Brief for the United States — United States v. Brignoni-Ponce

Supreme Court brief1975

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\ INDEX

Page

: IN iio coun ckanesduiacanpbnckunnkence 1

re iain cans ccupencecvccnde decube 1

. eo cheb omndvknecsuncdncwcese 2

Statute and regulation involved---__.-..........-------- 2

SN a ee me 3

\ Argument: Border Patrol officers may, without a warrant,

\ lawfully stop a vehicle in the area of the Mexican border

to question the occupaats concerning their right to be

or remain in the United States. ____..........-----_. 8

\ - A. Introduction end summiery..................... 8

B. There exists an area-wide equivalent of probable

cause that justifies a brief stop of a vehicle in

the Mexican border area to inquire about the

\ citizenship of its occupants_____.._......---.- 12

C. Advance judicial approval through the warrant

procedure is not necessary to ensure the reason-

ableness of a brief investigative stop of a vehicle_ 22

ene pera Romane ee cane En AE Cea ce ae ve eae a 31

CITATIONS

Cases:

, Adams 7, Pre, Ge Se WO nics coon wkekcnccé 14

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

Au Yi Lau v. Immigration and Naturalization Service,

Oa WE iow ad bdo dn Ciee oe eeks cos cdeeeds 16

Cady v. Dombrowski, 413 U.S. 433_.-...._.---.----- 23

Camara v. Municipal Court, 387 U.S. 523__.....---- 10, 14

Cardwell v. Lewis, No. 72-1603, decided June 17,1974. 25

Cheung Tin Wong v. Immigration and Naturalization

Bs Pos ich dai onc h he wucawcce

Cooper v. California, 386 U.S. 58............-.------

Cases—Continued fon

Fernandez v. United States, ie fe 6 Beer nee 15

Fumagalli v. United States, 429 F.2d 1011___________- 15

_ Lipton v. United States, 348 F. 24-591____________._- 28

Myricks v. United States, 370 F. 2d 901, certiorari

SE, Bt Aa Cg cs oc neko 28

Roa-Rodriquez v. United States, 410 F. 2d 1206__.-2....-. 15

ROTTS WN Be bo oie ees 14, 23, 24, 25, 31

United States v. Avey, 428 F. 2d 1159, certiorari.denied, . -

i i edie uch AO

United States v. Baca, 368 F. Supp. 398-._...-..-.-.. 4,20

United States v. Biswell, 406 U.S. 311. -.-____- 12, 18, 28, 29

United States v.- Bowen, 500 F. 2d 960, certiorari. .

granted, October 15, 1974, No. 73-6848_._.:...-_-- . 6

United States v. Bowman, 487 F.2d 1229-___- sie erie 7,16

United States v. Campos, 471 F. 2d 296__..__...._._-- + 18

United States v. Cho Po Sun, 409 F. 2d.489, certiorari

denied, 396 U.S. Me Matic. wndicndebdadiqaduwsa a 16

United States v, Croft, 429 F. Sarg 26 See 28

United States v. Edwards, 415 U.S, 800__...-...-.---- 24

United States v. Eequer-Rieera, C.A. 9, Nos. 74-1110,

FT as oie tit dies peel eticlne ines ss 22

United ‘States v. Mavis. 444 F. 2d 86__2_.2.. shia ghiheic 15

United States v. McCormick, 468 F. 2d 68, certiorari

Gu eee ee 16

United States v. McDaniel, 463 F. 2d 129, certiorari

nee SEN Re i a ns uses 15

United States v. Miranda; 426 F. 2d 283____:____ 22 #16

United States v. Montez-Hernandez, 291 F. Supp. 712_.-.14, 28

United States v. Newman, 490 F. 2d 993.__._______- 16

United States v. Peltier, 500 F.2d 985, certiorari eye,

November 11, 1974, No. 73-2000_____.-__2._--.- 5, 6,9

United States v. Ramirez, 263 F. 2d 385___-----____- 15

United States v. Rodriguez-Hernandez, 493 F. 2d 168,

pending on petition for writ of certiorari, No..73-

Cases—Continued

United States v. Wright, 486 F. 2d 1027, certiorari

Page

oe ek | Sere, \iieareeememeee 15

"am Sang Kwai v. Immigration wkd Naturalization

ee | I ee ee ee 16

Constitution, statutes, and regulation:

U.S. Constitution, Fourth Amendment_-___________ Pasaim

Immigration and Nationality Act, 66 Stat. 163, as —

amended, 8 U.S.C. 1101 et seq.:

Sectlins 274(a)@), 8 U.S.C. 1324 (e)(2):. -. =... 3

Section 287(a), 8 U.S.C. 1357(a)__......_-- 2, 6,17, 21

Section 287(a)(1), 8 U.S.C. 1357(a)(1).....____- 7,30

Section 287(a)(3), 8 U.S.C. 1357(a)(3)__. ---__- 22, 30

ee Aa, Ws oo Gs cds boos aen Mao snnnn , 4

NS i a a ac euahis dceunsanee oe |

Miscellaneous:

Comment, Freedom of the Road: Public Safety vs.

Private Right, 14 DePaul L. Rev. 381 (1965)_______ 28

Comment, Interference with the Right to Free Move-

ment: Stopping and Searching of Vehicles, 51 Calif.

Races ns ee 28-29

Note, Automobile License Checks and the Fourth Amend-

ment, 60 Virginia L. Rev. 666 (1974)_-___________ 28

Note, Random Road Blocks and the Law of Search and

Seizure, 46 Iowa L. Rev. 802 (1961)_.._-________- 29

Note, The Driver’s License “Display” Statute: Problems

Arising from Its Application, 1960 Wash. U. L. Q.

Yn the Supreme Gout of the Whited States

OctToBER TERM, 1974

; _ No. 74-114

UnitTEeD StaTEs OF AMERICA, PETITIONER

. :

Fetix HuMBerto BricNoni-Ponce

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH OIROUIT

eemrneecnnnaet: at

BRIEF FOR THE UNITED STATES

‘OPINION BELOW

The opinion of the court of appeals (A. 18-27) | is

reported at 499 F. 2d 1109.

JURISDICTION

The en banc judgment of the court of appeals

(A. 18) was entered on June 14, 1974. On July 10,

1974, Mr. Justice Douglas extended the time for filing

a petition for a writ of certiorari to and including

Au,ust 13, 1974. The petition was filed on that date

and was ‘granted on October 15, 1974 (A. 19). The |

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

(1)

QUESTION PRESENTED

Whether the warrantless stop of an automobile by

Border. Patrol, officers, in order to question ‘persons

in. the- yehicle, concerning their, right. to. be or remain

in the United States, violates the Fourth Amend- —

ment’s proscription against unreasonable searches and

seizures and requires_the suppression of evidence

_ obtained solely as a result. of the stop and questioning

and not as a result of any subsequent search.

