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Appeals Court Creates New Fourth Amendment Rights For Criminal Defendants & Those Subject To Immigration Detainers


In September, the Ninth Circuit made two decisions which arguably created new Fourth Amendment rights for every defendant charged with crimes when surveillance practices lead to evidence being used against them, as well as those who are subject to immigration detention, determining that ICE’s decisions must be reviewed by a neutral magistrate because those subject to ICE immigration detainers are entitled to Fourth Amendment protections. Regardless of which states and courts the Ninth Circuit applies to, law and immigration enforcement has to incorporate these decisions into its practices everywhere, which affects everyone’s rights.

Fourth Amendment Notice Requirements for Surveillance in Foreign Intelligence Contexts

The subject of United States v. Moalin involved four defendants’ convictions for conspiring to send or sending funds to Somalia to support a foreign terrorist organization. However, the complex questions raised in the case involved the US government’s authority to collect data in connection with a foreign intelligence investigation and the rights of criminal defendants when prosecutors use information derived from  this surveillance.

Historically, the government has argued that Fourth Amendment requirements are different in the foreign intelligence context due to the government’s “legitimate need for intelligence information and the protected rights of our citizens.” Specifically, under the Foreign Intelligence Surveillance Act (FISA), procedures for surveillance collection of foreign intelligence information have been overseen by a separate court for separate surveillance warrants. In this case, the issue of whether the Fourth Amendment demands that notice be provided was at issue, where the government vehemently argued – as in many others before it –  that notice cannot be provided, otherwise the ability to collect intelligence information would be compromised.

However, the court held that the Fourth Amendment does require notice to criminal defendants when the prosecution intends to enter any evidence or otherwise disclose any information that was derived or obtained from the surveillance of that defendant, pursuant to the government’s foreign intelligence powers. The court pointed out the difference between the government conducting electronic surveillance of people it believes are located outside of the US without complying with FISA versus intending to use evidence obtained from surveillance in a criminal prosecution, whereby, with the latter, FISA demands that it provide notice to the defendants. As a result, the panel concludes that the government may have violated the Fourth Amendment – and did violate FISA – when it collected data on millions of Americans, which included at least one of the defendants in the case.

ICE Immigration Detainers Require Neutral Probable Cause Review

The Gonzalez v. USICE case involved a US citizen who had an immigration detainer issued against him by ICE based on faulty information the agency pulled from its own database, which incorrectly identified Mexico as his birthplace. As a result, Gonzalez brought a case representing three certified classes that included both current and future individuals subjected to immigration detainers issued by ICE, and the federal judge in the case issued a final order barring ICE from issuing detainers based on inaccurate information obtained from its own databases, concluding that it was unconstitutional for ICE to rely on its own data in making probable cause determinations for such holds.

While the Ninth Circuit overturned the ban on these immigration holds, it did so only due to finding that the scope of the judge’s analysis was insufficient because the district court only based its findings on six out of 16 databases. The panel concluded that, in order to make an overall finding of unreliability, the court had to come up with findings about the entire system of databases, not just identify errors in several of the individual databases in which ICE relied on. As a result, this issue has simply been remanded to the district court, which now needs to make additional findings about the reliability of the database results.

Perhaps most crucially, the panel found that there must be a neutral review of ICE’s determinations to arrest someone, and because the Fourth Amendment requires probable cause to detain or seize someone for a civil immigration offense, it follows that it also requires a probable cause determination by a neutral and detached magistrate to justify continued detention pursuant to an immigration detainer. This is extremely significant in terms of advancing the rights of those subject to immigration detainers.

If You Have Any Questions or Concerns About Criminal Charges, Immigration Proceedings, And/or Your Rights, Contact Experienced Criminal Defense & Immigration Defense Attorney Rashad Hauter

If you have been subjected to an arrest by ICE, or to any criminal charge, having an experienced North Carolina criminal attorney working by your side makes a difference, as any evidence obtained in violation of your Fourth Amendment rights must be withheld. As a former District Attorney and Special Resource Prosecutor that personally tried hundreds of criminal cases, and came to the US as a child, Rashad Hauter has the experience and personal investment  necessary to provide the very best in defense services, and is very passionate about his work as an immigration lawyer. Contact our office today to find out more about our dedicated legal services.



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