Brief for the United States — Almeida-Sanchez v. United States

5 Fourth Aaehiteinesh silatin other-

y e reasonable searches without warrant

4 id without probable cause

Pie cherie eating of er natin

unauthorized persons presents pecu-

_ liar~ and difficult law enforcement

i OM as}

Gi ie CITATIONS fog

Cases: e : Page

Abel v. United States, 362 U.S. 217... 40

Adams v. Williams, No. 70-283, decided

June 12, 1972 10

_ Alexander vy. United States, 362 F. 2d

$79, certiorari denied, 385 U.S. 977 20

Barba-Reyes v. United States, 387 F. 2d

91 36

Boyd v. United States, 116 U.S. 616 _... 18

Brinegar v. United States, 338 U.S. 160.. 15

Camara vy. Municipal Court, 387 U.S.

523 10, 11, 12, 18, 28, 31, 32, 38, 36, 37

Carranza-Chaidez v. United States, 414

F. 2d 503 23

Carroll v. United States, 267 U.S. 132... 10,

13, 18, 19, 33

Chmabore v. Maroney, 399 U.S. 42 13,

» 83, 36

Colonnade Catering Corp. v. United

States, 397 U.S. 72 _.12, 18, 28, 32, 33, 34

‘Commonwealth v. Abell, 275 Ky. 802, 122

S.W. 2d 757 14

Commonwealth v. Mitchell, 355 S.W. 2d

686 14

Coolidge v. New Hampshire, 403 US. .

443 : 18, 34

Cooper v. California, 386 U.S. 58 _..... 38

Cox vy. State, 181 Tenn. 344, 181 S.W.

2d 338

15

Duprez v. United States, 485 F.2d 1276. 36

Elder v. United States, 425 F.2d 1002... 36

Fernandez v. United States, 321 F. 24°

288 | 36

i Hi. i.

Harris v. United States, 390 U.S. 284...

= ; ha ragga States, 389 U.S. 347.

lly v. United States, 197 F. 2d 162.

ng ¥. United States, 348 F. 24814...

Kleindienst v. Mandel, No. 71-16, decided

Lipton v. United States, 348 F. 2d 591__

pen Citaat.. Aronovitz, 114 So. 2d

a icy v. District of Columbia, 218 A. 2d

at v. Town of Heidelberg, 246 Miss.

- 481, 150 So. 2d 512

| Myricks v. United States, 307 F. 2d 901,

_ certiorari: te 886 U.S. 1015

16

665, 71 Cal, Rptr. 577 14

’ Preston v. United States, 376 U.S. 364... 38

_ Roa-Rodriquez v. United States, 410 F.

ed 1206 _. fe 33, 36

v. State, 184 Tenn. 277, 198

SW. 2d 633 __. . 3S

See v. City of Seattle, 387 US. 541. 10,11,

| Ps 12, 28, 33

ve -Kabayama, 98 N.J. Super. 85,

aes 164, affirmed, 52 N.J. 507,

J 714, affirming 94 N.J. Super

Nay cds ig

State v, Willams, 287 8.0. 252, 116 SE.

2d 858 ad, 16

Terry v. Ohio, 392 US. 1 10, 11,31, 38

United States v. Avey, 428 F. 2d 1159,

certiorari denied, 404 U.S. 903 36

United States v. Bell, C.A. 2, No. 72-1322,

decided July 5, 1972 16

United States v. Biswell, No. 71-81, de-

cided May 15, 1972__11, 12, 28, 29, 32, 33, 35

United States v. Bonanno, 180 F. Supp.

71, reversed sub nom. United States v.

Bufalino, 285 F. 2d 408 15, 16

United States v. Croft, 429 F. 2d 884... ss 14

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

1 36

United States v. Epperson, 454 F. 2d

769 16

United States ex rel. Farrugan v. Bhono,

256 F. Supp. 391 15

United States v. Glaziou, 402 F. 2d 8, cer-

tiorari denied, 393 U.S. 1121 _._ 19

United States v. Granado, 4538 F.2d 769. 30

United States v. Ketola, 455 F.2d 83... 28

United States v. Kuntz, 265 F. Supp.

5438

United States v. Lindsey, 451 F. 2d 701,

certiorari denied, 405 U.S. 995 _.

United States v. Marin, 444 F. 2d 86.

Weey. Horrall, 85 Cal. App. 2d 497,

198 P. 2d 470 15

stitution, statutes and regulations:

Constitution of the United States, Fourth

Amendment. 2, 6, 7, 8, 9, 10, 11, 13, 17, 18, 19,

; 30, 81, 35, 87, 38

Act of March 3, 1891, 26 Stat. 1084 20

Act of February 5, 1917, 89 Stat. 874 20

Act of February 21, 1925, 43 Stat. 1049. 21

Act of August 7, 1946, 60 Stat. 865 ____ 21

_ Immigration and Nationality Act of 1952,

66 Stat. 163, as amended, 8 US.C

2 1101 et seg.

