Reply Brief — Bowen v. United States

IN THE MICHAEL RODAK. JR., CLE

Supreme Court of the Gnited States

OCTOBER TERM, 1974

No. 73-6848.

JOHN LEE BOWEN,

Petitioner,

~ V.

UNITED STATES,

& Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONER

MICHAEL D.’NASATIR, of

Nasatir, Sherman & Hirsch

8383 Wilshire. Boulevard, #510

Beverly Hills, CA 90211

(213) 653-3303

JERALD W. NEWTON, of

Newton, Re & Russell

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 655-5011

Attorneys for Petitioner

Washington, 0.C. e CLE PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED .............. eee eee 1

ARGUMENT:

I. THE SEARCH OF JOHN LEE BOWEN’S

CAMPER WITHOUT WARRANT OR PROB-

ABLE CAUSE AT A FIXED CHECKPOINT

APPROXIMATELY 50 ROAD MILES

FROM THE INTERNATIONAL BOUND-

ARIES OF THE UNITED STATES, AT A

POINT CONCEDED NOT TO BE THE

FUNCTIONAL EQUIVALENT OF THE *

INTERNATIONAL BORDER, IS_ UN-

ee i | Sag a re z

II. RESPONDENT INCORRECTLY ASSERTS

THAT THE SEARCH OF PETITIONER’S

VEHICLE FOR ALIENS CONDUCTED AT

A FIXED IMMIGRATION TRAFFIC

CHECKPOINT, WAS REASONABLE

UNDER THE FOURTH AMENDMENT

NOTWITHSTANDING THE ABSENCE OF

A WARRANT AND PARTICULARIZED

PROBABLE CAUSE FOR THE SEARCHED

pt ter eee Sees Por re 6

II. JOHN LEE BOWEN SHOULD HAVE BEEN

GIVEN THE BENEFIT OF THE DECISION

IN UNITED STATES V. BOWEN, PARTI. ....... 23

ee BE eee ee eee eee eee ee 27

TABLE OF AUTHORITIES

Cases:

Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 920

CIRUEE £564) ee 48a a eee eas 24 eb es 27

Almeida-Sanchez v. United States, 413 U.S. 266, 93

BAR ZOO CNFIR) oc tice crcvrivecohsneesenvsk passim

(ii)

; Page

Allen v. State Board of Education, 393 U.S. 573,

de ek oe ae a ae 26

Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223 (1964) ...... 22,23 |

Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524

CRU se kb WR ew A ek Bee de 6 v8 7

Brinegar v. United States, 338 US. 160, 69 S.Ct.

bee CIOS ee kthan 6 64% Tea e ed eS eae ae 5

Camara .v. Municipal Court, 387 U.S. 523, 87 S.Ct.

eae CR i i ch ks eck i ee 10, 13

Carroll v. United States, , 267 U.S. 132, 45 S.Ct. 280 ©

CO a oo oe oe ee eh ect ines 3,3

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975_

CTU ek a ea i kk bw AHR OREO oS 5

Chevron Oil Co. v. Huson, 404 US. 97,92 SCt. .

ket ig) eee ide as ee Pas oO oR NK oe 24

Coolidge v. New Hampshire, 403 US. 443,91 S.Ct. - :

Me I ek eo 8G OAR Be 0s ote be kok 4,5

Desist v. United States, 394 US. 244, 89 S.Ct.

SE, eNO oe ce bck ae oe ba ae as, 26,27

DeStafano v. Woods, 392 US. 631, 88 S.Ct. 2093: ‘

es ee es Oe i Wikis ORE BS hee 27

Dyke v. Taylor Implement Co., 391 US. 216, 88

i eel fh in’ DR ee ee Bea 5

England v. Louisiana Board of Medical Examiners,

375 US. 411, 84 S.Ct. 461 (1964)... 2.2.4... 26

Griffin v. United States, 336 U.S. 704, 69 S.Ct. 814

(1949) eee ia earch a ss date se OME) Dold owes oe 24

Husty v. United States, 282 US. 694,51 S.Ct.240 —

CO a oa ok web 8 4a oe 6 we ei es 0 08% 5

James v. United States, 366 US. 213, 81 S.Ct. ,

WU oo 6G EN Ei sinh Kae c's we le ees 26

Johnson v. New Jersey, 384 US. 719, 86 S.Ct.

1772 (1966) -....).. ASA os a9 hop aiplece tne 26

(iii)

Page

Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367

(RDU 0 ii nde e ene ctercascenedenscerersres 17

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507

(9GGTI. oc ccc cn anv csnccceacvanereesoers 3, 4, 16

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731

CORNED Grancxd5 sek eee Pega abn oe Pee 9 8 oe 4 Pees 26

McDonald v. United States, 335 U.S. 451, 69 S.Ct.

191, 193 (1948) 2... ee were rence cerccns 34, 17

Michigan v. Payne, 412 U.S..47, 93 S.Ct. 1966,

ADPL (1973) occ wc ccc weer crscvecenereccens 27

Roa-Rodriguez v. United States, 410 F.2d 1206

(9th Cit. 1969). cece cee cet ececccrercccces 13

Rodrigue’ v. Aetna Casualty and Surety Co., 395

USS. 352, 89 S.Ct. 1835 (1969) 2... eee eee eee 24

See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737

CRONE oc cna Rav ek epee es een eee er 14, 25

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967

t,o errr treo rr ee eee Se eed 26

United States v. Baca, et al., 368 F.Supp. 398 (S.D.

SS | ee ee ire os eo passim

United States v. Bowen, 500 F.2d 960 (9th Cir.

ig eee yc ed ra 2, 3, 4, 25, 26

United States v. Hortze, 179 F:Supp. 913 (S.D. Cal.

