SAN DIEGO POLICE DEPARTMENT PROCEDURE DATE: MAY 14, 2018 NUMBER: 6.18 - PATROL SUBJECT: ADULT UNDOCUMENTED PERSONS RELATED POLICY: 6.18, 9.16 ORIGINATING DIVISION: OPERATIONAL SUPPORT NEW PROCEDURE: PROCEDURAL CHANGE: SUPERSEDES:  EXTENSIVE CHANGES DP 6.18 – 04/25/2014 I.  PURPOSE This Department procedure establishes guidelines for the proper handling of adult undocumented persons. II. SCOPE This Department procedure applies to all members of the Department. III. BACKGROUND The San Diego Police Department recognizes and values the diversity of the community it serves. The purpose of this procedure is to ensure the safety and well-being of all persons, regardless of their immigration status. Primary responsibility for the enforcement of federal immigration laws rests with the United States Citizenship and Immigration Services and the U.S. Customs and Border Protection Service, which fall under the jurisdiction of the Department of Homeland Security (DHS/Border Patrol). Although state and local peace officers have the authority to assist in enforcing immigration laws, it is the policy of the San Diego Police Department that officers shall not make an effort to look for violations of immigration laws. San Diego Police personnel will focus on detecting and apprehending individuals involved in criminal activity. DP 6.18 - Adult Undocumented Persons 05/14/2018 IV. PROCEDURES A. San Diego Police officers are responsible for enforcing all federal, state, and local laws, and for the safety and protection of all persons. Therefore, officers have a duty to contact any person(s) when there is a "reasonable suspicion" to believe they are involved in criminal activity. “Reasonable suspicion” is more than a hunch or mere speculation on the part of an officer, but less than probable cause necessary for arrest. Refer to Department Procedure 4.01, Stop/Detention and Pat-Down Procedures, for further information. NEW B. Officers shall not inquire into an individual’s immigration status. NEW C. Officers are prohibited from transporting detained undocumented persons to a police facility for the sole purpose of releasing them to DHS/Border Patrol. NEW D. Undocumented persons may be transported if they voluntarily consent in order to complete or further an investigation. NEW E. If, upon investigation, probable cause to arrest exists, officers may arrest for the offense, irrespective of the person’s immigration status. NEW F. If, after concluding the investigation, officers determine that the person(s) is/are not involved in criminal activity, the person shall be released regardless of immigration status. NEW G. Cooperation with immigration authorities is not permitted for individuals arrested, detained, or convicted of misdemeanors that were previously felonies, or were previously crimes punishable as either misdemeanors or felonies, prior to passage of Prop 47 (the Safe Neighborhoods and Schools Act of 2014 as it amended the Penal Code). NEW H. Undocumented persons may be transferred to immigration authorities only under specified circumstances. An individual may be transferred to immigration authorities if: NEW 1. The transfer is authorized by a judicial warrant or judicial probable cause determination. 2 of 10 DP 6.18 - Adult Undocumented Persons 05/14/2018 NEW 2. He or she has been convicted of committing, attempting to commit, or conspiracy to commit, a serious or violent felony identified in Penal Code sections 667.5(c) or 1192.7(c): • • • • • • • • • • • • • • • • • • • • • • • • • • • Any burglary of the first degree. Any felony in which the defendant personally inflicts great bodily injury on any person (other than an accomplice) Any felony in which the defendant personally used a firearm or other dangerous or deadly weapon Any gang-related felony violation of Penal Code section 186.22. Any robbery. Arson. Assault with a firearm on a peace officer or firefighter (PC § 245(d)) Assault with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Penal Code sections 264.1, 288, or 289 (PC § 220). Assault with intent to commit robbery. Assault with a deadly weapon by a state prisoner (PC §§ 4500, 4501). Assault with a deadly weapon against a public transit employee, custodial officer, or school employee (PC §§ 245.2, 245.3, or 245.5). Carjacking (PC § 215) Continuous sexual abuse of a child, in violation of PC § 288.5. Criminal threats in violation of Penal Code section 422 Discharge of a firearm at an inhabited dwelling house, inhabited housecar, inhabited