Petitioners Brief — Sifuentes v. United States

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+3 Supreme Court, U &

FILED

| JAN 9 1976

MICHAEL ROCAK. §9.. cicex

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-5387

RODOLFO SIFUENTES,

Petitioner.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

BALLARD BENNETT

14 Henson Building

Weslaco, Texas 78596

(512) 968-8111

Attorney jor Petitioner

Waspington OC e@ CLB PUBLISHERS e LAW PRINTING CO. e (202) 39306275

OPINIONS BELOW

JURISDICTION

(i)

TABLE OF CONTENTS

CONSTITUTIONAL PROVISION, STATUTE AND

eee 2

QUESTIONS PRESENTED

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT:

THE INTRUSIONS OF THE BORDER

PATROL AT THE SARITA CHECKPOINT

VIOLATED PETITIONER’S CONSTI-

TUTIONALLY PROTECTED RIGHTS

Travelers within this nation have the

constitutional right to free passage with-

out interruption or search by officers

possessing neither a warrant nor reason-

able grounds for suspicion ............

The Border Patrol checkpoint operations

do not come within any recognized

exception to the warrant requirement of

the Fourth Amendment ............. .

The reasoning of Camara v. Municipal

Court gives no support to warrantless

Checkpoint intrusions. ................

AT THE CHECKPOINT THE _ INDI-

VIDUAL’S INTERESTS OUTWEIGH

THOSE OF THE GOVERNMENT

The checkpoint procedures are incom-

patible with the personal freedoms guar-

anteed citizens of this nation ..........

B. Governmental needs are not well served

ff eee rere ed ks

- i SS ee a ee es oS hlUchlUe ln a On Oo ne oe ie a

Cale Lae ee ae Os ee ee er ee Om a . & Ce 6 eke & 6

2S awake we wy es . oe es lh he Oe

>. &: 2a

(as,

Page

C. The checkpoint is a cancer in our free

society, and this malignancy should be

excised before it spreads ............2..2-- 45

CONCLUGIOM oc cece ectwesesessnuen eee 49

TABLE OF AUTHORITIES

( ases

Adams v. Williams, 407 US. 143 2.1. ce ccnsccveueen 25

Almeida-Sanchez v. United States, 413 U.S. 266 ..... passim

Beck v. Ohio, 379 US. GD... 2c eee cs scnesseunuee 21

Bolling v. Sharpe, 347 U.S. 497)... 2. ee ee eee eee. 36

Brinegar v. United States, 338 U.S. 160 ............ 17, 23

Cady v. Dombrowski, 413 U.S. 433... 2.2... ee eee eee 21

Camara v. Municipal Court, 387 U.S. 523 .... 11-12, 26, 27, 29

Carroll v. United States, 267 U.S. 132. -........ 9,17, 19, 23

_ Chambers v. Maroney, 399 US. 42... 6... eee eee 17, 23

aia Catering Corp. v. United States. 397 U.S. “i

Coolidge v. New Hampshire, 403 U.S. 443 .......---.--. 30

Crandall v. Nevada. 73 U.S. (6 Wall.) 35) 2... 2... ee eee 17

Dyke v. Taylor Implement Mfg. Co., 391 US. 216 ....... 17

Fernandez v. United States, 321 F.2d 283 (C.A.9) ....... 38

Frank v. Maryland, 359 US. 360... 0... cee cee we ee el,

Henry v. United States, 361 U.S.98 .........55..--. on

Johnson v. United States, 333 US. 10 ............-.--. 21

Katz v. United States, 389 U.S. 34% ..........-. 10, 20, 31

McDonald v. United States, 335 U.S. 451 2.2.2... 2... eee. 32

Miranda v. Arizona, 384 U.S. 436 .. ’ poate te 22

Orozco v. Texas, 994 US. SOO. hse eet v sen weesngue 22

Schmerber v. California, 384 U.S. 757 ............--. 20

(iii)

Page

Shapiro v. Thompson, 394 U.S. 618 ................ 17

serum v. New York, 392 US. 40 ...... 2... 0.8. .0050002

State of Texas v. Gonzales, 388 F.2d 145(C.A.5) .......22

ee wean 11, 25, 36

United States v. Biswell, 406 U.S. 311 ............. 23,24

United States v. Bowman, 487 F.2d 1229(C.A.10)....... 16

United States v. Brignoni-Ponce, 95 S.Ct. 2574 ....... passim

. United States v. Fuentes, 379 F.Supp. 1145 (S.D.

Tex.), aff'd mem., 517 F.2d 1401 (C.A. 5)... . 1,2, 22,34

United States v. Kirschenblatt, 16 F.2d 202 (C.A.

EE IE ee 46

United States v. Martinez-Fuerte, 514 F.2d 308

(C.A. 9), cert. granted, October 6, 1975 ......... passim

United States v. Ortiz, 95 S.Ct. 2585 .............. passim

United States v. Santibanez, 517 F.2d 922 (C.A. 5) . . 2, 16, 29,

30, 31

United States v. United States District Court, 407

EEN EE ee 40

Constitution, Statutes and Regulations:

United States Constitution, Fourth Amendment ...... passim

ee ee eek eee hee seo seeee 7

a EG ere 3, 17, 22

1S UBL. 3556. ...... eed se ae Weds oa + oo 0) < 42

1S Usk. tsvemte) ...... eae aik seb e s © wees & &e 44

a ae ce a beet deed ous 44

ee a en 2

i eee ee die ak yg bob heh ered 8 6.8 “44

re ee ee Ss oe eee cued kh Cae 6 Ue a oF

Miscellaneous:

Horgan, Great River, The Rio Grande in North

American History (1954), volume 2... 2... 6... 4]

(iv)

Newsweek, November 24, 1975 .............:

President's Commission on Law Enforcement and

Administration of Justice, Task Force Report:

ee EE 'n 5S 4k bn bik Bk eS SO O82

United States ». Brignoni-Ponce, Supreme Court No.

74-114, Brief for the United States .........

United States v. Martinez-Fuerte, Supreme Court

No. 74-1560. Brief for the United States ......

. 2 2 ae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-5387

RODOLFO SIFUENTES.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

OPINIONS BELOW

The District Court’s memorandum opinion of August

2, 1974 (A. 31-32), is unreported; however, there is

expressly incorporated by reference in_ this memor-

andum opinion the opinion of the same Court in the

case Of United States v. Fuentes, (A. 33-53), which

opinion is reported at 379 F.Supp. 1145.' The Court

ot Appeals affirmed summarily in the present case.

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be

citing only its recent decision in United States yv.

searched, and the persons or things to be seized.

Santibanez (A. 58). The judgment of the Court of

_Appeals in the present case is reported in the table 2. Section 287(a) of the Immigration and Nationality

appearing at 517 F.2d 1402. The opinion in United Act, 66 Stat. 233, 8 U.S.C. 1357(a), provides in

States v. Santibanez is published at 517 F.2d 9222 pertinent part: ;

JURISDICTION

The judgment of the Court of Appeals was entered

August 8. 1975 (A. 58). The petition for writ of

certiorari was filed September 4, 1975, and it was

granted on November I1, 1975 (A. 59). with the

directive that oral argument would be in tandem with

United States v. Martinez-Fuerte, Supreme Court No.

74-1560. The jurisdiction of this Court rests on 28

U.S.C. 1254(1).

CONSTITUTIONAL PROVISION, STATUTE

AND REGULATION INVOLVED

1. The Fourth Amendment to the Constitution

provides: tro

The right of the people to be secure in their

persons, houses, papers, and effects. against

unreasonable searches and seizures, shall not be

‘The Court of Appeals summarily. affirmed United States v

Fuentes, see the table at 517 F.2d 1401 (C.A. 5).

*A rehearing en bane has been denied by the Court o!

Appeals in United States v. Santibanez; see the table at 520 F.2d

944 (CA. 5).

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 believed

to be an alien as to his right to be or to remain in

the United States:

* * * x *

(3) within a reasonable distance from any

external boundary of the United States, to board

and search for aliens any véssel within the

territorial waters of the United States and any

railway car, aircraft, conveyance, or vehicle, and

within a distance of twenty-five miles from any

such external boundary to have access to private

lands, but not dwellings, for the purpose of

patrolling the border to prevent the illegal entry of

aliens into the United States; * * *

3. 8 C.F.R. 287.1 provides in pertinent part:

(a)(1) External boundary. The term “external

boundary,” as used in section 287(a)(3) of the

Act, means the land boundaries and the coast line

of the United States, including the ports, harbors,

bays and other enclosed arms of the sea along the

coast, and a marginal belt of the sea extending

three geographic miles from the outer limits of the

land that encloses an arm of the sea.

(2) Reasonable distance. The term

“reasonable 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 district

director. or, so far as the power to board and

search aircraft is coneerned, any distance fixed

pursuant to paragraph (b) of this section. |

(b) Reasonable distance, fixing by district direc-

tors. 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 trans-

portation 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 ef-

fecting illegal entry into the United States: Provided,

That whenever in the opinion of a district director

4 distance in his district of 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 report with respect to-the matter to the

Commissioner, who may. if he determines that

such action is justified, declare such distance to be

reasonable.

