7

The ACLU indicates:

  • Generally, an immigration officer cannot detain you without “reasonable suspicion.”
  • An immigration officer also cannot search you or your belongings without either “probable cause” or your consent.
  • An immigration officer cannot arrest you without “probable cause.”

Media outlets (Time Magazine) reports two women, who were born in the U.S. and are citizens, were speaking to one another in Spanish while standing in line to buy eggs and milk in a convenience store in Havre. The agent, Paul O’Neill, entered the store, overheard them and kept them in the parking lot for approximately 40 minutes while he checked their identifications.

“Ma’am, the reason I asked you for your ID is because I came in here and I saw that you guys are speaking Spanish, which is very unheard of up here,” O’Neill said in the video.

Did the agent have "reasonable suspicion" to detain the women based on language (assume he did not understand Spanish for this exercise)?

What precedent, if any, is there to justify such a lengthy detention?

15

It is intuitively crazy to think that speaking Spanish in Montana is evidence of a crime. Still, we will have to wait to see what the courts rule, if it goes that far. We should start with Terry v. Ohio, 392 U.S. 1, which found that

in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that, at some point, the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And, in making that assessment, it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate?

The Montana officer did "articulate" a reason, in saying "Ma’am, the reason I asked you for your ID is because I came in here and I saw that you guys are speaking Spanish, which is very unheard of up here". In articulating an excuse, the officer has not passed the test of providing "rational inferences from those facts". Of course, the law also does not require an officer to explain his reasoning to the suspect. In Terry, the officer

had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35, and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years, and that he would "stand and watch people or walk and watch people at many intervals of the day." He added: "Now, in this case, when I looked over, they didn't look right to me at the time."

The reasoning in these cases is quite parallel: an appeal to a subjectively felt unusualness of a circumstance. There may be a factual dispute over how often Spanish (or Nakhota) is spoken in public in Havre, but we may assume that Spanish is spoken much less often than English. Still, a well-grounded belief that a person speaks Spanish (let us stipulate that it is fluent) is not at all evidence that a person has committed a crime. The inference is no more rational than McFadden's inference from "I don't know you" to "You must be a criminal".

See US v. Brignoni-Ponce, 422 U.S. 873, which held that

an officer whose observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country may stop the car briefly, question the driver and passengers about their citizenship and immigration status, and ask them to explain suspicious circumstances... To allow roving patrols the broad and unlimited discretion urged by the Government to stop all vehicles in the border area without any reason to suspect that they have violated any law, would not be "reasonable" under the Fourth Amendment...The Fourth Amendment therefore forbids stopping persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.

The court has

refused to find that Mexican ancestry alone supported such a "founded suspicion"

Speaking Spanish is as much evidence of foreign ancestry as speaking English is (referring to the Nakhota situation, ethnic Nakhota speak English all the time, but they do not have foreign ancestry). See also US v. Manzo Jurado

Given...inability to speak English, proximity to the border, and unsuspicious behavior - law enforcement lacked reasonable suspicion that Appellant and his co-workers were in this country illegally.

Moreover, the Manzo Jurado event took place in Havre MT. So the factual question of whether hearing Spanish spoken in Havre is already on the record. Not only is it spoken in Havre, it is spoken by an individual who spoke no English, and it was found by the court to not constitute reasonable suspicion.

  • 1
    I believe the supreme court has already ruled that speaking a foreign language cannot by itself be grounds for suspecting either a crime or a civil immigration violation (Border Patrol officers are generally empowered to detain people suspected of the latter as well as those suspected of committing crimes). – phoog Sep 21 at 19:45

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