- 1225 (a) 21

3

QQ

8

&

Hy suse. ANBb es

8 USC. 1826.

8 USC. 1357(a) 2 8, 8, 28,

21 ne (ane ed.) 176(a)__

8 C.F.R. 287.1(a) .

8 CFR. 287.1(b) .

arsocbitesitiiais ae

imamreiee nenatn: a. teendy Fede

_ Safety vs. Private Right, 14 DePaut L.

Rev. 381 .

Comment, Interference with the Right to

Free Movement: Stopping and Search

of Vehicles, 51 Calif. L. Rev. 907 ___

Gordon and Rosenfield, Immigration Law

and Procedure: .

Vol. 1, § 1.2 (rev. ed.)

‘Vol. 2, §§ 9.22-9.40 (rev. ed)

H. Rep. No. 186, 79th Cong., Ist Sess. __

H. Rep. No. 1929, 78th Cong., 2d Sess. __

Note, The Driver's License “Display”

Statute: Problems Arising from Its

Application, 1960 Wash. U.L.Q. 279__

Note, Random Road Blocks and the Law

of Search and Seizure, 46 Iowa L. Rev.

802

S. Rep. No. 632, 79th Cong., Ist Sess. __ -

BSa BBS SRR

Co CO

~~ «@

4

14

14

ON WRIT OF CERTIORARI TO THE UNITED STATES

__ COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

@ per curiam opinion of the court of appeals is

orted at 452 F. 2d 459, and is reproduced in the

pendix (hereinafter “A.”) at pages 20-35.

JURISDICTION

The judgment of the court of appeals was entered

i September 27, 1971. A petition for rehearing with

iggestion for rehearing en banc was denied on Feb-

ry 3, 1972. The petition for a writ of certiorari

3 filed on March 3, 1972, and was granted on May

(1)

28 ‘USS. 1254(2)..

1. Whether the provision of the Immigration and

Nationality Act of 1952, 8 U.S.C. 1357(a) (3), that

, authorizes immigration officers within a “reasonable

distance” from the border to conduct warrantless

searches of vehicles for aliens violates the Fourth

Amendment.

2. Whether the search of petitioner's automobile,

conducted pursuant to the statutory authorization,

was reasonable under the circumstances of this case.

CONSTITUTIONAL PROVISION, STATUTE AND

REGULATION INVOLVED

The Fourth Amendment provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

Se ae

able cause, supported by oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized. )

Section 287(a) of the Immigration and’ National-

ity Act, 8 U.S.C. 1857(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—

ite

Bee

; Hi

i 4

"© to the mistter: to’ the: Commissioner, who may,

he determines that such action is: — ~~

| clare such — — reasonable: of

SNe Rg OAS

After a ey Gi ae DT Be

Court for the Southern District of California, peti-

tioner was convicted on. June 25, 1970, of having

knowingly received, concealed, and facilitated the

rta ion and concealment of approximately 161

of ille ‘imported marihuana, in violation

of 21 U.S.C. (1964 ed.) 176a. He was sentenced to

five years’ ‘imprisonment. The court of appeals af-

firmed per curiam, one judge dissenting (A. 20-85;

452 F. 2d 459).

The facts concerning the search of petitioner’s car

and the seizure of the marihuana in it were stipu-

lated in connection with a motion to suppress. The

stipulated evidence (A. 11-14) was that Officers

Shaw and Carrasco of the United States Border Pa-

trol’ stopped petitioner’s car for the purpose of

checking for aliens as it was traveling north on High-

way 78 near Glamis, California, about fifty miles

crite greener hentai eS

oF e, California. Highway 78 “is about the

If road in California coming from the

Mexican border that does not have an established

Tig Dadak Waleed i x Alicia tole With iis URinigre-

tion and Naturalization Service. Its mission is to detect and

ose eterna oan ar parr tes:

United States. i be

Ft cranes of the Cou, ware fora

rief a map of the area involved. As the map shows, High-

78 does not itself run from the Mexican border, but

is on a segment of this road that head ea

- cealed in various parts of the vehicle. The motion to

pessoa neon seth 16, aye

SUMMARY OF ARGUMENT __

ae, "The Border Patrols traffic checking operations

which ve a limited inspection of certain vehicles

for the presence of aliens who have entered the cour-

try unlawfully, are conducted without warrant and

usually without probable cause to believe that any

particular vehicle is carrying an illegal alien. We

contend that these inspections satisfy the Fourth

Amendment’s proscription against “unreasonable”

searches and seizures. The standard by which to

judge the reasonableness of a search conducted on

less than probable cause but as part of a program

of random or universal inspections has been articu-

lated by this Court in prior decisions: whether, bal-

ancing the governmental need against the invasion of

privacy, the program as a whole is reasonable, and

whether the particular inspection is an appropriate

part of that program.