STATUTE AND REGULATION INVOLVED

‘1. Section 287(a) of the Immigration and National-

ity Act, 66 Stat. 233, 8 U.S.C. 1357(a), provides in

pertinent part: '

Any officer or employee of the [Immigration

and Naturalization} Service authorized under

' regulations prescribed by the Attorney General

‘+ ghall have.power without warrant—

(1) to interrogate any alien or person be-

lieved to be an alien as to his right to be or to

‘ remain in the United States;

* * + + *

-@ (3) within a reasonable distance from any

external boundary of the United States, to

_' board and search for aliens any vessel within |

the territorial waters of the United States and

any'railway car, aircraft, conveyance, or vehi-

cle, and within a distance of twenty-five miles

from any such external boundary to have access

to private lands, but not dwellings, for the

purpose of patrolling the border to prevent the

illegal entry of aliens into .the United

States; =" °

2. 8 C.F.R. 287.1 provides in pertinent part:

(a)(2) Reasonable distance. The term ‘‘rea-

sonable distance,’’ as used in section 287(a) (3)

of the Act, means within 100 air miles from

any external boundary of the United States or

any shorter distance which may he fixed by the

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

and search aircraft is concerned, any distance

fixed pursuant to paragraph (b) of this section. |

(b) Reasonable distance; fixing by district

directors. In fixing distances not exceeding 100 -

air miles pursuant to paragraph (a) of this

section, district directors shall take into con-

sideration topography, confluence of arteries of

transportation leading from external bound-

aries, density of population, possible inconven-

ience to the traveling public, types of convey-

ances .used, and reliable information as_ to

movements of persons effecting illegal entry

into the United States: Provided, That when-

ever in the opinion of a district director a dis-

tance in his district of more than 100 air miles

from any external boundary of the United

States would because of unusual circumstances

be reasonable, such district director shall for-

ward a complete report with respect to the

matter to the Commissioner, who may, if he

determines that such action is justified, declare

such distance to be reasonable.

‘

STATEMENT |

After a jury trial in the United States District

Court for the Southern District of California, re-

spondent was convicted on two counts cf violating 8

U.S.C. 1324(a)(2), transporting aliens who; were

present in this country illegally. He was sentenéed to

four years’ imprisonment on count 1, subject to the

immediate parole eligibility provisions of 18 U.S.C.

4208(a) (2), and five years’ probation on count 2, to be

commenced upon release from confinement or titi

(A. 11-12).

1. The evidence at trial established that on ae

11, 1973, Border Patrol Agents Brady and Harkins

were on duty in a patrol car observing northbound

traffic on Interstate Highway 5 approximately four

miles south of San Clemente, California (A. 5-6). The

officers were parked off the highway at the siteof a

permanent immigration checkpoint that was closed be-

cause of inclement weather and a shortage of man-

power (A. 6). The patrol car was parked at a 90-

degree angle to the highway with its headlights on,

enabling the officers to see the occupants of passing

vehicles (A. 6, 9).' During.the early evening hours,

they observed, traveling north, a vehicle driven by

respondent and containing two passengers. The officers

pursued and stopped the car for a “routine immigra-

tion inspection,” because they observed that its three

occupants appeared to be of Mexican descent (A.

6-9).

Upon questieriing the passengers in the vehicle in

English and Spanish concerning their citizenship, | the

-§

“3 The Si San Clemente checkpoint, at which the officers were

parked, is approximately 62 air miles and 66 road miles north

of the Mexican border. United States v. Baca, 368 F. Supp. 398,

410 (S.D. Cal.). The validity of a warrantless search of a

vehicle for aliens at that checkpoint, conducted as part of the

checkpoint’s normal operation, is before this Court in United

States v. Ortiz, No. 73-2050.

officers discovered that they spoke no English and had

no papers authorizing them to be in the United States

(A. 7). Respondent and the passengers were then ar-

rested (A. 8). At trial, both passengers testified that

they were Mexican citizens who had entered the

United States illegally (Tr. 24-25, 57, 63-64).

The parties agreed by stipulation that respondent’s

motion to suppress the evidence derived from the stop

of his vehicle could be heard at the time of trial (A.

10). The district court formally denied thé motion

three months after the trial had ended (7bid.).

2. Subsequent to respondent’s trial, this Court de-

cided Almetda-Sanchez v. United States, 413 U.S. 266,

which held that a warrantless roving patrol search of

an automobile for concealed aliens, conducted by

Border Patrol officers acting without probable cause

or reasonable suspicion to believe that the vehicle con-

tained aliens present in this country unlawfully, vio-

lated the Fourth Amendment’s proscription against

unreasonable searches and ‘seizures. The Ninth Cir-

cuit thereafter held that the ruling in Almeida-

Sanchez should be applied retroactively to require the

exclusion of evidence seized in similar roving patrol

searches conducted prior to the date of this Court’s

decision in Almeida-Sanchez (United States v. Peltier,

500 F. 2d 985, certiorari granted, November 11, 1974,

No. 73-2000), The Ninth Circuit also held, however,

that Almeida-Sanchez should apply only prospectively

with respect to searches conducted .at fixed immigra-

tion checkpoints (United States v. Bowen, 500 F. 2d

565-548— 74-2

960, certiorari granted, October 15, 1974, No. 73-

6848). |

In the present case, the court of appeals, sitting en

banc, reversed respondent’s conviction (A. 13-17). It

held first that the Border Patrol officers’ conduct in

pursuing respondent’s vehicle and flagging it to the

side of the road was ‘‘more characteristic of a roving-

patrol stop than of a fixed-checkpoint stop”’ (A. 14).

The court therefore determined, pursuant to its prior

decision in Peltier, that the principles of Almeida-

Sanchez were applicable even though the stop occurred

prior to this Court’s decision in that case (ibid.).

The court next held that warrantless stops of vehi-

cles, “without probable cause, and without even a

reasonable suspicion that any of the occupants are

illegal aliens [,] * * * are entirely inconsistent with

the Supreme Court’s opinion in Almeida-Sanchez”’

(A. 15). The court of appeals acknowledged that

Almeida-Sanchez involved a search rather than. only

a stop and that 8 U.S.C. 1357(a) gives Border Patrol

officers authority not only to search vehicles for con-

cealed aliens without a warrant but also “to interro-

gate any alien or person:believed to be_an alien as to

his right to be or remain in the United States * * *.”’

eeeegnageen 8 td

- ®The Ninth Circuit had first held in Bowen that Almeida-

Sanchez should be extended to invaldate—warrantless searches

ef automobiles for aliens at fixed! checkpoints. We argue in

Bowen and in United Sta/es v. Ortiz, No. 73-2050, that war-

rants should not be required for checkpoint searches of vehicles

for concealed aliens and that, even if warrants are required,

the ruling should ‘not apply in the Ninth Circuit to checkpoint

searches that occurred prior to that court's decision in Bowen.

soned, however, that this Court’s opinion

The court reaimchez ‘‘reflects at least as much concern

in Almeida-Sal stop as with the subsequent search’’

with the initi

(A. 15). soncluded that a warrantless stop of a

The court nissible only if the officers have informa-

vehicle is perites “a founded suspicion” that one or

tion that cre¢s of the vehicle are aliens whose pres-

more occupanuntry is unlawful (A. 17). Although not

ence in this ¢C the officers here had reason to believe

PS ent and his passengers were aliens, the

ab respone¢st they ‘“‘did not possess facts which

court held tt os

: founded suspicion that [respondent] or

constituted a , ae ope ;

hi s were illegal aliens” (tbid.; emphasis

is passenger

added). The ourt therefore concluded that “the stop

and interrog ation * * * were illegal, and the fruits of

the illegal eonduet were inadmissible” (tbid.).

