Warren E. Burger: Mr. Frey, I think you may proceed when you're ready.
Mr. Andrew L. Frey: Thank you, Mr. Chief Justice, and may it please the Court: This case is a suit by four individuals... two citizens of the United States and two aliens lawfully present in the United States... for declaratory and injunctive relief challenging the lawfulness of the manner in which the Immigration and Naturalization Service conducted factory surveys at two garment factories in southern California in which the Respondents were employed. The importance of these factory surveys to the INS' responsibility to attempt to apprehend and deport aliens illegally present in the United States is difficult to overstate. The record shows that in Los Angeles in 1977 20,000 illegal aliens were apprehended in the course of such surveys, and the Immigration Service has told us that away from the border at the time prior to the decision in this case approximately 60 percent of all apprehensions of illegal aliens occurred in the course of factory surveys. Now some years ago the factory surveys became during the 1970s a more important tool to the INS for several reasons. One was a matter of values. Previously a lot of the enforcement efforts had been concentrated in residential investigations of areas where there were believed to be high concentrations of illegal aliens living, and it was thought that it would be far less intrusive, it would raise fewer Fourth Amendment problems, it would be less intrusive in privacy values for the agency to concentrate on the workplace rather than in residential areas. Secondly, it was believed... and I think quite plainly accurately... that this was a more effective utilization of the resources of the Service, because a relatively small number of agents were able to make relatively substantial numbers of apprehensions. And, thirdly, it was deemed appropriate because the prospect of employment is the principal magnet that draws people to attempt to enter the country illegally and work force surveys and enforcement efforts concentrated on the work force seem correlative to the factors that have drawn the people here.
Sandra Day O'Connor: Mr. Frey, may I ask you a preliminary question?
Mr. Andrew L. Frey: Certainly.
Sandra Day O'Connor: And that relates to whether the Plaintiffs here in the case below had standing under the Lyons decision of this Court last time.
Mr. Andrew L. Frey: Yes, I believe that they do. We don't challenge their standing.
Sandra Day O'Connor: I know you don't, but why not?
Mr. Andrew L. Frey: Well, the reason I think they do is that these work place surveys are recurrent and at garment factories where these individuals were employed it is likely that there will be, and in fact at Davis Pleating Company there were two surveys during the year in question.
Sandra Day O'Connor: And is that likely to be repeated in the future, assuming the practice?
Mr. Andrew L. Frey: It is likely to be repeated if the Ninth Circuit's decision is reversed. The consequences of the Ninth Circuit's decision, while factory surveys are still being done, they are very difficult to do at large facilities like Davis Pleating because the restrictions would make it too chaotic, and I'll get to that shortly. Now I'd like to briefly describe these surveys. First, the first point that I think is significant is that they are not done randomly but they are based on investigations which lead to the acquisition of information that a substantial number of illegal aliens are employed at the particular target factory. And indeed the results of the surveys that we have before us in this case indicate this. The first Davis survey--
Byron R. White: Is there something in the record about that... about the fact that these aren't just random? Is there some testimony or anything?
Mr. Andrew L. Frey: --Well, I think there is, yes. I think there is an affidavit from one of the INS directors, I believe, that suggest that. Logic would dictate that it would make no sense for them to go about randomly. They have very limited resources in terms of personnel to do these things, and they obviously want to utilize them in the most effective way where they can arrest the largest number of people with the smallest number of agents.
Thurgood Marshall: Mr. Frey, is an administrative warrant possible?
Mr. Andrew L. Frey: There were warrants in two of the three searches in this case. They proceed either by warrant or by consent. I'm told that in about 90 percent of the cases the factory owner or management gives consent to the survey, and where consent is not given a warrant is used. In these cases, 78 illegal aliens were arrested in the first Davis survey; 39 in the second; and in the Mr. Pleat survey 45, which was 50 percent of the work force. There were 90 workers; 45 were found to be illegal aliens and apprehended. There may, of course, have been some more.
Warren E. Burger: What would be the situation if the employees were working on a paving project or building a bridge out in the open... no enclosure at all?
Mr. Andrew L. Frey: Well, the Court of Appeals decision relied for its holding, in part, on the fact that the factories are enclosed and that the exits... that agents were stationed at the exits. If you had an outdoor job site you would have a different factual situation. I'm not sure that the Court of Appeals would reach the same conclusions. We're not dealing here with any issue of a search.
Warren E. Burger: Could a warrant be obtained to check out in open spaces?
Mr. Andrew L. Frey: No. no. The warrant is obtained to deal with the interests of the owner of the factory and not having his premises searched. This case involves no search issue; it involves only issues of seizures... whether there were seizures and, if so, whether they were lawful.
William J. Brennan, Jr.: Mr. Frey, may I ask? This may be a far-out hypothetical. Let's suppose you have a study of a given neighborhood and the study was that the probabilities are that... it's a black neighborhood... that 20 to 25 percent of the residents of that neighborhood have committed crimes. That's all. And then the police launch a program to stop and interrogate on a random basis all of the blacks in the neighborhood. Would that be all right, do you think?
Mr. Andrew L. Frey: I think that would pose some interesting and difficult questions whether... if you had this abstract 20 or 25 percent probability that the individual you stopped had committed a crime but no specific information. Martinez-Fuerte was a case somewhat like that, and I think that that is not at all involved in this case because there are no individual seizures of particular workers based on... not based on information specifically relating to those workers.
William J. Brennan, Jr.: No, but the interrogations were random, were they not?
Mr. Andrew L. Frey: Well, as I... the interrogations are not random but the interrogations--
William J. Brennan, Jr.: Well, they are in the sentence, are they not?
Mr. Andrew L. Frey: --But they are not. They don't involve seizures of the individuals.
William J. Brennan, Jr.: I know. We're talking only about the interrogation that was made.
Mr. Andrew L. Frey: Well, but the Fourth Amendment doesn't apply on interrogations. It applies to seizures. If you must seize and forceably detain a person in order to question them, then the Fourth Amendment is brought into play because you have seized them and they have a protection against being unreasonably seized.
Sandra Day O'Connor: Well, Mr. Frey, is there not a seizure or detention when the agents question the employee? Even if we were to agree with you that there's no overall seizure of the premises, is there an individual seizure if a person is detained for questioning?
Mr. Andrew L. Frey: I think that is absolutely clear. It think it is absolutely clear after Florida against Royer that what... if you look at the record of this case, what happens is a person is approached, asked if he's a citizen. There is no physical contact except that Miramontes, I think, or Lebonte was tapped on the shoulder.
Byron R. White: If he says it's none of your business, you don't seize him?
Mr. Andrew L. Frey: We don't. We don't do anything unless in the course of saying it or something else that he or she has done we acquire a particularized suspicion of illegal alienage.
Sandra Day O'Connor: What happens if the person refuses to answer the question?
