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Dear Editor:

I have taken a look at United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984), to see whether it might support the apparent DOJ plan to have local police enforce the immigration laws on a broad front. In my opinion, it cannot support the proposition that local police have the authority to roam at will and check on the credentials of persons who, in their view, may be EWIs or out of status aliens.

Salinas-Calderon arose from a motion to suppress statements made to a state trooper who had stopped a pickup truck that that was being “driven erratically.” The driver, Salinas-Calderon, was questioned by the trooper, and it was clear that he did not understand English. The wife of Salinas-Calderon, a passenger, stated that he was a Mexican national. The trooper noticed that there were six other passengers under a camper shell, and found that they did not understand English. Salinas-Calderon’s wife stated that they, too, were Mexican nationals. She also said that neither her husband nor his passengers had identification papers or green cards. The trooper did not know how to proceed, and contacted the INS. The motion to suppress was granted by the district court, and that decision was reversed by the court of appeals. The key question was whether the trooper had probable cause to stop and question in the first place, and then to make an arrest on the basis of the information the questioning provided. The reviewing court held that he did: “Applying the objective probable cause test, it is our view (that the trooper) had probable cause to make a warrantless arrest for violation of the immigration laws at this point in time.”

The case suggests this rule: unless an alien is engaged in some conspicuous and unusual behavior (the equivalent of “driving erratically”) there is no probable cause to stop and question him or her, much less to make an arrest for violation of the immigration laws. Salinas-Calderon does not provide authority for the sort of random stopping and questioning of aliens by the local police that the DOJ may have in mind.

Carl R. Baldwin


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