camper, occupied building, occupied motor vehicle, or occupied aircraft (PC § 246) Discharge of a firearm from a vehicle (PC § 26100(c) or (d)) Exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem (PC §§ 18750 and 18755) Exploding, or attempting to explode, a destructive device or any explosive with intent to injure or murder (PC § 18745) Gang-related extortion or threats to victims or witnesses (PC §§ 186.22, 518, 136.1) Grand theft involving a firearm Holding a hostage while confined in a state prison (PC § 4503). Intimidation of victims or witnesses (PC § 136.1) Kidnapping (PC §§ 207, 209, 209.5) Lewd or lascivious act on a child under 14 years of age Mayhem (PC §§ 203 or 205). Murder or voluntary manslaughter. (PC § 187) Oral copulation or sexual penetration committed against the victim’s will by force, violence, duress, menace, threats, or incapacity (PC §§ 288a(c) or (d) and 289(a)) 3 of 10 DP 6.18 - Adult Undocumented Persons 05/14/2018 • • • • • • Oral copulation or sexual penetration with a person who is under 14 years of age by a person more than 10 years older (PC §§ 288a(c) and 289(j)) Rape, spousal rape, or sexual penetration, in concert (PC §§ 261, 262, 264.1) Sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person, or sodomy with someone under 18 years of age. Throwing (or causing to be placed or thrown) any acid, flammable substance, or caustic chemical of any nature, at another person with the intent to injure or disfigure (PC § 244) Using a weapon of mass destruction (directly or through another person) in violation of Penal Code section 11418(b) or (c) Providing (i.e., selling, furnishing, administering, giving) or offering to provide certain controlled substances to a minor. The controlled substances are any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug (described in Health and Safety Code Section 11055(d) (2)), or any methamphetamine precursors (described in Health and Safety Code Sections 11055(f) (1) (A) or 11100(a)). NEW 3. He or she has been convicted of a felony punishable by death or imprisonment in state prison. NEW 4. He or she has been convicted of a felony punishable by imprisonment in the state prison. NEW 5. He or she is a current registrant on the California Sex and Arson Registry. NEW 6. He or she has been convicted of a federal crime that meets the definition of an aggravated felony as set forth in [8 U.S.C. Sec. 1101 (a) (43) (A) (P)]. NEW 7. He or she has been identified by Immigration and Customs Enforcement as the subject of an outstanding federal felony arrest warrant. NEW 8. The individual has been convicted within the past five years of a misdemeanor for a crime that is punishable as either a misdemeanor or a felony for, or has been convicted within the last 15 years of a felony for, any of the following offenses: NEW (A) Assault, as specified in, but not limited to, Sections 217.1, 220, 240, 241.1, 241.4, 241.7, 244, 244.5, 245, 245.2, 245.3, 245.5, 4500, and 4501 of the Penal Code. 4 of 10 DP 6.18 - Adult Undocumented Persons 05/14/2018 NEW (B) Battery, as specified in, but not limited to, Sections 242, 243.1, 243.3, 243.4, 243.6, 243.7, 243.9, 273.5, 347, 4501.1, and 4501.5 of the Penal Code. NEW (C) Use of threats, as specified in, but not limited to, Sections 71, 76, 139, 140, 422, 601, and 11418.5 of the Penal Code. NEW (D) Sexual abuse, sexual exploitation, or crimes endangering children, as specified in, but not limited to, Sections 266, 266a, 266b, 266c, 266d, 266f, 266g, 266h, 266i, 266j, 267, 269, 288, 288.5, 311.1, 311.3, 311.4, 311.10, 311.11, and 647.6 of the Penal Code. NEW (E) Child abuse or endangerment, as specified in, but not limited to, Sections 270, 271, 271a, 273a, 273ab, 273d, 273.4, and 278 of the Penal Code. NEW (F) Burglary, robbery, theft, fraud, forgery, or embezzlement, as specified in, but not limited to, Sections 211, 215, 459, 463, 470, 476, 487, 496, 503, 518, 530.5, 532, and 550 of the Penal Code. NEW (G) Driving under the influence of alcohol or drugs, but only for a conviction that is a felony. NEW (H) Obstruction of justice, as specified in, but not limited to, Sections 69, 95, 95.1, 136.1, and 148.10 of the Penal Code. NEW (I) Bribery, as specified in, but not limited to, Sections 67, 67.5, 68, 74, 85, 86, 92, 93, 137, 138, and 165 of the Penal Code. NEW (J) Escape, as specified in, but not limited to, Sections 107, 109, 110, 4530, 4530.5, 4532, 4533, 4534, 4535, and 4536 of the Penal Code. NEW (K) Unlawful possession or use of a weapon, firearm, explosive device, or weapon of mass destruction, as specified in, but not limited to, Sections 171b, 171c, 171d, 246, 246.3, 247, 417, 417.3, 417.6, 417.8, 4574, 11418, 11418.1, 12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53, 12022.55, 18745, 18750, and 18755 of, and subdivisions (c) and (d) of Section 26100 of, the Penal Code. NEW (L) Possession of an unlawful deadly weapon, under the Deadly Weapons Recodification Act of 2010 (Part 6 (commencing with Section 16000) of the Penal Code). 