2, Whether a program of random or universal in-

is reasonable under the Fourth Amendment

on the governmental objective it is designed

and the intrusiveness of the searches it

an “This. Court long ago varagudund the ,special

status of searches at the border, which are bottomed

on the nation’s inherent right to protect the integrity

| a ney a oe |

eters 2 the overs they have needed to en-

fo ptpsinwanaly gr pad RET

ssible to enforce that policy effectively at the

itself. Smugglers frequently arrange to trans-

illegal entrants by vehicle inland from remote

ehenc these illegal entrants and to deter such

ing operations, Congress has authorized im-

on officers to inspect vehicles for the’ presence

| ; thei elimination would overly impair the

sness of the enforcement program.

The inspections authorized under the watt

r i out in a manner that ensures a minimal

to establish @ highway checkpoint and the

Se Men ieee iticle: sefnnt a. coni-

ms, which in any event involve only a brief inter-

yuption of travel. The inspection itself is necessarily

limited to places where a person could be concealed,

Thus, no search may be made of the automobile’s

glove compartment or of the personal belongings of

its occupants. Because of the relatively minor intru-

sion, the three courts of appeals that have passed on

the issue have upheld the statute and have sustained

the traffic checking operations as a reasonable and

constitutional exercise of the statutory authority.

_ 8. The check of petitioner’s vehicle, which took

place on a road leading north from the border that

is frequently used by smugglers to evade established

checkpoints on other highways, was a reasonable and

_ proper part of a traffic check program.

ARGUMENT

- The central issue in this case is whether Congress

may, consistently with the Fourth Amendment, seek

to ensure effective control over the illegal entry of

aliens into the United States by empowering immigra-

tion officers to inspect vehicles for aliens within a

reasonable distance from the border without a war-

rant or probable cause. The outcome turns on the

constitutionality of 8 U.S.C. 1357(a)(3), for it is

and has always been petitioner’s broad contention

that all searches for aliens not made at the border

itself must be founded on probable cause in order to

comport with the Fourth Amendment—in other words,

that the statute is unconstitutional unless read to

include a requirement of probable cause. It is our

position, to the contrary, that the statute is a valid

gt ofthe problem to which the at

ad and the limited intrusion on privacy

a ap gta gn

which involve vehicle stops and, in a rela-

w instances, a minimally intrusive physical

1 of the vehicle. To be effective, these op-

must be conducted, at least in .part, on a

| or universal basis, Thus, while trained of-

may be inclined to stop and inspect primarily

ek which their experience tells them are

likely to be bearing illegal aliens, they fre-

, determine to check, say, every fifth vehicle

Hight trac, each vehicle that, passes, without

Gharctore, do. not: taka the position’ tat ‘the

ations are justified because the officers

pal e cause or even “reasonable suspicion”

agg igeicste gd yaiek arent ute g HOR

a _an illegal alien. Apart from the rea-

ene s,o¢ establishment of the checking opera-

in this case, there is nothing in the record to in-

te ha ar al ne a ny cl

yy

ve

Wye Se a

Shamita

oy,

a

12

| at 588. ‘There, in the context of a city-wide program

_. of routine and periodic building inspections for code

enforcement purposes, the constitutionality of any

particular inspection was found to rest not upon

probable causé to believe that a violation will be un-

covered in that building but rather upon the reason- _

ableness of the inspection program itself. Thus, in

Camara, “the agency’s decision to conduct an area

inspection is unavoidably based on its appraisal of

conditions in the area as a whole, not on its knowledge

af conditions in each particular building” (387 U.S.

at 586). The ¢ in Camara and See that when:

entry to a building is refused, a warrant

itty the. iivtand “LE ronainablo: legtidative or sideatits:

trative standards for conducting an area inspection

are satisfied with respect to a particular dwelling”

(id. ‘at 838). |

The Camara rationale was :applied in Colonnade

Catering Corp. v. United States, 397 U.S. 72, and

_ United States y. Biswell, No, 71-81, decided May 15,

1972, to warrantless searches on a random rather

than universal basis.* In Colonnade the Court held

that, in view of the historic regulation of the liquor

industry, Congress had ample power—which the ma-

jority concluded it had not exereised—to authorize

rantless searches of the premises of retail liquor

Cale Si oie ha. pelle te centres: tk foderd

excise tax laws. In Biswell the Court upheld a statute

ee

ce with the Gun Control Act. What these

monstrate is that under the Fourth Amend-

Sen exeprng sanded a, oof sonsonahle

Spa ietelN At te peter ao hal

epic olee eemespeiaa

ling otis esd ls sasoe cbeataennr cece

decided there about the need for warrants

mergency situations.” 387 U.S. at 539. Per-

2 most solidly recognized exception to the

sepa senor erage

sal stops and searches analogous to the Border Patrol

traffic check in the present case. A number of courts,

for ex have. upheld random checks and road-

blocks for the purpose of checking driver’s licenses

and registrations,“ ‘or to apprehend s fleeing felon,

cea Sr United

Satee, 2d 901 MR aC a wan

1015; Lipton V. United States, 848 F. 2d

¥: District of Columbia, 218 A. 24 607 ¢

aa ask whee z

‘Ritibiedlt de saleevesk-dhacks have hote

States V. Croft, 429 F. 2d 884 (C.A. 10);

Conn, Cir. 885, 282 A. 2d 389 (App. Div.),

$89 US. 1044; os snanaroni eat Prien

Unitet Staten v. Kunte, 265 F. F. mast bas. : ONDENY).