Mr. Andrew L. Frey: You move on to another person. That in fact doesn't happen in these situations very frequently, but that is what the agents are instructed to do unless they have a particularized suspicion of illegal alienage. They are not to engage in detentive questioning. And if you look at the record in this case and read the Joint Appendix, which I urge you to do, and read the testimony of the Respondents in this case, it seems to me you would only... I mean, I come away with the conclusion that they were trying to give the agents an award for their scrupulous sensitivity to Fourth Amendment rights and not to--
Byron R. White: Mr. Frey, what if there is a particularized suspicion about a particular person and the agent goes up to him and says "Are you a citizen"? and he says, "Sorry, I won't answer; it's none of your business. " What does he do then?
Mr. Andrew L. Frey: --Well, that would be the--
Byron R. White: He hasn't got probable cause.
Mr. Andrew L. Frey: --Well, there is nothing... that is the problem that's inherent in any Terry stop situation, if the individual refuses--
Byron R. White: Well, then he can walk away.
Mr. Andrew L. Frey: --If probable cause does not develop during the course of the detention, then the detention must be terminated.
Warren E. Burger: Exactly. Well, I take it that what this adds up to is a statement on your part that the Fourth Amendment does not prevent officials, police or others, from asking questions.
Mr. Andrew L. Frey: Well, that's what the Court said in Florida against Royer... even questions of people who they suspect, as long as it is not accompanied by conduct that would lead the person reasonably to believe that they were not free to leave.
Byron R. White: But if you have particularized suspicion but not probable cause, you may momentarily detain them to ask a question; is that right or not?
Mr. Andrew L. Frey: Yes, you may detain them and you may ask a question and if in the course of that brief detention probable cause develops, you may then arrest him.
Byron R. White: But if he says "get your hand off my arm; I'm just not interested in answering any of your questions, I'm going to walk away. " you've got to let him walk away?
Mr. Andrew L. Frey: You are out of luck except in circumstances where there may be some other brief investigative measure that you can take while you're holding him that might clarify the situation and develop probable cause.
Sandra Day O'Connor: But it's your position that the reasonable suspicion that's required here is not reasonable suspicion of illegal presence in the country, but merely reasonable suspicion of Hispanic origin?
Mr. Andrew L. Frey: Well, let me define somewhat the issues in this case because I think it's very important and I think the Ninth Circuit's opinion and the Respondents' brief is quite confusing on this. But there are two separate issues. One is the question of whether the entire work force is seized by the techniques that are employed in the factory survey and, if so, whether that seizure violates the Fourth Amendment. Then there would be... the next question would be whether in the course of conducting the survey and having contact with individual workers at the work place what transpires is a seizure and, if so, is that seizure lawful on an individual basis rather than a group basis.
Sandra Day O'Connor: Well, but you've already answered me that you say the questioning does not involve a seizure.
Mr. Andrew L. Frey: That's correct.
Sandra Day O'Connor: But you said in response to Justice White it might involve a momentary detention of the Terry-type to ask questions.
Mr. Andrew L. Frey: No, no, no, no. If I said that, I did not intend that. I understood him to be postulating if there were such a detention what consequences would flow if there were no questions asked, or no answers given. Let me back up for a minute. If the Court of Appeals is correct that there is an illegal seizure of the entire work force, then this case presents no issue of whether people can be questioned on the basis of a suspicion of alienage alone, because there already is a Fourth Amendment violation. They have all been unlawfully seized. The relief that's been entered would be entered. If the Court of Appeals, as we submit, is wrong in that, the record in this case presents not a single instance in which any person was detained for questioning on the basis solely of a suspicion of alienage alone, and not of illegal alienage.
Sandra Day O'Connor: Well, it does present, does it not, situations where individuals were questioned? In fact, these named plaintiffs were questioned; is that true?
Mr. Andrew L. Frey: Yes, but as I said earlier, the Fourth Amendment does not regulate questioning; it regulates seizures. Respondent--
Byron R. White: You said there were no seizures in this case.
Mr. Andrew L. Frey: --Hum?
Byron R. White: And there were no individual seizures?
Mr. Andrew L. Frey: There were no... I maintain as stoutly as I am able to that there were no individual seizures in this case, and if you look at the interchanges Correa was not asked any questions during the first survey and during the second survey; she was asked if she was a citizen, said she was, and the agent moved on.
Sandra Day O'Connor: What are they... what do the agents do if there is someone that they want to ask questions and the person just leaves the premises? Will they be followed or detained?
Mr. Andrew L. Frey: Well, if they do not have a reasonable suspicion that the person is an alien unlawfully present in the country or has committed some violation of the immigration laws, they let him leave. There's no indication that anybody was detained in this case, prevented from leaving or going about their business on the basis of a mere suspicion of alienage or anything else.
John Paul Stevens: Mr. Frey, can I ask you a question on this point?
Mr. Andrew L. Frey: Yes.
John Paul Stevens: One of my problems is that I think that what one might normally expect in the way of findings of fact are really quite sparse in this case. Are the findings... do the findings actually spell out the facts as you portray them? Or do we have to look at the testimony?
Mr. Andrew L. Frey: No, I think you have to look at the testimony. Everybody suggests that there is no dispute about the facts. I would say there is no--
John Paul Stevens: That's really what troubles me.
Mr. Andrew L. Frey: --I would say there is no dispute about the material facts. That is, I would say if you look at the testimony you will see nothing that raises any factual issues.
John Paul Stevens: But should we have to look at the testimony in a case of this kind that comes in this way, because I read the briefs and I get an entirely different impression of the facts from both sides. I look for findings, and I am kind of at a loss.
Mr. Andrew L. Frey: Well, you can get a different impression from the adjectives.
John Paul Stevens: And in a summary judgment case that normally isn't true. Normally the people are willing to say these are the facts and you can decide the case on this basis. I don't know exactly what happens, for example, if a worker during work hours gets up and walks to the gate where an agent is posted. You say they can just walk right out.
Mr. Andrew L. Frey: Well, they did in this case.
John Paul Stevens: Pardon me?
Mr. Andrew L. Frey: The Respondents did. Two of them in this case walked right out.
John Paul Stevens: And we have to read the testimony to so conclude, don't we?
Mr. Andrew L. Frey: No. Well, I don't really--
John Paul Stevens: What I'm really asking... I won't take your time up... but is it not possibly a case which requires some findings of fact to know exactly what should be done with it?
Mr. Andrew L. Frey: --Well, I think it's a case in which it would have been perhaps helpful to have some findings of fact, but if the Court of Appeals is right in its legal conclusions it makes no difference whether anybody was stopped or would have been stopped, because the Court of Appeals says that the fact that agents were visible in the doorways was itself enough to constitute a seizure and violate the Fourth Amendment, and on that basis an injunction has been issued against--
John Paul Stevens: I understand your position there. Are you saying, though, that... assume we disagreed with the Court of Appeals and say they went too far. Is the correct disposition to reenter the summary judgment of the District Court or send it back and say we've got to know more about it?
Mr. Andrew L. Frey: --Well, there were cross motions for summary judgment.
John Paul Stevens: Well, I understand that, but is that your position... that we should reenter the District Court's summary judgment?