The court 1¢fused to “adopt the approach taken by

our brothers 29 the Tenth Cireuit” (A. 15) in United

States v. Bowman, 487 F. 2d 1229, in which that court

held that the stopping of an automobile ‘‘for the lim-

ited purpose of determining [the driver’s] citizenship

was entirely justified’ under 8 U.S.C. 1357(a) (1) and

is not barred by the Fourth Amendment or by the

principles of ‘Almeida-Sanchez (487 F. 2d at 1231).

8 ~*~,

BORDER PATROL OFFICERS MAY, WITHOUT A WARRANT,

LAWFULLY STOP A VEHICLE IN THE AREA OF THE

MEXICAN BORDER TO QUESTION THE OCCUPANTS. CON-

CERNING THEIR RIGHT TO BE OR REMAIN IN THE UNITED

STATES

A. INTRODUCTION AND SUMMARY

This case is similar to Almetda-Sanchez insofar as

both involve roving patrol operations * in the Mexican

_ border area, conducted as part of the Border Patrol’s

overall program to enforce the Nation’s immigration

laws. The present case differs from Almetda-Sanchez,

however, in one important respect. Whereas the mari-

huana that formed the basis of the prosecution in

Almeida-Sanchez was discovered under the back geat

of the defendant’s automobile in the course of a search

for concealed aliens, the evidence that was held inad-

missible by the court of appeals in the present case

was derived solely from “the stop and interrogation

of Brignoni-Ponce ar“ the passengers in his car”

(A. 17). There is no contention that any evidence

introduced at respondent’s trial was the fruit of an

unlawful search of his automobile.

The only question presented here, therefore, is

whether the warrantless roving patrol stop of. re-

spondent’s vehicle by Border Patrol officers, in order

* The court of appeals in the present case, recognizing that

“the line between a roving-patrol stop and fixed-checkpoint stop

is not a clear one,” concluded that “pursuing a passing car and

flagging it to the side of the road is conduct more characteristic

of a roving-patrol stop than of a fixed-checkpoint stop” (A. 14).

Though we think the question is a close one, we do not here

dispute the court’s conclusion.

to question the vehicle’s occupants concerning their

right to be or remain in the United States, violated

the Fourth Amendment and requires suppression of

the evidence derived therefrom.‘

Two inquiries are necessary to determine the law-

fulness of the stop. First, what is the nature and

quantum of cause necessary, in the area of the Mex-

ican border, to justify a stop of a car and an inquiry

into the citizenship status of its occupants? Second,

may such a stop properly be made without advance

judicial approval through the warrant procedure ?

Looking first to the question of cause, we argue in

this brief that the stop of respondent’s automobile

was properly predicated upon an area-wide equivalent

of probable cause that would have justified not merely

a brief stop for interrogation but even a limited

search of the vehicle for aliens. Because of the unique

conditions and difficult law enforcement problems in

the Mexican border areas, it may be reasonable to

*The stop of respondent’s vehicle occurred prior to this

Court’s decision in Almeida-Sanchez. In United Sates v.

Peltier, No. 73-2000, we argue that Almeida-Sanchez should

not be applied retroactively to exclude evidence discovered as

a result of a warrantless roving patrol stop and search con-

ducted prior to Almeida-Sanchez. If the Court agrees with our

contention in Peltier, we assume that the exclusionary rule

would also be inapplicable to a pre-Almeida-Sanchez stop

for interrogation without a search. We do not urge the non-

retroactivity of Almeida-Sanchez as a ground for reversal here,

however, because respondent’s case was the vehicle for an ex-

tension of Almeida-Sanchez by the Ninth Circuit. If this

Court holds that warrantless stops are unlawful, then we would

agree, in line with our position in United States v. Ortiz, No.

78-2050, and Bowen v. United States, No. 73-6848, that re-

spondent should be given the benefit of that new rule.

stop a vehicle to ask the ovcupants about their right

to be or remain in this country even though the offi-

cers lack an articulable suspicion that the particular

vehicle to be stopped contains illegal aliens.

Turning to the warrant issue, we then argue that

advance judicial approval of such a stop through. the

warrant procedure is not necessary to ensure the rea-

sonableness of so brief and limited an interference

‘with the privacy interests of the traveling public. Al-

though Mr. Justice Powell concluded in Almeida-

Sanchez that an area warrant was required to justify

a roving patrol search of a vehicle for aliens, a brief

stop for questioning, which ordinarily takes less than

a minute and requires no more of the occupants than

a response to one or two questions and possibly the

production of an immigration document, is a far less

drastic intrusion than a search of the vehicle for

aliens. In view of the important governmental in-

terest:in making such stops, the difficulty of adapting

most roving patrol operations to an area warrant

procedure, and the limited scope of the resulting in-

terference with highway travel, a routine investigative

stop in the border area, made by Border Patrol offi-

cers pursuant to express statutory authority, is not an

unreasonable seizure under- the. Fourth Amendment

even though conducted without an area warrant.

B. THERE EXISTS AN AREA-WIDE RQCIVALENT OF’ PROBABLE CAUSE,

‘THAT JUSTIFTES A BRIEF sror OF A VEHICLE, 1N ce MEXICAN.

‘BORDER AREA (TO TRQUIRE: ABOUT’ “Tre _ CrrmeNsmirr oF Hs

“OCCUPANTS : ¥ i

ik The Aéeisiow of the cobrt of ‘appeals dete upon a a

fundamental ‘inigconéeption concerning thé hatite of

the cause necessary to justify a stop of a vehicle in

the border areas. The court held that the investigating

officers must ‘‘possess facts” amounting to “a founded

suspicion” that the particular vehicle to be stopped

contains aliens illegally present in this country

(A. 40).

It is true that in*the usual case the permissible rea-

son for a search or seizure must be focused with

particularity upon the person or object to be searched

or seized. But this Court has recognized that the prob-

able cause requirement may be ‘satisfied in some

circumstances by knowledge of conditions in an

“area as a Whole” rather than by ‘‘specific knowledge”

with respect to the particular object of a search

(Camara v. Municipal Court, 387 U.S. 523, 536, 538).

Camara involved a city-wide pr ogram of routine

and periodic ‘building inspections to identify housing

code violations. This Court ‘ruled that the constitu-

tionality of any particular inspection turned not upon

the existence of probable cause to believe that a viola-

tion would be uncovered in the particular building to

be inspected, but upon the reasonableness of the

inspection program itself. “[T]he agency’s decision

to conduct an area inspection is unavoidably based on

its appraisal of conditions in the area as a whole, not

on its knéwledge of ‘conditions in each particular

building” (387 U.S. at:536). The Court held that, if

entry to-a particular building were refused, a warrant

could be issued on the basis of this area-wide probable

cause, ‘if reasonable legislative or administrative

standards for conducting an ‘area inspection are satis-

12 low

fied with respect to a particular dwelling’’ (id.

at 538). See also Colonnade Catering Corp. v. United

States, 397 U.S. 72; Umited States v. Biswell, 406

U.S. 311. ray

We argued in Almetda-Sanchez ‘that the Border

Patrol’s traffic checking procedures in the area of the

Mexican border were essential to the effective en-

forcement of this country’s immigration laws and that

roving patrol searches coila be justified on the

basis of an area-wide probable cause like that in

Camara. Though the Court held that such searches

could not, in any event, be deemed reasonable in the

absence of a warrant, the majority opinion did not re-

ject the applicability of area-wide probable cause in

this context, and both Mr. Justice Powell’s coneurring

opinion and Mr. Justice White’s dissenting opin-

ion (joined by the Chief Jusiice and Justices Black-

mun and Rehnquist) agreed that the probable cause

principles of Camara may be applicable to the Border

Patrol’s roving patrol search operations.

