Amicus Curiae Brief — United States v. Peltier
Supreme Court brief1975
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In ad RT, U, &
Supreme Cowt of the United
OcToBeR TERM, 1974
<>
No. 73-2000
UNITED STATES OF AMERICA, —_ Petitioner,
—yv.—
JAMES RoBERT PELTIER, Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE tf ‘NTH CIRCUIT
<>
No. 73-2050 .
UNITED STATES OF AMERICA, ' Petitioner,
—_y.—
Luis ANTONIO ORTIZ, Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
<>
No. 73-6848
JOHN LEE Bowen, Petitioner,
—y.—
UniTep STATES OF AMERICA, Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
<o-
No. 74-114
UNITED STATES OF AMERICA, . Petitioner,
a
FEeLIx HUMBERTO BRIGNONI-PONCE, Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIEF OF THE MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND, AMICUS CURIAE
Epwarp A. ToMLINSON Vitma S. MARTINEZ
University of Maryland SANFORD JAY ROSEN
School of Law JOAQUIN GUADALUPE AVILA
500 West Baltimore Street Mexican American Legal
Baltimore, Maryland 21201 Defense and Educational Fund
145 Ninth Street
San Francisco, California 94113
PED IAS ¥ —— . - -
RPT PA AP ERE FES Oo ON eee PONG L ES HOLS as ERLE LOL EELROL IO LE ONE PLS BE TOE Ha GEOG EEE ATID
INDE X
Table OE AMCHOLECI OG coo ek bs ees eons
Tatecest of Amicus Curiae .............
Questions Presented................006.
Statement of the Cases.................
Summary of Argument........ pew hee yes Pr
ARGUMENT
I. PROBABLE CAUSE IS REQUIRED FOR
AN UNCONSENTED WARRANTLESS
SEARCH BY FEDERAL OFFICERS OF
AN AUTOMOBILE FOR ILLEGAL.
ih. rr ee ee ee ee ee ee
II. PROBABLE CAUSE IS REQUIRED FOR
AN UNCONSENTED WARRANTLESS
SEARCH BY FEDERAL OFFICERS OF,
' THE INTERIOR OF AN AUTOMOBILE
FOR ILLEGAL ALIENS CONDUCTED
AT A FIXED CHECKPOINT............
III. WARRANTLESS UNCONSENTED CHECK -
POINT SEARCHES OF AUTOMOBILE
INTERIORS FOR ILLEGAL ALIENS
CONDUCTED BY FEDERAL OFFICERS
WITH ONLY AN AREA-WIDE
EQUIVALENT OF PROBABLE CAUSE
_ ARE NOT ADMINISTRATIVE SEARCHES
PERMISSIBLE UNDER CAMARA \V.
MUNICIPAL COURT,
/
IV.
ee
ne et |) ee hs
THE FOURTH AMENDMENT DOES NOT
PERMIT FEDERAL OFFICERS TO
MAKE RANDOM, WARRANTLESS STOPS
OF AUTOMOBILES ON THE PUBLIC
HIGHWAY TO QUESTION THE OCCU-
PANTS CONCERNING THEIR RIGHT TO
BE IN THE UNITED STATES........-.
iii
TABLE OF AUTHORITIES
Page
Cases:
Adams v. Williams, 407 U.S. 143
Ta? ° aa a ae on a ee
psi anes Unsted States,
th »°
rev'd., 413 U.S. 266 (1973): . passim
Almeida-Sanchez v. United States,
. ° (1973) ry ° ° e o ° passim
Camara v. Municipal Court, 387
U.S. 523 1967) ‘ - « 4,34,49
-
Cardwell v. Lewis, 41 L.Ed. 325
(1974). . ° . ° o . . > ° ° ° ° 20
Carroll v. United States, 267
Use Lae Cheese « «+ st wo we oe + Pein
Chambers v. Maroney, 399 U.S. 42
, reh. den., 400 U.S. 856 16,20,44
Coolidge v. New Hampshire, 403
U.S. 443 ( ,» reh. den.,
WOR Os ORRe as 6 6a So wd Bg
Edelman v. Jordan, U.S
“94S. Ct. 1347 (197%) .. 0. 31
iv
Garcia v. Hoobler, Civ. Act. No.
74-301-T (5.D. Cal.) (Filed
June 20, 1974), complaint dis-—
missed with leave to amend,
Order On Motions For Summary
Judgment And To Dismiss (S.D.
Cal., Jan 9, 1975)...
Hernandez v. Texas, 347 U.S. 475
(1954). . . + ° . oO . . ° ° °
Katz v. United States, 389 U.S.
347 (1 c+: xk + oe *
Keyes v. School District No. l,
teh 93.5. ct. 2086 (1973)
Shapiro v. Thompson, 394 U.S.
1969)... ..-s.-ee-e
Terry v. Ohio, 392 U.S. 1 (1958).
United States v. Bugera ay’
G84 F.2d 853 (9t ? ®
cert. den., » 94
U.S.
S. Ct. 881 (1974)... .
United States v. Bowen, 462
: 7 (9th Cir.),
reh, denied, (1972), cert.
ranted, judgment vacated
and case remanded for recon-
sideration, 413 U.S. 915,
, conviction affirmed,
Page
31
Page
500 F.2d 960 (9th Cir.) (en
banc), cert. granted, __. U.S.
, 42 L.Ed.2d 47 (Oct. 15,
1974) (No. 73-6848) .. ... .
United States v. Bowen, 500 F.2d
th Cir.) (en banc), cert.
ranted, _ U.S. , 42 L.Ed.
SF G7 (Oct. 15, 1974)(No. 73-
SGGns 20s es & Wie Hk ee me
passim
passim
United States v. Bowman, 487 F.2d
th Cir. 1973) ..... 22
“United States v. Brignoni-Ponce,
A 1109 (9th Cir.) (en
banc), cert. granted, U.S.
: L.Ed. 2d (Oct. 15,
1974) (No. 74-114). .....
United States v. Camacho-Davalos,
: 1382 (9th Cir. 1973) . 30
AVANA
United States v. Di Ree, 332 U.S.
. passim
20
United States v. Guana-Sanchez,
Cr. No. 72 CR 50 (Unreported
decision, N.D. Ill. June, 8,
1972), affirmed, 484 F.2d 590
(7th Cir. 1973), cert. granted,
Ge og ae Lokd. 24 1138
(1974) (No. 73-820) ...... 3,22
United States v. Legato, 480 F.2d
th Cir. 1973), cert. den.,
SADE. STO eee ee
vi
Page
United States v. Madueno-Astorga,
503 F.2d 620, (9th Cir. 19725 . 19
United States v. Mallides, 473 °
; th Cir. 1973)... . 22,30,42
United States v. Martinez-
Miramontes, 494 < al sis ae
ce
United States v. Morgan, 501 F.2d
th Cir. Meagan eo a
United States v. Nevarez-Alcantar,
8 (10th Cir. 1974) . 19
United States v. Ortiz, Cr. No.
160300 (S.D. Cal. Dec. 5, 1973),
reversed, (unreported) , (9th Cir.
June 19, 1974), cert. granted,
U.S. , tes a = )
ee. 75-00) ck . Peesin
United States v. Peltier, 500 F.2d
t r.) Cen banc), cert.
granted, U.S. ;
ie, 75-2000). 2c. ws sg Pasoio
United States v. re ToTey 496 F.
2d 1395 5 e e °
th Cir. 19
White v. Regester, 93 St. 2332
1973). Pies « «oe
Yick Wo v. Hopkins, 118 U.S. 356.
Tee os aS ee
vii
Federal Statues:
C. §1324(a) (1-4)
oC. §1324(a) (2)
Ge $1325 .
.C
C.
. §1357(a) (1)
§1357 (a) (3)
21 U, §.C. 9-04 raged
42 U.S.C. §2000a, Shek
Title II, Civil “kighe ct of
1964 ..
Federal Regulations:
8 C.F.R. 287.1 .
Miscellaneous:
Automobile License Checks and the
ourth. Amendment, VA.L.REV.
666 (1974) . a
Area Search Warrant in Border
Zones: Almeida-Sanchez and
Camara, 64 YALE.L.J. 355 (1974)
Warrantless Searches and Seizures
fe) utomobiles, RV,L.REV.
Hearings on H.R. 982 before
Subcommittee No.l of the
House Committee on The
tess SU 93rd Cong., lst
Sess., 31-32 (1973).
26
45
35,38
17
37
| S&S
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1974
No. 73-2000
UNITED STATES OF AMERICA,
Petitioner,
Vv.
JAMES ROBERT PELTIER,
Respondent.
On Writ of Certiorari to the United
States Court of Appeals for the
Ninth Circuit
No. 73-2050
UNITED STATES OF AMFRICA,
Petitioner,
Vv.
LUIS ANTONIO ORTIZ,
Respondent.
On Writ of Certiorari to the United
States Court of Appeals for the
Ninth Circuit
No. 73-6848
JOHN LEE BOWEN,
| Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari to the United
States Court of Appeals for the
Ninth Circuit
No. 74-114
UNITED STATES OF AMERICA,
| Petitioner,
Vv.
FELIX HUMBERTO BRIGNONI-PONCE,
Respondent.