DS cog a Sd Ak eh ONES IS oR Re OO 13

United States v. Jeffers, 342 US. 48, 72 S.Ct. 93,

IE 5 oes mais + 60s cb moet 4 ons idee ee 3

United States v. Kras, 409 U.S. 434, 93 S.Ct. 631

. (9971S) arr aes ee FEE CHE ees reget” 24

United States v. Lujant’Romero, 469 F.2d 683 (9th

ie 19TD) i cians Rees ook eaen see bie er ees 13

United States v. United States District Court, 407

US. 297, 92 S.Ct. 2125, 2136 GIT) ~ acc gees 3, 16, 18

(iv)

*

Page

United States v. Winer, 294 F.Supp. 731 (W.D. Tex.

FOP Y oe see eke exes hake ee see eae 13

Valenzuela-Garcia v. United States, 429 F.2d 1170

PET TOI) noc ccc en oeeswawneyesedooewks 13

Williams v. United States, 401 U.S. 646, 91 S.Ct.

BIW CIPD eho c in ea bee bo oad oe en eu eseake 27

Miscellaneous:

Title 8, C.F.R. §287.1(aW2) 2.2... eee 25

GMM SUSU SESTl oe ee es oes boos Ae oe weene 25

Title 26, U.S.C. §145(b) 2.2.2... 2... ecueeacewens 26

Title 26, US.C. $7201 2... ccc wees 26

‘Title 42, U.S.C. § 1973, et seq. 2... ee ee eee 26

Title 43, U.S.C. §1331, et seq. 2... ee eee 25

Article III, §2, United States Constitution ............. 25

se ee

gn eS oe

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1974 .

No. 73-6848

JOHN LEE BOWEN,

Petitioner,

UNITED STATES,

Respondent.

ON writ OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONER

QUESTIONS PRESENTED

1. Whether the search of JOHN LEE BOWEN’S

camper without warrant or probable cause at a fixed |

checkpoint approximately 50 road miles from the”

international boundaries of the United States, at a point

conceded not to be the functional equivalent of the

international border, is unconstitutional?

= wy ’ = INS Ta SS

4

—

2. Whether there is an area equivalent of probable

cause at the Highway 86 traffic checkpcint justifying

the searching of vehicles Passing through this location

for illegal aliens without prior judicial approvai?

3. Whether JOHN LEE BOWEN is entitled to the

benefit of the decision holding searches at traffic

checkpoints not located at the functional equivalent of

the border without probable cause or warrant to be

unconstitutional?

%

ARGUMENT

I.

THE UNITED STATES, AT A POINT

CONCEDED NOT TO BE THE FUNC-

TIONAL EQUIVALENT OF THE INTER-

NATIONAL BORDER, IS _UNCONSTI-

TUTIONAL.

In United States y. Bowen, 500 F.2d 960 (9th Cir.

1974), Part I, the Court, in an en banc decision,

determined that the fixed checkpoint on Highway 86

was not the. functional equivalent of the United States

international. border. For this reason, searches at this

checkpoint cannot. be considered “border searches”

dispensing with the Probable cause and warrant

3

standards of the Fourth Amendment.' Almeida-Sanchez

vy. United States, 413 U.S. 266, 93 S.Ct. 2533, 2539

(1973); Carroll v: United States, 267 U.S. 132, 45 S.Ct.

280, 285 (1925). Respondent, in its brief, concedes

that the search at the Highway 86 checkpoint was not

the functional equivalent of a border search. Res. Br.

10.?

A.No Warrant was Issued by a Qualified

Magistrate for the Search of Petitioner

Bowen’s Vehicle; Therefore, the Burden Rests

Upon the Government to Justify the Search.

It has long been held that the “warrant clause”’ of

the Fourth Amendment is to be read in conjunction

with the “unreasonable search and seizure” clause when

Fourth Amendment rights are alleged to have been

violated. United States v. United States District Court,

407 U.S. 297, 92 S.Ct. 2125, 2136 (1972). The absence

of a warrant makes the search “per se unreasonable.”

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 514

(1967). The burden is on those seeking an exception

for the warrant requirement to show the need for said

exception. United States v. Jeffers, 342 U.S. 48, 72

S.Ct. 93, 95 (1951); McDonald v. United States, 335

1 Respondent raises the question of the validity of the search

of Mr. Bowen’s camper in this Court, even though it did not file

a cross-petition for a writ of certiorari. For this reason Petitioner

Bowen is now compelled to argue the merits of the underlying

search even though certiorari was granted solely on the question

of retroactivity of United States v. Bowen, supra.

2Res.Br. will be used here, and hereafter, to refer to

Respondent’s Brief in Bowen v. United States, 73-6848.

s/

4

U.S. 451, 69 S.Ct. 191, 193 (1948). As it is conceded

that the instant search was without warrant,

Respondent has the burden of justifying the instant

stop, search, seizure and arrest of Petitioner Bowen.

App. 35-56.° Under existing Fourth Amendment law, a

vehicle can be searched in some instanGes without a

warrant but, in all cases, the search must be made upon

probable cause. This Court has repeatedly warned that

the word “automobile” is not a talisman in whose

presence the Fourth Amendment fades away and

disappears. Coolidge v. New Hampshire, 403 U.S. 444,

91 S.Ct. 2022, 2035 (1971). .A person has an

expectation ‘of privacy in an automobile and an invasion

of this privacy can only be justified if the Fourth

Amendment is’ complied with. Almeida-Sanchez _ y.

United States, supra, Katz v. United States, supra.

B. The Search of Petitioner Bowen’s Vehicle at

the Highway 86 Checkpoint was Conducted

Without Probable Cause.

When Petitioner Bowen approached the Highway 86

checkpoint, his vehicle was stopped and he was

questioned by border patrol agent Ortmeier as to his

(Bowen’s) citizenship. After Ortmeier ascertained that

Bowen was in fact an American citizen, he (Ortmeier)

ordered Bowen to open the back of the camper. App.

35. After the camper door was opened, Ortmeier

allegedly detected the odor of marijuana and he

ultimately discovered Marijuana inside the camper. App.

*App. will be used here, and hereafter, to refer to the

Appendix in Bowen v. United States.

8 PANS hai Blea

beet tries Ponting Lid

5

36. No reasons justifying the opening of the camper

door were given other than the fact that Agent

' Ortmeier desired to look in the back of the camper.

