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Ariz. Police Checked Immigration Status Before Law

Law-enforcement officers along the border approached and detained people suspected of recently crossing into the country illegally even before Arizona's tough new immigration law.

One of SB 1070's most contentious provisions requires local officers to try to check legal status anytime they stop someone and then come to suspect that person is not authorized to be in the United States.

But in the last three years, Southern Arizona agencies called the Border Patrol in more than 80 cases when they didn't suspect a state or local offense -- or at least none they recorded. And in a handful of reports, officers said they approached people for looking like a "UDA," an undocumented alien.

The Arizona Daily Star reviewed immigration-related records from 13 area departments as part of its analysis of the impact of SB 1070. The stops that made no mention of a state or local offense took place both before and after the so-called "show me your papers" provision took effect in September 2012 and happened most frequently in areas closest to the border.

Police chiefs and sheriffs defend "consensual contacts" -- engaging someone in a voluntary conversation -- and sometimes using information from that contact as the basis for calling the Border Patrol. They say they don't specifically go after illegal immigrants and in many cases respond to border crossers lost in the desert.

Especially along the border, officers consider immigration referrals a professional courtesy to federal agents and a token acknowledgment of their interdependency.

Officers take an oath to uphold not only local laws, but also federal ones. It's their job to look for people and behaviors that seem out of place.

"We have a responsibility to be curious, and unfortunately, suspicious," Santa Cruz County Sheriff Tony Estrada said.

REASONS PEOPLE ARE STOPPED

It is illegal for police to stop someone based on race or national origin, but some of the factors Arizona officers are allowed to consider in developing reasonable suspicion of unlawful status are just a small step away.

Among them are dirty clothes, outfits that are fashionable in Mexico and poor English skills.

People approached in consensual-contact cases fit a common profile in police reports: Hispanic men from southern Mexico who speak little English and are dressed in soiled clothes. They are often walking or sitting in the shade.

Some people referred to the Border Patrol were coming out of the hills or were in an urban area where people regularly jump the border fence. Others were walking into J.C. Penney or Circle K or simply strolling down the sidewalk.

Officers often cited nervousness and glances toward the ground as a reason for initiating a conversation, which almost always starts with a request to see identification. Pedestrians are not required to carry ID and legally can choose whether to talk or walk away when an officer approaches them on the side of a street.

But civil-rights advocates say few people know that -- and many of those ultimately referred to the Border Patrol showed a foreign ID.

"When somebody is approached by an armed law enforcement official, many people assume that they are being stopped and they are not necessarily free to just ignore the questions and walk away, even though they are," said James Lyall, an attorney with the American Civil Liberties Union in Tucson.

The officer is under no obligation to explain that responding or showing ID is voluntary.

"If you are not suspected of a crime, you do not have to say anything to an official, and if you are suspected of a crime, you only have to give your name," Lyall said. "People have the right to remain silent and don't necessarily know that."

In May 2012, a Douglas police officer approached Efrain Calvo Herrera while he sat on a bench outside the Oasis Bar, near a food pantry.

In his report, the officer wrote that Herrera was wearing muddy work boots and more than one pair of pants, with the outer layer turned inside out. He wrote that Herrera spoke little English.

Based on that information, the officer called the Border Patrol. He made no mention in the report of any state or local violation.

Herrera got antsy as the officer kept asking questions and refused to stay seated while the officer approached a group of men Herrera said included his brother.

Soon, three officers were at the scene. Herrera ran, and an officer tried to use a Taser to stop him.

He was taken into Border Patrol custody after agents determined the Oaxaca native entered the country illegally.

SOME STOPPED ONLY FOR IMMIGRATION STATUS CHECKS

Some of the incident reports the Star reviewed suggest more explicitly the only reason officers stopped someone was to enforce immigration law.

In one 2010 case, a Cochise County sheriff's deputy wrote: "Believing they were UDAs made contact with them and conducted a FI (field interview). Learned they were both Mexican nationals. Contacted dispatch to request BP meet me at substation."

He didn't detail how he determined unlawful status.

In another case that year, the same deputy wrote: "Traveling southbound observed male subject walking northbound directly in front of Longhorn Tavern. Suspected to be possibly UDA. Contact made with subject at which time I determined he was UDA. Transported to CCSO substation in Elfrida and BP was advised to meet with me. BP took custody."

In a third, he wrote: "While on patrol, observed a male subject seated on a bench next to the produce wagon. Believing the subject was possibly a UDA, conducted a FI. Upon speaking with subject, discovered he was in fact UDA. BP contacted and advised since I was reasonably close to BP checkpoint, would transport him to location."

Cochise County Sheriff Mark Dannels, who was elected in late 2012, didn't respond to questions about whether the deputy acted appropriately at the time or under today's standards. Speaking in general, he said the elements that make up reasonable suspicion of unlawful status should be included in a report.

Cochise County's 86 deputies referred at least 34 people to the Border Patrol in cases that began as consensual encounters over the past three years.

DEBATING THE LEGALITY OF DETAINING SOMEONE

Developing reasonable suspicion that a person is in the country illegally doesn't necessarily mean a local law-enforcement official can detain him.

Officers need to suspect a crime to hold someone or transport him to the nearest Border Patrol station.

While jumping the fence is a crime, being in the country illegally after overstaying a visa is a civil violation -- one that local officers don't have the authority to enforce. All they can do is let the Border Patrol know about it.

If the Border Patrol says agents are on their way and asks the officer to detain someone accused only of a civil immigration offense, it's a gray area whether the officer can do that, and how long of a wait would be considered reasonable, said Gabriel Chin, a professor at the University of California-Davis School of Law. The question hasn't yet been litigated.

In most cases the Star reviewed, an officer held the suspect until the Border Patrol arrived. Because there are so many agents along the border, waiting time is rarely an issue, law-enforcement leaders said. But officers rarely record waiting times in their incident reports.

Especially in stops far from the U.S.-Mexico line, Border Patrol agents don't always arrive within a window that could be justified as "reasonable," the legal standard.

In December 2012, Martin Diaz Felix was walking along the side of busy North Oracle Road in Oro Valley when an officer stopped him for walking in the same direction as traffic.

The officer asked for an ID, and Felix showed him a card issued by Southside Worker Center, a program of the Southside Presbyterian Church that supports day laborers. When the officer asked where he was going, Felix said he was picking up a check for a construction job.

After a records check showed he had never had an Arizona license and he couldn't provide a passport or visa, Felix confessed he was in the country illegally.

The officer handcuffed him and called the Border Patrol, which estimated an agent would be there within 30 minutes. More than 50 minutes later, the agent still hadn't arrived, so the officer let Felix free, telling him to cross the street and walk against traffic.

The Border Patrol picked him up five minutes later down the road.

Copyright 2014 - The Arizona Daily Star, Tucson

McClatchy-Tribune News Service

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