b'Assistance by State and Local Police in Apprehending Illegal\nAliens\nSubject to the provisions of state law, state and local police may constitutionally detain or arrest\naliens for violating the criminal provisions of the Immigration and Naturalization Act.\nState and local police lack recognized legal authority to stop and detain an alien solely on suspicion\no f civil deportability, as opposed to a criminal violation of the immigration laws or other laws.*\nState and local police may detain aliens reasonably suspected of a criminal violation of the immigration\nlaws for periods o f as long as 45 to 60 minutes when detentions of that length are necessary\nto allow for the arrival of Border Patrol agents who are needed for the informed federal disposition\no f the suspected violations.\n\nFebruary 5, 1996\nM e m o r a n d u m O p in io n f o r t h e U n it e d S t a t e s A t t o r n e y\nS o u t h e r n D is t r ic t o f C a l if o r n ia\n\nI. BACKGROUND AND SUMMARY OF CONCLUSIONS\nThis responds to your memorandum to Seth Waxman, Associate Deputy Attor\xc2\xad\nney General. In that memorandum, you requested a legal opinion from this Office\nconcerning the circumstances in which state and local police in California can\nassist the Immigration and Naturalization Service (\xe2\x80\x9c INS\xe2\x80\x9d ) in enforcing the federal\nimmigration laws.\nYour request for opinion was triggered by certain difficulties that have arisen\nin connection with local law enforcement assistance in the immigration area, par\xc2\xad\nticularly in detaining aliens who have entered the United States unlawfully. In\nparticular, you referred to a policy of the San Diego Police Force that limits the\nperiod for which its officers may detain alien suspects stopped on \xe2\x80\x9c reasonable\nsuspicion\xe2\x80\x9d to a maximum of 20 minutes. Although state and local police have\nbeen authorized to detain alien suspects in some circumstances, the proper inves\xc2\xad\ntigation, processing, and arrest o f suspected immigration violators generally re\xc2\xad\nquires the presence and assistance of agents of the United States Border Patrol.\nAt present, however, we understand that local police will detain such persons for\nonly 20 minutes after Border Patrol assistance is requested. You advise that Border\nPatrol agents in your district are rarely able to reach the scene of apprehension\nwithin 20 minutes. As a result, the 20-minute detention limit may cause state\nofficers to release illegal alien entrants when Border Patrol agents have not arrived\nat the scene within that time period. You have therefore suggested that city and\ncounty authorities consider expanding the permitted period of detention from 20\nminutes to as much as one hour, as permitted by law.\n* Editor\xe2\x80\x99s Note: See Editor\'s Note to Section II. B.\n\n26\n\n\x0cAssistance by State and Local Police in Apprehending Illegal Aliens\n\nIn addition to the matters raised in your initial opinion request, you have subse\xc2\xad\nquently requested our legal opinion on several additional related issues. Set forth\nbelow is our analysis of those issues. Our conclusions on the chief issues you\nraise may be summarized as follows:\n1. Subject to the provisions of state law, state and local police 1 may constitu\xc2\xad\ntionally detain or arrest aliens who have violated the criminal provisions of the\nImmigration and Naturalization Act (\xe2\x80\x9c INA\xe2\x80\x9d ). State police lack recognized legal\nauthority to arrest or detain aliens solely for purposes of civil deportation pro\xc2\xad\nceedings, as opposed to criminal prosecution. (Sections II.A-B).*\n2. California law allows state police to enforce the criminal provisions of federal\nimmigration law, although they may not make warrantless arrests for INA mis\xc2\xad\ndemeanor violations unless the offense occurs in their presence. When illegally\nentering aliens have reached a place of repose within the United States, the offense\nis completed and is no longer subject to warrantless arrest by California police.\n(Sections II.A, II.C3).\n3. State police may stop and detain carloads of illegal alien suspects only in\ncircumstances that satisfy the requirements of \xe2\x80\x9c reasonable suspicion.\xe2\x80\x9d These re\xc2\xad\nquirements are inherently fact-specific and therefore not readily reduced to clearcut rules. Nonetheless, several basic principles and considerations warrant empha\xc2\xad\nsis. (Section II. C).\na. Persons may be detained for reasonable periods by state police on the basis\nof a reasonable suspicion of a criminal immigration law violation. The critical\nrequirement for a reasonable suspicion detention is the existence of objective,\narticulable facts suggesting the commission of a criminal offense by the persons\ndetained, rather than mere stereotypical assumptions, profiles, or generalities.\nb. In particular, absent knowledge of an established federal policy of not pros\xc2\xad\necuting such offenses, state police may, in our opinion, legally detain alien sus\xc2\xad\npects for disposition by federal agents when there is reasonable suspicion that\nthe suspects have violated or are violating the two commonplace misdemeanor\nprovisions of the INA, 8 U.S.C. \xc2\xa7 1304(e) (lack of alien registration documents)\nor \xc2\xa7 1325 (illegal entry), or other criminal provisions of the INA.\nc. Written guidelines or policies adopted by state or local police forces may\ngenerate additional legal complications regarding otherwise valid detentions based\non suspected violations of criminal immigration laws, insofar as such guidelines\nor policies state that suspects may only be detained based on reasonable suspicion\nof crimes that are unrelated to the immigration laws. Because any extended deten\xc2\xad\ntion of a suspect must generally be based upon the law enforcement purposes\nserved by the stop, a police force\xe2\x80\x99s official disclaimer of any immigration-related\ndetention authority could undermine the validity of detaining suspects to await\nprocessing by Border Patrol officers.\n* Editor\xe2\x80\x99s Note: See Editor\xe2\x80\x99s Note to Section II.B.\n\xe2\x80\xa2For purposes o f brevity, state and local police will sometimes be referred to herein simply as \xe2\x80\x9c slate police.\xe2\x80\x9d\n\n27\n\n\x0cOpinions o f the Attorney General in Volume 20\n\n4. Under governing judicial precedents, state police in California may constitu\xc2\xad\ntionally detain alien suspects for periods of as long as 45 to 60 minutes in cir\xc2\xad\ncumstances where detentions of that length are necessary to allow for the arrival\nof Border Patrol agents (exercising due diligence) who are needed for the informed\nfederal disposition of reasonably suspected violations of the INA. (Section II.D).\na. We caution, however, that one Ninth Circuit panel opinion issued in 1994\nsuggests a somewhat more restrictive approach to the permissible duration of such\ndetentions.\nb. If the Border Patrol agents do not promptly arrest the suspects upon their\narrival at the scene of a reasonable suspicion detention, it must be assumed that\nthe additional period of detention required by them before effecting an arrest\nwould be counted by a court in calculating the permissible length of such deten\xc2\xad\ntions (e.g., a permissible 40-minute detention by state police awaiting the arrival\nof Border Patrol agents might be rendered impermissibly lengthy if the agents\ndetain the suspects for, e.g., an additional 30 minutes before effecting an arrest).\n5. As a general rule, the involuntary vehicular transportation of validly detained\naliens by state police to Border Patrol agents would be deemed an arrest and\nrequire probable cause rather than mere reasonable suspicion. (Section II.E).\na. In unusual circumstances where the Border Patrol\xe2\x80\x99s necessary assistance\nmay be more promptly obtained by transporting validly detained suspects to the\nagents than by awaiting the arrival of the latter, we believe such transportation\n(limited to reasonably proximate locations) would be sustainable even in the ab\xc2\xad\nsence of probable cause under the principles applied in several pertinent judicial\nopinions in California and the Ninth Circuit. It cannot be assumed, however, that\nall reviewing courts would uphold the validity of such involuntary transportation\nin the absence of probable cause.\nb. Interrogation undertaken by Border Patrol agents following such localized\ntransport of detainees should take place in an open, non-coercive setting; interroga\xc2\xad\ntion of such transported detainees inside a Border Patrol office or other police\noffice would likely transform the detention into an arrest under controlling judicial\nprecedents.\n6. Under one recent Ninth Circuit precedent, the question whether state police\nmay validly arrest alien suspects on probable cause that they have violated the\nINA\xe2\x80\x99s requirement that aliens carry registration documents, see 8 U.S.C. \xc2\xa7 1304(e),\nmay also depend upon whether they have reason to believe that federal officials\nactually prosecu te suspects for such violations. This is significant because that\nmisdemeanor provision may sometimes provide the only basis for the arrest. To\nthe extent that arrests by California police nominally based on such INA mis\xc2\xad\ndemeanor charges are found to be a pretext for civil deportation proceedings, they\nare likely to be invalidated by the courts. (Section II.C.2).\n7. There is established statutory authority for the deputation of state law enforce\xc2\xad\nment officers as Deputy United States Marshals. This mechanism has been most\ncommonly used to allow state officers to perform federal enforcement functions\n28\n\n\x0cAssistance by State and Local Police in Apprehending Illegal Aliens\n\nin joint federal-state law enforcement task forces (e.g., anti-drug and fugitive pur\xc2\xad\nsuit task forces). (Section II.F).\na. Where the Attorney General has exercised her authority to delegate supple\xc2\xad\nmental INA enforcement duties to the U.S. Marshals Service, state and local offi\xc2\xad\ncers can be specially deputized as Special Deputy United States Marshals in order\nto perform supportive federal immigration enforcement functions.\nb. Such arrangements were previously authorized by an Attorney General\nOrder in August 1994, for a period of one year, in order to deal with a potential\nmass immigration emergency in the State of Florida.\nII. ANALYSIS\nA. Validity and Scope o f State Police Participation in Enforcing Federal\nImmigration Laws\n\nIt is well-settled that state law enforcement officers are permitted to enforce\nfederal statutes where such enforcement activities do not impair federal regulatory\ninterests. Ker v. California, 374 U.S. 23 (1963); Florida Avocado Growers, Inc.\nv. Paul, 373 U.S. 132 (1963). This general principle extends to state enforcement\nof the Immigration and Naturalization Act as well. In Gonzales v. City o f Peoria,\n722 F.2d 468 (9th Cir. 1983), for example, the Ninth Circuit held that \xe2\x80\x9c federal\nlaw does not preclude local enforcement of the criminal provisions of the [Immi\xc2\xad\ngration and Naturalization] Act.\xe2\x80\x9d Id. at 475.\nAt the same time, federal law does not require state law enforcement agencies\nto assist in enforcing the INA. That the INA permits state police officers to make\narrests and detentions, see, e.g., 8 U.S.C. \xc2\xa7 1324(c), does not mean that states\nmust permit their police to do so. Rather, the INA enforcement authority of state\npolice is subject to the provisions and limitations of state law.