Amicus Curiae Brief — Almeida-Sanchez v. United States

er. et SELLE S BHMMLE SR eme ee

— eee e a ig

8 15 17 y

7522 N

Wanna Henk

ht Sng 6 dete what cone mason

able method of enforcing United States immigration law;

er nnn

die propery Belong to thi cour 1

the ‘it, must ‘st least, require the govern.

rate that vehicles aearced without prob

som hve one nero ith neat!

me ons at yt ; 115 2 uit) 105 ‘Ve

10 —

Suszzor Inpex

epee en

gm ete to eee “competion constitutional

ini mandates, this court must require the government to

proceed by the alternative which places the least

eee a eee mee nn .

IV

A vehicular search for aliens is a major interference with a

citizen’s right of privacy, and therefore cannot be per-

mitted without a standard of cause amounting to at least

182 1 not

ee ee oe

a

a

FCC

n

reasonable rules governing investigation of vehicles for

| Table of Authorities Cited

VIED ESA SRO mes |

Cases

13

15

7

ö L 523 (1967) 16, 18, 22

@arroll v. U.S., 267 U.S. 182 (1924ùũ 7 12, 25

Chambers v. Mevonsy, 399 U.S. 42 (1970) 12, 17, 18, 25

OColonnade Catering Corp. v. U.., 397 U.S. 72 (1970) .... 17

Coolidge v. New Hampshire, 403 US. 443 (1971) 11, 12, 17, 24, 25

Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951) 21

Fenster v. US., No; 71-1298, Pet. for Cert. Pending 9, 14

“Henderson v. US, 390 F.2d 805 (9th Cir. 1967) eee 28

‘Kats v c 17, 25

Marbury v. Madison, 1 Cranch 137 (1804) ............... 19

NAACP, v, Button, 371 U.S. 415 (1963) .............. 22

Robinson v. California, 370 U.S. 660 . 26

fee Seattle, 387 U.S. 541 (1967) ..............0.-. 16, 17, 23

Shelton v. Tucker, 364 U.S, 479 (1960) .............0.05 21, 22

a. Verner, ccc 22

Tally v. California, 08 UE: OO CE): 22

A Ports ees 13, 16, 18, 19, 22, 31

5 *

e Led 2d CF 9, 28

d States v. Mahoney, 427 F. 2d 658 (9th Cir. 1970) .. 13

ed States v. Markham, 440 F.2d 1119 (9th Cir. 1970) . 13

ed States v. Weil, 432 F.2d 1320 (9th Cir. 1970) ..... 13

m v. Loder, . U.S. , 40 L. W. 4476 (1972) 22

Seetion 1357(a)

Section 1357(a) (3)

Section 1357(¢)

21 U.S.C. Section 176a

U.S. Treasury Dept., Bureau of Customs, Inspector’s Manual

for the Guidance of Customs Officers (1969 Revision) ... 9, 28

wer nen Srarses o AMERICA, r eee

in 10 FILE BRIEF AMICUS CURIAE

55 OF GILBERT FOERSTER

—

Gilbert Foerster respectfully moves for leave to file

‘te athe brief Amicus Curiae.

8 ~ Consent to such filing has been requested from and

refused by the Attorney representing Petitioner Al-

a-Ss nchez, and has been requested from and given

by the ‘Solicitor General.

The interest of Amicus Curiae in the present case,

a eo

K

r

of the issues raised hy! Aimicus' in his petition.

2. Attorney for Amicus has read the briefs of Pe-

titioner Almieda-Sanchez and of the United States,

among other things, that probable cause is required to

stop and search a vehicle for aliens near an interna-

tional border. The government, on the other hand, con-

tends that no cause or suspicion of any kind is

required to stop and search vehicles for aliens within

100 miles of the border.

It is the position of Amicus, that each. party paints

with too broad a brush. ‘Amicus believes that the

Court should fashion finely honed tools which both

allow the government adequate ‘enforcement tech-

niques, while affording’ substantial protections for do-

mestic travelers near our borders.

Neither the United States nor Almieda-Sanchez has

suggested what such tools should be; each contends

ee eg ee soe e ee

asserted.