Respondent epparently concedes that there was no

“traditional probable cause” to search the back of the

camper at this time. Res. Br. 5: Pet. Br. O. 18.* This

Court has refused to justify the search of an interior of

a vehicle, whether the vehicle is immobile or mobile,

without probable cause in all of its past decisions.

Almeida-Sanchez v. United States, supra, Coolidge v.

New Hampshire, supra; Chambers v. Maroney, 399 U.S.

42, 90 S.Ct. 1975 (1970); Dyke v. Taylor Implement

Co., 391 U.S. 216, 88 S.Ct. 1472 (1968); Brinegar v.

United States, 338 U.S. 160, 69 S.Ct. 1302 (1949);

Husty v. United States, 282 US. 694, 51 S.Ct. 240

(1934); and Carroll v. United States, supra. Pet. Br.

6-105 Under the accepted, traditional concept of

probable cause, it is clear that the instant stopping of

Petitioner Bowen’s vehicle and the search of the rear

camper was unconstitutional.

4Pet. Br. O. refers to Petitioner’s Brief in United States ¥.

Ortiz. This brief was incorporated by reference by Respondent in

its brief in Bowen v. United States, Res. Br. 10. Petitioner

Bowen therefore assumes that the disclaimer of particularized

probable cause by petitioners in Ortiz, likewise applies to

Respondents in the instant case.

SPet. Br. will be used here, and hereafter, to refer to

Petitioner’s Brief in Bowen.

6

II.

RESPONDENT INCORRECTLY ASSERTS

THAT THE SEARCH OF PETITIONER’S

VEHICLE FOR ALIENS CONDUCTED AT A

FIXED IMMIGRATION TRAFFIC CHECK-

POINT, WAS REASONABLE UNDER THE

FOURTH AMENDMENT NOTWITH-

STANDING THE ABSENCE OF A

WARRANT AND PARTICULARIZED PROB-

ABLE CAUSE FOR THE SEARCHED

VEHICLE.

Recognizing that the search and subsequent arrest of

Petitioner Bowen in the instant cause were without

warrant and probable cause and that under traditional

Fourth Amendment law the arrest and search would

-fail, Respondent asserts that there is an areawide

equivalent for probable cause for vehicle searches at the

Highway 86 checkpoint involved herein, and at the

other highway checkpoints located in the southwestern

United States, and that these checkpoints should& be,

allowed to operate without prior judicial approval or

guidance. Petitioner relies upon the record in United

States v. Baca, et al, 368 F Supp. 398 (S.D. Cal. 1973),

and the opinion filed therein on December 11, 1973.6

x

°Petitioner Bowen joins Respondent Ortiz and objects to the

conclusions reached by Judge Turentine in his Opinion. Res. Br.

O. 3. (Res. Br. O. will be used here, and hereafter, to refer to

Respondent’s Brief in Ortiz.) Bcwen will make reference to the

‘estimony and exhibits in Baca, supra, but Petitioner does not

waive thé substantive errors. and limitations of the Baca hearing."

7

In reviewing the Government’s attempt to create a

new exception to the warrant requirement and to

redefine the meaning of probable cause as it is

understood in traditional Fourth Amendment dis-

cussions, this Court should consider the enlightening

language of Boyd v. United States, 116 U.S. 616, 6

S.Ct. 524 (1886):

“Though the proceeding in question is divested

of any of the aggravating incidents of actual search

and seizure, yet, as beforesaid, it contains there

substance and essence, and affects their substantial

purpose. It may be that it is the obnoxious thing

in ‘its mildest and least repulsive form; but

illegitimate and unconstitutional practices get their

first footing in that way, namely, by silent

approaches and slight deviations from legal modes

of procedure. This can only be obviated by

adhering to the rule that constitutional provisions

for the security of person and property should be

liberally construed.”’ (Emphasis added.) 6 S.Ct. at

535,

A.There is No Areawide Equivalent of Probable

Cause at Highway 86 Where Petitioner Bowen

Was Searched or at Other Fixed Checkpoints

in the Southwestern United States.

Respondent argues with a great deal of vigor that

there is an “‘areawide equivalent of probable cause for

the limited vehicle searches conducted at fixed

checkpoints.” .Pet. Br. O. 17-21. Respondent points out

that the District Court in Baca, supra, found that there

were from 800,000 to 1,000,000 illegal aliens in the

United States and approximately 85% of these aliens

are generally thought to be citizens of Mexico. Pet. Br.

8

O. 21. Mr. Justice Powell, in his concurring opinion in

Almeida-Sanchez, supra, stated that there was a high

concentration of illegal aliens in the Mexican border

area both in absolute terms and in proportionate

number to those persons legally present. The testimony

at the Baca, supra; hearing indicated that the E] Centro

sector border patrol office apprehended 12,028 deport-

able aliens in 1970; 14,292. deportable aliens in 1971;

15,327 deportable aliens in 1972; and 23,125 deport-

able aliens in 1973. BT 310.7

The traffic checkpoints in this sector were

responsible, in 1973, for apprehending 3,825 aliens.

BT 360. Under the Immigration and Naturalization

Service’s* own figures, only 16-1/2% of the aliens

seized in 1973 were seized at traffic checkpoints. In the

same year, 2,988 illegal aliens were turned over to the

I.N.S. by other law enforcement agencies. BT 362. This

constituted approximately 13% of the illegal aliens

apprehended in the El Centro sector in 1973. At the

Baca, supra, hearing there was no testimony as to how

many automobiles passed through the traffic check-

points in one year, nor was there testimony as to how

many vehicles were actually stopped or searched. Henry

C. Felchlin, the chief patrol agent of the El Centro

sector, testified that the primary means of apprehending

illegal aliens is the “line watch” at the international

border itself. The El Centro sector covers approximately

70 to 75 miles of the international border, and Mr.

Felchlin has 140 agents under his control to watch this

"BT will be used here, and hereafter, to refer to Baca

Transcript.

*From here after the Immigration and Naturalization Service

will be referred to as the I.N.S.

