *462 669 F.2d at 1320, but rather, the commonality requirement can be found to be met where only one of many issues of law or fact is common to all class members. Blackie v. Barrack, 524 F.2d 891, 904 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976); Wilcox Development Co. v. First Interstate Bank of Oregon, 97 F.R.D. 440, 443 (D.Or.1983).
In the present case common issues of fact include: whether persons are detained and interrogated solely or primarily because of their Hispanic or Latin ancestry; whether defendants coerce persons to waive their
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constitutional rights; and, whether defendants surround business premises without cause. Common questions of law include: whether defendants can surround or secure business premises without reasonable suspicion that the persons inside are illegal aliens; whether defendants can enter business premises without a legally sufficient warrant or consent; whether defendants can approach, detain and interrogate employees solely because of their Hispanic or Latin American ancestry; and, whether defendants must advise the employees of their constitutional rights before detaining and interrogating them.
Defendants assert that the commonality requirement is not met with respect to the proposed plaintiff class because analysis and proof unique to each individual class member will be required to resolve the merits of plaintiffs’ lawsuit. Defendants have two bases for this assertion. First, defendants contend that constitutional rights are personal. Second, defendants contend that whether each class member’s constitutional rights were violated is dependent upon individual items of proof such as the class member’s appearance and conduct during the raid, whether the raid was pursuant to a warrant or consent, and whether the INS agents had articulable facts which led to the questioning and detention of each class member.
[5] Where a class action is sought to be maintained pursuant to subsection (b)(2) of Rule 23, which authorizes a class action where the party opposing the class has acted on grounds generally applicable to the class thereby making injunctive and declaratory relief appropriate,1 the personal character of constitutional rights is not a proper basis for negating the commonality, or any other, requirement for maintenance of a class action. Subsection (b)(2) was designed largely to permit maintenance of a class action as a vehicle for the redress of civil rights violations. Alliance to End Repression v. Rochford, 565 F.2d 975, 979, n. 9 (7th Cir.1977). To accept defendants’ argument that the personal nature of constitutional rights precludes a finding of commonality would put an end to class litigation concerning deprivations of civil rights, a result that was clearly not intended by the draftees of Rule 23 and a result which cannot be countenanced by this Court. See Id.

1

As earlier noted, plaintiffs seek certification of the

proposed class pursuant to subsection (b)(2).

[6] Defendants’ contention that the commonality requirement is not satisfied because individual items of proof will arise in determining the merits of each class member’s claim is without merit for two reasons. First, as previously discussed, the commonality requirement will be found to be met when as few as one common issue of

