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ENGLISH v. SAVA

September 22, 1983

ROSE ENGLISH, ELEANOR LAZARUS, MYRA SANTANA-SANTANA, AND EVERL PHILLIPS, on behalf of themselves and all other persons similarly situated, Plaintiffs,
v.
CHARLES C. SAVA, as Acting Director, New York District, Immigration and Naturalization Service and Individually, THURSTON BLACK, as Acting Regional Director for Investigation, Immigration and Naturalization Service and Individually, DAVID L. CROSLAND, as Acting Commissioner, Immigration and Naturalization Service and Individually, and AN UNKNOWN NUMBER OF "JOHN DOES," as Investigators/Agents of the Immigration and Naturalization Service and Individually, Defendants



The opinion of the court was delivered by: LASKER

LASKER, D.J.

 Rose English, Eleanor Lazarus, Myra Santana-Santana, and Everl Phillips, on behalf of themselves and all others similarly situated, challenge the constitutionality of their seizure and arrest during an area control operation by agents of the Immigration and Naturalization Service ("INS") on January 29, 1980, and of the alleged INS practices followed in conducting similar operations to enforce the immigration laws. Plaintiffs *fn1" seek to enforce a declaratory judgment entered by this Court in Marquez v. Kiley, 436 F. Supp. 100 (S.D.N.Y. 1977), in which the constitutionality of certain INS area control operations was at issue. They also request declaratory and injunctive relief against the detention and interrogation of "individuals or groups of individuals without reasonable suspicion based upon articulable facts that each individual is illegally present in the United States," *fn2" and against the arrest of such individuals without probable cause. *fn3"

 Following discovery, both sides now move for summary judgment. The essential facts are not in dispute, and both parties agree that judgment as a matter of law is appropriate. For the reasons stated below, we hold that plaintiffs' Fourth Amendment rights were not violated by the questioning and arrests carried out by the INS, and that the INS therefore is entitled to summary judgment.

 I. FACTS

 On January 21, 1980, an anonymous caller telephoned the Area Control/Illegal Status Section -- Coastal Control Group of the New York District INS office and asked to speak to INS Investigator Donald Griffiths. Because Griffiths was not in the office, Supervisory Investigator Eugene Meyer spoke to the caller. At Meyer's request, the caller repeated his information to Investigator Jerome Coleman. As recorded by Meyer in a memorandum dated January 22, 1980 to Frank Johnson, the then Acting Assistant District Director for Investigations, the information supplied to Meyer and to Coleman was as follows:

 
"[The informant] states that there were 40-50 illegal West Indian aliens using a Port Authority bus on Tuesdays at 8:15 AM, to travel to domestic jobs in New Jersey. This bus run, # 77, boards passengers at Platform # 72. He also stated that there were at least 4 prior deportees among the above group. He stated to Investigator Coleman, that he wants to nail a woman who is responsible for bringing all these females from the Caribbean Islands and placed [sic] them in employment in New Jersey. He states she has already been prosecuted for this and subsequently deported. Although he would not provide all details over the phone, he stated that he would come forward in the future, with more information, if the Service acts on this information. Inquiry made of Investigator Griffiths, indicates the informant to be of previous reliability in past information given." *fn4"

 On the same day, Investigators Richard Sabella and James Mooney were given a G-123 complaint form completed by Coleman at the time of the phone call, in preparation for an investigation to be conducted by Sabella and Mooney at the Port Authority Bus Terminal ("Port Authority") the following day, Tuesday, January 22nd. The G-123 stated, in pertinent part:

 
"Port Authority Bus Terminal 41 Street & 8th Avenue. Each Tuesday at approximately 8:15, 50 female illegals from the Caribbean Island (Trinidad, Jamaica, etc.) take bus # 77 to different parts in New Jersey as live in domestics. There are 3 prior deportees in the group." *fn5"

 In an effort to corroborate this information, Sabella and Mooney went to the Port Authority on January 22nd to observe the passengers waiting at Platform # 72 and boarding Bus # 77 prior to its departure at 8:15. They saw a large number of women who spoke with West Indian accents, were carrying pieces of luggage, and were wearing clothing such as bandanas which the investigators believed were typical of persons from the West Indies. *fn6" The January 22nd report submitted to Johnson by Meyer summarized the investigators' observations, and the results of their inquiries to Port Authority officials:

 
"On Tuesday, January 22, 1980, Investigator Richard Sabella and Investigator James Mooney, ACIS-CC, conducted a surveillance at the Port Authority Bus Terminal at 41st Street and 8th Avenue, New York, New York from 6:45 AM until 8:30 AM. During this period, the Investigators observed between 45 and 55 black females with West Indian accents congregating on Platform # 72 and inside bus # 77. Investigator Sabella, during the surveillance overheard one female, in conversation with another female, state 'How long have you been here?' The other female replied 'I've been here since September but I should have gone home sooner.' In the professional opinions of both Investigators, all the females referred to previously, are possible undocumented aliens or aliens illegally employed as domestics in the New Jersey area.
 