\nIn People v. Barajas, 81 Cal. App.3d 999, 147 Cal. Rptr. 195 (1978), the Cali\xc2\xad\nfornia Court of Appeal upheld the authority of California local police officers\nto make arrests for violations of 8 U.S.C. \xc2\xa7 1325 (the illegal entry misdemeanor)\nand \xc2\xa7 1326 (felony for alien to re-enter United States after deportation). In reject\xc2\xad\ning the defendant\xe2\x80\x99s argument that the arrest was illegal under INA warrant require\xc2\xad\nments, see 8 U.S.C. \xc2\xa7 1357, the court determined that those requirements applied\nonly to arrests by federal officers and then stated: \xe2\x80\x9c In the absence of a specific\n[federal] law regulating the mode of such an arrest, the legality of an arrest by\nlocal officers is determined by the law of arrest of the state in which it occurs,\nunless such law conflicts with the federal Constitution.\xe2\x80\x9d 81 Cal. App.3d at 1006.\nUpholding the arrest under the \xe2\x80\x9c reasonable cause\xe2\x80\x9d standard of section 836 of\nthe California Penal Code, the court stated:\n[The state officers\xe2\x80\x99] knowledge of defendant\xe2\x80\x99s evasive conduct (use\nof a false name, claim to possession of a \xe2\x80\x9c green card\xe2\x80\x9d not on\n29\n\n\x0cOpinions o f the Attorney General in Volume 20\n\nhand but at home, and lack of knowledge as to allow production\nof the card) during the April 28 incident, coupled with [the INS\nofficer\xe2\x80\x99s] information, gave them ample probable cause to arrest\nfor violation of 8 U.S.C. section 1325 or 1326.\nId. at 1007.\n\nA 1984 opinion of the California Attorney General also concluded that neither\nfederal nor California law bars state and local officials from assisting in the en\xc2\xad\nforcement of federal immigration laws. See 67 Ops. Cal. Atty. Gen. 331, Opinion\nNo. 83-902 (July 24, 1984). The opinion stated that, in the absence of federal\nstatutory restrictions on such activity, \xe2\x80\x9c we would look to California law to deter\xc2\xad\nmine the role state and local officials in California may play in that regard.\xe2\x80\x9d\nId. The opinion\xe2\x80\x99s central conclusion was that there is no legally enforceable re\xc2\xad\nquirem ent that California peace officers must report to the INS knowledge they\nmight have concerning persons who have entered the United States illegally, al\xc2\xad\nthough there is no prohibition against their doing so. More pertinently, the Attor\xc2\xad\nney General\xe2\x80\x99s opinion did point out one particularly significant restriction of Cali\xc2\xad\nfornia law on INA enforcement by local police. In the case of misdemeanor viola\xc2\xad\ntions, such as those covered by 8 U.S.C. \xc2\xa7\xc2\xa7 1304(e) and 1325, an arrest may\nonly be made when the officer has reasonable cause to believe that the person\nhas committed the offense \xe2\x80\x9c in his presence.\xe2\x80\x9d 67 Ops. Cal. Atty. Gen. 331 n.1011; Cal. Penal Code \xc2\xa7 836 (emphasis added).\nSubject to such restrictive state law provisions, it is recognized that state and\nlocal police may stop, detain, and arrest persons when there is reasonable sus\xc2\xad\npicion or, in the case of arrests, probable cause that such persons have violated,\nor are violating, the federal immigration laws. Gonzales, 722 F.2d at 474; Barajas,\n81 Cal. App.3d at 999; 67 Ops. Cal. Att\xe2\x80\x99y Gen. 331, Op. No. 83-902.\nWe also note that the INA itself recognizes the authority of state officers to\nmake arrests for criminal violations of federal immigration law. For example, 8\nU.S.C. \xc2\xa7 1324(c), governing the authority to arrest persons for bringing into the\nUnited States or harboring illegal aliens, provides as follows:\nNo officer or person shall have authority to make any arrest for\na violation of any provision of this section except officers and em\xc2\xad\nployees of the Service designated by the Attorney General, either\nindividually or as a member of a class, and all other officers whose\nduty it is to enforce criminal laws, [emphasis added]\nMoreover, in Gonzales, the Ninth Circuit explicitly rejected the claim that this\nstate arrest authority does not extend to other criminal provisions of the INA,\nsuch as 8 U.S.C. \xc2\xa7\xc2\xa71325 and 1326. See 722 F.2d at 475. The California Court\nof Appeal reached the same conclusion in Barajas. See 81 Cal. App.3d at 1006.\n30\n\n\x0cAssistance by State and Local Police in Apprehending Illegal Aliens\n\nB. Civil Enforcement/Deportable Aliens *\nWhether state officers may assist in enforcing the civil component of federal\nimmigration law raises a separate issue. Deportation of aliens under the INA is\na civil proceeding. For example, a lawfully admitted non-immigrant alien may\nbecome deportable if his visitor\xe2\x80\x99s visa expires or if his student status changes.\nIn such circumstances, persons may become subject to civil deportation without\nhaving violated a criminal provision of the INA.\nIn Gonzales, the Ninth Circuit held that the authority of state officials to enforce\nthe provisions of the INA \xe2\x80\x9c is limited to criminal violations.\xe2\x80\x9d 772 F.2d at 476.\nThe court based this distinction between the civil and criminal provisions of the\nINA on the theory that the former constitute a pervasive and preemptive regulatory\nscheme, whereas the latter do not.2 Application of this rule would seem to pre\xc2\xad\nclude detentions by state officers based solely on suspicion of deportability (as\nopposed to criminal violations of the INA). A ccord Gates v. Superior Court, 193\nCal. App.3d 205, 213, 238 Cal. Rptr. 592 (1987) (\xe2\x80\x9c Hie civil provisions of the\nINA constitute a pervasive regulatory scheme such as to grant exclusive federal\njurisdiction over immigration, thereby preempting state enforcement\xe2\x80\x9d ).\nIn an opinion issued in 1989,3 this Office similarly recognized the distinction\nbetween the civil and criminal provisions of the INA for purposes of state law\nenforcement authority. We first expressed our belief that \xe2\x80\x9c the mere existence of\na warrant of deportation for an alien does not provide sufficient probable cause\nto conclude that the criminal provisions [of the INA] have in fact been violated.\xe2\x80\x9d\n1989 OLC Op. at 8. We then concluded:\nBecause 8 U.S.C. \xc2\xa7 1251 makes clear that an alien who has lawfully\nentered this country, lawfully registered, and who has violated no\ncriminal statute may still be deported for noncompliance with the\nnoncriminal or civil immigration provisions, the mere existence of\na warrant of deportation does not enable all state and local law\nenforcement officers to arrest the violator of those civil provisions.\nId. at 9.\n* Editor\xe2\x80\x99s Note: In 2002, the Office of Legal Counsel withdrew the advice set forth in this section.\n2 As the court stated:\n\nWe assume that the civil provisions of the Act regulating authorized entry, length of stay, residence status,\nand deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive\nfederal power over immigration. However, this case does not concern that broad scheme, but only a narrow\nand distinct element of it\xe2\x80\x94 the regulation of criminal immigration activity by aliens.\n722 F.2d at 475.\n3 Memorandum for Joseph R. Davis, Assistant Director, Federal Bureau of Investigation, from Douglas W. Kmiec,\nAssistant Attorney General, Office of Legal Counsel, Re: Handling o f INS Warrants o f Deportation in Relation\nto NCIC Wanted Person File at 5 (Apr. 11, 1989) (\xe2\x80\x9c 1989 OLC Op.\xe2\x80\x9d ).\n\n31\n\n\x0cOpinions o f the A ttorney General in Volume 20\n\nIn that regard, 8 U.S.C. \xc2\xa7 1357(a)(2) imposes substantial restrictions even upon\nthe authority of fe d e ra l officers to make warrantless arrests for purposes of civil\ndeportation. It requires that the arresting officer reasonably believe the alien is\nin the United States illegally and that he is \xe2\x80\x9c likely to escape before a warrant\ncan be obtained for his arrest.\xe2\x80\x9d See Mountain High Knitting, Inc. v. Reno, 51\nF.3d 216, 218 (9th Cir. 1995) (asserting that even INS agents have no legitimate\nbasis for a warrantless arrest of aliens subject to civil deportation unless the arrest\xc2\xad\ning officer reasonably believes that the alien is likely to escape before an arrest\nwarrant can be obtained).\nTaking all these authorities into account, we conclude that state and local police\nlack recognized legal authority to stop and detain an alien solely on suspicion\no f civil d eportability , as opposed to a criminal violation of the immigration laws\nor other laws.\nC. L egal A u th o rity a n d Standards f o r Detention o r A rrest o f A lien Suspects\nYou have also asked for our opinion concerning the legal standards governing\nthe detention of suspected illegal aliens under the circumstances most commonly\nconfronted by police in the San Diego area. As an illustrative example of such\ncircumstances, you have described the situation where a van or other vehicle car\xc2\xad\nrying a number of possible illegal aliens is stopped by the police based on prob\xc2\xad\nable cause or reasonable suspicion that a state traffic violation or other criminal\noffense has been committed.4 Although such circumstances clearly justify deten\xc2\xad\ntion and processing of the driver and vehicle, the question arises as to what quan\xc2\xad\ntum or quality of indicators are necessary to sustain arrest or investigative deten\xc2\xad\ntion of the alien passengers on the respective grounds of probable cause or reason\xc2\xad\nable suspicion. Additional issues concern the particular criminal provisions of the\nINA that may provide a valid basis for detention or arrest of alien suspects.\n1. G eneral P rinciples an d Perm issible Considerations\nCourts have made clear that federal and state officers have authority briefly\nto detain persons based on reasonable suspicion that they have committed or are\ncommitting a violation of federal law, including the immigration laws. See, e.g.,\nM artinez v. N ygaard, 831 F.2d 822, 827 (9th Cir. 1987) (\xe2\x80\x9c [T]o detain a worker\nshort of an arrest, an INS officer must have an objectively reasonable suspicion\nthat the particular worker is an illegal alien.\xe2\x80\x9d ). The general standards governing\nreasonable suspicion detentions of aliens transported in vehicles were recently\nsummarized by the Ninth Circuit in United States v. Rodriguez-Sanchez, 23 F.3d\n1488,1492 (1994):\n4 We note that where state officials establish a fixed checkpoint for purposes of delecting illegal entry and related\ncrimes, vehicles may be stopped for brief questioning even in the absence of any reasonable or individualized sus\xc2\xad\npicion. See United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The operation of such fixed checkpoints need\nnot be authorized in advance by a judicial warrant, id. at 564-66, and need not be in immediate proximity to the\nnational border (the checkpoint upheld in Martinez-Fuerte was 66 miles north of the Mexican bolder).\n\n32\n\n\x0cAssistance by State and Local Police in Apprehending Illegal Aliens\n\nReasonable suspicion is not a mere phrase but has been given\nmeaning such that suspicion is \xe2\x80\x9c reasonable\xe2\x80\x9d only if based on \xe2\x80\x9c spe\xc2\xad\ncific articulable facts, together with rational inferences from those\nfacts, that reasonably warrant suspicion that the vehicle contains\naliens who may be illegally in the country.\xe2\x80\x9d [quoting from United\nStates v. Brignoni-Ponce, 422 U.S. at 884]\nFor example, the Ninth Circuit upheld a state officer\xe2\x80\x99s reasonable suspicion de\xc2\xad\ntention of alien passengers in a parked vehicle in United States v. RamirezSandoval, 872 F.2d 1392, 1395 (9th Cir. 1989). There, a Los Angeles police offi\xc2\xad\ncer observed a parked van occupied by two men in the front seat and a number\nof others in the rear who appeared to be Hispanic males. Merchants in the area\nhad previously reported suspicious activity around this van, notably the extensive\ncomings and goings from the van after it would park on the street after 6 p.m.,\nwhen the local patrolman would be off duty. The detaining officer was also aware\nthat there was considerable heroin dealing in the area in question. The officer\napproached the van, noticed a list of names and numbers on the van\xe2\x80\x99s visor, and\nelicited a response from one of the passengers that he had recently crossed the\nU.S.