Is the use of language other than English &#39;Reasonable Suspicion&#39; for detention? 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?
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.
The legal standard for an indictment is &quot;probable cause&quot;. This is the same as the standard for an arrest, an arrest warrant, a wiretap, or a search warrant. A conviction, of course, is subject to the much more demanding, proof beyond a reasonable doubt standard. Access logs along could provide probable cause for an indictment, even though they would probably not, standing alone, constitute sufficient evidence to convict. Also, the existence of the search warrant shows that a judge already found that there was probable cause that a crime was committed before the access logs were even reviewed, so there has to be some other evidence beyond the access logs out there and the access logs are corroborating the probable cause that was already found to exist against someone. It bears noting that federal grand juries almost without fail indict, although in some local state court systems, especially in rural areas (mostly in the Southeast U.S. since the West rarely uses grand juries and the North has higher standards of professionalism, especially in urban areas), where the quality of the law enforcement and prosecutorial work is lower, near automatic indictments are not a reality.
Police can get a warrant, if the warrant is supported by &quot;probable cause&quot; to believe that evidence of a crime exists. A separate &quot;probable cause&quot; requirement is that to arrest a person, there must be &quot;probable cause&quot; that they committed a crime. However, the Privacy Protection Act makes it unlawful to search &quot;work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication&quot;, unless there is probable cause that the person committed the crime in question. There are similar laws (&quot;shield laws&quot;) at the state level. Here is a map which gives you an indication what immunities exist in what states.
Bobstro gave the practical answer, that it's a stupid idea for many reason. This is for the US in general, states may have laws that say otherwise. It is not illegal to provoke someone or a government official (police), it's done all the time in protest (not riots). It is not illegal to run from a cop who has not detained you in any way, or has not issued an order to you. The U.S. Supreme Court has made clear that people not suspected of criminal activity can ignore a police officer who approaches them. Wisconsin has even said, that even after a police officer knocked on your window, you can still leave. However, it may give probable cause, especially with the statement of "Oh shit! The police!" It IS illegal to run from a cop who has detained you or issued a lawful order. The order "STOP" is a lawful order, and from that point on, you are committing a crime if you do not stop. For your case, check out the NYTimes article "Supreme Court Roundup; Flight Can Justify Search By Police, High Court Rules".
No. Arizona tried passing a law that, among other things: criminalized failure to comply with federal alien registration requirements, criminalized working without being authorized to work in the United States, and authorized state officers to arrest aliens without a warrant if they had probable cause that the alien had committed a crime that made them deportable. All three provisions were struck down in Arizona v. United States. The federal government has &quot;occupied the field&quot; on most immigration issues. That means they've regulated it so extensively that there is zero room for states to act independently. One of Arizona's laws that was struck down exactly duplicated a federal criminal statute, but even that went too far by allowing the state to apply its own enforcement priorities and prosecute cases the federal government would not. If a state made it a crime to be unlawfully present (which is not a federal crime), that intrudes even further on the federal immigration scheme. This doesn't mean a state can't alert the federal government to people who are unlawfully present. It doesn't necessarily mean state officers can't arrest for federal immigration crimes: a previous Ninth Circuit decision held that Arizona officers could arrest for federal immigration crimes on the same basis that they could arrest for state crimes, and the Supreme Court in Arizona v. US explicitly didn't address the question. However, if state officers make an arrest for a federal crime, the federal government still gets to decide whether or not to prosecute. What you're asking about would remove that federal control, so it is preempted by federal law.
This is controlled by 8 U.S.C. § 1401 which details who qualifies for "birthright citizenship". Including of course the condition mandated by the 14th ammendment, Congress is otherwise free to bestow such citizenship essentially as it pleases by duly enacted legislation. One of the cases that receives birthright citizenship is a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States. So the presumption for young children found in the US is that they are citizens by birth. The law in particular requires positive proof that the individual in question was definitely not born in the United States. Lacking this, or it failing to be found prior to reaching the age of 21 years, they are citizens. For other cases, this will likely end up falling to the courts, who will decide the matter on the preponderance of the evidence. In this case it becomes the burden of the individual claiming citizenship to establish that they are a citizen*. Birth certificates can be filed after birth, and can be submitted as evidence. The laws controlling the validity of birth certificates is locally determined. If there are other birth certificates from other countries, or conflicting witness testimony, then it will fall to the court to decide which case is more likely based on the evidence available. *More accurately the burden generally falls on the entity making the claim about someone's citizenship (their own or someone else's). In a deportation hearing, for example, it falls to the government to establish the individual is not a US citizen. Deporation only applies to aliens, so the defendant must be established as such.