QUESTIONS PRESENTED

|. Did the Court of Appeals correctly decide that the

rights of Petitioner under the Fourth Amendment to

‘the Constitution had not been violated when he was

stopped without cause, suspicion or warrant at a

permanent Border Patrol checkpoint between 65 and 90

miles from the border for the purposes of inspecting

afd questioning him and visually searching the lower

interior of his vehicle?

Il. Away from the border, do the same Fourth

Amendment rules and guarantees apply to stops at

Border Patrol checkpoints as apply to stops by Border

Patrol roving patrols?

IIl. Do Fourth Amendment guarantees forbid the

Border Patrol, without a warrant of any kind, from

making an investigative stop of every vehicle that travels

through a permanent checkpoint located many miles

from the border?

STATEMENT OF THE CASE

Facts

In the early morning hours of April 28, 1974, the

Petitioner's car was routinely stopped by the United

States Border Patrol at the checkpoint it operates near

Sarita on U.S. Highway 77 (A. 11-13). The Petitioner

was driving his car on this occasion (A. 13). Border

Patrol Agent De Leon, who was checking the cars

stopped at the checkpoint, could see only the Petitioner

in the car as he approached the stopped vehicle (A. 13,

17); but when he got near enough to see down onto

the car’s seats, he saw another person on the front seat

and three more persons on the back seat, all lying down

and pretending to be asleep (A. 13, 17, 22-24). These

four passengers could not be seen from the car’s

window by Agent De Leon until he got “right on” the

car; therefore, he would not have seen them if he had

not walked over and looked down into the stopped

vehicle (A. 22-24). Agent De Leén questioned the four

passengers in Petitioner's car and determined they were

all citizens of Mexico who did not have papers (A.

af @-

13-14); and the Petitioner was subsequently charged

with illegally ‘*ansporting these four aliens on this

occasion (A. 4-5).

The Petitioner was arrested at the checkpoint; and he

drove an officer and these four aliens to the Kingsville

jail, where he and the aliens were confined (A. 29). The

four aliens, after being found guilty of being in the

United States illegally and receiving suspended sentences

on April 29, 1974, were held in jail as material

witnesses by the Government until the trial of

Petitioner (A. 28).

The Border Patrol checkpoint at which Petitioner's

car was stopped is about 90 miles north of Brownsville,

Texas (A. 12). This is a permanent checkpoint which is

operated 24 hours a day and is closed only when bad

weather causes poor visibility on the highway (A. 15).

It is between 65 and 90 miles from the nearest point

on the Mexican border (A. 15-16).

At the time in question, all vehicles passing north

through this checkpoint were being stopped and

checked, except those containing persons the officers

could recognize as being residents of the checkpoint

area (A. 12). It was the routine at this checkpoint for

an officer to approach close cnough to every stopped

vehicle to enable him to visually inspect its interiors,

unless the occupants proved to be local people who

were known to the gE te two

officers working at the checkpoint and two more

backed them up as “road officers” (A. 18). The Border

Patrol agent did not know that the four passengers were

illegal aliens until they were interrogated after Petition-

er had been stopped at the checkpoint (A. 18).

U.S. Highway 77, on which the checkpoint in

question is located, runs north from) the Mexican

border, and between the checkpoint and the border on

this highway are the cities of Brownsville, San Benito,

Harlingen and Raymondville, which are fairly large

cities (A. 18). There are also several small communities

on this highway between the border and the check-

point, and two entire counties—Willacy County and

Cameron County—lie between these points (A. 18-19).

U.S. Highway 77 runs north from the checkpoint to

Kingsville, Victoria and on beyond into the interior (A.

18). A substantial amount of traffic flows north on

U.S. Highway 77 and through this checkpoint (A. 19).

This checkpoint has been located at the same spot

since August, 1973, but the Border Patrol had a moving

checkpoint in this area for some years before that time

(A. 25, 27-28). There are signs, flashing lights, traffic

cones and official vehicles at this checkpoint (A.

16-17).

Trial in the District Court

In the Southern District of Texas, Brownsville

Division, Petitioner was charged in a_ four-count

Indictment with transporting the illegal aliens by means

of a motor vehicle from near Progreso, Texas, to near

Sarita, Texas, in violation of Section 1524(a)(2), Title

8, United States Code (A. 4-5).

Before trial Petitioner moved to suppress all evidence

obtained by the Government at the time of or as a

result of the stopping of his automobile at the

checkpoint (A. 1, 6-8), and the trial court elected to

“carry it along” (A. 9-10) and heard this motion with

the jury trial on the merits (A. 11, 29-30). The

Petitioner entered a plea of “not guilty” to all four

counts (A. 1). At the trial no other witnesses were

called by the Government except Border Patrol Agent

De Leon and the four aliens who had been in

Petitioner's vehicle, and the testimony of these

witnesses was admitted into evidence despite Petition-

er’s objections and his motion to suppress same (R.,

vol. Il, 7-147, 258). The motion to suppress was

overruled when the Government rested its case (A.

28-29). The motion was renewed at the close of all the

testimony and again was overruled (A. 29-30). The jury

found the Petitioner “guilty” on all four counts (A. 2).

He was sentenced to concurrent terms of two years of

imprisonment on counts | and 2, with all but six

months of the sentence suspended in favor of three

years of probation. He was also sentenced to concurrent

terms of two years of imprisonment on counts 3 and 4,

to run consecutively with the sentence imposed on

counts | and 2: but the sentence on counts 3 and 4

was suspended in favor of three years of probation (A.

54-55).

Court of Appeals

An appeal was taken to the United States Court of

Appeals for the Fifth Circuit (A. 3, 56}. Thereafter, the

Court of Appeals, sua sponte, transferred the case to its

Summary Calendar for disposition without oral argu-

ment (A. 57) and summarily affirmed the conviction

(A. 58).

= eee + erm =

SUMMARY OF ARGUMENT

The Ninth Circuit in United States v. Martinez-

Fuerte, 514 F.2d 308 (C.A. 9), certiorari granted

October 6, 1975, was correct when it held that “the

probable, indeed actual, degree of interference with the

rights of innocent persons at the checkpoint is

intolerable” (id. at 322). The Fifth Circuit was wrong

when it determined that Petitioner’s constitutional

rights were not violated by the Border Patrol when he

was stopped at the checkpoint because the stop was not

sufficiently intrusive. Judicial precedents support the

holding of the Ninth Circuit.

A. There is a constitutional guarantee that travelers

lawfully within this country are entitled to use the

public highways without interruption or search unless

there is a probable cause for a search. Carroll v. United

States, 267 U.S. 132, 154. But despite the cases which

support this guarantee, it was previously claimed that

the Border Patrol could, away from the border, stop a

motorist, question him and search his vehicle for aliens,

without warrant, reasonable suspicion or probable

cause. A large portion of this claimed exception to the

free-passage doctrine was refuted by the cases of

Almeida-Sanchez v. United States, 413 U.S. 266, United

States v. Brignoni-Ponce, 95 S.Ct. 2574, and United

States v. Ortiz, 95 S.Ct. 2585: but these cases did not

resolve the question of whether the Border Patrol can

stop a motorist, question him and visually search the

interior of his vehicle, without warrant, cause or

suspicion, at a permanent interior checkpoint. However,

there would appear to be no significant distinction

between stops by roving patrols, which were held to be

unlawful without reasonable suspicion, and stops at

checkpoints, except perhaps that the operations of the

checkpoints constitute a greater impediment to the free

passage of travelers than do roving-patrol operations.

B. While the Fourth Amendment forbids only

“unreasonable” searches and seizures, in determining

whether a search and seizure is “unreasonable” the

starting point is whether the officer had a valid warrant,

as there are only a few specifically established and

well-delineated exceptions to the warrant requirement.

Katz v. United States, 389 U.S. 347. One of the most

important exceptions to the warrant requirement

involves a search made incident to a lawful arrest. When

Petitioner was stopped at the Sarita checkpoint, his

constitutional rights were intruded upon in_ the

following ways: (1) by the stop, which took him into

official custody (or seized him and his car); (2) by the

agent conducting a visual search of his car’s interior:

and (3) by being questioned. Since these unlawful

intrusions were accomplished before the formal arrest

of Petitioner, the arrest could not validate the prior

intrusions.

Another exception to the warrant requirement

permits the searching of a vehicle when the acting

officer has facts or information constituting probable

cause to believe that an offense involving the particular

vehicles was being committed. But in the case of a

roving-patrol stop for an immigration investigation, only

reasonable suspicion is required. The routine checkpoint

stop. however, is made without either probable cause or

reasonable suspicion concerning the particulai vehicle

being halted.

In the case involving the narrow field of commercial

enterprises that are federally licensed, such as dealing in

guns, a limited inspection can be made without a

warrant or specific facts justifying the intrusion. But

this exception to the warrant requirement is based upon

the proposition that a man who elects to engage in such

a business which is closely regulated and licensed must

accept the burdens with the benefits. Obviously, this

exception has ne application to the interior checkpoints

where intrusions are made upon all travelers who are

motoring north.