-Mexico border and had paid money to be illegally transported into the United\nStates. The officer then detained the van\xe2\x80\x99s occupants while he contacted the INS.\nThe court upheld the detention against a challenge that it was not based upon\na reasonable suspicion of illegal activity. Id. at 1394. Citing the circumstances\ndescribed above, the court stated: \xe2\x80\x9c Taken together, these factors provide a found\xc2\xad\ned suspicion that the occupants of a van fitting the description of appellant\xe2\x80\x99s van\nmay have been engaged in illegal activity.\xe2\x80\x9d Id. Significantly, the court did not\nfind it necessary to establish that the officer had any particular felon y violation\nin mind when he formed his reasonable suspicion.\nIn assessing alien detention issues, it must also be recognized that when police\nstop a vehicle on the basis of traffic offenses or other suspected crimes they may\nnot ordinarily detain the vehicle\xe2\x80\x99s passengers beyond the period required for dis\xc2\xad\nposition of the matter that justified the initial stop. See M artinez , 831 F.2d at\n827. However, observations made while investigating or processing the primary\noffense may provide independent basis for reasonable suspicion that either the\ndriver or the passengers are violating the federal immigration laws, which would\nthen justify further detention to investigate such violations within the bounds per\xc2\xad\nmitted by Terry and its progeny. See United States v. Wilson, 7 F.3d 828, 834\n(9th Cir. 1993), cert, denied, 511 U.S. 1134 (1994).5 Moreover, police would\nbe permitted to inquire as to the immigration status of passengers in such a\nstopped vehicle as long as they do not unnecessarily prolong the length of the\n5 See also United States v. Bloomfield, 4 0 F.3d 910, 918 (8th Cir. 1994), cert, denied, 514 U.S. 1113 (1995),\nwhere the court held, \xe2\x80\x9c If, during a traffic stop, an officer develops a reasonable, articulable suspicion that a vehicle\nis canying contraband, he has \xe2\x80\x98justification for a greater intrusion unrelated to the traffic offense.\xe2\x80\x99 \xe2\x80\x99\xe2\x80\x99 (citation omitted).\nThe same reasoning would apply when a traffic stop leads to a reasonable suspicion that the vehicle is carrying\nillegal aliens.\n\n33\n\n\x0cOpinions o f the Attorney General in Volume 20\n\ninitial detention for that purpose. The responses to such inquiries could then pro\xc2\xad\nvide a basis for detention or arrest of the passengers by creating a reasonable\nsuspicion or probable cause that they have committed an illegal entry or are aliens\nlacking proper registration documents.\nCourts have also recognized that a reasonable suspicion created by one person\nmay also support a reasonable suspicion as to others accompanying him in appro\xc2\xad\npriate circumstances. Thus, the \xe2\x80\x9c traveling companion of a person whom the police\nreasonably suspected of illegally crossing the border\xe2\x80\x9d may also be detained on\nreasonable suspicion when there are indications that the accompanying individuals\nare acting in concert or complicity with the initial suspect. See United States v.\nTehrani, 49 F.3d 54, 59-60 (2d Cir. 1995); United States v. Patrick, 899 F.2d\n169, 172 (2d Cir. 1990). It follows that when state police have reasonable sus\xc2\xad\npicion that a stopped driver may be engaged in transporting illegal aliens, a reason\xc2\xad\nable suspicion of related immigration violations may also be justified as to his\npassengers.\nReasonable suspicion determinations are based on the totality of circumstances\nin each case and are \xe2\x80\x9c not readily reduced to \xe2\x80\x98a neat set of legal rules.\xe2\x80\x99 \xe2\x80\x9d United\nStates v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989). Reliable pre\xc2\xad\ndictions of judicial rulings in this area are especially difficult within the Ninth\nCircuit, where different panels have reached inconsistent conclusions in applying\nthe reasonable suspicion standard to extremely similar factual situations. Compare\nUnited States v. Franco-Munoz, 952 F.2d 1055 (9th Cir. 1991), cert, denied, 509\nU.S. 911 (1993) (reasonable suspicion upheld where heavily-laden vehicle driven\nby male of Hispanic appearance was traveling in area known for alien smuggling)\nwith U nited States v. Rodriguez, 976 F.2d 592 (9th Cir. 1992), amended, 997\nF.2d 1306 (9th Cir. 1993) (similar fact pattern held insufficient to support reason\xc2\xad\nable suspicion). Nonetheless, we believe several general principles are both rel\xc2\xad\nevant and well-established in the caselaw as guidelines for the permissibility of\nstops and detentions of vehicles or their passengers in this context:\na. Reasonable suspicion must be based upon an \xe2\x80\x9c objective basis\xe2\x80\x9d and \xe2\x80\x9c spe\xc2\xad\ncific, articulable facts,\xe2\x80\x9d rather than on \xe2\x80\x9c broad profiles which cast suspicion on\nentire categories of people without any individualized suspicion of the particular\nperson . . . .\xe2\x80\x9d United States v. Garcia-Camacho, 53 F.3d 244, 246 (9th Cir.\n1995). These specific, articulable facts must provide \xe2\x80\x9c a rational basis for sepa\xc2\xad\nrating out the illegal aliens from American citizens and legal aliens.\xe2\x80\x9d Nicacio\nv. INS, 797 F.2d 700, 705 (9th Cir. 1985).\nb. Officers may not arbitrarily stop all persons of Mexican or Hispanic ap\xc2\xad\npearance (or that of any other particular nationality or ethnic group) to question\nthem regarding immigration/citizenship status without any other specific grounds\nfor reasonable suspicion that they are illegal aliens. See United States v. BrignoniPonce, 422 U.S. 873 (1975); H ernandez-Alvorado, 891 F.2d at 1416. Likewise,\nHispanic or foreign-sounding names do not in themselves provide a valid basis\n34\n\n\x0cAssistance by Slate and Local Police in Apprehending Illegal Aliens\n\nfor reasonable suspicion. See Orhorhaghe v. INS, 38 F.3d 488, 497-98 (9th Cir.\n1994).\nc. Neither the ramshackle appearance of the vehicle, nor the unkempt, illdressed, and nervous appearance of the passengers in itself provides a sound basis\nfor reasonable suspicion. See United States v. Ortega-Serrano, 788 F.2d 299 (5th\nCir. 1986).\nd. As outlined by the Supreme Court in Brignoni-Ponce, 422 U.S. at 88485, the following are some of the common factors that an officer may rely upon\nin combination with one another in determining whether a vehicle or its occupant\naliens may be detained on reasonable suspicion of INA violations:\n(1) characteristics of the area in which the vehicle is encountered (e.g.,\nan established thoroughfare for alien smuggling);\n(2) proximity of that area to the U.S. border;\n(3) usual patterns of alien-smuggling traffic, including the time of day fa\xc2\xad\nvored for such activity;\n(4) knowledge that illegal border crossings have recently occurred in the\narea where the vehicle is spotted;\n(5) the driver\xe2\x80\x99s extraordinary behavior or driving irregularities, such as a\nsudden and abrupt exit from the highway onto an exit ramp (see RodriguezSanchez, 23 F.3d at 1493) or similarly striking evasive maneuvers that exceed\nthe merely negligent;\n(6) telltale characteristics of the vehicle or its passengers (e.g., \xe2\x80\x9c The vehi\xc2\xad\ncle may appear to be heavily loaded, it may have an extraordinary number of\npassengers, or the officers may observe persons trying to hide.\xe2\x80\x9d Brignoni-Ponce,\n422 U.S. at 885).\ne. Other examples of the \xe2\x80\x9c more particularized information\xe2\x80\x9d that courts re\xc2\xad\nquire to justify reasonable suspicion detentions of vehicles or passengers include\nthe following, see Hernandez-Alvarado, 891 F.2d at 1417:\n(1) tips from informants that a specific vehicle or address is being used\nfor smuggling or concealing illegal aliens;\n(2) evidence that a pickup or delivery of aliens is likely to be made in\na particular place and at a particular time, derived from observable facts (e.g.,\nlarge numbers of footprints leading to a highway on a known alien-smuggling\nroute and then discontinuing at the same roadside point, see United States v. C or\xc2\xad\ntez, 449 U.S. 411, 419-21 (1981);\n(3) forms of particularized behavior associated with the evasive tactics used\nin illegal entry, such as manifestly coordinated evasive behavior and slouching\nor similar unusual movements designed to avoid detection of vehicular passengers,\nsee United States v. Garcia-Nunez , 709 F.2d 559 (9th Cir. 1983); and\n(4) persons manifestly conducting counter-surveillance or serving as look\xc2\xad\nouts.\n2. Detention on the Basis o f Suspected M isdemeanor Violations and the \' \xe2\x80\x98P re\xc2\xad\ntext\xe2\x80\x9d Issue\n\n35\n\n\x0cOpinions o f the Attorney General in Volume 20\n\nBoth an alien\xe2\x80\x99s failure to carry alien registration documentation and a first of\xc2\xad\nfense of illegal entry into the United States constitute federal misdemeanors. See\n8 U.S.C. \xc2\xa7\xc2\xa7 1304(e)6 and 1325. We are advised that these are the provisions of\nthe INA that would most commonly provide the basis for a reasonable suspicion\nthat transient aliens have committed or are committing a crime.\nReliable indications that the suspect is an alien, coupled with his failure to\nproduce alien registration documentation or a \xe2\x80\x9c green card,\xe2\x80\x9d may provide probable\ncause for an arrest under the lack of documentation provision of \xc2\xa7 1304(e). See\nMountain High Knitting, Inc., 51 F.3d at 218; M artinez, 831 F.2d at 828. In the\nformer decision, however, the Ninth Circuit raised some doubts concerning reli\xc2\xad\nance on \xc2\xa7 1304 as an independent basis for warrantless alien arrests. Without actu\xc2\xad\nally resolving the issue, the court indicated a strong predisposition to accept the\naliens\xe2\x80\x99 contentions that the INS did not actually arrest them for violating the lack\nof documentation provision and that arrests on that basis were only a pretext for\ncivil arrests on suspicion of illegal entry for purposes of deportation. Mountain\nHigh Knitting, Inc., 51 F.3d at 218. On the basis of those contentions, the Ninth\nCircuit remanded the case for the district court to assess \xe2\x80\x9c whether reasonable\nINS officers would have arrested appellants solely for violating \xc2\xa7 1304(e) absent\nsuspicion of illegal entry.\xe2\x80\x9d Id. at 219.\nWith respect to \xc2\xa7 1325\xe2\x80\x99s illegal entry provision, the Ninth Circuit has held that,\nwhile the lack of documentation or \xe2\x80\x9c other admission of illegal presence may be\nsome indication of illegal entry,\xe2\x80\x9d it does not without more provide probable cause\nfor a violation of 8 U.S.C. \xc2\xa7 1325(a). Mountain High Knitting, Inc., 51 F.3d at\n218; G onzales, 722 F.2d at 476-77. The Ninth Circuit has also stressed the signifi\xc2\xad\ncance of the distinction between illegal entry (a crime that is subject to enforce\xc2\xad\nment by state officers) and mere \xe2\x80\x9c illegal presence,\xe2\x80\x9d which generally provides\ngrounds only for civil deportation and is therefore not subject to non-federal en\xc2\xad\nforcement. Id. That distinction has additional significance for purposes of Cali\xc2\xad\nfornia law, which requires that warrantless arrests for misdemeanors (such as a\nfirst illegal entry violation) may only be made when the offense is committed\nin the arresting officer\xe2\x80\x99s presence.7\nThese considerations have raised concerns as to the viability of these frequentlyviolated federal misdemeanor provisions as a basis for lawful detention or arrest\nof alien suspects by state officers. Subject to the particular factual circumstances\nand established federal prosecution practices, we nonetheless believe that Cali6 T h e re q u ire m e n ts o f 8 U .S .C . \xc2\xa7 1304(e) ap p ly only to aliens w ho h ave b ee n registered and issued a registration\nreceip t ca rd . See United States v. Mendez-Lopez, 528 F. S upp. 9 7 2 (N .D . O k la. 1981). A n a lie n \xe2\x80\x99s failure to reg ister\nw ith IN S afte r rem ain in g in th e U n ite d Slates fo r 30 days o r longer is sep arately prohibited u n d er 8 U .S.C . \xc2\xa7 1302.