Mr. Andrew L. Frey: That would be our position, I think, but we are into some areas of civil procedure that I don't feel terribly comfortable with.
Byron R. White: Aren't you just objecting to the holding of the Court of Appeals as a matter of law, that the whole factory is seized?
Mr. Andrew L. Frey: Yes. We disagree with the Court of Appeals on a number of points, but if the Court were to conclude, as we think it must if it applies its prior Fourth Amendment principles, that there was no seizure of the entire work force--
Byron R. White: Do we have to reach anything else?
Mr. Andrew L. Frey: --The entire Court of Appeals decision, I think, falls because there is no suggestion--
Byron R. White: And then we remand for further proceedings, if there are any.
Mr. Andrew L. Frey: --I would do that if I were in your shoes, yes.
Lewis F. Powell, Jr.: Mr. Frey, you identified two separate questions. Do we have to answer both of them in this case?
Mr. Andrew L. Frey: No. In my opinion the linchpin of the Ninth Circuit's decision is its holding of the entire work force was seized by the procedures used in the survey. If you disagree... if you agree with that holding, you would then have to move on to our contention that if they were seized it was a reasonable seizure under the principles of Martinez-Fuerte. That would have to be decided. I believe that there is no evidence or suggestion in this case of any individual contact between agent and Respondent that violated the Fourth Amendment, so I don't believe there is any need to reach those questions.
Lewis F. Powell, Jr.: Well, what evidence is there that individuals were declined the right to walk away from--
Mr. Andrew L. Frey: Well, I wanted to talk a bit about what evidence there is in this case, what allegations there are in the complaint, and what evidence there is in the deposition testimony of anything that might be argued, and my opponents do argue, are in some instances Fourth Amendment violations. First of all, in the first amended complaint there was an allegation that an individual who was then a plaintiff in the case was asked whether he was a citizen and said he was a citizen and was nevertheless taken away and deported, although he was a citizen. I would agree that this allegation would state a very likely violation of the Fourth Amendment. It turned out, however, that he had to be withdrawn as a plaintiff from the case because he was an illegal alien. Now there is also the instance that Respondent Delgado complains about. In the conversation with Delgado the agent approached him and said are you a citizen. He said yes. He said where were you born. Mayaguez, Puerto Rico. He moved on. Then, according to Delgado, he heard the agent, one agent say to another agent... this is at Joint Appendix 94... "I heard him say, he said, 'when we come back we're going to have to check them closer. " "They speak too well of an English'. " This was one of the things that is complained of by our opponents in this case. How this amounts to a Fourth Amendment violation, I don't understand. Respondent Miramontes complains that she was frightened by the survey because when she was approached she was asked if she was an alien and she said she was... she's a lawful resident alien. She was asked for her papers and she momentarily thought that she did not have her papers on her person, as she is required by law to do, and she was afraid that she might be arrested for not having her papers, although in fact she did have her papers. She produced them and they moved on to somebody else. Now this amounts to a mere fear that the agents would act in conformity with the Fourth Amendment if she gave them cause to do so by giving them probable cause to arrest her. Then there is an incident described in the testimony of an INS agent at page 158 of the Joint Appendix and relied on by our opponents in which he describes a case in which someone went running out of the factory to the parking lot to a car and he watched this person because he did not want him to get in the car and drive off, but the person then returned to the factory and he didn't do anything. There was no seizure of any individual. The fact of the matter is that this individual was allowed to go out of the factory unimpeded. Finally... and this is repeated many times in Respondents' brief... there is one incident which is not in the Joint Appendix which is at page 27 of Respondent Miramontes' testimony. She was asked: "Did you hear anyone answering that they were American citizens? " Answer: "I heard one in the shipping department. " "What happened"? "He said he was an American citizen. " "What did the Immigration officer do? " "He was handcuffed. " "He let him go and then I don't know what happened. " "I noticed he took the handcuffs off and then he went back to the shipping department. " "I don't know. " Now it is conceivable that somewhere in that interaction between agent and employee there may have been a Fourth Amendment violation, but, of course, Miramontes doesn't know what caused the agent--
Thurgood Marshall: --When you handcuffed somebody, you sort of seize them, don't you?
Mr. Andrew L. Frey: --Well, but there may have been probable cause to do so. She has no idea--
Thurgood Marshall: But you're arguing that he wasn't seized.
Mr. Andrew L. Frey: --I'm not... if her testimony is accurate, I would say that he was seized, I would agree. But what she does not know and what there is no allegation of is that the seizure wasn't reasonable.
Thurgood Marshall: Whether there was an illegal seizure.
Mr. Andrew L. Frey: I would also like to direct the Court's attention on this question of whether the entire work force was seized to the factors that the Court of Appeals relied on in holding that the entire work force was seized. Now these are summarized in the permanent injunction and declaratory judgment which I sent up to the Court on Monday. It's just a convenient summary of what the Court of Appeals relied on, and it's at page 2 of the judgment. First, investigators placed in doorways, and that is, among these factors, I think the only one that is significant and, of course, our position with respect to that factor is that any citizen or lawful alien would have... it's perfectly obvious what the investigators are placed in the doorways for, and the evidence suggests they don't actually block the doorways. They are just visible in the doorways. And that is that when the survey begins there are often cries of "L'emigra", people running and hiding. If the doorways were left unguarded, as now happens under the injunction, people running out and trying to get away... quite understandably. By placing agents visibly in the doorway that discourages people from attempting to flee the factor, illegal aliens--
Thurgood Marshall: Are these agents in uniform?
Mr. Andrew L. Frey: --They are not in uniform. And I think from the standpoint of a citizen or a lawfully resident alien there is nothing frightening. There is no reason for those people to suppose that they have been seized in any sense under the Fourth Amendment. They are... these individuals, Respondents, were free to walk about the factory.
Thurgood Marshall: They were free to leave, too.
Mr. Andrew L. Frey: They were free to leave. In fact, the instructions that the agents have are when someone seeks to leave the factory, if they have a reasonable suspicion of illegal alienage they are to detain them and ask them questions. They may otherwise ask them a question, a non-detentive one. All right. Now, second, the number of investigators utilized. Well, when you have a factory with two or three hundred employees, like Davis Pleating, to use 35 or 20 investigators, some of whom are stationed outside, seems to us quite reasonable. Third, the surprise nature of the operation. Well, this reminds me of the argument in Dalia against the United States that you had to give notice to the individual when you were placing a bug in his office. Obviously these operations have to be by surprise. The methodical questioning of workers. Well, that's what they're there for. The verbal announcement of INS authority and the display of badges. I dare say that if they had come in without badges and without announcing who they were and what they were doing, I would certainly find that more offensive and I suspect the Court of Appeals would, too. The carrying or use of handcuffs, something that is obviously reasonable since they are going to be arresting a large number of people, not all of whom will be cooperative. And, finally, the apprehension of fleeing co-workers in the sight of the work force. Well, if they can't apprehend co-workers in the sight of the work force, what they have to do is create a situation in which they are induced to run out of the workplace and be arrested outside. Now this is a prescription for chaos, not for conformity with the Fourth Amendment. I have one other thing. I urge you particularly to look at page 130 of the Joint Appendix and the testimony of Miramontes because she was questioned there about what was really bothering her about the surveys. And what bothered her about the surveys was, first of all, the fact that these illegal alien workers who were arrested had not committed any crime, in her view, and it disturbed her that they were being arrested and deported. And I don't think it's a party for the Immigration Service. It is a sad situation that these people have to be deported. It is not a violation of the Fourth Amendment; it is an enforcement of the law. It also disturbed her that citizens are not required to produce identification and lawful resident aliens are required. Now again I can understand why that might be annoying, but that is the law and it is not a violation of the Fourth Amendment. I'd like to reserve the balance of my time for rebuttal.
