  Assistance by State and Local Police in Apprehending Illegal
                            Aliens

Subject to the provisions of state law, state and local police may constitutionally detain or arrest
   aliens for violating the criminal provisions of the Immigration and Naturalization Act.

State and local police lack recognized legal authority to stop and detain an alien solely on suspicion
    o f civil deportability, as opposed to a criminal violation of the immigration laws or other laws.*

State and local police may detain aliens reasonably suspected of a criminal violation of the immigration
    laws for periods o f as long as 45 to 60 minutes when detentions of that length are necessary
    to allow for the arrival of Border Patrol agents who are needed for the informed federal disposition
    o f the suspected violations.

                                                                                                   February 5, 1996

                   M e m o r a n d u m O p in io n f o r t h e U n it e d S t a t e s A t t o r n e y
                                    S o u t h e r n D is t r ic t o f C a l if o r n ia


             I. BACKGROUND AND SUMMARY OF CONCLUSIONS

   This responds to your memorandum to Seth Waxman, Associate Deputy Attor­
ney General. In that memorandum, you requested a legal opinion from this Office
concerning the circumstances in which state and local police in California can
assist the Immigration and Naturalization Service (“ INS” ) in enforcing the federal
immigration laws.
   Your request for opinion was triggered by certain difficulties that have arisen
in connection with local law enforcement assistance in the immigration area, par­
ticularly in detaining aliens who have entered the United States unlawfully. In
particular, you referred to a policy of the San Diego Police Force that limits the
period for which its officers may detain alien suspects stopped on “ reasonable
suspicion” to a maximum of 20 minutes. Although state and local police have
been authorized to detain alien suspects in some circumstances, the proper inves­
tigation, processing, and arrest o f suspected immigration violators generally re­
quires the presence and assistance of agents of the United States Border Patrol.
At present, however, we understand that local police will detain such persons for
only 20 minutes after Border Patrol assistance is requested. You advise that Border
Patrol agents in your district are rarely able to reach the scene of apprehension
within 20 minutes. As a result, the 20-minute detention limit may cause state
officers to release illegal alien entrants when Border Patrol agents have not arrived
at the scene within that time period. You have therefore suggested that city and
county authorities consider expanding the permitted period of detention from 20
minutes to as much as one hour, as permitted by law.
 * Editor’s Note: See Editor's Note to Section II. B.


                                                           26
                  Assistance by State and Local Police in Apprehending Illegal Aliens


   In addition to the matters raised in your initial opinion request, you have subse­
quently requested our legal opinion on several additional related issues. Set forth
below is our analysis of those issues. Our conclusions on the chief issues you
raise may be summarized as follows:
   1. Subject to the provisions of state law, state and local police 1 may constitu­
tionally detain or arrest aliens who have violated the criminal provisions of the
Immigration and Naturalization Act (“ INA” ). State police lack recognized legal
authority to arrest or detain aliens solely for purposes of civil deportation pro­
ceedings, as opposed to criminal prosecution. (Sections II.A-B).*
   2. California law allows state police to enforce the criminal provisions of federal
immigration law, although they may not make warrantless arrests for INA mis­
demeanor violations unless the offense occurs in their presence. When illegally
entering aliens have reached a place of repose within the United States, the offense
is completed and is no longer subject to warrantless arrest by California police.
(Sections II.A, II.C3).
   3. State police may stop and detain carloads of illegal alien suspects only in
circumstances that satisfy the requirements of “ reasonable suspicion.” These re­
quirements are inherently fact-specific and therefore not readily reduced to clear-
cut rules. Nonetheless, several basic principles and considerations warrant empha­
sis. (Section II. C).
      a. Persons may be detained for reasonable periods by state police on the basis
of a reasonable suspicion of a criminal immigration law violation. The critical
requirement for a reasonable suspicion detention is the existence of objective,
articulable facts suggesting the commission of a criminal offense by the persons
detained, rather than mere stereotypical assumptions, profiles, or generalities.
      b. In particular, absent knowledge of an established federal policy of not pros­
ecuting such offenses, state police may, in our opinion, legally detain alien sus­
pects for disposition by federal agents when there is reasonable suspicion that
the suspects have violated or are violating the two commonplace misdemeanor
provisions of the INA, 8 U.S.C. § 1304(e) (lack of alien registration documents)
or § 1325 (illegal entry), or other criminal provisions of the INA.
      c. Written guidelines or policies adopted by state or local police forces may
generate additional legal complications regarding otherwise valid detentions based
on suspected violations of criminal immigration laws, insofar as such guidelines
or policies state that suspects may only be detained based on reasonable suspicion
of crimes that are unrelated to the immigration laws. Because any extended deten­
tion of a suspect must generally be based upon the law enforcement purposes
served by the stop, a police force’s official disclaimer of any immigration-related
detention authority could undermine the validity of detaining suspects to await
processing by Border Patrol officers.
 * Editor’s Note: See Editor’s Note to Section II.B.
 •For purposes o f brevity, state and local police will sometimes be referred to herein simply as “ slate police.”


                                                      27
                       Opinions o f the Attorney General in Volume 20


   4. Under governing judicial precedents, state police in California may constitu­
tionally detain alien suspects for periods of as long as 45 to 60 minutes in cir­
cumstances where detentions of that length are necessary to allow for the arrival
of Border Patrol agents (exercising due diligence) who are needed for the informed
federal disposition of reasonably suspected violations of the INA. (Section II.D).
      a. We caution, however, that one Ninth Circuit panel opinion issued in 1994
suggests a somewhat more restrictive approach to the permissible duration of such
detentions.
      b. If the Border Patrol agents do not promptly arrest the suspects upon their
arrival at the scene of a reasonable suspicion detention, it must be assumed that
the additional period of detention required by them before effecting an arrest
would be counted by a court in calculating the permissible length of such deten­
tions (e.g., a permissible 40-minute detention by state police awaiting the arrival
of Border Patrol agents might be rendered impermissibly lengthy if the agents
detain the suspects for, e.g., an additional 30 minutes before effecting an arrest).
   5. As a general rule, the involuntary vehicular transportation of validly detained
aliens by state police to Border Patrol agents would be deemed an arrest and
require probable cause rather than mere reasonable suspicion. (Section II.E).
      a. In unusual circumstances where the Border Patrol’s necessary assistance
may be more promptly obtained by transporting validly detained suspects to the
agents than by awaiting the arrival of the latter, we believe such transportation
(limited to reasonably proximate locations) would be sustainable even in the ab­
sence of probable cause under the principles applied in several pertinent judicial
opinions in California and the Ninth Circuit. It cannot be assumed, however, that
all reviewing courts would uphold the validity of such involuntary transportation
in the absence of probable cause.
      b. Interrogation undertaken by Border Patrol agents following such localized
transport of detainees should take place in an open, non-coercive setting; interroga­
tion of such transported detainees inside a Border Patrol office or other police
office would likely transform the detention into an arrest under controlling judicial
precedents.
   6. Under one recent Ninth Circuit precedent, the question whether state police
may validly arrest alien suspects on probable cause that they have violated the
INA’s requirement that aliens carry registration documents, see 8 U.S.C. § 1304(e),
may also depend upon whether they have reason to believe that federal officials
actually prosecu te suspects for such violations. This is significant because that
misdemeanor provision may sometimes provide the only basis for the arrest. To
the extent that arrests by California police nominally based on such INA mis­
demeanor charges are found to be a pretext for civil deportation proceedings, they
are likely to be invalidated by the courts. (Section II.C.2).
   7. There is established statutory authority for the deputation of state law enforce­
ment officers as Deputy United States Marshals. This mechanism has been most
commonly used to allow state officers to perform federal enforcement functions

                                            28
              Assistance by State and Local Police in Apprehending Illegal Aliens


in joint federal-state law enforcement task forces (e.g., anti-drug and fugitive pur­
suit task forces). (Section II.F).
      a. Where the Attorney General has exercised her authority to delegate supple­
mental INA enforcement duties to the U.S. Marshals Service, state and local offi­
cers can be specially deputized as Special Deputy United States Marshals in order
to perform supportive federal immigration enforcement functions.
      b. Such arrangements were previously authorized by an Attorney General
Order in August 1994, for a period of one year, in order to deal with a potential
mass immigration emergency in the State of Florida.

