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Hasty Warrants vs. the 4th Amendment : Law: Why didn't U.S. agents search the 'slave' factory sooner? Because the Constitution requires more than a 'tip.'

August 22, 1995|LAURIE L. LEVENSON | Laurie L. Levenson is a law professor at Loyola Law School and was a federal prosecutor in Los Angeles until 1989.

None but the wicked could like slavery. Slavery strips people of their dignity, their freedom and their hope. And those who are responsible for the deplorable conditions of the enslaved Thai workers in the garment factory in El Monte must be tried and, if convicted, punished.

In the past few weeks, there has been a call to condemn federal law enforcement for failure to investigate the conditions under which the Thai workers were held. While accountability is important, finger-pointing can be dangerous. It distracts us from remembering who the true villains are--those who exploit the lives of others. It also misleads the public about the options legally available to law enforcement.

Law enforcement agents' actions are governed by the Fourth Amendment. Before a search warrant can be obtained, officers must demonstrate that there is probable cause for the search. The courts have repeatedly held that an anonymous tip, such as the one in this case, does not constitute probable cause. The tip must be corroborated.

I have read the Immigration and Naturalization Service's affidavit seeking a search warrant of the El Monte factory that was presented to federal authorities in 1992. The affidavit details a third-party anonymous tip alleging the detention and forced labor of people at the garment factory. The law views anonymous tips as inherently untrustworthy. As horrible as the allegations were, they could not legally form the basis for probable cause to search the premises. Corroboration of the alleged illegal nature of the activity was also needed. That is where the 1992 affidavit fell short.

The affidavit described an apartment building that, from the outside, showed no signs of incarceration--no barbed wire, no guards. (Such restraints were put in place later.) It also described a woman moving from one unit to another, leaving the door open when she arrived at the next; two women at sewing machines; large bundles of cloth being delivered to and from the complex; spools of thread in the trash. No one else was seen moving to and from the complex during the hours of surveillance, but the surveillance was not continuous.

Undoubtedly, the questions raised by the 1992 surveillance were serious. But serious suspicions do not necessarily equal legal cause. The INS was not investigating labor violations, it was seeking a warrant on slavery allegations, and there was insufficient evidence corroborating that people were being held against their will.

One critic has asked: "Is this really the same standard they would use to search premises suspected of drug production, or are slaves a less offensive contraband?"

That's an easy one. The answer is, "Yes, the standard is the same." The very cases setting forth the high standard for obtaining warrants arose from narcotics investigations. Repeatedly, the Ninth Circuit Court of Appeals has reversed convictions of drug dealers because the search warrants leading to the evidence against them were insufficiently corroborated.

While we may not like the results, federal prosecutors did the job that we, the public, ask them to do. Their job was not to slip a bad warrant past a magistrate. Rather it was to explain, as they did, to the INS officers that there was insufficient probable cause and to encourage them to develop more evidence.

It is hard to say exactly what was going on in El Monte in 1992. Subsequently, local authorities visited the location three times and found no evidence of wrongdoing. It took an informant coming forward in 1995 to nail down the factual details necessary for a lawful search warrant. The INS provided information to the state Department of Labor and, in the end, it was both state and federal officials who conducted raids.

There is often a high cost to honoring constitutional protections. But, as our Supreme Court has noted: "Nothing can destroy a government more quickly than its failure to observe its own laws." If we don't like search and seizure laws, we can move to change them. But while they are on the books, prosecutors should not be condemned for following them.

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