The last exception to the warrant requirement

needing consideration is the “stop and frisk”’ situation

of Terry v. Ohio, 392 U.S. 1. It has been held that if

an officer conducts such a “‘stop and frisk”’ of a person

in a street encounter, the officer must have first been

aware of specific facts which would lead a reasonable

man to believe that such actions are appropriate. This

reasoning was extended to the situation involving a

roving patrol stop for an immigration investigation. ~

However, the cases in this area strongly support the

proposition that a routine checkpoint intrusion is

unlawful because it is done without any specific facts

concerning the particular vehicle that is stopped.

C. Mr. Justice Powell in his concurring opinion in

Almeida-Sanchez v. United States, supra, 413 U.S. 266,

275-285, suggested that roving patrol stops could be

authorized by obtaining an area-type warrant based

upon supporting information relating to criminal

activity in the area and other factors, rather than upon

information concerning a particular vehicle. Such a

procedure would be an expansion of that approved in

the administrative inspection situation presented in

Camara vy. Municipal Court, 387 U.S. 523. Since the

Border Patrol in the present case had not obtained a

warrant, these opinions can not be used to justify the

intrusions of Petitioner's rights at the checkpoint

because neither opinion suggested that a warrant could

be completely excused.

The Government has in other cases involving Border

Patrol stops attempted to justify the intrusions simply

on the ground that they were “reasonable.”” Applying

the “reasonableness” test requires the balancing of the

magnitude of the intrusions involved against the public

need for the Government to accomplish the intrusions.

A. When a motorist comes within sight of agents at

the checkpoint. he is immediately deprived of his right

to free passage for he then comes within the custody

and contro} of such agent. Should he decline to stop at

the checkpoint. he will »e pursued and captured. Also,

the right of personal secrecy and privacy is violated at

the checkpoint. The motorist has an area in the lower

portion of his vehicle which can not be seen from the

outside when traveling at highway or even lesser speeds.

This area of vehicular privacy is violated by the

checkpoint procedures. The verbal probes at the

checkpoint further violate this basic right.

Travelers also have a right to be free from arbitrary

interference and regimentation by the Government. The

continuous and massive intrusions at the checkpoints

instinctively repel free people. Though a checkpoint

stop may not be as frightening to the individual as a

stop by a roving patrol, it is in reality considerably

more dangerous because, at least at the Sarita

checkpoint where Petitioner was stopped, it takes place

in the middle of a major highway where cars coming up

from the rear are traveling at highway speeds. A drunk

driver and a checkpoint are a dangerous mixture.

In considering the magnitude of the checkpoint

intrusions, it should be kept in mind that the residents

of the border area must face them again and again. A

roving-patrol stop may be an isolated experience for the

individual who is stopped, but the checkpoint stop

comes on every occasion that a motorist leaves the

border area. It is specious to isolate one checkpoint

Stop and say that it is of little consequence when

millions of such intrusions occur each year.

A large portion of the population of the Lower Rio

Grande Valley of Texas, who must go through the

Sarita checkpoint or some other checkpoint in order to

travel north, have some of the characteristics which

could be deemed “suspicious” under the opinion in

United States v. Brignoni-Ponce, supra, 95 S.Ct. 2574.

2582-—they are of Mexican ancestry and poorly

groomed. The checkpoint is a particularly unpleasant

experience for this large segment of the lawful residents

of this area since such characteristics can earn them a

prolonged investigation at the checkpoint. On the other

hand, people who are wealthy enough to buy or rent an

airplane need never even encounter a checkpoint: it is

only the poor and middle classes which have no

alternative but to pass through them if they travel

north from the border. “Field interrogations” are a

major source of friction between police and minority

groups, and the checkpoints clearly fall into this

category.

B. If there are in fact 10 to 12 million illegal aliens

now in this country, with 85 percent having come from

Mexico, this would strongly indicate that the check-

points, which allegedly are the backbone of the Border

Patrol’s enforcement efforts, are not effective and not

indispensable. Other statistics confirm this conclusion,

such as the fact that during an eight-day period at the

San Clemente checkpoint only about 0.12 percent of

the vehicles encountered were found to have illegal

aliens.

The Border Patrol has not been provided with

sufficient men and money to do the job it has been

assigned, so it is not surprising that it has chosen to

employ these checkpoints. Though the problem of

illegal aliens may become substantial, this nation has

effectively met greater challenges when it has decided

to pay the price in terms of money and materials. The

border can be virtually sealed at the Rio Grande and

other physical boundaries if this mation decides this

objective is worth the cost.

There are other means which could be authorized

that would be relatively inexpensive but which could

greatly alleviate or perhaps completely solve the illegal

alien problem. The most promising of these would be

to impose criminal sanctions on the employers of illegal

aliens. How can we ever expect to control a problem

when we do not even punish the people who create

it the employers of iilegal aliens? It would also be

beneficial to impound and forfeit vehicles that are used

to knowingly transport illegal aliens.

The argument that a particular police procedure is

ubsolutely necessary for law enforcement is always

raised whenever such procedure is attacked on consti-

tutional grounds. The Border Patrol has other means of

accomplishing its mission besides checkpoints, and there

is no evidence that checkpoints well serve the national

interests.

C. In the balance between the good and the evil of

checkpoints, one extremely important consideration is

their great and inherent potential for political abuses.

The checkpoints are Orwellian devices which might be

employed by a domineering political party, bent on

perpetuating itself in power, to manipulate and oppress

all or a_ portion of the public. If held to be

constitutional in the present case, there would be no

logical, reasonable and fair way to restrict the

checkpoints to the south 100 miles of this nation. Also,

if such devices can constitutionally be utilized to

apprehend illegal aliens, there will be an attempt torby

other police organizations to employ them in other

law-enforcement areas. In this way our nation could

slowly but surely become infested with checkpoints to

control various types of crime, and this would greatly

impair our freedom. If the illegal alien problem must be

eliminated, we should do so with money and materials:

the checkpoints are too high a price to pay. They

should be eliminated before they spread.

ARGUMENT

THE INTRUSIONS OF THE BORDER PA-

TROL AT THE SARITA CHECKPOINT

VIOLATED PETITIONER’S' CONSTI-

TUTIONALLY PROTECTED RIGHTS.

With an exhaustive analysis, the United States Court

of Appeals for the Ninth Circuit held in United States

y. Martinez-Fuerte, 514 F.2d 308 (C.A. 9), certiorari

granted October 6, 1975, that with or without an area

inspection warrant the Border Patrol must have a

founded suspicion in order to stop a vehicle at a

permanent interior checkpoint. But in summarily

affirming the conviction of Petitioner, the Fifth Circuit

cited only its recent opinion in United States v.

Santibanez, 517 F.2d 922 (C.A. 5), which held without

elaboration that there was no constitutional dereliction

in stopping a vehicle at a permanent interior checkpoint

because “|s]uch a stop is considerably less intrusive

than a search” (id. at 923).° It is submitted that the

Fifth Circuit erred in the Santibanez case (and also in

Petitioner's case) while wholly failing to address itself

to important constitutional considerations. On the other

hand, the great weight of reason supports the Ninth

Circuit’s conclusion that “the probable, indeed actual,

degree of interference with the rights of innocent

persons at the checkpoint is intolerable” (United States

», Martinez-Fuerte, supra, 514 F.2d at 322). Judicial

decisions in this and related areas buttress the holding

of the Ninth Circuit.

>The Tenth Circuit has also upheld the warrantless checkpoint

procedures. United States v. Bowman, 487 F.2d 1229 (C.A. 10).

A.Travelers within this nation have the consti-

tutional right to free passage without inter-

ruption or search by officers possessing

neither a warrant nor reasonable grounds for

suspicion.

Freedom to move within the interior of the United

States is a constitutional right of its citizens. Shapiro y.

Thompson, 394 U.S. 618; Crandall v. Nevada, 73 U.S.

(6 Wall.) 35. Furthermore, in the landmark opinion of

Carroll vy. United States, 267 U.S. 132, 154, it was

proclaimed that travelers lawfully within this country

are entitled to use the public highways without

interruption or search unless there is a probable cause

for a search. A long line of subsequent cases said that,

at the very least, there must be probable cause in order

to stop and search an automobile. £.g., Chambers y.

Maroney, 399 U.S. 42: Dyke v. Taylor Implement Mfg.

Co., 391 U.S. 216; Brinegar v. United States, 338 U.S.

160.

Despite the Carroll case and those following it, the

Border Patrol has previously taken the position that it

could stop and search, by roving patrol or by

checkpoint, any and every vehicle found within 100 air

miles of the border, without warrant, cause or

suspicion, basing this asserted autority on 8 U.S.C.

1357(a) and the reguiation pertaining thereto, 8 C.F.R.

287.1. In effect, this claimed authority constituted an

exception to the free-passage doctrine and amended the

famous language of Mr. Chief Justice Taft found in

Carroll v. United States, supra, 267 U.S. at 154, as

follows:

But those lawfully within the country, entitled to

use the public highways, have a right to free

passage without interruption or search unless there

is known to a competent official, authorized to

search, probable cause for believing that their

vehicles are carrying contraband or illegal mer-

chandise, [or unless such travelers pass within 100

air miles of the Mexican border over public

highways where relatively high-ranking officials of

the Border Patrol have decided to install highway

checkpoints or operate roving patrols. |

in Almeida-Sanchez v. United States, 413 U.S. 266, it

was determined that at least a portion of this claimed

exception to the free-passage doctrine would not be

recognized. The Almeida-Sanchez case considered a stop

and extensive search by a roving patrol; and two years

later there came United States yv. Brignoni-Ponce, 95

S.Ct. 2574, which involved a stop and questioning by a

roving patrol, and its “traveling” companion, United

States v. Ortiz, 95 §.Ct. 2585, which involved a stop

and search of a car’s trunk at a checkpoint. These two

more recent cases also refused to find that the

Government's claimed exception limb had been lawfully

grafted on the free-passage tree. However, both the

Brignoni-Ponce and the Ortiz cases left open the

question, presented herein, of whether Border Patrol

officers may lawfully stop a motorist, question him and

visually search the interior of his vehicle, without

warrant, cause Or suspicion, at an established check-

point many miles from the border.