Mr. Justice Powell stated that ‘‘under appropri

limiting cireumstances there may exist a constitution-

aliv adequate equivalent of probable cause to conduct

roving vehicular searches in border areas’’ (413 U.S.

at 279). Because many illegal entrants “cross the

border on foot, or at places other than established

[border] checkpoints, it is simply not possible in most

cases for the Government to obtain specific knowledge

that a person riding or stowed in an automobile is an

alien illegally in the country” (id. at 276-277). “[O]n

appropriate facts,’’ however, ‘‘the Government can

satisfy the prebable cause requirement for a roving

search in a border area without possessing imnforma-

tion about particular automobiles’’ (7d. at 281).’

As we show in our brief in United States v. Ortiz,

No. 73-2050, pp. 20-32, the factors that persuaded

Mr. Justice Powell that roving patrol searches could

be justified in the border areas on the basis of this

area-wide ‘‘functional equivalent of probable cause”’

(413 U.S. at 277) are at least as strong tuday as they

were at the time of the decision in A/metda-Sanchez.

There is no need to repeat here what we said in our

iivief in Almeida-Sanchez and what we reiterated in

our brief in Ortiz. It is enough to say that the high con-

centration of illegal aliens in the Mexican border area,

the absence of any reasonable law enforcement alter-

native to conducting roving patrol searches, and the

consistent judicial approval of such searches prior to

Almeida-Sanchez combine to justify, on an area-wide

hasis, the modest intrusion caused by a limited roving

patrol search of a vehicle for aliens. Though a war-

rant is gequired for such a search under Almeida-

Sanchez, it may be issued without a showing that there

>Mr. Justice Powell concluded, however, that a warrant

should be required for such searches. The dissenting Justices,

though disputing the need for a warrant, agreed that area-wide

probable cause would satisfy the Fourth Amendment's require-

ments for issuance of warrants. Mr. Justice White stated: “[A]t

least one Justice, Mr. Justice Powell, would uphold searches

by roving patrols if authorized by an area warrant issued on

less than probable cause*in the traditional sense. I agree with

Mr. Justice Powell that such a warrant so issned would satisfy

the Fourth Amendment, and I expect such warrants would be

readily issued” (413 U.S. at 288).

265-048 —-T4-—-- 5

is reason to believe : that any some sere vehicle is

carrying a concealed alien.

The present case involves only a brief stop of a

vehicle to question its occupants concerning their

right to be or remain in the United States, and this

Court has held that an investigative stop by a law

enforcement officer may be justified on less than

probable cause. ‘“‘[A] police officer may in appro-

priate circumstances and in an appropriate manner

approach a person for purposes of investigating pos-

sibly criminal behavior even though there is no prob-

able cause to make an arrest.”’ Terry v. Ohio, 392 U.S.

1, 22; see also Adams v. Williams, 407 U.S. 148.

When Terry is read together with Camara and the

econeurring and dissenting opinions in Almeida-San-

chez, this is what emerges. An investigative stop of

an automobile to inquire into the citizenship status of

its occupants may be made on the basis of reasonable

suspicion not amounti g td probable cause, but that

suspicion, like the pro able jeause.in Camara, need not

be focused with particularity on the specific vehicle

to be stopped. It may be based, instead, upon knowl-

edge of conditions in the area as a whole. The condi-

tions in border areas are such that investigative roving

patrol stops; like the more intrusive roving patrol

searches, are essential to the effective enforcement

of the immigration laws.’ Since those conditions may

6“[1}]f immigration authorities were unable to question aliens

as to their right to be in this country without some independent

evidence that they we here illegally, their job would be im-

possible.” United Stcves v. Montez-Hernandez, 291 F. Supp.

712,715 (E.D.Cal.).

! provide “a constitutionally ‘adequate equivalent of

% probable cause’’ (413 U.S. at 279) to conduct a rov-

ing patrol search, it follows a fortiori that the same

conditions may constitute sufficient cause to conduct a

far less intrusive stop for questioning.

We ‘submit, therefore, that the court of appeals

erred in holding that the Fourth Amendment could

be satisfied only upon the basis of particularized sus-

pieion with respect to each vehicle stopped. Putting

' aside for a moment the question whether:a warrant is

required, it is our submission that the same area-wide

equivalent of probable cause that at least five Justices

thought could justify a roving patrol search in Al-

meida-Sanchez also may justify the lesser intrusion

involved in a brief investigative stop.

Prior to this Court’s decision in Almeida-Sanchez,

the courts of appeals had uniformly upheld investiga-

tive stops of vehicles in the Mexican border areas

without requiring particularized suspicion. F.g.,

Ramirez v. United States, 263 F. 24 385 (C.A. 5);

Contreras v. United States, 291 F. 2d 63 (0.A. 9);

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

United States v. Campos, 471 F: 2d 296 (C.A. 9);

United States v. Saldana, 458 F. 2d 352 (C.A. 10); —

Roa-Rodriquez v. United States, 410 F. 2d 1206 (0.A.

10).’ Even after Almeida-Sanchez, the Tenth Circuit

—_—_—_——_— |

"In many cases in which the courts considered the legality of

a search of a vehicle; the lawfulness of the initial stop was

} unquestioned. See, e.g., United States v. Wright, 476 F. 2d

1027 (C.A. 5), certiorari denied, 414 U.S. 821; United States

} v. McDaniel, 463 F. 2d 129 (C.A. 5), certiorari denied, 413 U.S.

919; United States v. Marin, 444 F. 2d 86 (C.A. 9); Fumagalli

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

adhered to its view that the Fourth Amendinent is jot

violated when Border Patrol officers, without a war-

rant, stop a vehicle “to make ine inquiries as to

an individual’s nationality” (W/nited States vy. Bow-

man, supra, 487 FP. 2d at 1231).” i

2. A word suould be said, however, about the reja-

tionship between what the Fourth Amendment may

tolerate on the one hand and what the Immigration

and Nationality Act may authorize on the other hand.

Avey, 428 F. 2d 1159 (C.A. 9), certiorari denied, 100 U.S. 903;

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

States v. McCormick, 468 F. 2d 68 (C.A. 10). certiorari denied.

410 U.S. 927.

Outside the border areas, and in the context of personal Ch:

counters rather than highway stops, some courts have applie«

different rules. In the District of Columbia Circuit. for ex-

ample, “forcible detentions of a temporary nature for pur-

poses of interrogation” were permitted “under circamstances

creating a reasonable suspicion, not arising to the level of prob-

able cause to arrest, that the individual so detained is i/egally

in the eountry. ” Au Yi Law v. Immigration and Naturalization.

Service. 445 F. 2d 217, 223 (emphasis added); see also Yum

Nang Kwai y. Immigration and Naturalization Service, 411 ¥.

2d 688 (C.A. D.C.y; Cheung Tin Wong vy. Immigration ‘and

Naturalization, Service, 468 F. 2d 1123 (C.A. D.C.); United

States v. Cho Po Sun, 409 F. 2d 489 (C.A. 2), certiorari denied,

396 U.S. 864. Though we do not necessarily ayree that the D.C.

Cirenit’s standard is correct, we note that the conditions that

give rise to area-wide probable ¢ause in the border, areas may

not be present in other locations.

