Petition — United States v. Ortiz

FILED

JUL 19 1974

MICHAEL RODAK, JR. CLERK

No, 73 pe 9 () 5 ()

Gu the Supreme Court of the Wnited States

OctToBer TERM, 1973

UNIrep STATES OF AMERICA, PETITIONER

v.

Luts ANTONIO ORTIz

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT H. BORF.

Solicitor General,

HENRY E. PETERSEN,

Assistant Attorney General,

MARK L. EVANS,

Assistant to the Solicitor General,

Department of Justice,

Washington, D.C. 20530.

\

TEL TL OTe eee Toe

RTT EY PT ee ey

Questions presented -..........................

Statute and regulation involved_______________.

a

Reasons for granting the writ.._._____________.

a a |

| CITATIONS

Cases:

Almeida-Sanchez v. United States, 413 U.S.

Re 2, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15,

Camara v. Municipal Court, 387 U.S. 523___-

Desist v. United States, 394 U.S. 244.______.

Michigan v. Tucker, No. 73-482, decided

SK RE eee = ee ae

United States v. Bowen, C.A. 9, No. 1012,

decided May 9, 1974, pending on petition

for a writ of certiorari, No. 73-6848_____-

7, 8, 9, 10, 14,

United States vy. Calandra, 414 U.S. 338____-

United States v. DeLeon, C.A. 5, No. 72-1052,

decided November 1, 1973_._.._________-

United States v. King, 485 F. 2d 353... ____-

United States v. Maddox, 485 ¥. 2d 361_____-

United States v. Miller, 492 F. 2d 37... ___.-

United States v. Morgan, C.A. 9, No. 73-1669,

decided June 14, 1974__._....._.._-__--

United States v. Peltier, C.A. 9, No. 73-2509,

decided May 9, 1974, pending on petition for

a writ of certiorari pending, No. 73-2000__

United Siates v. Speed, 489 I’. 2d 478, _—

on petition for rehearing. ................

1)

5533- 268—74——1

16, 17

10

15

16

2,

15, 17

15

10

10

10

14-15

II

‘onstitution, statutes, and regulation:

sag eer States Constitution, Fourth Amend- page

2,9, 11,13

Immigration and Nationality Act, 66 Stat.

163, et seq., as amended:

Section 274(a), 8 U.S.C. 1824(a)__...-------

Section 287(a), 8 U.S.C. 1357(a)_-..--------

DE Gece cnsetadsdedssstiodalcdotea

on -

On the Supreme Gourt of the United States

OctoBer TERM, 1973

No.

UNITED Staves OF AMERICA, PETITIONER

v.

Luis ANTONIO OrTIz

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United

States of America, petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra,

p. 1A) is not yet reported. The opinion of the dis-

trict court (App. C, infra, pp. 5A-41A) is reported

at 368 F. Supp. 398.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, p. 3A) was entered on June 19, 1974. The ju-

risdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

QUESTIONS PRESENTED

1. Whether this Court’s decision in Almeida-San-

chez vy. United States, 413 U.S. 266—which held that

a warrantless “roving patrol” search of an automobile

for concealed aliens, conducted by Border Patrol offi-

cers acting without probable cause to believe that the

vehicle contained any aliens, violated the Fourth

Amendment’s proscription against unreasonable

searches and seizures—should be extended to invali-

date a similar search for aliens at a fixed Border Pa-

trol checkpoint.

9. Whether, if Almeida-Sanchez should be so ex-

tended, the extension should apply to checkpoint

searches conducted prior to the date of the Ninth Cir-

cuit’s decision in United States v. Bowen, in which that

court, relying upon its interpretation of Almefia-San-

chez and overruling a long line of its prior decisions,

held for the first time that warrantless checkpoint

searches not based upon probable cause are unlawful.

STATUTE AND REGULATION INVOLVED

1. Section 287(a) of the Immigration and Nation-

ality Act, as amended, 8 U.S.C. 1357(a), provides in

pertinent part:

Any officer or employee of the [Immigration

and Naturalization] Service authorized under

regulations prescribed by the Attorney General

shall have power without warrant—

(1) to interrogate any alien or person be-

lieved to be an alien as to his right to be or

to remain in the United States ;

3

(3) within a reasonable distance from any

external boundary of the United States, to

board and search for aliens any vessel within

the territorial waters of the United States and

any railway car, aircraft, conveyance, or ve-

hicle, and within a distance of twenty-five miles

from any such external boundary to have access

to private lands, but not dwellings, for the pur-

pose of patrolling the border to prevent the

illegal entry of aliens into the United States;

* * *

2. 8 C.F.R. 287.1 provides in pertinent part:

(a)(2) Reasonable distance. The term ‘‘rea-

sonable distance,’’ as used in section 287(a) (3)

of the Act, means within 100 air miles from any

external boundary of the United States or any

shorter distance which may be fixed by the dis-

trict director, or, so far as the power to board

and search aircraft is concerned, any distance

fixed pursuant to paragraph (b) of this section.

(hb) Reasonable distance; fixing by district di-

rectors. In fixing distances not exceeding 100 air

miles pursuant to paragraph (a) of this section,

district directors shall take into consideration

topography, confluence of arteries of transporta-

tion leading from external boundaries, density

of population, possible inconvenience to the

traveling public, types of conveyances used, and

reliable information as to movements of persons

effecting illegal entry into the United States:

Provided, That whenever in the opinion of a

district director a distance in his district of

4

more than 100 air miles from any external

boundary of the United States would because

of unusual circumstances be reasonable, such

district director shall forward a complete re-

port with respect to the matter to the Commis-

sioner, who may, if he determines that such

action is justified, declare such distance to be

reasonable.

* * * * *

STATEMENT

After a non-jury trial in the United States District

Court for the Southern District of California, respond-

ent was convicted on three counts of transporting

aliens who were present in this country illegally, in

violation of 8 U.S.C. 1324(a)(2). He was sentenced

to concurrent terms of imprisonment for three years.

Execution of all but six months of the sentence was

suspended, however, and respondent was placed on

probation for three years.

1. The facts are contained in a stipulation (App. D,

infra, pp. 43A-45A) and in the district court’s find-

ings based upon that stipulation (App. E, infra,

pp. 47A-48A). On November 12 ,1973, near Oceanside,

California, respondent placed three Mexican aliens in

the trunk of his automobile and drove them north

along Interstate Route 5. Respondent kwew that each

of the three aliens was present in this country illegally

and that each had entered within the prior three years.

When the vehicle reached the permanent Border

Patrol immigration checkpoint near San Clemente,

California, respondent was referred to the secondary

5

area for an inspection of his automobile. Border

Patrol officers opened the trunk of the car and found

the three aliens concealed inside the trunk.

2. Respondent moved prior to trial for suppression

of the evidence resulting from the search of his auto-

mobile as the product of an unreasonable search and

seizure. The district judge ordered the case consoli-

dated with several other pending cases for an evidenti-

ary hearing before another judge on the status of the

various Border Patrol checkpoints located in the

Southern District of California. This hearing was

being conducted as an outgrowth of this Court’s de-

cision in Almeida-Sanchez v. United States, 413 U.S.

266.*

After several days of hearing, the district court

issued a comprehensive opinion in the consolidated

cases (App. C, infra, pp. 5A-41A). The court made

detailed findings on the causes and consequences of

the widespread illegal entry of immigrants from

Mexico, the difficult law enforcement problems con-

fronting the Border Patrol in its efforts to maintain

an effective deterrent and to apprehend illegal en-

trants, the role of the Border Patrol’s fixed immigra-

tion checkpoints in the overall law enforcement pro-

‘In its General Order No. 176 (issued October 24, 1973),

the district court had provided for the consolidation of the

“large number of criminal cases now pending before this

court” involving “searches conducted at checkpoints operated

by the U.S. Border Patrol * * *.” The court’s intention was

to “facilitate the presentation, by all interested parties, of any

pertinent information which might aid the court in its eventual

determination.”

6

gram, and the placement and operating characteristics

of each of the checkpoints in the Southern District

of California.

The court found that the San Clemente checkpoint

“is the primary, or cornerstone, checkpoint main-

tained by the Border Patrol in this District” (id. at

25A), that “‘[o]ver 12,000 deportable aliens were ap-

prehended there alone in fiseal year 1973” (¢bid.), and

that the checkpoint is located at ‘‘the point least

burdensome to traffic’? on Interstate Route 5 between

San Diego and Los Angeles (id. at 26A).

The court considered it necessary, under the ma-

jority’s opinion in Almeida-Sanchez, to determine

with respect to each of the Border Patrol checkpoints

in the district whether a warrantless vehicle search

for aliens without probable cause could be justified as

the “functional equivalent’”’ of a border search. That

determination, the court reasoned, rests on whether

the search occurs at ‘‘the first effective point of entry”

(id. at 34A), taking into account the intrusiveness of

the search, its relationship to legitimate Border Pa-

trol objectives, the geographic characteristics of the

checkpoint, and the available manpower resources of

the Border Patrol. The court held on the basis of these

criteria that searches of vehicles for aliens at the San

Clemente checkpoint are constitutionally permissible

as the functional equivalent of border searches (id.

at 35A).’

* The court did not, however, specifically rule on the individ-

ual validity of any of the searches that had occurred in the

16 cases that were consolidated for the evidentiary hearing.

That determination was left to the judge principally assigned to

each case.

ae ae @

7

At the trial in the present case, held before the

original judge on the same day that the opinion in the

consolidated cases was issued, the district court denied

respondent’s motion to suppress, ruling that “the

stopping of the vehicle and the search by the Border

Patrol was a valid, legal search’’ (App. E, infra, pp.

47A-48A).

3. The court of appeals reversed on the authority of

its en bane decision in United States v. Bowen (No.

72-1012, decided May 9, 1974, pending on petition for

a writ of certiorari, No. 73-6848), in which it had

held by a 7-6 vote (1) that evidence seized in a warrant-

less, non-probable-cause, checkpoint search of an auto-

mobile for aliens—if conducted after June 21, 1973, the

date of this Court’s decision in Almeida-Sanchez—

must be suppressed under the principles of that case un-

less the search can be said to be the “functional equiva-

lent” of a border search, and (2) that “the search is a

functional equivalent of a border search” only if it

“takes place at a location where virtually everyone

searched has just come from the other side of the bor-

der” or if it can be said with “reasonable certainty

that the vehicle searched contained either goods which

have just been smuggled or a person who had just

crossed the border illegally” (Bowen, supra, slip op. at

7-9).

Since the search in the present case occurred on

November 12, 1973, the panel held that the search was

*The court of appeals subsequently held that routine searches

at the San Clemente checkpoint do not satisfy these standards

and are not the functional equivalent of border searches. United

States v. Morgan (No. 73-1669, decided June 14, 1974).

553-268—74—-__2

8

unlawful under Bowen and that “[t]he evidence (il-

legal aliens) discovered during the search should have

been suppressed” (App. A, infra, p. 1A). The court

therefore reversed the judgment of conviction and,

sinee the government would have “no case” without

the aliens, directed that the indictment be dismissed.