On Writ of Certiorari to the United
States Court of Appeals for the
Ninth Circuit
BRIEF OF THE MEXICAN AMERICAN
LEGAL DEFENSE AND EDUCATIONAL
FUND, AMICUS CURIAE
3
1/
Interest of Amicus Curiae
The Mexican American Legal Defense and
Educational Fund (MALDEF) was established
on May 1, 1968, primarily to secure the
civil rights of Mexican Americans through
litigation and education. In its efforts
to assist the Mexican American community to
achieve its rights under the law, MALDEF
has been involved in litigation which has
challenged the traditional barriers facing
Mexican Americans: abridgement of partici-
_ patory, constitutional, and political rights;
unequal educational opportunity; discrim-
inatory employment practices; unequal dis-
tribution of public services; and law en-
forcement misconduct. Because both citizens
and lawfully admitted resident aliens of
Mexican ancestry are frequently victimized
be overzealous searches for illegal aliens,
MALDEF has challenged such activities in
numerous lawsuits. See, e-g., United
States v. Guana-Sanchez, U.S.S.Ct. No. 73-
820 (amicus brief); Garcia v. Hoobler, F.
Supp. - Civ. Act. 74-301-T (S.D. Cal.
Jan. 8, 1975, Order granting defendants'
Motions For Summary Judgment And To’ Dismiss,
with leave to plaintiffs to amend it
part).
1/ Letters of consent to the filing of
this brief from each party in each case
have been filed with the Clerk.
4
QUESTIONS PRESENTED
1. Whether the Fourth Amendment per-
mits federal officers to conduct an un-
consented, warrantless search of the in-
terior of an automobile for illegal
aliens when the federal officers do not
have probable cause for believing either
that the automobile to be searched con-
tains ne Cr aliens, or that the auto-
mobile or its contents have recently
crossed an international border.
2. Whether the Fourth Amendment per-
mits federal officers to conduct at fixed
checkpoints an unconsented, warrantless
search of the interior of an automobile
for illegal]. aliens when the federal
officers do not have probable cause for
believing that the automobile to be
searched contains illegal aliens or that
the automobile or its contents have re-
cently crossed an international border.
3. Whether the rationale of Camara v.
Municipal Court, 387 U.S. 523 (1967),
Should be extended to sustain, as 4 law-
ful administrative search, the warrant-~
less, unconsented checkpoint search of an
automobile's interior for illegal aliens
conducted by federal officers, on the
basis only of an area-wide equivalent of
probable cause, and without probable
cause for believing that the automobile
to be searched contains illegal aliens.
5
4. Whether the Fourth Amendment per-
mits federal officers to conduct an un-
consented, warrantless stop of an auto-
mobile on the public highway to question
the occupants concerning their right to
be or to remain in the United States
where the federal officers do not have
reasonable grounds for believing that one
or more of the occupants are illegal
aliens?
6
STATEMENT OF THE CASES
The Ortiz Case [No. 73-2050].
On November 12, 1973, Border Patrol
agents at the United States Border Patrol
Immigration Checkpoint at San Clemente, 2/
California, stopped Respondent Ortiz while
he was driving a 1969 Chevrolet sedan
northward on Interstate Highway 5 toward
Los Angeles, California. (Appendix to
Petition for Writ of Certiorari at 44A.)3/
The San Clemente checkpoint is located 62
air miles and 66 road miles north of the
border and lies north of the densely pop-
ulated San Diego metropolitan area. (App.
Pet. in No. 73-2050 at 24A-25A.) Border
Patrol agents at the checkpoint directed
respondent's automobile to the secondary
inspection area at the side of the road.
While conducting a routine search,
they found three aliens concealed inside
the trunk of the automobile.
At the subsequent trial, District Judge
Edward Schwartz ruled that the "San Clemente
checkpoint is a permanent checkpoint and
that the stopping of the vehicle and the
search by the Border Patrol was a valid
legal search-e (App. Pet. in No. 73-2950
Hereinafter cited as (App. Pet. in No.
3-2050 at...)
3/ The Border Patrol is a division of the
Immigration and Naturalization Service
which is a part of the United States De-
_partment of Justice.
7
at 47A.) After a non-jury trial respon-
dent was then convicted on three counts
of transporting aliens who were in the
country illegally, in violation of 8 U.S.
C. § 1324(a) (1-4).
The Court of Appeals subsequently re-
versed respondent Ortiz's convictions on
the authority of its en banc decision in
United States v. Bowen, 500 F.2d 960,
cert. granted, U.S. , 42 L. Ed.2d 47
(1974). In Bowen, the Court of Appeals
held, primarily on the basis of this
Court's decision in Almeida-Sanchez v. |
United States, 413 U.S. 266 (1973), that
the Fourth Amendment prohibited a check-
point search of an automobile for aliens
conducted without a warrant and without
probable cause unless the checkpoint
search was the functional’ equivalent of a
border search. For a checkpoint search to
be the functional equivalent of a border
search, there must be a reasonable cer-
tainty, or at least a probability that the
vehicle stopped or its contents had re-
cently crossed an international border.
500 F.2d at 966. Under this test the
Ninth Circuit subsequently held in United
States v. Morgan, 501 F.2d 1351 (9th Cir,
(en banc), that routine searches of
automobiles at the San Clemente checkpoint
were not the functional equivalent of
border searches. The Ninth Circuit, how-
ever, limited its decision in Bowen to
checkpoint searches conducted after June
21, 1973, the date of this Court's decis-
ion in Almeida-Sanchez. Bowen, supra,
500 F.2d at 975-80. Since the search of
respondent Ortiz's automobile occurred
8
after that date and was not deemed a border
search, his conviction based on the illeg-
ally seized evidence was reversed.
The Bowen Case (No. 73-6848). Petition-
er Bowen on January ; , was driving a
pickup with a camper northward on Califor-
nia State Highway 86 when he was stopped at
the United States Border Patrol Immigration
Checkpoint. (Appendix at 35.)4/ The check-
point on California State Highway 86 is
located 36 air miles and 49 road miles north
of the Mexican Border. (App. Pet. in No. 73-
2050 at 30A); the vs poo centers, of |
Heber, El Centro, Brawley, Imperial, West-
moreland and Indio lie between the check-
point and the border. (App. in No. 73-
6848 at 39.) Petitioner sati: fied the Immi-
ee iain Officer on Duty as to his United
tates citizenship (App. in No. 73-6848 at ©
36). The officer noticed nothing suspicious
or unusual about petitioner Bowen or the
camper (App. in No. 73-6848 at 41), but
nevertheless, asked him to open up, the back
of the camper to search for illegal aliens
(App. No. 73-6848 at 36). Petitioner
Bowen opened the door of the camper, and
the officer immediately detected the smell
of marijuana (App. in No. 73-6848 at 41).
The officer then entered the interior of
Bowen's camper through a rear door and,
with the assistance of a flashlight, dis-
covered a quantity of miarujuana (App. in
No. 73-6848 at 36 and 43-47). No illegal
aliens were discovered. eye
4/ Hereinafter cited as (App. in No. 73-
6848 at _.) : :
9
Bowen's motion to suppress the evidence
was denied on August 23, 1971, and he was
subsequently convicted by a jury on August
31, 1971 of smuggling marijuana into the
United States from Mexico, transporting
marijuana, Daag peepee depressant and stimu~
lant drugs in violation of federal law.
The Ninth Circuit initially affirmed the
convictions in United States v. Bowen, 462
F.2d 347 (9th Cir. 1972), but this Court
then remanded the case to the Ninth Circuit
for further consideration in light of
Almeida-Sanchez, 413 U.S. 915 (1973). On
remand, the Ninth Circuit held that routine
immigration searches at fixed checkpoints
removed from the border, conducted without
a warrant or probable cause, violated the
Fourth Amendment. United States v. Bowen,
500 F.2d 960 (9th Cir. 1974) (en banc),
cert. granted, U.S; , 42 L.Ed. 2d 47
(1974). Nevertheless, they affirmed
Bowen's conviction since the search of his
camper occurred prior to this Court's
- decision on June 21, 1973 in Almeida-
Sanchez.
The Brignons—Fonce Case (No. 74-114).
Respondent Brignoni-Ponce on Marc ey fe
was driving north on Interstate Highway 5
near San Clemente, California, when his car
was stopped by agents of the United States
Border Patrol. _ Pe Me at 5, 8.)5/ The
checkpoint was closed due to lack of man-
power and inclement weather, but two Border
Patrol agents were on duty parked in a
patrol car observing northbound traffic.
(App. in No. 74-114 at 6.) The patrol] car
was parked at a 90° angle to the highway
with its headlights on. In the early even-
ing hours, the agents observed Brignoni-
5/ Hereinafter cited as (App. in No. 74-
14 at 3}.
ERED TR ies ia eh it,
10
Ponce's car going north and decided that
they "wished to inspect" it. (App. in
No. 74-114 at 6.) The agents' desire to
inspect the car was based solely on the
occupants' Mexican appearance. (App. in
No. 74-114 at 9.) Upon questioning the
passengers in Brignoni-Ponce's vehicle
concerning their citizenship, the agents
determined that they were aliens illegally
in the United States. After unsuccessfully
challenging the validity of the stop,
Brignoni-Ponce was convicted of two counts
of transporting illegal aliens in violation
of 8 U.S.C. 1334 (a) (9) Furthermore, the
court rejected the ak attempt to
distinguish this case from Almeida-Sanchez
on the grounds that Almeida-Sanchez involv-
ed a search rather than a stop. The Ninth
Circuit reasoned that Almeida-Sanchez
“reflects at least as much concern with the
initial stop as with the subsequent search."