Lewis F. Powell, Jr.: Mr. Frey, may I ask you a question on--
Mr. Andrew L. Frey: Certainly.
Lewis F. Powell, Jr.: --on my time, if I have any. Perhaps you were in the Court, I think it was in December, when we had the case of Sure-tan against the NLRB up here.
Mr. Andrew L. Frey: I don't remember whether I heard the argument.
Lewis F. Powell, Jr.: Well, you are familiar with the case, I am sure.
Mr. Andrew L. Frey: Somewhat.
Lewis F. Powell, Jr.: It is the law of the United States that an employer violates no crime or no law when he employs aliens, isn't it? MR. FREY That's correct. And here the Solicitor General, on behalf of the government in Sure-tan, was arguing that it was a crime, a violation of the NLRB, for the employer to report the presence of an illegal alien. And here today you are arguing for precisely the opposite result. Do you see any inconsistency in the Government of the United States--
Mr. Andrew L. Frey: I see no inconsistency.
Lewis F. Powell, Jr.: --None whatever?
Mr. Andrew L. Frey: None whatever.
Lewis F. Powell, Jr.: None whatever?
Mr. Andrew L. Frey: Not the slightest, not the slightest. The National Labor Relations Act is not involved in this case.
Lewis F. Powell, Jr.: I understand that, but I'm talking--
Mr. Andrew L. Frey: The employer has no duty. This case does not focus at all on the employer's rights or duties. There was no suggestion in Sure-tan that the Immigration Service should not enforce the law that requires the apprehension and deportation of illegal aliens.
Lewis F. Powell, Jr.: --I'm afraid you've misunderstood the import of my question.
Mr. Andrew L. Frey: I'm not sure I did.
Lewis F. Powell, Jr.: I'm talking about the policy of the United States. I know you don't form it and neither do we, but it seems very curious that with--
Mr. Andrew L. Frey: Well, if Congress wants--
Lewis F. Powell, Jr.: --nine million Americans unemployed in the United States that the--
Mr. Andrew L. Frey: --Sure-tan turns on the problem of the special policies which... of the National Labor Relations Act, which may or may not control the result in that case. That is a policy that is made by Congress and it is the Court's duty to determine how that policy affects the decision in that case. That policy is not in play here and, therefore, there's no inconsistency in going straightforwardly with our enforcement efforts in conformity with Constitutional requirements.
Lewis F. Powell, Jr.: --I'd like for you to understand my question. I said at the outset it was on my time and if I were a lawyer I would do what the law requires me to do, and I hope to do it as a Justice. But I was talking only about the policy of our government which seems to be to be quite inconsistent.
Mr. Andrew L. Frey: Well, perhaps so.
Thurgood Marshall: Am I correct that this is a non-union shop we are dealing with here?
Mr. Andrew L. Frey: No, this is a union shop.
Thurgood Marshall: It is a union shop.
Mr. Andrew L. Frey: A union shop. In fact, originally the Ladies Garment Workers Union was a plaintiff in this case; they were dismissed.
Warren E. Burger: Mr. Fenton.
Henry R. Fenton: Mr. Chief Justice and may it please the Court: This case concerns the constitutionality under the Fourth Amendment of INS workplace surveys or raids which are carried on on a nationwide basis. The government concedes that the three surveys that are at issue in this case were carried out substantially in the same way as they carry out surveys throughout the country. We submit that as part of that program of INS surveys the Respondents... two United States citizens born in this country and two legal resident aliens, one of whom has resided here since 1944 and was raised in this country, the other of whom resided in this country for some 15 years at the time of the surveys in 1977... were seized and were questioned along with their co-workers in three surveys that occurred in 1977. My argument is basically divided into three parts. First, I will argue that the Respondents were seized; secondly, that they were unreasonably seized; and, finally, that the appropriate standard for seizure in such a setting is reasonable suspicion of illegal alienage. Now I think that any common sense appraisal of the record indicates that these people were actually seized and that they are seized in the course of these surveys. In excess of 20 and perhaps as many as 30 INS officers took part in the surveys. In one of the surveys they were accompanied by uniformed Los Angeles Police Department agents. Now they entered into the factory. They came in suddenly. There was no notice to the employees. And some of them immediately stationed themselves inside the factory, in the doorways, so that the employees could see that they were there. There was no question about that. In fact, Respondents... the record is clear that Respondents said that they saw the agents position themselves. For example, Delgado said that, 82... "I started looking up toward the front and then I seen people with badges being stationed by the doors. " "They wouldn't let nobody go out. " And then Delgado described that five people were stopped at the doorway by INS agents and were prevented from going in. Mrs. Miramontes, another Respondent, in another survey... again this is at the beginning of the survey even before the questioning begins... saw somebody try and go out and the agent responded INS retained a portion of the tee-shirt.
Harry A. Blackmun: Under the routine of the workplace, were they allowed to go out whenever they wanted to?
Henry R. Fenton: They were allowed to go out whenever they wanted to, certainly.
Harry A. Blackmun: So they could go across the street and get a cup of coffee, leave for the day?
Henry R. Fenton: That was their freedom as American citizens, certainly.
William H. Rehnquist: Well, how about the rule... did the employer just let them take off whenever they felt like it during working hours?
Henry R. Fenton: Well, no, the employer didn't, but I think our point is that in a free society in that setting if they had known in advance the kind of intrusion they would have been subjected to, I would submit that a reasonable worker under those circumstances would have chosen not to remain at work, Your Honor.
Speaker: I didn't hear the last.
Henry R. Fenton: Would have chosen not to remain at work. It was a very intrusive--
Harry A. Blackmun: Because he would be arrested. But my question was whether an employer at either of these places permitted his employees to leave the shop during the day, walk out the front door at any time.
Henry R. Fenton: --Is Your Honor... is the question directed toward the time of the surveys or just generally?
Harry A. Blackmun: Day-to-day in his employment. The answer is no, isn't it?
Henry R. Fenton: Well, there's nothing in the record to that effect. Presumably the workers have to remain at work, it's true, other than at breaks and at lunch, if that's the purport of the question. But I think the point is that the... those people were forced to remain and if they had chosen not to remain they had to remain because of the force and because of the show of authority that was going on around them. They had no choice in the matter, and I think in a free society even though we all have to work and make a living we have a right to walk out the door.