* See also United States v. Newman, 490 F. 2d 993, 995 (C.A,

‘10). The Fifth Circuit has not had occasion to decide the ques-

tian since the decision in Almeida-Sanchez. One panel, however,

expressed “serious doubt” as to the continued validity of

warrantless stops for interrogation. United States v. Rodriquez-

Hernandez, 493 F. 2d 168, 169, pending on petition for a writ

of certiorari, No. 73-6851. a

Section 287(a) of the Act, 8 U.S.C. 1357(a), gives

Border Patrol officers the ‘‘power without warrant—

(1) to interrogate any alien or person believed to be

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

United States [and] * * * (3) within a reasonable

distance from any external boundary of the United

States, to board and ‘search for aliens mel.”

vehicle * * *.”’ The term ‘‘reasonable distance’’ as

used in subsection (3) is defined by 8 C.F.R. 287.1(a)

(2) as “within 100 air miles from any external

boundary of the United States * * *.”

The search authority conferred by subsection (3) is

not conditioned upon the existence of any particular-

ized knowledge. The Border Patrol is authorized to

search “any vehicle” (emphasis added). That author-

ity may be exercised, however, only within a reason-

4 able distance from an external boundary, and the scope

of the search power is limited to places in a vehicle

where a human being could reasonably be concealed.”

Obviously, the power conferred by subsection (3) to

conduct a limited search of any vehicle in the border

area necessarily comprehends the power to stop any

vehicle in that area and to ask questions of its oceu-

pants to determine whether the vehicle contains con-—

cealed aliens.

The interrogation authority conferred by subsection

(1), unlike the search authority conferred by sub-

section (3), is not limited to a reasonable distance

* As we indicated in our brief in Ortiz (p. 29), an auto-

mobile inspection is usually limited to a brief look in the

’ ' trunk but occasionally extends to a look under the hood, be-

. a neath-the chassis, or behind the back seat.

OSS ah a ea

> *

from an external boundary. Its exercise, however, is

conditioned upon the existence of some particularized

knowledge concerning the person to be questioned. He

must be an ‘‘alien or person believed to be an alien

** *.” Moreover, the questioning under subsection

(1) may extend only to the person’s “right to be or

to remain in the United States.” :

Thus, when the two subsections are read together,

they authorize the Border Patrol to conduct the fol-

lowing investigative activity without a warrant.

Within a reasonable distance from an external bound-

Presi: fficers may stop any vehicle, may question its

occupants concerning both their right to be in the

United States and the possibility that aliens may be

concealed in the vehicle, and may search the vehicle

for aliens. Outside a reasonable distance from an ex-

ternal boundary, Border Patrol officers may stop only

those vehicles containing persons whom the officers

believe to be aliens, may question those persons only

as to their right to be or to remain in the United

States, and may search a vehicle only upon ——

lan probable cause. ;

The statute represents the considered judgment of

€ongress that the measures it authorizes are essen- .

tial to the effective enforcement of the immigration

laws and consistent with the reasonableness standard

of the Fourth Amendment. Almeida-Sanchez v. United

can supra, 413 U.S! at’ 291, 293 (Mr. Justice

> sidianhle respect. lek United States v. Biswell, supra,

406. U.S. at 315-317; Colonnade Catering Corp. v.

United States, supra, 397 U.S. at 76. Insofar as the

judginent is incorrect, however, the authority con-

ferred by the statute is ultimately circumscribed by

the Fourth Amendment, for “[i]t is clear * * * that

no Act of Congress can authorize a violation of the

Constitution” (Almetda-Sanchez v. United States,

supra, 413 U.S. at 272). .

Thus, in Almetda-Sanchez this Court held that a

roving patrol search conducted without a warrant

pursuant to the authority conferred by subsection (3)

nevertheless violated the Fourth Amendment. And ,we

acknowledged in. Almeida-Sanchez that routine

searches of vehicles for aliens in Times Square would

be ‘“unreasonable’’ in the constitutional sense, even

though it is technically within a ‘‘reasonable distance”’

of an external boundary as that term is defined by the

regulation. The conditions in New York City would

not provide an area-wide equivalent of probable cause

sufficient to justify the practice of conducting such

searches.” Qa ns

But even if a statute authorizes law enforcement

conduct that might in some circumstances be regarded

as unreasonable under the Fourth Amendment, that

does not mean that the authorized conduct must be

viewed as unreasonable in all circumstances. It may

be, for example, that a. Bérder Patrol law enforce-

» The Immigration ‘and Naturalization Service, of course, has

never claimed or exercised any authority to conduct such searches

in New York or similar. places. The Border Patrol has con-

ducted routine’ searches of vehicles for aliens only in the area,

of this country’s border with Mexico, where illegal entry is a

serous problem and ‘where the concentration of illegal entrants

is high, and occasionally: in the area of the Canadian border when:

sasonal and other circumstances lead to increased border-crossing

vielat ions.

ment method apparently authorized by statute would

be unreasonable if used in Times Square but quite

reasonable if used near E] Paso, Texas, a mile or two

from the Mexican border. The official conduct should

not be regarded as unconstitutional when it occurs in

El Paso simply because it might be unconstitutional

if it occurred in New York.

The Border Patrol officers in the present case were

observing traffic in a patrol car at the closed San

Clemente checkpoint, located in an area known to have

a high incidence of illegal alien traffic. The checkpoint

“straddles a natural corridor along which illegal aliens

frequently travel in their migration towards the labor

markets in the north,” and it has been described as

“the primary, or cornerstone, checkpoint maintained

by the Border Patrol’’ in southern California (United

States v. Baca, 368 F. Supp. 398, 410, 415 (S.D.

Cal.)). More than 12,000 deportable aliens were ap-

prehended at the checkpoint in fiscal year 1973, and

in normal operation it is common for an eight-hour

shift to result in as many as 20 or 30 apprehensions

(td. at 410).

Against this background, it is not difficult to under-

stand why Border Patrol Agents Brady and Harkins

acted as they did when they observed respondent’s

northbound vehicle pass the checkpoint containing

three persons who appeared to be of Mexican descent.

Though. the officers had no particularized suspicion

that those individuals were illegally present in the.

country, the circumstances made it appropriate to stop.

the vehicle briefly to inquire whether they were citi-.

zens of the United States or had a right.to-be here. We

contend that t 21

thorized b .

— bie minimally intrusive conduct was au-

that it was rea

ith subsections of 8 U.S.C. 1357(a) and.

wan required—Sonable under the Fourth Amendment—

wide equiva again, the question whether a warrant

suspicion, ( —because it was predicated upon an area-

The authornt of probable cause or reasonable

statute is not

distance fromty conferred by subsection (1) of the

that we read limited to exercise within a reasonable

words, as per an external Houndary, and it is: true

a vehicle anythat subsection, in the court of appeals’

gate its occupmitting “immigration officials [to] stop

States, withowhere in the country in order.to interro-

without even ants as to their right to be in the United

occupants art 4 warrant, without probable cause, and

no need to CO, reasonable suspicion that any of the

have been suf ijepal aliens” (A. 15). But there is

— “nsider in this case whether there would

coe he cient cause to make a similar stop for

thine nt ar Omaha, Nebraska, or Nashville, Ten-

of probable «

was made he that outside the Mexican border area

appear to a no comparable “functional equivalent

answered in tause’’ to justify the kind of stop that

wide probablere, even though subsection (1) would

respondent’s uthorize it. The only question to be

have shown, ‘his case, however, is whether such area-

justify the e cause exists in the border region where

_ =. vehicle was in fact stopped. If, as we

there was sufficient area-wide cause to

stop involved here, then it should net

putting aside,

pons NBR ee oy srmeneeneneseee

matter whether sufficient cause would exist to make a

similar stop elsewhere.”