REASONS FOR GRANTING THE WRIT

1. This case presents an important issue left un-

decided in Almeida-Sanchez. The Court held in that

case that ‘‘roving patrol’’ searches of automobiles for

aliens, without probable cause or reasonable suspicion,

are unlawful in the absence of a warrant. The Court did

not determine “the constitutional propriety of searches

at permanent or temporary checkpoints removed from

the border or its functional equivalent” (413 U.S. at

276, Mr. Justice Powell concurring).*

a. The Border Patrol operates 17 “permanent” and

30 “temporary” immigration checkpoints’ in the

southwestern region of the United States. Operations

at each may be affected by the resolution of the issue

whether warrants are required for checkpoint seareh-

es. Moreover, the outcome of a substantial number of

pending prosecutions for violations of the immigration

laws and for other offenses, in which essential evi-

dence was procured by warrantless, non-probable-

‘Mr. Justice White's dissenting opinion stated that “appar-

ently” it is not “disputed that warrantless searches for aliens

without probable cause may be made at fixed checkpoints away

from the border” (413 U.S. at 288, emphasis added).

*The differences between permanent and temporary check-

points are explained in the district court's opinion (App. C,

infra, pp. 15A-16A).

cause, checkpoint searches, will turn on the answer

to the questions presented in this petition.

There is considerable confusion in the lower federal

courts over the validity of warrantless checkpoint

searches and the propriety under the Fourth Amend-

ment of issuing warrants to eonduct such searches.°

In the en bane decision of this issue in United States

v. Bowen, supra, both the majority and the dissenting

opinions focused primarily on the interpretation of

Almeida-Sanchez and its applieation to checkpoi ts,

each contending with equal vigor that this Court vad

resolved the issue (or suggested a resolution of the

issue) in a manner consistent with the conelusio: of

that opinion. The vote on the question was 7-6, which

we believe strongly evidences the fact that this im-

portant issue has not vet been definitively resolved by

this Court and should be so resolved to eliminate the

confusion that currently prevails.’

*The government has applied for but has been refused war-

rants permitting the Border Patrol to search vehicles fo» aljens

at checkpoints in the Southern District of California, The mag-

istrates have been willing to issue warrants permitting on|y

stops of vehicles for interrogation, apparently because of their

view that the Fourth Amendment does not permit the issuance

of general search warrants on a checkpoint basis.

"In the Court of Appeals for the Fifth Circuit, for example.

one panel has held that a warrantless vehicular search in the

absence of probable cause at a temporary checkpoint is unlawful

under A/meida-Sanchez unless it is the functional equivalent of

a border search (United States v. Speed, 489 F. 2d 478, pending

on petition for rehearing). In another case, originally decided

prior to this Court's decision in Almeida-Sanchez, a different

panel denied a renewed petition for rehearing on the ground

that Almeida-Sanchez did not apply because the defendant “was

(Continued)

10

The uncertainty concerning the proper application

of this Court’s decision in A/meida-Sanchez and the pro-

priety of checkpoint warrants threatens severely to

hamper effective law enforcement efforts on the part of

the Border Patrol.

b. We contend that the decision in this case and the

decision in Bowen (on which the present decision

rests) represent an unwarranted extension of Almeida-

Sanchez.” We ground our contention principally upon

the reasoning of Mr. Justice Powell’s concurring opin-

ion in Almeida-Sanchez. As that opinion recognizes,

the reasonableness of a search of an automobile for

aliens does not necessarily depend upon the existence

of probable cause to believe that a concealed alien will

he found in that automobile. Rather, as in Camara vy.

Municipal Court, 387 U.S. 523, a particular search

may be reasonable if conducted as part of an area-

wide program of searches that is itself reasonable,

measured by the existence of a legitimate law enforce-

ment need, balanced against the extent of the official

intrusion. As Mr. Justice Powell stated (413 U.S. at

279) : .

The conjunction of these factors—consistent

judicial approval, absence of a reasonable alter-

Continued) ‘

stopped, not by a roving border patrol, but at an established

checkpoint ten miles north of the border” (United States v.

DeLeon, No, S72-1052, decided November 1, 1973).

The Court of Appeals for the Tenth Circuit has held that the

principles of Almeida-Sanchez apply to checkpoint searches.

United States vy. Ning, 485 k. 2d 353; United States v. Maddow,

485 F. 2d 361.

*We do not contend that the San Clemente checkpoint is the

functional equivalent of the border. In our view, the court of

appeals’ definition of that phrase in Bowen (supra, p. 7) is

substantially correct.

li

native for the solution of a serious problem,

and only a modest intrusion on those whose

automobiles are searched—persuades me that

under appropriate limiting circumstances there

may exist a constitutionally adequate equivalent

of probable cause to conduct roving vehicular

searches in border areas,

The existence of a “constitutionally adequate equiv-

alent of probable cause” does not end the inquiry, how-

ever, because “hoth the concept of probable cause and

the requirement of a warrant bear on the reasonable-

ness of a search” (id. at 277, emphasis added), The

further question in Almeida-Sanchez, then, was

Whether a requirement for “a prior judicial deter-

mination” of the reasonableness of the Border Pa-

trol’s plan for a particular roving patrol operation

would be an effective and feasible means of assuring

that the plan represents a reasonable “balane[e] of

the legitimate interests of law enforcement with pro-

ected Fourth Amendment rights” (id. at 284). Mr.

Justice Powell concluded, despite our argument to the

contrary, that such a prior judicial determination

would substantially enhance the reasonablencss of a

roving patrol operation and should be required,

We submit that prior judicial approval of a fixed

checkpoint operation, in contrast to approval of a

roving patrol or “area seareh”’ operation (ibid.),

would add little to the reasonableness of checkpoint

operations and that a subsequent judicial determination

on a motion to suppress adequately protects Fourth

Amendment values.

On a roving patrol operation, officers cruise in a

patrol car in order to observe traffic in a prescribed

12

area. When they see a vehicle that arouses their sub-

jective suspicion, they pursue and stop it and usually

subject it to a search for concealed aliens. Roving

patrols are usually conducted at night on infrequently

traveled roads. The areas of operation may vary from

season to season and even from night to night. By the

nature of the operation, one roving patrol may be

quite unlike another, even in the same area.

Checkpoint operations, by contrast, are conducted

at stationary locations where officers ordinarily inspect

only those vehicles that approach the checkpoint.

Checkpoints are located on major thoroughfares and

are highly visible. They are operated in daylight or at

night under floodlights, in some cases on a 24-hour

basis. The vehicle inspection procedure is regularized,

and one day’s operation is essentially the same as any

other’s (see App. C, infra, pp. 1GA-17A).

These differences between roving patrol and fixed

checkpoint operations are significant for several rea-

sons. First, because a checkpoint is stationary and its

routine operation is consistent from day to day and

even from year to year, there is little need for periodic

ex parte judicial approval in advance of its operation

during a particular week or month. The reasonable-

ness of the checkpoint’s operation can effectively be

adjudicated for the first time in an adversary ¢rim-

inal proceeding, and, once the court has determined

that the operation of a particular checkpoint is rea-

sonable, that reasonableness would not be substantially

enhanced by repeated approvals in advance of subse-

quent periods of operation.

13

That is not to say that an aggrieved person may not

allege and prove in a particular factual setting that

the stop and search of his automobile was unlawful a

that the checkpoint’s Operation is unreasonable. But

we do say the Fourth Amendment values at tube are

adequately protected when those claims are adjudi

= after a checkpoint search has been a arse

me . “4 the context of an adversary proceeding on specific

By contrast, prior judicial approval of a roving

patrol operation, based upon considerations such as

those stated in Mr. Justice Powell’s concurring opin-

ion (413 U.S. at 283-284), may be viewed as a a,

ingful enhancement of the operation’s reasonableness

Since the circumstances of any particular operation

are likely to be unique, prior approval of past opera-

tions 1s not necessarily an accurate measure of the

reasonableness of the present one. Whereas the “ basic

decision” (td. at 283) to operate a roving patrol in a

particular area is made repeatedly, each time on the

basis of varying factors, the basic decision to operate

a checkpoint at a particular location is made only

-_ and the pertinent factors remain relatively un-

de suas

. a absence of significant new highway

Finally, since there is significantly less flexibility in

the operation of a fixed checkpoint than in the opera-

tion of a roving patrol, there is correspondingly less

need for judicial supervision of the manner and scope

of the operation. The procedures at a fixed checkpoint

present less danger that Border Patrol officers will

14

abuse what the majority in A/meida-Sanchez called

their “unfettered discretion” (id. at 270).

2. If the Court concludes, contrary to our submis-

sion, that checkpoint searches without probable cause

are reasonable only if conducted pursuant to a war-

rant, it does not follow that the evidence in this case

should have heen suppressed. It is our contention that,

if Almeida-Sanchez is to be thus extended, the exten-

sion should not apply to the present case because the

search here was conducted prior to May 9, 1974,- the

date of the court of appeals’ decision in United States

v. Bowen (C.A. 9, No. 72-1012, pending on petition

for a writ of certiorari, No. 73-6848).

Bowen is the case in which the Ninth Circuit, sit-

ting en banc, held that warrantless checkpoint

searches in the absence of probable cause are unlaw-

ful. In Bowen, however, the court of appeals, while

holding that its application of A/meida-Sanchez to

checkpoint searches should not be given retroactive

effect, held that the cutoff date for retroactivity pur-

poses should be the date of the decision in Almetda-San-

chez, which was June 21, 1973.” Accordingly, since the

search in the instant case took place on November 12,

1973 (App. D, infra, p. 444A), the court of appeals ap-

*In United States vy. Peltier (No. 73-2509, decided May 9, 1974.

petition for @endimg op writ of certiorari, No. 73-2000). the

Ninth Cirenit held that the A/meida-Sanchez decision itself

should be fully retroactive (at least with respect to roving pa-

trol cases in which a judgment of conviction had not become

final by the time of the Peltier decision). It is our view, as re-

flected in our petition in Pe/tier and in the decision in U'n/%/

15

plied its decision in Bowen and ordered suppression

of the evidence. We submit that it erred in so doing,

and that suppression should be ordered only with re-

spect to warrantless, non-probable-cause, checkpoint

searches occurring subsequent to the decision in

Bowen,

Prior to that decision, such searches had consist-

ently and repeatedly been upheld by the Ninth Cir-

cuit (see Bowen, slip op. at 26-28 and n. 2), and the

issue had been specifically left open by this Court in

Almeida-Sanchez (see p. 8 and n. 4, supra). In these

circumstances, the Border Patrol justifiably relied

upon existing law in the Ninth Cireuit in continuing to

conduct checkpoint searches after the decision in

Almeida-Sanchez. °

Bowen thus represents “a clear break with the

past” (Desist v. United States, 394 U.S. 244, 248) in

the Ninth Circuit. Since the “prime purpose” of ‘the

exclusionary rule ‘is to deter future unlawful police

conduct” (United States y. Calandra, 414 U.S. 338

347, emphasis added), the new rule announced in

Bowen should be applied only to checkpoint searches

occurring after the date of the decision in that case,

We submit that this position is correct not only as

a matter of retroactivity doctrine (the court of ap-

peals divided 7-6 in Bowen on the issue of whether

Ntutes v. Miller, 2d : ) fh nei

nounced in pote eee =, many sg a gah

searches should govern the admissibility of evidence only with

respect to searches conducted after June 21, 1973. ;

553 268 74 —-3

Almeida-Sanchez could properly be limited to pro-

spective application in the ease of checkpoint

searches), but also from a consideration of the appro-

priate scope of and limitations on the exclusionary

rule. Whether or not A/meida-Sanchez can properly

he viewed as a “change”’ in the law, since it did not

entail the overruling of any prior decision of this

Court, it is manifest that the deterrent purposes of

the exclusionary rule are in no way advanced by im-

posing the sanction against official investigative activ-

ities undertaken in complete good faith and in reason-

able reliance upon apparent statutory authorization

and judicial approval of such activities by the courts

of appeals. As this Court observed in Michigan vy.