“Amicus bad ey that the parties would present

positions closely paralleling his own. However, they

have not and thus Amicus finds it necessary to file

his brief at this time in order to suggest to the

Oount a mettod of resolving the issues mot asserted

by either party. *

3. A4 tionally, it is unclear to Amicus whether

his Petition Yok Getto Will ‘He Siantad, OF wees 1

ress has not sought. to define what constitutes

nable method of enforcing United States im-

a law; the Attorney General has attempted to

a | II

8 Court iso rola the traditional require’

cause as a prerequisite to some vehicular

eee unique considerations applicable

ational travel, then it must at least require

vernment to demonstrate that vehicles searched

3

without prabale cause have some nexus with inter-

en aye, -

| „n... <iauime. that te

es government, when it interferes with a citizen’s right

of privacy, 1) have some quantum of evidence indi-

e for the specific interfer-

ence, and 2) proceed in a manner which, consistent

with its objectives, has the least onerous impact on

that citizen’s right of privacy.

A. Some quantum of specific objective infor-

mation has always been required to justify an in-

vasion of privacy. The type of invasion permit-

ted depends primarily upon the quantity and

quality of the information.

B. In order to properly balance competing

constitutional mandates, this Court must require

the government to proceed by the alternative

which places the least onerous burden on indi-

vidual rights.

eS IV

A vehicular search for aliens is a major interfer-

ence with a citizen’s right of privacy, and therefore

eannot be permitted without a standard of cause

amounting to at least reasonable suspicion, espe-

cially where, as here, the government has not shown

that its enforcement duties will be seriously hampered

by the imposition of such a standard. 5

| A. A vehicular search for aliens is a major

: " interference with a citizen’s right of privacy. _—_

*

~

7

aot enforce the immigration laws pursuant to

le search rules nor even shown that it

s attempted to fashion reasonable rules .

ing investigation of vehicles for aliens.

O. “Reasonable suspicion” is a reasonable

deere ese hn tal we,

resented with considerable deference for the acts of

inate branch of government, even though this

sould not support a legislative enactment which

theless violated the Fourth Amendment. Boyd

16 US. 616 (1886). However, such is not

tion; none of the issues in this case properly

e issue of the constitutionality of 8 U8. C.

@)..

All Congress did when it passed 51357 (a) (3) was

to state that immigration officials could conduct

searches of places other than dwellings without war-

rant within a reasonable distance from international

borders. The code section thus purports to dispense

limits the search authority of immigration officials

in geographical terms, But the subsection contains

no directive or indication as to the basis required for

a search or the manner in which it is to be conducted.

On that point, the code is silent.

The lesislatures failure to set a standard for

= rches for aliens is evident when §1357(a)(3) is

contrasted with 61357 (e), for in 51357 (e) Congress

specifically required a “reasonable cause to suspect”

fone marsh ee be the United

States. |

e Se

travelers, aliens seeking admission to the United

States obviously have the least rights, Yet Congress

required that a reasonable suspicion of grounds for

exclusion exist to justify a search. An anomalous

interpretation of the statute would result if this Court

were to hold that a reasonable suspicion must exist

to search aliens seeking entry, but no cause need

exist to invade the privacy rights of citizens lawfully

wath eee ee itis ommntry.

Te present lack of regulation has come about

Pa age shed Sgn Pope

to make regulations governing some aspects of immi- :

9

gration searches, 8 U. S. C. 61357 (a). The Attorney Gen-

then promulgated regulations setting forth 100

iles, an apparently arbitrary distance, as a ‘‘reason-

stance. No regulations at all have been passed

fovern the manner in which searches for aliens are

be conducted or the basis required for such

1 1

to pass such regulations strongly indicates

itions were passed because Congress did not

ate concerning the basis for or manner of con-

area was not delegated to the Attorney

*

; V Service:

or Mexican aliens. We pull these people predomin-

antly over. We pull U-haul trucks, We cannot see inside

almost vehicle that comes that we cannot ob-

. icy, automatically pull

d rt. 700 U.S. 80 enter

) on motion off the United Stare Us .,

is matter is discussed further herein at pp. 27-29, infra.