                                      II. ANALYSIS

A. Validity and Scope o f State Police Participation in Enforcing Federal
Immigration Laws

   It is well-settled that state law enforcement officers are permitted to enforce
federal statutes where such enforcement activities do not impair federal regulatory
interests. Ker v. California, 374 U.S. 23 (1963); Florida Avocado Growers, Inc.
v. Paul, 373 U.S. 132 (1963). This general principle extends to state enforcement
of the Immigration and Naturalization Act as well. In Gonzales v. City o f Peoria,
722 F.2d 468 (9th Cir. 1983), for example, the Ninth Circuit held that “ federal
law does not preclude local enforcement of the criminal provisions of the [Immi­
gration and Naturalization] Act.” Id. at 475.
   At the same time, federal law does not require state law enforcement agencies
to assist in enforcing the INA. That the INA permits state police officers to make
arrests and detentions, see, e.g., 8 U.S.C. § 1324(c), does not mean that states
must permit their police to do so. Rather, the INA enforcement authority of state
police is subject to the provisions and limitations of state law.
   In People v. Barajas, 81 Cal. App.3d 999, 147 Cal. Rptr. 195 (1978), the Cali­
fornia Court of Appeal upheld the authority of California local police officers
to make arrests for violations of 8 U.S.C. § 1325 (the illegal entry misdemeanor)
and § 1326 (felony for alien to re-enter United States after deportation). In reject­
ing the defendant’s argument that the arrest was illegal under INA warrant require­
ments, see 8 U.S.C. § 1357, the court determined that those requirements applied
only to arrests by federal officers and then stated: “ In the absence of a specific
[federal] law regulating the mode of such an arrest, the legality of an arrest by
local officers is determined by the law of arrest of the state in which it occurs,
unless such law conflicts with the federal Constitution.” 81 Cal. App.3d at 1006.
Upholding the arrest under the “ reasonable cause” standard of section 836 of
the California Penal Code, the court stated:

       [The state officers’] knowledge of defendant’s evasive conduct (use
       of a false name, claim to possession of a “ green card” not on

                                             29
                       Opinions o f the Attorney General in Volume 20


       hand but at home, and lack of knowledge as to allow production
       of the card) during the April 28 incident, coupled with [the INS
       officer’s] information, gave them ample probable cause to arrest
       for violation of 8 U.S.C. section 1325 or 1326.

Id. at 1007.
   A 1984 opinion of the California Attorney General also concluded that neither
federal nor California law bars state and local officials from assisting in the en­
forcement of federal immigration laws. See 67 Ops. Cal. Atty. Gen. 331, Opinion
No. 83-902 (July 24, 1984). The opinion stated that, in the absence of federal
statutory restrictions on such activity, “ we would look to California law to deter­
mine the role state and local officials in California may play in that regard.”
Id. The opinion’s central conclusion was that there is no legally enforceable re­
quirem ent that California peace officers must report to the INS knowledge they
might have concerning persons who have entered the United States illegally, al­
though there is no prohibition against their doing so. More pertinently, the Attor­
ney General’s opinion did point out one particularly significant restriction of Cali­
fornia law on INA enforcement by local police. In the case of misdemeanor viola­
tions, such as those covered by 8 U.S.C. §§ 1304(e) and 1325, an arrest may
only be made when the officer has reasonable cause to believe that the person
has committed the offense “ in his presence.” 67 Ops. Cal. Atty. Gen. 331 n.10-
11; Cal. Penal Code § 836 (emphasis added).
   Subject to such restrictive state law provisions, it is recognized that state and
local police may stop, detain, and arrest persons when there is reasonable sus­
picion or, in the case of arrests, probable cause that such persons have violated,
or are violating, the federal immigration laws. Gonzales, 722 F.2d at 474; Barajas,
81 Cal. App.3d at 999; 67 Ops. Cal. Att’y Gen. 331, Op. No. 83-902.
   We also note that the INA itself recognizes the authority of state officers to
make arrests for criminal violations of federal immigration law. For example, 8
U.S.C. § 1324(c), governing the authority to arrest persons for bringing into the
United States or harboring illegal aliens, provides as follows:

         No officer or person shall have authority to make any arrest for
       a violation of any provision of this section except officers and em­
       ployees of the Service designated by the Attorney General, either
       individually or as a member of a class, and all other officers whose
       duty it is to enforce criminal laws, [emphasis added]

Moreover, in Gonzales, the Ninth Circuit explicitly rejected the claim that this
state arrest authority does not extend to other criminal provisions of the INA,
such as 8 U.S.C. §§1325 and 1326. See 722 F.2d at 475. The California Court
of Appeal reached the same conclusion in Barajas. See 81 Cal. App.3d at 1006.

                                            30
                     Assistance by State and Local Police in Apprehending Illegal Aliens


B. Civil Enforcement/Deportable Aliens *

   Whether state officers may assist in enforcing the civil component of federal
immigration law raises a separate issue. Deportation of aliens under the INA is
a civil proceeding. For example, a lawfully admitted non-immigrant alien may
become deportable if his visitor’s visa expires or if his student status changes.
In such circumstances, persons may become subject to civil deportation without
having violated a criminal provision of the INA.
   In Gonzales, the Ninth Circuit held that the authority of state officials to enforce
the provisions of the INA “ is limited to criminal violations.” 772 F.2d at 476.
The court based this distinction between the civil and criminal provisions of the
INA on the theory that the former constitute a pervasive and preemptive regulatory
scheme, whereas the latter do not.2 Application of this rule would seem to pre­
clude detentions by state officers based solely on suspicion of deportability (as
opposed to criminal violations of the INA). A ccord Gates v. Superior Court, 193
Cal. App.3d 205, 213, 238 Cal. Rptr. 592 (1987) (“ Hie civil provisions of the
INA constitute a pervasive regulatory scheme such as to grant exclusive federal
jurisdiction over immigration, thereby preempting state enforcement” ).
   In an opinion issued in 1989,3 this Office similarly recognized the distinction
between the civil and criminal provisions of the INA for purposes of state law
enforcement authority. We first expressed our belief that “ the mere existence of
a warrant of deportation for an alien does not provide sufficient probable cause
to conclude that the criminal provisions [of the INA] have in fact been violated.”
 1989 OLC Op. at 8. We then concluded:

          Because 8 U.S.C. § 1251 makes clear that an alien who has lawfully
          entered this country, lawfully registered, and who has violated no
          criminal statute may still be deported for noncompliance with the
          noncriminal or civil immigration provisions, the mere existence of
          a warrant of deportation does not enable all state and local law
          enforcement officers to arrest the violator of those civil provisions.

Id. at 9.

  * Editor’s Note: In 2002, the Office of Legal Counsel withdrew the advice set forth in this section.
  2 As the court stated:
      We assume that the civil provisions of the Act regulating authorized entry, length of stay, residence status,
      and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive
      federal power over immigration. However, this case does not concern that broad scheme, but only a narrow
      and distinct element of it— the regulation of criminal immigration activity by aliens.
722 F.2d at 475.
   3 Memorandum for Joseph R. Davis, Assistant Director, Federal Bureau of Investigation, from Douglas W. Kmiec,
Assistant Attorney General, Office of Legal Counsel, Re: Handling o f INS Warrants o f Deportation in Relation
to NCIC Wanted Person File at 5 (Apr. 11, 1989) (“ 1989 OLC Op.” ).


                                                       31
                               Opinions o f the A ttorney General in Volume 20


   In that regard, 8 U.S.C. § 1357(a)(2) imposes substantial restrictions even upon
the authority of fe d e ra l officers to make warrantless arrests for purposes of civil
deportation. It requires that the arresting officer reasonably believe the alien is
in the United States illegally and that he is “ likely to escape before a warrant
can be obtained for his arrest.” See Mountain High Knitting, Inc. v. Reno, 51
F.3d 216, 218 (9th Cir. 1995) (asserting that even INS agents have no legitimate
basis for a warrantless arrest of aliens subject to civil deportation unless the arrest­
ing officer reasonably believes that the alien is likely to escape before an arrest
warrant can be obtained).
   Taking all these authorities into account, we conclude that state and local police
lack recognized legal authority to stop and detain an alien solely on suspicion
o f civil d eportability , as opposed to a criminal violation of the immigration laws
or other laws.