law or fact is present among members of the proposed class. See, e.g., Blackie v. Barrack, 524 F.2d at 904. In the present case, as the Court earlier set forth, there are numerous questions of law and fact common to the proposed plaintiff class. Second, even though individual factual circumstances may be present among class members, the commonality requirement is satisfied where it is alleged that the defendants have acted in a uniform manner with respect to the class. Alliance to End Repression, 565 F.2d at 979; Midwest Community Counsel v. Chicago Park District, 87 F.R.D. 457, 462 (E.D.Ill.1980). In the present case plaintiffs allege a systematic and uniform practice of the defendants in conducting workplace raids, and allege that these uniform practices are the cause of the deprivation of constitutional *463 rights suffered by the proposed plaintiff class. Thus, sufficient common questions of law and fact are present among class members to permit class litigation of the alleged constitutional deprivations.
Although there may be some legitimate individual factual differences among members of the proposed class, these issues are largely insignificant in resolving the class portion of the complaint in light of the fact that damages are not sought by the proposed class, and in light of the numerous important common issues of law and fact raised by the class portion of the complaint.
[7] Accordingly, under the relatively relaxed standards in the Ninth Circuit for a finding of commonality, see, e.g., Blackie v. Barrack, 524 F.2d at 904, the Court finds that the commonality requirement of Rule 23(a)(2) is satisfied.
Typicality Requirement [8] Rule 23(a)(3) requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class before a class action may be certified. The typicality requirement does not require that the named plaintiffs’ claims be identical to those of all class members. Rather, the requirement will be met if the class representatives demonstrate that their claims and those of the class “are sufficiently parallel to insure a vigorous and full presentation of all potential claims for relief.” Sullivan v. Chase Investment Services of Boston, Inc., 79 F.R.D. 246, 257 (N.D.Cal.1978).
[9] The typicality requirement is imposed to assure that the named representatives’ interests are alligned with those of the class. Wilcox Development, 97 F.R.D. at 443–44.
[10] Plaintiffs allege a uniform cause of conduct undertaken by defendants which has resulted in violations of constitutional rights common to all members of the class and class representatives. Therefore, the class representatives’ claims arise from the same practice and course of conduct that forms the basis of the claims of the
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class, and the class representatives’ claims are based upon the same legal theory as the claims of the class. The typicality requirement is met, and defendants’ arguments to the contrary which are largely identical to their arguments with respect to the commonality requirement, must be rejected. See Gibson v. Local 40, etc., 543 F.2d 1259, 1264 (9th Cir.1976).
The above conclusion is reached without considering the claims of two of plaintiffs’ proposed class representatives: Corcino and Pera. Plaintiffs’ counsel state in their Reply Memorandum in Support of Plaintiffs’ Motion for Class Certification (filed May 5, 1983), that the gravamen of their case is “the unlawful and unconstitutional methods by which work site raids are carried out by defendants.” (Reply, p. 2). However, the facts before the Court indicate that Corcino’s constitutional rights were allegedly violated by his detention by defendants while driving his automobile across the San Mateo Bridge. Corcino’s claim therefore does not arise out of defendants’ policies and practices in workplace settings, and therefore Corcino’s claims are not typical of those of the other plaintiff representatives or of those of the proposed plaintiff class.
Named plaintiff Pera’s constitutional rights were allegedly violated by his detention by defendants while working in a field with an agricultural crew. The other proposed class representatives were the alleged victims of defendants’ illegal practices in other than “open fields” workplaces. The legality of defendants’ practices with respect to immigration raids on open-fields workplaces is the subject of a related lawsuit before this Court, United Farm Workers of America v. Nelson, C–82–4937 RPA. Though arguably Pera’s claims do meet the typicality requirement as set forth in the Jordan and Wilcox Development cases, the Court is of the belief that the class portion of the present lawsuit would be better litigated if limited to defendants’ practices with respect to workplaces other than open fields. Raids conducted by defendants in open fields may *464 implicate different Fourth Amendment issues than are raised with respect to raids conducted in other types of workplaces. Pera will not be prejudiced by excluding him as class representative in this lawsuit because his claims are the subject of the related litigation.
Rather than deny plaintiffs’ motion for class certification because of the atypical character of Corcino and Pera as class representatives, the Court chooses to find that the proposed class satisfies the typicality requirement, absent Corcino and Pera as class representatives, for purposes of judicial expediency. So that plaintiffs will not be required to renotice their motion if they decide to drop Corcino and Pera as class representatives, the Court will conditionally grant the motion for class certification. The Court’s order to become final upon an amendment to plaintiffs’ complaint, within 10 days of the date of this Opinion, eliminating Corcino and Pera as class representatives. If

plaintiffs choose not to so amend, the Court will deny the motion for class certification for failure of typicality.2 The Court also suggests that the definition of the class set forth in the complaint be amended to challenge raids “directed at places of employment other than open fields.”

2

Upon the expiration of this ten-day period, the

appropriate party (plaintiffs if plaintiffs do amend and

defendants if plaintiffs do not amend), shall submit a

proposed order reflecting the appropriate final ruling on

this motion.

Adequacy of Representation Requirement [11] The adequacy of representation prerequisite to class certification is satisfied where the Court finds that the representative class members are represented by qualified counsel, and that the named representatives’ interests are not antagonistic to the interests of the class. Jordan v. County of Los Angeles, 669 F.2d at 1323; Social Services Union v. County of Santa Clara, 609 F.2d 944, 946–47 (9th Cir.1979); and see Eisen v. Carlisle Jacquelin, 391 F.2d 555, 562–63 (2nd Cir.1968).
There is no question that the representative class members are represented by qualified counsel. Counsel are attorneys from a number of public interest organizations that have made significant contributions to civil rights litigation. The quality of the memoranda and argument that the Court has thus far seen from plaintiffs’ counsel convinces it that vigorous and competent representation is assured.
[12] The Court also is convinced that there are no antagonistic interests between the proposed plaintiff class and its named representatives.3 Defendants assert that antagonistic interests exist because not all members of the proposed plaintiff class believe that defendants’ raids are objectionable, and because some members of the proposed class may have an interest in the jobs that other members of the class, by virtue of defendants’ policies, will not be permitted to maintain. Such political and economic conflict among a proposed class and its representatives is always possible. However, absent a showing of a real probability of conflict that goes to the subject matter of the class lawsuit, such asserted antagonism is mere speculation, and cannot preclude class certification. Social Services Union v. County of Santa Clara, 609 F.2d at 948; Gilchrist v. Bolger, 89 F.R.D. 402, 409 (S.D.Ga.1981). If later discovered facts do reveal a true conflict, defendants may move to decertify the class at that time.