C. ADVANCE JTDICIAL APPROVAL THROUGH THE WARRANT PROCEDURE

IS NOT NEUVESSARY TO ENSURE THE REASONABLENESS OF A BRIEF

INVESTIGATIVE STOP OF A VEHICLE

If, as we have shown, the Border Patrol officers had

sufficient cause to stop respondent’s vehicle in order to

inquire about the citizenship status of its occupants,

there remains the question—which the court of ap-

peals did not address—whether advance judicial ap-

proval in the form of an area warrant, required by

this Court for a roving patrol search in Almeida-

Sanchee,, should also be required for the kind of brief

roving patrol stop and questioning that took place in

this case: ,

1 Similarly, although we believe that Border Patrol officers

may, under 8 U.S.C. 1357(a) (3), lawfully make routine vehicle

ig, in the border areas even when they do not have reason

to believe that the occupants of the vehicle may be aliens,

that issue need not be decided in this case. Border Patrol

Agent Brady testified that respondent’s vehicle was stopped

because the people in the car appeared to be of Mexican

descent (A. 9). All that must be decided here, therefore, is

whether the authority conferred by subsection (1) to inter-

rogate persons believed to be aliens may be exercised by ,

stopping vehicles containing such persons for brief question-

ing within the Mexican border areas.

72 The Ninth Circuit has held that the particularized suspicion

requirement for roving patrol stops that was announced in this

case extends also to stops at fixed checkpoints in the course of

their normal operation. United States v. Esquer-Rivera, Nos.

74-1110, et al., decided July 1, 1974. If this Court agrees with

our contention in Ortiz that searches of vehicles for aliens may

be conducted at fixed checkpoints routinely and without a war-

rant, it would follow that stops for questioning at such check-

—

Our contention can be stated quite simply. The

“seizure’’ involved in this case was so limited an in-

trusion into the privacy interests protected by the

Fourth Amendment that the interposition of a mag-

istrate was unnecessary to ensure its reasonableness.”

Just as the nature of the cause necessary to justify a

particular search or seizure depends in part upon the

extent of the intrusion contemplated (Terry v. Ohio,

392 U.S. 1, 17-18, n. 15), so should the need for a

warrant turn in part upon the scope of the official

interference with protected interests.

This is so because “[t]he ultimate standard set

forth in the Fourth Amendment is reasonableness’’

(Cady v. Dombrowski, 413 U.S. 433, 489). Although

“both the concept of probable cause and the require-

ment of a warrant bear on the reasonableness of 2

search”’ or seizure (Almeida-Sanchez v. United States,

supra, 413 U.S. at 277, Mr. Justice Powell concur-

ring), there are some circumstances in which a search

or seizure may be reasonable without a warrant or

without probable cause or even without both (ibid.).

This is ‘‘the central inquiry under the Fourth Amend-

ment—the reasonableness in all the circumstances of

points may also be made routinely and without a warrant. But

even if the Court holds that warrants are required for check-

point searches, we would argue that warrants are not required

for brief stops for questioning at checkpoints. Our analysis

here with respect to roving patrol stops would apply as well

‘to checkpoint stops.

18 We acknowledge that even a brief stop of a vehicle to make

a limited inquiry about a person’s nationality may be a suffi-

cient interference with an individual’s “personal security” to

constitute a “seizure” under the Fourth Amendment (7erry v.

Ohio, supra, 392 U.S. at 19 and n. 16).

‘

guceceestltaesneenememusennsnesemsesmmmee

the particular governmental invasion of a citizen’s

personal security” (Terry v. Ohio, supra, 392 US.

at 19). ae

The absence of a warrant for a particular search

or seizure may raise warning signals, but whether

that absence makes the search or seizure unreason-

able depends at least in part upon the nature and

scope of the intrusion.” For example, ‘“broad and un-

suspected governmental incursions into conversational

privacy [through] electronic surveillance’’ may ‘‘jeop-

ard[ize] * * * constitutionally protected speech”’ and,

i .partieularly..when.directed..against “those suspected

of unorthodoxy in their political beliefs,” may make

“Fourth Amendment protections * * * the m»re neces-

sary” (United States v. United States District Court,

407 U.S. 297, 313-314). The magnitude of “the po-

tential danger posed by unreasonable surveillance to

individual privacy and free expression’”’ (id. at 315)

heightens the “risk” involved in relying solely on “un-

reviewed executive discretion’ as a guarantee of rea-

sonableness (id. at 317). In those circumstances, this

Court concluded that ‘‘the needs of citizens for pri-

- vaey and free expression may * * * be better pro-

tected by requiring a warrant before such surveillance

is undertaken” (id. at 315).

When law enforcement officers use less “constitu-

‘ tionally sensitive means in pursuing their tasks” (id.

1*The test in these cases, as this Court has held, is “not

whether it was reasonable to procure a search warrant, but

whether the search itself was reasonable.” United States v.

Edwards, 415 U.S. 800, 807; see Cooper v. California, 386 U.S.

58, 62.

at 317), however, a warrant may not always be re-

quired. An on-the-street investigative stop of a sus-

picious individual and a frisk of his person for

concealed weapons may be conducted by a law en-

forcement officer without a warrant (Terry Vv.

. Ohio, supra).” Similarly, four members of this Court

; concluded in Cardwell v. Lewis, No. 72-1603, decided

June i7, 1974, that the scraping of paint from the

exterior of an automobile did not “invade * * * a

right to privacy which the interposition of a warrant

requirement is meant to protect” (slip op. 5, plurality

opinion). od

The brief stop of a vehicle in the border area to

ask its occupants a few questions about their citizen-

ship and right to be in the United States, while not

trivial, does not constitute the kind of:instrusion into

protected privacy interests that was involved in even

the limited search for aliens conducted in Almeida-

Sanchez. The oT and Naturalization Serv-

ice informs us that a\ stop for questioning at a

checkpoint ordinarily takes no more than about 5 sec-

onds per occupant and that even a roving patrol stop

for questioning usually consumes no more than a min-

ute. Such stops involve no search unless the officers

have particularized probable cause. All that is re-

quired of the vehicle’s* occuparts is a response to a

brief question or two and possibly the production of

a document evidencing a right to be in the United

States.

18 Of course, in the Jerry context no warrant could have been

obtained, since there was neither area probable cause nor in-

dividualized probable cause.

SPER Saget THE NN eH tye

.,.We submit that: this momentary verbal encounter

does not present the sort of dangers that a warrant is

designed to protect against. In contrast to the situa-

tion: as viewed by. the majority in Almeida-Sanchez,

there is here no claim of an ‘“‘extravagant license to

search” (413 U.S. at 268). A brief stop for question-

ing is a far less “constitutionally sensitive” (United

States v. United States District Court, supra, 407

U.S. at 317) law enforcement method than a stop and

search, and we believe that the need for‘and utility of

advance judicial approval are correspondingly

reduced. :

_ Moreover, roving patrol operations are not easily

adapted to an area warrant procedure. Roving patrol

traffic checking operations are considered by the

Border Patrol to be essential to supplement the fixed

checkpoints as part of an overall program to deter

illegal entry and apprehend illegal entrants, Although

the need for some roving patrols—to cover one or two

roads that bypass a major fixed checkpoint, for

example—may be sufficiently foreseeable to permit

advance planning, most roving patrol traffic checking

operations can be employed effectively only if

they can be used flexibly.