10

But irrespective of whatever the Attorney Gen-

‘eral’s position once may have been, he has since

eontinually argued that his own: regulations, or failure

to pass regulations, control, and that all searches for

aliens within 100 miles of the border are per se

constitutional because of a regulation which ve

to geographical considerations only.

The Attorney: General is thus seeking constitutional

powers beyond those permissible. On the basis of a

questionable delegation of authority from Congress,

he first purports to legislate as to when searches are

legal and when they are not. (Such power does not

even belong to the Congress, for it cannot legitimize

unconstitutional behavior). And, going even further,

the Attorney General then argues that his own regu-

lations usurp the right to declare when searches are

e traditional. and proper funetion of

this Court. 58

II

IF THUS COURT 18 TO RELAX THE TRADITIONAL REQUIRE

_ MENT OP PROBAB } OAUSE AS A PREREQUISITE TO SOME

Ji op nntprrn tn ed pg marti

. ONSTRATE THAT VEHICLES SEARCHED WITHOUT PROB-

antsy se eid ee aaa

proble eee, le

justify searches without warrant and without probable

ae

3 a

ae

jon

—

1

Si tee

micus agrees ‘that the imposition of a warrant

e. But that concession in no way detracts from

. searches conducted outside the judicial

Process, without prior approval by judge or

ically established and well-delineated exceptions.

The exceptions are jealously and carefully drawn,

i ag ae are per se unreasonable under the

__. Fourth Amendment—subject only to a few specif-

and there must be a showing by those who seek

exemption . . that the exigencies of the situation

made that course imperative. [T]he burden is on

those seeking the exemption to show the need for

2 85 = 5 0 lidge Pig New Hampshire, 403 U.S. 443

4971), at 454-56,

he government asks not only for an exception to

cause as a prerequisite to a lawful vehicle search,

Carroll v. U.S. 267 U.S. 132 (1924); Chambers v.

Maroney, 399 U.S. 42 eee New Hamp-

shire, 403 U.S. 443 (1971). |

7 A e br l ea, l

are discussed elsewhere in this brief.“ The point here

is that if there is to be a serious relaxation of long

standing notions of minimal criteria for legal searches,

it should only occur where facts indicate that “the

exigencies of the situation make that course impera-

tive.” In other words, if there is to be a no-warrant

no-probable cause rule respecting searches for aliens

because of special considerations applicable to inter-

national travel, then such a rule must be limited to

vehicles having some nexus with international travel.

: Adoption of such a rule immediately poses the

question of what standard of information is to be

required to show a nexus“ with international travel.

Amicus suggests that the Court formulate a rule

e ee eile} e justify, in appropri-

ate locations, a search, but not necessarily to justify

hiele in question had a nexus with international

travel; that is, that the vehicle either had crossed the

border or contained something ee oes

coh sac | | 5

ies ik a a,

13

robably the Court can require no more, for if it

8 to require probable cause to believe that a

cle had a connection with international travel,

for searches would no doubt be defeated.

; o constitutional rights of privacy upon whim of

5 neutral scrutiny of a judge who must

evaluate the reasonableness of a i

» Search or seizure in light of the particular cir-

_ cumstances.” (Emphasis added)

_ Terry v. Ohio, 392 U.S. 1, 21 (1968).

vel federal courts have required that searches

ustoms officials physically removed from the bor-

be justified by showing that the officials had facts

porting a suspicion that the vehicle crossed the

er or contained contraband that had done so.

levander v. U.S., 362 F.2d 379 (9th Cir. 1966):

ited States v. Mahoney, 427 F.2d 658 (9th Cir.

; United States v. Weil, 432 F.2d 1320 (9th Cir.

); United States v. Markham, 440 F.2d 1119 (9th

, 1970). There is no showing that Customs work

been substantially impaired as a result of the

ition of this “border search” doctrine.