3

This conclusion is reached in light of the Court’s earlier

conclusion that Corcino and Pera not be included as

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class representatives.

[13] Defendants contend that plaintiffs’ proposed class is too vague to permit class certification. The asserted vagueness is contained in the definition of the class as including all persons of Hispanic or Latin American ancestry. Plaintiffs do not merely define the proposed plaintiff class as all persons of Hispanic or Latin American ancestry, but as all persons of Hispanic or Latin American ancestry who have been, or may in the future be, affected by defendants’ practices. Plaintiffs define the class by the activities of defendants. As so defined, *465 the class is not vague. Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1072 (7th Cir.1977).
Defendants also contend that adequacy of representation is not present because no proposed class representative adequately represents the Hispanic citizens or otherwise lawful residents of the judicial district of the Northern District of California. Only one of the named class members is alleged to be a United States citizen,4 and that individual was subjected to a raid outside of the Northern District. The remaining class representatives are not alleged to be lawful residents of the United States. Defendants’ argument here appears to consist of two objections to class certification. The first is that a class action cannot be maintained on behalf of aliens. However, at the hearing on this motion, counsel for defendants concurred with plaintiff that such an action could be maintained.

4

Chavez was a second named representative and United

States citizen. However, the Court earlier concluded

that he was not an appropriate class representative.

determined by the Regional Director of the INS, who is based in San Francisco. In light of these facts, the Court’s jurisdiction is proper, and certification of the proposed plaintiff class is thereby appropriate.
[14] For the above reasons, the Court finds that the adequacy of representation requirement of Rule 23(c)(4) is satisfied.5

5

Defendants contend that certain of the proposed class

representatives have refused to have their depositions

taken, and so are not proper class representatives. If any

of the named plaintiffs refuse to cooperate in the

discovery process, defendants should seek their

dismissal from the lawsuit. At this point, however,

there has been insufficient evidence presented to the

Court that any proposed class representative has been

uncooperative such that he or she should be dismissed

as a class representative or in his or her individual

capacity. Plaintiffs may wish to examine their class

representatives to be certain that later proceedings in

this case are not jeopardized by uncooperative class

representatives or insufficient representatives to

represent all the interests of the class.

Subsection (b)(2) There is no question that plaintiffs’ proposed class action meets the requirements of subsection (b)(2) of Rule 23. Plaintiffs challenge policies and procedures generally applicable to the class as a whole, and final classwide declaratory and injunctive relief would be appropriate. Defendants do not contest the applicability of subsection (b)(2) to the present case. Accordingly, the Court finds that the requirements of Rule 23(b)(2) have been satisfied.

Defendants’ second objection pertains to the geographic scope of the class, the defendants asserting that this Court has no jurisdiction to enjoin their activities that occur outside of the Northern District. As previously discussed, plaintiffs define the proposed class by the activities of defendants. The proposed class consists of persons residing or working within the jurisdiction of the San Francisco District Office of the United States Immigration and Naturalization Service and/or the Livermore Border Patrol Sector. The San Francisco District Office of the INS is within the Northern District. The fact that some of the raids conducted by the Office are conducted outside the Northern District does not alter this Court’s jurisdiction. Decisions where to conduct raids and how those raids will be conducted are made within the Northern District. Thus, the Court has jurisdiction to review those decisions. The same is true with respect to the Livermore Border Patrol Sector. The allegations of plaintiffs, and the evidence before the Court, indicate that the involvement of the Border Patrol in the raids is

Conclusion [15] Based upon the above findings,6 the Court conditionally grants plaintiffs’ motion for class certification. The Court’s ruling on the motion shall become final if, within ten days of the date of this Opinion, plaintiffs amend their complaint to remove *466 Corcino and Pera as class representatives, and amend their complaint to define the class with respect to defendants’ practices at workplaces other than open fields. If plaintiffs choose not to make such amendments, the Court will deny the motion for class certification for failure to satisfy the adequacy of representation requirement.

6

Though the Court ordered the parties to brief the issue

of the standing of employees to assert Fourth

Amendment violations resulting from searches at the

employer’s premises, the Court finds that this is not an

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issue that needs to be resolved for class certification purposes.
IT IS SO ORDERED.

Parallel Citations
38 Fed.R.Serv.2d 1125
	  

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