C. L egal A u th o rity a n d Standards f o r Detention o r A rrest o f A lien Suspects

   You have also asked for our opinion concerning the legal standards governing
the detention of suspected illegal aliens under the circumstances most commonly
confronted by police in the San Diego area. As an illustrative example of such
circumstances, you have described the situation where a van or other vehicle car­
rying a number of possible illegal aliens is stopped by the police based on prob­
able cause or reasonable suspicion that a state traffic violation or other criminal
offense has been committed.4 Although such circumstances clearly justify deten­
tion and processing of the driver and vehicle, the question arises as to what quan­
tum or quality of indicators are necessary to sustain arrest or investigative deten­
tion of the alien passengers on the respective grounds of probable cause or reason­
able suspicion. Additional issues concern the particular criminal provisions of the
INA that may provide a valid basis for detention or arrest of alien suspects.
   1. G eneral P rinciples an d Perm issible Considerations
   Courts have made clear that federal and state officers have authority briefly
to detain persons based on reasonable suspicion that they have committed or are
committing a violation of federal law, including the immigration laws. See, e.g.,
M artinez v. N ygaard, 831 F.2d 822, 827 (9th Cir. 1987) (“ [T]o detain a worker
short of an arrest, an INS officer must have an objectively reasonable suspicion
that the particular worker is an illegal alien.” ). The general standards governing
reasonable suspicion detentions of aliens transported in vehicles were recently
summarized by the Ninth Circuit in United States v. Rodriguez-Sanchez, 23 F.3d
 1488,1492 (1994):
   4 We note that where state officials establish a fixed checkpoint for purposes of delecting illegal entry and related
crimes, vehicles may be stopped for brief questioning even in the absence of any reasonable or individualized sus­
picion. See United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The operation of such fixed checkpoints need
not be authorized in advance by a judicial warrant, id. at 564-66, and need not be in immediate proximity to the
national border (the checkpoint upheld in Martinez-Fuerte was 66 miles north of the Mexican bolder).

                                                         32
                     Assistance by State and Local Police in Apprehending Illegal Aliens


        Reasonable suspicion is not a mere phrase but has been given
        meaning such that suspicion is “ reasonable” only if based on “ spe­
        cific articulable facts, together with rational inferences from those
        facts, that reasonably warrant suspicion that the vehicle contains
        aliens who may be illegally in the country.” [quoting from United
        States v. Brignoni-Ponce, 422 U.S. at 884]
   For example, the Ninth Circuit upheld a state officer’s reasonable suspicion de­
tention of alien passengers in a parked vehicle in United States v. Ramirez-
Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989). There, a Los Angeles police offi­
cer observed a parked van occupied by two men in the front seat and a number
of others in the rear who appeared to be Hispanic males. Merchants in the area
had previously reported suspicious activity around this van, notably the extensive
comings and goings from the van after it would park on the street after 6 p.m.,
when the local patrolman would be off duty. The detaining officer was also aware
that there was considerable heroin dealing in the area in question. The officer
approached the van, noticed a list of names and numbers on the van’s visor, and
elicited a response from one of the passengers that he had recently crossed the
U.S.-Mexico border and had paid money to be illegally transported into the United
States. The officer then detained the van’s occupants while he contacted the INS.
The court upheld the detention against a challenge that it was not based upon
a reasonable suspicion of illegal activity. Id. at 1394. Citing the circumstances
described above, the court stated: “ Taken together, these factors provide a found­
ed suspicion that the occupants of a van fitting the description of appellant’s van
may have been engaged in illegal activity.” Id. Significantly, the court did not
find it necessary to establish that the officer had any particular felon y violation
in mind when he formed his reasonable suspicion.
   In assessing alien detention issues, it must also be recognized that when police
stop a vehicle on the basis of traffic offenses or other suspected crimes they may
not ordinarily detain the vehicle’s passengers beyond the period required for dis­
position of the matter that justified the initial stop. See M artinez , 831 F.2d at
827. However, observations made while investigating or processing the primary
offense may provide independent basis for reasonable suspicion that either the
driver or the passengers are violating the federal immigration laws, which would
then justify further detention to investigate such violations within the bounds per­
mitted by Terry and its progeny. See United States v. Wilson, 7 F.3d 828, 834
(9th Cir. 1993), cert, denied, 511 U.S. 1134 (1994).5 Moreover, police would
be permitted to inquire as to the immigration status of passengers in such a
stopped vehicle as long as they do not unnecessarily prolong the length of the

   5 See also United States v. Bloomfield, 4 0 F.3d 910, 918 (8th Cir. 1994), cert, denied, 514 U.S. 1113 (1995),
where the court held, “ If, during a traffic stop, an officer develops a reasonable, articulable suspicion that a vehicle
is canying contraband, he has ‘justification for a greater intrusion unrelated to the traffic offense.’ ’’ (citation omitted).
The same reasoning would apply when a traffic stop leads to a reasonable suspicion that the vehicle is carrying
illegal aliens.


                                                             33
                       Opinions o f the Attorney General in Volume 20


initial detention for that purpose. The responses to such inquiries could then pro­
vide a basis for detention or arrest of the passengers by creating a reasonable
suspicion or probable cause that they have committed an illegal entry or are aliens
lacking proper registration documents.
   Courts have also recognized that a reasonable suspicion created by one person
may also support a reasonable suspicion as to others accompanying him in appro­
priate circumstances. Thus, the “ traveling companion of a person whom the police
reasonably suspected of illegally crossing the border” may also be detained on
reasonable suspicion when there are indications that the accompanying individuals
are acting in concert or complicity with the initial suspect. See United States v.
Tehrani, 49 F.3d 54, 59-60 (2d Cir. 1995); United States v. Patrick, 899 F.2d
169, 172 (2d Cir. 1990). It follows that when state police have reasonable sus­
picion that a stopped driver may be engaged in transporting illegal aliens, a reason­
able suspicion of related immigration violations may also be justified as to his
passengers.
   Reasonable suspicion determinations are based on the totality of circumstances
in each case and are “ not readily reduced to ‘a neat set of legal rules.’ ” United
States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989). Reliable pre­
dictions of judicial rulings in this area are especially difficult within the Ninth
Circuit, where different panels have reached inconsistent conclusions in applying
the reasonable suspicion standard to extremely similar factual situations. Compare
United States v. Franco-Munoz, 952 F.2d 1055 (9th Cir. 1991), cert, denied, 509
U.S. 911 (1993) (reasonable suspicion upheld where heavily-laden vehicle driven
by male of Hispanic appearance was traveling in area known for alien smuggling)
with U nited States v. Rodriguez, 976 F.2d 592 (9th Cir. 1992), amended, 997
F.2d 1306 (9th Cir. 1993) (similar fact pattern held insufficient to support reason­
able suspicion). Nonetheless, we believe several general principles are both rel­
evant and well-established in the caselaw as guidelines for the permissibility of
stops and detentions of vehicles or their passengers in this context:
      a. Reasonable suspicion must be based upon an “ objective basis” and “ spe­
cific, articulable facts,” rather than on “ broad profiles which cast suspicion on
entire categories of people without any individualized suspicion of the particular
person . . . .” United States v. Garcia-Camacho, 53 F.3d 244, 246 (9th Cir.
1995). These specific, articulable facts must provide “ a rational basis for sepa­
rating out the illegal aliens from American citizens and legal aliens.” Nicacio
v. INS, 797 F.2d 700, 705 (9th Cir. 1985).
      b. Officers may not arbitrarily stop all persons of Mexican or Hispanic ap­
pearance (or that of any other particular nationality or ethnic group) to question
them regarding immigration/citizenship status without any other specific grounds
for reasonable suspicion that they are illegal aliens. See United States v. Brignoni-
Ponce, 422 U.S. 873 (1975); H ernandez-Alvorado, 891 F.2d at 1416. Likewise,
Hispanic or foreign-sounding names do not in themselves provide a valid basis