It would certainly appear, however, that there is no

significant distinction between, on the one hand, stops

by roving patrols for questioning, without warrant or

reasonable suspicion, which were held to be unlawful in

United States v. Brignoni-Ponce, supra, 95 S.Ct. 2574:

and, on the other hand, stops at checkpoints for

questioning, also without warrant or reasonable sus-

picion. If there is such a distinction, it is that the

operations of checkpoints constitute much greater

impediments to traffic than the operations of roving

patrols. Every car that passes a checkpoint comes into

the custody and control of the Border Patrol, while a

roving patrol stops only a very limited portion of the

total traffic on a particular road. At the San Clemente

checkpoint, involved in United States v. Ortiz, supra, 95

S.Ct. 2585, over 10 million cars a year encounter the

Border Patrol intrusions (see id. at 2587). In _ this

regard, it might also be noted that the word

“checkpoint” is a Border Patrol euphemism for a

roadblock,* and the checkpoints effectively do just

that—block roads with signs, traffic cones, flashing

lights, uniformed officers and official vehicles (ibid. and

A. 16-17). There can be no doubt that checkpoints are

completely incompatible with the free-passage doctrine

of the Carroll case.

B. The Border Patrol checkpoint operations do

not come within any recognized exception to

the warrant requirement of the Fourth

Amendment.

It is clear that the language of the Fourth

Amendment forbids only “unreasonable” searches and

*Since the courts, in most instances, employ the word

“checkpoint” to these police devices, the terms will be used

herein, although the word “roadblock” seems to be more

descriptive. Unless otherwise indicated, however, “checkpoint”

will refer herein to a permanent checkpoint situated many miles

from the border and the functional equivalents of the border.

seizures, but it is not so clear how to determine what is

“unreasonable” in a_ specific situation. Since the

wording of this Amendment passes smoothly from the

prohibition of such unreasonable searches and seizures

into an enumeration of the requirements for a warrant,

it is not surprising that there has been found a strong

link between the question of reasonableness and the

requirement for a valid warrant. Thus the presence of

or lack of a judicial warrant is almost always the

starting point in considering any Fourth Amendment

problem because “searches conducted outside the

judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth

Amendment. subject only to a few specifically estab-

lished and well-delineated exceptions” (Katz v. United

States, 389 U.S. 347, 357, footnotes omitted). In the

instant case there was no warrant, valid or otherwise, so

the inquiry turns to whether the operations of the

Sarita checkpoint, as inflicted on Petitioner, fall within

the tew established exceptions to the warrant require-

ment.

One of the most important exceptions to the

requirement of a warrant involves a search or intrusion

made incidential to a lawful arrest.S But this arrest

The arrest exception to the warrant requirement may be the

most trequently invoked of the specifically recognized ex-

ceptions. The scope of this exception was tested in the case of

Schmerber v. California, 384 U.S. 757, involving the removal of a

blood sample from a person under a lawful arrest. And because

in that) instance there was an intrusion beyond the body's

surface, it was also required that the officer who directed the

blood be taken have reason to believe that there was an

emergency in which a delay to obtain a warrant could lead to

destruction of evidence. This further requirement was satisfied by

the officer having good reason to believe that the man was

intoxicated and that, therefore, the percentage of alcohol in his

blood was diminishing as time passed. It was also indicated that

the blood had to be drawn in a medically sound and safe

manner. /d. at 769-772.

exception has significant limitations, one being that if

the arrest is not itself lawful then it can not support a

search incidential thereto. Beck v. Ohio, 379 U.S. 89.

Consequently, an originally defective arrest can not ve

justified by what a subsequent search discloses. Henry

v. United States, 361 U.S. 98. In the Henry case FBI

agents observed two men loading a car under what the

agents considered suspicious circumstances. When the

car drove away, the agents followed it, stopped it and

arrested Henry after overhearing a request made by him

to his companion. The Court in the Henry opinion

indicated that the stopping of the car was an arrest and

that it must therefore be justified on the same basis as

any other warrantless arrest; hence stolen property

found in Henry’s car after his arrest could not be used

to establish the probable cause required to authorize

the arrest (id. at 103-104).°

A correlative limitation of the arrest exception to the

warrant requirement is that a preceding search or

intrusion can not be validated by a subsequent arrest.

Sibron v. New York, 392 U.S. 40; Johnson v. United

States, 333 U.S. 10. In the present case the Border

Patrol intrusions at the checkpoint, prior to Petitioner's

arrest, were threefold. First, the Petitioner was stopped

and taken under Border Patrol control, which can also

be characterized as a seizure of the person and/or

automobile. United States v. Brignoni-Ponce, supra, 95

S.Ct. 2574, 2578-2579.7 Second, the Border Patrol

*But United States v. Ortiz, supra, 95 S.Ct. 2585, indicated

that a stop at a checkpoint is not an arrest; and United States v.

Brignoni-Ponce, supra, 95 S.Ct. 2574, also indicated that a

roving-patrol stop was only a brief detention short or traditional

arrest.

*Within the meaning of the Fourth Amendment's language, an

automobile is considered an “effect.” Cadv v. Dombrowski, 413

U.S. 433, 439.

Dae.

-_—

agent conducted a visual inspection of the lower

interior of Petitioner's vehicle. Since this was an area

that the agent would not have been able to see if he

had not first stopped the car and approached close enough

to look down onto its seats, this part of the procedure

can properly be characterized as a search. United States

. Fuentes, 379 F.Supp. 1145 (S.D. Tex.) aff'd mem.,

517 F.2d 1401 (C.A. 5) cf State of Texas vy.

Gonzales, 388 F.2d 145 (C.A. 5). Third, the agent

interrogated the Petitioner and the other passengers in

the car.” It was only when the Border Patrol agent had

accomplished these three checkpoint intrusions of a

stop, a search and an interrogation that the arrests of

Petitioner and his alien passengers were made. There-

‘Considering a checkpoint stop and search, Judge Reynaldo

G. Garza, who presided at Petitioner's trial, said in United States

r. Fuentes, 379 F.Supp. 1145 (S.D. Tex.), affd mem., 517 F.2d

1401 (CLA. 5), as follows:

From the onset, this Court wishes to make clear that it

is proceeding on the theory that the initial stop was made

tor the purpose of visually inspecting the passenger section

of the car and ascertaining the citizenship of the occupants,

pursuant to 8 U.S.C. 1357. Thus, this Court must pass on

the legality under the Fourth Amendment of not one, but

nwo searches: the initial inspection and the subsequent

search of the trun’ (id. at 1147-1148, emphasis added).

“The record clearly reflects that the Border Patrol agent

conducted the preliminary interrogation of Petitioner and

determined that the passengers were aliens with “no papers”

without first warning them of their constitutional rights

concerning self-incrimination (A. 13-14). This in itself would

seem to be an unlawful procedure in view of Orozco v. Texas,

394 US. 324. 327, and Miranda vy. Arizona, 384 U.S. 436, 477,

which hold that an individual should be given the required

warning When he has been deprived of his freedom of action in

any significant) way. Obviously, even at the time of this

preliminary interrogation the Petitioner and his passengers had

been deprived of their freedom to continue on their journey.

fore, Petitioner's arrest could in no way justify the

Border Patrol’s actions which are here in question.

Another well-defined exception to the warrant

requirement for search and seizure is based on the great

mobility of the motor vehicle and the problems such

mobility creates for law enforcement. This exception

provides generally that if it is not practicable to obtain

a warrant and if an officer has facts or information

constituting reasonable or probable cause to believe that

he will find the instrumentality of a crime or evidence

pertaining to a crime in a particular vehicle, then the

officer may stop and search the vehicle under suspicion.

Chambers vy. Maroney, supra, 399 U.S. 42; Brinegar v.

United States, supra, 338 U.S. 160; Carroll v. United

States, supra, 267 U.S. 132. The recent case of United

States v. Brignoni-Ponce, supra, 95 S.Ct. 2574,

extended this exception somewhat in the situation

where a roving patrol stops a vehicle to ascertain

whether it contains illegal aliens, by holding that Border

Patrol officers must have only reasonable suspicion,

rather than probable cause, for such a stop. However,

the decisions which deal with this exception to the

warrant clause do not support the Border Patrol’s

routine checkpoint intrusions, including those inflicted

upon Petitioner, for the reason that these intrusions are

made without any prior information or facts which

could evoke even a_ reasonable suspicion about a

particular vehicle.