Government has never demonstrated that its

ation work would be substantially impaired

14 8

by the adoption of such a requirement. If some ran-

dom stops, non- intrusive observations and brief inter-

rogations were permitted in properly narrow geo-

graphical areas without cause, but reasonable suspi-

cion of international connections were required for

searches, it is doubtful that enforcement of the immi-

gration laws would be seriously impaired. Such a

connection could be established by an informant’s tip,

surveillance, or ‘conversation with occupants of the

vehiele.“

Thus, this Court should require that officials dem-

onstrate that a reasonable suspicion of a nexus with

international travel exists for each vehicle searched

without probable cause.

Further, Amicus Pelbeere that assuming the appro-

priate nexus is established, a reasonable suspicion test

et | The Type Of Invasion Permitted Depends Primarily Upon

_ The Quantity And Quality Of The Information.

Citation of authority is unnecessary to establish

P

‘that searches may be conducted. without some under-

lying standard of cause. Some quantum of specific

information to justify a particular search has always

I. Normally, probable cause is required. The gov-

ernment is obligated to show that it has reasonably

— information about facts and cireum-

. The probable cause requirement normally means

at the facts must focus on a particular person or

ace for a particular reason. But where enforce-

mt problems of a unique character are present, the

t of the search is not primarily for evidence of

e, and the search is of a limited nature, probable

cause: requirements: may be met by a more general

oro a prayer em 387 U.S. 523

9 ‘Seattle, 387 U.S. 541 (967). in

Camara, this Court held that “adn

— of. dwellings: are «subject to the ate

‘Amendment, requiring absent consent, not only prob-

e cause, but a a warrant. The government had

argued that such requirement would totally stop

enforcement, because officials would never have sufi

cient information to satisfy the traditional notion

of probable:cause that the facts specifically focus on

particular places to be searched and things to be

seized, Id., at 534539. This Court met the argument

by holding that probable cause requirements might

be satisfied by a more general showing than usually

ed. And this Court suggested further, in See,

that a lesser showing might be adequate for “admin-

istrative” searches of sit a A tc See, at

‘ tin, is an example in which this Court

while sti irin a standard, enlarged the area

fac e would be “sufficient unto themselves”

to constitute probable cause.

3. Terry b. Ohio, 392 U.S. 1 (1968), presents an-

eee, e probable cause

N | ments were relaxed, but in which a standard

a esa i quired. In Terry, this Court held

= cig may pat down a citizen for weap-

: . reasonable grounds to believe, baged

on articulable ets and inferences from those facts,

that he ig dealing with an armed and e

17

ridual, Thus, while not requiring facts “sufficient

o themselves,” this Court still required that offi-

have objective information which leads them to

us on a particular individual for specific reasons.

The notion that a certain level of information

ides an adequate focus to justify a search easily

ains Colonnade Catering Corp. v. U.S., 397 U.S.

1970) and U.S. v. Biswell, U.S., 40 L. W.

9 (1972). In those cases, this Court upheld legis-

m permitting inspection of the commercial prem-

of liquor and gun licenses without warrant. Jus-

sation for those decisions may be found in See v.

ttle, supra, or on the ground that the licensees,

g made aware of the law when they receive their

mses, had no justifiable expectation of privacy. Cf.

te v. U. S., 389 U.S. 347 (1967). However, each case

e business community, and involving searches

2 ep pelirs that neither a nor Mr. Biswell

80 9 question of lack of a standard of probable

, 403 US. 443 (1971); Chambers v. Mec

ada, it. appears thet des for enepicion:exieted. Jd,

ven, 200 U.S. 42 (1970). And the justification for

relaxation of the warrant requirement can be found

Pp.

n ee e e Yen

always been found necessary to justify a search. And,

based upon specific and artieulable facts which taken

together with rational inferences from those facts,

reasonably: warrant ‘that ‘intrusion, Terry v. Ohio,

sn sats ebe wee Fr r

A brief re-examination of the cases just discussed

from a different perspective indicates that it may be

; spriate for this Court to permit, in certain loca-

tions, the brief stopping of a vehicle and a brief inter-

rogation of its occupants without cause, while requir-

ee

5 8 Tue overwhelming majority of searches are for

7 idence of erime Such searches constitute major in.