You have raised two broad questions. The question about reasonable suspicion asks: when is evidence illegally obtained? That's difficult to answer, because it depends on the nature of the evidence and any statute which controlled the way in which it should have been collected. However, the focus of your question seems to be the second issue: what use can the government make of illegally obtained evidence? This is the subject of the exclusionary rule. The short answer is this: The exclusionary rule is a judicial remedy created for the purpose of deterring future unlawful conduct. The rule prohibits both direct and indirect use of illegally obtained evidence (&quot;fruit of the poisonous tree&quot;) in a criminal prosecution, but will only be applied where its deterrence benefits outweigh its substantial social costs. To give more insight into how the courts have applied this balancing test, I will summarise its history and rationale. I will then set out the modern formulation of the rule, and try to answer some of your specific hypothetical questions. History and rationale of the exclusionary rule The exclusionary rule originated in Weeks v. United States, 232 U.S. 383 (1914). The government searched Weeks' house without a warrant, seized letters and other property, and charged him with operating an illegal lottery. Weeks applied for the return of the property, but the district court held that &quot;the letters having come into the control of the court, it would not inquire into the manner in which they were obtained, but if competent would keep them and permit their use in evidence.&quot; Weeks was convicted. The Supreme Court reversed, holding that: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution ... The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. In Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), the doctrine was extended to prevent indirect use of information derived from illegally obtained evidence, unless the information comes from an independent source. The government illegally searched Silverthorne's offices, and copied the records seized before the district court ordered their return. The district court also impounded the copies, so the government issued a regular subpoena to produce the original documents. The district court held Silverthorne in contempt for failure to comply with the subpoena. The Supreme Court reversed, holding that: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. The Court acknowledged the 'complexities' of this distinction in Nardone v. United States, 308 U.S. 338 (1939). This case introduced the term 'fruit of the poisonous tree,' and an exception to the doctrine where the connection between the illegality and the evidence presented is 'so attenuated as to dissipate the taint.' Nardone had been convicted of defrauding the revenue twice. The first conviction was based on evidence obtained from an illegal wiretap, and was reversed by the Supreme Court. Nardone was convicted again after a retrial, and argued that the conviction should be set aside because he was not permitted to &quot;examine the prosecution as to the uses to which it had put the [illegally obtained] information.&quot; Frankfurter J, delivering the opinion of the Court, quoted the above passage from Silverthorne and said: In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint ... The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established—as was plainly done here—the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin. Development of modern limits to the exclusionary rule The Court clarified the purpose of the doctrine in United States v. Calandra, 414 U. S. 338 (1974), declining to extend it to grand jury proceedings. The Court held that Calandra was required to answer questions put to him by a grand jury, even though the questions had been informed by the fruits of an illegal search. The Court said: The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim ... Instead, the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures ... In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons ... the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. The Supreme Court endorsed a good faith exception to the exclusionary rule in United States v. Leon, 468 U.S. 897 (1984). Drugs were found in a search of Leon's house and car pursuant to a facially valid search warrant, but on review the district court found that there was no probable cause to issue the warrant. Therefore, the search was illegal although the officers executing it had acted in good faith. After reviewing the cases in which the Court had declined to apply the rule, the Court held that the evidence against Leon should not have been excluded: The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern ... We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances. In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. In Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998), the Court cited Leon and explicitly endorsed the use of a balancing test in declining to extend the rule to State parole proceedings: [B]ecause the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its &quot;substantial social costs&quot; ... A federal requirement that parole boards apply the exclusionary rule ... would severely disrupt the traditionally informal, administrative process of parole revocation. The marginal deterrence of unreasonable searches and seizures is insufficient to justify such an intrusion. We therefore hold that parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment. The Court endorsed an even more circumspect approach to the rule in Hudson v. Michigan, 547 U.S. 586 (2006). The police executed a valid search warrant and found guns and drugs in Hudson's house, but the search was unlawful because the police did not knock and announce before entering. The Court declined to exclude the evidence obtained in the search, holding that: Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates &quot;substantial social costs&quot;, which sometimes include setting the guilty free and the dangerous at large. We have therefore been &quot;cautio[us] against expanding&quot; it, and &quot;have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.