The Constitutionality of Suspicion

Thesis Statement: The new Arizona Immigration laws are in violation of the United States Constitution.

            Arizona bought the issue of illegal immigration back into the mainstream of national consciousness with the state’s enactment of state Senate Bill 1070, authorizing the use of strict regulations be initiated against illegal aliens by Arizona’s state and local police and law enforcement authorities. The crux of the debate on the law is the adoption of Arizona of a severely belligerent stance against undocumented aliens, thus providing illegal aliens an abhorrence to cooperate with police, the over zealous enforcement of state laws and the Constitutional mandates with regards to immigration laws, and the establishment of guilt to those who are illegally in the United States (Michael Dorf 2010).  The Federal government, led by Homeland Security head Janet Napolitano, are bent on reviewing the constitutional soundness of the state’s law, with critics arguing that the new law will increase incidents of racial profiling and other discriminatory actions (Agence France Press 2010).

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            But overturning a law that was duly enacted is quite difficult. But there are various arguments that can be used to declare SB 1070 as impinging on the American fundamental law. Under the tenet of preemption, a law of the Federal government will take precedence over a state enacted law, as enshrined in Article 6 of the United States Constitution. In short, if any law that was enacted by the states would come into conflict with a Federal statute, then the applicability of the Federal law would supersede that of the state law.  Using this avenue of legal challenge, the Attorney General would have to argue that Federal laws would preempt the Arizona statute (Ryan Witt 2009).

            Another avenue that challengers could take is the issue of the ambiguity of the language of the law. In the opinion of the United States Supreme Court, they have declared that the language of criminal statutes must be unambiguous as to be understood by an average person. If any statute fails to meet this requirement, then, under the ambit of the Supreme Court and the operation of the Constitution, that law will be declared unconstitutional for infringing on the Due Process clause, as enshrined under the Fifth and 14th Amendments. In the provisions of the Arizona law, local police must ask people for identification papers, if they have what is termed ‘reasonable suspicion’ that the person is in the United States illegally (Witt 2009).

            ‘Reasonable suspicion’ was not a term originally coined by Arizona lawmakers; the term was created in the decision of the United States Supreme Court 1968 decision in Terry vs. Ohio. Under the Fourth Amendment, the provision protects the right of individuals against unreasonable searches and seizures, and many aver that the amendment implies that a warrant is needed before one can be subjected to a search by law enforcement authorities. But in the language of the amendment, the provision is silent on the requirements for warrants, and even the instance of probable cause, for all cases of search and seizure. In the opinion of former Chief Justice Earl Warren, any law enforcement official may stop ans search an individual if the police officer if the latter sees actions that may give the officer a reason to assume that the person is armed and poses a threat to the community or to the officers themselves. Though the Terry case did not particularly utilize the term ‘reasonable suspicion’, the succeeding cases

have come to imply that this case was the standard in the application of the term (Dorf 2010).

            Many courts have declined to define the parameters of what comprises ‘reasonable suspicion.’ David Cole, a law professor at Georgetown University, states in his 1999 book, No Equal Justice, there are elements that courts have used as approved for the justification at the arrival of ‘reasonable suspicion’. In the list provided by Cole (1999), he states that when police utilize a scheme to come up with a profile for drug trafficker, they engage in racial profiling. The issue here is that police must be able to articulate, or adequately explain, the bases for their suspicions about the individual they accosted (Dorf 2010).

            Though the decision in Terry is commonly cited as the precedent in the anchoring the standard for using the ‘suspicion’ claim, that declaration must still come under scrutiny in that the finding must be sufficiently explained, and must point to particular actions, that will render the stop justifiable. Anything short of this requirement will render the search, in the opinion that decided in Terry, would invite trespass upon constitutionally enshrined liberties that are founded on unexplainable guesses.  But even if these ‘hunches’ can provide a better indicator than explainable actions, these guesses can eventually backfire, as these guesses can be tainted with racial bias. Even though the requisite of explainable actions hinder police work, they are viewed as a deterrent against over zealous enforcement of laws, thus ensuring a degree of parity and equality in the conduct of enforcing the law (Dorf 2010).

            The conflict over the new statute is seen to spill over from the legislative halls into the courtrooms, where oppositors view to contest this law as an infringement on the ambit of the Federal government and an impingement of civil statutes. Supporters of the measure, enacted by Arizona Governor Jan Brewer, aver that the law meets all legal requisites; opponents argue that the United States government, under the ambit of the Constitution, is the sole entity that can enforce and effect immigration statutes. As earlier mentioned, others fear that with the implementation of the new law, racial profiling and other race discriminatory acts will increase, and scarce Federal resources will be diverted from other pressing national needs. The law will in effect, circumvent the right of an individual against unlawful searches and seizures, guaranteed under the Fourth, and the Equal protection clause, enshrined in the Fourteenth Amendment (Dan Nowicki 2010).