Tucker, No, 73-482, decided June 10, 1974, slip op. 15:

The deterrent purpose of the exclusionary

rule necessarily assumes that the police have

engaged in willful, or at the very least, negli-

gent conduct which has deprived the defendant

of some right. By refusing to admit evidence

gained as a result of such conduct, the courts

hope to instil in those particular investigating

officers, or in their future counterparts, a greater

degree of care towards the right of an accused.

Where the official action was pursued in com-

plete good faith, however, the deterrence ration-

ale loses much of its force.

These observations apply with full force to the actions

of the Border Patrol in conducting both checkpoint

and roving patrol (see United States v. Peltier, pend-

ing on petition for a writ of certiorari, No. 73-2000)

17

searches prior to the decision of this Court in Almeida-

Sanchez and to the conduct of checkpoint searches

prior to the decision in Bowen.

Thus, as a matter either of retroactivity doctrine or

of exclusionary rule policy—both of which are matters

governed by substantially similar considerations—

evidence procured in checkpoint searches, even if the

searches are held to have been illegal, should not be

suppressed with respect to any particular search

conducted prior to the date of the first controlling judi-

cial determination of illegality of such types of searches.

CONCLUSION

| It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be granted.

Roserr H. Bork,

Solicitor General.

Henry E. Perersen,

Assistant Attorney General

Mark L, Evans,

Assistant to the Solicitor General.

Juty 1974,

APPENDIX A

United States Court of Appeals for the Ninth Circuit

(No. 74-1249)

( Memorandum)

Unrrep States or AMERICA, APPELLEE

v

Luis ANTONIO ORTIZ, APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT COURT For THE

SOUTHERN DISTRICT OF CALIFORNIA

(Filed June 19 1974)

Before Ety and Hvrstepier, Circuit Judges, and

WiuiaMs,* District Judge

This fixed checkpoint stop and search, occurring

after the decision of Almeida-Sanchez v. United States

(1973) 413 U.S. 266, was illegal. (United States y.

Bowen (9th Cir. en bane 1974) —— F. 24 ——.) The

evidence (illegal aliens) discovered during the search

should have been Suppressed. Without the aliens, the

Government has no ease. The judgment is reversed

with directions to dismiss the indictment.

*Hon. David W. Williams, Central District, California, sitting

by assignment.

la

APPENDIX B

United States Court of Appeals for the Ninth Circuit

(Judgment)

(No. 74-1249—DC #16360)

Unirep States or AMERICA, APPELLEE

v.

Luts ANTONIO ORTIZ, APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT COURT POR THE

SOUTHERN DISTRICT OF CALIFORNIA

This Cause came on to be heard on the Transcript

of the Record from the United States District Court

for the Southern District of California and was duly

submitted.

On Consideration Whereof, It is now here ordered

and adjudged by this Court, that the judgment of the

said District Court in this Cause be, and hereby is

Reversed With Directions To Dismiss the Indictment.

A True Copy:

Attest: June 26, 1974.

Emi E. MEL, Jr.,

Chief Deputy and Acting Clerk

(by Ray Hewitt, Senior Deputy).

Filed and entered June 19, 1974.

3a

APPENDIX ©

United States District Court for the

Southern District of California

UNITED Staves or AMERICA, PLAINTIFF

Vv.

Bernarvo CUELLAR Baca, 15656; CHARLES Kart Ben-

SON, CHALMER Lynn CarTER, 14964; Perer FREDER-

ICK SACKRIDER, 15803; Laura ELena Esquer-River.

ANACLETO N AVABIBAYOFF, 15850; MIcHAEL-ALFRED

Ray, 15813; Camito J UAREZ-Ropriaurz, Aveta Soro-

Riv JUAREZ, 15991; Norman RIcHARD Linpsay, 14344;

GLoria May GILMorE, 15410; James R. THompson,

16245: Donatp James PENNINGTON, PHILIP LUTHER

OMDAHL, 15666; LucERo ALBERTO EScaLanTe, 15463 ;

JoE VALDIVEz Luna, 15847; Dennis J AMES RiIcu,

15046; PrTrer MICHAEL Ranpvrvp, 15650; Luis An-

TONTO ORTIz, 16360; Score EUGENE ATKINSON, 15606 ;

DEFENDANTS

(Filed December 5, 1973)

OPINION

On June 21, 1973, the United States Supreme Court

ruled in Almeida-Sanchez v. United States, —~ U.9.

—, 41 U.S.L.W. 4970 (1973) that a “roving

Search” of an automobile, without a warrant and

without probable cause, when not a border search, or

the functional equivalent thereof, violated the Fourth

Amendment to the United States Constitution. There-

5a

553-268—74— 4

6A

after, the Ninth Circuit remanded cases to this and

other districts for “consideration of the impact of Al-

meida-Sanchez. .. .” E.g. U.S. v. Cuellar Baca, Slip

No. 73-2048 (Sept. 10, 1973). Presently there are

well in excess of 20 cases pending in this District

either on remand from the Circuit or upon original

hearing raising constitutional questions left open by

Almeida-Sanchez.

On October 21, 1973, the judges of the United

States Federal District Court for the Southern Dis-

trict of California in General Order 176 ordered that a

comprehensive factual hearing be held to evaluate the

consequences, if any, of Almeida-Sanchez on the check-

points operated by the Border Patrol within this Dis-

trict. All eases in this District raising this issue were

consolidated on a voluntary basis.

Subsequently, on November 19, 20 and 21, this

Court held hearings wherein the interested parties

presented evidence on this question. This Court, it

should be noted, did not include in its deliberations the

issue of Almeida-Sanchez’ retroactivity.

Based upon that hearing and the extensive evidence

submitted, the Court files the following opinion.

THE ILLEGAL ALIEN PROBLEM

The United States through legislative action has de-

termined that it is in the best interests of the nation

to limit the number of persons who ean legally immi-

grate into the country in any given year. These controls

reflect in part a Congressional intent to protect the

American labor market from an influx of foreign

labor. Karnuth v. United States, 279 U.S. 231 (1929) ;

§ 201(b) of the Immigration and Nationality Act of

1952, 66 Stat. 163, as amended by the Act of Oc-

tober 3, 1965, 79 Stat. 911, 8 U.S.C. § 1151(a).

7A

Under this policy of limited admission 385,685

new immigrants entered the United States legal

during fiscal year 1972. Since July 1, 1968, the “tnd

has established an annual quota of 120,000 persons

for the independent countries of the Western Hemis-

phere. Included within this quota are immigrants

from the Republic of Mexico who in fiscal year 1972

totalled 64,040. 1972 Annual Report, Immigration and

Naturalization Service, p. 2.

Currently illegal aliens are in reside rithi

United States in numbers which, while “or came

of exact measurement, are estimated to be in the vi-

cinity of 800,000 to over one million. Department of

Justice, Special Study Group on Illegal Immigrants

from Mexico, A Program for Effective And H mane

Action on Illegal Mexican Immigrants, 6 (1973),

oo fter cited as Cramton Rpt.].

these illegal aliens, approxim

are citizens of Mexico. Po ttn nny ny 6 They

are industrious, proud and hard-working people wd

enter this country for the purpose of earning wages

accumulating Savings, and returning or sending their

savings home to Mexico.

Since 1970, the number of illegal Mexi i

the United States who have ~ eniaies ie

been growing at a rate in excess of 20 percent per

year. Cramton Rpt. at 6.

_ The increasingly large numbers of Mexican na-

tionals seeking to illegally enter this country reflects

the substantial unemployment and underemployment

in Mexico—fueled hy one of the highest birth rates

in the world. Moreover, Mexican employment statis-

ties are not likely to improve dramatically since fully

. percent of Mexico’s population is under 15 years

ty men a will soon be attempting to enter

SA

Further prompting Mexican nationals to seek em-

ployment in the United States is the fact that there

is a significant disparity in wage rates between this

country and Mexico. In Mexicali and Tijuana, both

Mexican cities bordering the Southern District and

each with a population in excess of 400,000, the aver-

age daily wage is about $3.40 per day. The minimum

wage is even lower for workers in the interior of

Mexico. The average worker in Mexico, assuming he

can find work, earns in a day as much as he can make

in only a few hours in the United States.

In addition, it is estimated that the per capita

income of the poorest 40 percent of the Mexican pop-

ulation, the strata most likely to leave their home-

land in search of a better life in the United States, is

less than $150 per vear.

The manpower needs of the United States gener-

ated by World War IT resulted in many Mexicans

heing imported into this country and becoming famil-

iar with employment opportunities and practices in

the United States. See Diaz v. Kay-Dix Ranch, 9 Cal.

App. 3d 595 (1970).

The opportunities available to Mexican aliens have

traditionally been in agriculture. While still true in

many parts of the United States Southwest, in recent

years the pattern has changed and more and more

illegal aliens are obtaining employment in service and

manufacturing sectors of our economy. These aliens

are increasingly found in virtually all regions of the

country and in all segments of the economy. State

Social Welfare Board, Issue: Aliens in California, 12

(1973) [Hereinafter cited as Aliens in California}.

The nature of the change in employment opportu-

nities available is demonstrated by one estimate that

250,000 illegal aliens are employed in Los Angeles

County where agricultural opportunities are known

9A

to be limited, Hearings on Illegal Aliens Before Sul

comm. 1 of the House Comm. on the Judiciary, 924

Cong., Ist Sess., pt. 1, at 208 (1971) [Hereinafter

cited as Hearings on Illegal Aliens]. .

Other estimates of the impact of i]

California suggest that in 1971, when 595,000 Cal

ifornians were unemployed (7.4 percent of the State ’s

labor force), there were between 200,000 ar d 300 |

illegal aliens employed in Californ yma

mately $100 million in

Aliens at 150.