5 of 10 DP 6.18 - Adult Undocumented Persons 05/14/2018 NEW (M) An offense involving the felony possession, sale, distribution, manufacture, or trafficking of controlled substances. NEW (N) Vandalism with prior convictions, as specified in, but not limited to, Section 594.7 of the Penal Code. NEW (O) Gang-related offenses, as specified in, but not limited to, Sections 186.22, 186.26, and 186.28 of the Penal Code. NEW (P) An attempt, as defined in Section 664 of, or a conspiracy, as defined in Section 182 of, the Penal Code, to commit an offense specified in this section. NEW (Q) A crime resulting in death, or involving the personal infliction of great bodily injury, as specified in, but not limited to, subdivision (d) of Section 245.6 of, and Sections 187, 191.5, 192, 192.5, 12022.7, 12022.8, and 12022.9 of, the Penal Code. NEW (R) Possession or use of a firearm in the commission of an offense. NEW (S) An offense that would require the individual to register as a sex offender pursuant to Section 290, 290.002, or 290.006 of the Penal Code. NEW (T) False imprisonment, slavery, and human trafficking, as specified in, but not limited to, Sections 181, 210.5, 236, 236.1, and 4503 of the Penal Code. NEW (U) Criminal profiteering and money laundering, as specified in, but not limited to, Sections 186.2, 186.9, and 186.10 of the Penal Code. NEW (V) Torture and mayhem, as specified in, but not limited to, Section 203 of the Penal Code. NEW (W) A crime threatening the public safety, as specified in, but not limited to, Sections 219, 219.1, 219.2, 247.5, 404, 404.6, 405a, 451, and 11413 of the Penal Code. NEW (X) Elder and dependent adult abuse, as specified in, but not limited to, Section 368 of the Penal Code. NEW (Y) A hate crime, as specified in, but not limited to, Section 422.55 of the Penal Code. 6 of 10 DP 6.18 - Adult Undocumented Persons 05/14/2018 (Z) NEW (AA) Soliciting the commission of a crime, as specified in, but not limited to, subdivision (c) of Section 286 of, and Sections 653j and 653.23 of, the Penal Code. NEW (AB) An offense committed while on bail or released on his or her own recognizance, as specified in, but not limited to, Section 12022.1 of the Penal Code. NEW (AC) Rape, sodomy, oral copulation, or sexual penetration, as specified in, but not limited to, paragraphs (2) and (6) of subdivision (a) of Section 261 of, paragraphs (1) and (4) of subdivision (a) of Section 262 of, Section 264.1 of, subdivisions (c) and (d) of Section 286 of, subdivisions (c) and (d) of Section 288a of, and subdivisions (a) and (j) of Section 289 of, the Penal Code. NEW (AD) Kidnapping, as specified in, but not limited to, Sections 207, 209, and 209.5 of the Penal Code. NEW (AE) NEW 9. NEW NEW Stalking, as specified in, but not limited to, Section 646.9 of the Penal Code. V. A violation of subdivision (c) of Section 20001 of the Vehicle Code. In cases in which the individual is arrested and taken before a magistrate on a charge involving a serious or violent felony, as identified in subdivision (c) of Section 1192.7 or subdivision (c) of Section 667.5 of the Penal Code, respectively, or a felony that is punishable by imprisonment in state prison, and the magistrate makes a finding of probable cause as to that charge pursuant to Section 872 of the Penal Code, a law enforcement official shall additionally have discretion to cooperate with immigration officials pursuant to subparagraph (C) of paragraph (1) of subdivision (a) of Section 7284.6. SITUATIONS WHERE DHS/BORDER PATROL INVOLVEMENT IS PROHIBITED Officers may not detain anyone on the basis of an immigration hold request or intentionally participate in arrests based on civil immigration warrants. 