7: __- [Footnote continued on page 15]

en, Ded fe

st ion ruling. /d. at 418 n. 6. —

|, State v. Williams, supra note 4; United States ex rel.

ria. Y. Bhono, 256 F. Supp. 391 (S.D. N.Y.). .

, 2.9., Coe V. State, 181 Tenn. 844, 181 S.W. 2d 388, and

vy. Sta The bag aerogenes

stopping and searching of

cemeagummagiene: joteancnable in Wirin v. Hor-

16

intrusion on the privacy of travelers.” . Stover rem ©

' goning has been used to uphold the screening and_

searching procedures employed at airports to mini-

mize the danger of hijacking,” and to enforce agri-

cultural quarantines.” Analogous situations may of

course be hypothesized.”

rall, 85 Cal. App. 2d 497, 193 P. 2d 470. Similarly, routine

vehicle searches to “curb the juvenile problem” or “in the

hope that some criminals will be found” have been held imper-

missible. People v. Gale, 46 Cal. 2d 258, 256, 294 P. 2d 18, 15.

1° See, ¢.g., Myricks v. United States, supra note 4, 370

F. 2d at 904:

The State can practice preventative therapy by reasonable

road checks to ascertain whether man and machine meet

the legislative determination of fitness. That this requires —

a momentary stopping of the traveling citizen is not

fatal. Nor is it because the inspection may produce the

irrefutable proof that the law has just been violated. * * *

In the accommodation of society’s needs to the basic

right of citizens to be free from disruption of unrestricted

travel by police officers stopping cars in the hopes of

uncovering the evidence of non-traffic crimes, * * * the

stopping for road checks is reasonable and therefore

acceptable. * * *

11 See United States v. Lindsey, 451 F. 2d 701 (C.A. 3),

certiorari denied, 405 U.S. 995; United States v. Epperson, 454

F. 2d 769 (C.A. 4); United States v. Bell, C.A. 2, No. 72-1322,

decided July 5, 1972; United States v. Slocum, C.A. 3, No. 72-

1231, decided June 13, 1972; United States v. Lopez, $28 F.

Supp. 1077 (E.D. N.Y.).

12 In United States v. Schafer, C.A. 9, No. 71-1004, decided

June 5, 1972, petition for certiorari pending, No. 72-5040, the

court of appeals sustained the admissibility in evidence of

narcotics found during an official search, authorized by statute

and regulation, of the baggage and personal effects of air-.

craft passengers departing Hawaii. The purpose of the search

was to enforce the quarantine of certain plants and fnsects.

8 See, e.g., United States v. ‘ebeanveuscne saben where

arbre acre pepe maces

sot Pha BION cE Sos A Sa

Se ee

Si ielintilakii: it smindd-te part Ota piogram

é Sg abe A SR

o traffic dentro as authorized by slictee,

3E IS REASONABLE UNDER THE FOURTH

\MENDMENT BECAUSE IT PROMOTES A SUB-

TANTIAL GOVERNMENTAL OBJECTIVE AND

DOES bad DISPROPORTIONATELY AFFECT CON-

TU YALLY PROTECTED. INTERESTS

‘The Effective Policing of Our National Boundaries to

Prevent the Entry of Unauthorized Persons Presents

Pin ee nner ae mecemnint Panta.

tap rin, ween tps of

s for aliens within a reasonable distance of

y possible that no one present was guilty of wrong-

Cah stake tak, akc ah en eeeaeh aeooed

were guilty of the commission of a crime. [180 F. Supp.

a at79 n 15; emphasis in original.]