John Paul Stevens: But, Mr. Fenton, may I interrupt? There are really three kinds of individuals. Some are here unlawfully and some are citizens and some are lawful residents. Is there any evidence in the record that a person other than an unlawful alien attempted to leave the factory and was restrained from doing so?
Henry R. Fenton: The only evidence was this one instance that Mr. Frey referred to where someone was handcuffed and then the handcuffs were taken off.
John Paul Stevens: Do we know whether that person was a citizen or not?
Henry R. Fenton: Well, I think the person indicated that he or she was a citizen, was disbelieved, evidently, was handcuffed, and subsequently the handcuffs were removed.
John Paul Stevens: Well, that person would have a direct remedy, I would suppose.
Henry R. Fenton: I suppose so, but I submit that the other workers were seized as well, under any test, whether it's the test--
John Paul Stevens: Well, supposing just for a moment, to take a hypothetical, supposing we had some magical way of identifying the different kind of persons and we could tell as a matter of fact that all of the unlawful aliens immediately tried to leave and were restrained from doing so, and none of the others did. Would you still say that the others were seized?
Henry R. Fenton: --I would, Your Honor, because I think to the average worker you're talking about people who are basically unskilled people and you have to look at it from their vantage point... the vantage point of the average worker.
John Paul Stevens: But part of the point that Justice Blackmun makes, I think, is maybe they don't really have any motive to leave, except the unlawful people.
Henry R. Fenton: Well, I think that... I think that when they see people being handcuffed at the outset and they see law enforcement officers there, I think they may very well have a motive to leave, and I think the reason that they are forced to remain is simply because they see that if they do leave they themselves might be suspected of being illegal aliens, or they themselves might be handcuffed. They themselves may place themselves in a position where they could possibly be deported.
Thurgood Marshall: Mr. Fenton, is this a class action?
Henry R. Fenton: It was originally class... it was originally a class action.
Thurgood Marshall: I said is it now?
Henry R. Fenton: No, it's not. It was not certified.
Thurgood Marshall: Well, what good is this argument?
Henry R. Fenton: Well, Your Honor, I think that the Ninth... the importance of it is that these surveys are continuing and the fact of the matter is that it wasn't just these individual Respondents who were seized but it was everybody in the factory. The law suit was brought on behalf of the union and the workers that it represented, everyone in those factories. The union really is technically a party, although the Ninth Circuit didn't deal with the question of the dismissal of the union. So we think that it is important that in addition to the Respondents the other people were seized as well. But we submit that these Respondents were seized and that it was apparent to them that they couldn't leave. Now Mr. Frey suggests that two people walked out the door. I think the record really doesn't suggest that. What happened was in one instance Mrs. Correa, after the questioning was over, mustered up the courage to walk over and talk to an INS agent, but she never left the custody of any of the INS agents. So there was really never any attempt to leave and get away when INS agents were present. The other situation involved Mr. Delgado, and the record simply reflects that he either directed someone to go to the loading dock or he himself went to the loading dock. But, once again, the crucial point is that he never tried to leave, nor did he leave the custody of the INS agents in the factory because he felt compelled to remain not only because of the people who were stationed there, but because there was a large force of agents who were systematically questioning people in a manner which would suggest that everyone was under suspicion and everyone must remain.
Lewis F. Powell, Jr.: Mr. Fenton, your brief states that the exits were sealed. How were they sealed?
Henry R. Fenton: They were sealed by virtue of the fact that agents were stationed there and actually physically prevented people from leaving the factory.
Lewis F. Powell, Jr.: That sentence states "the exits are sealed and guards are stationed. " but what you saying now, as I understand it, that the sealing was the result of the presence of the agents.
Henry R. Fenton: Yes, Your Honor.
Lewis F. Powell, Jr.: Yes. These were ununiformed and unarmed?
Henry R. Fenton: The agents were... they were armed, but the arms were concealed. They carried handcuffs which were visibly displayed, which the Respondents could see and the workers could see. They were handcuffing people, which again suggested to the workers that they had better cooperate. It wasn't simply an encounter in an airport with one or two ununiformed agents.
Lewis F. Powell, Jr.: Is there evidence of more than one person being handcuffed?
Henry R. Fenton: Yes, there's evidence of many persons being--
Lewis F. Powell, Jr.: Many persons?
Henry R. Fenton: --Yes. In fact, I think--
Lewis F. Powell, Jr.: Well, does the evidence indicate whether the persons handcuffed were handcuffed after probable cause had been found?
Henry R. Fenton: --No, Your Honor, I don't think it does. I think--
Lewis F. Powell, Jr.: The evidence doesn't address that?
Henry R. Fenton: --Well, I think the record essentially suggests that the people who tried to flee were handcuffed, but it doesn't... it doesn't reflect anything beyond that. The people who tried to run away or tried to hide were handcuffed.
Lewis F. Powell, Jr.: Your submission, though, generally is that the entire work force, including aliens and non-aliens, was seized?
Henry R. Fenton: Yes, Your Honor, that's our position based upon all the circumstances, not just the sealing of the exits.
William H. Rehnquist: Mr. Fenton, what does the record show... and perhaps some else has covered this, but I think there seems to be some confusion... about people who sought to leave and were prevented from leaving in the absence of any showing of reasonable suspicion?
Henry R. Fenton: Okay. Well, the only thing the record shows is, as I said before... and I can refer to it... is, for example, Delgado saw five people being stopped at the back door.
Speaker: Do you--
Henry R. Fenton: That's at page 82 of the Joint Appendix.
William H. Rehnquist: --Page 82. But we don't know whether those five people there were reasonable suspicion to stop them or not, I take it.
Henry R. Fenton: Well, we know that at this point in time the agents had just come into the factory and these were people who were simply trying to leave, but they hadn't done anything suspicious other than be present in the factory.
William H. Rehnquist: No, but I suppose an agent could seek to question them on the way out, even though they sought to get out as soon as the agents came in, and if their answers revealed anything that gave reasonable suspicion that would be reason for detainment.
Henry R. Fenton: I don't think that was the situation here, Your Honor.
William H. Rehnquist: But do we know?
Henry R. Fenton: No, I think the record reflects these people simply tried to get out before they were questioned.
William H. Rehnquist: Where does it reflect it?
Henry R. Fenton: It's at the Appendix, page 82, I believe.
William H. Rehnquist: What language on page 82 are you relying on? You say this language shows that they were not only interrogated, might have been interrogated, but they were prevented from leaving; is that your point?
Henry R. Fenton: Yes, they were prevented from... well, the language only says that--
Byron R. White: They were stopped. Well, I didn't know stopping was necessarily a seizure.
Henry R. Fenton: --Well--
Byron R. White: Do you think so under our cases or not?
