ICE Traffic Stops – Now What?
February 25, 2016
In the last several months there has been an increase in the number of reports throughout California that officers of the U.S. Immigration and Customs Enforcement (“ICE”) have been stopping vehicles containing agricultural workers. After these initial stops, workers are being questioned and made to show documentation of their legal status. Significantly, many workers have reported that these stops appear to be based exclusively on their ethnicity. In light of these reports, this publication provides a brief overview of the legal standards that govern ICE Officers and the respective legal rights of a vehicle’s occupants.
Standards Governing ICE Officers and the Rights of Non-Citizens
In order to stop a vehicle, ICE officers must reasonably suspect that the vehicle contains undocumented immigrants. Importantly, the officer’s suspicions must be based upon specific, objective facts besides the occupants’ physical appearance.
Once a vehicle is stopped, officers may briefly question its occupants about their immigration status if the officers reasonably suspect they are not legally in the United States. Officers, however, can only conduct a search of the vehicle when there is probable cause. In other words, in order to legally conduct a search, there must be a fair probability that it will uncover contraband or evidence relating to a crime.
Significantly, non-citizens generally have the same rights as U.S. citizens when they are stopped and questioned by law enforcement. Therefore, when ICE officers question someone who is a non-citizen, this person has the right to remain silent. Specifically, he does not have to answer questions regarding his immigration status, including whether or not he is a U.S. citizen. In addition, he does not have to consent to a search of his vehicle.
Following is a more detailed analysis of these standards.
ICE Officers Must Have Reasonable Suspicion to Stop a Vehicle
When ICE officers reasonably suspect that a vehicle contains undocumented immigrants, they can briefly stop the vehicle to investigate the circumstances that raised their suspicion.1 Importantly, officers cannot rely on only a “hunch” when stopping a vehicle,2 but instead, they must have an objective basis for suspecting that the vehicle contains undocumented immigrants.3
The “totality of the circumstances” determines whether an officer has reasonable suspicion to stop a vehicle.4 This “totality of circumstances” standard allows officers to rely on their experience and judgment when deciding whether to stop a vehicle. However, officers must still base their decisions on specific, identifiable facts.5
Several different factors help determine whether officers have a reasonable suspicion to stop a vehicle. Usually one suspicious factor by itself will not justify stopping a vehicle. However, when there are several suspicious factors present at once, this will bolster an officer’s claim of reasonable suspicion.
On its own, a group’s appearance as a work crew is not enough to create reasonable suspicion.6 Similarly, an individual driving a pick-up truck in an agricultural area is not enough to create reasonable suspicion.7 While the racial or ethnic appearance of a vehicle’s occupants cannot alone establish reasonable suspicion, their appearance is a relevant factor that officers may generally consider.8 However, when the vehicle is in an area where a substantial part of the population is Hispanic, its occupants’ appearance is no longer considered relevant.9
Similarly, an inability to understand English cannot by itself justify stopping someone.10 However, if members of a group only speak to each other in Spanish and cannot understand English, this can support an officer’s reasonable suspicion that a person might be an undocumented immigrant.11 In addition, someone’s nervous appearance and avoidance of eye contact when speaking to an officer can support a claim of reasonable suspicion.12 On the other hand, when a vehicle’s passengers do not turn to look at a passing officer’s vehicle, this behavior alone will not create reasonable suspicion.13
Overall, the “totality of circumstances” standard creates difficulty in predicting when officers may or may not stop a vehicle based upon reasonable suspicion. However, it is well-established that someone’s appearance alone cannot justify stopping his vehicle.14 In addition, remaining calm when seeing or speaking to an officer can help minimize any claims of reasonable suspicion.
Once a Stop Occurs, ICE Officers May Question the Vehicle’s Occupants When There Is Reasonable Suspicion About Their Immigration Status; However, Officers Can Only Search the Vehicle When There Is Probable Cause.
ICE officers may question individuals about their right to be or remain in the United States if there is reasonable suspicion regarding their immigration status.15 However, in order to search the vehicle without consent, officers must have probable cause.16 Like reasonable suspicion, probable cause is determined by the “totality of the circumstances.”17 But, the standard for establishing probable cause is higher than the standard for establishing reasonable suspicion. This means there must be a fair probability that an officer’s search will uncover contraband or evidence relating to a crime.18 Importantly, if an officer’s stop and search of a vehicle are initially invalid, subsequent discovery of undocumented immigrants will not excuse the officer’s unlawful conduct.19
A Lengthy Detention of the Vehicle’s Occupants Must Be Based on Consent or Probable Cause, and the Vehicle’s Occupants Do Not Have to Answer Questions Concerning Their Immigration Status.