me fo: slater, in Carroll v. United States,

or Uk ie, 154, the Court even more explicitly

-Tecognized the sovereign’s inherent right to search at

Fai ig in dictum that travelers and

tional self tidal ccd oda loca ear

ing the country to identify himself as entitled to come

in, and his belongings as effects which may be law-

fully brought in.” » Pin é

_

{sisi Ghd Win Uidtihings atin tatow plans catinen

sate wrecinsteiad ‘following sentence in Carroll, which

¥ 4

feral courts have consistently held that border

searches are not governed by the warrant or prob-

@ cs i aspects of the Fourth Amendment, and do

iolate the basic proscription in that Amendment

Jnited States vy. Glaziou, 402 F. 2d 8, 12 (C.A,

rtiorari denied, 393 U.S. 1121; United States

il, 482 F. 2d 1820, 1822-1323 (C.A. 9), certio-

enied, 401 U.S. 947; United States v. Warner,

', 2d 821, 832-883 (C.A. 5), certiorari denied,

S. 829. The courts have recognized also that

Jer search is no less reasonable if qonducted a

distance from the point of entry, when the cir-

ances, including the time elapsed and distance

ed and the manner and extent of surveillance,

reasonable cause to believe that any contra-

_ band found on the vehicle was aboard at the time of

entry or was recently smuggled. See, ¢.g., Alexander

__-v. United States, 362 F. 2d 379 (C.A. 9), certiorari —

denied, 385 U.S. 977; United States v. Weil, supra,

432 F. 2d at 1323. There has, in sum, never been

ducted at the national boundary or within reasonable

proximity to it, are reasonable even though performed

in a routine manner without specific facts casting

suspicion on the particular vehicle or its occupants.

Although searches for illegal entrants are not quite

as ancient as border searches under the customs laws,

the basic goal is the same—preserving the integrity

of our borders—and it is our position that the same

constitutional principles apply. Federal legislation re-

stricting the entry of aliens dates only from 1875,

see Kleindienst v. Mandel, No. 71-16, decided June

29, 1972, slip opinion p. 8; Gordon and Rosenfield,

Immigration Law and Procedure, Vol. 1, § 1.2 (rev.

ed.), and the first statutory authorization for the in-

spection and medical examination of aliens was appar-

ently the Act of March 3, 1891, 26 Stat. 1084, As

the problem of illegal entry of aliens grew, Congress

responded by tailoring the enforcement powers of

immigration officers to fit the expanding need. Thus,

at the time of World War I, when the limitations

upon entry had become more severe and the inci-

dence of evasion more widespread, Congress, by the

Act of February 5, 1917, 89 Stat. 874, granted au-

_ veyanee, or vehicle in which they believe aliens are

ie Vi a

United Staten” 60 Stat. 865." The 1946 lan-

was carried forward

53 och ade jt a fre dee empoer

n officers to patrol private lands with-

i 814, 818 (C.A. 9). Many thousands of aliens

ait country legally each year by evading in-

was continued in :

_ spection, either through concealment when entering

at a port of entry or by clandestine entry at other

than a port of entry. The immigration officers’

unquestioned power to search at entry is one ef-

fective tool in preventing illegal entry at a regular

The vastness of our land borders with Canada

(3,987 miles) and with Mexico (1,945 miles) makes

it impossible to detect and exclude every alien who

determines to enter this country unlawfully by ap-

prehending him on the border itself. Every effort

is made to minimize the need to conduct alien detec-

tion activities in the interior by improving the eff-

ciency of operations along the borders. The basic

operation. of the Border Patrol is the “line watch,”

whereby those points most often used by border vio-

ment to detect intrusions. To seal means of egress

ee ee pereee: aren, etre youtionly

ger trains, and railroad yards.

These operations alone, however, hi cik sababeen

effective solution to the alien control problem. For

sthod c y employed by smugglers of illegal

ens to arrange fora group of aliens to cross the

eit way to a predetermined spot, often led by

the smuggler furnishes," where a vehicle sup-

. See, for example, the facts in United States

ola 465 F. 2d 88 (C.A. 9), petition for a writ

tiorari pending, No. 71-6570. The principal

ailing nl dewtintiig’ ‘sch’ semakyiing

y is through the Border Patrol’s traffic check-

‘This permits the checking of a large amount of traf.

fie with a minimum number of officers. To avoid

repeated checking of commuter and suburban traflic,

the sites are removed from urban areas. There are

' 18 such sites, all in the area of the Mexican border

and all but one located more than 25 but less than

100 air miles from the border.” Permanent sites are

operated on a 24-hour schedule except where man-

power shortages, weather conditions, or traffic flow

Sede Ai Gp atts all este ta heneed. Depending

on weather and traffic conditions, the officers wave

om ener oF he, veleicies, stop some in order to ques-

mn: the occupants, and conduct a limited inspection

f-al,of those that have been stopped.” The ad-

vantage of permanent sites is that they can be

equipped to handle a large volume of traffic safely

and efficiently. The disadvantage is that experienced

smugglers are aware of them and can easily avoid

® In addition to the factors already identified, locating the

site more than 25 miles from the border permits the checking

ul g-eparstaage: seampeager ng miles of the border

hours. Some 88 million such entries were

at soar 1971. Additional documentation must be

Ge ne

we diehaals Hn: Mahia be ahs uk Ginaabohina? de -wehielé

inspection is sometimes made on a random basis, we are ad-

vised that officers frequently take into account the number

of persons in the vehicle, the way the car is riding (e.y, léw in

‘the rear), the size of the vehicle (e.g., pick-up truck*or van),

and the apparent nationality of the occupants.