trusions into privacy. iF amen cause is uniformly

: ay 8 th an v. Municipal Court, supra, the per

missible method of establishing probable cause was

yr ¥ ne , But the C Camara Court carefully limited its

2 ealth and safety situations which

in nature nor aimed at the

— —— me

19

d to the decision, it is equally clear that the

and scope of the search affected the decision

n Terry v. Ohio, supra, this Court permitted

J less than probable cause. In other words,

in eta full probable cause, were to be

d to a “narrowly drawn authority” to pat down

ts. The nature and scope of permissible search

severe!) nnen because of the lower standard

his Court, then, has always made sure that the

ure of the personal intrusion permitted was con-

ed by the information available to the government.

ot ee be mandates clearly falls on

; . Marbury v. Madison, 1 Cranch 137 (1804).

20

Here the clash is between the federal government’s

powers under Article I, Section 8 of the Constitu-

tion, and: the citizen’s rights under the Fourth

Amendment. The resolution of the conflict cannot be

either to give the government total power or to give

the citizen total privacy, for each of those results

would negate some part of the Constitution. Rather,

the resolution must result from striking a balance

ee en fiw ial.

In the situation under discussion, the Fourth

f.. ae ghia gi en

sword of the ove nt. The question is, how ag-

we should permit the swordholder to fight.

Pha, anaes sey car an ane a. necessary.

In other words, admitting that the government

needs some power to enforce immigration laws, but

izing that the exercise of such power will in-

fringe on constitutionally protected rights of privacy,

we should give to the gover ment only the minimum

authority it needs to enforce the laws. Only by re-

quiring the government to proceed in that manner

whi h, while permitting it to reasonably attempt to

shieve its legitimate goals, results in the least in-

meing test vill not produce. the most efficient lan

enforcement possible. But it is beyond argument that

ur democratic system efficiency is not the cofitrol-

g prime ple to which all citizens’ richts are sub-

Dean Milk Co. v. City of Madison, 340 U.S. 349

) concerned the constitutionality of an ordi-

dance regulating the sale of milk and milk products

within the municipality’s jurisdiction. By reason of

Merordinance the plaintiff, a distributor from. an-

de in e Unable to invoke the n en

0 wise because the kederal government had not legis-

: d exclusively in the field, id., at 353, plaintiff

i that the ordinance was invalid because it im-

e, even though it found that the City had

we e e u 8 Pee pee

ng ‘the ordinanee, and a need for regulation.

5 nee e was struck down because it go

e e Cage ago

than the “commercial” right asserted in Dean

he had belonged or regularly contributed within the

an unquestioned right to investigate the fitness and

competence of those whom it hired to teach, this

Court. nevertheless struck down the statute because

“even though the governmental purpose be legiti-

mate.and substantial, that purpose cannot be

.

liberties when the end can be more

; N achieved. The breadth of legislative

abridgment must be viewed in the light of less

_ drastic means for achieving the same basic pur-

pose. Id. at 488. Yad

The doctrine has been similarly applied in Wisconsin

v. Yoder, .. U.S. , 40 L. W. 4476 (1972);

NAACP. v. Button, 371 US. 415 (1963); Talley

v. California, 362 U.S. 60 (1959), and and Sherbert v.

Verner, 374 U.S, 398 (1963).

1 The least onerous alternative doctrine has not

been specifically articulated as such in cases dealing

with the Fourth Amendment. But a reading of the

cases discloses that this Court always addresses itself

to an examination. of the alternatives available in order

to decide if a search procedure is “reasonable”. Thus,

to use only the cases immediately under examination

mples, in Terry v. Ohio, supra, the Court ex-

i rg and limited the government to a pat-down

chec peng weay „

application of the doctrine explains the different re-

‘salts in See v. Seattle, supra; and U.S. v. Biswell,

‘supra. See Biswell, at 40 L. W. 4491.

A Wun not cleanly articulated in the Fourth Amend-

went decisions, the application of a doctrine requir-

g an examination of the alternatives available to

over t is quite sensible. This Court must

examine alternatives, for it must determine which

bearehes are “reasonable”, and what is reasonable

depends on what alternative courses of conduct are

eee

is y considered an unreasonable method of

egress from a building, it may become the only rea-

‘sonable method of exit if the building is on fire.