&quot; We have rejected &quot;[i]ndiscriminate application&quot; of the rule, and have held it to be applicable only &quot;where its remedial objectives are thought most efficaciously served,&quot;—that is, &quot;where its deterrence benefits outweigh its 'substantial social costs.'&quot; (citations omitted) Current state of the law As of June 2017, the last word on the rule is the Supreme Court's decision in Utah v. Strieff, 579 U.S. 232 (2016). Again, the Court reversed a State court's decision to suppress unlawfully obtained evidence in a criminal trial. The Court identified three exceptions to the exclusionary rule: First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that &quot;the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.&quot; (citations omitted) Strieff was illegally stopped and asked for ID after leaving a house under surveillance by narcotics police. After discovering an outstanding arrest warrant for a traffic violation, the police lawfully arrested and searched Strieff and found him in possession of methamphetamine. The Court found that the exclusionary rule did not apply because of the attenuation doctrine: The three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975), guide our analysis. First, we look to the &quot;temporal proximity&quot; between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider &quot;the presence of intervening circumstances.&quot; Third, and &quot;particularly&quot; significant, we examine &quot;the purpose and flagrancy of the official misconduct.&quot; (citations omitted) [W]e hold that the evidence discovered on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct. Specific scenarios Can the past arrests serve as a basis for reasonable suspicion to stop a person? As a basis for inclusion of the person on an informal watch list? As mentioned in the introduction, this question is not really about &quot;fruit of the poisonous tree.&quot; It is an anterior question about whether or not a police stop was unlawful. The court asks: would the facts available to the officer at the moment of the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Terry v. Ohio, 392 U.S. 1 (1968). Officers are permitted to consider criminal history, as the Fourth Circuit held in United States v. Sprinkle, 106 F.3d 613 (1997): A prior criminal record &quot;is not, alone, sufficient to create reasonable suspicion.&quot; Nevertheless, an officer can couple knowledge of prior criminal involvement with more concrete factors in reaching a reasonable suspicion of current criminal activity. (citations omitted) As probable cause for a future search warrant or arrest warrant or wiretap? As basis for active surveillance without a stop or arrest or search warrant? What if law enforcement set up a sting operation targeted at this individual? As with reasonable suspicion, evidence of the suspect's reputation and criminal history can be taken into account in establishing probable cause for an arrest or search warrant. However, a history of past arrests would probably not suffice in itself to &quot;warrant a man of reasonable caution in the belief that an offense has been or is being committed&quot;: Brinegar v. United States, 338 U.S. 160 (1949). Could the suppressed evidence be used to counter an entrapment defense (which requires a showing that the defendant didn't have a propensity to commit the crime)? Could the suppressed evidence be used to impeach testimony in a criminal case that the defendant had never used drugs before? If the evidence is suppressed then by definition it cannot be used adversely to the defendant. However, if the evidence is shown to have been obtained illegally, it will only be excluded where the deterrence benefits of exclusion outweigh its substantial social costs: Pennsylvania Bd. of Probation and Parole v. Scott. The evidence is more likely to be admitted if it falls into one of the three exceptions set out in Utah v. Strieff: independent source, inevitable discovery or attenuation. In considering attenuation, the court will pay particular attention to 'the purpose and flagrancy of the official misconduct.' Clearly, it is impossible to say, in general, whether unlawfully obtained evidence could be admitted to counter an entrapment defence or attack the defendant's character and credibility. Not only will the application of the exclusionary rule depend on a wide range of considerations, other rules of evidence may need to be applied (such as the rules against character evidence and extrinsic evidence on a collateral matter). Nevertheless, the cases cited above should give some insight into how the court will approach the fruit of the poisonous tree doctrine.
In a deposition, attorneys are supposed to keep their objections short and refrain from making an objection that indicates to the witness how he should answer. A question might be objectionable because it lacks foundation, because it is compound, because it calls for speculation, etc. Example 2, for instance, could be said to assume that Ms. Redacted was involved, and I might not want my client to discuss how he would act in that situation. Some attorneys in that situation might say, "Objection, assumes that Ms. Redacted had anything to do with this, which you haven't proved, and it's impossible to say what would have happened under circumstances that never happened." This gives my client a pretty clear signal that he ought to make clear that Ms. Redacted wasn't around, and that he should try to avoid getting pinned down on any questions about what he would have done if she had been. This practice -- known as "a speaking objection" -- can be used to signal to the witness how best to answer, and it leads to huge fights in a deposition. To avoid those fights, courts have developed a practice of requiring lawyers to simply "object to the form," rather than coaching the witness. That puts the objection on the record so it isn't waived, and if it's truly problematic, the parties have an opportunity to explain in greater detail after the deposition is concluded.