While Padilla held that effective assistance of counsel requires competence in immigration-related collateral consequences for clients who are accused of state crimes, recent policy shifts in the federal administrative context are beginning to elevate novel search and seizure issues beyond clients’ typical interactions with law enforcement; thus, effective assistance requires competency in that context too. Specifically, some clients are appearing in state court due to the service or attempted service of administrative, rather than judicial, warrants, which raises several questions novel to most busy state practitioners.
As a threshold matter, simply existing is usually not illegal. Some prosecutors have argued that unlawful presence in the United States demonstrates ongoing criminal activity under 8 U.S.C. § 1325, which makes it a crime for a non-citizen to enter or attempt to enter the U.S. in an unauthorized manner. But courts have rejected that argument, clarifying that the offense of illegal entry in § 1325 “is consummated at the time of entering the United States” and is not “a continuing offense.” United States v. Rincon-Jimenez, 595 F.2d 1192, 1194 (9th Cir. 1979); United States v. Corrales-Vazquez, 931 F.3d 944, 953 (9th Cir. 2019); United States v. Cavillo-Rojas, 510 F. App’x 238, 249 (4th Cir. 2013). In addition, that argument improperly assumes that a person who is unlawfully present entered the U.S. in a manner that violated § 1325. That is often not the case because numerous individuals are in the U.S. unlawfully even though they did not violate § 1325 upon entry. For example, there is no § 1325 violation when a person enters on a visa and overstays, or when someone is brought to the U.S. as a child.
Second, it is worth remembering that an administrative warrant is issued by an administrator, like an immigration official or agent. This means that the warrant was probably issued by law enforcement itself without judicial review. While many clients seized by these warrants will bypass state court altogether, some will not, either because they were not the intended target but ended up charged based on evidence seized, or because pending state charges must be resolved for a variety of reasons. In any event, the “fruit of the poisonous tree” analysis can get tricky when the “tree,” or precipitating event, was not a judicially issued warrant or even a finding of probable cause.
With or without a warrant, probable cause that a suspect is in the United States illegally does not necessarily equal probable cause that criminal activity is afoot. For example, in United States v. Pacheco-Alvarez, the defendant was stopped for a traffic violation but during the stop admitted to being in the United States illegally. Police detained the defendant longer than necessary for the original purpose of the stop, reasoning that the defendant’s admission justified further detention. The Court disagreed, finding that
Under the totality of the circumstances, the Court concludes that the ICE officers lacked probable cause that criminal activity was afoot when they arrested Pacheco. Pacheco may have admitted to being in the country without permission, but that information, standing alone, does not provide probable cause that he had committed, or was committing, a crime. E.g., Arizona, 132 S.Ct. at 2505; Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 465 (4th Cir. 2013) (“Because civil immigration violations do not constitute crimes, suspicion or knowledge that an individual has committed a civil immigration violation, by itself, does not give a law enforcement officer probable cause to believe that the individual is engaged in criminal activity.”); United States v. Garcia–Rivas, 520 Fed. Appx. 507, 509 (9th Cir. 2013) (per curiam) (“Our law is clear that illegal presence in the country is not sufficient to support a finding of probable cause of suspected criminal activity.” (collecting cases)).
227 F. Supp. 3d 863, 893 (S.D. Ohio 2016).
Of course, proper service of administrative warrants can be appropriate when done in good faith, and can even support the search-incident-to-arrest exception to the 4th Amendment’s warrant requirement. For example, in Abel v. United States, a non-citizen was arrested pursuant to an administrative warrant. 362 U.S. 217 (1960). The defendant in that case claimed that his arrest pursuant to an immigration warrant was a sham undertaken to permit the government to search his belongings, and therefore an unreasonable seizure of his person. The Court upheld the search based on the trial court’s factual finding that his arrest was neither directed nor supervised by criminal law enforcement, and that the immigration officials had treated the defendant the same as any other deportable non-citizen. Id. at 226–28.
The Abel court was clear, however, that when the administrative warrant is served to purposely bypass the protections of criminal court, the fruit of the poisonous tree mandates exclusion. For example, in United States v. Madrid-Quezada, ICE agents served an administrative warrant on the defendant as a part of an operation designed to criminally prosecute felons without valid immigration status. On that basis, the Court found that the administrative warrant was impermissibly used as a pretext to gather evidence of criminal activity and effectively circumvented the necessary procedural protections afforded by the Constitution. 403 F. Supp. 3d 1016, 1031 (D.N.M. 2019).
Of course, all cases are fact specific and could involve complications not mentioned in this blurb. But the case law makes clear that the 4th Amendment issues are potentially viable and ripe for litigation.