Henry R. Fenton: --Well, I think that under these circumstances if one tries to leave one's place of employment and one is stopped at the door... that's the way I interpret this... and prevented from leaving the premises, then one is seized, and in my view one's free--
Byron R. White: Where is the language?
Henry R. Fenton: --Well, it's this language. He saw people. He says that he saw people running, about 10 to 20. "Where did they run to"? "Toward"... that's in the middle of the page... "toward the back of the building. " "Did they run as a group? " "No". "Did you see any of these people try to go out any door? " "Yes". And then he says... then he says: "What happened when these people tried to get out the door? " "Well, every door was covered. " "How many of these people did you see try to get out a door? " "I saw five trying to get out the back emergency exit, but they were stopped. " That was the testimony I was referring to.
John Paul Stevens: Of course, you left out whether they were running and trying to hide. They were trying to hide, according to the testimony.
Henry R. Fenton: Well, these people, I think, we trying to get out. Some were trying to hide.
John Paul Stevens: Well, that's what he describes them all as doing. Would that be justification, do you think, for asking a couple of questions?
Henry R. Fenton: I think if... in an instance like that basically I think that workers are terrified and while under ordinary circumstances--
John Paul Stevens: Which ones are particularly terrified?
Henry R. Fenton: --I beg your pardon?
John Paul Stevens: Which ones are particularly terrified?
Henry R. Fenton: Particularly perhaps the illegal aliens.
John Paul Stevens: I mean, isn't that a reasonable inference that they're the ones who ought to be questioned and stopped for a moment? Wouldn't that itself provide the articulable suspicion?
Henry R. Fenton: Well, I think that... not necessarily, because in this--
John Paul Stevens: Is there any evidence that anyone other than those got up and ran? Is there any evidence that a citizen got up and ran when somebody walked in the door?
Henry R. Fenton: --No, there's no evidence one way or the other.
John Paul Stevens: It's really highly unlikely, isn't it?
Henry R. Fenton: I beg your pardon?
John Paul Stevens: Isn't it highly unlikely that a citizen would get up and run?
Henry R. Fenton: Well, I think the point is that a U.S.... the U.S. citizens, the Respondents at least, didn't try to leave, whether it was by running or walking. I think it probably is unlikely that a citizen would run, but I think it's conceivable that in that setting that a citizen would be frightened sufficiently by the survey, would be frightened of being mistaken for an illegal alien, that he or she might run.
John Paul Stevens: Why?
Henry R. Fenton: Because the basis for handcuffing, the apparent basis for handcuffing, I would submit, was that the person tried to leave and Hispanic appearance of the people.
Thurgood Marshall: Mr. Fenton, one question. It's true that they had two days at these plants, right?
Henry R. Fenton: There were... well, there were two separate plants. There were two surveys.
Thurgood Marshall: There were two separate days?
Henry R. Fenton: There was a nine-month--
Thurgood Marshall: Well, weren't there two days that they did the same thing?
Henry R. Fenton: --Yes, at one of the plants; that's correct.
Thurgood Marshall: Well, if they were... the people you are talking about... were so scared to death, why did they come back the second day?
Henry R. Fenton: The second survey wasn't on the second day. It was some nine months later, Your Honor. In other words--
Thurgood Marshall: It was later.
Henry R. Fenton: --It was several months later. It wasn't the following day.
Thurgood Marshall: Well, if they were so scared, they did come back in the place to work.
Henry R. Fenton: Well, they had to make a living, but, you know, I submit that they were afraid.
Thurgood Marshall: They could have gone back to Mexico and made it.
Henry R. Fenton: And the record reflects, Your Honor, that... well, I'm talking about U.S. citizens and legal residents, and the record reflects that these people, not the illegal aliens... I'm not talking about those people.
Thurgood Marshall: Well, again, I thought Justice Stevens asked you to name one point in the record that said a citizen was involved.
Henry R. Fenton: Well, citizens remained within the factory. The Respondents were citizens and resident aliens and Mrs. Correa, one of the Respondents, testified that when the agents left she spent some 45 minutes calming down citizens and legal residents who were crying because they were so upset about what was going on and were so frightened that they might have been apprehended and so forth.
Thurgood Marshall: What would their-- --Well, how can you apprehend a citizen?
Henry R. Fenton: For fear that they themselves might have been mistaken as an illegal alien. For example, if one were to identify oneself as an illegal alien, a Hispanic, and were disbelieved, presumably one could be handcuffed, from the vantage point of the workers.
William H. Rehnquist: There's no evidence that that took place, is there?
Henry R. Fenton: There was one instance of this one worker who was handcuffed and then later the handcuffs were taken off.
William H. Rehnquist: Yes, but what do we know about the probable cause or suspicion that the agents had with respect to that one worker?
Henry R. Fenton: Well, we don't, but-- One further point with respect to the seizure that I'd like to make, Your Honor. I think that there is an admission in the record that in fact the people were stationed in the doorways to keep everyone inside. Assistant Director Smith stated that the agents were placed there "in order to guarantee that individuals will not escape. " and this is at page 48 of the Joint Appendix.
Warren E. Burger: Do I understand you to contend that if the person responds and says "no, I am not a citizen and I do not have a work permit. " that there's something wrong with taking them into custody, including handcuffing them?
Henry R. Fenton: I'm saying that if there's reasonable cause, if there were reasonable cause to believe--
Warren E. Burger: Well, that's very reasonable cause, isn't it?
Henry R. Fenton: --Well, our point is, first of all, that those people are seized before any questioning even begins, so that there's a seizure before there's any particularized or objective basis of suspicion. Contrary to what Mr. Frey says, the record reflects that there is... that in 90 percent of the cases, as he says, these surveys are carried out with the permission of the employer, but there's no pattern to it. Sometimes there'll be an anonymous tip and they'll go to a particular place of employment based on an anonymous tip. In the Davis Pleating surveys where there was a warrant... and perhaps in ten percent of the cases there's a warrant to permit entry into the factory... the only basis for the raid was that three illegal aliens were apprehended outside the factory. One of them said that she believed there were five illegal aliens in the factory, based on her conversations with people in the factory. Another one said that she thought there were many. The third said she thought there were 18. None of them would identify anyone in the factory or name any illegal aliens in the factory. The other basis for the raid, which captured a population of 300 people, was that the INS agent involved stated that he saw 20 persons of a... and these were his words... "of apparent Latin appearance" walk into the factory. So there really is no basis before the agents go in there, no objective or particularized basis for--
John Paul Stevens: Mr. Fenton, your position, I think, on behalf of your clients is the same even if there's all the basis in the world to go in. You're not arguing on behalf of the employer that you have no right to come in the factory and usually, as I understand it, the employer consents.
Henry R. Fenton: --Well, we're arguing... that's true, but we're arguing that the people are seized, that my clients were seized without any--
John Paul Stevens: But you make the same argument even if 50 percent of the people in the factory were well known to be unlawful aliens and the other 50 would still make the same--
Henry R. Fenton: --But if 50 percent of the... I would make that if there were no specific... if there were no particularized and objective basis beforehand to go in and seize those people, and after the fact they were determined that 50 percent were illegal aliens. Yes, that would be my point. However, if the government, if the INS had a particularized and objective belief that 50 percent of the people in there were illegal aliens, certainly they would have a right to go in and detain those individuals and question them, but that's never the case in these surveys.