9

area. BT 310. Only five miles of this 75 mile area is

fenced and there is a lack of scientific equipment to

help apprehend illegal aliens at the border itself. BT

313, 364. Mr. Felchlin testified that the “line watch”

itself is not the best available and that it is in fact

inadequate because Mr. Felchlin does not have enough

manpower to watch the international border. BT 363.

Felchlin has asked for approximately 50 new men each

year for the past three years yet he has not received

any of the requested manpower. BT 365.

Felchlin testified that the checkpoint on Highway 86

was opened ‘approximately 6,000 hours in 1973, or

about 70% of the time. BT. 228. To reach the

checkpoint at Highway 86, a person coming from the

south would cross Interstate 80 and travel through

several cities before he arrived at the checkpoint. BT

329. Approximately 75% of the vehicles passing

through the checkpoint are stopped for questioning and

approximately 10% to 15% of the vehicles are

searched.2 BT 331, 333. A review of these figures

indicates that most of the seized aliens were appre-

hended while attempting to cross the border. This is

true even though only approximately 50% of the men

available to Felchlin were stationed on the “line

watch.” BT 357.

Without actual figures as to how many cars pass

through the Highway 86 checkpoint, and how many of

these cars are stopped and how many cars are actually

searched, it is impossible to accurately determine the

9Felchlin was allowed to testify, over objection, that he

believed that over half of the vehicles reaching this checkpoint

have come directly from Mexicali, B.C., Mexico. No foundation

for this “opinion” was established and, in fact, Felchlin admitted

there were no statistics available on this point.

10

effectiveness or reasonableness of the Highway 86

checkpoint. However, in Petitioner’s Brief in Ortiz it is

alleged: that 12,000 deportable aliens were apprehended

at the San Clemente checkpoint in 1973. Pet. Br. OQ.

31. In 1973 at San Clemente, 2.3 million vehicles were

stopped for brief questioning and 320,000 veliicles were

subjected to physical search. BT 28, 31. Using the

border patrol’s own figures at the San Clemente

checkpoint, well over 99% of the time they did not

find aliens. when vehicles were stopped, and over 96%

of the time they did not find aliens when vehicles were

searched.'® If one assumes that the San Clemente

figures are an accurate representation of the entire

checkpoint system, it would seem obvious that the

stopping and searching of vehicles is not based’ upon

probable cause, whether probable cause is defined

traditionally or whether the Government’s so called

“area equivalent of probable cause” is used. In fact, it

would seem that an areawide equivalency of probable

cause to believe that the vehicles do not contain aliens

exists as to at least the San Clemente checkpoint.

The concept of an area’ functional equivalent for

probable cause was developed by the Government to

apply Camara v. Municipal Court, 387 U.S. 523, 87

S.Ct. 1727 (1967), to traffic checkpoint searches for

aliens. The Government argues that Camara, supra,

allows probable cause to be determined on an “area as

a whole” rather than upon a “specific dwelling.” Pet.

Br. O. 19.

These percentages are based on the assumption that there

was only one alien found in each searched vehicle. If, in fact,

some vehicles contained more than one alien, the percentage of

cars stopped and searched without finding aliens would, of

course, increase.

11

_ Respondent’s reliance dn Camara, supra, to justify

the instant search is clearly misplaced. Camara and -its

companion case, See v. City of Seattle. 387 U.S. 541,

87 S.Ct. 1731 (1967), dealt with Health and Fire

Department inspections. The necessity for these types

of inspections on an areawide basis may be provided by

the general exterior appearance of the building in the

area. Inspections might also be based upon the age of

the respective dwelling if some correlation between age

of dwelling and disease or fire hazard could be drawn.

Thus, in health and fire inspections there exists some

exterior criteria which an inspector could point to in

trying to establish areawide probable cause to a

magistrate to justify the search of a particular dwelling

of the area.

This analogy breaks down when it is applied to the

traffic checkpoints in the southwestern United States.

First, there is no exter. xr appearance of a vehicle which

would reasonably lead .. magistrate to determine that it

contained aliens. Support for this proposition is found

on the previous quoted statistics where over 99% of the

vehicles stopped and over 96% of the vehicles searched

at San Clemente revealed no illegal aliens. Second, the

age of the vehicle certainly has little bearing on whether

it will be used to smuggle aliens or not. Third, the high

proportion of Mexican-American citizens in the area

would not lead a reasonable man to believe that a

vehicle driven by a Mexican-American was being driven

by an alien. In fact, a determination to stop or search a

vehicle solely on the racial characteristics of the driver

raises serious equal protection problems. Res. Br. 0. 37.

In Camara, supra, the criteria for determining

whether “area probable cause” was established as

follows:

“First, such programs have a long history of

judicial and public acceptance. (Citation omitted)

Second, the public interest demands that all

dangerous conditions be prevented or abated, yet

it is doubtful that any other canvassing technique

would achieve acceptable results. Any such condi-

tions—faulty wiring is an obvious example~are not

observable from outside the building and indeed

may not be apparent to the inexpert occupant

himself. Finally, because the inspections are

neither personal in nature nor. aimed at the

discovery of .evidence of crime, they involved a

relatively limited invasion of the urban ‘citizen’s

privacy.” (Emphasis added.) 86 S.Ct. at 1735.

Application of these standards to Petitioner Bowen

establishes the unreasonableness of the instant stop and

search. Under the first criteria mentioned in Camara,

supra, this court has never sanctioned a checkpoint —

search away from the functional equivalent of the

border. When the second criteria is considered, it is

clear that there are numerous other techniques’

available to prohibit the illegal entry of aliens into the

‘United States. The entire area of the border could be

fenced as requested by chief patrol agent Felchlin. BT

370. The, “line watch” is not adequate at the present

time because of lack of manpower; thus, an increase of

manpower, or a reutilization at the border itself of

manpower presently stationed inland would result in

the apprehension of more aliens. Increase in equipment

such as airplanes, radar, star scopes, etc., would increase

the effectiveness of a border patrol at the line watch.