One very limited area in which neither a warrant nor

facts justifying the specific intrusion may be required is

an inspection, under proper statutory authority, of a

commercial enterprise that is federally regulated and

licensed. United States v. Biswell, 406 U.S. 311;

Colonnade Catering Corp. v. United States, 397 US.

72. But this narrow exception is based upon the

proposition that there can reasonably be a specific and

detailed inspection scheme, carefully limited in time,

place and scope, imposed upon a business that has

traditionally been closely regulated and licensed by the

Government because those who choose to engage

therein accept the bitter burdens along with the sweet

rewards which accompany an activity such as dealing in

liquor (Colonnade case) or in firearms (Biswell case).

Obviously. one who elects to engage in such a business

us selling firearms has voluntarily stepped into a sphere

separate and apart from the normal and customary

activities of the average citizen: and he knowingly

submits himself to pervasive, well-defined and specific

governmental control. There is no constitutional

doctrine guaranteeing freedom for dealing in firearms or

the like: but. as seen hereinabove, there is a doctrine

guaranteeing the right of travelers to free passage Over

public highways without interruption or search.

It should be apparent that the limited rule of the

licensing cases do not apply to the broad stream of

citizenry which flows each hour over roads where the

Border Patrol conducts its extensive operations, yet in

{lineida-Sanchez v. United States, supra, 413 U.S. 266,

the Government contended that the licensing cases

could justify a roving stop and search (id. at 270-272).

Surely. Mr. Justice Powell was correct when, in his

concurring opinion in Almeida-Sanchez, he said, “Col-

onnade and Biswell cannot fairly be read to cover cases

of the present type” (id. at 281). Neither can these

cases be fairly read to cover the multitude of intrusions

on the rights of the traveling public which the

checkpoint operations accomplish every hour of every

day.

The last exception to the warrant requirement calling

for consideration is found in the street encounter or

“stop and frisk” situation. Terry vy. Ohio, 392 U.S. 1,

held that police conduct involved in a street stop and

pat-down for weapons, even though stopping short of a

“technical arrest” “Sf a “full-blown search,” was,

nevertheless, subject to Fourth Amendment restraints

(id. at 19). The acting officer, it was said, must be

aware Of specific and articulable facts which, taken with

rational inferences therefrom, reasonably warrant the

particular intrusions; and in making such assessment

the facts available to the acting officer at the moment

of seizure or search must be such as would cause a

reasonably cautious man to believe that the action

taken was appropriate (id. at 21-22). It is apparent

from the Jerry case and from the later case of Adams

v. Williams, 407 U.S. 143, that the validity of an

officer’s action in this situation must be justified from

its inception—an initial “stop” must be justified if a

subsequent “‘frisk” is to be upheld.

The reasoning of Terry v. Ohio, supra, 392 U.S. |,

and Adams vy. Williams, supra, 407 U.S. 143, was

applied in United States v. Brignoni-Ponce, supra, 95

S.Ct. 2574, the Court holding therein that a roving

patrol of the Border Patrol must have reasonable

suspiuion to justify the stop of a moving vehicle and

the interrogation of its occupants. But not only does

this line of cases not support the procedures practiced

by the Border Patrol at its checkpoints, it can fairly be

said that these decisions are strong authority for the

conclusion that checkpoint stops and subsequent

intrusions are illegal because such stops are routinely

inflicted on every car which comes down the pike, with

no articulable facts whatsoever known about a

particular vehicle before it gets to the blinking lights.

C. The reasoning of Camara v. Municipal Court

gives no support io warrantless checkpoint

intrusions.

In Almeida-Sanchez v. United States, supra, 413 US.

266, Mr. Justice Powell said, in his concurring opinion

(id. at 275-285), that roving-patrol stops and searches

would be constitutionally permissible if an area-type

warrant were obtained in advance; and he suggested

that such a warrant could be based upon supporting

information regarding the extent of illegal activity and

other factors found in the area of operations, rather

than upon information concerning a particular vehicle

(id. at 283-285). Mr. Justice White. speaking for the four

dissenters in this case, agreed that such a warrant would

satisfy Fourth Amendment safeguards (id. at 288). This

procedure suggested by Mr. Justice Powell would be an

expansion of the doctrine formulated in Camara vy.

Municipal Court, 387 U.S. 523.

The Camara decision. which involved an admini-

strative inspection for violations of a city Housing

Code. advanced the proposition that in the narrow field

of such administrative inspections the requirement of

probable cause could be modified somewhat as a

prerequisite for obtaining a warrant. It was indicated

that instead of requiring specific knowledge about the

condition of the particular structure to be inspected.

such a warrant could be based on such factors as the

nature of the building or the condition of the entire

area (id. at 538-539). The factors authorizing the

relaxation of the probable cause requirement were: (!)

a long history of judicial and public acceptance: (2) the

likelihood that no other method could protect the

public interests against the dangerous conditions which

such administrative inspections could discover; and (3)

the limited invasion of privacy which such admini-

strative inspections, not aimed at discovery of evidence

of crime, entail (id. at 536-537).

But neither the Camara opinion nor Mr. Justice

Powell’s concurring opinion in Almeida-Sanchez suggest

in any way that the warrant requirement can be

completely ignored. It can be noted that the specific

holding in the Camara case was that the defendant

could not constitutionally be convicted for refusing

entry to a building inspector who failed to obtain a

warrant. Frank vy. Maryland, 359 U.S. 360, to the

extent that it sanctioned warrantless inspections, was

thereby overruled (387 U.S. 528). Therefore, in the

present case the fact that the Border Patrol had not

seen fit to obtain a warrant authorizing the operation of

the Sarita checkpoint precludes reliance on these

authorities to attempt to justify the invasions of

Petitioner's constitutional rights.

AT THE CHECKPOINT THE INDIVIDUAL’S

INTERESTS OUTWEIGH THOSE OF THE

GOVERNMENT.

Although the official intrusions into individual

privacy, Which routinely and massively occur at Border

Patrol checkpoints operated without valid warrants, are

not sanctioned by any recognized exception to the

warrant requirement, in United States v. Brignoni-

Ponce, supra, 95 S.Ct. 2574, the Government sought to

justify a roving patrol stop and interrogation without

warrant or probable cause simply on the ground that

the intrusions were “reasonable” under the Fourth

Amendment when balanced against the governmental

benefits derived from such operations.'® The Court in

the Brignoni-Ponce case did not accept this contention,

but it did say that only reasonable suspicion, rather

than probable cause, was required for such action (id.

at 2580-2582). In the Martinez-Fuerte case, which is set

for argument in tandem with the present case, the

Government, in attempting to justify all checkpoint

intrusions, with or without a warrant, has again heavily

relied upon a balance between the public interest and

the individual's right to be free from official inter-

ference,'' this despite the obvious difficulty in finding

significant distinctions between the operations of the

checkpoints and the operations of the roving patrols. It

therefore appears that if the checkpoint procedures

without valid warrants are to be upheld it will be on

the basis of a “reasonable,” but new, exception chiseled

from the hard shield of the Fourth Amendment.

Perhaps it is desirable that, in applying the Fourth

Amendment, consideration of the intrusions be bal-

anced against the public needs. But if too many chunks

ure chiseled from this shield, it will soon cease to shield

See United States v. Brignoni-Ponce, Supreme Court No.

74-114. Brief for the United States at 22-31.

"See United States v. Martinez-Fuerte, Supreme Court No.

74-1500. Brief for the United States at 16-42.

us; and it might well be that great public needs are

much easier imagined than refuted.

Nevertheless, the “reasonableness” approach may be

alive and well; hence the difficult balancing of private

rights against governmental needs must be considered in

the context of the present case. The touchstone of this

approach was well and succinctly described by Mr.

Justice White, speaking for the Court, in Camara y.

Municipal Court, supra, 387 U.S. 523, as follows:

Unfortunately, there can be no ready test for

determining reasonableness other than by balancing

the need to search against the invasion which the

search entails (id. at 536-537).

While a balance can test both sides simultaneously,

herein the competing interests must be weighed in

sequence.

A.The checkpoint procedures are incompatible

with the personal freedoms guaranteed citi-

zens of this nation.

As noted at the beginning of Part | of this argument,

the Fifth Circuit, after the Brignoni-Ponce and Ortiz

decisions were handed down, affirmed the present case

and United States v. Santibanez, supra, 517 F.2d 922,

on the ground that “[s]uch a stop is considerably less

intrusive than a search” (id. at 923). So the nature and

extent of the intrusions which the Government inflicted

on Petitioner and other travelers must be considered in

some detail.

The instrusions in the present case occurred in the

hours of darkness on April 28, 1974, wheo Petitioner.

proceeding in his car north on a major highway in

southern Texas, was confronted by the Border Patrol

with signs, flashing lights, traffic cones, official vehicles

and a uniformed agent (A. 16-17). Petitioner was forced

to a complete stop,'? ‘and the Border Patrol agent

approached close enough to Petitioner's vehicle to be

able to see down into its lower interior and questioned

Petitioner about his citizenship. Then, upon discovery

of the four aliens, they too were asked about their

citizenship (A. 13-14). Though the Santibanez opinion

indicates that there is no search involved in the initial

checkpoint intrusions, it is contended by Petitioner, as

stated in Part | B of this argument, that when he came

into this governmental traffic net, he was forthwith

subjected to the three distinct intrusions of a stop,

which amounted to taking him into official custody and

control, an initial visual search'* (and perhaps, as may

'2Evidently the Sarita checkpoint permitted no “waive

throughs” or “fleeting stops” as is attributed to its San Clemente

cousin in United States v. Martinez-Fuerte, supra, 514 F.2d at

313, the only exception being local residents who endured this

checkpoint so frequently that they could readily be recognized

by an officer on duty (A. 12).