499 F.2d at 1111. Thus, for purposes of
Fourth Amendment protections, roving patrol
searches as well as roving patrol stops are
prohibited.
Since the stopping of Brignoni-Ponce's
automobile and the discovery of illegal
aliens occurred prior to the decision
announced in Almeida-Sanchez, an issue of
retroactive application was raised. In
United States v. Peltier, 500 F.2d 985 (9th
en banc), the. Ninth Circuit held
that Almeida-Sanchez would be applied to
similar cases pending an appeal at the time
of this Court's decision in Almeida-Sanchez.
However, in cases involving fixed check-
point searches conducted prior to Almeida-
Sanchez, there would be no retroactive
application. United States v. Bowen, 500
F.2d 960 (9th Cir. 1974) (en banc). Since
Ee
the Ninth Circuit characterized Brignoni-
Ponce's stop as a roving patrol stop
rather than a fixed checkpoint stop,
Almeida-Sanchez was applied retroactively
in this case, resulting in the reversal
of Brignoni-Ponce's conviction.
The United States Court of Appeals
for the Ninth Circuit reversed the con-
viction.. United States.v. Brignoni-Ponce,
499 F.2d 1109 (9th Cir. 1974) (en banc). The
Court of Appeals unanimousiy held that a
warrantless stop of a vehicle to inquire
t as to the citizenship of the occupants is
permissible under the Fourth Amendment
only if the Border Patrol agents have a
“founded suspicion" that the occupants of
the vehicle are aliens whose presence in
this country is unlawful. 499 F.2d at
1112. The mere fact that Brignoni-Ponce
and his passengers appeared to be of Mexi-
can descent did not provide the agent with.
adequate cause to stop the automobile.
The Peltier Case (No. 73-2000). On
February 28, 1973, Respondent Peltier was
driving northward on United States Route
395 near Temecula, California, when his
automobile was pursued and stopped by a
roving border patrol. The Border Patrol
officers then searched the trunk of the
automobile for concealed aliens. The stop
took place approximately 70 air miles north
of the Mexican border. The Border Patrol
agents decided to stop and search Peltier's
automobile because he appeared to be of
Mexican descent and was driving an old
model car. After stopping the car, the
agents also observed that it bore out-of-
State license plates, that Peltier was
alone in the car, and that there were some
— z Pangan resets SREP RRR SAP
-~
12
clothes in the back seat. Upon searching
the car, the agents did not discover any
ges, ye aliens, but did discover a quanti-
ty of marijuana in the trunk. Peltier was
subsequently convicted in the United States
District for the Southern District of
California of possessing marijuana with
intent to distribute in violation of
21 U.S.C. 844(a)(1), after Peltier's
motion to suppress the marijuana as evi-
dence was denied. Subsequent to the
District Court's decision, this Court held
in Almeida-Sanchez that a warrantless
roving patrol search of an automobile for
concealed aliens violates the Fourth
Amendment when the Border Patrol agents
have acted without probable cause for
believing that the automobile contained
illegal aliens. The Court of Appeals for
the Ninth Circuit then reversed Peltier's
conviction on the authority of Almeida-
Sanchez. United States v. Peltier,
U.S. 985 (9th cir. 1974). Although the
roving patrol search in this case occurred
before June 21, 1973, the date of this
Court's decision in Almeida-Sanchez, the
Ninth Circuit held that Almeida Sanchez
"should be applied to similar cases pend-
ing an appeal on the date the Supreme
Court's decisions was announced." 500 F.
2d at 986 (footnote omitted).
13
SUMMARY OF ARGUMENT
Over the last several decades, this
Court has developed a substantial body of
Fourth Amendment law. This body of law
emphasizes probable cause as the normal
predicate for a constitutionally valid
search of an automobile's interior. While
a somewhat lesser standard may justify the
investigatory stop of a person or of an
automobile on a public highway, random or
routine stops have not received the Court's
approval. A separate rationale for rou-
tine administrative searches has been
developed, but that rationale has so far
been limited to cases where there are at
least the safeguards of the warrant pro-
cess or where intensively regulated busi-
nesses are involved. Border searches have
also received separate treatment, but the
government recognizes that the instant
four cases do not involve border stops or
searches. (Brief for Petitioner United
States in No. 73-2050 at 16.)
Almeida-Sanchez v. United States, 413
U.S. 266 (1973) is consistent with this
body of law. In this amicus brief MALDEF
argues that this Court’s basic Fourth
Amendment jurisprudence not only dictated
the result in Almeida-Sanchez but also
requires the Court to condemn the searches
and.stops in the instant four cases. Auto-
mobile searches at fixed checkpoints are
' essentially no different from automobile
searches conducted by roving border patrols,
and investigatory stops of automobiles are
subject to the same prohibition of routine
and random searches. The application of
this Court's basic Fourth Amendment law to
these cases is especially important to
14
those Mexican Americans, both citizens and
lawfully admitted aliens, who are the
actual or potential victims of automobile
stops and searches conducted by Border Pa-
trol agents looking for illegal aliens.
The application of basic Fourth Amendment
principles to these cases would operate to
vindicate the rights of United States citi-
zens of Mexican descent, and lawfully resi-
dent aliens of similar descent, to travel
on the public highway free of random, dis-
criminatory or otherwise unreasonable
Searches and seizures.
Since no new law is involved in these
cases, the basic Fourth Amendment princi-
ples developed by this Court should be
applied in these cases. Thus, the judg-
ments of the United States Court of
Appeals for the Ninth Circuit in Ortiz
(No. 73-2050), Bri noni Ponce (No. 74-
114) and Peltier No. 00), reversing
the respondent pao nb should be
affirmed, while the judgment of the United
States Court of Appeals for the Ninth Cir-
cuit in Bowen (No. 73-6848), affirming the
ieee Ss conviction, should be reversed.
6/ This brief does not present additional
argument on the retroactivity issue pre-
sented in Bowen (No. 73-6848), Brignoni-
Ponce (No. 74-114) and Peltier (No. 73-
2000). On this issue MALDEF adopts the
arguments advanced by each of the defen-
dants.
15
ARGUMENT
I
PROBABLE CAUSE IS REQUIRED FOR AN
UNCONSENTED WARRANTLESS SEARCH BY
FEDERAL OFFICERS OF THE INTERIOR OF
AN AUTOMOBILE FOR ILLEGAL ALIENS
The defendants in these cases, Ortiz
in No. 73-2050, Brignoni-Ponce in 74-114,
Peltier in 73-2000 and Bowen in 73-6848,
were all doing what hundreds of thousands,
if not several million, Americans do every
day: they were lawfully driving an automobile
on a public highway within one hundred miles
of an external boundary of the United States.
Border Patrol agents stopped, and in three of
the four cases searched, the defendants'
automobiles for illegal aliens.
In Ortiz (No. 73-2050), the respondent
was stopped and his automobile searched for
illegal aliens at a permanent immigration
checkpoint on Interstate Route 5 near San
Clemente, California, about 62 miles from
the Mexican border. (App. Pet. in No. 73-
2050 at 43A-45A.) In Bowen (No. 73-6848) ,
the petitioner was stopped and His automobile
searched at a similar checkpoint on California
State Highway 86 approximately 36 air miles
and 49 highway. miles north of the Mexican
border. United States v. Bowen, 500 F.2d
960, 961 (9th Cir. I97Z). Both cases in-
volved routine searches where the Border
Patrol officers who conducted the searches
had no reason to believe that the drivers
of the automobile were other than innocent
and law-abiding individuals exercising their
rights to operate a motor vehicle on a public
A — NRE seme STS OIRRL PELE CURES tent NR
16.
highway within one hundred miles of an ex- \
ternal border. \
In Brignoni-Ponce (No. 74-114), the
agents stopped but did not search the re-
spondent's automobile. The stop occurred
to the north of a fixed checkpoint not then
in operation. The officers' decision to stop
the vehicles was based solely on the occupants'
Mexican appearance. (App. No. 74-114 at 9.)
In Peltier (No. 73-2000), the agents
both stopped and searched the respondent's
automobile at a spot approximately a mile
and a half north of a checkvoint that was
also not in operation. The agents acted
because Peltier was alone driving an old
model car with out-of-state license plates
in an area the offices knew to be frequented
by smugglers of illegal aliens.
This Court has consistently required pro-
bable ‘cause as the minimum requirement for
a search by federal officers of an automobile
stopped on a public highway. Carroll v.
United States, 267 U.S. 132, 149 (1925) ("On
reason and authority the true rule is that
if the search and seizure without a warrant
are made upon a belief, reasonably arising
out of circumstances known to the seizing
officer, that an automobile or other vehicle
contains that which by law is subject to
seizure and destruction, the search and
seizure are valid."'). The officers who make
the stop must have probable cause for believ-
ing that the particular automobile to be
searched is carrying seizable items that are
the object of the search. Coolidge v. New
Hampshire, 403 U.S. 443, 460- :
Champers v. Maroney, 399 U.S. 42, 48, 51
(1970): See generally, Note, Warrantless
17
Searches and Seizures of Automobiles, 87
a ve a . 1s probable
cause requirement should be applied to the
automobile searches in the instant cases
to avoid the creation of a Fourth Amendment
free-fire zone in the hundred mile wide
strip contiguous to an external boundary
of the United States.
