From Phoenix to Times Square

UPDATED!  (See end of post)

By Mike Dorf

Under the Supreme Court's Fourth Amendment cases (the relevant ones discussed in a column I wrote in 2004), the police may not simply stop someone and ask him for his identity.  However, if the police have already lawfully stopped someone on reasonable suspicion of a crime, they can ask him for his identity, and pursuant to Hiibel v. Sixth Judicial District Court of Nevada, a state can make it an offense for a person thus stopped not to self-identify.  The (legal advisors to the) drafters and legislators who supported AZ SB 1070 may well have been thinking about Hiibel when they wrote the law as they did: "lawful contact" will typically involve a Terry stop (explained in my FindLaw column last week), and so once someone is stopped, he can be asked for I.D., whereupon reasonable suspicion of immigration status violations could arise.

That's fair enough, but recall that SB 1070 does not only apply when a police officer has made a lawful Terry stop, but whenever a state or local govt official in AZ has made "lawful contact" with a person.  As far as I can tell, AZ law does not define "lawful contact," but I would think it means simply that the govt official's contact with the suspect is not itself the product of illegal action, such as an unlawful search.  In that sense, it seems related to the "plain view" doctrine in Fourth Amendment law: An officer who is lawfully present somewhere--say, in a home executing a warrant based on probable cause to search for a stash of heroin--can take action based on new evidence in "plain view"--say, a dead body in the bathroom where the officer was looking for the drugs.  Likewise here, the AZ legislators may well have thought that they were mandating action on immigration suspects whenever govt officials encountered them in the ordinary course of events.

As I noted in the column, one such possible lawful contact could involve municipal workers.  I gave the example of a clerk at a municipal hospital who becomes suspicious based on how a patient fills out an insurance form.  It seems pretty clear that if fully enforced, SB 1070 would deter undocumented immigrants from using services such as public hospitals; indeed, this may well be part of what its proponents wanted.

But there's another kind of encounter covered by SB 1070: Suppose a police officer is simply walking the beat and observes a person he has a hunch is an undocumented immigrant.  Under Brown v. Texas, the officer can't stop the person even briefly to ask for I.D.  And that limit may explain why, in focusing on police enforcement of SB 1070 (as opposed to enforcement by other state and local officials in AZ), defenders of SB 1070 insist on talking mostly about cases in which the suspect has already been stopped on suspicion of something else.

There is an important twist, however.  Brown, Hiibel and the other Fourth Amendment cases are predicated on the assumption that before the police ask someone for I.D., they don't know who he is.  That won't be true in small towns where police know the "usual suspects."  Nor may it be true for very much longer anywhere.  As we learned recently, Times Square in Manhattan is under heavy surveillance.  NYPD Comm'r Ray Kelly would like to add still more surveillance cameras.  It's only a matter of time before face recognition software and other biometrics enable police on the beat to get real-time information about the people they're seeing in front of them.  At that point, they very well could develop reasonable suspicion (or something approaching certainty) regarding individual suspects merely observed.

In a sense, that would be very good news.  Such information could be used to thwart terrorist attacks and other crimes.  Moreover, in the immigration context, more accurate individualized information would make reliance on stereotypical factors (such as skin color and accent) even less reasonable than it is today.

But there is also a very serious downside here too.  The relevant technology is likely to be deployed long before it is perfected.  And thus for a long time, the real-time coordination of faces with identities will look something like the no-fly list: subject to both false positives and false negatives.  But because reasonable suspicion does not mean certainty, stops (whether for immigration violations or other offenses) will be permissible in many instances where the police prove to have stopped perfectly innocent people.  U.S. citizens erroneously but reasonably believed to be undocumented immigrants will then be stoppable and may be required to show their papers.  In this way, widespread surveillance could erode the protections Brown now affords.

UPDATE:  The original bill was apparently modified to make it less interesting to constitutional law professors.  (Don't these people know what's important?!)  The new version only now requires law enforcement--not other state officials--to attempt to determine immigration status only upon a "stop, detention or arrest," rather than "any lawful contact."  That largely renders irrelevant my worry about social services utilization, with a caveat to which I'll return in a moment.  As for police officers, note that the new version does not forbid police officers from inquiring into immigration status outside the context of an otherwise authorized stop, detention or arrest; it simply doesn't require it.  Thus, we might construe my original post as addressing cases in which a police officer in AZ or any other state takes it upon himself to investigate a person's immigration status.  Thanks to Bob Moss for pointing out the change to me.