\nV io latio n s o f th e la tte r s e c tio n are punishable b y up to six m onths im priso n m en t under 8 U .S.C . \xc2\xa7 1 3 0 6 and c o n \xc2\xad\nseq u en tly also co n stitu te m isd e m ea n o rs under C alifo rn ia law.\n7 T h is re q u irem en t c o u ld p resen t special p ro b le m s in c o n n e ctio n w ith the illeg al entry m isd em ean o rs\xe2\x80\x94 w h ich h ave\nbeen co n s id e re d c o m p lete an d consum m ated (a n d thus no lo n g e r su b jec t to an o ffic er\xe2\x80\x99s personal observ atio n ) w hen\nthe alie n has reac h ed a \xe2\x80\x9c p la ce o f repose\xe2\x80\x9d w ithin the U nited S tates. See Gates, 193 Cal. A pp.3d at 2 16. T h is issue\nis d isc u sse d in fu rth e r d etail in sectio n 1I.C.3, infra.\n\n36\n\n\x0cAssistance by Stale and Local Police in Apprehending Illegal Aliens\n\nfomia police may validly rely upon the INA\xe2\x80\x99s misdemeanor offenses, as well as\nits felony offenses, in detaining alien suspects on reasonable suspicion of a federal\ncriminal violation. We base this conclusion on several considerations.\nInitially, we do not believe that the restrictive \xe2\x80\x9c pretext\xe2\x80\x9d holding in Mountain\nHigh Knitting should be considered generally applicable to investigative detentions\nof the type at issue here. Although Mountain High Knitting subjected a fullfledged arrest (based on probable cause of a \xc2\xa7 1304(e) violation) to additional\nscrutiny for pretext, it does not purport to establish a general rule imposing this\nsecond layer of scrutiny upon the reasonable suspicion assessments that suffice\nto justify preventive detention.\nBy definition, a reasonable suspicion does not entail the same degree of speci\xc2\xad\nficity and certainty regarding the suspected offense as does a determination of\nprobable cause.8 In this regard, the courts have specifically upheld the validity\nof Terry detentions imposed by state officers in order to allow for the arrival\nof federal officers to make a more informed, expert assessment of probable cause.\nAs explained by the Sixth Circuit in upholding a 45-minute detention of drug\nsuspects to await arrival of trained DEA agents: \xe2\x80\x9c The sheriff\xe2\x80\x99s deputies were\nnot trained as drug agents and needed the DEA agents\xe2\x80\x99 expertise to confirm or\ndispel their suspicions.\xe2\x80\x9d United States v. Winfrey, 915 F.2d 212 (6th Cir. 1990),\ncert, denied, 498 U.S. 1039 (1991). This view is further confirmed by the Supreme\nCourt\xe2\x80\x99s repeated observation that, in assessing the reasonableness of Terry stops,\n\xe2\x80\x9c the Fourth Amendment does not require a policeman who lacks the precise level\nof information necessary for probable cause to simply shrug his shoulders and\nallow a crime to occur or a criminal to escape.\xe2\x80\x9d United States v. Montoya de\nHernandez, 473 U.S. 531, 544 (1985); Adams v. Williams, 407 U.S. 143, 145\n(1972). As a general rule, therefore, we do not believe that state officers can\nbe expected to make subtle judgments concerning the vagaries of federal prosecu\xc2\xad\ntion policy in exercising their authority to detain suspects on reasonable suspicion\nthat a criminal violation of the INA has occurred. Such complex assessments may\nproperly be left to the federal officers who are responsible for making probable\ncause and arrest determinations when they arrive at the scene of detention. Thus,\nunless the state and local police are privy to firm and specific information that\nfederal officials will not prosecute INA misdemeanor violations, we believe they\nmay impose investigative detention based on reasonable suspicion that an alien\nhas not registered with the INS as required, is not in possession of required reg\xc2\xad\nistration documentation, or has illegally entered the United States.\nAlthough the lack of proper documentation does not, without more, provide\nprobable cause for arrest based on an illegal entry violation, the Ninth Circuit\nhas acknowledged that it \xe2\x80\x9c may be some indication of illegal entry.\xe2\x80\x9d Gonzales,\n8 T his p oint is w ell-illustrated in Ramirez-Sandovalt 872 F .2d at 1395, w here the N in th C ircuit u p h eld a reasonable\nsu sp icio n detention based upon circum stances w hich indicated m erely that the o ccu p an ts o f a p ark ed van \xe2\x80\x9c m ay\nw ell h ave b een engaged in illegal a c tiv ity ."\n\n37\n\n\x0cOpinions o f the Attorney General in Volume 20\n\n722 F.2d at 477. Accordingly, we believe that in appropriate circumstances \xe2\x80\x94\ne.g., where there are other objective indicators of illegal entry, such as the time,\nplace, and circumstances of the suspect\xe2\x80\x99s movements \xe2\x80\x94 lack of proper documenta\xc2\xad\ntion may provide grounds for reasonable suspicion that an alien has committed\nan illegal entry. Armed with such reasonable suspicion that a federal crime has\noccurred, it is appropriate and consistent with relevant precedent for state officers\nto detain the undocumented alien for a reasonable period pending an expert deter\xc2\xad\nmination of probable cause and suitability for arrest by the Border Patrol or other\nINS agents. See Winfrey, 915 F.2d at 217-18. Again, however, such reasonable\ndetention practices would be vulnerable to challenge on the \xe2\x80\x9c pretext\xe2\x80\x9d grounds\ninvoked in M ountain High Knitting if federal authorities have made it clear that\nillegal entry misdemeanors will not be prosecuted and that the sole remedy to\nbe pursued for such violations is civil deportation.\nAdditionally, it is not clear that the California Code\xe2\x80\x99s provision that warrantless\nmisdemeanor arrests can only be made when the misdemeanor was committed\nin the officer\xe2\x80\x99s presence is necessarily applicable to otherwise valid investigative\ndetentions. In terms, that provision applies only to arrests, see Cal. Penal Code\n\xc2\xa7 836(a) (West 1994), and investigative detentions under Terry are legally distinct\nfrom full-fledged arrests. In that regard, the California Court of Appeal described\nthe California standard for investigative detentions as follows:\nAn investigative detention is justified when the facts and cir\xc2\xad\ncumstances known or apparent to the officer, including specific or\narticulable facts, cause him to suspect (1) a crime has occurred and\n(2) the person he intends to detain is involved in the criminal activ\xc2\xad\nity. (In re Tony C. (1978), 21 Cal.3d 888, 893, 148 Cal. Rptr. 366,\n582 P.2d 957.)\nIn re C arlos M ., 220 Cal. App.3d 372, 380, 269 Cal. Rptr. 447, 452 (Cal. App.\n\n4 Dist. 1990) (emphasis added). Significantly, the investigative detention standard\nrequires only reasonable suspicion that a \xe2\x80\x9c crime\xe2\x80\x9d has occurred, and not nec\xc2\xad\nessarily a felony. Accordingly, while we would defer to the California legal au\xc2\xad\nthorities\xe2\x80\x99 interpretations of California law, we believe that alien suspects may be\ndetained by state officers on reasonable suspicion of a misdemeanor violation of\nthe INA even though the officer did not personally observe commission of the\noffense and therefore could not himself lawfully undertake a warrantless arrest\nof the suspect under California law. Although the state officers might not them\xc2\xad\nselves be able to arrest the federal misdemeanor suspects \xe2\x80\x94 at least absent prob\xc2\xad\nable cause that a separate state felony has been committed \xe2\x80\x94 their authority to\nassist federal officers in doing so is well established.\n3.\nIllegal E ntry as a Basis f o r A rrest\xe2\x80\x94 the Com plete or Continuing Offense\nIssue\n\n38\n\n\x0cAssistance by State and Local Police in Apprehending Illegal Aliens\n\nAs indicated above, special questions have been raised concerning the utility\nof the illegal entry statute, 8 U.S.C. \xc2\xa7 1325(a), as a basis for detention or arrests\nby state officers. In United States v. Rincon-Jimenez, 595 F.2d 1192, 1194 (9th\nCir. 1979), the Ninth Circuit held that illegal entry is not a continuing violation \xe2\x80\x94\nthat is, the offense is complete fo r statute o f limitations purposes upon the alien\xe2\x80\x99s\nsuccessful entry into the United States. In Gonzales, the Ninth Circuit indicated\nthat Rincon-Jimenez also stands for the proposition that a \xc2\xa7 1325 violation is also\ncomplete \xe2\x80\x9c at the time of entry\xe2\x80\x9d for purposes of determining whether the offense\nhas been committed in the presence of an officer under applicable state law. See\n722 F.2d at 475-76. Since \xc2\xa7 1325 is a misdemeanor, a California officer cannot\nmake a warrantless arrest for its violation unless it is committed in his presence.\nIn light of these considerations, in G ates v. Superior Court, the court held: \xe2\x80\x9c Once\nan alien has reached a place of repose within the country, the misdemeanor of\nimproper entry ends. At that point, an LAPD officer may not arrest for this of\xc2\xad\nfense because it did not occur in the officer\xe2\x80\x99s presence.\xe2\x80\x9d 193 Cal. App.3d at\n216 (emphasis added).\nWe should note, however, that aspects of the Supreme Court\xe2\x80\x99s opinion in INS\nv. Lopez-M endoza, 468 U.S. 1032 (1984), cast some doubt upon the proposition\nthat an illegal entry violation is complete upon entry and therefore cannot be con\xc2\xad\nsidered a \xe2\x80\x9c continuing\xe2\x80\x9d crime that can be observed by an officer after the alien\nhas cleared the border. In that opinion, the Court stated that the presence of an\nunregistered alien who had entered the United States illegally \xe2\x80\x9c without more, con\xc2\xad\nstitutes a crime\xe2\x80\x9d and that such an alien\xe2\x80\x99s \xe2\x80\x9c release within our borders would im\xc2\xad\nmediately subject him to criminal penalties.\xe2\x80\x9d Id. at 1047. Notwithstanding the\ndissent\xe2\x80\x99s specific invocation of the holding in Rincon-Jimenez, id. at 1057 (White,\nJ., dissenting), the Court stated, \xe2\x80\x9c We need not decide whether or not remaining\nin this country following an illegal entry is a continuing or a completed crime\nunder \xc2\xa7 1325.\xe2\x80\x9d Id. at 1047. If the Court were to view an undetected illegal entry\nas a continuing crime, the \xe2\x80\x9c committed in the presence\xe2\x80\x9d requirement of California\nlaw would present no obstacle to warrantless arrests of illegal entrants by Cali\xc2\xad\nfornia officers.\nAbsent an authoritative clarifying decision on this issue, however, warrantless\narrests by California state officers for illegal entry violations must be considered\nlegally invalid when the alien has already completed his entry into the United\nStates.