'SThe visual search of Petitioner's vehicle can not be justified

on the basis of the “plain view’ doctrine. One of the reasons

cars are stopped and approached by an agent at the Sarita

checkpoint is to afford the agent an advantageous view into the

vehicle which he would not have had except for the stop (A.

25-26). In Coolidge v. New Hampshire, 403 U.S. 443, it was said

regarding the “plain view” doctrine:

It is well established that under certain circumstances

the police may seize evidence in plain view without a

warrant. But it is important to keep in mind that, in the

vast majority of cases, any evidence seized by the police

will be in plain view, at least at the moment of seizure.

The problem with the “plain view” doctrine has been to

indentity the circumstances in which plain view has legal

significance rather than being simply the normal con-

comitant of any search, legal or illegal (id. at 465).

have occurred in Santibanez, an olfactory search as

well) and an initial interrogation.

By virtue of these intrusions Petitioner, and those

preceding and following him through such checkpoints,

have had invaded several important aspects of their

constitutional guarantees. For one, when a motorist

comes within sight of the agents at a checkpoint, he is

immediately deprived of the right to free passage and

movement which was described and examined in Part |

A of this argument. He is in the custody and control of

the agents on duty at the checkpoint from first sighting

until such time as he is given permission to leave, which

may or may not be a short interlude: and if he

attempts to escape this arbitrary detention by declining

to stop, he will surely be pursued and captured if

possible.

Further, the right of personal secrecy and privacy is

violated at the checkpoint. The ordinary passenger car

is not fully enclosed; but when traveling at highway or

even lesser speeds, it effectively furnishes a good deal of

privacy to its occupants, especially in the lower interior

below window level. It can be anticipated that some

people will dress in a more casual, more revealing, and

perhaps less socially acceptable attire when making an

extended motor trip than they would dress if they

were, for example, going shopping. Also, it is reasonable

to assume that some travelers have items in the lower

portions of their vehicles which, though legal, they

would prefer not to have exposed to one or more

strangers. There can be no doubt that the Fourth

Amendment protects individual privacy against unrea-

sonable intrusions by federal agents, (Katz v. United

States, supra, 389 U.S. 347): yet at the checkpoint the

traveler is, without warrant or justifying suspicion,

stopped, peered at and questioned.’* And if an

unfortunate motorist is deemed by the Border Patrol

agent to “break the pattern” (which might mean

anything the agent on duty at the time wants it to

mean) the motorist is further favored with a barrage of

rather personal verbal probes — “Where are you coming

from? Where are you going? Why are you going there?

Where do you live? Where do you work? Where were

your born?” may be just the prologue.

In addition, the traveler has the right to be free from

arbitrary governmental interference and regimentation.

Free people are instinctively repelled and irritated with

such continuous and massive intrustions by the

Government on the general traveling public as the

checkpoints effect. It may take only a few seconds to

clear a checkpoint after you get to where the inspecting

agent stands; but on a day of moderately heavy traffic

how long do you have to wait for the opportunity to

convince the agent that you are, yes truly, a United

States citizen?

The point was made in United States v. Ortiz, supra,

95 S.Ct. 2585, that a checkpoint stop is less li :ely to

frighten a motorist than is a stop by a roving patrol (id.

at 2587-2588). But it is submitted that if a checkpoint

stop is somewhat less frightening, it is also considerably

more dangerous than a roving-patrol stop because a

roving-patrol stop will not be made in the middle of a

major highway. At least at the Sarita checkpoint

involved in the present case and other checkpoints

14MfcDonald v. United States, 335 U.S. 451, stated:

The right of privacy was deemed too precious to entrust to

the discretion of those whose job is the detection of crime

and the arrest of criminals. Power is a heady thing, and

history shows that the police acting on their own cannot

be trusted (id. at 455-456).

operated like it, the traveler is forced to expose himself

to a serious danger which he wou'! not otherwise

encounter, to-wit: He is stationary in the middle of the

north-bound lane while traffic is coming up from the

rear at such highway speeds as are typically employed

in the Texas ranch country. This means that in order to

avoid a disaster the oncoming motorist must see the

Border Patrol’s checkpoint signals nd obey them with

some promptness. It is not here suggested that a

normal, sober driver would have difficulty performing

these procedures.'S However, the problem is that

periodically a driver comes along who does not possess

both characteristics, especially sobriety. This danger is

particularly present during the hours of darkness when

the ability to see is lessened, always by darkness and

sometimes by alcohol.

Petitioner submits that to allow checkpoint opera-

tions like the one near Sarita to continue will surely

doom a number of travelers and Border Patrol agents to

untimely deaths and serious injuries. Perhaps such tragic

checkpoint accidents have already taken place; but if

they have not, it is certain to be only a matter of time

until a drunk barrels into a chec. point, scattering cars

and agents like tenpins. The same accident could also

easily be caused by brake failure, especiaiiy if the

vehicle is one of the large trailer trucks which regularly

'SThe danger described is present even when traffic is light

and the weather good. Apparently, the Border Patrol recognizes

that the checkpoints are hazardous to motorists because the

checkpoints are not operated when the weather is bad or when

traffic becomes extremely heavy. See United States v. Martinez-

Fuerte, supra, 514 F.2d at 313. At the Sarita checkpoint the

north-bound traffic, which is being stopped, is separated from

the south-bound traffic, which is not being stopped, only by a

line of traffic cones (A. 16-17).

transport citrus and other farm products out of the

Lower Rio Grande Valley of Texas. Such a highway

calamity would almost be certain to cause multiple

deaths. Since the danger is so obvious, there can be

little doubt that it generates considerable apprehension

in the prudent motorists, who, while at the checkpoint,

anxiously look into their mirrors to watch the vehicles

coming up from the rear. Presumably, Border Patrol

agents get paid for exposing themselves to this and

other hazards; but for the travelers this exposure and

the accompanying apprehension is entirely gratuitous.

In considering the magnitude of these intrusions, it

should be kept in mind that they are inflicted again and

again on those who reside in the Lower Rio Grande

Valley and in the other areas along the Mexican border.

The locations of the Border Patrol checkpoints north ot

the Valley has effectively insured that motorists going

north from this border area must encounter a

checkpoint.'® In the case of a roving patrol stop, the

experience is probably isolated and perhaps even unique

for an innocent motorist. But the checkpoints must be

faced repeatedly by the residents of the Lower Rio

Grande Valley. For many, it is several times each year,

for others it is several times each month; and for still

others it is more than once a week.'? The resentment

generated by the checkpoint intrusions is quite

There are three checkpoints located in strategic positions

which cover vehicular traffic going north from the Lower Rio

Grande Valley. See United States v. Fuentes, supra, 379 F.Supp.

1145 (S.D. Tex.), aff'd mem., 517 F.2d 1401 (C.A. 5).

'7A¢count should also be taken of the people who, because

they reside in the immediate vicinity of the checkpoint, must

pass it almost daily (A. 12, 26).

naturally greatly magnified by repeated exposure to

them. In considering the balance between the detriment

to individual rights and the needs of law enforcement,

it would be specious to argue that one isolated

checkpoint intrusion is of little consequence, when the

real consideration should be the evils occasioned by

many millions of such encounters each year.

The Brignon+Ponce opinion held that Mexican

ancestry is at least a relevant factor in forming a

reasonable suspicion that a particular individual may be

an alien, and the opinion also observed that the

Government had pointed out that trained officers could

recognize the characteristic appearances of persons who

live in Mexico by relying on such factors as the mode

of dress and haircut. United States v. Brignoni-Ponce,

supra, 9S §.Ct. at 2582. In other words, the usual

illegal Mexican alien has the dark hair, eyes and skin

typical of a great majority of Mexican citizens; and

being, almost by definition, poor, the illegal alien is

therefore poorly groomed and poorly clothed. And

what of the residents of the Lower Rio Grande Valley

who must pass through one of the checkpoints in order

to travel into the interior of our nation? The

McAllen-Brownsville area has a combined population of

about 320,000.'* A recent article in a_ national

Magazine reported that nearly 80 percent of the

population of Hidalgo County, the county in which

McAllen is located, is Spanish-speaking and that 74

percent of the adults in the county have not completed

more than the seventh grade.'? It is thus apparent that

& ° ~ . . .

"See United States v. Brignoni-Ponce, supra, 95 S.Ct. at

2581. The Lower Rio Grande Valley consists primarily of the

urea between McAllen and Brownsville.

19 r ’ =

See Vewsweek, November 24, 1975, p. 21.

———— eee

a large portion of the residents of the Lower Rio

Grande Valley likewise have dark hair, skin and eyes

since their not-too-distant ancestors immigrated from

Mexico. Unfortunately, many of them are also so poor

that they must wear old clothes, drive old cars and get

haircuts infrequently. And this large multitude, which

may number in the hundreds of thousands of Valley

residents, most of them native born, must face a

checkpoint with the same “suspicious” physical and

grooming characteristics as the illegal Mexican aliens

possess, Knowing full well that such an appearance,

though innocent, can precipitate an extremely unpleas-

ant and prolonged investigation at the checkpoint to

which a more prosperous citizen with light coloring

would not likely be subjected.