If the officers possess reasonable suspicion, they may only briefly stop a vehicle and question its occupants about their immigration status.20 Any further detention or search of the vehicle and its occupants must be based upon consent or probable cause.21 Importantly, non-citizens in the United States generally have the same rights as citizens when they are stopped by law enforcement officers.22
Therefore, non-citizens have the same right to remain silent that U.S. citizens have, unless they are at ports of entry, such as airports and borders. Accordingly, non-citizens do not have to answer questions regarding where they were born, where they live, where they are from, and whether they are a U.S. citizen. They also do not have to answer any other questions about their immigration status. Furthermore, even when someone has chosen to answer some questions, he may later change his mind and decide that he does not want to answer any more questions.23
Generally, when a driver’s vehicle is stopped by law enforcement, he must show his driver’s license and registration upon the officer’s request. However, no one in the vehicle is required to answer questions concerning his immigration status. Similarly, unless there is probable cause, the vehicle cannot be searched without consent. Therefore, if someone does not want his vehicle searched, he should clearly state that he does not consent to the officer’s search.24
Finally, if someone does not possess valid immigration documents, it is almost always beneficial to speak with a lawyer before answering questions about his immigration status. In addition, one should never falsely claim U.S. citizenship or show an officer false immigration documents because this will increase the likelihood of being arrested.25
Conclusion
Although ICE officers may rely upon their judgment and experience when deciding whether to stop a vehicle, they do not have unlimited discretion. Instead, they must have reasonable suspicion—based upon specific facts—that indicates a vehicle may contain undocumented immigrants. Importantly, ICE officers cannot justify stopping the vehicle based upon the occupants’ appearance alone.
Once a vehicle is stopped, ICE officers may briefly question its occupants about their immigration status if there is reasonable suspicion to suspect they are undocumented. However, officers can only conduct a search of the vehicle when there is probable cause. Lastly, if ICE officers decide to question someone who is a non-citizen, this person possesses the right to remain silent and does not have to answer questions regarding his immigration status.
This is a complex area of the law. Agricultural employers and their workers should consider consulting with a knowledgeable immigration attorney for a more comprehensive discussion of these standards.
1See United States v. Manzo-Jurado, 457 F.3d 928, 934 (9th Cir. 2006).
2Id.
3Id.; United States v. Avalos-Ochoa, 557 F.2d 1299, 1301 (9th Cir. 1977).
4Manzo-Jurado, 457 F.3d at 934.
5Avalos-Ochoa, 557 F.2d at 1301.
6Manzo-Jurado, 457 F.3d at 937.
7United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1125 (9th Cir. 2001).
8United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975).
9United States v. Montero-Camargo, 208 F.3d 1122, 1132 (9th Cir. 2000).
10Manzo-Jurado, 457 F.3d at 936-37 (citing United States v. Contreras-Diaz, 575 F.2d 740, 745 (9th Cir. 1978)).
11Manzo-Jurado, 457 F.3d at 936-37.
12See United States v. Leal, 5 Fed. Appx. 608, 609-10 (9th Cir. 2001).
13United States v. Bugarin-Casas, 484 F.2d 853, 855 (9th Cir. 1973) (citing United States v. Mallides, 473 F.2d 859, 860-61 (9th Cir. 1973)).
14Brignoni-Ponce, 422 U.S. at 886-87.
15See People v. Sanchez, 195 Cal. App. 3d 42, 46-47 (1987); see also Orhorhaghe v. I.N.S., 38 F.3d 488, 496 n.13 (9th Cir. 1994); Cordon De Ruano v. Immigration & Naturalization Serv., 554 F.2d 944, 946 (9th Cir. 1977).
16Bugarin-Casas, 484 F.2d at 854.
17See United States v. Fries, 781 F.3d 1137, 1150 (9th Cir. 2015).
18Id.; Cameron v. Craig, 713 F.3d 1012, 1018 (9th Cir. 2013).
19Chavez v. United States, 683 F.3d 1102, 1111-12 (9th Cir. 2012).
20Brignoni-Ponce, 422 U.S. at 881-82.
21Id.
22American Civil Liberties Union, Know Your Rights When Encountering Law Enforcement (last accessed January 28, 2016), https://www.aclu.org/files/kyr/kyr_english.pdf.
23Id.
24Id.
25Id.