                                            34
              Assistance by Slate and Local Police in Apprehending Illegal Aliens


for reasonable suspicion. See Orhorhaghe v. INS, 38 F.3d 488, 497-98 (9th Cir.
1994).
      c. Neither the ramshackle appearance of the vehicle, nor the unkempt, ill-
dressed, and nervous appearance of the passengers in itself provides a sound basis
for reasonable suspicion. See United States v. Ortega-Serrano, 788 F.2d 299 (5th
Cir. 1986).
      d. As outlined by the Supreme Court in Brignoni-Ponce, 422 U.S. at 884-
85, the following are some of the common factors that an officer may rely upon
in combination with one another in determining whether a vehicle or its occupant
aliens may be detained on reasonable suspicion of INA violations:
         (1) characteristics of the area in which the vehicle is encountered (e.g.,
an established thoroughfare for alien smuggling);
         (2) proximity of that area to the U.S. border;
         (3) usual patterns of alien-smuggling traffic, including the time of day fa­
vored for such activity;
         (4) knowledge that illegal border crossings have recently occurred in the
area where the vehicle is spotted;
         (5) the driver’s extraordinary behavior or driving irregularities, such as a
sudden and abrupt exit from the highway onto an exit ramp (see Rodriguez-
Sanchez, 23 F.3d at 1493) or similarly striking evasive maneuvers that exceed
the merely negligent;
         (6) telltale characteristics of the vehicle or its passengers (e.g., “ The vehi­
cle may appear to be heavily loaded, it may have an extraordinary number of
passengers, or the officers may observe persons trying to hide.” Brignoni-Ponce,
422 U.S. at 885).
      e. Other examples of the “ more particularized information” that courts re­
quire to justify reasonable suspicion detentions of vehicles or passengers include
the following, see Hernandez-Alvarado, 891 F.2d at 1417:
         (1) tips from informants that a specific vehicle or address is being used
for smuggling or concealing illegal aliens;
         (2) evidence that a pickup or delivery of aliens is likely to be made in
a particular place and at a particular time, derived from observable facts (e.g.,
large numbers of footprints leading to a highway on a known alien-smuggling
route and then discontinuing at the same roadside point, see United States v. C or­
tez, 449 U.S. 411, 419-21 (1981);
         (3) forms of particularized behavior associated with the evasive tactics used
in illegal entry, such as manifestly coordinated evasive behavior and slouching
or similar unusual movements designed to avoid detection of vehicular passengers,
see United States v. Garcia-Nunez , 709 F.2d 559 (9th Cir. 1983); and
         (4) persons manifestly conducting counter-surveillance or serving as look­
outs.
  2. Detention on the Basis o f Suspected M isdemeanor Violations and the ' ‘P re­
text” Issue

                                              35
                                       Opinions o f the Attorney General in Volume 20


   Both an alien’s failure to carry alien registration documentation and a first of­
fense of illegal entry into the United States constitute federal misdemeanors. See
8 U.S.C. §§ 1304(e)6 and 1325. We are advised that these are the provisions of
the INA that would most commonly provide the basis for a reasonable suspicion
that transient aliens have committed or are committing a crime.
   Reliable indications that the suspect is an alien, coupled with his failure to
produce alien registration documentation or a “ green card,” may provide probable
cause for an arrest under the lack of documentation provision of § 1304(e). See
Mountain High Knitting, Inc., 51 F.3d at 218; M artinez, 831 F.2d at 828. In the
former decision, however, the Ninth Circuit raised some doubts concerning reli­
ance on § 1304 as an independent basis for warrantless alien arrests. Without actu­
ally resolving the issue, the court indicated a strong predisposition to accept the
aliens’ contentions that the INS did not actually arrest them for violating the lack
of documentation provision and that arrests on that basis were only a pretext for
civil arrests on suspicion of illegal entry for purposes of deportation. Mountain
High Knitting, Inc., 51 F.3d at 218. On the basis of those contentions, the Ninth
Circuit remanded the case for the district court to assess “ whether reasonable
INS officers would have arrested appellants solely for violating § 1304(e) absent
suspicion of illegal entry.” Id. at 219.
   With respect to § 1325’s illegal entry provision, the Ninth Circuit has held that,
while the lack of documentation or “ other admission of illegal presence may be
some indication of illegal entry,” it does not without more provide probable cause
for a violation of 8 U.S.C. § 1325(a). Mountain High Knitting, Inc., 51 F.3d at
218; G onzales, 722 F.2d at 476-77. The Ninth Circuit has also stressed the signifi­
cance of the distinction between illegal entry (a crime that is subject to enforce­
ment by state officers) and mere “ illegal presence,” which generally provides
grounds only for civil deportation and is therefore not subject to non-federal en­
forcement. Id. That distinction has additional significance for purposes of Cali­
fornia law, which requires that warrantless arrests for misdemeanors (such as a
first illegal entry violation) may only be made when the offense is committed
in the arresting officer’s presence.7
   These considerations have raised concerns as to the viability of these frequently-
violated federal misdemeanor provisions as a basis for lawful detention or arrest
of alien suspects by state officers. Subject to the particular factual circumstances
and established federal prosecution practices, we nonetheless believe that Cali-

   6 T h e re q u ire m e n ts o f 8 U .S .C . § 1304(e) ap p ly only to aliens w ho h ave b ee n registered and issued a registration
receip t ca rd . See United States v. Mendez-Lopez, 528 F. S upp. 9 7 2 (N .D . O k la. 1981). A n a lie n ’s failure to reg ister
w ith IN S afte r rem ain in g in th e U n ite d Slates fo r 30 days o r longer is sep arately prohibited u n d er 8 U .S.C . § 1302.
V io latio n s o f th e la tte r s e c tio n are punishable b y up to six m onths im priso n m en t under 8 U .S.C . § 1 3 0 6 and c o n ­
seq u en tly also co n stitu te m isd e m ea n o rs under C alifo rn ia law.
   7 T h is re q u irem en t c o u ld p resen t special p ro b le m s in c o n n e ctio n w ith the illeg al entry m isd em ean o rs— w h ich h ave
been co n s id e re d c o m p lete an d consum m ated (a n d thus no lo n g e r su b jec t to an o ffic er’s personal observ atio n ) w hen
the alie n has reac h ed a “ p la ce o f repose” w ithin the U nited S tates. See Gates, 193 Cal. A pp.3d at 2 16. T h is issue
is d isc u sse d in fu rth e r d etail in sectio n 1I.C.3, infra.


                                                                      36
                      Assistance by Stale and Local Police in Apprehending Illegal Aliens


fomia police may validly rely upon the INA’s misdemeanor offenses, as well as
its felony offenses, in detaining alien suspects on reasonable suspicion of a federal
criminal violation. We base this conclusion on several considerations.
   Initially, we do not believe that the restrictive “ pretext” holding in Mountain
High Knitting should be considered generally applicable to investigative detentions
of the type at issue here. Although Mountain High Knitting subjected a full-
fledged arrest (based on probable cause of a § 1304(e) violation) to additional
scrutiny for pretext, it does not purport to establish a general rule imposing this
second layer of scrutiny upon the reasonable suspicion assessments that suffice
to justify preventive detention.
   By definition, a reasonable suspicion does not entail the same degree of speci­
ficity and certainty regarding the suspected offense as does a determination of
probable cause.8 In this regard, the courts have specifically upheld the validity
of Terry detentions imposed by state officers in order to allow for the arrival
of federal officers to make a more informed, expert assessment of probable cause.
As explained by the Sixth Circuit in upholding a 45-minute detention of drug
suspects to await arrival of trained DEA agents: “ The sheriff’s deputies were
not trained as drug agents and needed the DEA agents’ expertise to confirm or
dispel their suspicions.” United States v. Winfrey, 915 F.2d 212 (6th Cir. 1990),
cert, denied, 498 U.S. 1039 (1991). This view is further confirmed by the Supreme
Court’s repeated observation that, in assessing the reasonableness of Terry stops,
“ the Fourth Amendment does not require a policeman who lacks the precise level
of information necessary for probable cause to simply shrug his shoulders and
allow a crime to occur or a criminal to escape.” United States v. Montoya de
Hernandez, 473 U.S. 531, 544 (1985); Adams v. Williams, 407 U.S. 143, 145
(1972). As a general rule, therefore, we do not believe that state officers can
be expected to make subtle judgments concerning the vagaries of federal prosecu­
tion policy in exercising their authority to detain suspects on reasonable suspicion
that a criminal violation of the INA has occurred. Such complex assessments may
properly be left to the federal officers who are responsible for making probable
cause and arrest determinations when they arrive at the scene of detention. Thus,
unless the state and local police are privy to firm and specific information that
federal officials will not prosecute INA misdemeanor violations, we believe they
may impose investigative detention based on reasonable suspicion that an alien
has not registered with the INS as required, is not in possession of required reg­
istration documentation, or has illegally entered the United States.
   Although the lack of proper documentation does not, without more, provide
probable cause for arrest based on an illegal entry violation, the Ninth Circuit
has acknowledged that it “ may be some indication of illegal entry.” Gonzales,

   8 T his p oint is w ell-illustrated in Ramirez-Sandovalt 872 F .2d at 1395, w here the N in th C ircuit u p h eld a reasonable
su sp icio n detention based upon circum stances w hich indicated m erely that the o ccu p an ts o f a p ark ed van “ m ay
w ell h ave b een engaged in illegal a c tiv ity ."