Since the majority of Mexicans are unskilled or low

skilled workers they tend to compete with Mexic >

Americans, blacks, I ndians, and other minority ol

who, due to the declining percentage of jobs tt

low or no skills, are finding it increasingly difieutt

ae se —s employment. Cramton Rpt at 12

Hegat allens compete for jobs wi ally

residing in the United States “ae

nr and who form that very group which rae

society is trying to ‘ai

iea’s prouperity, provide with a fair share of Amor-

In addition, illegal aliens tend to perpetuate poor

economic conditions by frustrating unionization a

cially in such occupations as farm work. a

I legal aliens pose a potential health hazard to the

community since many seek work as nursemaids, food

handlers, cooks, housekeepers, waiters 9 an a

and grocery workers. Immigration and medical offi-

ra in Los Angeles, for example, have discovered

that the egal alien population in Los Angeles’ har-

mo Is Infected with a high incidence of typhoid dvs-

entery, tuberculosis, tapeworms, venereal disease d

hepatitis. L.A. Times, Sept. 16, 1973. pt. II at ~y

In some states illegal aliens abuse publie atsktanee

programs. In some instances entire familie wl

legal aliens in

ia earning approxi-

wages. Hearings on Tilegal

Ss who el-

10a

tered the country illegally have been admitted to the

welfare rolls. Aliens in California at 35, 43.

Another aspect of the problem created by illegal

aliens is that employed aliens tend to send a substan-

tial portion of their earnings to relatives or friends in

Mexico. This outflow of United States dollars exacer-

bates our balance of payments problem to the extent

of $1 billion a year. Hearings on Illegal Aliens, pt. 3

at 683.

The net effect of this silent invasion of illegal aliens

from Mexico is suffering by the aliens who are fre-

quently victims of extortion, violence and sharp prac-

tices, displacement of American citizens and legally

residing aliens from the labor market, and irritation

between two neighboring countries.

THE LAW ENFORCEMENT PROBLEM

Given that illegal aliens are a significant problem

in American life, especially for those minority groups

who are described as economically deprived, and that

Congress has decreed that all but a relatively few

aliens are to be permanently excluded, then we must

analyze what law enforcement problems exist. In this

regard, the following findings of fact are made:

The illegal alien problem is one found primarily in

the Southwestern Region of the United States.

This problem along the Mexican-American border

has existed for some time with the original responsi-

hility for securing the integrity of the border being

assigned to the U.S. Army, along with the Depart-

ments of Treasury and Labor, who had about 20,000

men assigned to the border between Brownsville,

Texas, and San Diego, California, in 1920. National

Geographic Magazine, “Along Our Side of the Mex-

ican Border’ (July 1920).

lla

Currently the burden of controlling the entry of

aliens and stemming the flow of illegal aliens along

the Mexican-American border is assigned to the INS."

This border extends for almost 2,000 miles from the

Gulf of Mexico to the Pacifie Coast.

Along this border there were over 152 million legal

entries at authorized ports of entry during fiseal 1972,

of which over 91 million were made by aliens, with

over 39 million legal entries being made at the three

ports of entry in Southern California (Calexico, San

Ysidro and Tecate) of which over 24 million were

made by aliens. Immigration and Naturalization

Service, 1972 Annual Report, 25.

Of these entries made by aliens, the large portion

were made by visitors with official permission to enter

the country who had been issued temporary ‘‘horder

passes’’ such as I-186 cards (issued to residents of

Mexico), which authorize the holder to travel within

an area no further than 25 miles from the border and

for a period of time not to exceed 72 hours. See

8 C.F.R. § 212.6.

These temporary border passes (1-186) are issued

to simplify procedures needed for entry, and the

issuing process recognizes the inter-relationship of

contiguous communities along both sides of the border.

Hearings on Illegal Aliens, pt. 1, 192.

In fiscal 1973 »pproximately 208,000 I-186 cards were

issued and it is estimated that over two million such

cards are currently in circulation. Hearings on Illegal

Aliens, pt. 1, 173.

Within the INS, the U.S. Border Patrol, which

was first established in 1924, has the primary function

of preventing tae illegal entry of aliens and the

‘The notation “INS” when used herein has reference to

the Immigration and Naturalization Service.

12a

apprehension of those who have entered illegally and

those who smuggle these illegal entrants.

The Border Patrol has approximately 1,700 agents,

who are well-trained law enforcement officers, and of

these about 80 percent are assigned along our southern

border with Mexico.

A ‘‘deportable alien”’ is a person who has been

found to be deportable by an immigration judge, or

who admits his deportability upon questioning by

official agents.

The number of deportable aliens apprehended by

the Border Patrol (which makes the great majority

of apprehensions) nationally has grown from 38,861

during fiseal 1963 to 498,123 in fiseal 1973; of this

number 128,889 were found by Border Patrol agents

working in the Chula Vista sector which ineludes

70 miles of the border in San Diego County, and

23,125 were located by agents in the El Centro sector

which includes the Imperial County of California and

75 miles of the Mexican-American border.

The Border Patrol agents have the power to appre-

hend illegal aliens since by regulation the Attorney

General has designated Border Patrol agents to be

immigration officers and authorized them to exercise

powers and duties as such officers [8 C.F.R. § 103.1

(i)]; immigration officers have been given certain

functions by statute §101(a)(17) of the Immigration

and Nationality Act of 1952, 66 Stat. 163: as amended

hy the Act of October 3, 1973, 79 Stat. 911, 8 U.S.C.

§ 1101(a)(17), which provides that an officer of the

INS shall have the power, without a warrant, to stop

and interrogate any alien or person believed to be an

alien as to his right to remain or to be in the United

States. See Au Yi Lau v. I.N.S., 445 F. 2d 217 (D.C.

Cir. 1971), cert. denied, 404 U.S. 864.

Sec. 287(a)(3) of the 1952 Tmmigration Act in-

cludes authority for an immigration officer within a

~

13a

reasonable distance from the border of the United

States to board and search any conveyance or vehicle;

“veasonable distance” as used in that section of the

Act means within 100 air miles from any external

boundary of the United States, 8 C.F.R. § 287.1(b).

Immigration officers also are authorized to conduct

inspection of aliens seeking admission or readmission

to, or the privilege of passing through, the United

States, and also are authorized and impowered to

board and search any vehicle or like conveyance in

which they believe aliens are being brought into the

United States. See. 235(a) of the 1952 Immigration

Act, 8 U.S.C. § 1525(a).

The deployment of Border Patrol agents along the

horder is intended to maximize the effectiveness of the

limited number of personnel, with the first line of

defense being called the ‘line watch.’’ The line watch

consists of agents being placed immediately upon the

physical boundary where experience has shown that

large numbers of illegal aliens can he detected at-

tempting entry. A large number of agents so assigned

are primarily concerned with responding to sensor

alarms (electronic detection equipment) which are

located at strategic positions. These agents also re-

spond to citizen complaints concerning the suspected

presence of deportable aliens.

In fiseal 1973, there were 175,511 deportable aliens

apprehended throughout the nation by agents assigned

to the line watch, with 69,147 heing apprehended in

the Chula Vista sector and 5,908 in the FE] Centro

sector.

While the Border Patvol would like to apprehend

all deportable aliens right on the border by agents

on the line watch, inspections at regular points of

entry are not infallible and illegal crossings at other

than legal ports of entry are numerous and recurring

with the maintenance of continuous patrol over these

553 268—74— —5

14a

vast stretches of the border in Southern California

being physically impossible, for the approximately

145 miles of boundary creates physical barriers to

effective patrol and man-made devices such as fences

and electronic devices are in large part ineffective.

Increased manpower en line watch would not make

that activity appreciably more effective as was demon-

strated in 1969 during “Operation Intercept’? wherein

many more agents were stationed immediately on the

border, and yet, the number of illegal aliens appre-

hended by agents operating inland was not signifi-

cantly different from like periods when such addi-

tional manpower was not located at the boundary.

Once the aliens negotiate their way through the

port of entry or walk across the border at a place

other than an official port of entry, they find trans-

portation inland either in public conveyances, or

private vehicles with increasing numbers being trans-

ported by professional smugglers. A few have been

known to walk some distance inland and be appre-

hended after having walked as far north as Julian,

California, which is over 60 miles from the border.

After crossing the line watch some illegal aliens

seek employment in the Southern District, but the

vast majority attempt to proceed to Los Angeles

County and further northward.

Once the illegal alien gets settled in a big city far

away from the border it becomes very difficult to

apprehend him, and, therefore, the Border Patrol

attempts to contain the illegal entrant within this

district. Aliens in California at 7. With this objective

in mind, they have (pursuant to their statutory au-

thority discussed above) established, since at least

1927, strategically located traffic inspection facilities,

commonly referred to as checkpoints, on highways and

roads, for the purpose of questioning vehicle occu-

pants believed to be aliens, as to their right to be, or

15a

to remain, in the United States, and also to search

such vehicles for aliens illegally therein. Immigration

and Naturalization Service, Border Patrol Hand-

book 9-1 (1972) [hereinafter cited as Handbook].

The primary objective of the checkpoints is to in-

tercept vehicles or conveyances transporting illegal

aliens, or nonresident aliens admitted with temporary

border passing cards (Form I-186), with particular

attention being paid to vehicles operated by smug-

glers or transporters destined for the interior in vi-

vlation of 8 U.S.C, § 1324.

The selection of the location of a checkpoint is de-

termined hy factors relevant to the interdiction or

interception of deportable aliens who have succeeded

in gaining entry in an unlawful manner or are pro-

ceeding beyond the immediate border area in violation

of conditions of their admission as border crossers,

8 C.F.R. § 212.60. The primary factors in selecting a

checkpoint site are:

1. A location on a highway just beyond the conflu-

ence of two or more roads from the border, in order

to permit the checking of a large volume of traffic

with a minimum number of officers. This also avoids

the inconvenience of repeated checking of commuter

or urban traffie which would occur if the sites were

operated on the network of roads leading from and

through the more populated areas near the border.

2. Terrain and topography that restrict passage of

vehicles around the checkpoint, such as mountains,

desert, and as in the case of the San Clemente check-

peint, the Camp Pendleton Marine Base.

3. Safety factors: an unobstructed view of oncom-

ing traffic, to provide a safe distance for slowing

and stopping; parking space off the highway; power

source to illuminate control signs and inspection area,

and bypass capability for vehicles not requiring

examination.

16a

4. Due to the travel restrictions of the Form I-186

nonresident border crosser to an area 25 miles from

the border (unless issued additional documentation)

the checkpoints, as a genera! rule, are located at a

point beyond the 25 mile zone in order to control the

unlawful movement into the interior of such visitors,

Handbook.

Strategic sites that meet the foregoing enumerated

eriteria are selected for “permanent checkpoints.”

These are sites equipped to handle a large volume of

traffic on what would he a 24-hour hasis except in

case of manpower shortage, poor weather, or where

traffic becomes excessive causing a potential safety

hazard. Handbook at 9-3.