Carroll v. United States, 267 U.S. 132
(1925), is the leading case explicitly
recognizing the probable cause requirement
for automobile searches on public highways.
In Carroll, federal officers discovered and
seized contraband liquor during the course
of a warrantless search of an automobile
stopped on a public highway. Federal pro-
hibition agents at that time faced a law
enforcement problem comparable in magnitude
to that faced today by the Border Patrol.
The transporation of contraband liquor by
automobiles was an essential part of most
boot legging operations just as the trans-
porting of illegal aliens by automobiles
in an important part of most alien smuggling
operations.
Although recognizing the significant
constitutional interest under the Eighteenth
Amendment advanced by the officers' actions,
nevertheless, in Carroll the Court required
that warrantless searches and seizures of
contraband located in automobiles be pre-
dicated upon probable cause, and held that:
"[t]he measure of legality of such a seizure
is, ...that the seizing officer shall have
reasonable cause for believing that the auto-
mobile which he stops and seizes has contra-
band liquor therein which is being illegally
transported." 267 U.S. at 155-54. The
Court further held that the Fourth Amendment
18
guaranteed to travellers on a public highway
‘a right to free passage without inter-
ruption 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
merchandise. 267 U.S. at 153.
If the Fourth Amendment requires that
federal agents have probable cause for
believing that a specific automobile is
carrying contraband liquor before they |
search that automobile for the liquor, it
also requires that federal agents have
probable cause for believing that a specific
automobile is carrying illegal aliens be-
fore they search that automobile for the
aliens. As stated by the Court in Almeida-
Sanchez v. United States, 413 U.S. 266, 269
(1973): “...[T}]he Carroll doctrine does not
declare a field day for the police in search-
ing automobiles. Automobile or no auto-
mobile, there must be probable cause for
the search." (footnote omitted)
Almeida-Sanchez merely reiterated the
well established principle that automobiles
are protected by the Fourth Amendment. This
protection is triggered by an individual's
expectation of privacy, Katz v. United States,
389 U.S. 347, 351-52 (1967), and is not
dependent on the type of contraband sought
to be seized. Thus the mere fact that il-
legal aliens are the targets of a search
should have no bearing on the probable
cause requirement afforded by the Fourth
Amendment. Such protection is warranted in
the cases at bar, moreover, since searches
of motor vehicles for illegal aliens are
similar in their intrusiveness into consti-
tutionally protected areas as is the search
for contraband liquor. The federal agents
19
may search in the trunk, under the hood, in
the interior of a camper or of a pickup
truck, behind the back seat, and in any
other area of a vehicle where a human being
could reasonably be concealed. In Almeida-—
Sanchez, for example, the agents searched
under the rear seat of the automobile,
which the Court of Appeals concluded was a
place where an alien might conceal himself
by removing the springs, 452 F.2d 459, 461
(9th Cir. 1971), rev'd 413 U.S. 266 (1973),
while in Bowen (No. 73-6848) and in Peltier (No.
73-2000), respectively, the agents searche
the interior of a camper truck and the trunk
of an automobile. In United States v.
Madueno-Astorga, 503 F.2d 820, 821 (9th
Cir. 1974), the agents even removed the
back seat-of an automobile when the driver
was unable to open the trunk.
In the course of these searches federal
agents examine areas of the automobile that
are private and closed to public view; they
may even come across, in "plain view",
seizable items other than the illegal
aliens which are the object of their
searches. In Almeida-Sanchez and many
other cases marijuana has been found, and
the drivers have been prosecuted for the
illegal transportation of marijuana rather
than the illegal trasportation of aliens.
, See, e.g., United States v. Phillips,
| 496 F. 1395 (5th Cir. 1974); United
States v. Nevarez-Alcantar, 495 F.2d 678
cn. Gis: ; United States v. Marti-
nez-Miramontes, 49 ; tn Gir.
. This phenomenum has led at least
one circuit court judge to comment in the
related area of airport searches that
"[i]t is passing strange that most of these
airport searches find narcotics and not
bombs, which might cause us to pause in our
eS - a “Eee ERATE ise SER AERA ABE
‘
20
rush toward malleating the Fourth Amendment
in order to keep the bombs from exploding."
United States v. Legato 480 F.2d 408, 414
(5th Cir. 1973) (eclabarx, J., concurring),
cert. den., 414 U.S. 979 (1973).
To prevent abuses in such searches, the
scope of the search should be limited by
the nature of the item sought to be seized.
For example, a search of an automobile for
illegal aliens does not authorize a search
of the occupants or of the handbags or
other similar containers in the automobile.
See United States v. Di Ree, 332 U.S. 581,
586-587 TLO“EY The application of this
familiar principle to the instant cases is
conceded by the United States in Ortiz.
(No. 73-2050) (Brief at 29.)
Certainly, this Court has not vitiated
the probable cause requirement for the
search of the interior of an automobile on
the grounds that such a search is less in-
trusive than a search of a person or of a
dwelling. Although for purposes of the
Fourth Amendment there is some constitu-
tional difference between searches of
houses and of cars, Chambers v. Maroney,
399 U.S. 42 (1970), this difference results
from the high degree of mobility enjoyed by
motor vehicles ard only permits law enforce-
ment officers it some circumstances to dis-
pense with the warrant requirement. Nothing
has affected the probable cause requirement
established in Carroll for motor vehicle
‘searches. 399 U.S. at 51. In this respect
Cardwell v. Lewis, u-8. 68-4. 84.26
. is consistent with the Carroll-
Chambers line of decisions because in
Cardwell, the Court merely upheld a warrant-
less examination or “search,'' based on pro-
se
bable course, of the tire tread and exterior
paint of the defendant's automobile. The
observation in the plurality opinion, 41 L.
Ed.2d at 335, that a person has less of an
expectation of privacy in a motor vehicle
than in a dwelling, and that automobile
searches are therefore less intrusive than
residential searches, was not made in the
context of the search of the interior of an
automobile or camper, If Cardwell, had in-
volved an interior search, the plurality's
statement that automobiles are seldom a
“repository of personal effects" and that
their "contents are in plain view" wouid ©
simply not be true. Millions of Americans
carry personal effects in private areas of
their automobile, such as the trunk or the
glove compartment or the interior of a
camper. These areas are concealed from
public view by the exterior of the vetiicle.
An expectation of privacy in one's personal
effects should not be defeated simply be-
cause one transports them on a public high-
way. We are a free and mobile society whose
members frequently change residences, and
who frequently motor to vacations at summer
homes, ,campsites and resort hotels. Surely,
our household effects are not fair game for
an unconsented warrantless non- ‘probable
cause search simply because they are in
transit in the interior ofa motor vehicle
on a public highway. As noted in Coolidge
v. New Hampshire, 403 U.S. 443, 461- 62(1971),
“The word ‘automobile’ is not a talisman in
whose presence the Fourth, Amendment fades
away and disappears.’ This Court therefore
should not sanction warrantless interior
automobile searches on less than probable
cause on the ground that such searches are
less intrusive than other searches.
Pe ee ’ OLE
22
A final consideration to be taken into
account concerns a widespread practice of:
apprehending illegal aliens by state and
local law enforcement agencies. In the
Southwest, city police, county sheriffs,
and, other law enforcement officers often
participate in stopping, detaining, and
interrogating persons to determine their
citizenship. E.g., United States v.
Mallides, 473 Fa's th Cir. 3)
(two city police officers stopped an auto-
mobile due ‘to their suspicion that the car
contained illegal aliens); United States |
v. ‘Guana-Sanchez, Cr. No. 72 CR 50 (Unre-
ported decision, N.D. I1l. June 8, 1972),
affirmed, 484 F.2d 590 (7th Cir. 1973),
cert. granted, U.S. , SL LBS. 26.
TT38™
( No. 73-820). If the proteéc-
tions afforded by the Fourth Amendment are
not made applicable to these stops, then
state and local law enforcement officials ©
‘can stop any person of Mexican descent
ostensibly for the purpose of determining
the person's citizenship. , Thus local ‘law
enforcement officials will be able to cir-
cumvent the guarantees provided by the
Fourth Amendment simply by relying on the:
wide discretion afforded to immigration of-
ficers ‘pursuant to 8 U.S.C. §1357(a) (1).
See United States v. Bowman, 487 F.2d 1229
(10th Cir. 1973). (where immigration officials
were held to be empowered to stop individuals
to determine their citizenship without a
warrant, without probable cause, and even
without reasonable suspicion that the per-
sons are illegal aliens).
Thus both to identify further the limi-
tations on the stop and search powers of
federal Border Patrol officers, and to help
prevent state and local police circumvention
er
23
of the Fourth Amendment rights of Mexican
appearing individuals, this Court should
apply the probable cause requirement to
unconsented, warrantless searches of auto-
mobiles by federal officers seeking illegal
aliens.
