W.D.Tex.: County Jail’s acceptance of ICE detainees without PC violates 4A

Bexar County jail’s acceptance of ICE detainers without a showing probable cause for the detention violates the Fourth Amendment. The collective knowledge doctrine doesn’t apply where there isn’t any communication between ICE and the jail other than the jail taking detainees. Summary judgment on liability against the county granted. Santoyo v. United States, 5:16-CV-855-OLG (W.D.Tex. June 5, 2017):

Defendant suggests that County officials were entitled to rely upon ICE’s probable cause determination. The Court does not agree. First, as discussed below, ICE’s assessment of probable cause was based on a determination that Plaintiff was likely removable, not that he had likely committed a criminal offense. The Court also notes that, even if the probable cause requirements between County officials and 8 U.S.C. § 1357(d)(1) were interchangeable, the “collective knowledge doctrine” would not apply in this case because the record does not indicate any communication or cooperation between the ICE personnel who made the probable cause determination and the County officials who processed the detainer request. Indeed, the record does not reveal the identity of any individual within ICE to reached the probable cause determination, the information that formed the basis for that determination, or when it was reached. Compare United States v. Powell, 732 F.3d 361, 369 (5th Cir. 2013) (“The collective knowledge theory for reasonable suspicion applies so long as there is ‘some degree of communication’ between the acting officer and the officer who has knowledge of the necessary facts.”); United States v. Ibarra, 493 F.3d 526, 531(5th Cir. 2007) (probable cause imputed through collective knowledge theory where “Agent Smith knew all of the facts giving rise to the probable cause to search the trailer, and there was communication between Agent Smith, Lieutenant Rawls, and Trooper McGuairt regarding the investigation of this trailer.”)

The unlawful detention of Plaintiff as a result of the ICE detainer request illustrates the broader defects in the County’s practice. To establish municipal liability, Plaintiff must show that the County’s practice is either facially unconstitutional or “promulgated with deliberate indifference to the ‘known or obvious consequences’ that constitutional violations would result.” Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (quoting Bd. of County Com’rs of Bryan County, Ok. v. Brown, 520 U.S. 397, 405 (1997)). Defendant’s policy of honoring ICE detainer requests and of assuming the existence of probable cause based on the existence of a detainer request meets this standard of deliberate indifference. An obvious consequence of Defendant’s practice is that individuals who are the subjects of ICE detainers will be detained by County officials who make no assessment, and have no knowledge, regarding whether probable cause exists that those individuals have committed any crime. In her testimony before a subcommittee of the Texas legislature, Sheriff Pamerleau correctly observes that, under DHS’s Priority Enforcement Program (PEP), DHS prioritized the removal of individuals convicted of certain criminal offenses, a departure from the more permissive standards for issuance of detainer requests under the previous Secure Communities program. Nonetheless, even under the PEP guidelines, undocumented immigrants may be prioritized for removal even though they are not suspected or convicted of a criminal offense, such as those “who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs,” or “who have been issued a final order of removal on or after January 1, 201 42 Memorandum from DHS Secretary Jeh Johnson on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014), available at https://www.dhs. gov/sites/default/files/publications/14 1120_memo_prosecutorial_discretion.pdf. And of course, the PEP guidelines establish DHS enforcement priorities, but do not prohibit the issuance of detainers for non-prioritized undocumented immigrants. See Id. at 5 (“Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein.”). And more fundamentally, the fact of a prior conviction does not establish probable cause supporting a new Fourth Amendment seizure, so the designation of an undocumented immigrant as a PEP enforcement priority on that basis cannot be assumed sufficient to satisfy the probable cause requirement for warrantless detention by state or local officials. It is true that the immigration detainer form developed for use with the PEP program the DHS Form I-247D includes a section in which ICE selects from a series of boxes to inform County officials of the basis for “probable cause,” but crucially, this refers not to probable cause to believe that a crime has been committed, but to believe that “the subject is a removable alien.”3 The immigration detainer form of which Plaintiff was the subject indicated that probable cause existed to believe that he was a removable alien based on “a final order of removal against the subject.” Docket no. 22-1. But, as noted above, neither the mere removability of an individual nor the entry of a final removal order against them equates to a showing of probable cause that they have committed a crime. Arizona, 132 S. Ct. at 2505; Orellana v. Nobles County, CV 15-3852 ADMISER, 2017 WL 72397, at *8 (D. Minn. Jan. 6, 2017) (noting that “reason to believe [that a detainee] is an alien subject to removal from the United States’ does not, without more, provide the probable cause needed to make a lawful arrest … because, ‘[a]s a general rule, it is not a crime for a removable alien to remain present in the United States.” (quoting Arizona)). In short, the County’s assumption that probable cause must exist to detain any individual for whom it receives an ICE detainer request was unreasonable. Its routine detention of such individuals made it inevitable that it would engage in warrantless detention of individuals who were not suspected of any criminal offense, but who became the subjects of ICE detainer requests either because they fell within a non-criminal PEP enforcement priority or because a detainer request was lodged despite their non-priority status. In other words, facts not in dispute show that the County’s practice was carried out with deliberate indifference to the constitutional violations that would inevitably flow from it.

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