The plain language of the Fourth Amendment states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  The Ninth Circuit held that this constitutional protection also applies to undocumented immigrants.   

The case is called Lopez-Rodriguez and Gastelum-Lopez v. Mukasey.   In October of 2000, INS agents came to petitioners’ residence without an arrest or search warrant based on a tip of fraudulent use of a U.S. birth certificate.  Petitioner Gastelum came to the door when the INS agents knocked and, upon establishing a verbal contact with her, they pushed the door open and entered and continued to talk to her.  At no time did Gastelum tell the agents to leave or tell them she did not want to talk to them, and they did not identify themselves until they were handcuffing her.   

The Immigration Judge ruled that although there were “some 4th Amendment problems with the manner of entering and questioning” the problems were not egregious violations.  The Board of Immigration Appeals affirmed the Immigration Judge without decision.   The Ninth Circuit reviewed the IJ and BIA decisions and reversed, stating that the basic principle that searches and seizures inside a home without a warrant are presumptively unreasonable, citing Payton v. New York, 445 U.S. 573, 586 (1980), and this presumption may only be overcome by consent or exigent circumstances.  The Ninth Circuit also said that “the bare fact that Gastelum neither refused to speak to them nor ordered them to leave after they pushed the door open and entered her home is insufficient to establish consent.” 

The Ninth Circuit concluded that “the evidence of alienage contained in these documents was obtained in violation of (petitioners’) Fourth Amendment rights and that the violation was egregious.”  Since the INS officers receive extensive training in Fourth Amendment law, citing Orhorgaghe, 38 F.3d at 503 n. 23, they should have known entry was unconstitutional without a warrant, consent, or exigent circumstances, constitutional violation was so egregious that it was fundamentally unfair to admit evidence obtained as a result of such entry in aliens’ civil deportation proceedings. 

Undocumented immigrants who are detained as a result of an unconstitutional search and seizure should contact an attorney knowledgeable in immigration law.

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Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.