                                                              37
                       Opinions o f the Attorney General in Volume 20


722 F.2d at 477. Accordingly, we believe that in appropriate circumstances —
 e.g., where there are other objective indicators of illegal entry, such as the time,
place, and circumstances of the suspect’s movements — lack of proper documenta­
tion may provide grounds for reasonable suspicion that an alien has committed
an illegal entry. Armed with such reasonable suspicion that a federal crime has
occurred, it is appropriate and consistent with relevant precedent for state officers
to detain the undocumented alien for a reasonable period pending an expert deter­
mination of probable cause and suitability for arrest by the Border Patrol or other
INS agents. See Winfrey, 915 F.2d at 217-18. Again, however, such reasonable
detention practices would be vulnerable to challenge on the “ pretext” grounds
invoked in M ountain High Knitting if federal authorities have made it clear that
illegal entry misdemeanors will not be prosecuted and that the sole remedy to
be pursued for such violations is civil deportation.
   Additionally, it is not clear that the California Code’s provision that warrantless
misdemeanor arrests can only be made when the misdemeanor was committed
in the officer’s presence is necessarily applicable to otherwise valid investigative
detentions. In terms, that provision applies only to arrests, see Cal. Penal Code
§ 836(a) (West 1994), and investigative detentions under Terry are legally distinct
from full-fledged arrests. In that regard, the California Court of Appeal described
the California standard for investigative detentions as follows:

        An investigative detention is justified when the facts and cir­
        cumstances known or apparent to the officer, including specific or
        articulable facts, cause him to suspect (1) a crime has occurred and
        (2) the person he intends to detain is involved in the criminal activ­
        ity. (In re Tony C. (1978), 21 Cal.3d 888, 893, 148 Cal. Rptr. 366,
        582 P.2d 957.)

In re C arlos M ., 220 Cal. App.3d 372, 380, 269 Cal. Rptr. 447, 452 (Cal. App.
4 Dist. 1990) (emphasis added). Significantly, the investigative detention standard
requires only reasonable suspicion that a “ crime” has occurred, and not nec­
essarily a felony. Accordingly, while we would defer to the California legal au­
thorities’ interpretations of California law, we believe that alien suspects may be
detained by state officers on reasonable suspicion of a misdemeanor violation of
the INA even though the officer did not personally observe commission of the
offense and therefore could not himself lawfully undertake a warrantless arrest
of the suspect under California law. Although the state officers might not them­
selves be able to arrest the federal misdemeanor suspects — at least absent prob­
able cause that a separate state felony has been committed — their authority to
assist federal officers in doing so is well established.
  3.     Illegal E ntry as a Basis f o r A rrest— the Com plete or Continuing Offense
Issue

                                            38
              Assistance by State and Local Police in Apprehending Illegal Aliens


   As indicated above, special questions have been raised concerning the utility
of the illegal entry statute, 8 U.S.C. § 1325(a), as a basis for detention or arrests
by state officers. In United States v. Rincon-Jimenez, 595 F.2d 1192, 1194 (9th
Cir. 1979), the Ninth Circuit held that illegal entry is not a continuing violation —
 that is, the offense is complete fo r statute o f limitations purposes upon the alien’s
successful entry into the United States. In Gonzales, the Ninth Circuit indicated
that Rincon-Jimenez also stands for the proposition that a § 1325 violation is also
complete “ at the time of entry” for purposes of determining whether the offense
has been committed in the presence of an officer under applicable state law. See
722 F.2d at 475-76. Since § 1325 is a misdemeanor, a California officer cannot
make a warrantless arrest for its violation unless it is committed in his presence.
In light of these considerations, in G ates v. Superior Court, the court held: “ Once
an alien has reached a place of repose within the country, the misdemeanor of
improper entry ends. At that point, an LAPD officer may not arrest for this of­
fense because it did not occur in the officer’s presence.” 193 Cal. App.3d at
216 (emphasis added).
   We should note, however, that aspects of the Supreme Court’s opinion in INS
v. Lopez-M endoza, 468 U.S. 1032 (1984), cast some doubt upon the proposition
that an illegal entry violation is complete upon entry and therefore cannot be con­
sidered a “ continuing” crime that can be observed by an officer after the alien
has cleared the border. In that opinion, the Court stated that the presence of an
unregistered alien who had entered the United States illegally “ without more, con­
stitutes a crime” and that such an alien’s “ release within our borders would im­
mediately subject him to criminal penalties.” Id. at 1047. Notwithstanding the
dissent’s specific invocation of the holding in Rincon-Jimenez, id. at 1057 (White,
J., dissenting), the Court stated, “ We need not decide whether or not remaining
in this country following an illegal entry is a continuing or a completed crime
under § 1325.” Id. at 1047. If the Court were to view an undetected illegal entry
as a continuing crime, the “ committed in the presence” requirement of California
law would present no obstacle to warrantless arrests of illegal entrants by Cali­
fornia officers.
   Absent an authoritative clarifying decision on this issue, however, warrantless
arrests by California state officers for illegal entry violations must be considered
legally invalid when the alien has already completed his entry into the United
States.
   The law is not clear, however, as to exactly when an illegal entry is complete
for purposes of determining whether it has occurred in the presence of the arrest­
ing officer. Without explanation, analysis, or citation of authority, the G ates opin­
ion tersely states that an illegal entry is complete for that purpose when “ an alien
has reached a place of repose within the country,” 193 Cal. App.3d at 216. De­
spite its lack of analysis, this statement remains the most authoritative interpreta­
tion of the California “ in presence” requirement as applied to illegal entry viola­

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                                        Opinions o f the Attorney General in Volume 20


tions. Applying that interpretation, we do not believe that aliens apprehended in
the vehicle in which they have illegally crossed the border would be held to have
reached a “ place of repose” within the United States as long as the apprehension
occurs before the aliens have been delivered to their immediate arrival destination
within the United States. C f United States v. Aslam, 936 F.2d 751, 755 (2d Cir.
1991). Under those circumstances, we believe warrantless arrests would be permis­
sible under the formulation adopted in Gates.
   In any event, we believe that reasonable suspicion that such illegal entry has
occurred enables state officers to detain such alien suspects for reasonable periods
pending evaluation, processing, and possible arrest by Border Patrol officers. That
raises the question of what constitutes a reasonable period for such purposes.

ID. L en gth o f D etention Issues

   In light of the San Diego Police Force policy of limiting the detention of alien
suspects (pending the arrival of Border Patrol assistance) to 20 minutes, you have
inquired whether longer detention periods of, for example, one hour would be
consistent with Fourth Amendment requirements.
   Where the police have probable cause to arrest the alien suspect, periods of
detention lasting one-hour or more would present no constitutional problem. See
U nited States v. M ondello, 927 F.2d 1463, 1471 (9th Cir. 1991) (90-minute deten­
tion of drug suspect upheld where positive canine sniff test had already established
probable cause). The pertinent time limitation in the arrest context is the require­
ment that the arrestee must generally9 be given a probable cause hearing before
a magistrate or judge within 48 hours after arrest. Thus, an alien suspect who
may be legitimately regarded as under arrest may be detained for periods exceed­
ing one-hour pending the arrival of Border Patrol agents or other necessary federal
enforcement resources. However, where the detention follows a mere investigative
stop based on reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968)—
 for example, where probable cause for arrest is lacking and does not materialize
during the stop — detention for an excessive length of time under the cir­
cumstances may violate the Fourth Amendment’s standard of reasonableness.
   In U nited States v. Sharpe, 470 U.S. 675, 685 (1985), the Supreme Court estab­
lished that there is “ no rigid time limitation on Terry stops,” but that a stop
may be excessive if it involves “ delay unnecessary to the legitimate investigation
of the law enforcement officers,” id. at 68 7 .10 As the Court more fully explained
in upholding a 20-minute detention:
    9 T h e te m p o ra l lim itatio n o n d eten tio n of an arre ste e w ithout a m a g istra te 's o r ju d g e’s determ in atio n o f p robable
cau se m a y so m etim e s be less than 48 hours (i.e ., th e delay m ust n e v e r be “ u n reaso n ab le” u n d er the circu m stan ces)
and s o m e tim e s m o re (i.e., w hen th e re is a “ b o n a fide em erg en cy o r o th e r ex trao rd in ary circu m stan c e” )- See County
o f Riverside v. McLaughlin , 5 0 0 U .S . 44, 56-57 (1 9 9 1 ).
   10 W e d o n o t b e lie v e that United States v. Place , 462 U .S . 6 9 6 (1983) estab lish es a h ard rule that a deten tio n
for as lo n g as 9 0 m in u tes, w h eth e r o f luggage o r person, is p er se excessiv e and unreasonable. T h ere, the C o u rt
held th a t th e 9 0 -m in u te d eten tio n o f a suspect’s lu g g a g e to arran g e fo r a canine s n iff test w as ex cessiv e an d u n reaso n ­


                                                                        40
                      Assistance by State and Local Police in Apprehending Illegal Aliens


           While it is clear that “ the brevity of the invasion of the individual’s
           Fourth Amendment interests is an important factor in determining
           whether the seizure is so minimally intrusive as to be justifiable
           on reasonable suspicion,” we have emphasized the need to consider
           the law enforcement purposes to be served by the stop as well as
           the time reasonably needed to effectuate those purposes. Much as
           a “ bright line” rule would be desirable, in evaluating whether an
           investigative detention is unreasonable, common sense and ordinary
           human experience must govern over rigid criteria.

