As you may well have heard, Arizona recently passed a new law that makes entering and/or remaining in the country illegally a crime. The law has been criticized for a variety of reasons, one of the main ones being that the law will lead to racial profiling and pretext stops. On April 30, 2010, new text was added to the Arizona statute, which says that the police can investigate the immigration status of a person only if the police have already made a lawful stop, detention, or arrest of that person. A stop, even a brief stop, is considered a seizure under the Fourth Amendment ban on unreasonable searches and seizure. The stop is lawful only if the police have reasonable suspicion.
Critics say that this will lead to racial profiling and pretext stops. Does that make the Arizona law unconstitutional? First, I'll explain what a pretext stop is. A pretext stop occurs when the officer observes a person violating some law or otherwise has reasonable suspicion that the person violated a certain law, and uses that violation (such as failing to signal a turn) as an excuse to make the stop, but the officer's real purpose of making the stop is to obtain evidence of some other crime for which the officer lacks probable cause or reasonable suspicion. Police may stop a member of a minority group for some minor violation in the hopes that the stop may result in the officer smelling the odor of marijuana or observing a bag of drugs in plain view in the vehicle once the stop is made.
Is this practice constitutional? In 1996, in the case of Whren v. U.S., the U.S. Supreme Court said YES. This practice is allowed under the U.S. Constitution as long as the officer had a lawful reason to stop the person who is detained. Under the Fourth Amendment, the police can stop a person if they have reasonable suspicion, which is supported by objective articulable facts that a law violation has been committed or is about to be committed.
That means the police can single certain people out who appear to be latino and follow them until they observe a traffic violation or stop someone who appears to be latino for jaywalking when they would not normally stop a person who appeared to be caucasian for the same violation. As long as they have reasonable suspicion that a person has violated the law, the police may stop a person. At that point, under the new Arizona law, they may ask for immigration papers. This is allowed under Whren v. U.S. The Supreme Court did say that racially motivated stops were invalid. In practice, however, it is nearly impossible to prove that a stop was racially motivated if the police had reasonable suspicion that the person stopped had violated the law.
I personally don't like the probable result of police using pretext stops to harass people who appear to be Mexican in the hopes that they just might stop someone who happens to be an illegal immigrant. As a criminal defense lawyer who practices in Seattle and other parts of Washington,I'd like to point out how some states, such as Washington, have outlawed this type of police practice.
In 1999, The Washington Supreme Court decided the case of State v. Ladson. In that case, the Court said that, while pretext stops may be allowed under the U.S. Constitution, the Washington State Constitution provides broader protection from unreasonable police stops than the U.S. Constitution and that pretext stops are not allowed under the Washington State Constitution.
Not every state has taken the same position as Washington and pretext stops are allowed in those states. I am not familiar with Arizona State law, but unless the Arizona Supreme Court holds that pretext stops are not allowed or legislation is passed that prohibits pretext stops, the new Arizona law is constitutional as far as the law of search and seizure goes.
There have been other constitutional attacks to Arizona's new law. Among these is the argument that immigration is reserved for the Federal government to regulate and that Arizona's law is unconstitutional because it encroaches on an area that has been set aside exclusively for the Federal government. Such arguments are beyond the scope of this blog post, which is limited to addressing the constitutionality of Arizona's new law with regard to the Fourth Amendment and the law of search and seizure.
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