in i operation before fienpting, a ran |

ry vites are tisually. located on lees heav-

wea a ated: ‘dus a *e

in a patrol car or while parked at a

vehicles, ‘Depending on:the road and on other

les » the officers may stop every vehicle that

may stop vehicles on a random "basis.

wil ordinarily inspect the trunk of a stopped

s s furnished by INS show that of the esti-

"i sa ae vehicles that passed through per-

nt and temporary checkpoints in fiscal year

y Rewer thant two snillion ‘were stopped for ques-

ming of the occupants, and fewer than 400,000 of

108e e vehicles stopped were subjected to an inspec-

% It is estimated that questioning of occupants

EEE SRT eer re

trol employs patrols on both sides of the checkpoint and, in

ropriate cases, installs electronic detection devices.

| i circ arhatit aati tes ies il

_ | ute, while-checking the trunk of an automobile takes —

_ an average of less than two minutes. Border Patrol

officers are authorized only to search for aliens, and

‘we are informed that while on occasion they will look

under the body of the car or check under the hood

ae ey — is limited to a

in fiscal year 1972, the Patrol located 39,243 deport

able aliens through traffic checking operations, of

whom 80,124 had entered the United States illegally

across the land border at a place other than a port

of entry.” This represents nearly 10 percent of the

number of such aliens located by the Border Patrol

by all means throughout the United States.”

“It is estimated by INS that only two percent of the vehicle

<3 Most of the remaining 9,119 had either entered illegally at

oe

entry.

Fe cin sage eay apne gr ego

2,880 smugglers of aliens. Of the 89,243 deportable aliens lo-

“eons ena gma ie epee (é.e., assisted

The kind of discovery made in the present case oecurs with

ee Tey, although it is not ‘the object of these vehicle

. thé volume of vehicle traffic and the mobility

A 3 on the open highways of the southwest, it

Ee ror cern nee ot mento

28 =

pro ature to cars which there is probable caus to

walie ak os at leeued prices s nenon

pany xe esc ag Those subjected to vehicle checks are

not, as in ade and Biswell, licensed dealers who by

‘a license forfeit some measure of privacy. See Bis-

well, slip opinion p. 6. Nor is the danger here one of hazard

to public health and safety as in Camara and See. But we

believe that are not at the heart of the balancing process

and that they do not obscure the essential similarities between

the Border Patrol’s traffic checks and the routine inspections

that this Court has authorized. The basic similarity is the

practical need to enforce regulatory programs by periodic or

random examination.

The Border Patrol traffic checks qualify as administrative

inspections. It is true that there is a variety of criminal

offenses. involved in the illegal entry and transportation of

aliens. E.g., 8 U.S.C. 1824 (harboring, transporting, induc-

ing illegal entry); 8 U.S.C. 1825 (illegal entry); 8 U.S.C. 1326

(reentry of deported or excluded alien); 18 U.S.C. 911 (false

representation as citizen); 18 U.S.C. 1546 (misuse of visas,

permits, and other entry documents); 18 U.S.C. 871 (con-

spiracy to commit offense or defraud United States). See

generally Gordon and Rosenfield, Immigration Law and Pro-

cedure, Vol. 2, §§ 9.22-9.40 (rev. ed.). But the Patrol’s primary

mission has always been to prevent the unlawful entry of

aliens into this country, and apprehension of illegal aliens is

primarily for the purpose of deportation rather than prosecu-

tion. Figures supplied by the INS bear this out. In fiscal year

1972, INS officers located a total of 398,000 aliens who had

entered without inspection. Prosecution for illegal entry under

8 U.S.C. 1825 or 1826 was authorized only in some 11,000

cases—less than three percent. Our point here is simply that

such traffic checking is sufficiently akin to the administrative

or regulatory searches authorized by this Court to be fested

by the standards articulated in those decisions.

“yirineearangecawee etc

-omacsceeeaig program, not only in permitting

te aren et a ee

a ‘countless others for whom the risk of apprehen-

lon now appears too great. Without traffic checking,

h necessarily involves some stopping of vehicles

i sellin: a whlveredt Seite: teene toecha be

e and inviting gap in the Border Patrol’s effort

“maintain the integrity of our national borders.

is; these traffic checking operations, like the un-

d inspections in Biswell, are ‘ “a crucial part”

i Abhciteaidaih tchictad eabiedinh 4c the ecctones,

5 of “a eredible deterrent” (slip opinion p. 5).

here is no practical alternative.

|B. The Trall Checking Operations Authored By the

- _ Statute and Carried Out Under It Do Not Unreason-

~ __ 2bly Impinge Upon Constitutionally Protected Rights

& FE ive implementation of congressional policy,

We recognize, does not necessarily amount to constitu-

ional justification. Thus, in addition to demonstrat-

“ing a substantial governmental need for this kind of

“inspection program, we now turn to a discussion of

“the impact of the program on constitutionally pro-

Se tion 287(a) of the Immigration and Nationality

4 2 ewer INS officers to conduct warrantless

hicle inspections for the presence of aliens within

iain diinan diy that mentecieh

the United States, 8 U.S.C. 1857(a)(3). Regula.