\nThe law is not clear, however, as to exactly when an illegal entry is complete\nfor purposes of determining whether it has occurred in the presence of the arrest\xc2\xad\ning officer. Without explanation, analysis, or citation of authority, the G ates opin\xc2\xad\nion tersely states that an illegal entry is complete for that purpose when \xe2\x80\x9c an alien\nhas reached a place of repose within the country,\xe2\x80\x9d 193 Cal. App.3d at 216. De\xc2\xad\nspite its lack of analysis, this statement remains the most authoritative interpreta\xc2\xad\ntion of the California \xe2\x80\x9c in presence\xe2\x80\x9d requirement as applied to illegal entry viola\xc2\xad\n39\n\n\x0cOpinions o f the Attorney General in Volume 20\n\ntions. Applying that interpretation, we do not believe that aliens apprehended in\nthe vehicle in which they have illegally crossed the border would be held to have\nreached a \xe2\x80\x9c place of repose\xe2\x80\x9d within the United States as long as the apprehension\noccurs before the aliens have been delivered to their immediate arrival destination\nwithin the United States. C f United States v. Aslam, 936 F.2d 751, 755 (2d Cir.\n1991). Under those circumstances, we believe warrantless arrests would be permis\xc2\xad\nsible under the formulation adopted in Gates.\nIn any event, we believe that reasonable suspicion that such illegal entry has\noccurred enables state officers to detain such alien suspects for reasonable periods\npending evaluation, processing, and possible arrest by Border Patrol officers. That\nraises the question of what constitutes a reasonable period for such purposes.\nID. L en gth o f D etention Issues\nIn light of the San Diego Police Force policy of limiting the detention of alien\nsuspects (pending the arrival of Border Patrol assistance) to 20 minutes, you have\ninquired whether longer detention periods of, for example, one hour would be\nconsistent with Fourth Amendment requirements.\nWhere the police have probable cause to arrest the alien suspect, periods of\ndetention lasting one-hour or more would present no constitutional problem. See\nU nited States v. M ondello, 927 F.2d 1463, 1471 (9th Cir. 1991) (90-minute deten\xc2\xad\ntion of drug suspect upheld where positive canine sniff test had already established\nprobable cause). The pertinent time limitation in the arrest context is the require\xc2\xad\nment that the arrestee must generally9 be given a probable cause hearing before\na magistrate or judge within 48 hours after arrest. Thus, an alien suspect who\nmay be legitimately regarded as under arrest may be detained for periods exceed\xc2\xad\ning one-hour pending the arrival of Border Patrol agents or other necessary federal\nenforcement resources. However, where the detention follows a mere investigative\nstop based on reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968)\xe2\x80\x94\nfor example, where probable cause for arrest is lacking and does not materialize\nduring the stop \xe2\x80\x94 detention for an excessive length of time under the cir\xc2\xad\ncumstances may violate the Fourth Amendment\xe2\x80\x99s standard of reasonableness.\nIn U nited States v. Sharpe, 470 U.S. 675, 685 (1985), the Supreme Court estab\xc2\xad\nlished that there is \xe2\x80\x9c no rigid time limitation on Terry stops,\xe2\x80\x9d but that a stop\nmay be excessive if it involves \xe2\x80\x9c delay unnecessary to the legitimate investigation\nof the law enforcement officers,\xe2\x80\x9d id. at 68 7 .10 As the Court more fully explained\nin upholding a 20-minute detention:\n9 T h e te m p o ra l lim itatio n o n d eten tio n of an arre ste e w ithout a m a g istra te \'s o r ju d g e\xe2\x80\x99s determ in atio n o f p robable\ncau se m a y so m etim e s be less than 48 hours (i.e ., th e delay m ust n e v e r be \xe2\x80\x9c u n reaso n ab le\xe2\x80\x9d u n d er the circu m stan ces)\nand s o m e tim e s m o re (i.e., w hen th e re is a \xe2\x80\x9c b o n a fide em erg en cy o r o th e r ex trao rd in ary circu m stan c e\xe2\x80\x9d )- See County\no f Riverside v. McLaughlin , 5 0 0 U .S . 44, 56-57 (1 9 9 1 ).\n10 W e d o n o t b e lie v e that United States v. Place , 462 U .S . 6 9 6 (1983) estab lish es a h ard rule that a deten tio n\nfor as lo n g as 9 0 m in u tes, w h eth e r o f luggage o r person, is p er se excessiv e and unreasonable. T h ere, the C o u rt\nheld th a t th e 9 0 -m in u te d eten tio n o f a suspect\xe2\x80\x99s lu g g a g e to arran g e fo r a canine s n iff test w as ex cessiv e an d u n reaso n \xc2\xad\n\n40\n\n\x0cAssistance by State and Local Police in Apprehending Illegal Aliens\n\nWhile it is clear that \xe2\x80\x9c the brevity of the invasion of the individual\xe2\x80\x99s\nFourth Amendment interests is an important factor in determining\nwhether the seizure is so minimally intrusive as to be justifiable\non reasonable suspicion,\xe2\x80\x9d we have emphasized the need to consider\nthe law enforcement purposes to be served by the stop as well as\nthe time reasonably needed to effectuate those purposes. Much as\na \xe2\x80\x9c bright line\xe2\x80\x9d rule would be desirable, in evaluating whether an\ninvestigative detention is unreasonable, common sense and ordinary\nhuman experience must govern over rigid criteria.\nId. at 685 (quoting United States v. Place, 462 U.S. at 709 (citations omitted)).\n\nThe Court reiterated this pragmatic approach to the length-of-detention issue\nin Montoya d e Hernandez, where it upheld the reasonableness of a 16-hour border\ndetention of a suspected alimentary canal drug-smuggler. As the Court stated:\nHere, respondent was detained incommunicado for almost 16 hours\nbefore inspectors sought a warrant; . . . . This length of time un\xc2\xad\ndoubtedly exceeds any other detention we have approved under rea\xc2\xad\nsonable suspicion. But we have also consistently rejected hard-andfast time limits, Sharpe, supra\\ Place, supra, at 709, n.10. Instead,\n\xe2\x80\x9c common sense and ordinary human experience must govern over\nrigid criteria.\xe2\x80\x9d Sharpe, supra, at 685.\n473 U.S. at 542. However, the 16-hour detention in M ontoya de Hernandez oc\xc2\xad\ncurred in the border context, and the holding therefore should not be considered\ngenerally applicable to detentions outside the border area.\nThus, the Supreme Court has expressly rejected the imposition of rigid, arbitrary\ntime limits upon the permissible duration of detention for Terry stops. Instead,\nthe reasonableness of the detention is evaluated in light of the particular purpose\nof the stop in question and the time \xe2\x80\x9c reasonably needed\xe2\x80\x9d to take necessary and\nappropriate measures to achieve that purpose. The dispositive question is whether\nthe detention is \xe2\x80\x9c unnecessarily prolonged.\xe2\x80\x9d Sharpe, 470 U.S. at 6 8 5 .11\nGuided by these considerations, various federal courts have upheld Terry deten\xc2\xad\ntions ranging in length from 20 minutes to two hours. E.g., Sharpe, 470 U.S.\nable u n d er th e circum stances. Id. at 709. The S uprem e C o u rt\'s subsequent o p in io n in Sharpe, how ever, ex p ressly\nlim ited Place\'s reach by stressing that in Place the police had possessed p rio r k now ledge o f th e su sp e ct\'s arriv al\ntim e, could th erefore h av e m ade advance arrangem ents for m o re expeditio u s pro cessin g , and th u s had n o t acted\ndiligently in pursuing th e ir investigation. 470 U .S. at 6 8 4 -8 5 . Sharpe thus m akes clear that th e p o lice\'s ex ercise\no f reasonable diligence, rath er than any arbitrarily-draw n tim e lim it, is the cru cial factor in determ in in g F o u rth\nA m endm ent reasonableness in this context.\n\n11 Sharpe\'s specific rejection o f rigid, preconceived lim itations on th e du ratio n o f Terry sto p s is co n sisten t w ith\nthe S uprem e C o u rt\xe2\x80\x99s m ore recently-stated em phasis that Fourth A m endm ent req u irem en ts fo r p ro m p t probable cau se\nhearings follow ing w arrantless arrests d o 4\xe2\x80\x98not im pose o n the S tates a rigid p ro ced u ral fram ew ork. R ather, in d iv id u al\nS tates m ay choose to com ply in d ifferen t w ay s.\xe2\x80\x9d County o f Riverside, 500 U .S. at 53 (v aca tin g as erro n eo u s a\nN inth C ircuit p a n e l\'s contrary holding that \xe2\x80\x9c no flexibility was p erm itted ,\xe2\x80\x9d see id. at 54).\n\n41\n\n\x0cOpinions o f the Attorney General in Volume 20\n\nat 687 (20-minute detention not unreasonable); Bloomfield, 40 F.3d at 917 (onehour detention of motorist to await drug-sniffing dog held reasonable); United\nStates v. Adam s, 39 F.3d 1178 (4th Cir. 1994) (unpublished opinion) (45-minute\ndetention upheld as reasonable); United States v. Frost, 999 F.2d 737, 741-42\n(3d Cir.), cert, denied, 510 U.S. 1001 (1993) (detention of nearly one hour to\nawait drug dog held reasonable); Courson v. M cMillian, 939 F.2d 1479, 1491\n(11th Cir. 1991) (30 minutes not unreasonable for an investigatory stop); Jackson\nv. Wren, 893 F.2d 1334 (6th Cir. 1990) (unpublished opinion) (detention for over\ntwo hours to await arrival of DEA agents upheld); U nited States v. Hardy, 855\nF.2d 753, 761 (11th Cir. 1988), cert, denied, 489 U.S. 1019 (1989) (50-minute\nroadside detention to await drug dog held reasonable); United States v. Davies,\n768 F.2d 893, 902 (7th Cir.), cert, denied, 474 U.S. 1008 (1985) (45-minute deten\xc2\xad\ntion \xe2\x80\x9c for further questioning and advice from their superiors\xe2\x80\x9d held a valid inves\xc2\xad\ntigative stop); U nited States v. W illis, 759 F.2d 1486, 1497 (11th Cir.), cert, de\xc2\xad\nnied, 474 U.S. 849 (1985); (25-minute detention upheld); United States v. Borrero,\n770 F. Supp. 1178, 1189-91 (E.D. Mich. 1991) (70-minute detention by DEA\nagents at airport held reasonable).\nIt should be noted, however, that an opinion issued by a Ninth Circuit panel\nin 1994 suggests a more restrictive approach to the length-of-detention issue. In\nUnited States v. $191,910.00 in U.S. Currency, 16 F.3d 1051 (9th Cir. 1994)\n(\xe2\x80\x9c Currency\xe2\x80\x9d ), Judge Reinhardt held that the 90-minute detention of a drug sus\xc2\xad\npect\xe2\x80\x99s luggage, pending the arrival of a drug-sniffing dog, was in itself sufficient\nto invalidate the seizure under the Fourth Amendment. Relying heavily on the\nSupreme Court\xe2\x80\x99s baggage-detention ruling in P lace \xe2\x80\x94 while seeking to minimize\nthe Court\xe2\x80\x99s subsequent emphatic rejection of \xe2\x80\x9c rigid time limitations\xe2\x80\x9d in\nS h a rp e 12 \xe2\x80\x94 the court adopted the view that the Place opinion established an\n\xe2\x80\x9c outer boundary of permissible seizures\xe2\x80\x9d that falls \xe2\x80\x9c somewhere short of 90 min\xc2\xad\nutes.\xe2\x80\x9d Currency, 16 F.3d at 1060.\nWe believe that this aspect of the Currency holding is irreconcilable with the\nSupreme Court\xe2\x80\x99s holdings in Sharpe and M ontoya de Hernandez- As demonstrated\nin the quotes set forth above, the Sharpe opinion repeatedly and unmistakably\nemphasized that the constitutionality of Terry stops may not be mechanically\nmeasured against any pre-ordained time limitation. It held that the establishment\nof such a time limitation \xe2\x80\x9c is clearly and fundamentally at odds with our approach\nin this area.\xe2\x80\x9d 470 U.S. at 686. Yet that is precisely what the panel purported\nto ordain in the Currency case (\xe2\x80\x9c the detention of Morgan\xe2\x80\x99s baggage violated the\nFourth Amendment solely because of its length\xe2\x80\x9d ). 16 F.3d at 1060.\nl2 T h e Currency c o u rt\xe2\x80\x99s b ro ad application o f th e Place ruling is incom p atib le w ith the S u p rem e C o u rt\xe2\x80\x99s narrow ing\nin terp retatio n o f th a t sam e ruling in the Sharpe opinion. See supra note 10. A s the C o u rt explained in Sharpe,\n\xe2\x80\x9c [Ijn Place, w e e x p re ssly rejecte d the suggestion that we ad o p t a hard-an d -fast tim e lim it fo r a perm issible Terry\ns to p .\xe2\x80\x9d 4 70 U .S . at 6 8 6 . T h is em phatic and unam b ig u o u s h o ld in g in Sharpe w as stu d io u sly ignored by the panel\no p in io n in th e Currency ca se. See 16 F.3d al 1060 n.17.