For close to 15 years, Phoenix New Times has reported on Maricopa County Sheriff Joe Arpaio's serious abuse of power. The self-described "Toughest Sheriff in America" was once Arizona's most popular politician. But his popularity is plummeting, as the public finally takes note — after reelecting him three times — of horrendous jail conditions, reckless police operations, racial profiling, clearly violation of Human and Civil Rights against Latinos specially Mexicans and personal vendettas against political rivals.
A believe the addition of the first Latina/o to the Supreme Court could have significant impacts for the greater Latina/o community, as well as to the Court and the nation as a whole. Importantly, a Latina/o would likely bring new and different experiences and perspectives to the Supreme Court and its decision-making process. A review of one decision helps demonstrate this point.
In United States v. Brignoni-Ponce, the Supreme Court stated that Border Patrol officers on roving patrols could consider the race of the occupant of an automobile in making an immigration stop. In the Court's words, "[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in the decision to stop a vehicle. Through this pronouncement, the Court ruled that what amounted to race profiling in immigration enforcement was constitutional. The Court authorized the Border Patrol to rely on "Mexican appearance" even if no individual, much less one who "appears Mexican," has been specifically identified as having violated the immigration laws. Such reliance is premised on the perceived statistical probability that persons of "Mexican appearance" are undocumented immigrants. Ordinary Fourth Amendment and Equal Protection principles, however, generally prohibit use of race in this way by law enforcement. Rather, the Constitution usually requires individualized suspicion, not raw statistical probabilities, to justify a police stop.
A Latina/o Justice might well approach the reliance on race and physical appearance in immigration stops in a wholly different way than the Supreme Court did in Brignoni-Ponce. Latina/os are likely to appreciate the detrimental consequences of race profiling in immigration enforcement, which subjects innocent persons lawfully in the country to stops and interrogations largely because of their physical appearance. As a direct result of the Supreme Court's endorsement of reliance on "Mexican appearance," immigration enforcement regularly burdens Latina/o citizens and lawful immigrants of many different national origin ancestries. Such indignities seriously undermine the sense of belonging of Latina/os to U.S. society.
Moreover, a Latina/o would more likely understand why "Mexican appearance" is a deeply flawed criterion on which to base an immigration stop. He or she might well ask logical questions about Brignoni-Ponce including but not limited to the following:
What is "Mexican appearance?" Physical appearances among Latina/os run the gamut from light to dark skin, black to blond hair, brown to blue eyes. The Border Patrol, however, apparently relies on stereotypical "Mexican appearance," dark skin, black hair, brown eyes, indigenous features, often with a socioeconomic class overlay, when in fact persons of Mexican ancestry possess many different physical appearances.
Should the Border Patrol be afforded the broad discretion to question one's citizenship governed by "standards" such as "Mexican appearance?" Because "Mexican appearance" is vague and based on gross stereotypes of undocumented immigrants, how could Border Patrol officers, even ones acting in good faith, be expected to objectively apply this "standard?"
Aren't most of the people in the United States with a stereotypical "Mexican" or "Hispanic" appearance lawfully in the country? Although the vast majority (ninety five percent or more) of the Latina/os in the United States are citizens and lawful immigrants, they may be subject to stops, particularly in the border region if not the entire Southwest, because of nothing other than their physical appearance and a Border Patrol officer's hunch that he or she is undocumented.
Doesn't allowing the Border Patrol to consider "Mexican appearance" in making an immigration stop stigmatize citizens and lawful residents of Latina/o descent who fit the stereotype? Doesn't this limit their claim to full membership in the national community?
Because of personal experiences, as well as an appreciation of the diversities of the Latina/o community in the United States, a Latina/o is more likely than an Anglo to be troubled by the reasoning of Brignoni-Ponce.
Moreover, she or he may well have personal experience with race profiling in immigration enforcement.
For example, the Border Patrol on numerous occasions has stopped Federal District Court Judge Filemon Vela, as well as other Latina/o judges in South Texas, for questioning about his immigration status. Border Patrol officers once told Judge Vela that he was stopped because he had too many passengers in his new sports utility vehicle; another time, he was informed that the tinted windows on his automobile--quite common in warm climates--led to the decision to stop him. Similarly, the Border Patrol repeatedly pulled over Eddie Cortez, former mayor of a Los Angeles suburb, well over a hundred miles from the border.