Pe Od Nags Oe OE Ee Oe aS eA IN
ARGUMENT
II
PROBABLE CAUSE IS REQUIRED FOR AN
‘UNCONSENTED WARRANTLESS SEARCH BY
FEDERAL OFFICERS OF THE INTERIOR
OF AN AUTOMOBILE FOR ILLEGAL ALIENS
CONDUCTED AT A FIXED CHECKPOINT.
._ In Ortiz (No. 73-2050) and in Bowen
(No. 73-6848) the automobile searches were
conducted at fixed border patrol check-
points, at San Clemente, California, and
on California State Highway 86, respective-
ly, while in Peltier (No. 73-2000) the re-
spondent's automobile was stopped and
searched by a roving border patrol. In
Brignoni-Ponce (No. 74-114) there was no
automobile search. The government concedes
that the fixed checkpoint at San Clemente,
Brief for Petitioner in Ortiz, No. 73-2050
at 16, is not the functional equivalent of
the border permitting a warrantless full-
scale border-type search of a vehicle for
aliens or contraband because it cannot be
said with any degree of assurance that «the
vehicles searched or their contents had
recently crossed the border. This conces-
sion, would also seem to cover the check-
point on California State Highway 86 which
the Court of Appeals in United States v.
Bowen, 500 F.2d 960, 966 (9th Cir. 1973)
(en baic), specifically found not to be
the functional equivalent of the border
since there was no reasonable certainty or
even probability that the vehicles searched
or their contents had recently crossed an
international border. The government never-
theless argues in these cases that Almeida-
25
Sanchez v. United States, 413 U.S. 266
, only condemns warrantless auto-
mobile searches for aliens conducted with-
out probable cause by roving patrols and
does not affect similar searches at fixed
checkpoints. This distinction is untenable,
and the Fourth Amendment, as consistently
construed by this Court from Carroll v.
United States, 267 U.S. 132 (1925), through
Almeida-Sanchez in 1973, prohibits both
roving patrol and fixed checkpoint searches
for aliens that are conducted by federal
agents without consent, without a warrant
and without probable cause.
The fixed checkpoints in these cases
are not "fixed" by any immutable necessity
or by any court order but by executive of-
ficials within the Border Patrol. The gov-
ernment recognizes that the sites for fix-
ed checkpoints are selected “as the result
of careful study by relatively high-lewel
officials of the Border Patrol." (Brief
for Petitioner in Ortiz, No. 73-2050 at 13.)
Even assuming that the Border Patrol has
engaged in careful study in selecting the
sites for fixed checkpoints, additional
study, especially of the data collected
from the operation of existing checkpoints,
.may convince the Border Patrol to open new
checkpoints or to move existing checkpoints.
A "fixed" checkpoint is therefore fixed ~
only by executive decision and may move and
become "roving" by executive decision.
There is nothing inherently fixed about any
checkpoint's location. While some loca-
tions may be more suitable geographically
than others, functionally a checkpoint is
very mobile. The signs, traffic cones,
lights, and uniformed officers which are
26
the essential elements of a checkpoint may
readily be assembled, with portable or tem-
porarily installed equipment if necessary,
at a new location where there is an ade-
quate stretch of open road to permit safe
operation.
The Border Patrol has statutory author-
ity to search vehicles for aliens, and pre-
sumably to establish checkpoints to accom-
plish these searches, within a reasonable
distance from any external boundary of the
United States. 8 U.S.C. 1357(a)(3). "“Rea-
sonable distance" has been defined by reg-
ulation to mean 100 miles in most cases.
8 C.F.R. 287.1. While this statute and
regulation cannot authorize the Border
Patrol to conduct otherwise unconstitutional
searches, Almeida-Sanchez v. United States,
413 U.S. 266, 272 (1973), they do authorize
the Border Patrol within constitutional
limits to site checkpoints and search vehi-
cles, operated to uncover illegal aliens,
anywhere within one hundred miles of the
border. Under the authority conferred by
the statute and the regulations, the Border
Patrol could conceivably establish a "fixed"
checkpoint anywhere on the New Jersey Turn- /
pike to search vehicles for illegal aliens.-—
7/ The government recognizes that check-
point searches at Times Square, and pre-
sumably also on the New Jersey Turnpike,
would be unreasonable and hence unconsti-
tutional because the local conditions at
those sites do not provide the "area-wide
equivalent of probable cause" which the
government argues is the sole constitutional
af
More realistically, the Border Patrol may
find at some future date that it is more
effective to replace its temporary check-
points with a system of mobile checkpoints
on both main and back roads that operate
to surprise the smuggler of illegal:aliens
by moving or "roving" from one location to
another. Since no checkpoint is permanent-
ly fixed and since mobile checkpoints are
no different than roving patrols, the Fourth
Amendment prohibits warrantless automobile
searches for aliens without probable cause
at Border Patrol checkpoints.
Phe (gh a for a checkpoint search.
(Brief for Petitioner in Brignoni-Ponce,
No. 70-114, at 19.) This recognition that
many potential checkpoint locations would
be unconstitutional undermines the govern-
ment's contention that subsequent judicial
consideration of the reasonableness of the
checkpoint's operation in the context of
a motion to suppress is an adequate sub-
stitute for advance judicial approval of
the checkpoint's operation through a warrant
procedure. . How many innocent motorists
will be subject to unconstitutional vehicle
searches at a checkpoint whose location is
improper before a guilty one is found who
subsequently challenges the search by a
motion to suppress in a criminal /prosecu-
tion? The number may be very high indeed
because the subsequent judicial challenge
may be slow in coming, particularly if the
government exercises its discretion, as it
frequently does, not to prosecute illegal
aliens criminally but to deport them.
28
There is another, more basic reason why
fixed checkpoint searches of automobiles
for illegal aliens should be treated the
same as roving patrol searches. In Almeida-
Sanchez, the Court condemned the roving
patrol search because it “was conducted in
the unfettered discretion of the members of
the Border Patrol, who did not have a war-
rant, probable cause or consent." 413 U.S.
at 268 (footnote omitted). Checkpoint
searches are also conducted in the "unfet-
tered discretion" of Border Patrol agents
without a warrant, probable cause or consent.
Only a small percentage of the automobiles
that pass through a fixed checkpoint are
searched for aliens. At the busy San Cle-
mente checkpoint only three per cent of the
vehicles are even stopped for inquiry re-
garding the citizenship of the occupants
and for possible search of the car. (App.
Pet. in No. 73-2050 at 16A-17A.) At the
checkpoint on Califovnia State Highway 86
the Border Patrol is more active and seventy-"7
five per cent of the vehicles are stopped
for inquiry but only ten or fifteen per'cent
are searched for illegal aliens. (App. Pet.
in No. 73-2050 at 30A). Nationwide, the
Border Patrol estimates that approximately
27.4 million vehicles passed through "fixed"
checkpoints in fiscal year 1974. Only
320,000 vehicles, slightly over one per
cent of the total, were subjected to a phy-
sical inspection or search for aliens.
(Brief for Petitioner in Ortiz, No. 78-2050
at 28-29.)
The "fixed checkpoint" thus closely
resembles the roving border patrol because
only a small percentage of the vehicles en-
countered or observed by the federal agents
29
| operating either the "fixed" checkpoint or
! the roving vatrol are stopped and searched.
The majority of the Court of Appeals recog-
nized this important factor in United States
v. Bowen, 500 F.2d 960, 964 (9th Cir. 1974)
(en banc): "Since not all vehicles passing
through a checkpoint are stopped, and since
not all vehicles stopped are searched, the
officer at the checkpoint still retains a
good deal of discretion to ‘single out" some
travelers for stops or intrusive searches."
No doubt some roving patrol operations,
especially those conducted at night, are
more frightening or traumatic to the driver
and occupants of the car searched than are
the more anticipated and orderly "fixed"
. checkpoint searches. However, it is only
the stop by the roving patrol which may have
a different traumatic effect and not the
subsequent search of the private areas of
the vehicle’s interior. The search of the
vehicle is exactly the same regardless of
whether it takes place on the open highway
or at a "fixed" checkpoint. Furthermore,
Border Patrol agents on roving patrol ap-
parently are uniformed and in official ve-
hicles. The indicia of lawful authority
thus quickly become evident to a driver
stopped by a roving border patrol, just as
the indicia of lawful authority are evident
to the driver who approaches a "fixed" auto-
mobile checkpoint. In both instances a
search of the automobile for illegal aliens
is normally conducted at the side of the
road to avoid. blocking ongoing traffic.
The search -- the warrantless, uncon-
sented search, not based upon probable
cause -- is an indignity that innocent driv-
ers and passengers should not be subjected
—— ————
30
to at the whim of the Border Patrol agent.
The crucial factor is whether or not there
is probable cause for the search by law
enforcement officers, and not whether the
search takes place at night or in the day-
time or on the open road or at a "fixed"
checkpoint.
The unfettered discretion of Border
Patrol agents at "fixed" checkpoints to .
search some vehicles for illegal aliens
while not searching the great majority of
vehicles which pass through the checkpoints
adversely affects the rights of Mexican
Americans in two respects. First, the ini-
tial stop is usually based upon constitu-
tionally impermissble criteria, e.g., a
person's Mexican appearance. Second, these
arbitrary stops infringe the victims’ con-
stitutional right of interstate travel.