"On the same date, Investigators Sabella and Mooney visited the Port Authority Police Substation in the Port Authority Building at 41st Street and 8th Avenue, New York, and conferred with Lieutenant Covallo, P.A. Police Department and his superior. They were apprized [sic] of the aforementioned facts and stated that they would accord all cooperation and assistance necessary during any future Service operation. They also stated that they were cognizant of these females and confirmed that they were present every Tuesday morning." *fn7"

 Before preparing his report, Meyer also spoke to Investigator Griffiths, to whom the caller had initially asked to speak. *fn8" Griffiths told Meyer that he had only one informant with a West Indian accent, and that this informant had called him in the past on several occasions, without giving his name, and had provided information which in each instance led to the apprehension of illegal aliens. Id.9

 Along with the January 22nd memorandum to Johnson, the major portions of which have already been quoted, Meyer attached the G-123 complaint form and a bus schedule showing the bus' scheduled destinations in New Jersey, and concluded his report with the following recommendation:

 
"It is recommended that a group of 10 to 20 ACIS Investigators from Group I and Coastal Control Unit be assigned to participate in an operation under the control of a Supervisory Investigator. The operation should be operative on Tuesday, January 29, 1980, and commence at 6:30 AM until conclusion. At least two deportation vans and 10 service vehicles will be needed for transportation of the undocumented aliens to the service office for processing." *fn10"

 Johnson approved the operation and initialed the memorandum on January 22nd.

 The operation took place as scheduled on January 29th under the direction of Sabella and Mooney. Two buses were running on the route that morning. Several INS officers, along with a Port Authority policeman, boarded each bus after it was filled, and instructed the drivers to proceed to an area of the terminal which was free of traffic. *fn11" The officers then identified themselves and, on the first bus, asked all of those who were illegally in the country to stand. *fn12" On the second bus, agents asked those who were citizens or lawfully present in the country to stand. *fn13" On both buses, those claiming to be lawfully in the country were questioned briefly and all (a total of 17) were allowed to leave. *fn14" The remaining 67 passengers were arrested and taken to INS headquarters at 26 Federal Plaza. *fn15" Because there were not enough vans to transport all those arrested to INS headquarters in one trip, some passengers had to wait in the sheltered outdoor area where the buses had been stopped for approximately an hour before being taken to INS headquarters. *fn16"

 Three or four of those who had identified themselves as illegal aliens were in fact lawfully in the country, although they were not carrying their alien registration receipt cards at the time in apparent violation of 8 U.S.C. § 1304(e). They were released following the processing carried out at INS headquarters. *fn17" Administrative proceedings as to the remaining individuals who were arrested, including the four named plaintiffs, have been suspended pending the outcome of this lawsuit.

 Plaintiffs argue that operations of the type at issue here violate the Fourth Amendment in the absence of particularized suspicion as to the illegal status of each person detained for questioning by the INS. They contend further that, if the Court finds the Fourth Amendment requirement of particularized suspicion not to have been violated by the operation carried out here, the INS' actions were nevertheless constitutionally invalid without prior issuance of a warrant. Finally, plaintiffs assert that, even if particularized suspicion as to each person detained, or in the alternative a warrant, is unnecessary, the INS acted in this case without a reasonable basis to believe that illegal aliens would be found on the buses that were stopped at the Port Authority. The argument runs that, because of the substantial nature of the intrusion involved in the stop at issue here, probable cause is the appropriate standard by which to measure the INS' actions, and that the information available to the INS failed to meet a probable cause standard. Plaintiffs further argue that even if a lesser standard of reasonable suspicion, applicable to investigatory stops, is the appropriate standard, that standard was not met by the information available to the INS in this case.

 The INS answers that it had a sufficient basis to believe that persons on the buses in question might be aliens unlawfully in the country to justify a minimally intrusive stop for questioning, and that probable cause was not necessary to justify the initial stop. The INS contends that, following the investigatory questioning of the passengers, the voluntary admissions of those unlawfully in the country established probable cause for their arrest, that no warrant was necessary for the arrest of the suspected illegal aliens in a public place, and that the warrantless arrest was consistent with the INS' statutory authority under 8 U.S.C. § 1357.

 II. Standard of Review

 A line of Supreme Court cases stemming from Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) has established that in appropriate circumstances, detentive questioning, short of arrest, need not be supported by probable cause, but may instead be conducted on the basis of "a reasonable and articulable suspicion that the person seized is engaged in criminal activity." Reid v. Georgia, 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752 (1980) (per curiam). See also, e.g., United States v. Marin, 669 F.2d 73 (2d Cir. 1982).

 In the immigration context, warrantless questioning by INS officials as to citizenship status is specifically authorized by section 287(a) of the Immigration and Nationality Act, 8 ...


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