Other traffic checkpoints, known as ‘‘temporary

cheekpoints”’ are maintained on roads where traffic is

less frequent. The placement of these sites will be

governed by the same safety factors as involved in

permanent site placement and are usually located

where the terrain allows an element of surprise. Op-

erations at these temporary checkpoints are set up at

irregular intervals and intermittently so as to confuse

the potential violator. Handbook at 9-3.

When the checkpoints, whether permanent or tem-

porary, are in operation, an officer standing at the

“point” in full dress uniform on the highway will

view the decelerating oncoming vehicles and their pas-

sengers, and will visually determine whether he has

reason to believe the oceupants of the vehicle are

aliens (i.e., “breaks the pattern” of usual traffic). If

so, the vehicle will be stopped (if the traffic at the

checkpoint is heavy, as at the San Clemente check-

point, the vehicle will be actually directed off the

highway) for inquiries to be made by the agent. If

the agent does not have reason to believe that the

vehicle approaching the checkpoint is carrying aliens,

—_—

17a

he may exchange salutations, or merely wave the ve-

hicle through the checkpoint.

If, after questioning the occupants, the agent then

believes that illegal aliens may be secreted in the

vehicle (because of a break in the “pattern” indicat-

ing the possibility of smuggling) he will inspect the

vehicle by giving a cursory visual inspection of those

areas of the vehicle not visible from the outside (i.e.

trunk, interior portion of camper, ete.).

At the point of location of the sites now in regular

use few aliens have reached the locale on foot, with

99% having entered a vehicle of one type or an-

other. Approximately 12% of all apprehensions of de-

portable aliens throughout the nation are made at

checkpoints.

In the United States, during fiseal 1973, approxi-

mately 55,300 deportable aliens were apprehended by

Border Patrol agents working traffic checking opera-

tions. In the Chula Vista sector the number for that

period was 21,232, while in the El Centro sector the

total was 3,825.* During fiscal 1973, a total of 4,975

of the above were visitors apprehended at the check-

points and a majority of these were those who were

in violation of the terms of temporary border passes

(Form I-186).

The placement of the checkpoints and their opera-

tions are coordinated between the two sectors located

in this district and with Border Patrol activities to

the east in Arizona. In actual operation the checkpoints,

be they “permanent” or “temporary,” have the same

“b basic accou'’terments. Typically, about one-half mile to

one mile south of the checkpoint is the first notifica-

* Apparently apprehensions other than those actually made at

the checkpoint are included in these figures, but they are a

representation of the total activity at these checkpoints and

the majority of apprehensions included therein are made at the

checkpoints [ R. T. 274, 396].

18a

tion that the checkpoint is ahead. The notice is in the

form of a black on yellow sign indicating “STOP

AHEAD” which has floodlights for nighttime illumi-

nation, Handbook at 9-9. Next, about 200 yards from

the checkpoint is another sign cautioning the traffic

to slow down or to be careful; this sign usually has

flashing yellow lights attached. For the fifty yards

directly south of the checkpoint there are placed

traffic cones evenly spaced along each side of the

highway. The actual checkpoint has a sign indicating

to the traffic to stop, with official Border Patrol ve-

hicles parked on each side of the stop zone showing

the official Border Patrol emblem and/or the designa-

tion U.S. OFFICERS. At this point the agents as-

signed at the “point,” in their official uniform, con-

duct checking and inspection operations. Beyond the

checkpoint is usually a sign indicating “THANK

YOU.”

While a large number of apprehensions are made

at the checkpoints each year, as related above, the

primary reason for their operation is that they ef-

fectively deter large numbers of aliens from illegally

entering the country or violating the terms of any

temporary crossing card they may have, because they

form an effective obstacle and are located on all major

routes north out of the border region.

The deterrence aspect of these traffic checkpoint

operations is amply demonstrated by the fact that the

illegal alien has to resort to the employment of pro-

fessional smugglers to provide transportation around

or through these checkpoints.

Some of these smuggling operations have developed

into sophisticated and involved operations with the

following general modus operandi:

1. Contact is made between the smuggler and the

alien prior to the latter’s leaving Mexico,

19a

2. The aliens then make entry on foot, with possibly

the aid of a “guide,’”’ or by use of temporary border

passes. Then they enter vehicles approximately 2 or

20 miles inland after having passed through the

Border Patrol’s line watch activities.

3. To get through the traffie checkpoint they might

use a “drop house,’’ which acts as a staging area to

keep the aliens awaiting inclement weather, or any

event that might cause the checkpoint to close down

temporarily. Or, they may use a “decoy’’ vehicle,

which is a vehicle loaded with illegal aliens which it is

anticipated will be stopped at the checkpoint and

would therefore occupy the agents so that other ve-

hicles could pass through without inspection. They

even use “scout cars’’ to probe those roads where

temporary checkpoints are maintained, so as to advise

other vehicles whether it is safe to proceed.

4. The “‘load’’ vehicles themselves can be of any

type of conveyance and the methods used to secret

aliens inside them are varied and often show some

originality. Unfortunately, sometimes these are very

dangerous to the aliens themselves, for it has been

reported that it is not at all unusual for an alien to

die from asphyxiation while concealed in an auto-

mobile trunk or a tank car.

5. The cost of the transportation provided to the

aliens is approximately $225 to $250 for each alien

for the trip through the checkpoint on to the Los

Angeles area. Since smuggling operations are almost

exclusively “cash and carry” businesses and the aver-

age income am ng Mexican nationals who may wish

to seek residence here illegally is quite small, then this

cost tends to act as a very significant deterrent in and

of itself. The checkpoints are the major reason for

such a high price and if they were discontinued for

any length of time it would be one more encourage-

ment to illegal immigration.

20a

The deterrent impact of these checkpoints has been

noted on several occasions when they resumed opera-

tion unexpectedly and a great number of aliens were

apprehended.

The evidence presented before this court clearly

establishes that there is no reasonable or effective

alternative methods of detection and apprehension

available to the Border Patrol, in the absence of the

checkpoints for even a geometric increase in its per-

sonnel or line watch would not leave any control over

those admitted as temporary visitors from Mexico.

Of the approximately half million illegal aliens

apprehended in fiscal 1973, virtually none were pros-

ecuted, unless they presented counterfeit or altered

documents or aided in smuggling endeavors.

This district has only 3% of the total length of land

horders, and yet, fully 30% of all apprehensions of

deportable aliens made in the United States are made

within this district.

Almeida-Sanchez

Prior to the Almeida-Sanchez decision, it was clear

in this Cireuit that Border Patrol activities at fixed

checkpoints were constitutional. Fernandez v. United

States, 321 F. 2d 283 (9th Cir. 1963); United States

v. Barron, 474 F. 2d 1215 (9th Cir. 1973, cert. denied

41 U.S.L.W. 3669 (June 25, 1973). Since Almeida-

Sanchez, however, this area of the law has _ been

characterized by extreme instability.

Although Justice White, for the dissent in Almeida-

Sanchez, stated that it was not disputed that ‘war-

rantless searches for aliens without probable cause

may be made at fixed checkpoints away from the

horder,” (41 U.S.L.W. at 4977) and although Justice

Powell stated that Almeida-Sanchez did not involve

the ‘‘constitutional propriety of searches at permanent

or temporary checkpoints removed from the border

2la

or its functional equivalent,’’ (41 U.S.L.W. at 4973)

nevertheless the plurality’s language and reasoning

appears to require courts to address the question

whether searches at the checkpoints are ‘‘border

searches”’ as that term is defined in Almeida-Sanchez.

The plurality in Almeida-Sanchez rejected two argu-

ments as bases for roving searches without probable

cause and without search warrant: the “automobile

search” line of cases, Carroll vy. United States, 267 U.S.

132 (1925), et al. and the ‘‘administrative search’’

cases, Camara Vv. Muncipal Court, 387 U.S. 523 (1967)

et al. Only a ‘“‘horder search’ rationale could, ac-

cording to the plurality, justify warrantless searches

by immigration officers without probable cause.

That ‘border search’? meant more than searches at

the boundary between two countries is evidenced by

Justice Stewart’s resort to the enigmatic phrase

“functional equivalent.’’ Border searches may take

place ‘‘not only at the border itself, but at its func-

tional equivalent.”’ 41 U.S.L.W. 4972.

The judicial inquiry which Almeida-Sanchez man-

dates, therefore, is whether a search is a border search

since once it so finds a Court will not be required to

determine whether the search is justified on the basis

of a legally sufficient warrant or, if not, whether it

is nonetheless proper under one of the exceptions to

the warrant requirement.

The checkpoints in this District are by design lo-

eated away from the United States-Mexico boundary

line. To withstand constitutional attack they must,

under the plurality’s view, be located at the functional

equivalent of the border. Functional equivalency is a

slippery concept but it is this Court’s obligation to

give some substance to that term.

Justice Stewart, in aid of lower courts, provides

examples of what is meant by functional equivalency.

An established station near the border, a point mark-

22a

ing the confluence of two or more roads that extend

from the border, an international airport; these are

the functional equivalents of the border. A relatively

recent Fifth Cireuit case, United States v. Byrd, 483

F. 2d 1196 (5th Cir. 1973), suggests yet another

example of functional equivalency: where a _ geo-

graphical phenomenon, e.g., a river course, creates an

“avenue for [the] entry of illegal aliens.”’

These specifie examples suggest more generalized

criteria. The international airport illustration indicates

that the border or its functional equivalent is at the

first effective point of entry. The “established sta-

tion... near the border’’ example indicates a dual

concern with intrusiveness and reasonable relation to

the end pursued. The ‘confluence of two roads” illus-

tration reveals the Supreme Court’s manifest sensitiv-

ity to manpower shortages within the INS, and the

Fifth Cireuit’s example demonstrates a concern with

geography and local idiosyneracies.

Our judgment as to whether the checkpoints in the

Southern District are at the functional equivalent of

the border must be responsive to those concerns mani-

fested by the plurality opinion and by the Byrd

decisions—the latter echoing Mr. Justice Story’s com-

ment that ‘‘the court is bound to take notice of public

facts and geographical positions; and that this remote

part of the country has been infested, at different

periods, by smugglers, is a matter of general noto-

riety... .’’ In The Appollon, 22 U.S. (9 Wheat.)

159, 164-65 (1824).

ANALYSIS OF THE OPERATION OF INDIVIDUAL TRAFFIC

CHECKPOINTS

This Court next turns to a particularistie survey

of each temporary or permanent checkpoint in this

District in order to determine whether searches con-

23a

ducted at those checkpoints are border searches as

required by Almetda-Sanchez.

I. CHULA VISTA SECTOR CHECKPOINTS

A. SAN DIEGO COUNTY

San Diego County has a 70-mile border with Mexico.

Proceeding east from the Pacific Ocean is the South

Bay area which presents a serious obstacle to illegal

alien traffie because of the military patrols at Ream

Field, a U.S. Government installation. The slough of

the Old Tijuana River is an additional barrier and

effectively stops the illegal aliens from walking up

the beach to the City of Coronado. East along the

river bottom is agricultural land which, as you ap-

proach the San Ysidro port of entry, turns into a

rapidly developing area with considerable freeway

construction and a great congestion of traffic. East of

the port of entry is an area with a series of deep

finger canyons that cross the international boundary.