In both Brignoni-Ponce (No. 74-114) and
in Peltier (No - the Border Patrol
agents cased the respondents’ automobiles
because the occupants appeared to be of
Mexican descent. It is not a crime to be
of Mexican descent, nor is a person's Mexi-
can appearance a proper basis for arousing
an officer's suspicions. Those broad de-
scriptions literally fit millions of law
abiding American citizens and lawfully resi-
dent aliens. United States v. Camacho-
Davalos, 488 F.2d 1383 (9th Cir.
The Ninth Circuit has rightly condemned law
enforcement officers, both state and federal,
who stop cars because their occupants fit
the loose description of "Mexican appearing.’
United States v. Mallides, 473 F.2d 849
(Sth Cir. 1973)(state officers); United
States v. Brignoni-Ponce, 499 F.2
31
(9th Cir. 1974)(Border Patrol agents).
A person's racial or ethnic background
or appearance is a neutral factor in ap-
praising probable cause or reasonable sus-
picion, United States v. Bugarin-Casas, 484
F.2d 853, 854 (9th Cir. 1973), cert. den.,
U.S. , 94 S. Ct. 881 (1974); and
to permit law enforcement officers to base
their decision to stop or search an auto-
mobile on the racial or ethnic appearance
thé~occupants would be to sanction the
very same discriminatory law enforcement
condemned in Yick Wo v. Hopkins, 118 U.S.
356 (1886) as violative of the Equal Pro-
tection Clause of the Fourteenth Amendment.
Such a conclusion is compelled by this
Court's recent decisions characterizing
Mexican Americans as an identifiable group
for Fourteenth Amendment purposes. See
Keyes v. School Dist. No. 1, Denver, 413
U.S. 189 (1973); White v. Regester, 412
U.S. 755 (1973); Hernandez v. Texas, 347
U.S. 475 (1954). This discrimination is
inevitable if Border Patrol agents enjoy
unfettered discretion to search whatever
vehicles they chose, since they will natu-
rally continue to focus on drivers of Mexi-
can descent or who are of Mexican appear-
ance, or whose passengers meet these crite-
ria, as the most likely targets for routine
or random vehicle searches.
Persons of Mexican descent or appear-
ance enjoy the same constitutional right
to travel on the public highways free of
unreasonable searches and seizure as do
other United States citizens and lawful
resident aliens. The basis for this funda-
mental right was recognized in Carroll v.
32
United States, 267 U.S. 132, 153-54 (1925):
Travelers may be so stopped
in crossing an international
boundary because of national
self-protection reasonably.
requiring one entering the
country to identify himself
as entitled to come in, and
his belongings as effects
which may be lawfully brought
in. But those lawfully with-
in the country, entitled to
_ use the public highways, have
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 carry-
ing contraband or illegal
merchandise.
The Carroll decision, of course ll fully
consistent with more judicial and congres-
sional decisions extending and protecting
the rte bere right of interstate
travel. See, e.g.; Shapiro v. Thompson,
394 U.S. 618 (T5e5) . tg teee Edelman v.
Jordan, U.S. ae Bi Ge. 1387
(1974); Title II of the Civil Rights Act »
of 1964, 42 U.S.C. §§2000a et seq. (Public
Accomodations).
The records in the cases at bar clear-
ly demonstrate the substantial danger of
infringement of the right of travel result-
ing from the present operations of "fixed"
33
checkpoints. By imposing the protections
afforded by the probable cause requirement
on searches conducted at "fixed" check-
points, as they already have been imposed
on the searches conducted by roving patrols,
the Court will prevent further violations
of the rights of Mexican Americans to
‘travel on the highways without the fear of
being stopped or searched merely because
of their Mexican appearance.
tags
34
ARGUMENT
III
WARRANTLESS UNCONSENTED CHECKPOINT
SEARCHES OF AUTOMOBILE INTERIORS FOR
ILLEGAL ALIENS CONDUCTED BY FEDERAL
OFFICERS WITH ONLY AN AREA-WIDE
EQUIVALENT OF PROBABLE CAUSE ARE NOT
ADMINISTRATIVE SEARCHES PERMISSIBLE
UNDER CAMARA y. MUNICIPAL COURT,
387 U.S. 523° (1967)
The government argues in Ortiz that
there existed an area-wide equivalent of
probable cause at the San Clemente check-
point that made the automobile search
constitutional even though the Border
Patrol agents who conducted the search had
no probable cause for believing or even a
reasonable basis for suspecting that Ortiz's
automobile was carrying illegal aliens.
The government's chief authority for this
argument is Camara v. Municipal Court, 387
U.S. 523 (1967). “In Camara this Court held
that an unconsented warrantless search of
an apartment building by municipal building
inspectors violated the Fourth Amendment
but concluded that a warrant could be ob-
tained on the basis of area-wide probable
cause "if reasonable legislative or admin-
istrative standards for conducting an area
inspection are satisfied with respect to a
particular dwelling." 387 U.S. at 538. If
there is area-wide probable cause, the ,
constitutionality of the search of a dwell-
ing for building code violations "will not
necessarily depend upon specific knowledge
of the condition of the particular dwelling."
oor U.S. et 336;
a2
Camara reconciled the unique conflict
between the homeowner's Fourth Amendment
rights and the community's need to prevent
and abate dangerous and unsanitary condi-
tions. An unthinking and unhesitating
application of Camara beyond the exceptional
facts of such a case may lead to a general
erosion of Fourth Amendment rights. Com-
ment, Area Search Warrants in Border Zones:
Almeida - Sanchez and Camara, ale L.J.
; ‘ abelling a search as an
administrative inspection does not eliminate
the protective role of the Fourth Amendment.
One of the hallmarks of a totalitarian
society is the subjection of the citizenry
to a myriad of routine administrative
searches or inspections to ensure that the ,
governed are not about to make any trouble
for the government. Privacy and personal
security, values which the Fourth Amendment
is intended to protect, are lost in the pro-,
cess of identity checks and physical inspec-
tions. This Court should therefore be
very hesitant in approving routine admin-
istrative "inspections" where federal of-
ficers lack the traditional probable cause
to search. ns
The Court in Camara upheld the reasona-
bleness of area code-enforcement because
it found a long history of judicial and
public acceptance, of suchsearches in the
urban health context, a strong public in-
terest that all such dangerous conditions
be prevented or abated, and a relatively
limited invasion of the urban citizen's pri-
vacy. The inspection of a dwelling for code
violations was a relatively limited intru-
sion because ‘the inspection was "neither
personal in nature nor aimed at the discov-
ery of evidence of crime." 387 U.S. at 537.
36
Searches of automobiles Sox illegal ‘aliens,
on the other hand, are personal in nature
and aimed at the discovery of evidence of.
crime. The knowing transportation by auto-
mobile of illegal aliens is a felony pun-
ishable by a maximum of five years under
§ U.8.C. $1324 (a) (2). Illegal aliens are
thus a form of:contraband, and searches of
automobiles for illegal aliens are no dif-
ferent than searches of automobiles for
contraband liquor. Both are searches for
criminal evidence. Building codes, by
comparison, are generally enforced by the
inspector's issuance of an administrative
compliance order to correct any violations
discovered on the premises. The violation
of the administrative order, not initial fy
the presence of thg code violation, is the
criminal offense. /Evén if the presence of
the code violation is itself a crime, as
was the case under the New York City code
provision cited in Camara, 387 U.S. at |.
531 n. 7, the penalties are generally light
and the crime is one of the public welfare
variety.
_ Building inspections are therefore
administrative searches because their pri-
‘mary function is to insure that homeowners
correct any violations on their premises.
Vehicle searches for illegal aliens, on the
other hand, are not transformed from searches
for criminal evidence into permissible
administrative searches simply because any
illegal aliens discovered are normally de-
ported rather than prosecuted criminally.
It could just as well be argued that vehicle
searches for untaxed liquor are administra-
tive searches because the contraband liquor
is always destroyed but the transporter may
not always be prosecuted criminally. In
37
addition, smugglers of illegal aliens are
prosecuted under 8 U.S.C. §1324(a)(2) For
transporting i’legal aliens, which is pre-
cisely what happened to Ortiz and Brignoni-
Ponce in the instant cases. ;
While the illegal aliens who are pas-
sengers in the vehicle may be deported and
not prosecuted criminally, the driver, who
is the victim of the search, may well be
prosecuted criminally, especially if he is
an American citizen and therefore not sub-
ject to deportation. The Immigration and
Naturalization Service's own reports in-
dicate that during fiscal 1972, 2,927
violations of 8 U.S.C. §1324(a) (2), which
punishes. knowing transportation of il-
legal aliens, were presented to United
States Attorneys for possible prosecution.
Prosections were authorized in 731 or
approximately one quarter of these cases.
Only 873 violations of 8 U.S.C. §1324(a) (2)
were closed by blanket or general waiver.
By comparison, more than twenty times as
many violations of 8 U.S.C. §1325, which
punishes illegal entry; were closed admin-
istratively than were ever presented to
tha United States Attorneys for possible
osecution. (A total of 376,197 viola-
ions of 8 U.S.C. §1325 were reported; of
these only 16,783 were presented to the
United states Attorneys for prosecution. )
Hearings on H.R. 982 Before Subcommittee
No. ee) e House Committee on e Judi-
ciliary, rd Cong., lst Sess., - 73).