            Under the stringent provisions of the law, it will be construed as a state crime for illegal aliens to be staying within the borders of the state, making Arizona the only state in the Union to have such a statute in its law books.  Racial profiling, echoing the practices of civil rights violations, has garnered stinging rebuke from both sides of the legislative aisle. President Barack Obama has mobilized government officials to monitor the implications of the new law on the area of civil rights (Nowicki 2010). The new law, according to Obama, will decrease the level of resources needed to combat those illegal aliens in the United States who, though also in the country illegally, have committed crimes and must be bought before the bar of justice (Agence 2010).

            Consul General Victor Manuel Trevino Escudero, head of the Mexican government’s  chief representative for the states of Arizona and Nevada, anticipates a mass egress of Mexican immigrants when the law finally takes effect. Escudero has asked Mexicans in the state not to panic and remove their children from schools, and has increased the number of personnel in the consulate to help Mexicans who are either in the United States legally or illegally. Apart from these actions, the Mexican government through its consulate is expected to  file legal opinions, designed to lend support to the various groups challenging the new law (United Press International 2010).

            The first legal challenges against the law were filed in Federal courts in Phoenix and Tucson, signaling what could be a legal conflict that is expected to take years to resolve. Large civil rights organizations and other legal groups declared that they would initiate separate motions that would seek to quash the new statute, part of a frenzy of moves designed to halt the law from ever getting implemented in the state. Martin Escobar, 45 years old and a 15 year law enforcement veteran, avers that the provisions of the law would force him to practice racial profiling methods. In his motion, Escobar argues that the law does not lay specific criteria to utilize in determining who would fit as an illegal alien, and in Tucson’s heavily Latino population coupled with the area’s close location to the Mexican border, the act of questioning people would be solely based on the individual’s ethnic origin, thus making him vulnerable to civil actions (Randal Archibold 2010).

            A number of clergymen stated that vans transporting large numbers of Hispanic members to church would become an undue target of suspicion and possible incarceration, and have lodged with the Phoenix Federal court, asking the judge to rule on the constitutionality of the law before the effectivity of the law, due to be implemented in the summer. The group avers that though the law runs parallel to Federal statutes, thus ensuring no direct conflict, the law criminalizes the act of not carrying one’s identification and immigration papers. As opposed to the state law, Federal law only makes it a civil transgression, like when one incurs a traffic citation. Supporters of the law, among them state Senator Russell Pearce, aver that those who oppose the law are nothing more than a disgruntled sector who have disdain for the laws of the state (Archibold 2010).

            Pearce, who has crafted several immigration laws in the state, including one that levied penalties against employers who willfully hire illegals, criticized but upheld by the United States District Court and the 9th United States appellate court, is optimistic on the outcome of the legal tussle that his new law will face, referring to the streak of legal victories that his laws have gained (Nowicki 2010). But the standard of ‘reasonable suspicion’ has never been used in the context of illegal immigration, as this was only used in the context of accosting a person that is suspected to be committing a crime. But the Supreme Court has upheld a similar law in Nevada, that mandates individuals yo produce identification when accosted by law enforcers (Witt 2009).

            The core against the Arizona statute is in the wording of the law. The qualification of ‘reasonable suspicion’ on the basis of perceived immigration status cannot be used as an effective criteria to determine if a person is residing in the United States legally or illegally. Hunches or guesswork on the status of a person must be done devoid of any infringements on the laws of the United States, since in the final analysis, it is the Federal government tasked with immigration issues and not one state (Dorf 2010).

Works Cited

Agence France-Presse. “ US reviewing legality of Arizona immigration law.”

            <       arizona-immigration-law>

Archibold, Randal C. “First legal challenges to new Arizona law.” New York Times 29 April      2010.

Dorf, Michael C. “The new Arizona immigration law raises an old question: What is       “reasonable suspicion”?


Nowicki, Dan. “Court fight looms on new immigration law”. Arizona Republic 16 May 2010

United Press International. “Mexican diplomat prepares for Arizona law”.

            <           Arizona-law/UPI-31811273673877/ >

Witt, Ryan. “ An analysis of the constitutionality of Arizona’s immigration law.”

            <  analysis-of-the-constitutionality-of-Arizonas-immigration-law>


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The Constitutionality of Suspicion. (2016, Jul 21). Retrieved from