John Paul Stevens: --Could they follow precisely... they don't know which 50 percent it is. Could they follow precisely the procedure they followed here if they had a 100 percent certainty that 50 percent of the work force was illegal aliens? Could they follow this procedure then?
Henry R. Fenton: I think not. I think it would violate the rights of the remaining 50 percent, but that--
John Paul Stevens: But it seems to me that the rights of the remainder are unaffected by the number of people they suspect.
Henry R. Fenton: --Well--
John Paul Stevens: I mean, you might think there's one armed robber in the factory and follow a similar procedure.
Henry R. Fenton: --Well, again in the one armed robber situation you'd have some... you'd be looking for that one armed robber. You'd have a description or something of that sort. The evil of these raids--
John Paul Stevens: But you might go through and ask everybody to show your driver's license, look for... I mean, anybody that's at least reasonably close in size and dimensions and so on.
Henry R. Fenton: --But you wouldn't permit the police to, for example, to seal off an apartment store to look for a shoplifter and have police officers march up and down the aisles of the department store and keep people there for two hours to look for shoplifters. I think that would violate the Fourth Amendment rights of those people.
John Paul Stevens: Well, they might ask each one who seeks to leave at the time he leaves, "Can I see your driver's license? " They wouldn't have to stay there two hours unless it gets awfully crowded in front.
Henry R. Fenton: Your Honor, I would submit that our situation is totally different. It's simply not that kind of situation. Now the surveys, we submit, violate the Fourth Amendment first of all because they closely resemble the general searches and the bills of attainder that were carried out by the British as part of our pre-Revolutionary history. Again, in those cases, although here we're talking about places of employment, we're talking about indiscriminate seizures of people so that you can question them and find some guilty people. There the British would go into an area without suspecting anyone in particular of customs violations and they would, based upon generalized warrants, seize people. We submit that the surveys per se violate the Fourth Amendment because they resemble those bills of attainder and generalized searches. Moreover, there's no particularized suspicion nor adherence to any objective standard and we submit--
William J. Brennan, Jr.: I gather, Mr. Fenton, you don't find any support for your position in Davis v. Mississippi.
Henry R. Fenton: --Your Honor, I think that Davis versus Mississippi does support our position, and there, again, there was--
William J. Brennan, Jr.: You haven't cited it or relied on it. I wondered.
Henry R. Fenton: --Well, it is one of the amicus briefs, Your Honor, but we do believe that it does support our position and that in that case again the Court held that simply because people were... simply because one was black and a group of blacks were arrested that that was not a particularized basis to suspect that someone was guilty of a crime. So we do feel that that case supports our position. We feel that U.S. versus Cortez is even more on point and this Court held that it's necessary under the Fourth Amendment that particular persons seized be guilty of wrongdoing and that that was the essential teaching of the Fourth Amendment.
Warren E. Burger: Let me ask you this hypothetical question: Suppose they weren't looking for aliens but the police simply stationed a car at the exit of the parking lot at a factory. The first question: All the persons coming to take a car off were asked to exhibit their driver's license. Do you think that would be all right, or would they be seized?
Henry R. Fenton: I think that if you had one or two officers who were, say, outside the factory and simply asked people to look at, that might be a different case because you just don't... you don't have the tremendous coercive impact that you do of this entire apparatus that appeared in the course of the survey.
Warren E. Burger: I'm limiting my hypothetical to people who are approaching a parking lot ostensibly, apparently, to take a car, and they are asked at that time to exhibit their driver's license. That's all right, in your view?
Henry R. Fenton: No, I think not. I think in that particular case--
Warren E. Burger: How about, then, when they're driving out and they stop them as they are driving out and say now you're driving your car, let me see your license.
Henry R. Fenton: --Well, I think under Delaware versus Krause if they're going to stop a car they must have... the police must have a particularized and objective basis of suspicion, so I think that would not be all right. Now the government contends that the government interest that's involved justifies these wholesale violations of rights and we submit that this Court has already considered the national interest that they purport is served here in the Brignoni-Ponce and Cortez cases, and determined that a very minimum particularized basis of suspicion and a suspicion of illegal alienage is required. So that question has already been considered by this Court.
Sandra Day O'Connor: How about in Martinez-Fuerte?
Henry R. Fenton: Your Honor, I think the Martinez-Fuerte is an entirely situation... it's sui generis and doesn't really apply to any other situation. There, the Court--
Sandra Day O'Connor: Well, it's the closest case.
Henry R. Fenton: --Yes, it is. If I may discuss it, the situation there involved a permanent checkpoint which had been in place for some 24 years. The Court held that there was a very minimal subjective intrusion because all motorists using that highway know it's there. I personally use that road all the time, practically every week, and all you do is slow down, and you know that that is all that's going to happen. The Court contrasted that very minimal subjective intrusion to the very substantial intrusion involved in roving stops by border patrols. This particular situation is much more analogous to a roving stop. It's a surprise entry by these officers; it's totally unanticipated. And, in fact, it's far more intrusive, far more--
Sandra Day O'Connor: Well, I guess to have standing you have to say it is anticipated; otherwise you'd be in the Lyons situation and your clients wouldn't have standing. So you have to take the position that yes, we know this is going to happen and it's going to recur; therefore, we have standing. So where's the surprise?
Henry R. Fenton: --Well, Your Honor, I think that while these particular individuals may know that at some point in time it may recur, they certainly don't know that it's going to recur at any particular point in time. They don't know necessarily that it's going to recur. I think that our standing lies in the fact that the government has admitted that they're going to continue engaging in these surveys.
Sandra Day O'Connor: Would Martinez-Fuerte be different if the government didn't maintain its checkpoint at the same place every day of the year?
Henry R. Fenton: I think the decision would have been different. I think it was crucial to the decision, and this Court said that you had a very minimal subjective intrusion. Very little fear, very little anxiety was engendered by the checkpoint, since it was permanently there and everyone knew that it was there. This Court also held that one has a much lower expectation of privacy in an automobile and everyone expects to be stopped once in a while for vehicle... for traffic tickets and so forth by law enforcement agents. And another factor, another crucial distinguishing factor, I think, in Martinez-Fuerte is that really it was an extension of the border. It was at the junction of two highways leading away from the border and I think that's a totally different situation. As the Court said in Almeida-Sanchez, to protect our borders you have really different kinds of Fourth Amendment considerations that are involved. This is... these surveys occurred within our central cities.
William H. Rehnquist: Well, but wasn't Martinez-Fuerte on the highway between San Diego and Los Angeles?
Henry R. Fenton: That's correct.
William H. Rehnquist: So that it's hard to say it was the border because people headed north from San Diego had to pass through that stop.
