CONSTITUTIONAL INTERPRETATIONS

A federal statute, 8 U.S.C. §1357(a)(1), authorizes federal immigration officers to briefly detain “any alien or person believed to be an alien,” for the purpose of interrogating him “as to his right to be or to remain in the United States.” At least until very recently, federal immigration officers working under the Department of Homeland Security have applied that statute in large part by raiding particular sites or venues within a certain locality for the purpose of interrogating the people found there, at random, about their citizenship in the United States. Individuals who fail to convince the officers that they are citizens are then questioned further about how they came to be present in the United States. Those who fail to convince the officers that their move to the United States from a foreign country was legal when it occurred are then arrested, taken into official custody, and subjected to a “removal” proceeding that is prosecuted, tried, and ultimately enforced by the Department of Homeland Security.[1]

Recent events in Minneapolis may have diminished the Department of Homeland Security’s enthusiasm for the use of this “site-investigation” procedure to capture immigrants who came to the United States years ago, without required border-crossing documentation, but who have peacefully resided in the United States ever since. Nevertheless, despite its harsh treatment of long-term immigrants who have no criminal records other than one, long ago illegal entry into the United States, the “removal” procedure and practice described here complies, for the most part, with the United States’ immigration laws as currently written. There are however at least three significant concerns where it likely results in violations of the Fourth Amendment to the United States Constitution.

The Fourth Amendment reads, in its entirety, as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Supreme Court has long recognized that brief detentions or stops of individuals by the police for questioning are subject to the Fourth Amendment, but  that neither “warrants” nor “probable cause” are prerequisites to such questioning or detentions. Nevertheless, the detentions, and the questioning must be “reasonable” and reasonably brief to comply with the Fourth Amendment.

A brief police stop of an individual based on nothing more than the policeman’s racial or ethnic profile of that individual is inherently unreasonable, and therefor forbidden. A policeman’s inquiry into a detained individual’s citizenship is unreasonable, and therefore forbidden, when the policeman has no legitimate reason for doubting it. And a policeman may not enter private property without the owner’s consent to investigate a matter on that property, unless he has a valid search or arrest warrant that substantially complies with the Fourth Amendment’s warrant requirements. These limitations on searches and seizures by the police, including federal immigration officers, are part of our “supreme Law of the Land.” U.S. Const., Art. VI. They must be obeyed, despite any political views to the contrary.

/s/ Dan D. Rhea

[1] See Concurring Opinion of Supreme Court Justice Brent Kavanaugh in Noem v. Vasquez Perdomo, U.S. Sup. Ct. docket no. 25A169 (issued Sept. 8, 2025) p. 2.