These deep gullies provide natural conduits or avenues

for illegal alien traffic. Continuing in an easterly

direction, we find the Otay Mesa area which is a flat

area extending to the foot of Otay Mountain. This

rough terrain is a virtual sluiceway for the alien

traffic. Between 150 and 200 apprehensions are made

each night along this eight-mile section. Next is a

very rough mountainous area from Otay Mountain,

3572’ in height, over to the Tecate gap. Just before

getting to the Tecate port of entry (a City of 12,000

population), we find the Marron Valley area and 3,885

foot high Tecate Peak with several passes through

the mountains easily accessible from Mexico. The very

rugged terrain, east of Tecate, discourages all but the

most physically vigorous alien. Further east is the

Hipass area which is a high plateau with numerous

trails and roads over which four-wheel drive vehicles

244

ean move. Then at the line between San Diego and

Imperial Counties, we find a rough and inhospitable

area just before the escarpment drops off into the

Imperial Valley.

The actual international border is marked, when

possible, by a five strand barbed wire fence, but at no

place does the fence constitute an effective barrier.

North of the border is the area where the illegal

aliens, having walked across or otherwise entered

this country, are picked up in vehicles. This zone of

pickup spots and drop houses includes the South Bay

area (Imperial Beach), the City of Chula Vista and

the farm roads on Otay Mesa and on Highway 94.

The South Bay area and Chula Vista are the densely

populated southern suburbs of the City of San Diego,

the second largest city in population in California.

San Diego and the area lying just east of San

Diego is densely populated. Further east, however,

the population becomes very sparse as you enter the

rugged mountain areas.

North of San Diego are the northern suburbs of

the city, with the populated areas becoming very few

once we pass north of the City of Oceanside and

Escondido.

North of Oceanside, Camp Pendleton, the U.S.

Marine base, occupies almost all the space between

the mountains to the east and the ocean to the west.

The location of Camp Pendleton and the mountains

of eastern San Diego County act to funnel all north-

erly traffie along Interstate Routes 5, 15 and State

Route 79. Traffie of any kind through the Marine

Camp is carefully regulated and the Camp itself is

under 24 hour patrol.

B. SAN CLEMENTE CHECKPOINT (ROUTE I-5)

On Interstate Routh 5, north of Oceanside, approxi-

mately 62 air miles and 66 road miles from the bor-

25a

der is a permanent U.S. Border Patrol checkpoint on

a stretch of road which is straight and provides a

good view of the checkpoint to oncoming traffic.

This checkpoint is the primary, or cornerstone,

checkpoint maintained by the Border Patrol in this

District. Over 12,000 deportable aliens were appre-

hended there alone in fiscal year 1973. The daily logs

of this checkpoint from January through August 1973

show that it is an unusual 8 hour shift that does

not result in a least 20 or 30 apprehensions. This

checkpoint is in operation approximately 60 to 70 per-

cent of the time.

Approximately one mile south of the checkpoint is

a large black on yellow sign with flashing yellow

lights over the highway stating “All Vehicles, Stop

Ahead, 1 Mile.” Three-quarters of a mile further

north are two black on yellow signs suspended over

the highway with flashing lights stating ‘‘Watch For

Brake Lights.” At the checkpoint, which is also the

location of a State of California weighing station, are

two large signs with flashing red lights suspended

over the highway. These signs each state “Stop

Here—U.S. Officers”. Placed on the highway are a

number of orange traffic cones funneling traffic into

two lanes where a Border Patrol agent in full dress

uniform, standing behind a white on red “Stop” sign

checks traffic. Blocking traffic in the unused lanes are

official U.S. Border Patrol vehicles with flashing red

lights. In addition, there is a permanent building

which houses the Border Patrol office and tempo-

rary detention facilities. There are also floodlights for

nighttime operation.

At the point of the checkpoint’s location on the

west is a very narrow strip of land which then drops

off to the Pacific Ocean, while on the east is Camp

Pendleton Marine Base. Camp Pendleton is heavily

patrolled by the Provost Marshal and does not have

26a

any direct roads through it. Consequently, all north-

bound traffic is funneled through one of the three

checkpoints in the Chula Vista sector, with the ma-

jority going through San Clemente.

While there is a great deal of commuter traffic

south of Oceanside, the traffic at the Interstate 5

checkpoint is predominantly inter-city with few com-

muter vehicles passing through. Also, at this location

the volume of traffic is the lowest of any point on

Route 5 between San Diego and Los Angeles. The

traffic flow between Los Angeles and San Diego resem-

bles a barbell with Los Angeles and San Diego form-

ing the weighted portions and the I-5 checkpoint

heing the point least burdensome to traffie along the

connecting bar.

San Clemente’s operating procedure is unlike any

other checkpoint operated in this District. The agent

on the point does not converse with the oeeupants of

the vehicles as a general rule, instead, he checks the

traffic visually and directs those vehicles he believes

needs further inspection to the side of the road, where

another officer makes further inquiry regarding the

status of the occupants. At San Clemente approxi-

mately 3° of the vehicles are actually stopped and

directed off the side of the road for further inquiry

and possible inspection.

To insure its effectiveness the Border Patrol

attempts to operate this checkpoint around the clock

every day of the week, but due to safety factors, such

as traffic flow, and weather conditions, the checkpoint

has not been operated on that basis in the recent past.

C, TEMECULA CHECKPOINT (INTERSTATE ROUTE 15)

This is a permanent checkpoint located on Inter-

state Route 15 (Old 395) approximately 64 air miles

and 70 ground miles from the international border.

Its location is north of the Temecula River and just

27A

south of the junction of Route 15 with State Route 71

which comes in from the east.

The actual checkpoint is located at a point along

a straight portion of Route 15 which provides a good

view to the oncoming traffic. In operation the usual

orange traffie cones channel the two lanes of traffic

into one lane with the aetual checkpoint being manned

by an agent standing in the road. The checkpoint has

a light pole which supplies electricity for floodlights

for night operations and to supply the flashing red

lights mounted on the Border Patrol vehicles which

are parked on the side of the road.

During fiscal year 1973, the Temecula station

reported that approximately 8,100 deportable aliens

were apprehended during traffic checking operations.

Reference to the detailed logs of activity for the first

eight months of calendar 1973 reflects that virtually

every shift which operated during this period appre-

hended deportable aliens. The apprehension of forty

aliens during any one day of operation was not con-

sidered unusual.

While there is a great deal of commuter traffic

south of Escondido, with bumper to bumper traffic on

Route 15 at many places, the traffic volume at the

Temecula checkpoint location is one of the lowest at

any place along Route 15 from San Diego to River-

side, California.

The operating procedures at this checkpoint are

much like all others, except San Clemente, in that the

officer on point introduces himself with ‘‘Good morn-

ing, this is an immigration checkpoint. What is your

citizenship, please?”’ After this and the response from

the occupants the vehicle either is allowed to proceed

or is detained for a short period to inspect the

vehicle. The inspector generally takes no longer than

two to three minutes. At Temecula the percentage of

vehicles stopped for conversation ranges from 15 to 50

28a

percent depending upon the volume of traffic, while

the percentage of vehicles actually inspected would

amount to about 5 percent of all vehicles.

D. OAK GROVE CHECKPOINT (STATE ROUTE 79)

This checkpoint is maintained on a straight portion

of Highway 79 approximately 10 miles south of the

Riverside County line and 56 air miles and 91 road

miles from the Mexican border. It is maintained

intermittently, being in operation no more than 20

percent of the time.

With the exception of a trailer, used as an office at

this location, this checkpoint has the usual equipment

and the operating procedures in regard to traffic

handling are conducted as at Temecula. The per-

centage of vehicles which are stopped is close to 100

pereent, with many of the stops being solely for an

exchange of courtesies. This is made possible by the

low volume of traffic on this highway. Highway 79

from Interstate 8 in San Diego to Riverside County

has a very limited traffic flow and the number of

vehicles passing through this checkpoint is one of the

lowest of any place along this highway.

Il. EL CENTRO SECTOR

A. IMPERIAL COUNTY

Imperial County lies to the east of San Diego

County and extends to the California-Arizona border.

The terrain along the border from San Diego, moving

east is very rough, with rocks and eanyons which

are almost inaccessible. This is followed by a drop

down to the desert, at sea level, which continues to

approximately 10 miles west of Calexico where agri-

cultural land begins with the All American Canal

running adjacent to the boundary line. The farm

land continues east for about 10 miles and then the

29a

remaining area, extending to the California-Arizona

border, is all sandy desert. The entire Mexican border

adjacent to Imperial County is approximately 75

miles long with the only population of note being

in Calexico, a City of about 18,000, on the California

side, and Mexicali, the capital of Baja, California,

with a population of approximately 400,000, being

directly across the border from Calexico. The only

fence along the boundary line is a limited five mile

long length around the port of entry at Calexico.

The County has several areas which have been de-

clared off-limits to the public in that they comprise

U.S. Government reservations. The most significant

of these is the aerial gunnery range in the Chocolate

Mountains. The gunnery range encompasses a large

part of the land area of Imperial County stretching

from the Orocopia Mountains in the North along the

Coachella Canal (which runs Northeast of the Salton

Sea) and as far Southeast as Highway 78. Other na-

tural geographic features are the Salton Sea in the

northwest portion of the county which is 45 miles long

and 15 miles wide, and the two large desert regions

in the county. East of the East Highland Canal are

sand hills which cover an entirely desolate desert area

with virtually no inhabitants whatsoever. In the west-

ern part of the County is also uninhabited desert

from the Salton Sea south to the Mexican border. The

population of Imperial County is situated in the

center of the County where there is a large concentra-

tion of excellent farm land. Through this entire re-

gion there runs a number of parallel roads northward

which funnel eastbound traffic onto Routes 78 and In-

terstate 8 to Arizona and onto Routes 86 and 111 to

the northwest towards Riverside and Los Angeles.

Because of the natural configuration of the land and

the establishment of the gunnery range, there are only

30a

a few roads which can be taken by the average ve-

hicle to areas lying north or east of the County.

B. STATE ROUTE 86

The Border Patrol has established a checkpoint on

Route 86 west of the Salton Sea National Wildlife

Refuge just north of the intersection of State Route

78. This location is approximately 36 air miles and

49 road miles from the Mexican border. The check-

point is bordered on the east by farm land extending

for about three miles to the Salton Sea. To the west

and south of this checkpoint lies desert.

At this location the Border Patrol has a building

and traffic check signs together with blinker lights.

A power source is located at the facility. The signs

are of the usual type and the floodlights at night cause

the area to be very well lit. As can be seen from pho-

tographs introduced by the government, the area is

desolate country with virtually no inhabitants be-

tween the checkpoint and the border.

The Border Patrol attempts to keep this checkpoint

operating on a 24-hour basis and in fiseal 1973 they

operated around 6,000 hours which is approximately

65 to 70 percent of the time.