\n\n42\n\n\x0cAssistance by State and Local Police in Apprehending Illegal Aliens\n\nNotwithstanding our view that Currency\xe2\x80\x99s adoption of a fixed time limit for\nTerry stops is erroneous \xe2\x80\x94 a limit that would fall \xe2\x80\x9c somewhere short of 90 min\xc2\xad\nutes,\xe2\x80\x9d but certainly no lower than 30 minutes13 \xe2\x80\x94 that opinion has neither been\noverruled nor directly refuted by subsequent Ninth Circuit opinions. Accordingly,\nthe approach reflected in the Currency opinion should be taken into account in\nformulating enforcement guidelines in this area. Moreover, it is significant to note\nthat the Currency opinion imposed a 90-minute limitation on luggage detentions;\nit is reasonable to expect that that panel might be inclined to impose stricter limita\xc2\xad\ntions on detentions of persons.\nHowever, considered in conjunction with the more authoritative Supreme Court\nholding in Sharpe , as well as more permissive Ninth Circuit opinions such as\nMondello, we believe that the Currency opinion should be interpreted no more\nbroadly than its holding specifically requires \xe2\x80\x94 i.e., that investigative detentions\nmay not exceed 90 minutes in duration. To extrapolate a still more restrictive\nrule for the Ninth Circuit (e.g., a rule treating one-hour stops as per se unreason\xc2\xad\nable) would ascribe to the Currency opinion more weight than is warranted by\nits juridical authority relative to Sharpe, Mondello, and other less restrictive prece\xc2\xad\ndents. Cf. County o f Riverside, 500 U.S. at 54-55 (where the Supreme Court re\xc2\xad\njected a comparably restrictive and \xe2\x80\x9c inflexible\xe2\x80\x9d Fourth Amendment interpretation\nby a Ninth Circuit panel).\nWe believe that the necessity of detaining immigration suspects until Border\nPatrol/INS agents arrive is analogous to the necessity of detaining drug suspects\npending the arrival of DEA agents or drug-sniffing dogs for purposes of evaluating\nthe duration of detention for reasonableness. In both situations, the purpose of\nthe delay is to allow for the utilization of enhanced investigative or enforcement\nresources that are necessary to effectuate the legitimate purpose of the investiga\xc2\xad\ntive detention. See Winfrey, 915 F.2d at 217 (45-minute detention of drug suspects\nby local officers to await arrival of federal DEA agents upheld, where \xe2\x80\x9c [t]he\nsheriff\xe2\x80\x99s deputies were not trained as drug agents and needed the DEA agents\xe2\x80\x99\nexpertise to confirm or dispel their suspicions\xe2\x80\x9d ). Accordingly, the precedents up\xc2\xad\nholding various periods of detention as reasonable to permit the arrival of DEA\nagents or drug-sniffing dogs provide valid guidelines for determining a reasonable\nperiod of detention in the immigrant suspect situations posed here as well. Based\non those precedents, we believe that if Border Patrol agents exercising reasonable\ndiligence require 45 minutes to one hour to reach the scene of detention, detentions\nof that length would be sustainable under Sharpe where there is reasonable sus\xc2\xad\npicion that the detained aliens have violated the federal immigration laws. We\ncaution, however, that when Border Patrol Agents do not promptly arrest the de\xc2\xad\n13 See Mondello, 9 2 7 F.2d at 1471, w here an o th er N inth C ircuit panel (T rott, J.) upheld the reaso n ab len ess o f\na 30 -m in ute investigative stop to perm it the arrival o f drug-detecting dogs. T h e re is n o su g g estio n in Currency\no f disag reem ent w ith Mondello\'s ap p ro v al o f a 30-m inute Terry detention.\n\n43\n\n\x0cOpinions o f the Attorney General in Volume 20\n\ntainees, the additional period of detention required by them should be counted\nin calculating the permissible duration of detention.\nP olice Force Policies. We note that further complications may arise in this area\nfrom the language contained in written guidelines or policies used by state or\nlocal police forces. For example, if such guidelines specify that subjects may only\nbe detained based on reasonable suspicion of criminal activity that is unrelated\nto the immigration laws, the legal basis for detentions pending the arrival of Bor\xc2\xad\nder Patrol agents could be undercut. Sharpe requires that an extended Terry deten\xc2\xad\ntion must be related to \xe2\x80\x9c the law enforcement purposes to be served by the stop,\xe2\x80\x9d\n470 U.S. at 685, and Border Patrol assistance is obviously not needed to deal\nwith criminal activity unrelated to immigration status.\nIt is our understanding that the need for expanding the maximum alien-suspect\nTerry detention period from 20 minutes to as long as one-hour is premised upon\nthe time required for Border Patrol agents to arrive on the scene to further inves\xc2\xad\ntigate and process the INA violation. Under Sharpe, such extended detention must\nbe related to the law enforcement purposes to be served by the stop or the further\nreasonable suspicions arising during the stop. However, if a Police Force policy\nstates that detentions may only be made for non-immigration enforcement pur\xc2\xad\nposes, detentions imposed to await the Border Patrol would be vulnerable to chal\xc2\xad\nlenge based on the limiting language of the policy. To minimize this complication,\nstate and local police forces could be urged to modify their policies or guidelines\nto remove provisions indicating that Terry stops and detentions of undocumented\naliens must be based on reasonable suspicion of criminal activity that is unrelated\nto immigration status or enforcement of federal immigration law.\nIn sum, we conclude that \xe2\x80\x9c reasonable suspicion\xe2\x80\x9d detention of undocumented\naliens by local police for periods in the range of 45 to 60 minutes should comply\nwith Fourth Amendment requirements when that much time is required to enable\nBorder Patrol agents to arrive at the scene exercising reasonable diligence. This\nassessment presumes that the involved local police force does not disavow any\npurpose of assisting federal enforcement of the immigration laws in making such\nstops. Although the Supreme Court\xe2\x80\x99s Sharpe opinion expressly repudiates any\nrigid time limitation on reasonable stops under Terry, we caution that the Ninth\nCircuit panel opinion in the Currency case has held that stops of 90 minutes,\nand perhaps less, are per se unreasonable under the Fourth Amendment. Accord\xc2\xad\ningly, we would not recommend adoption of a guideline establishing a period\nany greater than 45 to 60 minutes as a benchmark for maximum permissible deten\xc2\xad\ntion periods. Moreover, any guidelines or benchmarks adopted in this area should\nstress that the maximum permissible period is premised upon the assumption that\nsuch a time period is needed to allow for the arrival and assistance of Border\nPatrol agents or other necessary support resources. Guidelines or rules should indi\xc2\xad\ncate that extended detention periods ranging roughly from fifteen minutes to an\nhour are only justified when that much time is genuinely needed to carry out\n44\n\n\x0cAssistance by Stale and Local Police in Apprehending Illegal Aliens\n\nthe permissible objectives of the stop. Allowing for the arrival of Border Patrol\nagents to properly handle the suspected violation of federal immigration law pro\xc2\xad\nvides such justification.\nE. Transportation o f A liens by State/L ocal Police\nGiven the difficulties of Border Patrol agents promptly reaching the scene\nwhere state officers have stopped alien suspects, you have asked whether it would\nbe lawful for the state police to transport the suspects to the federal officials in\xc2\xad\nstead. The constitutional issue is whether such involuntary transportation would\nnecessarily transform a valid investigative detention into an arrest that would vio\xc2\xad\nlate the Fourth Amendment in the absence of probable cause.\nIn Hayes v. Florida, 470 U.S. 811 (1985), the Supreme Court held that the\nline between investigative detention and full-fledged arrest is crossed when the\npolice \xe2\x80\x9c forcibly remove a person from his home or other place in which he is\nentitled to be and transport him to the police station, where he is detained, al\xc2\xad\nthough briefly, for investigative purposes.\xe2\x80\x9d Id. at 816. Similarly, in United States\nv. Recalde, 761 F.2d 1448 (10th Cir. 1985), the court upheld the Fourth Amend\xc2\xad\nment claims of a drug suspect who \xe2\x80\x9c was taken from a public highway without\nhis consent and transported five miles to a police station, where he was placed\nin a small room for further investigation and questioning.\xe2\x80\x9d Id. at 1456. The Ninth\nCircuit invoked the Supreme Court\xe2\x80\x99s opinion in D unaway v. New York, 442 U.S.\n200 (1979), to the same effect in Gonzales v. City o f Peoria, 722 F.2d at 477:\nIf the seizure involves anything more than the brief and narrowlydefined intrusion authorized by Terry, it must be justified by prob\xc2\xad\nable cause. Dunway, 442 U.S. at 212; Brignoni-Ponce, 422 U.S.\nat 882. Dunway makes absolutely clear that where the defendant\nis transported to the police station and placed in a cell or interroga\xc2\xad\ntion room he has been arrested, even if the purpose of the seizure\nis investigatory, rather than accusatory. Because such a seizure con\xc2\xad\nstitutes an arrest, it must be supported by probable cause.\nId. at 477 (some citations omitted). See also United States v. Obasa, 15 F.3d\n\n603, 608-10 (6th Cir. 1994) (holding that a detention following a highway taxi\nstop ripened into an arrest when the defendant was searched, given Miranda warn\xc2\xad\nings, and transported back to the airport police station). These opinions reflect\nthe view that the involuntary transportation of Terry detainees to a confined and\ncoercive setting for further interrogation or investigation transforms the detention\ninto an arrest, and can therefore be sustained only on the basis of probable cause.\nOther opinions, however, have recognized that special circumstances may some\xc2\xad\ntimes permit the limited transportation of Terry detainees without entailing an\n45\n\n\x0cOpinions o f the Attorney GeneraI in Volume 20\n\nunconstitutional arrest. The circumstances justifying such transport were summa\xc2\xad\nrized by the Ninth Circuit in U nited States v. Baron, 860 F.2d 911 (1988), cert,\ndenied, 490 U.S. 1040 (1989), following a survey of the precedents:\nThe principles that we distill from these cases are that the police\nmay move a suspect without exceeding the bounds of the Terrystop when it is necessary for safety or security reasons, when it\nis the lea st intrusive m ethod available to achieve the legitimate\ng oals o f the stop, and when moving the suspect does not make\n\nthe circumstances of the detention so coercive that the detention\nbecomes indistinguishable from an arrest.\nId. at 915-16 (citations omitted; emphasis added).\n\nSeveral recent California opinions have also recognized that transportation of\na detained suspect may be authorized on less than probable cause where it is\nreasonably necessary to accomplish quickly the purposes of the detention. In re\nCarlos M ., 220 Cal. App.3d 372, 269 Cal. Rptr. 447 (1990); In re Starvon, 29\nCal. Rptr.2d 471 (Cal. App. 2 Dist. 1994). In In re C arlos M., the court rejected\narguments that the handcuffing and forced transportation of a juvenile sexual as\xc2\xad\nsault suspect to a hospital for identification by the victim were beyond the scope\nof a Terry stop and transformed the detention into a de facto arrest. In so holding,\nthe court stressed that the officers were unable to obtain the suspect\xe2\x80\x99s consent\nto the transport because he spoke only Spanish and the detaining officer spoke\nno Spanish. The court also noted that alternative arrangements for bringing the\nvictim to the scene of the detention would have required a two-hour delay. Taking\nall these facts into account, the court concluded that the transportation of the de\xc2\xad\ntained suspect was reasonable.