Third, the removal. of the incentive for aliens to illegaly

enter the United States by making it a crime for an

employee tu intentionally employ. an illegal alien would

perhaps be the best measure of all to curb illegal entry.

!

|

13

Finally, the instant searches are aimed at the

discovery of evidence. of a crime and, they intrude upon

an urban citizen’s reasonable expectation of privacy.

While the alien himself rnay not be prosecuted unless he

is a repeated offender, the driver or “‘smuggier”

operating the vehicle is a subject of prosecution., Border

patrol officers are, on occasion, accompanied by other

federal officers with other law enforcement duties.

I.N.S. agents receive training in the detection of

contraband by the United States customs officials. In

fact, the I.N.S. checkpoints are provided information

about suspected narcotics traffic, bank robbers, murder

suspects, etc. BT 375. When agent Felchlin was asked

what would !appen if a stopped citizen stated that he

was a United States citizen but that he did not want to

talk to agents any more, Felchlin replied that this

citizen would be referred to a highway patrolman who

is generally present at the checkpoint and_ the

patrolman would then check the individual’s driver's

license and identification, and it is possible that an

NCIC “‘state want” would be “run” on the individual.

BT 383, /384. In fact it is not unusual for border

patrolmen; to disregard their stated objective of

searching for illegal aliens and to search the operators

and occupants of vehicles for contraband."’

‘United States v. Lujan-Romero, 469 F.2d 683 (9th Cir.

1972), search of footlocker; Valenzuela-Garcia v. United States,

429 F.2d 1170 (9th Cir. 1970), search of 6-8 inch compartment

in car; Roa-Rodriguez v. United States, 410 F.2d 1206 (9th Cir.

1969), search of jacket; United States v. Winer, 294 F. Supp.

731 (W.D. Texas 1969), search under seat of a small automobile;

and United States v. Hortze, 179 F.Supp. 913 (S.D. Cal. 1959),

search of a package of cigarettes.

14

Justice Powell, in his concurring opinion in Almeida-

Sanchez, supra, delineated a four-pronged test to

determine whether probable cause existed to stop and

search vehicles. This test was ignored by Respondent in

its brief for obvious reasons. The test is as follows:

“(i) The frequency with which aliens illegally in

the country are known or reasonably believed to

be transported within a particular area; (ii) the

proximity of the area in question to the border;

(iii) The extensiveness and geographic characteris-

tics of the area, including the roads therein’ and

the extent of their use,* and (iv) The probable

degree of interference of the rights of innocent

persons, taking into account the scope of the

proposed search, its duration, and the concentra-

tion of illegal alien traffic in relation to the general

traffic of the road or area.” 93 S.Ct. at 2545S.

(Footnote omitted)

Without adequate statistics, it is impossible to

determine the frequency with which aliens illegally in

_ the country are transperted through the checkpoint at

Highway 86 or o*her checkpoints in the El Centro

sector. The statistics do indicate that 12,000 aliens were

apprehended in 1973 at San Clemente and some 3,825 were

taken into custody at all checkpoints in the El Centro

sector border district, not just the Highway 86

checkpoint. The Highway 86 checkpoint is approxi-

mately 36 air miles or 50 land miles from the border.

The geographic character of the area is generally desert.

However, the checkpoint is north of Interstate 80, the

major east-west thoroughfare across the southwestern

United States. The checkpoint is also located in such a

way that it is passed through by extensive numbers of

hunters, dune buggy enthusiasts, fishermen, and vaca-

rs

tioners. Finally, the checkpoint is also located north of

several California cities. Thus, the innocent citizen

traveling in the. southwest is subject to having his

privacy infringed on the whim of I.N.S. agents forcing

him to open his trunk and remove his backseat.

The traffic checkpoints are capable of being easily

circumvented by alien smugglers. All that an alien

smuggler has to do to avoid apprehension at a traffic

checkpoint is to stop his vehicle approximately one

mile before the checkpoint, unload the aliens and have

them sneak by the checkpoint through an overland

route, return to the highway past the checkpoint, and

be picked up again by the same vehicle. BT 392.

When all the above information is considered, it is

obvious that there is not an area equivalent for

probable cause at the Highway 86 checkpoint. Without

this area equivalent of probable cause, the underlying

search is, in fact, invalid whether it is conducted with

or without a warrant. For this reason, the Court of

Appeals for the Ninth Circuit was correct when it

determined that the stop of Mr. Bowen’s vehicle and

the subsequent search was unconstitutional. Bowen v.

United States, supra, Part I.

B. Assuming, Arguendo, That There is an Area

Equivalence of Probable Cause at the High-

way 86 Checkpoint, the Search Conducted at

Said Checkpoint Without a Warrant was

Invalid. -

Respondent next argues that there is no need for a

prior judicial determination of the validity of areawide

probable cause at the checkpoints and therefore the

16

warrant requirement of the Fourth Amendment can be

dispensed with. This argument flies in the face of all

established decisions of this Court and has in fact been

rejected by this Court on numerous occasions. United

States v. United States District Court, supra; Katz v.

United States, supra; Camara v. Municipal Court, supra.

The reasons for rejecting this position were perhaps best

put forth by this Court in United States v. United

States District Court, supra:

“We cannot accept the Government’s argument

that internal security matters are too subtle and

complex for judicial evaluation. Courts regularly

deal with the most difficult issues of our society.

There is no reason to believe that federal judges

will be insensitive to or uncomprehending of the

issues involved in the domestic security cases.

Certainly courts can recognize that domestic

security surveillance involves different considera-

tions from the surveillance of ‘ordinary crime.’ If

the thread is too subtle or complex for senior law

enforcement officers to convey its significance to a

court, one may question whether there is probable

cause for surveillance.” 92 S.Ct. at 2138.

‘What the Government is urging, in effect, is that

agents of the I.N.S. be permitted to operate check-

points at locations which they, and only they, deem to

be reasonable; during hours which they, and only they,

wish to run them; and to conduct searches of vehicles

that they, and only they, decide to search. All of this

this Court is to accept without any predetermined

regulations or restraints controlling the conduct of the

I.N.S. agent. In fact, during the Baca hearings it was

admitted that there were no guidelines for the socalled

“point man” to determine which vehicles passing

through a checkpoint should be allowed to pass, which

should be stopped, and which should be searched. BT

17

Placing this discretion solely in the hands of an I.N.S.

agent without any restraint from the Court would be to

depart from well established constitutional principles.