Basie roving patrol strategy is established on a

regional basis, but the deployment of particular patrol

cars and agents is ordinarily determined by field

supervisors, who must take account of such variable

factors as the season, the weather, the traffic flow, the

time of. day, manpower and patrol car availability,

recent experience on a road or roads, information con-

cerning illegal activity, and so on. In areas

with thany bypass roads, one patrol car may be as-

signed to cover 10 or,.more roads and many square

miles during a single shift.

For these reasons, the need for and assignment of

roving patrols ordinarily cannot be axticipated for a

future period but must be determined on a day-to-day

basis consistent with regional policy.” Weekly or

monthly warrants would therefore not be feasible.

The Border Patrol has found that it would be im-

practical to seek daily warrants for each patrol car,

in part because that; would require’ an inordinate

conunitment of resources to the preparation of in-

formation to be presented in suppert of warrant

applications. After this Court’s decision in Almeida-

Sanchez, therefore, the Border Patrol effectively dis-

continued the use of roving patrol traffic checking

operations except when specific information was ob-

tained concerning possible smuggling operations.

Even if these practical problems were not consid-

ered sufficiently disruptive of the Border Patrol’s

enforcement program to justify a roving patrol

search without a warrant,” we submit thafc bal-

ance of reasonableness shifts when the contemplated

intrusion is limited to a brief investigative stop. The

1 The instant case is illustrative of the problem, The “rov-

ing patrol” operation here involved was in response to imme-

diate and unanticipated weather and manpower exigencies.

17 Mr. Justice Powell stated in <A/meida-Sanchez that “the

roving searches are apparently planned in advance or carried

out according to a predetermined schedule” (413 U.S. at 283).

As we have indicated, that is true only with respect to a

minority of roving patrol traffic checking operations.

Po ——

result here should reflect the substantial difference

between the intrusiveness of a search and the in-

trusiveness of a momentary ‘‘seizure.” “

The situation here, we submit, is similar to that in

United States v. Biswell, supra, where this Court up-

held as “reasonable official conduct under the Fourth

Amendment” (406 U.S. at 316) a warrantless search

of a federally licensed firearms dealer’s locked store-

room, conducted pursuant to an inspection program

that was authorized by statute. Although, as Mr. Jus-

tice Powell stated in ‘Almeida-Sanchez, “[o]ne who

merely travels in regions near the borders of the coun-

try can hardly be thought to have submitted to>

spections in exchange for a special perquisite’’ (413

U.S. at 281), drivers and motor vehicles are licensed

by the states, and the lower federal courts have upheld

routine warrantless stops of vehicles for license and

registration — m A roving patrol immigration

% One district court aptly stated: “It cannot be considered

an arbitrary invasion of privacy merely to ask for proper iden-

tification in an area known to contain large numbers of illegal

Mexican aliens, particularly when the person being questioned

gives the appearance of being nervous and being of Mexican

ancestry. This is especially true when it is the only feasible

way to apprehend the seemingly endless parade of aliens who

escape detection at the border” (United States v. Montez-Her-

nandez, supra, 291 F. Supp. at 716)...

19 See, ¢.g., United States v. Croft, 429 F. 2d 884 (C.A. 10);

Myricks v. United States, 370 F. 2d 901 (C.A. 5), certiorari

denied, 386 U.S. 1015; Lipton v. United States, 348 F. 2d 591

(C.A. 9). See generally Note, Automobile License Checks and

the Fourth Amendment, 60 Virginia L. Rev. 666 (1974) ; Com-

ment, Freedom of the Road: Public Safety v. Private Right,

14 DePaul LL. Rev. 381, 407-409 (1965) ; Comment, /nterference

stop, though not part of any state highway safety in-

spection program, is no more intrusive than the

routine license check with which most motorists are

familiar. ‘ . vo

Moreover, as in Biswell, “the prerequisite of a war-

rant could easily frustrate” the enforcement scheme;

“and if the necessary flexibility * * * is to be ‘pre-

served, the protections afforded by a warrant would be

negligible’’ (406 U.S. at 316). Warrantless roving pa-

trol investigative stops, like the unannounced inspec-

tions of firearms dealers in Biswell, are specifically au-

thorized by statute. The Court’s conclusion in Biswell

thus bears as well upon the resolution of the issue

here. The Court there had “‘little difficulty in conclud-

ing that where * * * regulatory inspections further

urgent federal interests, and the possibilities of abuse

and the threat to privacy are not of impressive dimen-

sions, the inspection may proceed without a warrant

where specifically authorized by statute’’ (id. at 317).

Although immigration stops may not be ‘‘regula-

tory inspections’’ in furtherance of a licensing scheme,

they involve a far less drastic intrusion than the

unannounced searches sanctioned in Biswell. ‘‘[T]he

possibilities of abuse and the threat to privacy’’ are

of even less ‘‘impressive dimensions’’ in this context

than in Biswell (tbid.).

Taking into account that ‘‘Congress has broad

with the Right to Free Movement: Stopping and Search of

Vehicles, 51 Calif. L. Rev. 907 (1963); Note, Random Road

Blocks and the Law of Search and Seizure, 46 Towa L. Rev. .

802 (1961); Note, The Driver's License “Display” Statute:

Problems Arising from Its Application, 1960 Wash. U.L.Q. 279.

30 j*

authority to fashion standards of' redsonableness for

searches ‘and seizures’’ (Colonnide Catering Corp. v.

United States, supra, 397 U.S. at 77), we believe that

Border Patrol officers may lawfully, exercise their

express statutory authority to make brief vehicle stops

without warrants to inquire about the citizenship of

the oecupants., These limited intrusions do not posé

the kind of: dangers that might make it necessary to

disregard the congressional’ judgment that warrants

are not needed to ensure the reasonableness of the

law enforcement conduct. °

is not per se unreasonable if made without, a warrant,

we do not mean to suggest that an aggrieved person

may not allege and prove in a particular factual

officers’ subsequent questioning were unlawful. We

do say, however, that the Fourth Amendment values

at stake are adequately protected when these claims

are adjudicated after the stop and questioning and in

the context of an adversary proceeding on specific

facts. .

As we showed earlier (pp. 20-21, supra), the stop

U.S.C. 1357(a)(1) and (3) and were reasonable

under the Fourth Amendment. Border Patrol Agents

Brady and Harkins were observing traffic on a high-

way frequently used to transport illegal entrants, at

the site of the closed San Clemente checkpoint where

thousands of illegal entrants are apprehended each

In arguing that a roving patrol investigative stop |

‘setting that’ the stop of his automobile was in fact.

unreasonable ‘or that the manner and scope of ‘the

and questioning in this case were authorized by 8

year. When they observed respondent’s northbound

vehicle containing three persons who appeared to be

of Mexican descent, they were justified in stopping the

car to question its occupants about their citizenship

and their right to be in the United States. Once the

vehicle was lawfully stopped, the officers’ brief ques-

tioning of the passengers revealed that they were

present in this country illegally.