At this checkpoint the checking operations are of

the usual type with about 75 percent of the vehicles

traveling through it being stopped for inquiry with

around 10 percent to 15 percent of all vehicles being

detained for further inspection. It is estimated that

over half of the vehicles at this checkpoint have come

directly from Mexicali or have occupants who walked

across the horder at Calexico.

During the first ten months of calendar year 1973

approximately 690 deportable aliens were appre-

hended at this checkpoint according to the detailed

traffic logs maintained hy the Border Patrol.

3la

This checkpoint is located on a point with one of

the lowest volumes of traffic along Route 86 north of

the population centers of Calexico, Brawley and EF]

Centro.

C. ROUTE 111

On State Route 111 seven miles north of Niland,

California, between the Salton Sea and the Chocolate

Mountain Aerial Gunnery Range, and approximately

44 air miles and 51 road miles from the Mexican

border, is another fixed checkpoint.

This checkpoint and that on Route 86 constitute

the major traffie checkpoint operations in Imperial

County and are geared to check all northbound traftic

leaving the border region in a northwesterly direction.

Traffic logs reveal that for the first ten months of

calendar vear 1973 approximately 730 deportable

aliens were apprehended at this location, which has

the lowest volume of traffic of any point on Route 111.

The operating procedures at this checkpoint are

much like its Salton Sea companion on Route 86, with

approximately 75 percent of all vehicles being stopped

for a limited verbal inquiry and approximately 10

percent of all vehicles being given some type of

cursory inspection before resuming their journey

northward.

The physical arrangement of the checkpoint is in

accord with official policy in that the checkpoint has

all the usuai equipment including nighttime lighting

facilities.

D. HIGHWAY 78 AT OGILBY ROAD

The Border Patrol also maintains a checkpoint on

Highway 78 just north of the juncture of Ogilby

Road and approximately 12 miles northeast of Glamis,

California. This checkpoint is about 31 air miles and

37 ground miles from the Mexican border. Ogilby

Road has recently been paved and it extends directly

32a

from Interstate Route 8 which at the point of that

intersection is about three miles from the interna-

tional boundary line.

This checkpoint has the usual accessories, including

a portable light plant, and is operated like the check-

points at Routes 86 and 111, with approximately 75

percent of all vehicles being subject to some limited

inquiry.

During fiscal year 1973 the checkpoint was operated

for about 2,000 hours while during the first ten months

of calendar year 1973 over 660 deportable aliens were

apprehended at this checkpoint.

The location of the checkpoint is east of the Navy

Gunnery Range and, in conjunction with the Route

111 checkpoint, serves to straddle that government

reservation. This location on Highway 78 has an esti-

mated northbound traffic volume of around 450 vehi-

cles daily and has almost the least traffic on Route 78

from its junction with Route 111 in Brawley to its

end at Interstate Route 10 near Blythe, California.

The terrain in the immediate area and south of this

checkpoint is that of virtually uninhabitable desert.

E. ROUTE S-22

The Border Patrol operates a checkpoint on Route

S-22 west of Salton City located approximately 45 air

miles and 71 ground miles from the Mexican border.

Youte S-22 is the only route east of Route 79 coming

from San Diego County which provides egress from

that county, and it runs just north of the fossil beds

in the West Imperial County desert.

The operation of the checkpoint is basically the

same as that of the checkpoint on Route 78 with

warning signs, blinking red lights on the vehicles and

with an electric power source for nighttime use.

This checkpoint is maintained, because Route S-22

33A

otherwise could be used as a bypass around the

Imperial County sector.

Operations at this fixed checkpoint are on about a

50 percent level and during the first ten months of

calendar year 1973 almost 340 deportable aliens were

apprehended at this checkpoint.

F. OTHER FIXED CHECKPOINTS

In addition to the four main checkpoints discussed

ahove, the Border Patrol also operates other check-

points in Imperial County on oceasion.

1. The Border Patrol operates a checkpoint occa-

sionally on a dirt road which parallels the Coachella

Canal at a point north of the cheekpoint on Route 111.

This roadway could be used to circumvent or bypass

the Route 111 highway and checkpoint and its opera-

tion is to avoid such usage. It is an extremely desolate

area near the Navy Gunnery Range. Verv few vehi-

cles use the road, typically an average of around three

or four vehicles during an eight hour period. The

checkpoint is operated like the others in this sector,

but with far less equipment.

2. On Route S-2 at the junction of Highway S-2

and Shell Canyon Road at Ocotillo, California, the

Border Patrol occasionally maintains a fixed check-

point. The terrain here is desolate desert with no

homes in the area which is approximately 8 miles due

north of the international boundary line with Mexico.

Given the verv light traffie on S-2 the checkpoint has

& minimum of equipment on hand. During fiseal year

1973 this checkpoint was open only 200 or 250 hours

and during the first ten months approximately 40

deportable aliens were apprehended at this checkpoint.

3. South of the S-—2 checkpoint the Border Patrol

occasionally maintains a checkpoint on Interstate 8

(I-8) approximately six miles west of Ocotillo, Cali-

fornia. The operations here are only when the Border

34a

Patrol has specific information of a smuggling effort

coming out of the desert area. The equipment is of a

portable nature. During the first ten months of eal-

endar 1973 the checkpoint was in operation over

135 hours and almost 70 deportable aliens were

apprehended.

4. In addition, the Border Patrol operates two

checkpoints during the harvesting seasons for the

purpose of checking the labor buses early in the

morning to apprehend any illegal aliens who have

evaded the line watch patrols. For convenience, these

two checkpoints have been designated ‘‘A,”’’ located

at the intersection of Cole Road and Highway 111

about one mile from the border, and ‘‘B,’’ located on

Highway 98 at the intersection of Interstate 8 about

two miles from the border. The checkpoints are set up

for only a few days during the year for a very short

period, and yet the results normally produce appre-

hensions of 20 or 30 deportable aliens within a few

hours each day. Traffic logs maintained for these agri-

cultural bus checks on Highway 111 show 191% hours

of operation during October 1973, producing 100

apprehensions. In June 1973, the same checkpoint

operated for only 16 hours and yet 103 deportable

aliens were located.

CONCLUSION

Having analyzed with particularity the character-

istics and operating procedures of each of the check-

points within this District, we turn now to measure

each checkpoint against the ‘“‘border search’’ definition

of Almetda-Sanchez.

Previously we have noted that under Almeida-

Sanchez, border searches are those which take place

at the first effective point of entry subject to the

tests of intrusiveness and reasonable relation to the

end pursued and to due consideration for geographic

characteristics and available manpower resources.

35a

The San Clemente checkpoint is constitutional under

these criteria. It is located at the point at which

traffic volume is the lowest along the main artery

connecting Los Angeles with San Diego. California

Dept. of Public Works, Div. of Highways, 1972

Traffic Volumes on the California Highway System,

19 (1972). The checkpoint entails for the average

motorist nothing more than a fleeting stop; even for

those vehicles selected for actual inspection the delay

is slight. Bounded on the east by Camp Pendleton

and on the west by the Pacific Ocean, the checkpoint

straddles a natural corridor along which illegal aliens

frequently travel in their migration towards the labor

markets in the north. Even though the checkpoint is

in operation for less than 24 hours per day, it is a

permanent checkpoint in that it never varies with

respect to location and closes only in response to

heavy traffic or adverse weather conditions—cireum-

stances both of which affect the safety of the stop

and its intrusiveness.*

The San Clemente checkpoint is the cornerstone of

the checkpoint system. Once the checkpoint along

Interstate 5 is designated, the various other checkpoints

fall into place since each checkpoint relates to all

others in such a manner as to preclude evasion by the

use of bypass roads. Clearly there is no one spot which

The Government argues that San Clemente as well as the

other checkpoints in this District meet Justice Powell’s require-

ments for the equivalent of probable cause. Furthermore, citing

United States v. Schafer, 461 F. 24 856 (9th Cir. 1972), the

Government contends that having established the equivalent of

probable cause no warrant is required because of the “inherent

distinction” between roving searches (where Justice Powell

would require an area search warrant) and checkpoint searches.

In view of our holding that the checkpoints are the functional

equivalents of the border, however, we need not consider this

argument.

36a

is constitutionally mandated to fix a checkpoint.

Rather there is a constitutionally permissible zone

within which the jealously guarded Fourth Amend-

ment rights and legitimate needs of law enforcement

can coexist. San Clemente is within that zone.

Likewise, the Temecula checkpoint is within the

constitutionally permissible zone. Although not situ-

ated at the least intrusive point along Interstate 5,

the Temecula checkpoint’s location is largely depend-

ent on the positioning of the Interstate 5 checkpoint

and on the existence of bypass routes, such as State

Highway 71 and County Route 16, which otherwise

would compromise the integrity of the checkpoint

system. No two checkpoints screening traffic along the

westernmost and middle routes of the Chula Vista

Sector which illegal aliens frequently follow to the

north could be chosen which together interfere less

with highway traffic yet avoid circumvention by so-

phisticated alien smugglers.

The Temecula checkpoint is also a permanent check-

point. It is constant with respect to location; while

it operates less than 24 hours per day it does operate

for substantial periods of time. The checkpoint is

located along the second major conduit in the Chula

Vista Sector to the Los Angeles area as evidenced hy

the large numbers of illegal aliens apprehended at

Temecula.

The third checkpoint within the Chula Vista Sector

is the Oak Grove checkpoint. Oak Grove is a tempo-

rary checkpoint even though it is consistently located

at or about the same spot along State Route 79. Oak

Grove is operated, however, only about 20 percent of

the time. Although Justice Stewart’s opinion classifies

checkpoints in terms of temporary and permanent, we

see no constitutional issue turning on that distinction.

We note, however, that we do not have before us a

case where the checkpoint varies substantially both in

37A

terms of location and time of operation. Oak Grove

while temporary in time is fixed in location and,

therefore is not constitutionally distinguishable from

the other fixed checkpoints of San Clemente or

Temecula.

In view of the trickle of traffie moving on Highway

79 from Interstate 8 to Riverside, Oak Grove does

not interfere with any significant movement of the

public. Nevertheless, the geographic contours of the

area are such that this area is the third gate to the

north within the Chula Vista Sector. The exact loca-

von of Oak Grove is nearly predetermined by the lo-

cation of the other two checkpoints within this sector.

If the Oak Grove checkpoint were moved closer to

the border, smugglers could easily bypass the station

by driving along the routes leading to the San Cle-

mente or Temecula checkpoint and merely turning

east as soon as they reached a point north of Oak

Grove.

The checkpoints in the Chula Vista Sector reen-

force each other and each prevents the circumvention

of any other checkpoint; they are a system and one

cannot be tampered without affecting the positioning

of the others. Once Interstate 5 is positioned, the op-

tions for establishing other checkpoints are severely

reduced. In addition, one must keep in mind that

checkpoints are also established to police the limita-

tions of I-186 cards, i.e. restriction on alien passage

to within 25 miles north of the border and for 72

hours. In view of all the circumstances, we hold that

the Chula Vista Sector checkpoints are at the func-

tional equivalent of the border.