These principles were articulated in Johnson v. United

States, 333 U.S. 10, 68 S.Ct. 367 (1948), in this

manner:

“The point of the Fourth Amendment, which

often is not grasped by zealous o/ficers, is not that

it denies law enforcement the support of the usual

inferences which reasonable men draw from

evidence. Its protection consists in requiring that

those inferences be drawn,by a neutral and

detached magistrate instead of being judged by the

officer engaged in the often competitive enterprise

of ferreting out crime.* Any assumption that

evidence sufficient to support a magistrate’s

disinterested determination to issue a search

warrant will justify the officer’s making a search

without a warrant would reduce the Amendment

to a nullity and leave the people’s home secure

only in the discretion of police officers.* ...No

reason is offered for not obtaining a search

warrant except the inconvenience to the officers

and some slight delay necessary to prepare papers

and present the evidence to a magistrate. These are

never very convincing reasons and, in these

circumstances, certainly are not enough to bypass

the constitutional requirement.” 68 S.Ct. at 369.

(Footnotes omitted)

The view that the executive should not be trusted to

exercise the judicial function was reiterated in

McDonald v. United States, supra, where the Court

states: r.

“We are not dealing with formalities. The

presence of the search warrant serves a high

function. Absent some grave emergency, the ’

Fourth Amendment has interposed a magistrate

18

between the citizen and the police. This was done

not to shield criminals nor to make the home a

safe haven for illegal activities. It was done so that

an objective mind might weigh the need to invade

that privacy in order to enforce the law. The right

to privacy was deemed too precious to entrust to

the discretion of those whose job is the detection

of crime and the arrest of criminals. Power is a

heady thing; and history shows that the police

acting on their own cannot be trusted.” 69 S.Ct.

at 193.

This point was also discussed by this Court in United

States v. United States District Court, supra:

“Those Fourth Amendment freedoms cannot

properly be guaranteed if domestic security

surveillance may be conducted solely within the

discretion of the Executive Branch. The Fourth °

Amendment does not contemplate the executive

officers of government as neutral and disinterested

magistrates. Their duty and responsibility are to

enforce the laws, to investigate, and to prosecute.

(Citation omitted) But those charged with this

investigation and prosecutorial duty should not be

the sole judges of when to utilize constitutionally

sensitive means in pursuing their task. The

historical judgment, which the Fourth Amendment

accepts, is that unreviewed executive discretion

may yield too readily to pressures to obtain

incriminating evidence and overlook potential

invasions of privacy and protected speech.'””

(Footnote omitted) 92 S.Ct. at 2136, 2137.

The Government argues that the conditions at fixed

checkpoints are stable and that the same conditions

justifying a search on one day will also apply three days

later; therefore, adjudication of Fourth Amendment

rights after the search will serve to safeguard the

Privacy protected by the Fourth Amendment. This

19

argument is falacious in numerous respects. The

argument presupposes that in fact the conditions at a

checkpoint do not vary from time to time. This

conclusion is in direct contradiction to the testimony

adduced at the Baca hearings. In Baca, agent Felchlin

testified that certain checkpoints which were temporary

in nature would be operated only if information was

received that aliens were coming their way. BT 328.

Surely, in this situation, the judgment as to whether the

checkpoint should be operated and, if it were operated,

under what conditions it were to be operated, could

just as well be made by a neutral and detached

magistrate as by an I.N.S. agent. Next, the Baca

hearings indicate that during certain periods of the year

there are seasonal activities which affect the flow of

traffic and which would decrease the possibility of

aliens being in each vehicle which passes through the

checkpoint. Primarily these activities include hunting

and fishing season, winter recreational vehicles, and

vacation travel. BT 388. It is inconceivable that a

magistrate would not take these seasonal variations in

traffic into account when he determined whether a

warrant would be issued. One of the primary reasons

aliens illegally enter the United States is to find

employment to improve their standard of living. A great

deal of the employment obtained by the illegal alien is

the harvesting of field produce. It would certainly bear

on a magistrate’s determination as to whether a warrant

should be issued for a checkpoint if harvesting season

was or was not in session and whether there was a great

demand for field hands.

Another important factor to determine whether

highway checkpoints should be authorized to operate

under warrant would be the weather conditions in the

20

immediate . area. If the statistics show that aliens

illegally entered the United States on a much larger

scale when there was no moon, it might be reasonable

to authorize checkpoint stops during the period of the

dark of the moon and not at other times; it could also

be determined whether a checkpoint should be opened

or not during inclement weather.

Finally, ifinformation were received that numerous

aliens had penetrated the “line watch” and there was

information to indicate that they were attempting to

travel toward the interior of the United States, it might

be an appropriate time for a magistrate to issue an

order allowing a search at this time. It should be

obvious from the foregoing that there are numerous

instances when a magistrate’s discretion could be

breught into-play to allow checkpoints to be operated

at some times for some purposes while at other times

the checkpoint would not be allowed to operate.

Not only are there numerous factors which should be

considered as to whether a traffic checkpoint should be

operating, but there are other factors to determine the

scope of the inquiry or search which would be

permitted at the checkpoint. It may well be that it

would be reasonable for a magistrate to issue a warrant

allowing a vehicle to be stopped for a quick exterior

inspection but not to carte blanche allow searches of

the vehicles. A search might then be authorized if, and

only if, the officer could articulate reasons amounting

to probable cause to believe that that particular vehicle

contained illegal aliens, If, on the other hand, previous

information had been \cbtained particularly describing

certain vehicles with license plate numbers, etc., it may

well be that a warrant tould be issued to authorize the

21

stop and search of that vehicle. In any event, it would

seem that a judicial officer would be better qualified to

render this judicial decision than an immigration officer.