Searches of automobiles for illegal aliens
should therefore be treated in the same
fashion as are searches of automobiles for
contraband and other evidence of crime.
4
Camara is also distinguisable because
— ae ri ngsta pa : aan MR AL ERY Oa oh RO
38
the need for building inspections for code
violations is greater than is the need to
search automobiles for illegal aliens.
There is no way to determine whether the
interior of a dwelling complies with a
building code other than to inspect its
interior. Illegal aliens may be apprehended
in many ways in addition to searching the
interior of vehicles on a public highway.
Increased efficiency certainly is not a
sufficient reason for subjecting all
motorists within one hundred miles of our
external boundary to arbitrary vehicle
searches. Finally, the remaining reason
advanced by the Court in Camara for modi-
fied search and seizure standards, the
long history of judicial and public accept-
ance of area-wide_building inspections, is
not applicable in the context of vehicle
Searches for illegal aliens. "Although prior
circuit court approval of these searches is
technically a history of judicial acceptance
it- is insignificant in comparison with the
history supporting the Camara court. .
Camara involved a ractice that not only
had been accepted for more than 150 years
but also had been previously upheld by the
Court in Frank v. Maryland.'' Comment, Area
Search Warrant in Border Zones: Almeida -
Sanchez and Camara, 84 Yale L.J. 355, 362
(1974).
For *these reasons Camara should not be
extended to permit area-wide probable cause
to serve as the basis for automobile
searches for illegal aliens in places as
remote from the border as‘*the San Clemente
and California State Highway 86 checkpoints.
The record does not indicate how many vehi-
cles pass through these checkpoints annual-
ly or daily or how many vehicles are
2 SETTLE LSD LNT IT TN RE PRE, ELE Ht ALLE PIES TOS PME
*
39
searched, but it cannot be disputed that
the overwhelming majority of vehicles po-
tentially or actually subject to search
are not transporting illegal aliens. While
twenty or thirty illegal aliens may be
apprehended in a normal 8 hour shift at
San Clemente (App. Pet. in No. 73-2050 at
25A), the number of vehicles searched
surely is much higher. If the approach
were adopted that such limited results
justified are wide searches for criminal
evidence, large areas of this country
might become in effect free-fire zones
where area-wide searches for illegal aliens,
or for other forms of contraband such as
bombs, illegal handguns or narcotics, would
be:permissible because the relatively
higher incidence of such contraband within
the given areas would justify area-wide
searches to uncover the evidence.
If area-wide probable cause is ever to
justify vehicles searches for illegal
aliens, advance judicial approval should
be required through the warrant process,
as it was in Camara for building inspec-
tions. Subsequent judicial consideration
of the reasonableness of a program of
adminstrative searches conducted on the
basis of area-wide probable cause is not an
adequate substitute for advance judicial
approval because many innocent motorists
will be subject to possible unconstitutional
searches before a "guilty" one comes forward
and subsequently changes the search by a mo-
tion. to suppress in a criminal prosecution.
See, infra, at p. n. . Furthermore, the
government's argument that a warrant process
is unworkable because the Border Patrol must
retain a degree of surprise and flexibility in
opening temporary checkpoints (Brief for Petitioner in
Ortiz, No. 73-2050, at 41), indicates that the
40
Border Patrol wants to retain the authority
to search at whim (or "seasoned judgment"
as the government puts it) all vehicles in
the Border area. The danger of arbitrary,
discriminatory law enforcement adversely
affecting the constitutional rights of in-
nocent Mexican-Americans is too great to
permit federal agents to conduct such
searches without probable cause, without
consent, and without advance judicial ap-
proval.
41
ARGUMENT
IV
THE FOURTH AMENDMENT DOES NOT PERMIT
FEDERAL OFFICERS TO MAKE RANDOM,
WARRANTLESS STOPS OF AUTOMOBILES ON
THE PUBLIC HIGHWAY TO QUESTION THE
OCCUPANTS CONCERNING THEIR RIGHT TO
BE IN THE UNITED STATES.
In Brignoni-Ponce (No. 74-114), Border
Patrol agents stopped respondent's automo-
bile on the public highway and questioned
its occupants as to their right to be in
the United States. The stop did not take
place at a fixed checkpoint but on the
open highway. The Border Patrol agents
who stopped respondent's automobile had
observed many vehicles pass without stop-
ping them before they stopped Brignoni-
Ponce's automobile. The agents pursued
and stopped the automobile for a routine
immigration inspection solely because they
observed that its three occupants appeared
to be of Mexican descent; the agents had
no basis for believing that either Birgnoni-
Ponce or his two passengers were illegal
aliens. 499 F.2d at 1112. The agents
quite plainly intended to search the inte-
rior of the automobile and did so; but only
after they had discovered that the pas-
sengers were illegal aliens.
The government contends that this "stop"
and the subsequent search are not con-
trolled by this Court's decision in Almeida-
Sanchez v. United States, 413 U.S. 2
. » They claim that Almeida-Sanchez
interpreted only 8 U.s.c§1357(a)(3), which
eae — PELL A AS TS TS EAA INE TREE YPIRON IE R TINE kad RELL OO SE DIEGO SLE ISS
42
authorizes "...the board[{ing] and search-
[ing] for aliens... [of] any... wWehicie...."
The stop in the Brignoni-Ponce case, the
government claims, was authorized under 8
U.S.C. §1357(a)(1), which authcrizes Border
Patrol agents "without warrant ...to inter-
rogate any alien or person believed to be
an alien as to his right to be or to re-
main in the United States...."" Almeida-
Sanchez, however did not turn on the nicety
of the authorizing statute relied upon by
the government. It was a decision examin-
ing the scope of Fourth Amendment protec-
tions. Even adopting the goverment's
approach, its attempt to distinguish the
instant case from Almeida-Sanchez, is un-
availing. :
The stop of Brignoni-Ponce's automobile
was a "seizure" of the automobile and its
occupants for Fourth Amendment purposes.
“It must be recognized that whenever a
police officer accosts an individual and
restrains his freedom to walk away, he
has 'seized' that person." Terry v. Ohio,
392 U.S. 1, 16 (1968). If stopping a per-
son walking on the street to inquire about
his activities constitutes a "seizure" of
the person, stopping an automobile on a
public highway to question its occupants
about their right to be in the United
States similarly constitutes a seizure of
the automobile and of its occupants. "A
person whose vehicle is stopped by police
and whose freedom to drive away is re-
strained is as effectively 'seized' as is
the pedestrian who is detained." United
States v. Mallides, 473 F.2d 859, 861 (Sth
Civ. 1973). The occupants plainly are not
free to leave while the questioning con-
43
tinues. Ccnceivably the driver or owner of
the automobile is free, if the agents do
not assert a right to search the automobile,
to direct any available third party to re-
move it from the scene to any location he
desires. However, the automobile has,
nevertheless, been forcibly stopped and
immobilized on the public highway and must
remain stopped until the inquiry of its
occupants is completed or arrangements are
made to conduct the inquiry at a place se-
parate trom the automobile.
Random, roving patrol stops or seizures
of antomobiles on the public highway, there-
fore, impose seizures and indignities that.
cannot be brushed aside as modest intru-
Sions undeserving of significant Fourth
Amendment protections. The stops abridge
the driver's 'right to free passage without
interruption or search." Carroll v. United
States, 267 U.S. 132, 154 (1925). It also
adversely affects his interests in personal
security. Law enforcement officers who pur-
sue automobiles and direct them to the, side
of the road normally have cause to believe
that there has been a violation of the law.
At least this is the popular understanding
of what is involved when a driver is forced
to the side of the road by a police officer.
Drivers stopped in this fashion naturally
inquire of themselves: Why me? What have I
done? Why did they pick on me? It is
therefore a significant intrusion on per-
sonal liberty if a person lawfully driving
on the public highway is ordered by Border
Patrol agents to pull over to the side of
the road and is detained there by the
agents until they have finished their in-
quiries. The intrusiveness of the stop is
further demonstrated by the fact that the
SE idl talaatat dala teenies ieieneatinniaialattaendin
44
agents may take advantage of the plain view
doctrine to observe much of the automobile's
interior ‘and may in appropriate cases even
frisk for weapons those occupants of the
automobile whom they reasonably believe to
be armed and dangerous. Adams v. Williams
407 U.S. 143 (1972).
This Court has not separately treated
the level or quantum of cause required for
the stopping of individual vehicles on a
public highway. Probable cause is neces-
sary to stop and search an automobile for
contraband or other evidence of crime,
Chambers v. Maroney, 399 U.S. 42 (1970),
and there is no clear indication that a
smaller quantum of information will suf-
fice to justify a stop alone. This Court
has in any case never sanctioned random
and potentially discriminatory stops of
automobiles. The Court's opinion in
Almeida-Sanchez v. United States, 413 U.S.
266 (1973), reflects at least as much con-
cern with the random stop of the defendant's
automobile in that case as with the sub-
sequent random search of the automobile's
interior:
"Tt is undenied that the Border Patrol
had no search warrant, and that there
was no probable cause of any kind for
the stop or the subsequent search....'
413 U.S. at 268 (emphasis added).
"(NJeither this Court's automobile
search decisions nor its administrative
inspection decisions provide any support
for the constitutionality of the stop
and search in the present case....