The fixed checkpoints in Imperial County not only

tend to ensnare those unwary illegal aliens who have

crossed the international boundary into Imperial

County at a point other than a formal border cross-

ing, but also serve to confront, detect and apprehend

38a

illegal entrants who have crossed the boundary into

San Diego County and attempt to evade confronting

the checkpoints there by swinging east into Imperial

County, from there intending to move northward. In

this regard it must once more be observed that the

checkpoints in the Southern District ought to be con-

ceptualized as parts of a systemic, integrated whole in

which each part is, to some extent, interdependent

upon the functioning of the other parts.

The checkpoint on Route 86 is situated at a point

with one of the lowest volumes of traffic on that high-

way, thus tending to cause little intrusion and

inconvenience to travelers, as well as scarcely imped-

ing the goal of safe driving. This checkpoint is not

easy to intentionally cireumvent without being steered

into another checkpoint on another highway, in that

it is bordered by the Salton Sea on one side and desert

on the other. It lies just 36 air miles from the Mexi-

ean border and it has been estimated that over half

of the vehicles reaching this checkpoint have come

directly fom Mexicali, B.C., Mexico. Accordingly, the

Court finds that this checkpoint constitutes a func-

tional equivalent of the border.

The checkpoint on Route 111 also is located such

that it is not easily bypassed, lying between the Sal-

ton Sea and the Chocolate Mountain Aerial Gunnery

Range. Traffic logs indicate that this particular lo-

eation has the lowest volume of traffic of any point on

this highway, thus making this checkpoint as mini-

mally intrusive and inconvenient to the innocent as a

checkpoint could be on this highway. This checkpoint,

lying 44 air miles from the border, complements the

checkpoint on Route 86, thus together constituting the

major traffic checkpoint operations in Imperial

County. The Court finds this checkpoint to be the

functional equivalent of the border.

Os Es

Pt Os ee

39a

The checkpoint on Route 78 is situated just north

of its junction with Ogilby Road, a paved road which

commences about 3 miles from the border and then

extends northward for some 24 miles through no

towns and utterly barren desert. This checkpoint,

lying about 31 air miles from the border is located,

then, immediately after the confluence of two high-

ways leading north from the border. In that this

checkpoint is adjacent to the Aerial Gunnery Range

and surrounded on all other sides by virtually unin-

habitable desert, it is not easily circumvented by one

seeking to avoid detection by moving in a northeast-

erly direction from the border. It is located at almost

the least-traveled spot on Route 78 between Brawley

and Blythe, California, where Route 78 ends. Thus,

there is little intrusion and inconvenience to innocent

travelers on this highway caused by the checkpoint.

The Court finds it to be the functional equivalent of

the horder.

Route S-22, west of Salton City, California, is the

site of a checkpoint located about 45 air miles from

the border. This highway, running east and west, pro-

vides egress from San Diego County for those illegal

entrants who might be endeavoring to bypass check-

points in that county, as well as the more southerly

checkpoints in Imperial County. So situated, it com-

plements the network of checkpoints to the west in

San Diego County, rendering them more effective.

The Court finds this checkpoint to be the functional

equivalent of the border.

Though the above-listed and discussed checkpoints

constitute the primary part of the checkpoint scheme

in Imperial County, there are a number of infre-

quently-operated, temporary checkpoints occasionally

utilized in the County. These checkpoints have been

cited and discussed on pages 31 and 32, above, under

40a

the subheading “OTHER FIXED CHECK-

POINTS.”

The checkpoint on the dirt road parallelling the

Coachella Canal constitutes a manifestly insignificant

intrusion on the travelling publie, with only three or

four vehicles per eight hours passing by on the

average. This checkpoint is designed to thwart those

entrants who would evade the Route 111 cheekpoint.

Thus it complements the efficacy of that checkpoint.

The two checkpoints together would be difficult to

hypass, the Salton Sea being on one side of them and

the Aerial Gunnery Range on the other. The Court

finds this temporary checkpoint to be the functional

equivalent of the border.

The temporary checkpoint on Route S—2 and Shell

Canyon Road at Ocotillo, California, lies only 8 miles

north of the border. The terrain consists of desert and

there are no homes in the area. Nor are there any

other towns in the vicinity. Due to its extreme prox-

imity to the border and distance from the nearest

border crossing, the Court finds this checkpoint to be

the functional equivalent of the border.

The checkpoint established occasionally on Inter-

state 8, six miles west of Ocotillo, is only about five

miles from the border with no homes or towns in

between. As a matter of practical fact, this check-

point is operated only when the Border Patrol

acquires information indicating a smuggling effort is

proceeding in that direction and thus, perhaps, prob-

able cause to stop and question may well often be

established by such information. In any event, due to

its proximity to the border, the lack of anything

except desert in between the checkpoint and the

border, and the distance of about 35 air miles from the

nearest formal border crossing, the Court is con-

vineed that this temporary checkpoint is also the

functional equivalent of the border.

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4la

The checkpoints operating briefly each year during

the harvesting seasons, lying respectively only one

and two miles from the border, checking the early

morning labor buses, result typically in 20 to 30

apprehensions of illegal entrants within a few hours

each morning of operation. Due, again, to the prox-

imity to the border of these checkpoints and the very

limited intrusiveness and inconvenience (as with all

of these temporary checkpoints), as well as the

specificity of information being acted upon, the Court

finds these two checkpoints to be the functional equiv-

alent of the border.

Howarp B. TuRRENTINE,

United States District Judge.

Dated: December 5, 1973.

Copy to: All Counsel.

= eee

a6 wet es on

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APPENDIX D

United States District Court for the Southern District

of California

(Criminal Case No. 16360)

UnitTep STaTes OF AMERICA, PLAINTIFF

v.

Luis ANTONIO ORTIZ, DEFENDANT

STIPULATION

(Honorable Epwarp ScCHWARTz. )

United States of America, by and through its coun-

sel, Assistant United States Attorney Michael E.

Quinton, and the defendant, Luis Antonio Ortiz, by

and through his counsel, Frank Ragen, hereby stipu-

late and agree that if the following named witnesses

were called during the trial of the defendant, each

would testify as follows:

Emilio Rivas-Jimenez, Arturo Rivas-Jimenez and

Buenaventura Ytza-Oxte would testify that each of

them is a resident and citizen of Mexico, who was

born in Mexico and has no legal right to enter or to

remain in the United States. Each of the above named

aliens entered the United States within the last three

vears.

The defendant on November 12, 1973 in or around

Oceanside, California, placed the three above-named

aliens in the trunk of the automobile and drove them

to the San Clemente Checkpoint where all of them

were arrested by a Border Patrol agent.

It is further stipulated that the above stipulation

43a

44a

of testimony of Emilio Rivas-Jimenez, Arturo Rivas-

Jimenez and Buenaventura Ytza-Oxte may be admit-

ted at the trial of Criminal Case No. 16360 as evi-

dence against the defendant, Luis Antonio Ortiz, or in

any other criminal proceeding before the courts of

the United States concerning Criminal Case No.

16360. The defendant, Luis Antonio Ortiz, hereby

waives his right to confront and cross-examine Emilio

Rivas-Jimenez, Arturo Rivas-Jimenez and Buenaven-

tura Ytza-Oxte at trial or in any other proceeding.

It is further stipulated that the three above-named

aliens may be released from custody as material wit-

nesses and need not be held to testify on behalf of

the defendant, Luis Antonio Ortiz.

Border Patrol Agents Francis, Buchert and Daven-

port would testify that on November 12, 1973, each

is an agent of the United States Border Patrol, a

division of the Immigration and Naturalization Serv-

ice of the United States Department of Justice.

Border Patrol Agents Francis, Buchert and Daven-

port would testify that each and every one of them

of them was on duty at the United States Border

Patrol Immigration Checkpoint at San Clemente,

California. On that date, the defendant, Luis Antonio

Ortiz, was observed to be driving a 1969 Chevrolet

sedan, California license number X XK 600 northward

on Interstate Highway 5 toward Los Angeles. The

vehicle driven by the defendant was referred to the

secondary inspection area of the Border Patrol check-

point, the trunk of the automobile was opened by the

Border Patrol and Emilio Rivas-Jimenez, Arturo

Rivas-Jimenez and Buenaventure Ytza-Oxte were

found concealed inside the trunk of the automobile.

The defendant, Luis Antonio Ortiz, waives his right

to confront and cross-examine Border Patrol Agents

Francis, Buchert, and Davenport regarding their

testimony and hereby stipulates that the above sum-

AR tb ome

en Se i ee aes

45a

mary of their testimony may be admitted at the trial

of Criminal Case No. 16360 as evidence in that case or

in any other criminal proceeding before the courts of

the United States concerning Criminal Case No. 16360.

Dated: December 4, 1973.

Respectfully submitted.

Frank J. RAGEN,

Attorney for the Defendant,

MicHaEL E. QUINTON,

Assistant U.S. Attorney,

Luts ANTONIO ORTIz.

It is so Ordered.

ated: December 5, 1973.

Epwarp J. ScCHWARTz,

United States District Judge.

APPENDIX E

EXCERPT FROM TRANSCRIPT OF TRIAL PROCEEDINGS

DECEMBER 5, 1973

The Court: On the basis of the evidence submit-

ted pursuant to the stipulation, it will be the finding

of the Court that the defendant is guilty beyond a

reasonable doubt of the charges contained in Indict-

ment No. 16360, in Counts 5, 6, and 7 thereof, which

pertain to the aliens who are named in the stipulation

and whose testimony is received pursuant to the

stipulation.

The testimony, of course, of the Border Patrol

Agents Francis, Buchert, and Davenport is also re-

ceived pursuant to the stipulation.

It appears that the three aliens named in Counts

5, 6, and 7, nameiy, Buenaventura Ytza-Oxte, Arturo

Rivas-Jimenez, and Emilio Rivas-Jimenez, were

placed by the defendant, on November the 12th, 1973,

near Oceanside, in the trunk of an automobile driven

by the defendant and the automobile was then driven

to the San Clemente checkpoint, where the vehicle was

referred to the secondary inspection area and the

trunk thereof opened and the three named aliens were

found concealed inside the trunk of the automobile.

I would hold that the San Clemente checkpoint is

a permanent checkpoint and that the stopping of the

vehicle and the search by the Border Patrol was a

valid, legal search.

The Court also, from the facts presented in evi-

dence, and particularly the concealment of the three

aliens inside the trunk of the automobile, would infer

os ete on, 47a

48a

the necessary knowledge on the part of the defendant,

that they were illegally in the United States and that

their entry into the United States occurred less than

three years prior to November 12, 1973, that they are

in fact and were at that time illegal aliens who had

no legal right to be in the United States, and that

each of them was being illegally transported by the

defendant in violation of Title 8, United States Code

Section 1324(a) (2).

* * as * *

US. GOVERNMENT PRINTING OFFICE: 1974