Nor is the assumption that Latina/os are immigrants limited to the Southwest. A U.S. Capitol police officer stopped Luis Gutierrez, a member of the U.S. Congress of Puerto Rican ancestry, on the way to his congressional office and flippantly told Gutierrez that he "'and [his] people should go back to the country [they] came from."' Such experiences, analogous to those of Thurgood Marshall with respect to racial discrimination, almost inevitably would shape one's thinking about immigration enforcement and, more generally, the reliance on alleged group propensities in law enforcement.
Based on personal experience, a Latina/o Justice is likely to understand the fallacy of "Mexican appearance" and appreciate that Latina/os come in all shapes, sizes, and appearances, not just the stereotypical ones. Latina/os also generally know that many non-Latina/o U.S. citizens assume that Latina/os-- native born in this country or not--are "foreigners," and treat them as outsiders to the national community. This assumption, as seen in Brignoni-Ponce, may affect analysis of immigration and immigration enforcement issues deeply impacting Latina/os.
Importantly, a Latina/o on the Supreme Court might well bring a unique perspective to bear on the analysis of substantive bodies of law in which issues of race arise more subtly than in immigration law. Although facially neutral, and therefore presumably lawful, English-only laws can be employed to attack Latina/os or, at a minimum, adversely affect the Latina/o community. For example, in Hernandez v. New York, the Court held that a prosecutor could constitutionally use peremptory challenges to strike Spanish-speaking jurors in a criminal case that required the translation of Spanish into English; with all Spanish-speakers excluded, a Latina/o defendant was denied a jury that included any Latina/os.
A Latina/o also might look differently than others at various civil rights issues, including those implicated by criminal law enforcement. The recent growth of Latina/o civil rights scholarship demonstrates that Latina/os have civil rights concerns different and apart from those of other racial minorities. For this reason, it should not be surprising that the experiences of Latina/os on the state and federal bench arguably have influenced their legal analysis.
In essence, the Supreme Court has lacked a Latina/o voice and perspective. To this point, for example, no Supreme Court Justice has emphasized for Latina/os, as Justice Marshall consistently did for African Americans, the long history of segregation and discrimination against Mexican Americans in the Southwest or the racism directed at Puerto Ricans on and off the island. Such deficiencies are more likely to be remedied by a Latina/o Justice than one of any other background.
Moreover, perhaps most importantly, the appointment of a Latina/o to the Supreme Court would signal a movement toward full membership for Latina/os in American social life, just as Thurgood Marshall's appointment signaled for African Americans. The naming of a Latina/o Justice in and of itself would symbolize the growing inclusion of Latina/os in the respectable mainstream, rather than simply the entertainment industry. Such a development would be particularly important to Mexican Americans and Puerto Ricans, two Latina/o national origin sub-groups that historically have been denied access to the highest echelons of U.S. society.
Unfortunately, messages of Latina/o exclusion in the legal profession run rampant. Few Latina/os can be found on the state and federal bench. Only a handful have served as a law clerk to a Supreme Court Justice, a prestigious credential held by many of the nation's leading attorneys and judges. Severely under-represented in elite corporate law firms, Latina/os comprise only about 140 of all law professors in the United States. The traditional paths to the Court thus have been unavailable to Latina/os. The first Latina/o Justice could not help but to encourage the fuller integration of the legal profession and send a powerful message that Latina/os in fact must be treated as full members of U.S. society.
In this vein, appointment of a Latina/o to the Supreme Court would go far to make "visible" the relatively "invisible" Latina/o community in the United States.
Public attention to the nomination itself would direct attention to the growing Latina/o national presence. The questioning of a Latina/o nominee by Senators in confirmation hearings would likely highlight Latina/o civil rights concerns. Such a high visibility platform might well have a lasting impact on the national consciousness
1 comment:
Dear "Pro Inmigrant" (if that is how you spell it!
I seriously take offense at your views and will point out my observations from your article.
First of all your thoughts that the Phoenix times is anything but a pro-illegal open borders publications should be rethought when trying to make them appear as a "Factual & Independent" news reporting agency!
Second, the idea that Sheriff Arpaio is loosing his popularity is just about the most ridiculous thing I have heard this year! I have heard from thousands and thousands of people who love what he is doing and have now actually been supporting his efforts financially because he actually does what he was hired to do (Protect the Citizens of his county) Unlike a lot of other political people (Mayor) who try to pander to anyone who will vote for them.
Third what proof do you actually have that his facilities are "horrendous, reckless police operations, racial profiling and violations of Human & Civil Rights" ? All of these seem to be made up in this publication, as well as many other LEFT wing open border groups who think that America has or should have a OPEN DOOR policy to everyone who wants to come to America! Well, just for the record, it does not work that way, and will not work that way IN ANY COUNTRY, especially in AMERICA! We want "Immigrants" to come to America, they provide a great strength to this country as well as others, BUT we just like every other country in the WORLD want them to do it LEGALLY!