Obviously. the intrusions of the checkpoints are not

equal for all the citizens who are forced to pass through

them; yet the Constitution forbids the Federal

Government and its agents from discriminating against

individuals on the basis of race. Cf Bolling v. Sharpe,

347 U.S. 497. Furthermore, it was recognized in Terry

vr Ohio, supra, 392 U.S. at 14 n. 11,7 that “field

interrogations” are in many communities a major source

of triction between the police and minority groups. The

checkpoint operations unquestionably are “field interro-

gations,” and it seems well within the realm of

possibility that they give rise to such friction.

In considering the inequities of these checkpoints, it

should be noted also that the wealthy are often not

confronied at all by a checkpoint on their trips to the

The Court quotes therein the President's Commission on

Law Enforcement and Administration of Justice, Task Force

Report: The Police (1967)

north. Anyone who can afford to buy or rent an

airplane will miss the checkpoints entirely. There are

many wealthy residents of other parts of the nation

who own real estate in the Lower Rio Grande Valley;

and it is quite possible that some of them do not even

know of the Sarita checkpoint’s existence because they

fly into and out of the Valley by private aircraft.

In view of the foregoing, it would certainly appear

that, as heretofore contended, the Ninth Circuit was

eminently correct when it held in Martinez-Fuerte that

the checkpoints intolerably interfere with the rights of

the innocent (514 F.2d at 322).

B. Governmental needs are not well served by

the checkpoint.

The Government apparently will seek to consti-

tutionalize its asserted authority to stop and question,

without warrant or suspicion, each and every motorist

passing through the checkpoints on the ground the

checkpoints are absolutely essential and indispensable to

the effective enforcement of the immigration laws of

the United States.*' It likely will be contended that the

checkpoints are much more important in apprehending

illegal aliens and deterring them from coming into the

country than are the roving patrols. The Government

will say that there are vast numbers of such illegal

aliens now within the United States, estimating the

figure to be as many as 10 to 12 million, with 8&5

"See United States v. Martinez-Fuerte, Supreme Court No.

74-1560, Briet tor the United States at 17-28.

percent having come from Mexico (see United States v.

Brignoni-Ponce, supra, 95 §.Ct. at 2579). No other

method, it will be contended, can accomplish the vital

results achieved by the checkpoints which are

strategically located away from the Mexican border.

In considering the Government’s probable con-

tentions regarding law enforcement needs, it is

appropriate to point out that, though the Border Patrol

has been operating checkpoints for many years,?? the

Immigration and Naturalization Service’s estimate of

illegal aliens in the country rose from one million in

1972 to as many as 10 to 12 million in 1974 (see

United States yv. Brignoni-Ponce, supra, 95 S.Ct. at

2579). These figures speak for themselves and are alone

sufficient to create a very substantial doubt as to the

claimed efficiency and necessity of the checkpoints if,

as contended, the checkpoints are indeed the backbone

of the Border Patrol’s enforcement efforts. Mr. Justice

White’s point was well taken when, in his concurring

opinion for the Brignoni-Ponce and Ortiz cases, he

commented on the Government’s lack of success in

intercepting illegal aliens as follows:

The entire system. however, has been notably

unsuccessful in deterring or stemming this heavy

flow: and its costs, including added burdens on the

courts, have been substantial (95 S.Ct. at 2598).

221n Fernandez vy. United States, 321 F.2d 283 (C.A. 9), it

was reported that a checkpoint had been in operation for at least

31 vears (id. at 286).

In fiscal 1973 the number of deportable aliens

apprehended by the Border Patrol, which makes the

great majority of such apprehensions, was 498,123.73

Only approximately 12 percent of all apprehensions of

deportable aliens throughout the nation are made at

checkpoints; and in fiscal 1973 about 55,300 deport-

able aliens were apprehended in the United States by

Border Patrol agents working the _ traffic-checking

operations.7*’ When these 55,300 apprehensions are

compared to the asserted 10 to 12 million illegal aliens

estimated to be in this country in 1974, most of whom

must have passed through or, in some way, gone around

or over the checkpoints,?5 it becomes clear that the

Government's claim for the checkpoints’ efficiency is

not well-founded, especially if it is taken into

consideration that in 1973 the Border Patrol was

exercising its claimed right to open the trunks of

vehicles without probable cause for such searches.?°

The Border Patrol’s statistics further reveal that in an

eight-day period in June of 1974, at the San Clemente

checkpoint, 171 out of 145,960 vehicles were found to

*3See the Appendix to the concurring opinion of Mr. Chief

Justice Burger in the Brignoni-Ponce and Ortiz cases, 95 S.Ct. at

2593.

47d. at 2596.

2S8c« : , , . , , ,

These aliens are increasingly found in virtually all regions

of the country and in all segments of the economy” (id. at

2§9?2).

*°Since such searches were held unlawful in 1975 by United

States v. Ortiz, supra, 95 S.Ct. 2585, the prior limited

effectiveness of the checkpoints must surely have dropped to an

even lower level.

contain deportable aliens (see United States v. Martinez-

Fuerte, supra, 514 F.2d at 313-314). This is a

ridiculous efficiency ratio of about 0.12 percent, and

shows conclusively that the checkpoint operations are

like sifting a mountain to recover a pinch of gold dust.

Furthermore, there were 820 vehicles that during this

same period “‘broke the pattern” and consequently were

diverted for the much more intrusive “secondary”

inspection at the San Clemente checkpoint; but only

about 21 precent were found to contain deportable

aliens, again a shockingly low figure (ibid. ).

If the checkpoints are not achieving their purpose, it

is not due to any lack of diligence or devotion to duty

on the part of the Border Patrol personnel. The Border

Patrol does a commendable job, but it has been asked

to do more than can in fact be accomplished with the

means provided. In an effort to accomplish this task, it

has turned to the checkpoints. This is not at ail a

unique Occurrence in the field of law enforcement. For

law enforcement officials, when more is demanded of

them than is possible to deliver, often turn to methods

which they attempt to justify on the basis of the hoped

for results without sufficient weight being given to

constitutional considerations. In the area of law

enforcement the desire to achieve a praiseworthy goal

cun not be enough. The freedoms which flow from the

Constitution are secure only if the police are also

policed: and in regard to this paradoxical but vital

principle of our system of constitutional government,

Mr. Justice Powell, speaking for the Court, in United

States vy. United States District Court, 407 U.S. 297,

said:

But those charged with this investigative and

prosecutorial duty should not be the sole judges of

when to utilize constitutionally sensitive means in

pursuing their tasks. The historical judgment,

which the Fourth Amendment accepts, is that

unreviewed executive discretion may yield too

readily to pressures to obtain incriminating evi-

dence and overlook potential invasions of privacy

and protected speech (id at 317, footnote

omitted).

When the Border Patrol is provided with sufficient

money, men and materials, the Mexican border can be

substantially sealed at the physical boundary by the

“line watch.” History reflects that in the fairly recent

past our nation effectively secured this same physical

boundary from much deadlier and more cunning

intruders than the ones who now violate it.?7 But in

order to achieve the desired effectiveness, there

obviously would have to be an increase in the funds

appropriated for recruiting, training and maintaining

*7In 1916 a long revolution had reduced Mexico to starving

misery. A state of virtual anarchy prevailed in the north where a

bandit-turned-revolutionary calling himself Pancho Villa (Doroteo

Arango) held ».ay. The bloody bandits of northern Mexico

stealthily raided across the international boundary with such

increasing frequency and ferocity that no citizen residing in the

United States border country could consider himself safe. After

many massacres of its border-area residents, the United States

finally determined to solve the bandit problem. The army along

this boundary was appropriately reinforced to the extent that

there were $0,000 soldiers stationed at each of three border

positions, Brownsville, El Paso and Nogales. In time the integrity

of the boundary was secured against these surreptitious intruders.

See Horgan, Great River, The Rio Grande in North American

History (1954), volume 2, pages 904-936. By 1920 the number

of men guarding the border had been reduced to 20,000. See the

Appendix to the concurring opinion of Mr. Chief Justice Burger

in the Brignoni-Ponce aad Ortiz cases, 95 S.Ct. at 2593.

additional Border Patrol agents.2**° The amount of

money required for this objective may not be

inconsequential; however, the cost could not remotely

compare to some of the expensive projects this nation

has heretofore undertaken, such as, for example, giving

financial aid to a throng of foreign countries.

Another possible means of controlling the flow of

illegal immigrants would be to offer a substantial

reward for information leading to the apprehension of

an illegal alien. A reward of $50.00 per alien might

have little impact on the alien problem but one of

$500.00 per alien could definitely have a _ very

substantial impact thereon, and it would also have a

strong deterrent effect upon those considering a trip to

the United States without official permission.?? ‘Grant-

ed. this too would be expensive; but as was said by the

Court in the Martinez-Fuerte case, “|n]onetheless, the

mere fact that protecting a constitutional right will

impose a heavy burden on the federal fisc is not a

proper ground for our failing to protect that right

(514 F.2d at 318-319).

