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ACLU SoCal - Letter Re Lexipol Policy On “Immigration Violations”, 2017

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April 12, 2017
Bruce Praet, Chairman
Lexipol, LLC

Lexipol Policy On “Immigration Violations”

Dear Mr. Praet,
It has come to our attention that your company has provided legally erroneous policy
language on the enforcement of “Immigration Violations”—Policy No. 428/429 (“the Policy”)—
to a number of California law enforcement agencies. (See attached.) We strongly urge you to
revise the Policy so that it comports with current law, and to promptly rescind and replace the
products you have already provided to law enforcement agencies in this state.
The Policy’s provisions on detention and arrest are defective in several ways: (1) the
Policy authorizes police officers to make arrests for misdemeanors committed outside their
presence, contrary to the California Penal Code and federal law; (2) the Policy encourages
officers to detain individuals for federal crimes on less than reasonable suspicion and make
arrests unsupported by probable cause when officers suspect a violation of civil immigration law;
and (3) the Policy incorrectly suggests that officers may systematically consider English
proficiency and even race as a basis for reasonable suspicion of a crime. We discuss each of
these problematic features of the Policy in detail below.
(1) The Policy authorizes police officers to make arrests for misdemeanors committed
outside their presence, contrary to the California Penal Code and federal law.
California Penal Code § 836 sets forth the circumstances in which officers may make
warrantless arrests. Per Penal Code § 836(a)(1), an officer may make a warrantless arrest for a
misdemeanor offense only when he or she has probable cause to believe the person has
committed the offense in his or her presence. See, e.g., Mercer v. Dep't of Motor Vehicles, 53
Cal. 3d 753, 769 (1991) (warrantless arrest for misdemeanor DUI unlawful where arresting
officer did not see arrestee driving); see also United States v. Di Re, 332 U.S. 581, 591 (1948)
(state law’s in-presence requirement for warrantless arrests applied to arrest for federal crime).
The Policy contradicts Penal Code § 836(a)(1) by purporting to authorize officers to make
arrests for any “criminal immigration violation,” without excluding misdemeanors committed

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outside the arresting officers’ presence. See Policy § 428.4.2 (authorizing officer to “continue” a
detention upon “probable cause” of a criminal immigration offense); id. § 428.4.3 (authorizing
officer to take a person into custody where there is probable cause of a criminal immigration
offense). The Policy suggests that officers may arrest individuals for misdemeanor offenses
generally, see Policy § 428.4.2, and specifically for the misdemeanor offense of improper entry.
See Policy § 428.4.1 (“An individual who enters into the United States illegally has committed a
misdemeanor (8 USC § 1325(a))”.) The Policy does not, however, mention California’s “inpresence” requirement for misdemeanor arrests. Furthermore, Lexipol has distributed the Policy
to California agencies that do not operate on the U.S.-Mexico border or any other international
point of entry. It is physically impossible for officers in those localities to witness a violation of
§ 1325(a) occurring in their presence.1 Thus, the Policy encourages officers to unlawfully arrest
individuals for misdemeanor offenses committed outside their presence. See Gates v. Superior
Court, 193 Cal.App.3d 205, 216 (1987) (“Once an alien has reached a place of repose within the
country, the misdemeanor of improper entry ends. At that point, an LAPD officer may not arrest
for this offense because it did not occur in the officer's presence.”).
(2) The Policy encourages officers to illegally detain individuals for federal crimes on
less than reasonable suspicion and make arrests unsupported by probable cause,
when they suspect a violation of civil immigration law.
Mere unauthorized presence in the United States is not a criminal offense. Arizona v. United
States, 132 S.Ct. 2492, 2505 (2012); Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir.
2011). Reason to suspect that person is not lawfully present cannot, therefore, supply the basis
for reasonable suspicion of a crime. See Melendres v. Arpaio, 989 F. Supp. 2d 822, 892 (D. Ariz.
2013) (“When [officers] merely suspect[ ] a person of being in the country without authorization,
[they] do[ ] not, in the absence of additional facts that would make the person guilty of an
immigration-related crime, have a basis to arrest or even engage in a brief investigatory detention
of such persons.”).
The Policy superficially recognizes the distinction between the federal misdemeanor that
results when an individual enters the United States illegally and the civil violation that results
when an individual remains in the country beyond an approved period of time. However, the
Policy fails to provide proper guidance to officers on how to practically distinguish mere
suspicion of unauthorized presence from reasonable suspicion of a federal immigration crime.
Instead, the Policy’s guidance on reasonable suspicion conflates civil and criminal immigration
violations and encourages officers to detain without legal justification.
The Policy states that the following factors may be considered in determining reasonable
suspicion of a criminal immigration violation: (a) an admission that the person entered the
United States illegally; (b) reason to suspect that the person possesses immigration
documentation “indicative that the person is not legally present in the United States”; (c) lack of

Unlawful entry is not a continuing offense. Rather, it is completed upon crossing the border.
United States v. Rincon-Jimenez, 595 F.2d 1192, 1194 (9th Cir. 1979).