Fourth, it is OBVIOUS that you do not know anything about profiling, here is a little hint, If it looks like a duck, and behaves like a duck, good chances that it is NOT an ELEPHANT, but a DUCK! Any LEO will tell you that the safest and best way to determine who might not fit into an area is by profiling them, it is HUMAN Nature, you do it, we all do it whether we do it consciously or not! Ever drive downtown at night on Saturday, and feel sort of out of place? Well, you just profiled the people you see!
Fifth, your article seems to favor so called "Latino/Latina" people over just regular "AMERICANS", why is it that every time when someone try’s to do something to enforce the laws that "RACE" is brought up? Think about it, the LAW is color Blind! and does NOT care what color you are, but if you pose a potential danger to the citizens of the country, or may have broken laws of this land.
Seventh, your definition or interpretation of the 4th amendment is a little off base here.
Here is what the 4th amendment actually says, and take note, is says “Alien” , and a Alien is someone who is in a country LEGALLY! Under the law any person who is here without proper documentation is considered a “Illegal Alien” By law, not just a immigrant which your article seems to try and mix up as being the same! It is NOT!
Sixth your thoughts about Latina/o people being stopped is ridicules, I cannot count the numbers of times that I have been stopped by BP in checkpoints, and all my friends regardless of the color of their skin have ALSO been stopped!
Seventh your thoughts on “English language” are so out of touch with what the citizens of this country that it is shameful, talk to any foreign born legal immigrant, they want ENGLISH to be the standard in business, education and public documents, it is the common language! If you go to China, you learn Chinese don’t you? You don’t demand that they cater to your lack of knowledge of the language! Why should America cater to hundreds of languages? It only tears apart this great country! If you want to speak Swedish, then fine do it at HOME, but not in public, and don’t demand that we as a country bend over backwards to cater to your wants for everything to also be in your native language! Get a life and become that American, learn English! Is not that part of why you came here to this great country? If not, then maybe, just maybe you made the wrong choice!
Remember the old saying, “When in Rome, so as the Romans”? Well, this is America, we believe in God, English as the language of choice, the Dollar, the American dream, and freedom of speech and all the other freedoms that our country has fought to preserve since it was conceived!
Eight, this is not about anyone’s “Civil Rights” being stepped on, it is about people in America who are not here legally, and should be deported, just like in any other country! We don’t give a darn if you came from Mars and are GREEN! If you don’t have papers, and you broke the law getting here, then we will send your sorry butt home to where you came from! You can then fix what is broken there and make that country or planet like the USA which you wanted to come to so badly without respect for our laws!
Ninth, anyone who thinks we need to promote people into public or private institutions just because of the color of ones skin, or ancestry is actually doing the same thing that they accuse others of doing, acting in a “Racist” manor! Excluding others who may be better qualified for positions just to meet a “Quota” of sorts is crazy!
So, in closing, I hope that this brings some light to your article, and tells the readers that people around this great country WELCOME IMMIGRANTS, and value their positions in America, but don’t try to come to this country with out doing it the proper way, and once you get here become part of the fabric of America, assimilate into the culture and life of being a proud American, not a Hyphenated-American, just a plain American!
Born in America, fought for America and will fight agin if needed to KEEP America the great land she is! (And you can take that to the BANK and draw interest on it!)
FOURTH AMENDMENT [U.S. Constitution] - '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.'
To pass muster under the Fourth Amendment, detention must be 'reasonable. ' See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing constitutionality of length of traveler's border detention under Fourth Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering whether duration of border detention without a hearing was reasonable).
In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 ('91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest. See id.
Unreasonable Searches And Seizures.
Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).
Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry v. Ohio, 392 U.S. 1, 20 ('68).
The gathering of fingerprint evidence from 'free persons' constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721, 726-28 ('69).
Nevertheless, everyday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes'); Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.'). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.
Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights.
The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search. Skinner, 489 U.S. at 625 (blood tests do not 'infringe significant privacy interests'); Winston v. Lee, 470 U.S. 753, 62 ('85) (not 'an unduly extensive imposition'); Schmerber, 384 U.S. at 771 ('commonplace'); Breithaupt v. Abram, 352 U.S. 432, 36 ('57) ('routine' and 'would not be considered offensive by even the most delicate').