Another factor to be determined by the magistrate

would be the physical location of the traffic check-

points. At the present time checkpoints are located in

positions which, reflect the unfettered judgment of the

LNSS. that they are needed at the specific location. This

determination flies in the face of the recent pronounce-

ment of this Court in Almeida-Sanchez v. United States,

supra, that searches such as the instant search are to be

conducted at the functional equivalent of the border so

that the vehicles searched for illegal aliens have a high

probability of coming from the international border.

Unless a checkpoint is located at the functional

equivalent of the border a stop and search of the

vehicle should be unconstitutional. This is particularly

true when examining the checkpoint on Highway 86

because it is north of Interstate 8, the major east-west

thoroughfare in the southwest. It is also located north

of several California cities in the immediate area. For

this reason it is clear that much traffic which is not

“Border traffic” passes through this checkpoint.

Respondent’s contention that. a subsequent judicial

hearing in the nature of a motion to suppress evidence

in any criminal proceedings would be adequate to

remedy the violation of the Fourth Amendment rights

completely ignores the plight of the innocent motorist

traveling across the southwestern United States on

Interstate 80, who swings north on Highway 86, and is

subjected to a vehicle search by an I.N.S. agent,

without probable cause and without a warrant, and who

finds nothing. This citizen has been delayed in his

22

journey, subjected to the degradation of being treated

like a “common criminal’ and he has little, if any,

redress for the invasion of his privacy. Further, he has

no meaningful way of knowing if the agent is operating

under lawful authority or merely at his (the agent’s)

whim. This situation is not an unusual situation in light

of the fact that over 99% of the stops at San Clemente

produce no aliens and over 96% of the searches at San

Clemente produce no aliens. It is exactly this situation

which requires the insertion of the magistrate between

the unfettered discretion of the officer in the field. This

process of allowing subsequent authorization for

searches or arrests was strongly criticized in Beck y.

Ohio, 379 U.S. 89, 85 S.Ct. 223 (1964), where the

Court stated:

“An arrest without a warrant bypasses the

safeguards provided by an _ objective pre-

determination of probable cause, and substitutes

instead the far less reliable procedure of an

after-the-event justification for the arrest or search,

too likely to be subtly influenced by the familiar

shortcomings of hindsight judgment.” 85 S.Ct. at

228.

A careful reading of Respondent’s brief indicates that

their main reason for circumventing the judicial process

in the determination of whether a search can take place

is for the convenience of law enforcement. It was

readily admitted by agent Felchlin, during’ the Baca

hearing, that his agency would be much more effective

if he were allocated 50 more men: if he had a 12-foot

fence along the 75 miles of border section; if he was

equipped with radar, and if he had better equipment

for night watching. In effect, the Government in this

case contends that because law enforcement could use

‘“

23

more personnel and technology, and this is not

forthcoming, Fourth Amendment protections should be

abridged in the name of law enforcement. This has

never been a _ reason for abrogating the Fourth

Amendment. In fact, this Court, itself, recognized this

in Almeida-Sanchez v. United States, supra, where it

stated: . :

«@

“The needs of law enforcement stand in

constant tension with the Constitution’s protec-

tions of the individual against certain exercises of

official power. {t is precisely the predictability of

these pressures that counsels a resolute loyalty to

constitutional safeguards.” 93 S.Ct. at 2540.

It is precisely for these reasons that, if this Court finds

there is an areawide equivalency of probable cause to

justify the traffic checkpoints, this Court should further

require the protection of a warrant to properly curtail

the discretion of I.N.S. agents in stopping and/or

searching vehicles.

Ill.

JOHN LEE BOWEN SHOULD HAVE BEEN

GIVEN THE BENEFIT OF THE DECISION

IN UNITED STATES V. BOWEN, PART I.

Petitioner Bowen contends that this Court’s decision

in Almeida-Sanchez, supra, and the en banc decision of

the United States Court of Appeals for the Ninth

Circuit in United States v. Bowen, supra, Part I, were

clearly foreshadowed by previous decisions of this

Court and, for this reason, the question of retroactivity

does not arise and Petitioner Bowen himself is entitled

24

to the benefit of the existing case law. Pet. Br. 6-12. In

deciding Almeida-Sanchez v. United States, supra, this

Court concluded that no prior decision of this Court

supported the Government’s position in that case. The

Government now argues that the Federal Courts of

Appeal can disregard established law from the Supreme

Court and through this course of conduct, establish a

body of law justifying clearly unconstitutional conduct.

In support of this premise, the Government argues that

this Court did not grant certiorari to review these

decisions of the Court of Appeals allowing alien

checkpoint searches. Pet. Br. O. 48-49. In this regard,

Respondent overlooks the established principle that

denial of certiorari by the Supreme Court reflects no

opinion on the merits of the underlying actions. United

States v. Kras, 93 S.Ct. 631, 409 U.S. 434 (1973);

Griffin v. United States, 69 S.Ct. 814, 336 U.S. 704

(1949).

Of necessity, Respondent relies upon the opinions of

the Ninth Circuit Court of Appeals justifying traffic

checkpoint searches which were clearly abhorrent to the

Fourth Amendment. Pet. Br. O. 48. In attempting to

justify this reliance, Respondent cites Chevron Oil Co.

v. Huson, 404 U.S. 97, 92 S.Ct. 349 (1971). In Huson,

the injured party filed a personal injury action against

Chevron Oil Co. over one year after the date of the

actual injury. At the time that the suit was filed, the

suit was timely because it was felt that admiralty law,

governed by the principle of laches, controlled the filing

of the suit rather than Louisiana’s one year statute of

limitation. After the filing of the suit, this Court

decided Rodrigue v. Aetna Casualty and Surety Co.,

395 U.S. 352, 89 S.Ct. 1835 (1969). Rodrigue; supra,

25

dealt with the interpretation of Title 43 U.S.C. $1331,

et seq. There were no prior Supreme Court decisions in

this area to aid the lower courts in the statutory

construction of this Act and therefore the Courts of

Appeal necessarily rendered their decision of first.

impression without guidance from the Supreme Court.

