Increasingly, state and local law enforcement officers are assisting the federal government in immigration enforcement, whether through formal agreements under Section 287(g) of the Immigration and Nationality Act; through participation in Secure Communities and the Criminal Alien Program; through state laws such as those enacted in Arizona, Alabama, and elsewhere; or through policies promoted by local mayors, sheriffs, and police chiefs. Motions to suppress seek to exclude evidence obtained by such officers in violation of an individual’s constitutional or other legal rights.
State and local law enforcement officers operating under a Section 287(g) agreement arguably are subject to the same regulatory requirements as federal immigration officers, and a violation of those requirements should result in termination of the proceedings in some cases. When state and local law enforcement officers are authorized by statute to carry out specific types of immigration enforcement, they are subject to statutory restrictions under federal law—including but not limited to INA § 287(g). The precise boundaries of permissible conduct have not yet been defined in the case law; this area of law is very much still in flux. When state and local law enforcement officers have violated the Fourth Amendment, a non-citizen may move to suppress evidence obtained through that violation. If successful, such a motion would prevent the evidence from being used in removal proceedings against the non-citizen and, in some cases, may result in the termination of proceedings. In INS v. Lopez Mendoza, 468 U.S. 1032 (1984), the Supreme Court limited the exclusion of evidence in immigration proceedings to “egregious” or “widespread” violations of the Fourth Amendment by federal immigration officers. Id. at 1050-51.
However, there are compelling arguments that evidence obtained through any constitutional violation by state or local officers should be suppressed in removal proceedings and that the limitations in Lopez-Mendoza should be reconsidered. One significant issue that may arise in litigating a motion to suppress is known as the “silver platter” doctrine. Under that doctrine, federal authorities, in federal proceedings, may use evidence obtained as a result of a constitutional violation by state or local officers – so long as federal officers had no involvement in the constitutional violation. In 1960, the Supreme Court overturned the silver platter doctrine as it applied to criminal cases; thus, the exclusionary rule –that is, the rule that evidence obtained through a constitutional violation must be excluded – now applies in federal criminal proceedings regardless of whether federal, state, or local officers committed the constitutional violation. However, the Supreme Court has continued to apply the silver platter doctrine in the context of certain federal civil proceedings. Whether the silver platter doctrine applies in immigration removal proceedings has not yet been decided.