‘The above discussion brings into focus the two fatal

8 upon which the government’s argument is prem-

The governiient argues that the appropriate

to balance the governmental interest

| allegedly justifies, the official intrusion . . . as

le invasion entailed. by. the search or sei-

of for Respondent 11. But the appropriate

not to balance the interests: both interests are

if conceded importance. The proper test is to weigh

a method of ‘enforcement against other

pe r characterization N aes indi-

* flaw, Tie beter men dow net want

ment, Rather, it wants the Court to make a broad

ers above the Fourth Amendment, so that it can

enforce a “program”. Under such a “program”, with

upervised power, specific illegal searches would be

regrettable but legal, as incidental to the program.

2 1 type of eee e; is not the function of

ional. judgments Pe ee ae

inatio of. alternative methods of enforcement

and a determination of how. much power it is neces-

sary for the go nt to have to reasonably enforce

fo een aR

— — —

A VEHIOULAR SEARCH YOR ALIENS 18 A MAJOR INTERFER-

— sar co Piavacr AND THERE-

— aa BY THE IMPOSITION OF

e e yh Al

— or Alien Is A Major Itrtrnce Wit

Un Court has hl tha:

in -af a wbice on . the open highway

h. Carroll v. U. S., 267 U. S. 132 (1964). Chambers

Maroney, 399 U.S. 42 (1970); Coolidge v. New

s rule cannot be relaxed to the point where ve-

of a large number of citizens within a large

phical area are subject to search upon an offi-

whim. The automobile is truly a necessary ele-

in modern living. Indeed, it is the most common

ns of transportation we have. Enormous num-

‘of people regularly carry many private and per-

things in theni. Cars are made secure by locks

doors and trunks so that people can effectively

Chere can be little doubt that a vehicle search for

‘that are are made to feel embarrassed and be-

26

apparently are conducted. outside and often at night,

Where the driver no doubt feels insecure and exposed,

and where he is, indeed, exposed. The driver is in-

evitably where he cannot secure witnesses to the

search, where he cannot obtain aid from family or

friends, and, probably in most cases, a long distance

from the e ene area e is familiar to him

eee ee ebend tor: the search

is explained to the driver. There is no evidence that

such searches are conducted in a polite, non-aggressive

manner if possible. And there is no evidence that the

‘detention period occasioned by the search is short.

(The government cannot escape the fact that its

‘searches are gross intrusions by labeling them ad-

ministrative” searches. The only pure administrative

VV

%%

the primary purpose of the searches is to determine

who is breaking the variety of laws covering immigra-

tion. If violators are found, they are arrested on the

spot. The fact that a decision is made later to deport

rather than‘ Presente does not render the search an

“administrative” one a

0 vert T.. verioty-of Arist

nal offe iow : leek: involved in the illegal entry and

, But it seeks to avoid the problems raised by the

gov arnment, in footnote 25 of its brief alleges

Ot these, according to footnote 24, only 11,586

+smuggled. Thus, for all we know, almost all the

led aliens were prosecuted. More importantly,

vernment is obviously looking for those who

le aliens. According to footnote 24, it ‘‘netted

mugglers of aliens“. It does not tell us how

were prosecuted, but common sense tells us that

the vast majority, were.

‘While we are told that the Immigration Ser-

to make random vehiele inspections for

aliens in Times Square” (or presumably San Fran-

eiseo, or like places), this is apparently men,

“There is, quite simply, not a sufficient need . .

Brief for Respondent 31. n Seale that: Sip

eee eee eee de e Aeg urg 5

This remarkable position is wholly unwarranted, for

the Immigration Service has not even attempted to

live within a set of rules, In contrast, other branches

of the federal government have carefully drawn search

roles which they have apparently been able to live with

"Thus, the Bureau of Customs has carefully set forth

criteria controlling when and the manner in which

border searches are to be conducted, U.S. Treasury

Dept., Bureau of Customs, Inspector's Manual for the

Guidance Of Customs Officers (1969 Revision), cited

in part in Brief for Petitioner, U.S. v. Johnson, cert.

granted 400 U.S. 990, dismissed under Rule 60(2) on

of United States, U.S. , 30 L.Ed.2d

35 (1971). No claim has been made that Customs can-

not enforce the laws, even though such searches now

require a reasonable suspicion to sustain their validity.