\nThe leading decisions invalidating transportation of detainees have frequently\nstressed the coercive atmosphere of the place to which the suspects are trans\xc2\xad\nported\xe2\x80\x94 i.e., \xe2\x80\x9c the coerciveness created by isolating a suspect in a private space\ncontrolled by the police,\xe2\x80\x9d Baron, 860 F.2d at 916 \xe2\x80\x94 rather than the act of trans\xc2\xad\nporting per se. We also consider it significant that both Baron and In re Carlos\nM. stressed the point that transporting detainees may be justified where it is the\nleast intrusive means to achieve the legitimate goals of the investigative detention.\nWhere alien suspects are validly detained on reasonable suspicion of an immi\xc2\xad\ngration crime, the detention may be reasonably extended in order to permit Border\nPatrol agents to make an expert assessment of probable cause and propriety of\narrest. Cf. Winfrey, 915 F.2d at 217-18. In some situations, the Border Patrol\xe2\x80\x99s\nassistance may be more promptly and safely obtained by transporting the aliens\nto the agents rather than by awaiting the latters\xe2\x80\x99 arrival (e.g., where their duty\nrequirements make it unworkable for them promptly to leave a particular location\nwhen called by the state police). In those particular circumstances, we believe\n46\n\n\x0cAssistance by State and Local Police in Apprehending Illegal Aliens\n\nthat transporting the suspects a reasonable distance to the agents could properly\nbe viewed as \xe2\x80\x9c the least intrusive method available to achieve the legitimate\ngoals\xe2\x80\x9d of the detention, Baron, 860 F.2d at 915, and would not violate the Fourth\nAmendment. This conclusion assumes that the ensuing interrogation or assessment\nby the Border Patrol agents would take place in an unconfined or \xe2\x80\x9c noncoercive\xe2\x80\x9d\nlocation rather than in an enclosed or coercive setting such as a police station.\nCompare Gonzales, 722 F.2d at 477 (stressing that transporting suspects to police\nstation and placing them in a cell or interrogation room results in an arrest, even\nif the purpose is \xe2\x80\x9c investigatory rather than accusatory\xe2\x80\x9d ).\nF. Deputation o f State O fficers to Enforce F ederal Im m igration L aw s\nYou have also inquired whether state and local law enforcement personnel may\nbe formally deputized or cross-designated as federal officers by the Attorney Gen\xc2\xad\neral in order to enhance their authority to enforce the immigration laws. So depu\xc2\xad\ntized, such personnel would be empowered to make warrantless arrests of illegal\nimmigration suspects and perform certain other INA enforcement tasks that they\nmight not otherwise be authorized to do in their capacity as state officers. 14 We\nconclude that the state officials could be deputized for these purposes, but it would\nbe in the capacity of Deputy U.S. Marshals exercising special authority to enforce\nthe immigration laws conferred on the U.S. Marshals Service by the Attorney\nGeneral.15\nThis office has previously opined that there is adequate statutory authority for\nspecial deputations of state and local law enforcement officials (including mem\xc2\xad\nbers of the State Militia) for purposes of assisting federal law enforcement in\na mass immigration emergency. See Memorandum for David Nachtsheim, Emer\xc2\xad\ngency Planning Coordinator, Immigration and Naturalization Service, from Walter\nDellinger, Assistant Attorney General, Office of Legal Counsel, Re: Operation\nDistant Shore D raft Plan (Oct. 15, 1993). By special deputations, we referred\nto temporary designations as Deputy U.S. Marshals under the provisions of 28\nU.S.C. \xc2\xa7\xc2\xa7 561(f) and 566(c).\n14 A ssum ing state o r local authorities agree to the federal deputation o f th e ir o fficers, an d that such d ep u tatio n\nis com patible w ith th e ir status u n d er C alifornia law , state law restrictions that w ould o th e rw ise bar en fo rcem en t\nactions that D eputy U .S. M arshals are authorized to perform under federal law w o u ld be o v errid en by the S u p rem acy\nC lause in the case o f state officers d u ly deputized under 28 U .S.C . \xc2\xa7 \xc2\xa7 5 6 6 (c ) o r 561(f). See U .S. C onst, art. VI,\ncl. 2.\n15 Individual state officers could also presum ably be assigned on detail to th e D epartm ent o f Justice ( \xe2\x80\x9c D ep art\xc2\xad\nm e n t\xe2\x80\x9d ) o r IN S under the appropriate provisions o f the Intergovernm ental P ersonnel A ct ( \xe2\x80\x9c IP A \xe2\x80\x9d ), 5 U .S.C . \xc2\xa7 \xc2\xa7 3 3 7 2 ,\n3374. It is o u r u n d erstanding that details under th e IPA generally involve the tem p o rary assig n m en t o f individual\nem ployees to full-tim e d u ty in a federal agency, rather than the conferring o f sp ecial federal au th o rity to be ex ercised\nwithin the context o f the o ffic e r\xe2\x80\x99s ongo in g state law enforcem ent duties. H ow ever, as fu rther provided in the IPA,\n\xe2\x80\x9c T he supervision o f th e duties o f su ch an em ployee m ay be governed by ag reem en t betw een the F ederal agency\nand the S tate o r local governm ent co n c ern ed .\xe2\x80\x9d 5 U .S.C . \xc2\xa73 3 7 4 (c). A cco rd in g ly , if the p ertin en t state an d local\nofficials w ere agreeable, w e see no reason why the IPA could not be used as au thority fo r detailing d esig n ated\nstate officers to IN A enforcem ent operations insofar as the D epartm ent, the IN S, an d the relev an t state au th o rities\nconsidered it useful to d o so.\n\n47\n\n\x0cOpinions o f the Attorney General in Volume 20\n\nUnder such arrangements, we believe the Attorney General should first confer\nspecial authority to enforce the immigration laws upon the Director of the U.S.\nMarshals Service (\xe2\x80\x9c USMS\xe2\x80\x9d ) under the provisions of 8 U.S.C. \xc2\xa7 1103.16 The Di\xc2\xad\nrector of the USMS (\xe2\x80\x9c DUSMS\xe2\x80\x9d ) could then, in turn, deputize state and local\nofficials to assist him in his charge to enforce the immigration laws under the\nprovisions of either 28 U.S.C. \xc2\xa7 561(f) 17 or, more probably, 28 U.S.C. \xc2\xa7 566(c).\nThe Department of Justice regulations implementing those statutory provisions\nspecifically provide that the DUSMS is authorized to deputize \xe2\x80\x9c [s]elected federal,\nstate, or local law enforcement officers whenever the law enforcement needs o f\nthe U.S. M arshals Service so requ ire.\xe2\x80\x9d 28 C.F.R. \xc2\xa70.112(2) (1995) (emphasis\nadded). Although the \xe2\x80\x9c law enforcement needs\xe2\x80\x9d of the USMS would not normally\nextend to alien interdiction, that jurisdictional gap would be filled by the Attorney\nGeneral\xe2\x80\x99s special assignment of INA enforcement authority under 8 U.S.C. \xc2\xa7 1103.\nThis very approach was followed in August 1994, when the Deputy Attorney\nGeneral (exercising authority delegated to her by the Attorney General) issued\nan order empowering the DUSMS to deputize Florida law enforcement officials\nas Deputy U.S. Marshals so that they could exercise INS enforcement responsibil\xc2\xad\nities in the event of an immigration emergency. Under the order (which was effec\xc2\xad\ntive for a period of one year), INS enforcement authority was first delegated to\nU.S. Marshals and U.S. Deputy Marshals under 8 U.S.C. \xc2\xa7 1103, including the\npower to detain and arrest, for deportation or exclusion, persons entering or\npresent in the United States in violation of law. The order went on to authorize\nthe DUSMS to deputize and designate Florida law enforcement officers to exercise\nthose same INS enforcement powers \xe2\x80\x94 specifically including the authority to\nmake warrantless arrests and detentions for purposes of deportation \xe2\x80\x94 \xe2\x80\x9c pursuant\nto the direction of officers of the [INS].\xe2\x80\x9d Provision was made for Florida law\nenforcement officers to be sworn in as Deputy U.S. Marshals \xe2\x80\x9c immediately upon\nthe commencement of a mass immigration emergency.\xe2\x80\x9d Whether or not such ar\xc2\xad\nrangements would be considered practicable or desirable in other areas of massive\nillegal immigration, we are not aware of any reason why they could not be law\xc2\xad\nfully undertaken pursuant to the same statutory authorities.\nTERESA WYNN ROSEBOROUGH\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n16U n d e r 8 U .S .C . \xc2\xa7 1 1 0 3 , th e A ttorney G e n e ra l is authorized to con fer o n any em p lo y ee o f the U n ited States,\nw ith th e co n sen t o f th e h ead o f th e D epanm ent o r o th e r independent estab lish m en t th at em p lo y s su ch person, >4any\no f th e p o w ers, p riv ileg e s, o r duties conferred o r im posed . . . u p o n O fficers . . . o f the [Im m ig ratio n and N aturaliza\xc2\xad\ntio n ] S e rv ic e .\xe2\x80\x9d\n17 A p e rsu asiv e ca se c a n b e m a d e that d e p u ta tio n s b ased upon 28 U .S.C . \xc2\xa7 561(f) are on ly p erm itted w hen the\np e rso n to be d ep u tized is m a d e an employee o f th e U SM S \xe2\x80\x94 a co m plicatin g ad m in istrativ e p ro cess that w ould seem\nim p racticab le in th e ca se o f state an d local p o lic e personnel. S p ecial dep u tatio n s o f state and local p o lice personnel\nw o u ld th e refo re b e m ore realistically grounded u p o n the authority o f 28 U .S.C . \xc2\xa7 566(c).\n\n48\n\n\x0c'


b'Application of the Privacy Act to the Personnel Records of\nEmployees in the Copyright Office\nT h e C o p y rig h t O ffice is in th e legislative b ra n c h , an d is n ot an \xe2\x80\x9c a g e n c y \xe2\x80\x9d w ithin th e\nc o v e ra g e o f th e P riv a c y A ct.\nIt is c o n stitu tio n a lly perm issible fo r an o fficer o f th e legislative b ran ch , su ch as the\nR e g ister o f C o p y rig h ts, to p erfo rm e x e c u tiv e fu n ctio n s, as lo n g as th e o fficer is\nap p o in ted in a c c o rd a n c e w ith th e A p p o in tm e n ts C lause.\nT h e p erso n n el re c o rd s o f th e C o p y rig h t O ffice a re n ot su b je ct to th e P riv a c y A c t by\nv irtu e o f 17 U .S .C . \xc2\xa7 701(d), b ecau se p erso n n el actio n s taken by the R e g ister o f\nC o p y rig h ts are an in cid en t o f th e p erso n n el ad m in istratio n o f th e L ib ra ry o f C ongress.\n\nMay 8, 1980\nM EM ORANDUM OPINION FOR T H E G E N ER A L COUNSEL,\nO FFIC E O F M A N A G EM EN T A N D BUDG ET\nThis responds to your inquiry requesting our opinion whether per\xc2\xad\nsonnel records maintained by the Copyright Office are subject to the\nPrivacy Act, 5 U.S.C. \xc2\xa7 552a. The matter arises out of a denial by the\nCopyright Office of a request by a former employee for permission to\nhave access to his personnel records, on the ground that its personnel\nrecords are not subject to the Privacy Act. The Office concluded that\nwhile 17 U.S.C. \xc2\xa7 701(d) makes the actions of the Register of Copy\xc2\xad\nrights in administering the Copyright Act subject to the Administrative\nProcedure Act, which includes the Privacy Act, the personnel records\nof the employees of the Copyright Office are not maintained in connec\xc2\xad\ntion with the administration of the Copyright Act, but as an incident of\nthe personnel administration of the Library of Congress which, being a\nlegislative agency, is not subject to the Privacy Act. The denial was\nbrought to the attention of your Office, which, under \xc2\xa7 6 of the Privacy\nAct, 5 U.S.C. \xc2\xa7 552a note, is charged with providing assistance to and\noversight of implementation of the Act by agencies.\nThe questions at issue are whether the Privacy Act covers the Copy\xc2\xad\nright Office, and if not, whether the Office is subject to that act by\nvirtue of the provisions of the Copyright Act. The Privacy Act pro\xc2\xad\nvides, with exceptions not pertinent here, for access by an individual to\nhis own records in an \xe2\x80\x9cagency.