Taking tnis into consideration, the Court in Huson,

supra, refused to make the rule of Rodrigue, supra,

retroactive. This is an entirely different situation from

the instant case. Here, the I.N.S. relies upon. their own

administrative regulation, ‘Title 8 C.F.R. §287.1(a)(2),

to justify alien searches at checkpoints concededly away

from the functional equivalent of the border. Previous

Supreme Court interpretations of administrative regula-

tions have indicated that at the very least area probable

cause and a warrant are required in this situation.

Camara v. Municipal Court, supra; ‘See v. City of

Seattle, supra. There is also a long line of case law

governing the, search of moving automobiles *which

establishes that “‘particular’”’ probable cause is required

before a search is justified. In this instance, the Court

of Appeals rejected established Supreme Court law in

upholding ‘the administrative regulations and Title 8

U.S.C. §1357. Thus, Huson, ee is inapplicable to

the instant situation.

Respondent agrees with Petitioner Bowen’s conten-

tion that if United States v. Bowen, supra, Part |

established ‘‘new law”, Petitioner Bowen himself should

get the benefit of this rule.’ However, Respondent bases

this concession on policy reasons. While Mr. Bowen

accepts. this ‘concession, he still believes that Article III,

Section 2 of the Constitution dictates this result. As

was said in Desist v. United States, 394 U.S. 244, 89

S.Ct. 1030 (1969): -

/

26

“[B]ut, as we recently explained in Stovall y.

Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 1972,

18 L.Ed.2d 1199, the fact that the parties involved.

_ in the decision are the only litigants so situated

who receive the benefit of the new rule is. ‘an

_ unavoidable consequence of the necessity that

constitutional adjudications do not stand as mere

dictum.’ Whatever, inequity may arguably result

from applying the new rule to those ‘chance

beneficiaries’ is ‘an insignificant cost for adherence

to sound principles of decision-making.’ ” 89 S.Ct.:

1036 n. 24. .

Respondent’s reliance upon Allen . State Board of

Education, 393 U.S. 573, 89 S.Ct. 817 ( 1969); England

v. Louisiana Board of Medical Examiners, 375 U.S. 411,

84 S.Ct. 461 (1964); and James y. United States, 366

U.S. 213, 81 S.Ct. 1052 (1961) is misplaced in, that

these decisions do not involve “constitutional adjudica-

tions.” Allen supra, involved the interpretation of Title ,

42, U.S.C. §1973, et seq.; England, supra, involved the

Proper procedure to obtain a state decision of a federal

claim; and James, supra, involved the statutory

interpretation of Title 26, U.S.C. §145(b) and 7201.

United States v. Bowen, Part I, involves “constitutional

adjudication” as did Desist, supra, and Stovall, supra,'*

‘Finally, assuming that ‘Almeida-Sanchez, supra, made

new law, Respondent contends that Petitioner Bowen

- should not get the benefit of the holding even though

Mr. Bowen was on “direct appeal” at the time of this

decision because of “policy reasons.” Petitioner con-

'2Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772 ( 1966)

‘

and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731 (1965),

indicating a contrary view was overruled by implication in Desist,

supra, and Stovall, supra. .

27

tends that in fact policy reasons require that Almeida-

Sanchez, supra, be applied to him. Pet. Br. 20-26.

In Support of this position, Respondent relies upon

Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966 (1973);

Adams vy. Illinois, 405 U.S. 278, 92 S.Ct. 916 (1972);

Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148

(1971); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct.

2093 (1968); and Desist v. United States, supra. All of

these cases involve constitutional adjudications affecting

local, state, and federal law enforcement and all those

constitutional principles if applied retroactively, would

cause a massive burden on local, state and federal

courts.'?

Petitioncr’s cause, on the other hand, involves a

decision that generally only affects a few Federal

‘Courts in the Fifth, Ninth and Tenth Circuits, and only

one small federal law enforcement agency, the I.N.S.

The effects of applying Almeida-Sanchez, supra to cases

on direct appeal at the time of that decision on law

enforcement and the courts would be minimal com-

pared to the effect of making the decisions in Payne,

supra; Adams, supra; Williams, supra; DeStefano, supra,

and Desist, supra, retroactive.

-

13Pgyne, supra, involved the retroactivity of the decision

prohibiting increased sentence on retrial; Adams, supra, involved

the retroactivity of required counsel at preliminary hearings;

Williams, supra, involved the retroactivity of the scope of

searches incident to arrest; DeStefano, supra, involved retro-

activity of jury trials for certain offenses; and Desist, supra

involved retroactivity of warrantless wiretaps. ;

28

CONCLUSION

Petitioner John Lee Bowen submits that the decision

of the United States Court of Appeals for the Ninth

Circuit in United States v. Bowen, Part I, was correct

when it determined that a warrantless, probable

causeless search of his vehicle at a fixed checkpoint not

the functional equivalent of a. border violated the

Fourth Amendment to the United States Constitution.

It is clear that this opinion of the Court of Appeals

should have been applied to Petitioner Bowen himself

because that decision either (1) was clearly fore-

shadowed by previous decisions of this Honorable

Court; or (2) the decision of the Ninth Circuit

overruled clear past precedents of that Circuit and

therefore the opinion announced in United States ».

Bowen, supra, was new law and Mr. Bowen himself

should be given the benefit of that ruling. For this

reason, the contraband seized from Mr. Bowen’s camper

must be suppressed from evidence and the matter

remanded to the United States District Court for the

Sourthern District of California to determine whether

there is enough admissible evidence to proceed to trial

against Mr. Bowen. Any other result would work an

injustice upon- Mr. Bowen who has continually

29

challenged the validity of the search and the admissi-

bility of the seized contraband into evidence which was

used to convict him.

DATED: February 6, 1975

Respectfully submitted,

MICHAEL D. NASATIR, of

Nasatir, Sherman & Hirsch

8383 Wilshire Boulevard, #510

Beverly Hills, Ca 90211

* (213) 653-3303

JERALD W. NEWTON, of

Newton, Re & Russell

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 655-5011

Attorneys for Petitioner