tions promulgated under the statute define “reason-

able distance” to mean “within 100 air miles from

any external boundary * * * or any shorter distance

emai Seopa rebecca omareendeiatade:

| 287.1(a)(2)™ cee

2 “In applying the Fourth Amendment’s standard of

‘ eness to determine the validity of this stat-

ute, the Court should understand not only its histori-

cal genesis but also its mode of implementation. De

spite the apparently unlimited authority the language

of the statute seems to convey to board and search

within a “reasonable distance” of the border, the

searches and has not been used as a pretext to search

atattiderens oh Catipsinte ths the} Ueno cy

imum fixed by regulation, 8 C.F.R. 287.1(a) (2), is

based upon a consideration of various factors de-

signed to accomplish the statutory objective with the

least possible intrusion upon the privacy of travelers

(see supra, pp. 23-25)"

OT aay nee mcs

outside the 100-mile limit must, therefore, be justified on the

paisemy rl og ge Ba See, e.g., United

y. Saldana, 453 F. 2d 352 (C.A. 10); United States v.

Croats, 488 F. 2d 769 (C.A.10), both involving investiga-

eee ee eee

miles from the Mexican border.

“0p aotgth vetatns by tts terms only to the districtedfrector’s

decision to shorten the “reasonable distance,” we are informed

/

ih i by the present ease, the INS

‘ime a and would not claim statutory or

fo - aliens in Times Square or in front of

In Memorial, even though technically these

+ within 100 air miles of an external border.

quite simply, not a sufficient need for such

sup ee thik ah tases iin Ohio,

392 U.S. at 20-21. ‘But vehicle checks con-

ted in areas where the incidence of illegal entry

alien smuggling is high are, if executed in good

th and with minimum inconvenience to the travel-

i shin ailionas ‘Sasmahieen bbouine

“tl it calida testeglad te ccdenanien ae.

h entails.” Camara, supra, 387 U.S. at 534-535,

~ Among the considerations that have entered

forcement techniques, the history and tradition of

Bers ws states as well the considerations that

82. ?

a

the regulatory suthority, the character of the search

(i.e., of the person, residence, business premises, or

automobile), the scope of the search, the objective

_of the search (i.¢., primarily criminal or

tive), the extent of the resulting inconvenience, and

the existence of statutory authority for the activity,

Tested by these considerations, we submit the Border

Patrol’s traffic checks qualify as reasonable.

We have already discussed at pp. 17-21 the history

of entry restrictions and border search authority.

They are deeply rooted in the nation’s sovereign right

to protect the integrity of its borders-¢gainst the un-

authorized entry of persons and things. We have here

as in Biswell “large interests” at stake, which as in

Camara and Colonnade have traditionally been pro-

- On the other side of the balance, the traffic checks

create only a relatively minor inconvenience for trav-

elers. Because the vehicle inspections are narrowly

confined in scope and objective, they involve an in-

trusion into privacy which, though hardly negligible,

should be regarded as tolerable. As we stated earlier,

only about one vehicle in five that pass through Bor-

der Patrol checkpoints is stopped at all. Of these,

about 80 percent are detained for one minute while

the officer asks questions of the occupants, and the

remaining 20 percent are detained an additional min-

ute for an inspection of the vehicle. In most instances

that inspection involves no more than a look in the

is i the automobile. At most, it may, include

| not be concealed.” Thus,

no compartment, or

@ officers may not conduct a search of the persons

the occupants (except as may be justified under

e established standards of Terry v. Ohio, supra).

~ Moreover, what is involved in one of these strictly

inited inspections is a vehicle, not a person as in

ry, or a residence as in Camara, or even a busi-

8s establishment as in See, Colonnade, and Biswell.

Court “has long distinguished between an auto-

obile and a home or office.” Chambers v. Maroney,

| US. 42, 48. See Carroll v. United States, 267

a - 2

ay

» Pgs

eee

es.

made

WS. 182, 153; Preston v. United States, 376 U.S.

