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October 3, 1979

LEONEL J. CASTILLO, et al., Defendants.

The opinion of the court was delivered by: OBERDORFER

This is an action by Blackie's House of Beef, Inc., ("Blackie's") against officials of the Immigration and Naturalization Service ("INS") on account of INS' use, on November 17, 1978, of a magistrate's order or warrant to search Blackie's restaurant and cocktail lounge on 22nd and M Streets, N.W., in Washington, D.C., and to locate, question and remove from there fourteen Blackie's employees, alleged to be deportable aliens. One month earlier, this Court had declared illegal another INS search for deportable aliens at Blackie's, because the warrant invoked by INS had authorized only the search for and seizure of property under Federal Criminal Rule 41. Blackie's House of Beef, Inc. v. Castillo, 467 F. Supp. 170 (D.D.C.1978). On two other previous occasions, INS entered plaintiff's premises without any warrant and seized persons there for deportation. These four searches have resulted in the seizure and forcible removal from plaintiff's premises of 61 persons subsequently subjected to deportation proceedings.

While declaring the earlier search and warrant illegal, the Court concluded on October 13, 1978 that:

There being no imminent threat of further action pursuant to similar warrants by defendants against plaintiffs . . . the Court determines that plaintiff's prayer for equitable relief is premature but viable. *fn1"
In apparent recognition of these conditions for denial of equitable relief and the narrow grounds for the declaration that the earlier warrant was defective, on November 15, 1978, INS filed Ex parte an application for a court order in C.A. 78-787, authorizing another entry into plaintiff's 22nd and M Street restaurant for the stated "purpose of making such search as is necessary . . . in order to locate aliens in the United States without legal authority and take such actions as authorized by the Immigration and Nationality Act." *fn2"
The November 15 application invoked the Court's general jurisdiction created by the Immigration and Nationality Act, made no reference to Federal Criminal Rule 41 and did not seek authority to search for tangible articles or evidence; it requested authority to search the restaurant for deportable aliens and asserted probable cause for a belief that a search would disclose their presence there. Treating the November 15 application as seeking a warrant, Judge Aubrey Robinson referred it to a U.S. Magistrate.
On November 16, 1978, the magistrate entered an "Order for Entry on Premises to Search for Aliens in the United States Without Legal Authority," a copy of which is attached hereto as Appendix A (and hereinafter referred to as a "warrant"). The warrant recited the filing of the application supported by two affidavits, and the magistrate's finding
on the basis of the affidavits that there is probable cause to believe that there are persons who are aliens in the United States without legal authority and subject to expulsion proceedings . . . located on or within the premises described.
On the strength of the finding of probable cause and invoking the Supreme Court's decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973) and sections 103(a), 279 and 287 of the Immigration and Nationality Act of 1952, 8 U.S.C. 1103(a), 1329, 1357, the magistrate's Order of November 16, 1978 authorized defendants:
to enter the premises described during daylight hours and to make such search as is necessary . . . to locate aliens in the United States without legal authority . . . .
The supporting affidavits related the first names of six allegedly deportable Spanish-speaking aliens likely to be present at plaintiff's restaurant during the period in which INS requested the right to search. The affidavits variously reported that plaintiff employed 8, 11, 16, 19 and 30 deportable Spanish-speaking aliens "believed to be of Hispanic descent, some of whom were dressed in a manner believed by the affiant to characterize such persons."
According to the affidavit, one group of 19
had foreign personal characteristics and attire that are native to Hispanics from Central and South America, including dark complexion and hair, foreign-style haircuts and grooming, ill-fitted and inexpensive clothing and foreign-style, inexpensive shoes. They were heard to speak nothing but Spanish. *fn3"
The warrant itself, however, bore no names, first or otherwise, nor any other identifying description of any alien for whom the search was authorized. It gave the persons executing the warrant or those subject to it no direction as to whether the objects of the search of the restaurant were employees, patrons, or passers-by. The warrant did not state nor indicate the number of allegedly deportable aliens involved. *fn4"
The warrant limited the search to daylight hours, thereby excluding the evening, cocktail and dinner period. It made no reference, however, to the nature of plaintiff's business or the interests of employees and patrons who might be present in the restaurant innocently and legitimately at the time of a daylight search and any follow-up on it. There was no recital on the face of the warrant that the magistrate or anyone else had given any thought to or made any judgment about the interests of persons present at the time of the search who were not targets of it.
At 11:12 a.m., November 17, 1978, approximately ten INS officers executed the warrant. Six officers entered the premises at that time; four remained outside and did not enter until the search was nearly complete. In the ensuing 23 minutes the officers located, interrogated, detained, handcuffed and removed from the restaurant 14 allegedly deportable aliens. *fn5" All of the persons so questioned and detained were in the kitchen and utility areas of the restaurant. After removing the 14 from the restaurant, the officers detained them for an additional ten minutes in an alley behind the restaurant while readying them for transportation to the local INS office.
In addition, the officers observed on the premises four other persons whom they believed might be deportable aliens. The officers questioned, and decided not to detain, two of the four. Two others so observed eluded questioning and detention.
The officers originally entering the restaurant observed ten patrons there, as well as other employees. The officers observed four other patrons enter the restaurant while the search was in progress. During the search one officer questioned, but did not detain, one person who appeared to be attempting to leave the public area of the restaurant. At about 11:45 a.m., the search and removal ended and the INS officers left the vicinity of plaintiff's restaurant with their subjects in custody.
Reporters and photographers were present at the time of the search; news stories and photographs were printed prominently in the local press on the day following the search.
As required by the warrant, on November 20, 1978, INS officers filed with the magistrate a "Return On Order Permitting Search of Premises" ("Return"). The return advised that the entry and search had been conducted on November 17; it recited the names and country of origin of fourteen aliens "in the United States without legal authority (who) were found in the premises."
II. Summary
The complaint invokes this Court's jurisdiction under 28 U.S.C. § 1331 to attack the legality of the November 17, 1978, search. The controversy is now before this Court on defendants' renewed motion to dismiss *fn6" and on cross-motions for summary judgment, each supported by statements of material facts, a stipulation of facts and factual admissions in the legal memoranda which have also been filed.
The Court has concluded on the facts here that the search conducted by the INS violated the plaintiff's fourth amendment rights. The warrant failed to identify with sufficient particularity the allegedly deportable persons for whom the INS had authority to search, thereby authorizing an overbroad search of plaintiff's premises, and failed to reflect consideration by the magistrate of the effect of the search, interrogation and seizure upon the plaintiff's business and upon the convenience and safety of plaintiff's patrons and innocent employees. The deficiencies of the warrant could not be cured by the authority of the INS to arrest without a warrant, 8 U.S.C. § 1357(a), or by application of the "plain view" doctrine after the INS legitimately gained access to plaintiff's premises, since the defendant knew when it applied for the warrant that it intended to search for persons not identified in the warrant and seize all persons whom the defendant thought to be illegal aliens.
The claims for damages against the individual defendants can be resolved on their motions to dismiss. The Supreme Court pronouncements relied on here did not so "clearly establish" any duty with respect to the completeness and particularity of warrants that defendants' actions could fairly be attributable to malice or bad faith. By applying to this Court for an order they made a best effort to avoid actions inconsistent with this Court's earlier one. They applied for and relied in good faith on the magistrate's order or warrant authorizing the entry and search and on legal advice as to their statutory authority to act as they did once they gained entry. All of these considerations immunize the individual defendants from ...

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