'An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.' Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because 'in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate'). The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, 'testing based on `suspicion' of [wrongful activity] would not be better, but worse' than suspicionless testing. Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district's practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative 'entails substantial difficulties -- if it is indeed practicable at all.' Id. Accusatory drug testing would 'transform[] the process into a badge of shame' and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.
Except in certain narrowly limited cases, the Court repeatedly has stated its 'insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.' Chambers v. Moreny, 399 U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a cherished value in our society,' searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber, 384 U.S. at 772, 769-70.
Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only 'implicates the Fourth Amendment,' as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual's 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U.S. 753, 60 ('85).
Searches Involving Intrusions Beyond The Body's Surface.
Schmerber v. California, 384 U.S. 757, 69 ('66). The Schmerber Court posed two questions: (1) whether the police were justified in imposing a nonconsensual blood test and (2) whether the procedures themselves were reasonable. Id. at 768. In answering the first question, the Court recognized that it was 'writ[ing] on a clean slate' regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.
Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 ('85), recognized that Schmerber's threshold standard was a requirement of probable cause 'where intrusions into the human body are concerned,' which implicate 'deep-rooted expectations of privacy.' Id. at 761, 760. The Winston Court then acknowledged `other factors'' [b]eyond these standards' that must be considered in determining whether a particular intrusion is reasonable: whether 'the procedure threatens the safety or health of the individual' and 'the extent of the intrusion upon the individual's dignitary interests.' Id. at 761 (emphasis added). In regard to the additional 'dignitary' factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber's recognition that blood extraction is not 'an unduly extensive imposition.' Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual's Fourth Amendment rights even when supported by probable cause. Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.
Investigatory Stops Of Motorists At Sobriety Checkpoints.
The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 ('90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation's roadways. Id. at 450 (explaining the importance of the context of 'police stops of motorists on public highways'). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: 'more extensive field sobriety testing' requires justification. Id. at 450-2.
Like the highway sobriety checkpoints, the 'special needs beyond normal law enforcement' rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 ('89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).
The special needs exception covers testing which 'is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.' Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See, e.g., Portillo v. U.S. Dist. Court, 15 F.3d 819, 823 (9th Cir.'94) (requiring individualized suspicion for urinalysis testing under the probationer special needs exception). The rare special needs cases which do not require individualized suspicion involve persons who voluntarily participate in a highly regulated context. See, e.g., Von Raab, at 671, 677 (noting that 'certain forms of employment may diminish privacy expectations' for the 'employees who seek to be promoted' to certain positions); Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June 26, '95) (noting that schools are highly regulated and 'like adults who choose to participate in a `closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy').
Nonetheless, routine searches that intrude into prisoners' bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. Turner v. Safley, 482 U.S. 78, 87-91 ('87); see, e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for evidence of a specific penological objective because 'general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable').
Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints -- even when their production is compelled -- because they are personal attributes that are routinely exposed to the public at large in daily life. Katz v. U.S., 389 U.S. 347, 51 ('67) (finding a lesser expectation of privacy in personal effects that 'a person knowingly exposes to the public, even in his own home or office').
The Fourth Amendment provides no protection for what 'a person knowingly exposes to the public'. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.
The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber . . . . Rather, this is like the fingerprinting in Davis, . . . [which] 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' U.S. v. Dionisio, 410 U.S. 1, 14-15 ('73) (quoting Katz v. U.S., 389 U.S. 347, 51 ('67), and Davis v. Mississippi, 394 U.S. 721, 27 ('69)) (emphases added).
'Fingerprinting' - like the compelled production of other aspects of an individual's identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs - simply belongs to a different category of search that 'represents a much less serious intrusion upon personal security than other types of searches and detentions.' Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis obliterates this critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.
Blanket Searches.
Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.
In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment's ban against unreasonable searches and seizures. The court concluded: '[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.' Zurcher v. Stanford Daily ('78) 436 U.S. 547, 549-50.
Fourth Amendment protects the 'right of the people to be secure in their persons . . . against unreasonable searches and seizures.' The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. 'The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.' Wolfish, 441 U.S. at 595 (Stevens, dissenting).
A permanent resident alien is entitled to constitutional protection. See Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ('[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.'). In particular, to Fourth Amendment protection against unlawful seizures. See Benitez-Mendez v. INS, 760 F.2d 907, 09-10 (9th Cir.'85) (finding that INS seizure of alien violated Fourth Amendment); see also INS v. Delgado, 466 U.S. 210, 213 n.1, 215-21 ('84) (considering whether questioning of resident aliens by INS agents amounted to seizure for purposes of Fourth Amendment); Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.'87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).
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