Id. at 685 (quoting United States v. Place, 462 U.S. at 709 (citations omitted)).
  The Court reiterated this pragmatic approach to the length-of-detention issue
in Montoya d e Hernandez, where it upheld the reasonableness of a 16-hour border
detention of a suspected alimentary canal drug-smuggler. As the Court stated:

           Here, respondent was detained incommunicado for almost 16 hours
           before inspectors sought a warrant; . . . . This length of time un­
           doubtedly exceeds any other detention we have approved under rea­
           sonable suspicion. But we have also consistently rejected hard-and-
           fast time limits, Sharpe, supra\ Place, supra, at 709, n.10. Instead,
           “ common sense and ordinary human experience must govern over
           rigid criteria.” Sharpe, supra, at 685.

473 U.S. at 542. However, the 16-hour detention in M ontoya de Hernandez oc­
curred in the border context, and the holding therefore should not be considered
generally applicable to detentions outside the border area.
   Thus, the Supreme Court has expressly rejected the imposition of rigid, arbitrary
time limits upon the permissible duration of detention for Terry stops. Instead,
the reasonableness of the detention is evaluated in light of the particular purpose
of the stop in question and the time “ reasonably needed” to take necessary and
appropriate measures to achieve that purpose. The dispositive question is whether
the detention is “ unnecessarily prolonged.” Sharpe, 470 U.S. at 6 8 5 .11
   Guided by these considerations, various federal courts have upheld Terry deten­
tions ranging in length from 20 minutes to two hours. E.g., Sharpe, 470 U.S.
able u n d er th e circum stances. Id. at 709. The S uprem e C o u rt's subsequent o p in io n in Sharpe, how ever, ex p ressly
lim ited Place's reach by stressing that in Place the police had possessed p rio r k now ledge o f th e su sp e ct's arriv al
tim e, could th erefore h av e m ade advance arrangem ents for m o re expeditio u s pro cessin g , and th u s had n o t acted
diligently in pursuing th e ir investigation. 470 U .S. at 6 8 4 -8 5 . Sharpe thus m akes clear that th e p o lice's ex ercise
o f reasonable diligence, rath er than any arbitrarily-draw n tim e lim it, is the cru cial factor in determ in in g F o u rth
A m endm ent reasonableness in this context.
    11 Sharpe's specific rejection o f rigid, preconceived lim itations on th e du ratio n o f Terry sto p s is co n sisten t w ith
the S uprem e C o u rt’s m ore recently-stated em phasis that Fourth A m endm ent req u irem en ts fo r p ro m p t probable cau se
hearings follow ing w arrantless arrests d o 4‘not im pose o n the S tates a rigid p ro ced u ral fram ew ork. R ather, in d iv id u al
S tates m ay choose to com ply in d ifferen t w ay s.” County o f Riverside, 500 U .S. at 53 (v aca tin g as erro n eo u s a
N inth C ircuit p a n e l's contrary holding that “ no flexibility was p erm itted ,” see id. at 54).


                                                               41
                                    Opinions o f the Attorney General in Volume 20


at 687 (20-minute detention not unreasonable); Bloomfield, 40 F.3d at 917 (one-
hour detention of motorist to await drug-sniffing dog held reasonable); United
States v. Adam s, 39 F.3d 1178 (4th Cir. 1994) (unpublished opinion) (45-minute
detention upheld as reasonable); United States v. Frost, 999 F.2d 737, 741-42
(3d Cir.), cert, denied, 510 U.S. 1001 (1993) (detention of nearly one hour to
await drug dog held reasonable); Courson v. M cMillian, 939 F.2d 1479, 1491
(11th Cir. 1991) (30 minutes not unreasonable for an investigatory stop); Jackson
v. Wren, 893 F.2d 1334 (6th Cir. 1990) (unpublished opinion) (detention for over
two hours to await arrival of DEA agents upheld); U nited States v. Hardy, 855
F.2d 753, 761 (11th Cir. 1988), cert, denied, 489 U.S. 1019 (1989) (50-minute
roadside detention to await drug dog held reasonable); United States v. Davies,
768 F.2d 893, 902 (7th Cir.), cert, denied, 474 U.S. 1008 (1985) (45-minute deten­
tion “ for further questioning and advice from their superiors” held a valid inves­
tigative stop); U nited States v. W illis, 759 F.2d 1486, 1497 (11th Cir.), cert, de­
nied, 474 U.S. 849 (1985); (25-minute detention upheld); United States v. Borrero,
770 F. Supp. 1178, 1189-91 (E.D. Mich. 1991) (70-minute detention by DEA
agents at airport held reasonable).
   It should be noted, however, that an opinion issued by a Ninth Circuit panel
in 1994 suggests a more restrictive approach to the length-of-detention issue. In
United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051 (9th Cir. 1994)
(“ Currency” ), Judge Reinhardt held that the 90-minute detention of a drug sus­
pect’s luggage, pending the arrival of a drug-sniffing dog, was in itself sufficient
to invalidate the seizure under the Fourth Amendment. Relying heavily on the
Supreme Court’s baggage-detention ruling in P lace — while seeking to minimize
the Court’s subsequent emphatic rejection of “ rigid time limitations” in
S h a rp e 12 — the court adopted the view that the Place opinion established an
“ outer boundary of permissible seizures” that falls “ somewhere short of 90 min­
utes.” Currency, 16 F.3d at 1060.
   We believe that this aspect of the Currency holding is irreconcilable with the
Supreme Court’s holdings in Sharpe and M ontoya de Hernandez- As demonstrated
in the quotes set forth above, the Sharpe opinion repeatedly and unmistakably
emphasized that the constitutionality of Terry stops may not be mechanically
measured against any pre-ordained time limitation. It held that the establishment
of such a time limitation “ is clearly and fundamentally at odds with our approach
in this area.” 470 U.S. at 686. Yet that is precisely what the panel purported
to ordain in the Currency case (“ the detention of Morgan’s baggage violated the
Fourth Amendment solely because of its length” ). 16 F.3d at 1060.

    l2 T h e Currency c o u rt’s b ro ad application o f th e Place ruling is incom p atib le w ith the S u p rem e C o u rt’s narrow ing
in terp retatio n o f th a t sam e ruling in the Sharpe opinion. See supra note 10. A s the C o u rt explained in Sharpe,
“ [Ijn Place, w e e x p re ssly rejecte d the suggestion that we ad o p t a hard-an d -fast tim e lim it fo r a perm issible Terry
s to p .” 4 70 U .S . at 6 8 6 . T h is em phatic and unam b ig u o u s h o ld in g in Sharpe w as stu d io u sly ignored by the panel
o p in io n in th e Currency ca se. See 16 F.3d al 1060 n.17.


