# Petition — United States v. Ortiz

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 422 U.S. 891

## Text

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.

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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

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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-

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0132%3A1. Public record. Not legal advice.