Alienated: Immigrant Rights, the Constitution, and Equality in America

4: Building the Floor: Preserving the Fourth Amendment Rights of Undocumented Migrants

Building the Floor Preserving the Fourth Amendment Rights of Undocumented Migrants In this chapter, I contend that the Fourth Amendment right to be free from unreasonable government searches and seizures is a constitutional “floor” that should extend to undocumented immigrants, despite recent pronouncements by some courts suggesting otherwise. The Fourth Amendment is a personal (as opposed to citizenship) right meant to deter unlawful government conduct. Developments in tort premises liability law provide an interesting analogy: just as we should require tortfeasor landowners to compensate persons injured on their property irrespective of their relationship to the plaintiffs, our constitutional law should provide Fourth Amendment protections against the government regardless of the claimant’s immigration status. While the denial of public benefits to lawful permanent residents might define one end of the debate over noncitizens’ rights, this chapter chooses to take up the other extreme: the possible denial of domestic Fourth Amendment rights to so-called “illegal aliens,” or, less pejoratively, undocumented immigrants. While this issue has been the subject of much debate in the literature,1 its reexamination is in order in light of a 2003 Utah federal district court’s decision entitled United States v. EsparzaMendoza .2 In Esparza-Mendoza, U.S. District Judge Paul Cassell ruled that a previously deported undocumented immigrant was not protected by the Fourth Amendment’s prohibition against unreasonable government searches. The facts of Esparza-Mendoza are compelling, although the case starts out rather ordinarily. Around March 1997, Mexican citizen Jorge Esparza -Mendoza crossed the border into the United States, evading immigration authorities. Two years later, in April 1999, he was convicted in a 4 69 Utah state court for felony possession of cocaine. Rather than having him serve his up to five years of prison time, the state handed Esparza-Mendoza over to the INS a month later. The INS deported Esparza-Mendoza to Mexico in May 1999, warning that should he return surreptitiously he would be subject to federal criminal charges. Sometime thereafter, Esparza -Mendoza again entered the United States without documentation. On October 27, 2002, Salt Lake City Sheriff’s Officer Tracey Cook apprehended Esparza-Mendoza on federal criminal charges for reentering the United States after having been previously removed. Had these been the only facts of the case, Esparza-Mendoza would appear run-of-the-mill. After all, Esparza-Mendoza had been duly deported based on a state felony conviction and had received notice that he would be charged with a federal crime if he returned. Indeed, Esparza-Mendoza did not dispute any of these facts. Rather, he argued that the government obtained knowledge of his identity unconstitutionally, in violation of his Fourth Amendment rights. Officer Cook had no reason to suspect that Esparza-Mendoza was an undocumented migrant when she asked to see his identification on October 27, 2002. She encountered Esparza-Mendoza in the course of responding to a call reporting a domestic dispute between Esparza-Mendoza ’s girlfriend and her sister. When she first arrived at the scene, Officer Cook took statements from the sisters, one of whom claimed that the other threw a brick at Esparza-Mendoza’s car. She then asked to speak with Esparza-Mendoza, who stated that the car was actually his sibling’s and that he did not want to get involved in the dispute between the sisters. Here is the Court’s description of what happened next: Officer Cook stated that she needed to get some identification from him to make sure that everything checked out properly. Esparza-Mendoza responded that he did not want to be involved and did not want to provide his identification. Officer Cook then asked a second time for his identification, stating that she “needed” to see it. It was not put in terms that Esparza-Mendoza had an option to do this, but rather in terms that he was directed to do so. Officer Cook also testified that she had no belief at this time that Esparza-Mendoza had committed any crime.3 Officer Cook checked Esparza-Mendoza’s name with a dispatch officer , who advised that he was a deported felon and that there was an out70 | Building the Floor standing warrant for his arrest. After verifying this information with the INS, Officer Cook detained Esparza-Mendoza and the federal government charged him with one count of...