                                                                  42
                      Assistance by State and Local Police in Apprehending Illegal Aliens


  Notwithstanding our view that Currency’s adoption of a fixed time limit for
Terry stops is erroneous — a limit that would fall “ somewhere short of 90 min­
utes,” but certainly no lower than 30 minutes13 — that opinion has neither been
overruled nor directly refuted by subsequent Ninth Circuit opinions. Accordingly,
the approach reflected in the Currency opinion should be taken into account in
formulating enforcement guidelines in this area. Moreover, it is significant to note
that the Currency opinion imposed a 90-minute limitation on luggage detentions;
it is reasonable to expect that that panel might be inclined to impose stricter limita­
tions on detentions of persons.
   However, considered in conjunction with the more authoritative Supreme Court
holding in Sharpe , as well as more permissive Ninth Circuit opinions such as
Mondello, we believe that the Currency opinion should be interpreted no more
broadly than its holding specifically requires — i.e., that investigative detentions
may not exceed 90 minutes in duration. To extrapolate a still more restrictive
rule for the Ninth Circuit (e.g., a rule treating one-hour stops as per se unreason­
able) would ascribe to the Currency opinion more weight than is warranted by
its juridical authority relative to Sharpe, Mondello, and other less restrictive prece­
dents. Cf. County o f Riverside, 500 U.S. at 54-55 (where the Supreme Court re­
jected a comparably restrictive and “ inflexible” Fourth Amendment interpretation
by a Ninth Circuit panel).
   We believe that the necessity of detaining immigration suspects until Border
Patrol/INS agents arrive is analogous to the necessity of detaining drug suspects
pending the arrival of DEA agents or drug-sniffing dogs for purposes of evaluating
the duration of detention for reasonableness. In both situations, the purpose of
the delay is to allow for the utilization of enhanced investigative or enforcement
resources that are necessary to effectuate the legitimate purpose of the investiga­
tive detention. See Winfrey, 915 F.2d at 217 (45-minute detention of drug suspects
by local officers to await arrival of federal DEA agents upheld, where “ [t]he
sheriff’s deputies were not trained as drug agents and needed the DEA agents’
expertise to confirm or dispel their suspicions” ). Accordingly, the precedents up­
holding various periods of detention as reasonable to permit the arrival of DEA
agents or drug-sniffing dogs provide valid guidelines for determining a reasonable
period of detention in the immigrant suspect situations posed here as well. Based
on those precedents, we believe that if Border Patrol agents exercising reasonable
diligence require 45 minutes to one hour to reach the scene of detention, detentions
of that length would be sustainable under Sharpe where there is reasonable sus­
picion that the detained aliens have violated the federal immigration laws. We
caution, however, that when Border Patrol Agents do not promptly arrest the de­

    13 See Mondello, 9 2 7 F.2d at 1471, w here an o th er N inth C ircuit panel (T rott, J.) upheld the reaso n ab len ess o f
a 30 -m in ute investigative stop to perm it the arrival o f drug-detecting dogs. T h e re is n o su g g estio n in Currency
o f disag reem ent w ith Mondello's ap p ro v al o f a 30-m inute Terry detention.


                                                            43
                       Opinions o f the Attorney General in Volume 20


 tainees, the additional period of detention required by them should be counted
 in calculating the permissible duration of detention.
    P olice Force Policies. We note that further complications may arise in this area
 from the language contained in written guidelines or policies used by state or
 local police forces. For example, if such guidelines specify that subjects may only
be detained based on reasonable suspicion of criminal activity that is unrelated
to the immigration laws, the legal basis for detentions pending the arrival of Bor­
der Patrol agents could be undercut. Sharpe requires that an extended Terry deten­
tion must be related to “ the law enforcement purposes to be served by the stop,”
470 U.S. at 685, and Border Patrol assistance is obviously not needed to deal
with criminal activity unrelated to immigration status.
   It is our understanding that the need for expanding the maximum alien-suspect
 Terry detention period from 20 minutes to as long as one-hour is premised upon
the time required for Border Patrol agents to arrive on the scene to further inves­
tigate and process the INA violation. Under Sharpe, such extended detention must
be related to the law enforcement purposes to be served by the stop or the further
reasonable suspicions arising during the stop. However, if a Police Force policy
states that detentions may only be made for non-immigration enforcement pur­
poses, detentions imposed to await the Border Patrol would be vulnerable to chal­
lenge based on the limiting language of the policy. To minimize this complication,
state and local police forces could be urged to modify their policies or guidelines
to remove provisions indicating that Terry stops and detentions of undocumented
aliens must be based on reasonable suspicion of criminal activity that is unrelated
to immigration status or enforcement of federal immigration law.
   In sum, we conclude that “ reasonable suspicion” detention of undocumented
aliens by local police for periods in the range of 45 to 60 minutes should comply
with Fourth Amendment requirements when that much time is required to enable
Border Patrol agents to arrive at the scene exercising reasonable diligence. This
assessment presumes that the involved local police force does not disavow any
purpose of assisting federal enforcement of the immigration laws in making such
stops. Although the Supreme Court’s Sharpe opinion expressly repudiates any
rigid time limitation on reasonable stops under Terry, we caution that the Ninth
Circuit panel opinion in the Currency case has held that stops of 90 minutes,
and perhaps less, are per se unreasonable under the Fourth Amendment. Accord­
ingly, we would not recommend adoption of a guideline establishing a period
any greater than 45 to 60 minutes as a benchmark for maximum permissible deten­
tion periods. Moreover, any guidelines or benchmarks adopted in this area should
stress that the maximum permissible period is premised upon the assumption that
such a time period is needed to allow for the arrival and assistance of Border
Patrol agents or other necessary support resources. Guidelines or rules should indi­
cate that extended detention periods ranging roughly from fifteen minutes to an
hour are only justified when that much time is genuinely needed to carry out
                                            44
              Assistance by Stale and Local Police in Apprehending Illegal Aliens


the permissible objectives of the stop. Allowing for the arrival of Border Patrol
agents to properly handle the suspected violation of federal immigration law pro­
vides such justification.

E. Transportation o f A liens by State/L ocal Police

   Given the difficulties of Border Patrol agents promptly reaching the scene
where state officers have stopped alien suspects, you have asked whether it would
be lawful for the state police to transport the suspects to the federal officials in­
stead. The constitutional issue is whether such involuntary transportation would
necessarily transform a valid investigative detention into an arrest that would vio­
late the Fourth Amendment in the absence of probable cause.
   In Hayes v. Florida, 470 U.S. 811 (1985), the Supreme Court held that the
line between investigative detention and full-fledged arrest is crossed when the
police “ forcibly remove a person from his home or other place in which he is
entitled to be and transport him to the police station, where he is detained, al­
though briefly, for investigative purposes.” Id. at 816. Similarly, in United States
v. Recalde, 761 F.2d 1448 (10th Cir. 1985), the court upheld the Fourth Amend­
ment claims of a drug suspect who “ was taken from a public highway without
his consent and transported five miles to a police station, where he was placed
in a small room for further investigation and questioning.” Id. at 1456. The Ninth
Circuit invoked the Supreme Court’s opinion in D unaway v. New York, 442 U.S.
200 (1979), to the same effect in Gonzales v. City o f Peoria, 722 F.2d at 477:

       If the seizure involves anything more than the brief and narrowly-
       defined intrusion authorized by Terry, it must be justified by prob­
       able cause. Dunway, 442 U.S. at 212; Brignoni-Ponce, 422 U.S.
       at 882. Dunway makes absolutely clear that where the defendant
       is transported to the police station and placed in a cell or interroga­
       tion room he has been arrested, even if the purpose of the seizure
       is investigatory, rather than accusatory. Because such a seizure con­
       stitutes an arrest, it must be supported by probable cause.

Id. at 477 (some citations omitted). See also United States v. Obasa, 15 F.3d
603, 608-10 (6th Cir. 1994) (holding that a detention following a highway taxi
stop ripened into an arrest when the defendant was searched, given Miranda warn­
ings, and transported back to the airport police station). These opinions reflect
the view that the involuntary transportation of Terry detainees to a confined and
coercive setting for further interrogation or investigation transforms the detention
into an arrest, and can therefore be sustained only on the basis of probable cause.
  Other opinions, however, have recognized that special circumstances may some­
times permit the limited transportation of Terry detainees without entailing an

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                       Opinions o f the Attorney GeneraI in Volume 20


unconstitutional arrest. The circumstances justifying such transport were summa­
rized by the Ninth Circuit in U nited States v. Baron, 860 F.2d 911 (1988), cert,
denied, 490 U.S. 1040 (1989), following a survey of the precedents:

       The principles that we distill from these cases are that the police
       may move a suspect without exceeding the bounds of the Terry-
       stop when it is necessary for safety or security reasons, when it
       is the lea st intrusive m ethod available to achieve the legitimate
       g oals o f the stop, and when moving the suspect does not make
       the circumstances of the detention so coercive that the detention
       becomes indistinguishable from an arrest.

