EDITORIAL

By Robert Phillips, Deputy District Attorney (Ret).

Detaining and Arresting Alleged Illegal Aliens  

The Ninth Circuit Court of Appeals recently rendered an opinion in a case that questions the current president’s (i.e., Donald Trump’s) administration’s practices and tactics used in stopping, detaining, questioning, and/or arresting (and eventually deporting) illegal aliens. (See Perdomo v. Noem (9th Cir. Aug. 1, 2025) 2025 U.S.App. LEXIS 19503.)  Falling far short of reaching any ultimate conclusions, the Court in this decision did no more than uphold the lower (district) court’s conclusion, based upon the plaintiffs’ written allegations (and before any actual evidence is heard), that they are likely to succeed in proving after an evidentiary hearing that the described detentions and arrests of the various listed plaintiffs were not supported by either a reasonable suspicion or probable cause, respectively, to believe that they were in the country illegally or otherwise in violation of the law, as required by the Fourth Amendment.   

The circumstances behind this case were all alleged to have occurred as part of what has been entitled by the federal government as “Operation At Large,” as it is currently proceeding in Los Angeles. The civil defendants are listed as U.S. Customs and Border Patrol agents along with officers from the Enforcement and Removal Operations Directorate of U.S. Immigration and Customs Enforcement, better known simply as “ICE.”  

This ruling out of the Ninth Circuit was immediately appealed to the United States Supreme Court.  The High Court was quick to respond, reversing the Ninth’s Circuit in Noem v. Perdomo (Sep. 8, 2025) __ U.S. __ [__ S.Ct. __; __ L.Ed.2nd __ [2025 U.S. LEXIS 2779], as discussed below.   

I am not fully briefing this case, however, because the only issue on appeal is whether ICE and Border Patrol’s activities in Los Angeles should be stayed (i.e., delayed) pending a final resolution via a full evidentiary hearing.  Also note, by the way, that it is not my intention to get into the politics of this issue, or anything related to it.  As hard as it might be for some to discuss what’s coming down almost daily from the current Trump administration without getting emotionally involved (depending upon your political beliefs), that discussion must be saved for another day and another forum. I’m not here to suggest to anyone what you should believe or the doctrine you should follow on these matters.   

In this lawsuit, the alleged experiences of five individual plaintiffs are described via written affidavits from each where they claim to have been stopped, detained, questioned, and in some cases taken into physical custody (i.e., arrested), under circumstances argued to be short of the “reasonable suspicion” (or, if arrested, “probable cause”) necessary to comply with the mandates of the Fourth Amendment.  The described circumstances leading to their detention (or arrest) are listed in the plaintiffs’ filings as (1) their apparent race or ethnicity, (2) speaking Spanish or speaking English with an accent, (3) their presence at a particular location (e.g., bus stop, car wash, tow yard, day laborer pick up site, agricultural site, etc.), and (4) the type of work the person does. The issue on appeal is whether these four factors—whether alone or when all combined, and whether or not combined with other factors—are sufficient to establish the necessary reasonable suspicion to lawfully detain a person, or, if arrested, probable cause to arrest him. 

In its written decision, the Ninth Circuit agreed with the district (trial) court that the above factors fell short of establishing a reasonable suspicion (let alone probable cause) to believe that the targeted person might be in the country illegally.  As such, the Ninth Circuit held that after actual evidence is presented in a full evidentiary hearing, the plaintiffs are “likely to succeed” in their lawsuit.  As noted above, the civil defendants (i.e., Border Patrol and ICE agents) appealed this conclusion to the United States Supreme Court. 

Remember, by the way, that these were merely the alleged facts in written court filings. Nothing has yet been proven.  In fact, as of this date, no actual evidence (other than sworn affidavits) has been presented.  The case will eventually go back to the federal district court for an evidentiary hearing where the various plaintiffs can be expected to testify and be cross-examined.  The civil defendants will also have the opportunity to introduce evidence to the contrary.  