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 552a(d).\n608\n\n\x0cI.\n\nIn order to determine whether the Copyright Office is an agency\ncovered by the Privacy Act we turn to the definition of that term in\nthe Act, 5 U.S.C. \xc2\xa7 552a(a)(l). It provides that \xe2\x80\x9cthe term \xe2\x80\x98agency\xe2\x80\x99\nmeans agency as defined in section 552(e) of this title.\xe2\x80\x9d That definition\nreads as follows:\n(e) For purposes of this section, the term \xe2\x80\x9cagency\xe2\x80\x9d as\ndefined in section 551(1) of this title includes any execu\xc2\xad\ntive department, military department, Government corpo\xc2\xad\nration, Government controlled corporation, or other\nestablishment in the executive branch of the Government\n(including the Executive Office of the President), or any\nindependent regulatory agency.\nSection 552(e) thus limits the coverage of the Privacy Act to agen\xc2\xad\ncies as defined in \xc2\xa7551(1). That section expressly exempts Congress\nfrom the term \xe2\x80\x9cagency.\xe2\x80\x9d 1 This exception has been interpreted as not\nbeing limited to Congress itself but as including the various agencies in\nthe legislative branch of the federal government.\nThe question therefore is to ascertain whether the Copyright Office\nis an agency in the legislative branch. Before this can be done it is first\nnecessary to outline the genesis of the agency and the organizational\nstatus of the Copyright Office.\nThe administration of the copyright laws was transferred to the\nLibrary of Congress by \xc2\xa785 of the Act of July 8, 1870, 16 Stat. 212.\nBeginning in the 1880\xe2\x80\x99s, a copyright office was administratively estab\xc2\xad\nlished in the Library of Congress.2 This action received recognition in\nappropriations acts which, beginning with the Act of February 19,\n1897, 29 Stat. 538, 544, 545, made appropriations for a copyright de\xc2\xad\npartment or copyright office \xe2\x80\x9cunder the direction of the Librarian of\nCongress,\xe2\x80\x9d and provided for the compensation of a register of copy1 Section 551(1), referred to in \xc2\xa7 552(e), reads:\nF or the purpose o f this su b ch ap ter\xe2\x80\x94(1) \xe2\x80\x9cagency\xe2\x80\x9d means each authority o f the G o v e rn \xc2\xad\nment o f the U nited States, w h eth er o r not it is w ithin o r subject to review by another\nagency, but does not include\xe2\x80\x94\n(A ) the Congress;\n(B) the courts o f the U nited States;\n(C ) the governm ents o f the territories o r possessions o f the U nited States;\n(D ) the governm ent o f the D istrict o f Columbia; o r except as to the requirem ents\no f section 552 o f this title\xe2\x80\x94\n(E ) agencies com posed o f representatives o f the parties o r o f representatives o f\norganizations o f the parties to the disputes determ ined by them;\n(F ) co u rts martial and military commissions;\n(G ) military au th o rity exercised in the field in tim e o f w ar o r in occupied\nterritory; o r\n(H ) functions conferred b y sections 1738, 1739, 1743, and 1744 of title 12; chapter\n2 o f title 41; o r sections 1622, 1884, 1891-1902, and form er section 1641(bX2), o f title\n50, appendix; . . .\n2 Brylawski, The Copyright Office: A Constitutional Confrontation. 44 G eo. W ash. L. R ev. 1, 14-15\nn.l5(a) (1975).\n\n609\n\n\x0crights.3 Section 47 of the Copyright Act of 1907, Pub. L. No. 60-349,\n35 Stat. 1075, 1085, gave substantive statutory recognition to the \xe2\x80\x9ccopy\xc2\xad\nright office, Library of Congress,\xe2\x80\x9d \xe2\x80\x9cunder the control of the register of\ncopyrights, who shall, under the direction and supervision of the Li\xc2\xad\nbrarian of Congress, perform all the duties relating to the registration of\ncopyrights.\xe2\x80\x9d Section 48 of that Act provided for the appointment of a\nregister of copyrights by the Librarian of Congress, and for the ap\xc2\xad\npointment by the Librarian of Congress of \xe2\x80\x9csuch subordinate assistants\nto the register as may from time to time be authorized by law.\xe2\x80\x9d 35 Stat.\n1085.\nThe present law, the Copyright Act of 1976, Pub. L. No. 94-553, 90\nStat. 2541, follows this pattern. The pertinent section, 17 U.S.C.\n\xc2\xa7 701(a), states:\nAll administrative functions and duties under this title,\nexcept as otherwise specified, are the responsibility of the\nRegister of Copyrights as director of the Copyright\nOffice of the Library of Congress. The Register of Copy\xc2\xad\nrights, together with the subordinate officers and employ\xc2\xad\nees of the Copyright Office, shall be appointed by the\nLibrarian of Congress, and shall act under the Librarian\xe2\x80\x99s\ngeneral direction and supervision.\nThe 1976 provision thus continues the status of the Copyright Office\nand its employees as in the Library of Congress. The Copyright Office\nis referred to as the Copyright Office \xe2\x80\x9co f\xe2\x80\x9d the Library of Congress,\nand its staff, including the Register, are appointed by the Librarian of\nCongress and act under the Librarian\xe2\x80\x99s general direction and supervi\xc2\xad\nsion. The explanation of \xc2\xa7\xc2\xa7701-710 of the Act in the Senate report (S.\nRep. No. 94-473, at 153), stating that (apart from a matter not pertinent\nhere), \xe2\x80\x9cthese sections appear to present no problems of content or\ninterpretation requiring comment here,\xe2\x80\x9d indicates that no substantial\nchange in the preexisting law was intended.\nThe Copyright Office thus is a part of the Library of Congress.4 It\nhas been firmly established that the Library of Congress, and conse\xc2\xad\nquently its subdivision the Copyright Office, are in the legislative and\nnot in the executive branch of the government. Both are included in the\nAppropriation Acts for the legislative branch; 5 the Congressional Di\xc2\xad\nrectory and United States Government Manual both list them as entities\nin the legislative branch. The latter points out that the Register of\nCopyrights is also Assistant Librarian for Copyright Services. Signifi\xc2\xad\n3 See also the A pp ro p riatio n A ct o f A pril 17, 1900, 31 Stat. 86, 95.\n4 A c co rd in g to L ib rary o f C ongress R egulation N o. 210-1, the C opyright O ffice is a "departm ent\no f the Library o f C ongress.\xe2\x80\x9d In 39 Op. A tt\xe2\x80\x99y G en. 429 (1940), the A ttorney G eneral observed that the\nC op y rig h t O ffice "w h ile w ithin the Library o f Congress, is a separate and distinct office.\xe2\x80\x9d T hat\nstatem ent, how ever, w as m ade in the context o f a separate appropriation for the C opyright O ffice\nw hich p revented th e use o f Library o f C ongress funds for C op yright O ffice purposes.\n5 See, e.g.. Legislative Branch A ppropriation A ct, 1979, 92 Stat. 784-785.\n\n610\n\n\x0ccantly, the laws relating to the Library of Congress are codified in Title\n2 of the United States Code, which deals with Congress.\nMore specifically, the Act of October 13, 1977, 2 U.S.C. \xc2\xa7 171\n(Supp.), states that on April 24, 1800, the Congress \xe2\x80\x9cestablished for\nitself a Library of Congress.\xe2\x80\x9d The Ethics in Government Act of 1978\nwhich requires the filing of financial reports by officers and employees\nof the legislative branch states expressly that that branch includes, inter\nalia, the Library of Congress. 2 U.S.C. \xc2\xa7 701(b), (e). Conversely, in\nseveral sections of Title 5, United States Code, Congress has specifi\xc2\xad\ncally included the Library of Congress within the term \xe2\x80\x9cagency.\xe2\x80\x9d See 5\nU.S.C. \xc2\xa73102 (readers for blind employees); \xc2\xa7 5721 (travel and trans\xc2\xad\nportation expenses); \xc2\xa7 5595 (severance pay); \xc2\xa7 5596 (back pay for un\xc2\xad\njustified personnel action). It is plain that when Congress intended the\nLibrary of Congress to be an agency within the scope of Title 5 it\nexpressed that intention by specific language. It did not do so for the\npurpose of the Privacy Act. The Copyright Office being a component\nof the Library of Congress, therefore, is not within the coverage of the\nPrivacy Act.\nThe decision in Eltra Corporation v. Ringer, 579 F.2d 294 (D.C. Cir.\n1978), does not lead to a contrary result. That case involved the\nquestion whether under the constitutional doctrine of the separation of\npowers the Copyright Office could be located in the legislative branch\nsince the Register of Copyrights performed an executive function in\nadministering the Copyright Act. The court did agree that the Register\nperformed such a function; in that context it was irrelevant that the\noffice of the Librarian of Congress was by statute codified as part of\nthe legislative branch and had its funding included in the appropriation\nfor the legislative branch. Id. at 301. The court, however, held that the\nConstitution did not prevent placing an officer performing executive\nfunctions in the legislative branch, if he had been appointed in accord\xc2\xad\nance with the Appointments Clause of the Constitution, Art. II, \xc2\xa7 2, cl.\n2. The court opined that the clause had been complied with because the\nLibrarian of Congress is appointed by the President by and with the\nadvice and consent of the Senate, and the Register by the Librarian, the\nhead of his department.\nThe conclusion of the court that the Register performs executive\nfunctions does not render the Privacy Act applicable to the Copyright\nOffice. The Privacy Act, as we have shown above, applies by its very\nterms to agencies in the executive branch, not to agencies performing\nexecutive functions. Moreover, in contrast to the Appointments Clause,\nthere is no constitutional requirement that the Privacy Act apply to all\nagencies performing executive functions. Congress has complete discre\xc2\xad\ntion to decide which agencies, whether executive or not, should be\ncovered by that Act.\n611\n\n\x0cII.\n\nThe conclusion we have reached above however, does not fully\ndispose of your inquiry. There remains a question concerning 17 U.S.C.\n\xc2\xa7 701(d), providing that \xe2\x80\x9call actions taken by the Register of Copyrights\nunder this Title [i.e., Title 17, U.S. Code] are subject to the provisions\nof the Administrative Procedure Act . . .\xe2\x80\x9d of which the Privacy Act is\na part. Does this mean that the activities by the Register of Copyrights\nrelated to personnel records of persons employed in the Copyright\nOffice are \xe2\x80\x9cactions\xe2\x80\x9d under Title 17? Our answer is in the negative.\nUnder . 17 U.S.C. \xc2\xa7 701(a), the subordinate officers or employees of\nthe Copyright Office are appointed not by the Register of Copyrights\nbut by the Librarian of Congress. Accordingly they are employees of\nthe Librarian, not of the Register of Copyrights. Pursuant to 2 U.S.C.\n\xc2\xa7 136 the Librarian is authorized to make rules and regulations for the\n\xe2\x80\x9cgovernment of the Library.\xe2\x80\x9d The government of the Library plainly\nincludes matters pertaining to the employment, direction, and general\nsupervision of the personnel of the Library.\nPursuant to his authority under 5 U.S.C. \xc2\xa7 302, the Librarian has\ndelegated most of his personnel functions to the Director for Personnel,\nand some to the department heads, such as the Register. See Library of\nCongress Regulations 2011-4 and 2010-11.\nThus personnel actions taken by the Register are not taken by him in\nhis capacity as Register under Title 17 but as Assistant Librarian for\nCopyright Services, a department head in the Library of Congress.\nThose functions, therefore, are carried out under Titles 2 and 5 of the\nUnited States Code.\nAccordingly, personnel records of the employees in the Copyright\nOffice are no more covered by the Privacy Act than the personnel\nrecords of other employees in the Library of Congress.\nL eon U lm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n612\n\n\x0c'