Id. at 915-16 (citations omitted; emphasis added).
   Several recent California opinions have also recognized that transportation of
a detained suspect may be authorized on less than probable cause where it is
reasonably necessary to accomplish quickly the purposes of the detention. In re
Carlos M ., 220 Cal. App.3d 372, 269 Cal. Rptr. 447 (1990); In re Starvon, 29
Cal. Rptr.2d 471 (Cal. App. 2 Dist. 1994). In In re C arlos M., the court rejected
arguments that the handcuffing and forced transportation of a juvenile sexual as­
sault suspect to a hospital for identification by the victim were beyond the scope
of a Terry stop and transformed the detention into a de facto arrest. In so holding,
the court stressed that the officers were unable to obtain the suspect’s consent
to the transport because he spoke only Spanish and the detaining officer spoke
no Spanish. The court also noted that alternative arrangements for bringing the
victim to the scene of the detention would have required a two-hour delay. Taking
all these facts into account, the court concluded that the transportation of the de­
tained suspect was reasonable.
   The leading decisions invalidating transportation of detainees have frequently
stressed the coercive atmosphere of the place to which the suspects are trans­
ported— i.e., “ the coerciveness created by isolating a suspect in a private space
controlled by the police,” Baron, 860 F.2d at 916 — rather than the act of trans­
porting per se. We also consider it significant that both Baron and In re Carlos
M. stressed the point that transporting detainees may be justified where it is the
least intrusive means to achieve the legitimate goals of the investigative detention.
   Where alien suspects are validly detained on reasonable suspicion of an immi­
gration crime, the detention may be reasonably extended in order to permit Border
Patrol agents to make an expert assessment of probable cause and propriety of
arrest. Cf. Winfrey, 915 F.2d at 217-18. In some situations, the Border Patrol’s
assistance may be more promptly and safely obtained by transporting the aliens
to the agents rather than by awaiting the latters’ arrival (e.g., where their duty
requirements make it unworkable for them promptly to leave a particular location
when called by the state police). In those particular circumstances, we believe

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                       Assistance by State and Local Police in Apprehending Illegal Aliens


that transporting the suspects a reasonable distance to the agents could properly
be viewed as “ the least intrusive method available to achieve the legitimate
goals” of the detention, Baron, 860 F.2d at 915, and would not violate the Fourth
Amendment. This conclusion assumes that the ensuing interrogation or assessment
by the Border Patrol agents would take place in an unconfined or “ noncoercive”
location rather than in an enclosed or coercive setting such as a police station.
Compare Gonzales, 722 F.2d at 477 (stressing that transporting suspects to police
station and placing them in a cell or interrogation room results in an arrest, even
if the purpose is “ investigatory rather than accusatory” ).

F. Deputation o f State O fficers to Enforce F ederal Im m igration L aw s

   You have also inquired whether state and local law enforcement personnel may
be formally deputized or cross-designated as federal officers by the Attorney Gen­
eral in order to enhance their authority to enforce the immigration laws. So depu­
tized, such personnel would be empowered to make warrantless arrests of illegal
immigration suspects and perform certain other INA enforcement tasks that they
might not otherwise be authorized to do in their capacity as state officers. 14 We
conclude that the state officials could be deputized for these purposes, but it would
be in the capacity of Deputy U.S. Marshals exercising special authority to enforce
the immigration laws conferred on the U.S. Marshals Service by the Attorney
General.15
   This office has previously opined that there is adequate statutory authority for
special deputations of state and local law enforcement officials (including mem­
bers of the State Militia) for purposes of assisting federal law enforcement in
a mass immigration emergency. See Memorandum for David Nachtsheim, Emer­
gency Planning Coordinator, Immigration and Naturalization Service, from Walter
Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Operation
Distant Shore D raft Plan (Oct. 15, 1993). By special deputations, we referred
to temporary designations as Deputy U.S. Marshals under the provisions of 28
U.S.C. §§ 561(f) and 566(c).

    14 A ssum ing state o r local authorities agree to the federal deputation o f th e ir o fficers, an d that such d ep u tatio n
is com patible w ith th e ir status u n d er C alifornia law , state law restrictions that w ould o th e rw ise bar en fo rcem en t
actions that D eputy U .S. M arshals are authorized to perform under federal law w o u ld be o v errid en by the S u p rem acy
C lause in the case o f state officers d u ly deputized under 28 U .S.C . § § 5 6 6 (c ) o r 561(f). See U .S. C onst, art. VI,
cl. 2.
    15 Individual state officers could also presum ably be assigned on detail to th e D epartm ent o f Justice ( “ D ep art­
m e n t” ) o r IN S under the appropriate provisions o f the Intergovernm ental P ersonnel A ct ( “ IP A ” ), 5 U .S.C . § § 3 3 7 2 ,
3374. It is o u r u n d erstanding that details under th e IPA generally involve the tem p o rary assig n m en t o f individual
em ployees to full-tim e d u ty in a federal agency, rather than the conferring o f sp ecial federal au th o rity to be ex ercised
within the context o f the o ffic e r’s ongo in g state law enforcem ent duties. H ow ever, as fu rther provided in the IPA,
“ T he supervision o f th e duties o f su ch an em ployee m ay be governed by ag reem en t betw een the F ederal agency
and the S tate o r local governm ent co n c ern ed .” 5 U .S.C . §3 3 7 4 (c). A cco rd in g ly , if the p ertin en t state an d local
officials w ere agreeable, w e see no reason why the IPA could not be used as au thority fo r detailing d esig n ated
state officers to IN A enforcem ent operations insofar as the D epartm ent, the IN S, an d the relev an t state au th o rities
considered it useful to d o so.


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                                      Opinions o f the Attorney General in Volume 20


  Under such arrangements, we believe the Attorney General should first confer
special authority to enforce the immigration laws upon the Director of the U.S.
Marshals Service (“ USMS” ) under the provisions of 8 U.S.C. § 1103.16 The Di­
rector of the USMS (“ DUSMS” ) could then, in turn, deputize state and local
officials to assist him in his charge to enforce the immigration laws under the
provisions of either 28 U.S.C. § 561(f) 17 or, more probably, 28 U.S.C. § 566(c).
The Department of Justice regulations implementing those statutory provisions
specifically provide that the DUSMS is authorized to deputize “ [s]elected federal,
state, or local law enforcement officers whenever the law enforcement needs o f
the U.S. M arshals Service so requ ire.” 28 C.F.R. §0.112(2) (1995) (emphasis
added). Although the “ law enforcement needs” of the USMS would not normally
extend to alien interdiction, that jurisdictional gap would be filled by the Attorney
General’s special assignment of INA enforcement authority under 8 U.S.C. § 1103.
   This very approach was followed in August 1994, when the Deputy Attorney
General (exercising authority delegated to her by the Attorney General) issued
an order empowering the DUSMS to deputize Florida law enforcement officials
as Deputy U.S. Marshals so that they could exercise INS enforcement responsibil­
ities in the event of an immigration emergency. Under the order (which was effec­
tive for a period of one year), INS enforcement authority was first delegated to
U.S. Marshals and U.S. Deputy Marshals under 8 U.S.C. § 1103, including the
power to detain and arrest, for deportation or exclusion, persons entering or
present in the United States in violation of law. The order went on to authorize
the DUSMS to deputize and designate Florida law enforcement officers to exercise
those same INS enforcement powers — specifically including the authority to
make warrantless arrests and detentions for purposes of deportation — “ pursuant
to the direction of officers of the [INS].” Provision was made for Florida law
enforcement officers to be sworn in as Deputy U.S. Marshals “ immediately upon
the commencement of a mass immigration emergency.” Whether or not such ar­
rangements would be considered practicable or desirable in other areas of massive
illegal immigration, we are not aware of any reason why they could not be law­
fully undertaken pursuant to the same statutory authorities.

                                                                             TERESA WYNN ROSEBOROUGH
                                                                               D eputy Assistant Attorney General
                                                                                    Office o f Legal Counsel

    16U n d e r 8 U .S .C . § 1 1 0 3 , th e A ttorney G e n e ra l is authorized to con fer o n any em p lo y ee o f the U n ited States,
w ith th e co n sen t o f th e h ead o f th e D epanm ent o r o th e r independent estab lish m en t th at em p lo y s su ch person, >4any
o f th e p o w ers, p riv ileg e s, o r duties conferred o r im posed . . . u p o n O fficers . . . o f the [Im m ig ratio n and N aturaliza­
tio n ] S e rv ic e .”
    17 A p e rsu asiv e ca se c a n b e m a d e that d e p u ta tio n s b ased upon 28 U .S.C . § 561(f) are on ly p erm itted w hen the
p e rso n to be d ep u tized is m a d e an employee o f th e U SM S — a co m plicatin g ad m in istrativ e p ro cess that w ould seem
im p racticab le in th e ca se o f state an d local p o lic e personnel. S p ecial dep u tatio n s o f state and local p o lice personnel
w o u ld th e refo re b e m ore realistically grounded u p o n the authority o f 28 U .S.C . § 566(c).

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