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English proficiency; and (d) other factors based upon training and experience. Of these factors,
only the first, an admission of illegal entry, is specific grounds for suspecting the crime of
improper entry. A person’s possession of documents suggesting that he or she is not legally
present in the United States may simply show that he or she has legally entered into the country
but remained beyond an approved period of time – a civil violation, as the Policy itself
recognizes. And lack of English proficiency is a factor so tenuously related to any offense that it
should be disregarded as a matter of law, as we discuss further below.
The Policy noticeably omits clear examples of factors that officers may properly rely on to
establish reasonable suspicion of improper entry. See, e.g., U.S. v. Mendoza-Alvarez, No.
13CR1653 WQH, 2013 WL 5530791, at *2 (S.D. Cal., Oct. 4, 2013) (reasonable suspicion of
improper entry existed where agents tracked footprints from border fence directly to detainees);
U.S. v. Vasquez-Olea, No. 10CR1754-LAB) 2011 WL 197582, at *1 (S.D. Cal., Jan. 19, 2011)
(reasonable suspicion of improper entry existed where agent tracked line of muddy footprints,
broken branches, and debris from location where border sensor activated to detainee’s hiding
place in the brush). By omitting examples of such concrete factors, the Policy turns officers’
attention away from the specific crime of improper entry to general speculation about the civil
immigration status of individuals they encounter.
The Policy also authorizes officers to arrest when they have “facts that establish probable
cause to believe that a person already lawfully detained has committed a criminal immigration
offense,” but it does not offer any further guidance on what factors may give rise to probable
cause in this context. The Policy thus suggests that the factors enumerated as grounds for
reasonable suspicion of a criminal immigration offense may be considered part of the basis for
establishing probable cause. For the same reasons discussed, documents suggestive of
unauthorized presence and lack of English proficiency are not proper bases for establishing
probable cause of a crime. See Martinez-Medina, 673 F.3d at 1036 (an individual’s “admission
of illegal presence . . . does not, without more, provide probable cause of the criminal violation
of illegal entry”); see also Santos v. Frederick County, 725 F.3d 451, 465 (4th Cir. 2013)
(“suspicion or knowledge that an individual has committed a civil immigration violation, by
itself, does not give a law enforcement officer probable cause to believe that the individual is
engaged in criminal activity”).
In each of these ways, the Policy encourages officers to violate the Fourth Amendment. See
Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (upholding preliminary injunction
against policy of detaining persons based only on suspicion that they have committed a civil
infraction of federal immigration law); on remand, Ortega Melendres v. Arpaio, No. 07-02513,
2013 WL 2297173, *60-63 (D. Ariz. May 24, 2013) (entering permanent injunction).
(3) The Policy incorrectly suggests that officers may systematically consider English
proficiency and even race to arrive at reasonable suspicion of a crime.
To establish reasonable suspicion, officers cannot rely on factors that apply to large
segments of the general population. U.S. v. Manzo-Jurado, 457 F.3d 928, 935 (9th Cir. 2006).
Where a substantial number of people share a specific characteristic, the characteristic is of little

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or no probative value in the reasonable suspicion analysis, and officers must disregard it as a
matter of law. United States v. Montero-Camargo, 208 F.3d 1122, 1131 (9th Cir. 2000) (en
banc); see also Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1033 (D. Ariz. 2009) (“The
Ninth Circuit has repeatedly rejected profiles that are likely to sweep many ordinary citizens into
a generality of suspicious appearance.”).
According to the 2013 Census, 19% of California’s population has limited English
proficiency. Yet the Policy specifically lists lack of English proficiency as a factor that officers
may rely on to detain individuals on suspicion of a criminal immigration violation. Policy § By instructing officers to rely on a characteristic shared by a significant number of
people in this state, the Policy encourages officers to detain in the absence of sufficiently
particularized suspicion.2 See Manzo–Jurado, 457 F.3d at 932 (individuals’ appearance as a
Hispanic work crew, inability to speak English, proximity to the border, and unsuspicious
behavior, taken together, did not provide a federal immigration officer reasonable suspicion to
conduct a stop).
The Policy also states: “Reasonable suspicion that a criminal immigration violation has
occurred shall not be based on race, color, [or] national origin . . . except to the extent permitted
by the United States or California Constitutions.” Policy § 428.31. This language inaccurately
implies that in some circumstances, officers may appropriately use race, color, or national origin
to determine reasonable suspicion of a crime. But “at this point in our nation's history, and given
the continuing changes in our ethnic and racial composition,” officers should never consider such
factors when determining whether reasonable suspicion exists. Montero-Camargo, 208 F.3d at
898 (Hispanic appearance may not be considered a relevant factor where particularized or
individualized suspicion is required).
By suggesting that officers may systematically consider characteristics widely-shared by
Californians to arrive at reasonable suspicion of a crime, the Policy encourages profiling and
illegal detentions, and runs afoul of the Fourth Amendment. See Melendres, 989 F.Supp.2d at
896 (Sheriff’s policy that “institutionalize[d] the systematic consideration of race as one factor
among others in forming reasonable suspicion or probable cause in making law enforcement
decisions” violated the Fourth Amendment).
Thank you in advance for your attention to our concerns. We are happy to speak with
you in more detail about the actions you can take to bring the Policy into compliance with the
law and to protect your company and the police agencies you serve from liability.

Even assuming, for the sake of argument, that limited English proficiency may be combined
with other factors to establish reasonable suspicion of unauthorized presence (i.e. a civil
immigration violation), it is still too unrelated to the specific conduct underlying any federal
immigration crime (e.g. improper entry) to support reasonable suspicion of a criminal offense.

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Adrienna Wong, Staff Attorney
Jennie Pasquarella, Director of Immigrants’ Rights & Senior Staff Attorney
ACLU of California
Jessica Bansal, Litigation Director
Emi Maclean, Staff Attorney
National Day Laborer Organizing Network
Andrea Guerrero, Executive Director
Alliance San Diego
Angela Chan, Policy Director and Senior Staff Attorney, Criminal Justice Reform Program
Advancing Justice - Asian Law Caucus
Layla M. Razavi, Policy Director
California Immigrant Policy Center
Lena Graber, Special Projects Attorney
Immigrant Legal Resource Center
Ed Medrano
California Chiefs Association
Marty Mayer
Jones & Mayer
Nancy Beninati
Supervising Deputy Attorney General
California Department of Justice