364, 366-367; Cooper v. California, 386 U.S. 58,

99. Even a complete search of an automobile and all

5 cc ntents is ordinarily a milder intrusion into one’s

| Privacy than a search of the home or office, since the

| Bipectation of privacy in an automobile on a public

ighway ‘is less. Cf. Katz v. United States, 389 U.S.

or a case where an alien was found doubled up under

od of an automobile, see United States v. Ruiz-—Juarez,

2d 1015 (C.A. 9),

3

: aan Hore the inspection ney tae intro

on pe op li SN sda: hell ngenig

, of the statute has:not proven’ to be @:source of abuse,

Based on such factors as topography, ‘prior experi-

ence, and reliable information, the decision on estab-

lishment of checkpoints seeks to maximize the likeli-

hood of detecting illegal aliens while minimizing in-

convenience to the public. While the decision to check

a particular vehicle is in part a discretionary one, ex-

ee ne

upon objective factors that have proven to be reliable

indicia ee ee (see note 20, supra).

ine a civ tae thesia barb pled tas by wurde

of-mouth, bulletins are issued to bring to the officers’

attention a new smuggling technique or a recently

thority. This Court’s observation with respect to in-

spection of the liquor industry in Colonnade is no

less applicable to the nation’s enforcement of its im-

pn oar gene ered “Congress has broad author:

RUSS ee a Uaniaiay Sapte wai gate Sedrcon ss

' ven if random vehicle inspections without prob-

able cause or suspicion regarding particular cars do

not involve excessive interference with the constitu-

tional right to privacy, there remains the question

whether some sort of warrant system should circum-

scribe the program. It is our position that no war-

ee ee ee

ili Aan entail: Canad; oe een ‘ecm

Scie Wola lalobale SUtdiaink peallbay ehianalidig: Wh

ing possible defects not easily concealed or corrected

in ‘a short time. It would be clearly impracticable,

_even if manpower permitted, for an officer to seek

out a magistrate each time he is refused access to

the trunk of an automobile he has stopped. The tra- —

ditional problems associated with delay in searching

automobiles,” are compounded by the fact that the

exercise of the statutory authority. See Kelly v. United States,

197 F. 2d 162 (C.A. 5) (dealing with the 1946 language);

United States v. DeLeon, C.A. 5, No. 72-1052, decided June 6,

1972; United States v. McDaniel, C.A. 5, No. 71-2810, decided

May 11, 1972; Fernandez v. United States, 321 F. 2d 288

(C.A. 9); Barba-Reyes v. United States; 387 F. 2d 91 (C.A.

9); Elder v. United States, 425 F. 2d 1002 (C.A. 9); United

States v. Miranda, 426 F. 2d 283 (C.A. 9); United States Vv.

Avey, 428 F. 2d 1159 (C.A. 9), certiorari denied, 404 U.S.

908; Fumagalli v. United States, 429 F. 2d 1011 (C.A. 9);

Duprez v. United States, 485 F. 2d 1276 (C.A. 9); United

States v. Marin, 444 F. 2d 86 (C.A. 9); Roa-Rodriquez v.

United States, 410 F. 2d 1206 (C.A, 10).

* “(The car is movable, the occupants are alerted’ and the

car’s contents may never be found again if a warrant must be

obtained.” Chambers v. Maroney, 399 U.S. 42, 51.

A

for the pres-

te of aliens, conducted by a uniformed Border

The historic aversion to general warrants, as em-

ied in the Fourth Amendment, and the Court’s

tisior in Camara that a magistrate should not

am

indicate that a “warrant” approving the overall ine 9

judicial action. Hence, the interposition of a magis-

trate, even if it were feasible, could not add any

significant eens ” an wotherwies reasonable in

epection ‘program.

- For the aaiats-Neieeen.¢ ‘we » urge the Court + to

hold that Section 287 of the Immigration Act, as con-

with the .reasonableness: standard of the Fourth

of petitioner’s car was conducted as part of a valid

discussed. To that question, we now turn.

m

‘DHE INSPECTION OF PETITIONER’S AUTOMOBILE

"WAS A PROPER PART OF A REASONABLE TRAP.

FICCHECK .

IN Wa WALA el tis VEN al.

ute and the random traffic-check prograin, we do not

Gia iis a’ bad Gok FO Maelo

performed. We therefore limit our discussion here

tehodamiae .

ih

He

in order to

‘or temporary checkpoints. It

it was known that smugglers of aliens

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Having determined that petitioner. was a resident

alien, the officers checked under the back-seat cushion

for aliens and found instead the evidence here at

issue. There is no question of the officers’ good faith

in this respect; they knew by word-of-mouth, and it

had been confirmed in a recent bulletin from Border

Patrol headquarters, that alien smugglers were adapt-

ing the back seats of automobiles to accommodate

aliens behind the seat rest.*

The roving patrol on Highway 78 was and is an

important supplement to the checkpoints maintained

on the more heavily traveled roads nearby. The stop

of petitioner's automobile was in accordance with

normal roving patrol practices, and the resulting in-

spection was within the permissible scope of checks

for aliens. Since the officers therefore acted reason-

ably and in accordance with established Border Pa-

trol procedures, there is no basis for excluding the

vider ce that was uncovered in the process. See, ¢.9.,

Abel v. United States, 362 U.S. 217, 238: United

_ States v. Schafer, C.A. 9, No. 71-1004, decided June

5, 1972; United States v. Lopez, 328 F. Supp. 1077,

1099 9 (ED. BX ‘The court below properly so held.

_ “INS estimates that about. two percent of the vehicles

See note 22, supra.