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UNITED STATES v. SEGOVIA-MELGAR

October 5, 1984

UNITED STATES of America
v.
Marcelino SEGOVIA-MELGAR, Maria Angela Carillo, Maria Olympia Segovia, and Maura Diaz--Perez



The opinion of the court was delivered by: JACKSON

 MEMORANDUM AND ORDER

 Four individual defendants are charged in separate informations consolidated for pretrial proceedings with possession of false identification documents of the United States in violation of 18 U.S.C. § 1028(a)(6). All four were arrested in a fourth-floor apartment unit at 1601 Argonne Place, N.W., Washington, D.C., following execution of a search warrant on the premises at approximately 6:00 a.m., Wednesday, April 4, 1984, by three Immigration and Naturalization Service ("INS") agents. The warrant was issued by a U.S. Magistrate at 3:30 p.m. the preceding day, directed to the "special agent in charge or any authorized special agent of the INS," and commanded a search of the premises for "counterfeit identification cards, typewriters, and records of sales of counterfeit identification cards." *fn1"

 Defendants have moved to suppress the articles seized in the course of the search, namely, counterfeit "green cards" and social security cards bearing their respective names, and certain statements made by them to the INS agents before being advised of their rights.

 I.

 The evidence establishes, and the Court finds, that the warrant was properly executed, and that the INS agents acted throughout in good faith. *fn2" The search team, with a bilingual immigration officer in charge, and accompanied by several uniformed Washington, D.C., police officers, knocked on the locked apartment door three times, announcing their identity and purpose in both English and Spanish, and waited for a response after each knock. Hearing nothing, the agents forced the door and, with weapons drawn, entered the apartment, unaccompanied, however, by the police officers. The defendants were all found in the vicinity of the bedroom or bathroom in various states of undress in keeping with the hour. *fn3" Once dressed they were taken to the living room and kept there while the search progressed. The allegedly counterfeit green cards and social security cards were taken from the males' wallets and the females' purses, respectively, found among their personal belongings at various places in the apartment. The defendants were asked their citizenship and each responded, "El Salvador." They were next asked for documents justifying their presence in the United States and each denied having any. They were then arrested as illegal aliens and given appropriate bilingual Miranda warnings. At no time did the INS agents consider the defendants at liberty to leave, and each defendant was at some point handcuffed before departing the premises in custody. They were ultimately transported to INS headquarters and thereafter taken before a U.S. magistrate.

 II.

 Defendants contend that INS agents cannot be authorized by warrant to search for property subject to seizure under the general criminal laws of the United States. The authority of INS agents to search pursuant to warrant derives from the Immigration and Nationality Act, 8 U.S.C. § 1357, which provides, in pertinent part, that any officer or employee of the INS:

 
shall . . . have the power to execute any warrant or other process issued by any officer under any law regulating the admission, exclusion, or expulsion of aliens.

 Id., § 1357(a)(4). *fn4" (Emphasis added). The warrant at issue here does not specify the crime suspected, but the affidavit of the investigator upon which it is based establishes probable cause to believe only that evidence of a violation of a provision of 18 U.S.C. § 1028, the False Identification Crime Control Act of 1982, would be found on the premises to be searched, and the warrant commands a search for and seizure of only that evidence.

 The False Identification and Crime Control Act of 1982 makes no reference to aliens at all. In general, it makes unlawful the possession or transfer of false or stolen "identification documents" by anyone. The government argues here that it is a "law regulating the admission, exclusion, or expulsion of aliens," because its legislative history mentions illegal immigration among the social ills facilitated by the use of spurious credentials. But so also were drug- and arms-smuggling, flight from justice, myriad frauds against business and government, and tax evasion, all of which are committed by citizens and aliens alike. See generally House Report 97-802, at 2-3, 1982 U.S.Code Cong. & Admin.News, pp. 3519, 3520-22. Indeed, virtually any unlawful activity can be facilitated by the deceptions made possible through the use of false identification, not merely illegal immigration; correlatively, illegal immigration may on occasion be "facilitated" by violating any other criminal law which stands in the way. If the False Identification Crime Control Act can be said to be a law regulating the admission, exclusion, or expulsion of aliens, so also might every other criminal statute.

 There are other indications, moreover, that Congress never intended the authority of INS agents to include searches in aid of general law enforcement. INS' mandate under the Immigration and Naturalization Act is primarily one of civil enforcement of the immigration laws, not criminal law enforcement. Blackie's House of Beef, Inc. v. Castillo, 212 U.S. App. D.C. 327, 659 F.2d 1211, 1222 (D.C.Cir.), cert. denied, 455 U.S. 940, 102 S. Ct. 1432, 71 L. Ed. 2d 651 (1981). In considering INS agents' use of a warrant to search commercial premises for employees found to be deportable aliens, the court said:

 Id. at 1218, citing Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S. Ct. 512, 521, 96 L. Ed. 586 (1952). See also Yam Sang Kwai v. Immigration and Naturalization Service, 133 U.S. App. D.C. 369, 411 F.2d 683 (D.C.Cir.) cert. denied, 396 U.S. 877, 90 S. Ct. 148, 24 L. Ed. 2d 135 (1969) ("[section 1357(a)(1)] . . . gives the officers [of INS] the authority to interrogate any alien as to his right to be in the United States. It does nothing more. It ...


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