413 U.S. at 272 (emphasis added).
45
At the very least this Court should re-
quire for an investigatory stop of an
automobile and the interrogation of its
occupants by federal officers the same lev-
el of cause that is required for the inves-
tigatory stop and interrogation of a pedes-
trian. In both instances law enforcement
officers "must be able to point to specific
and articulable facts, which’, taken together
with rational inferences from those facts,
reasonably warrant... [t]he intrusion."
Terry v. Ohio, 392 U.S. 1, 21 (1968). Any
lesser standard would make a person's free-
dom of movement on the public highway sub-
ject to the inarticulate and unsubstanti-
ated "hunches" of Border Patrol agents. |
392 U.S. at 22.8
8/ The stopping of automobiles by state and local
police to check for operator's licenses and automo-
biles registrations raises different issues than do
investigatory stops by Border Patrol agents. There
is no way to determine whether the operator of a
motor vehicle ig properly licensed other than to
stop the vehicle| and question the driver. There are
many ways to apprehend illegal aliens. Furthermore,
the primary purpose of license checks is regulatory.
In order to promote safety on the highways, police
officers must be able to take reasonable measures
to insure that only properly licensed drivers oper-
ate motor vehicles on the public highways. Despite
these distinctions, there is nevertheless a division
of authority on whether random vehicle stops to check
operator's licenses are corstitutional and there is
a strong basis for arguing that to be constitutional
stops for license checks must be conducted according
to a systematic non-discretionary procedure and not
on a random basis at the whim or uncontrolled dis-
cretion of police officers, Note, Automobile License
Checks and the Fourth Amendment, 60 VA.L. REV. 666,
695-96 (1974).
MED — ORS LE EY PEM LITT NOU Rh eS OI CMe ten Ip. Tee ne SEP ESN LT Ce OR, Mi
~
46
The United States argues in Brignoni-
Ponce (No. 74-114) that Section o7atT) of
the Immigration and Nationality Act, 8 U.S.
C. §1357(a)(1), authorizes Border Patrol
agents to stop any vehicle anywhere in the
United States and question its occupants
whenever the agents believe the vehicle
contains aliens. (Brief of Petitioner in
Brignoni-Ponce, No. 74-114, at 17-18.) The
government does not indicate on what basis
the agents believed Brignoni-Ponce or his
passengers to be aliens. The government is
evidently willing to accept the notion of
alienage at a glance. For the agent be-
lieved that Brignoni-Ponce and his passen-
“gers were ‘aliens simply because they looked
like aliens, i.e., they appeared to be of
of Mexican descent. Many United States
citizens are of Mexican descent, and the
government seemingly argues that the brief-
est glance at an individual by a Border
Patrol agent permits the agent to arrive
at a “belief” that the individual is
not only of Mexican descent but also an
alien from Mexico. Surely this approach
gives free rein to the inarticulate and
unsubstantiated hunches of Border Patrol
agents and subjects Mexican Americans
to discriminatory stops based solely on
their racial appearance.
There is simply no rational basis for
believing that a person of Mexican appear-
ance traveling in an automobile on an Inter-
state Highway in Southern California is an
alien, much less for believing that he is
an alien whose presence in this country is
illegal. Settlers and immigrants have come
to this country from all corners of the
globe, and most United States citizens today
47
bear to a greater or lesser extern the
physical characteristics of persons dwel-
ling in country or countries of origin.
The physical characteristics of many
Mexican American citizens may more clearly
identify their country of origin than do
the physical characteristics of citizens
of Irish, German or other European descent.
.-Mexico is-also a country that shares a
lengthy boundary with the United States
and is the source of many illegal aliens
t ~~ within the United States. Nevertheless,
rotect the constitutional rights of
these Mexican American citizens and law-
fully admitted aliens this Court should
permit under 8 U.S.C. §1357(a)(1) the
investigatory stop of a vehicle and the
questioning of its occupants by the Border
Patrol only when the Border Patrol agents
have knowledge of specific and articula-
ble facts that gives them reason to be-
lieve that the vehicle contains aliens
whose presence in this country is illegal=
9/
= The government recognizes that it is only the
high incidence of illegal aliens in border areas
of the country that justify investigatory stops un-
der 8 U.S.C. §1357(a)(1) and searches under 8 U.S.C.
§1357(a) @). "Brief for petitioner in Brignoni-Pon-
ce, No. 74-114 at 13; Brief of Petitioner in Ortiz,
No. 73-2050 at 20) and does not advance the poten-
tially broader justification that federal officers
may stop and search in order to keep under sur» 2il-
lance aliens whose presence in this country is . awful.
The object of the stops and searches conducted under
_ those sections in these cases was the discovery of
aliens whose presence in this country is illegal. See
e.g. , App. in No. 73-6848 at 36 where the Border
ese (cont. next page)
PE eR . — Ww os SATIRE NEAL LORIE SOE GRE 1 ERNE St PSO IGE BE ELD FEO SALE ELS ERR A CL GLEE SCRE OEY ER EY
48
Even the government recognizes that
there is a difference between "what the
Fourth Amendment may tolerate on the one
hand and what the Immigration and Nation-
ality Act may authorize on the other" (Brief
for Petitioner in Brignoni-Ponce, No. 74-
114 at 16), and that ; U.S.C. §1357(a) (1)
constitutionally can only authorize
tigatory stops of vehicles where t
an area-wide equivalent of "reasoriable sus-
picion not amounting to probable/cause."
(Id. at 14.) The government aygues that
the Fourth Amendment permits Border Patrol
agents to stop all vehicles in such areas
to question the occuvants on their right
to be or to remain in the United States
(id. at 8) and evidently treats the addi-
tional requirement that the agents believe
that the occupants are aliens to be solely
a statutory requirement under 8 U.S.C.
§1357(a)(1) and not a constitional require-
ment. Where there is an area-wide equiva-
lent of reasonable suspicion not amounting
to probable cause, the government argues
that the suspicion "need not be focused
with particularity on the specific vehicle
to be stopped. It may be based, instead,
upon knowledge of conditions in the area as
a whole." (Id. at 14.)
The government recognizes that conditions
in many areas of the country would not
justify random vehicles stops on an area- ©
wide basis (id. at 19) but leaves the crea-
tion of such free fire-zones to be unfettered
discretion of executive officials in the
Border Patrol without any prior judicial
Patrol agent testified on direct examination, "I
asked him to open up the back of the camper for a
search for illegal aliens."
. ad
aa eee tal ca od eacy a ERT eet SSRRTOEE TT ah ee E aRY es a at RATER ee se oe
49
approval through the warrant process. Although
the government indicates in its brief (id.
at 19) that conditions in New York City
would not provide an area-wide equivalent
of cause sufficient to justify random vehi-
cles stops, recent statements by the Com-
missioner of the Immigration and Naturaliza-
tion Service indicate that there are a high
concentration of illegal aliens in the New
York Metropolitan area, perhaps more than
one million. (New York Times, December 29,
1974, p.1 col.5 and December Ja, BOTS, 0.26
col.1, City Edition. ) Might not the Border
Patrol create a new area for random stops
of vehicles in portions of the New York
Metropolitan Area where a large number of
illegal aliens are believed to be employed?
At the very least any such program of area-
wide stops should be subject to the prior
control of the warrant process since the
burden of obtaining a warrant is not likely
"to frustrate the governmental purpose
_ behind the search." Camara v. Municipal
Court, 387 U.S. 523, 533 (1967).
The government evidently believes that
area-wide cause for stopping vehicles and
questioning their occupants exists through-
out the border region (Brief for Petitioner
in Brignoni-Ponce, No. 74-114 at 19). .3t
Border Patrol agents can make a warrantless
stop of Birgnoni-Ponce's automobile on an
Interstate Highway, 60 or so miles from the
border, they could just as readily do so
on a residential street in San Diego, which
is also in the border region. Mr. Justice
Powell in his concurring opinion in Almeida-
Sanchez envisioned a more particularize
judicial definition of the relevant "area"
when he — md Helios bef of advance judicial
approval for roving patrol stops and
50
searches "on a particular road or roads
for a reasonable period of time." 413 U.S.
at 282. If the Border Patrol is given dis-
. cretion to create at will broad areas
throughout the country for random stops,
it will be resolving by itself "the type
of delicate questions of constitutional
judgment which ought to be resolved by
the Judiciary rather than the Executive..”
413 U.S. at 284.. (Powell, J., concurring. )
In addition, before approving any program
of area-wide stops, the judiciary could
require safeguards to protect the rights
of Mexican Americans from discriminatory
stops based solely on their racial physi-
cal appearance.
CONCLUSION
For the above reasons, and those stated
in the briefs of the parties supported by
the amicus curiae, the decisions in Ortiz.
(No. 73-2050), Brignoni-Ponce (No. 74-114)
and Peltier (No. ~ should be affirmed,
and the dcision in Bowen (No. 73-6848) should
be reversed.
Respectfully submitted,
January 1975 VILMA S. MARTINEZ
SANFORD JAY ROSEN
JOAQUIN G. AVILA
Mexican American Legal Defense
and Educational Fund
145 Ninth Street
San Francisco, CA 94103
EDWARD A. TOMLINSON
University of Maryland
School of Law
500 West Baltimore Street
Baltimore, MD 21201
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