Indiana’s new immigration statute that gives discretion to law enforcement to arrest a person because of a prior conviction without any removal proceeding even pending against them violates the Fourth Amendment and due process. Buquer v. City of Indianapolis, 2013 U.S. Dist. LEXIS 45084 (S.D. Ind. March 28, 2013):
Defendants maintain that the Court is obligated to presume that the arrest provisions set forth in Section 20 will be applied constitutionally, that is, in accordance with the Fourth Amendment and due process requirements, and thus, that these expanded arrest powers would be utilized only in conjunction with an otherwise lawful arrest. We are no more persuaded by Defendants’ argument now than we were at the preliminary injunction stage; therefore, we incorporate much of our prior order into our discussion here.
We begin by noting that Defendants’ interpretation of Section 20 completely ignores the plain language of that statute. Section 20 expressly provides that state and local enforcement officers “may arrest” individuals for conduct that all parties stipulate and agree is not criminal. The statute contains no reference to Fourth Amendment protections nor does it include a requirement that the arrest powers granted to law enforcement officers under Section 20 be used only in circumstances in which the officer has a separate, lawful reason for the arrest. Moreover, accepting Defendants’ proposed construction would, in effect, read the statute out of existence. Apart from the exclusion of Fourth Amendment requirements regarding probable cause to arrest, Section 20 bestows no authority on law enforcement officers beyond the power to arrest for the noncriminal conduct enumerated therein, creating a deafening silence as to what happens to the arrestee post his or her arrest. There is no mention of any requirement that the arrested person be brought forthwith before a judge for consideration of detention or release. There is, in fact, a complete void within the newly enacted statute regarding all other due process protections. Our acceptance of Defendants’ theory would require the Court to construe the state statute under review contrary to its plain language, which very plainly authorizes law enforcement officials to arrest an individual without regard to whether that individual was already subject to a lawful arrest. Such an interpretation, apart from being based on nothing within the text of the statute itself, would render Section 20 completely meaningless. We cannot and shall not interpret a statute in such an unprincipled fashion. United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008).
Defendants emphasize the fact that Section 20 does not mandate arrests; rather it merely grants discretionary authority to law enforcement officers to arrest. However, Defendants fail to explain the significance of this difference and we see none, since it is clear that “[i]t is the high office of the Fourth Amendment to constrain law enforcement discretion.” Hedgepeth ex rel. Hedghpeth v. Washington Metro. Area Transit Auth., 386 F.3d 1148, 1159 (D.C. Cir. 2004). Nor are we persuaded by Defendants argument that the law in fact requires a “higher standard than probable cause” because it requires the officers to actually “have” certain documents in their possession before exercising their discretion under Section 20, to wit, a removal order from an immigration court, a detainer or notice of action from DHS, or probable cause to believe that an individual was indicted or convicted of an aggravated felony. Defs.’ Resp. at 14. However, even assuming that “have” is interpreted to require physical possession, being in possession of any of the documents enumerated in Section 20 does not provide lawful cause for arrest under the Fourth Amendment.
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"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
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"The criminal goes free, if he must, but it is the law that sets him free. Nothing
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—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
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—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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—Pepé Le Pew
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"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)