But now we have input from the U.S. Supreme Court, as noted above.  In a majority (6-to-3) opinion authored by Justice Brett Kavanaugh, overruling the Ninth Circuit, the High Court held that there was in fact, under the circumstances, sufficient reasonable suspicion to stop and detain individuals in the Los Angeles area, based upon the following: 

1. That there is an extremely high number of illegal immigrants in the Los Angeles area (estimated to be some 2 million illegal immigrants out of a total population of approximately 20 million, or 10% of the population in that area);  
    
2. That those individuals tend to gather in certain locations, seeking daily work;  
    
3. That those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and  
    
4. That many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.  

Upon considering the above, and contrary to the Ninth Circuit’s decision, the Supreme Court held that the plaintiffs are unlikely to succeed in proving their allegations that they have been illegally detained or arrested.   

In making this ruling, the Court was also careful to note that; “(t)o be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ when considered along with other salient factors.”    

The issue here, however, was whether a federal district court’s injunction preventing ICE and Border Patrol agents from engaging in their investigative work in the Los Angeles area should be stayed pending appeal.  In ruling that it should be stayed, and thus allowing ICE and the Border Patrol to continue, the Court held that; “(t)he Government has also demonstrated that it would likely suffer irreparable harm if the District Court’s injunction is not stayed.” In so ruling the Court noted that, ‘“[a]ny time’ that the Government is ‘enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’” (quoting Trump v. CASA, Inc. (2025) 606 U. S. ___, ___ [145 S. Ct. 2540; 222 L.Ed.2nd 930]; citing in turn Maryland v. King (2012) 567 U. S. 1301, 1303 [133 S.Ct. 1; 183 L.Ed.2nd 667].) 

The High Court also ruled that in considering these issues, it is necessary to “balance the harms and equities.” In so doing, the Court first noted that, “(t)he interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest.”  To the contrary: “(B)y illegally immigrating into and remaining in the country, they are not only violating the immigration laws, but also jumping in front of those noncitizens who follow the rules and wait in line to immigrate into the United States through the legal immigration process. For those reasons, the interests of illegal immigrants in evading questioning (and thus evading detection of their illegal presence) are not particularly substantial as a legal matter.”  

Also, the Court found that, “as for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U. S. citizens or otherwise legally in the United States.” For these reasons, “the balance of harms and equities favors the Government here.” 

Lastly, the Court discussed the allegations of the use of excessive force by ICE and Border Patrol officers in their contacts with suspected illegal aliens.  The Court was quick to note that this potential problem was not one of the issues being decided here.  Where excessive force is in fact used, other remedies are available to the victims of such force. “(T)he Fourth Amendment’s reasonableness standard continues to govern the officers’ use of force and to prohibit excessive force.” But that’s an issue that must be decided on a case-by-case basis, when and if it occurs.  

The Supreme Court having rendered its opinion, lifting the stay on ICE and Border Patrol activities in the L.A. area, the lawsuit now goes back to the federal district (trial) court for an evidentiary hearing. So the issue (i.e., whether plaintiffs in this case have in fact been illegally detained) is not yet settled.  But until it is, pursuant to the above ruling, Border Patrol and ICE agents are allowed to continue on with their field activities detaining suspected illegal aliens and arresting those who are found to be in the country illegally.  

I have to tell you that I was a bit surprised by this ruling.  My former in-laws (father- and mother-in-law, from a former marriage, both now deceased) pretty much fit the profile of the above detainees (being third generation Mexican-American, with Spanish as their primary language, living in East Los Angeles, and my father-in-law being a carpenter in a furniture making business and my mother-in-law making the best tamales in East L.A.), I would have been surprised if a court ruled that they could be stopped and questioned at random about their right to be in the United States.  But perhaps I too have been falsely indoctrinated, or at least over-sensitized to the issue, by reading too many cases that seem to require a bit more “reasonable suspicion” in order to lawfully stop and detain a person on the street.  Live and learn.