The foregoing examples concerning the methods

which could solve the illegal alien problem, if we are

28There are. incredibly, only about 1.360 Border Patrol agents

assigned to the 2,000 miles of southern border. This is about 80

percent of the nation’s entire force; hence it is apparent that

many more agents are needed by the Border Patrol. See the

Appendix to the concurring opinion of Mr. Chief Justice Burger

in the Brignoni-Ponce and Ortiz cases, 95 S.Ct. at 2593.

For an example of the reward approach that is perhaps

somewhat limited in scope, see 18 U.S.C. 3056 which authorizes

the Secret Service to offer and pay rewards for services Aot o¢-

information looking toward the apprehension of criminals.

but willing to pay the necessary price, are certainly not

exhaustive. But there also appear to be certain

legislative measures, which, if adopted, would cleariy

prove to be more effective than the checkpoints and

which would cost this nation much less money to

implement than would the foregoing suggestions. A

Statute making it unlawful to employ illegal aliens and

providing adequate criminal sanctions for its violation.

is the most promising horse in this stable. It is

ridiculous to expect to solve a problem involving

millions of people when we are not even willing to

punish the problem’s real creators. the employers who

directly or indirectly lure these unfortunate people to

this country and sustain them when they arrive. The

people most adversely affected by the checkpoints are

those who live in the strip of this nation between the

border and the checkpoints, yet the problem is not of

their making. The aliens in question come from the

south of this area and simply pass through it on their

way to the north, while the residents of the border area

are the ones primarily called upon to pay the

checkpoints’ constitutional “‘toll,” supposedly to pro-

tect the other parts of the nation where the illegal

aliens find succor. This irony seems more than slight.

We should punish the guilty and let the innocent forego

the checkpoints.

Another piece of legislation which, if enacted, could

prove very helpful in solving this problem is one

requiring the seizure and forfeiture of vehicles used to

knowingly transport illegal aliens. No doubt the statutes

now existing which authorize the seizure and forfeiture

of vehicles used to carry narcotics and other unlawful

items have proven helpful to enforcement of laws in

that area.*° Again, these examples of possible legislation

are certainly not exhaustive but illustrate that the

national interests involved in enforcing the immigration

laws can be solved in other a..c better ways than by

impinging On constitutional guarantees.

None of the foregoing is to imply that the Border

Patrol would be rendered powerless by the closing of its

checkpoints. On the contrary, it has other weapons

such as, for example, the employment of electronic

detection equipment at or very near the physical

boundary.*' In this regard, it can be observed that in

fiscal 1973 there were 175,511 deportable aliens

apprehended throughout the nation by Border Patrol

agents assigned to the “line watch” at the physical

boundary, while, as stated previously, only 55,300

deportable aliens were apprehended by Border Patrol

agents working traffic-checking operations.*? It there-

fore appears that the “line watch” is in fact the

backbone of the Border Patrol’s defense against illegal

aliens, not the checkpoints. Borrowing from the wisdom

of another combative, but far less serious activity, it

can be observed that every football player who has

tried to catch an illusive runner in an open field knows

that a good line is the best defense.

The argument that a particular police procedure is

absolutely necessary to protect a national interest in

iaw enforcement is always advanced when the particular

procedure is attacked on constitutional grounds. For

gee 19 USC. 189Sala); 21 U.S.C. 881(an 4): and 49 USC.

72%

“See the Appendix to the concurring opinion of Mr. Chiet

Justice Burger in the Brignoni-Ponce and Ortiz cases, 95 S.Ct. at

2594.

21d. at 2594, 2596.

example, in Almeida-Sanchez vy. United States, supra,

413 U.S. 266, the Government argued that the only

feasible means of apprehending illegal aliens who

surreptitiously entered this country was by the Border

Patrol’s roving patrols (id. at 276, concurring opinion of

Mr. Justice Powell). Now the Government maintains

that the checkpoints have always been the single most

important element of this enforcement program.** But

the facts do not support the Government's present

position; instead, they clearly indicate that the national

interests are not well served by these checkpoints.

C.The checkpoint is a cancer in our free

society, and this malignancy should be

excised before it spreads.

Consideration has been given to the intrusions which

are still being perpetrated daily at the checkpoints; but

if a true balance is to be made between the good and

the evil of the checkpoints, one extremely important

consideration must still be placed on the judicial scales.

For a highly compelling reason why the permanent

checkpoints should now be held unconstitutional is that

they possess great and inherent potential for political

abuses. (It is not herein suggested in any way that the

checkpoints have already been so used.)

The permanent checkpoints are Orwellian devices

with great potential for population manipulation and

See United States v. Martinez-Fuerte, Supreme Court No.

74-1560, Brief for the United States at 19-20.

governmental oppression. The abuses to which they

could readily be adopted if they ever came under the

control of a domineering political party bent on

perpetuating itself in power should be justification

enough to invoke constitutional protections.** There is

little doubt that the permanent traffic checkpoint is,

and has long been, one of the traditional tools

employed by totalitarian governments.

In considering the danger to this nation implicit in

the use of the checkpoint for any purpose, however

noble, the thoughts of the eloquent jurist, Judge

Learned Hand. which he ably expressed in United

States v. Kirschenblatt, 16 F.2d 202 (C.A. 2), appear

particularly pertinent:

Such constitutional limitations arise from griev-

ances, real or fancied, which their makers have

suffered, and should go pari passu with the

supposed evil. They withstand th. winds of logic

by the depth and toughness of their roots in the

past. Nor should we forget that what seems fair

enough against a squalid huckster of bad liquor

may take on a very different face, if used by a

government determined to suppress political op-

position under the guise of sedition (id. at 203).

These fixed and permanent policing devices should

not be considered only in terms of the Mexican border.

The checkpoint bell can toll for the rest of the United

States. For how would it be logical, reasonable and fair

to hold that checkpoints are constitutional, but only if

located in southern Texas, southern New Mexico,

4Of course, if any dominant political party should ever

choose the nefarious path of systematic political repression, the

checkpoints would be only one arrow in its heinous quiver. But

this arrow would be there, ready to be strung to the bow of

re pression .

southern Arizona and southern California? The illegal

alien problem is located in the much more prosperous

parts of this nation where the great industry dwells.

The area of the Mexican border is not the land of milk

and honey for the illegal alien. The milk is in Detroit.

and the honey is in Chicago.

Also, these fixed and permanent policing devices

should not be considered only in terms of the Border

Patrol. What is sauce for the goose surely must be sauce

for the gander. Perhaps the Internal Revenue Service

could determine that a certain large metropolitan area is

a hotbed for income tax evasion. Why not then set up

permanent checkpoints at strategic locations selected by

high-ranking Internal Revenue officials to ask the

occupants of every vehicle their names, if they filed

income tax returns for the three previous years and, if

so. where? (Of course, the model and make of the

stopped car could be noted for comparison with the

driver's recent tax returns, if his returns are found.) Or

perhaps the local police in a large city might determine

that a particular district was overrun with prostitutes.

Could permanent checkpoints be set up. either on

Streets or on sidewalks or on both, to inquire as to the

occupation of each person passing? And if the person

questioned happened to be a woman with certain

observable physical and grooming characteristics, could

she then be referred to “secondary” for a more

extensive investigation?

The foregoing proposals obviously should be consid-

ered unconstitutional. Likewise, the routine checkpoint

stop. visual search of the vehicle’s interior and a “brief

question or two” by the Border Patrol, all without

Warrant or specific suspicion, should be held to violate

Fourth Amendment guarantees. If Border Patrol

checkpoints are held constitutional, then a number of

other police organizations, charged with enforcing what

some might consider more vital and important criminal

laws than those in the immigration field, will

undoubtedly cast covetous eyes on the permanent

checkpoints; and in the normal and inevitable course of

events, other police organizations will start to employ

these fixed devices with increasing frequency in their

own operations. In this way we could slowly but surely

become a nation infested with numerous checkpoints

aimed at impeding sundry types of criminal activity,

und this would indeed be a sad eventuality for our

freedom.**

If the illegal alien problem is of great importance to

the existence and welfare of this nation, then we must

rid ourselves of it. But this riddance should be achieved

at the cost of money and materials and not at the cost

of our personal liberties. The checkpoint is a cancer in

our free society. This malignancy should be excised

before it spreads.

Sit is not suggested herein that traffic stops to enforce state

license requirements or safety standards could not be consti-

tutional if conducted within the bounds of reasonable limits.

However, even such license and safety checks should not be

accomplished by ringing a selected area with permanent

checkpoints which operate on a constant and continuing basis,

month after month and year after year, for this would move

such operations from the realm of reasonable preventive police

action into the domain of oppressive governmental interference

with such an area’s unfortunate traveling citizens. Also, it is not

suggested herein that roadblocks could not lawfully be employed

by police to attempt to apprehend fleeing criminals in an exigent

situation such as a kidnapping or a bank robbery. But when such

a temporary emergency is over, the roadblocks should promptly

he removed.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals affirming the conviction of Petitioner should

be reversed.

Respectfully submitted,

BALLARD BENNETT

214 Henson Building

Weslaco, Texas 78596

(512) 968-8111

Attorney for Petitioner

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