Henderson v. U. S., 390 F.2d 805 (9th Cir. 1967) ; U.S.

v. Johnson, 425 F.2d 630 (9th Cir. 1971). It may be

inferred that the government is satisfied with the

rules it promulgated and the imposition of a reason-

able suspicion standard from the fact that it volun-

tarily dismissed its case in Johnson after this Court

beret pk hag ue Nee tae — 30 L.Ed.2d 35

(1971). 2 | 8

//! Sa’ yersiegiinds tee Stie we

ernment's response to our recent air piracy problems.

29

inly it must be conceded that the current ex-

ons. Yet the government has not only apparently

led that probable cause is necessary to search

which provides a measured series of responses

officials based on developments with which they

confronted. This procedure, set forth and dis.

sed in full in U.S. v. Lopez, 328 F.Supp. 1077

(1), requires passengers to walk through a mag-

tometer without any showing of cause, If the ma-

set off, a brief detention and interrogation is

d. Thereafter, if facts develop indicating that

propriate, a baggage search is permitted. Offi-

are thus permitted to handle situations as the

develop without undue infringement on the pri-

of air passengers. -

‘only has the government failed to try to set up

s to govern its immigration duties, but it has

sd to demonstrate that it cannot operate within

In its brief, the government continually speaks

ns of „programs“, consisting of “checks”, in-

ms,” ‘‘traffic checking operations,” and ‘vehicle

The government nowhere distinguishes be-

entions, interrogations and searches, It never

3 itself to the alternative of a system which

nishes different investigative tools.

The government's statistics, even if true, fail

monstrate need for a no-cause system. We are

d how many aliens are caught as a result of

searches. More importantly, we are not told how many

of the searches which produced aliens were in fact

based on a reasonable suspicion developed from a

stop, a brief interrogation or an observation of the

for all we know, the great majority of aliens may be

found by means of the interrogation process without

any search, or by search where the official had con-

crete facts justifying a reasonable suspicion.

3. With respect to the permanent sites, we are

never told why they were placed in a particular lo

eation. For example, Amicus was stopped at a check

point on the main road between San Diego and Los

Angeles, ‘seventy miles north of the Mexican border,

at San Clemente, California The government has not

demonstrated ‘why an equally effective checkpoint

could not be established south of San Diego, where

it is more probable that travelers on the highway had

recently engaged in international travel, which might

warrant a brief stop and interrogation without a foun-

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our inland areas are patently larger.

4. The government has never demonstrated why

: enforcement problems of immigration laws differ sig-

nificantly from enforcement problems involving other

laws, such as narcotics, gambling, or organized crime.

It has failed to show why it cannot use the tools which

are effective in those areas. ,

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amary, then, it must be conceded that the gov-

has needs; But it has failed to show that its

na system which gives them, rather than unfet-

ed authority, an escalating. set of flexible re-

ses, graduated in relation to the amount of in-

me they possess.” Terry v. Ohio, supra, at 10.

A rule permitting brief stops and interrogations

Without cause is proper if limited to areas within a

‘reasonable distance from the border, which is not

ays 100 miles. The government should be required

show that the distance is reasonable by showing

iling conditions.

Before a search of a vehicle is permitted the

Bevernment must show that it possesses specific ar-

‘tieulable facts providing a reasonable suspicion that

‘the vehicle or its occupants have a nexus with inter-

iational travel and that the vehicle contains aliens,

a rule would permit searches based on the con-

n of the car (whether it is riding low), any in-

mer’s tip, inconsistencies in the occupant’s story,

‘foreign nationality, to name only a few instances.

arches based merely on the type of vehicle would

t be permitted because almost all vehicles could

neeal aliens.

While this set of rules will not result in a system

in Which all illegal aliens are apprehended, it will

Probably be as effective as the unconstitutional one

now in force. The proposed rules, however, do pro-

vide a reasonable solution to the problem by giving

sponses designed to insure the least infringement on

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