Been Full of Beans on Immigration Law Enforcement

In today's Tulsa World Tulsa Police Chief Dave Been states that his officers have no authority to enforce federal immigration laws. You have to wonder who is giving the Chief his legal advice. The Tenth Circuit Court of Appeals disagrees:

[29] We noted just recently that state law enforcement officers within the Tenth Circuit "have the general authority to investigate and make arrests for violations of federal immigration laws," and that federal law as currently written does nothing "to displace . . . state or local authority to arrest individuals violating federal immigration laws." United States v. Vasquez-Alvarez, 176 F.3d 1294, 296, 1299 n.4, 1300 (10th Cir. 1999). Rather, we observed that federal law "evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws." Id. at 1300.

[30] Fifteen years earlier in United States v. Salinas-Calderon, 728 F.2d 1298, 1301-02 & n.3 (10th Cir. 1984), we likewise noted state law enforcement officers' "general investigatory authority to inquire into possible immigration violations." In Salinas-Calderon, we specifically held that a Kansas state trooper had probable cause to make a warrantless arrest of an undocumented alien, "and the fact that [the trooper] did not know with certainty that there was a violation of the immigration laws is not controlling." Id. at 1302; see also id. (an arresting officer need not "hold a subjective belief that he has a basis for making the arrest").

[31] Defendants' argument that Utah state law did not authorize Trooper Wright to detain them for suspected violation of federal immigration law misses the mark. We have never held that before a state law enforcement officer may arrest a suspect for violating federal immigration law, state law must affirmatively authorize the officer to do so. But see Gonzales v. City of Peoria, 722 F.2d 468, 475 (9th Cir. 1983) (suggesting state law must affirmatively grant local authorities the power to arrest for a federal immigration law violation). Instead, relying on Salinas-Calderon, we inferred in Vasquez-Alvarez, that state and local police officers had implicit authority within their respective jurisdictions "to investigate and make arrests for violations of federal law, including immigration laws." Id.at 1295; *fn7 <#D*fn7> see also United States v. Janik, 723 F.2d 537, 548 (7th .Cir. 1983) (recognizing state law enforcement officers' implicit authority to arrest suspects for federal offenses); United States v. Bowdach, 561 F.2d 1160, 1167-68 (5th Cir. 1977) (interpreting 18 U.S.C. § 3041 to empower state law enforcement officers to arrest suspects for federal offenses). This, of course, presumes no state or local law to the contrary. See Jay T. Jorgensen, The Practical Power of State and Local Governments to Enforce Federal Immigration Laws 1997 B.Y.U.L. Rev. 899, 910 n.65. *fn8 <#D*fn8>

[32] Because probable cause to arrest Defendants for violations of state and federal law existed at the time of their consent to search the vehicle, Defendants' claim that they were illegally detained at the time of their consent necessarily fails. Accordingly the district court's order granting Defendants' motion to suppress on the basis of an illegal detention is reversed. This cause is remanded to the district court for further proceedings not inconsistent with this opinion. [33]

REVERSED and REMANDED

United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 09/05/2001)

Been's statement is especially troubling in that not only is it dead wrong, but it also substitutes left wing politics for established jurisprudence, establishing a defacto local law enforcement policy in direct contradiction to the law of the land. In a recent law review article titled The Essential Force Multiplier, The Inherent Authority of Local Police to Make Immigration Arrests, 69 Alb. Law Rev. 179, Dr. Kris W. Kobach Professor of Law, University of Missouri (Kansas City) School of Law flatly states:

"It is well established that the authority of state police to make arrests for violations of federal law is not limited to situations in which state officers are exercising power delegated by the federal government to the states. Rather, it is a general and inherent [*200] authority based on the fact that the states retain their sovereignty in the U.S. constitutional framework. The states' arrest authority is derived from the basic power of one sovereign to assist another sovereign. This is the same inherent authority that is exercised whenever a state law enforcement officer witnesses a federal crime being committed and makes an arrest. That officer is not acting pursuant to delegated federal power. Rather, he is exercising the inherent power of his state to assist another sovereign.

"There is abundant case law on this point. Even though Congress has never authorized state police officers to make arrest for federal offenses without an arrest warrant, such arrests occur routinely. Further, the Supreme Court has recognized that state law controls the validity of such an arrest. As the Court concluded in United States v. Di Re, "No act of Congress lays down a general federal rule for arrest without warrant for federal offenses. None purports to supersede state law. And none applies to this arrest which, while for a federal offense, was made by a state officer accompanied by federal officers who had no power of arrest. Therefore the New York statute provides the
standard by which this arrest must stand or fall. 129

"The Court's conclusion rests on the assumption that state officers possess the inherent authority to make warrantless arrests of individuals who have committed federal offenses. The same assumption guided the Supreme Court in Miller v. United States, a case concerning an arrest for federal offenses by an officer of the District of Columbia. 130 No delegation of federal arrest authority was necessary; "by like reasoning the validity of the arrest ... [was] to be determined by reference to the law of the District of Columbia." 131 As the Seventh Circuit explained in United States v. Janik, "[state] officers have implicit authority to make federal arrests." 132 Accordingly, they may initiate an arrest on the basis of probable cause to believe that an individual has committed a federal offense. 133

"The Ninth and Tenth Circuits have reached the same conclusion in the immigration context specifically. In Gonzales v. City of [*201] Peoria, the Ninth Circuit opined with respect to immigration arrests that "the general rule is that local police are not precluded from enforcing federal statutes." 134 The Tenth Circuit has reviewed this question on several occasions, concluding squarely in 1984 that "[a] state trooper has general investigatory authority to inquire into possible immigration violations." 135 As the Tenth Circuit characterized this arrest power in 1999, there is a "preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws." 136 And again in 2001, the Tenth Circuit reiterated that "state and local police officers [have] implicit authority within their respective jurisdictions "to investigate and make arrests for violations of federal law, including immigration laws.'" 137 None of these Tenth Circuit holdings drew any distinction between criminal violations of the INA and civil provisions that render an alien deportable. Indeed, in all of the cases, the officers involved inquired generally into possible immigration violations, often arresting without certainty as to whether the aliens' immigration violations were of a civil or criminal nature. 138 Rather, the court described an inherent arrest authority that extends generally to all immigration violations."

Chief Been needs to carefully and quickly re-examine the TPD's policy on immigration law enforcement and make adjustments to bring the TPD into line with the law of the land.

--30--