Henry R. Fenton: Well, it's not technically the border, but I think it's an adjunct to the border.
William H. Rehnquist: Well, I don't think the Court would have needed the reasoning it used in Martinez-Fuerte to justify the stop if it had been a traditional border stop where you can stop anybody, regardless of any sort of probable cause.
Henry R. Fenton: I recognize that, Your Honor. I'm just saying that that was a factor.
William H. Rehnquist: And searched them.
Henry R. Fenton: I think the crucial point was that it was a very minimal subjective intrusion. Here we have a very substantial subjective intrusion. I think the record bears this out in that respect.
Byron R. White: What... tell me, what standing do your clients have to seek an injunction? Is it because it may happen to them again?
Henry R. Fenton: It may happen to them again.
Byron R. White: What are the odds on that?
Henry R. Fenton: Well, I think the government has indicated they intend to engage in further surveys in these particular factories.
Byron R. White: Oh, I know, but at this plant?
Henry R. Fenton: Yes, that's what they said. And I don't think there's any question about it. Moreover, the law suit was... the Ninth Circuit took the position they didn't even have to reach the standing of the union and the union suit for... on behalf of workers they represented.
Byron R. White: Well, the union isn't in the case any more.
Henry R. Fenton: Well, Your Honor, we would submit that they really are in the case even though the Ninth Circuit didn't deal with the standing question. But I think the crucial point is that these surveys are continuing and we submit that hundreds of thousands of people each year are... have their rights violated by virtue of these surveys, so that it's crucial that... so that you really do have a question here beyond the situation of these four Respondents.
John Paul Stevens: Does the number of people affected really matter if we don't have a class action and there are four individuals?
Henry R. Fenton: Well, I think in terms of balancing, if one balances the national interest, I think it is appropriate to consider the effect that this has on people in this country.
John Paul Stevens: It sure does if you're the Congress of the United States, but don't we have to decide the specific controversy between the four individuals and the government?
Henry R. Fenton: Yes, Your Honor, that's correct. But I think also in terms of the notion of whether or not these surveys are reasonable, the government raises national considerations, national policy considerations, and it's appropriate for this Court also to consider the impact on the individuals, the interests of the individuals who are subjected to these surveys.
John Paul Stevens: May I ask this: I take it one of the interests at least of some of the individuals, according to the testimony, was concern about their friends because they obviously had some sympathy with the people who were being arrested.
Henry R. Fenton: Well, we're not... I think that's extraneous.
John Paul Stevens: May I just say, do you rely on that at all?
Henry R. Fenton: No.
John Paul Stevens: Okay. So it's only concern about their own well-being that would be relevant?
Henry R. Fenton: Absolutely. I don't think that has a thing to do with the case. Our point is that--
Thurgood Marshall: Are all four of the parties still in the country?
Henry R. Fenton: --Yes, Your Honor. Well, they are citizens and as fat as I know they are, yes. Now again in considering the reasonableness of the seizure, it's appropriate to examine whether or not there are alternative means of enforcement available to the INS to solve the problems that they assert exist, and we submit that there certainly are. First of all, INS workplace surveys have never been seriously proposed as any portion of the solution to our immigration problems. In fact, the Select Commission suggested a number of alternatives to solve our problems and surveys were not among them. The Select Commission even said that any massive program of deportation would violate civil rights, and the U. S. Civil Rights Commission found these surveys to be violative of civil rights. Beyond that, Your Honor--
Byron R. White: What did they find? Violated what right?
Henry R. Fenton: --Well, the U.S. Civil Rights Commission.
Byron R. White: Well, I know. What right?
Henry R. Fenton: Fourth Amendment rights.
Byron R. White: Did they say Fourth Amendment rights?
Henry R. Fenton: I believe so, Your Honor.
Warren E. Burger: Were they addressing this particular--
Henry R. Fenton: No, they were not. They were not addressing these particular surveys, but they were addressing surveys just like the ones that are at issue in this case. Now the other point is that there is no reason why the INS can't engage in the normal kinds of law enforcement functions that other law enforcement officers engage in. The record reflects that--
Warren E. Burger: --Your time has expired, Counsel.
Henry R. Fenton: --Yes. Thank you.
Warren E. Burger: Did you have anything further, Mr. Frey?
Mr. Andrew L. Frey: A couple of points, Mr. Chief Justice. First of all, I think my colleague underestimates the intelligence of his clients when he suggests that they are so frightened for their own welfare. In fact, Respondent Correa, in explaining what bothered her, at page 116 of the Joint Appendix, was talking about she was upset that production was interrupted and they had to compete with non-union shops. And then she says, "Immigration goes by in the car. " She says, "These people are legal. " "They don't have anything to fear. " "It's just the idea, I guess, they're going to come through. " "Well, do you fear when you see an Immigration officer? " "Not when I see them. " "I don't fear for me. " "It's what I see. " I think these individuals are quite clear about what is going on and what kind of threat the survey represents to them.
Byron R. White: Mr. Frey, what standing do these four people have to seek an injunction?
Mr. Andrew L. Frey: Well, I think they have standing to seek an injunction on the ground that the Ninth Circuit... if the Ninth Circuit is right, they are being illegally seized and they are exposed to a threat, and given the number of illegal aliens--
Byron R. White: I know. That may be true that they were exposed to a threat if the Ninth Circuit's right, but how about an injunction? Doesn't that... don't they have to really, if they're going to have--
Mr. Andrew L. Frey: --Probably a declaratory judgment would suffice. I thought you were raising a question of their standing to obtain an adjudication of their rights.
Byron R. White: --No, no. I'm talking about why have then even got standing to get a declaratory judgment? That speaks to the future.
Mr. Andrew L. Frey: Well, they are exposed to a future--
Byron R. White: Does the government represent they are going to sweep this particular factory again?
Mr. Andrew L. Frey: --We won't tell you when.
Byron R. White: No, of course, not, but you are going to... the likelihood is--
Mr. Andrew L. Frey: Given the results that we've had at these places, they are likely targets. Let me just... Justice Brennan raised the question of Davis against Mississippi and I do think that that is a very different case, because you have to distinguish between this hypothetical group seizure that's gone on here and the question of the seizure and arrest in Davis against Mississippi of an individual. And I agree that you would need probable cause, under Dunaway against New York, a well settled law,... to arrest an individual you would need reasonable suspicion, as in Cortez, to make a seizure of a particular individual suspected of an offense, suspected of being subject to a seizure. But this theoretical seizure of the entire work force is a totally different animal. And the point that Justice Stevens was getting at with my colleague, suppose that they had identified 39 people on the second day of a survey by name who were present and they had gotten a warrant naming those 39 people. They would still have employed precisely the same procedures to prevent those people from running out and hiding and to try to identify who they were. And under the reasoning of the Ninth Circuit, even if they had a warrant based on probable cause they would still be violating the Fourth Amendment rights of all the other people in the workplace. So there simply is... well, my time is up.
Warren E. Burger: Thank you, gentlemen. The case is submitted. We will resume at 1:00.