Car Stops, Borders, and Profiling: The Hunt for Undocumented (Illegal?) Immigrants in Border Towns

Abstract

The much-discussed Arizona immigration statute, SB 1070, continues an effort – this time at the legislative level – to broaden the discretionary power of law enforcement. Yet, a fascinating question lies at the base of the public’s pervasive criticism of the Act: where have all the critics been? Numerous Supreme Court cases already allow for law enforcement to engage in the very practice – racial and ethnic profiling premised on “reasonable suspicion” – that has incited the emotions of so many citizens nationwide.

This Article therefore argues that the Arizona’s SB 1070, while notable for the public response to it, is merely emblematic of a much larger and systemic problem that exists because of the collective core holdings from several Supreme Court Fourth Amendment cases. Indeed, law enforcement stops of persons lawfully present in the United States using an “illegal immigrant” profile have existed since the mid-1970s and will remain permissible regardless of the Act’s ultimate fate. Several Supreme Court cases already bestow upon local law enforcement an inordinate amount of discretionary power both on the street and in an automobile. The combination of that power alongside the immigration consequences for a criminal violation provides law enforcement with a level of power and discretion comparable to that bestowed by the Arizona Act. Thus, although citizens may object to its enactment, one thing is clear: SB 1070 does not violate the Fourth Amendment.

Keywords: criminal law, criminal procedure, immigration, removal, undocumented, profiling, Fourth Amendment

JEL Classification: K10, K14