7 of 10 DP 6.18 - Adult Undocumented Persons 05/14/2018 Officers are prohibited from sharing non-public personal information (e.g., home or work address) about detainees with immigrations authorities. Officers may provide a detainee’s release date to immigration authorities only in accordance Gov. Code section 7283.1. Officers may provide a detainee’s release date in response to an ICE notification request if the detainee is given a copy of the request and informed that the Department intends to comply with the request. If ICE is notified of the release date, the Department must promptly provide the same notification in writing to the individual and to his or her attorney (or another designated individual). Additionally, officers are prohibited from releasing undocumented persons to ICE/Border Patrol under the following conditions: VI. A. When they are victims or witnesses of a crime, unless a determination has been made by investigators to hold them as material witnesses; B. When contacted during family disturbances not resulting in a felony arrest(s); C. During the enforcement of minor traffic offenses (infractions and non-bookable misdemeanors including 12500(a) CVC); or, D. When the person(s) is seeking medical treatment. MIGRANT CAMPS Officers are prohibited from detaining undocumented persons in a migrant camp setting for DHS/Border Patrol. If probable cause exists to arrest for a crime not related to immigration violations, officers will follow the procedures in this policy. VII. DOCUMENTATION OF DETENTIONS All officers who arrest or detain undocumented persons will complete all appropriate reports. Field supervisors must ensure compliance with the report requirements. NEW A. Members shall not stop, question, or detain any individual solely because of the individual’s national origin, foreign appearance, inability to speak English, or immigration status. B. Detention reports involving undocumented persons must list, in detail, the reasons for the detention, including all facts that led to the "reasonable suspicion" that the subject was involved in criminal activity unrelated to immigration status. 8 of 10 DP 6.18 - Adult Undocumented Persons 05/14/2018 C. In the event officers locate a drop house, load car, or drug house containing multiple undocumented persons, they will document the event by preparing an ARJIS-8 on each subject and an ARJIS-9 detailing the circumstances of the detention. NEW D. The name(s) and identification number(s) of the agent(s) who take custody of the detainees will be included in the appropriate (ARJIS-8/ARJIS-9) report(s). NEW E. Regional Arrest Report or Arjis-8 When completing the Regional Arrest Report or Arjis-8, Officers shall not question anyone detained or arrested about their immigration status solely for the purpose of checking the “Undocumented Person” box. VIII. ASSISTANCE TO LAW ENFORCEMENT AGENCIES NEW A. Officers will provide emergency assistance to all law enforcement agencies including the United States Citizenship and Immigration Services and the U.S. Customs and Border Protection (DHS/Border Patrol) Service to the same extent members would respond to emergency assistance to any other law enforcement agency. The Chief of Police or his designee must approve any other service requests. B. California Government Code Section 53069.75 guarantees continued Federal support for Local law enforcement activities. It provides as follows: "...no local law shall prohibit a peace officer or custodial officer from identifying and reporting to the United States Immigration and Naturalization Service any person, pursuant to Federal law or regulation, to whom both of the following apply: 1. The person was arrested and booked, based upon the arresting officer's probable cause to believe that the person arrested had committed a felony. 2. After the arrest and booking in subdivision (a), the officer reasonably suspects that the person arrested has violated the civil provisions of the Federal immigration laws." 9 of 10 DP 6.18 - Adult Undocumented Persons 05/14/2018 C. NEW Joint Criminal Operations Members may continue to collaborate with other law enforcement agencies, with approval of the member's Assistant Chief, to protect public safety and participate in joint criminal investigations that are permitted under Department policy or applicable City or State Law. When a member becomes aware that an investigation is not solely criminal, but involves the enforcement of immigration laws, the member shall: NEW 1) Notify a Supervisor; NEW 2) Cease operations if doing so would not pose a risk to the officers or the public; NEW 3) Suspend Interagency Operations. IX. UNDOCUMENTED JUVENILES When dealing with undocumented juveniles refer to Department Procedure 3.08, Juvenile Procedures. 10 of 10