We submit that this law enforcement action “was

justified at its inception’’ and ‘‘reasonably related in

scope to the circumstances which justified the inter-

ference in the first place’ (Terry v. Ohio, supra, 392

U.S. at 20). The limited “seiure”- ofwhich respond-

ent complains was not ‘“‘unreasonable’’ under the

Fourth Amendment.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Henry E. PEreRsEN,

Assistant Attorney General.

Mark L. Evans,

Assistant to the Solicitor General.

Perer M. SHANNON, Jr., -

RevBen H. WALLACE, Jr.,

Atturneys.

DECEMBER 1974. :

U.S. GOVERNMENT PRINTING OFFICE: t974

IN THE

Supreme Court of the United

Octroser Term, 1974

No. 73-2000

Unirep States or AMERICA,

_—V

JaMEs Rospert PELTIER,

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 73-2050

Unrrep STaTEs OF AMERICA,

—vVv.—

Luis ANTONIO ORTIZ,

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APi’EALS FOR THE NINTH CIRCUIT

—>—__-

No. 73-6848

JoHN LEE Bowen,

Unrrep States OF AMERICA,

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 74-114

Unrrep States oF AMERICA,

_—V

Fe.rx HUMBERTO BriGNont-PoNcE,

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

“

Bian 30

MICHAL PUDAK 3

Petitioner,

Respondent.

Petitioner,

Respondent.

Petitioner,

Respondent.

Petitioner,

Respondent.

BRIEF OF THE MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND, AMICUS CURIAE

———

Epwarp A. ToMLINSON Vima S. MARTINEZ

University of Maryland

School of Law

500 West Baltimore Street

Baltimore, Maryland 21201

SANFORD JAY ROSEN

JOAQUIN GUADALUPE AVILA

Mexican American Legal

Defense and Educational Fund

145 Ninth Street

San Francisco, California 94113

INDEX

Table of Authorities...................

Interest of Amicus Curiae .............

Questions Presented....................

Statement of the Cases.................

Summary of Argument....................

ARGUMENT

I. PROBABLE CAUSE IS REQUIRED FOR

AN UNCONSENTED WARRANTLESS i

SEARCH BY FEDERAL OFFICERS OF

AN AUTOMOBILE FOR ILLEGAL

PERI ark oo can iK aad a qe’

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. WARRANILESS 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.

. il

387 U.S. 523 (1967).------+--2-..

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 .

~ (1972)... . © «© © ee ew ew ee 44 ;

Almeida-Sanchez v. Unsted States,

G52 F.2d 459 (9th

rev'd., 413 U.S. 266 (1973). . passim

Almeida-Sanchez v. United States,

ZI3 U.S. 266 (1973)... . =. © passim

Camara v. Municif al Court. 387

U.s. 523 T1967) o ew ete 0 oo eo 64, 34,49

Cardwell v. Lewis, 41 L.Ed. 325

(1974). + #ie's & & © 6 ee oe OSE

Carroll v. United States, 257

U.S. 132 (1925) ....+. +... passim

Chambers v. Maroney, 399 U.S. 42

(1970), reh. den., 400 U.S. 856 16,20,44

Coolidge v. New Hampshire, 403

U.S. 443 (I971), reh. den.,

ADA U.8. B76, s 6 6k 6 e's « 6 (86,21

Edelman v. Jordan, U.S.

. Ct. 1347 (1974) ..... 31

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

Gala sd ee a Bes 6 8 8

Katz v. pastes States, hes U.S.

347 (1 ; ca a

Denver, e UE.

Shapiro v. Thompson, 394 U.S.

ar8 (1969).

United States v. ch cir. 1973).

cert. _. , 94

3. Ct. 881 (1974) Sig sae

United States v. Bowen, 462

7 (9th Cir.),

reh, denied, (1972), cert.

ranted, ud ent vacated

and case remande or recon-

sideration,

> conviction affirmed,

Hernandez v. Texas, 347 U.S. 475

(1954) a . ° - oO . . ° -¢e °O

Keyes v. School District No. l, |

5 P %

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

Page

42,45

Page

500 F.2d 960 (9th Cir.) (en

banc), cert. granted, ___ U.S.

. , 42 L.Ed. Oct. 15,

1974) (No. 73-6848) / 4%

passim

United States v. Bowen, 500 F.2d

th Cir.) (en banc), cert.

ranted, _—i'U.S. ___—=«y,-—«42:«dL Ed.

5 L47 (Oct. 15, 1974)(No. 73-

6848) . . .... +... 6 © » » passim

United States v. Bowman, 487 F.2d

th Cir. 1973) ..... 22

United States v. Brignoni-Ponce,

F. 109 (9th Cir.) (en

banc), cert. granted, U.S.

; Led ta (Oct. 15,

1974) (No. 74-114). .......

United States v. Camacho-Davalos,

‘ 1382 (9th Cir. 1973) . 30

passim

United States v. Di Ree, 332 U.S. 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,

| us. , 4i E-Ed.2¢ 1138

(1974) (No. 73-820) ...... «3,22

United States v. Legato, 480 F.2d

th Cir. 1973), cert. den.,

414 U.S. 979. . ..... see 2

Page

United States v. Madueno-Astorga,

503 F.2d 820, (9th Cir. 19725 . 19

United States v. Mallides, 473

F.2d 859 (9th Cir. 1973). . . . 22,30,42

United States v. Martinez-

Miramontes, 494 F.2d 808 (9th

Gees Bees 8G .0 wb wt we ee 29

United States v. Morgan, 501 F.2d

1351 (9th Cir. 57%) ke eee 8

United States v. Nevarez-Alcantar,

8 (10th Cir. 1974) . 19

United States v. Ortiz, Cr. No.

-D. Cal>Dec. 5, 1973),

reversed, (unreported), (9th Cir. :

June 19, 1974), cért. granted,

U.S. L.Ed.2d ——)

WNo. 73- Or ra be peanin

United States v. Peltier, 500 F.2d

. r.) Cen banc), cert.

granted, U.S. : |

(No. 73-2000) * 28©« e@ © © e@ © @ ¢ passim

United States v. Bnilitps , 496 F.

2d 1395 (5th Cir. o 8

White v. Regester, 93 S.Ct. 2332

(1973). te tae ok ew. oe Oe

Yick Wo v. Hopkins, 118 U.S. 356

(1886) .

—

vii

Page

Federal Statues:

8 U.S.C. §1324(a) (1-4) 7

* 8 U.S.C. §1324(a) (2) 10,36,37

8 U.8.C. §1323:. °. 37

8-U.S.C. §1357(a) (1) 42,46,47

8 U.S.C. §1357(a) (3) 26,41,47

21 U.S.C. §844(a) (1) 12,48

42 U.S.C. §2000a, et seq. - 32

Title II, Civil Rights ct of

1964 ..... _* + 32

. Federal Regulations:

8 C.F.R. 287.1 . 26

Miscellaneous:

Automobile License Checks and the

~ Fourth Amendment, 60 VA.L.REV.

666 (19/74) . . ee oe ae ae ae 45

Area Search Warrant in Border

Zones: Almeida-Sanchez and

Camara, ALE . Ju) 1974) 35,38

.Warrantless Searches and Seizures

re) utomobiles, et

Hearings on H.R. 982 before

Subcommittee No.1 of the

House Committee on The

Judiciary, 93rd Cong., lst

Sess., 31-32 (1973). . 37

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 Wrjt of Certiorari to the United

States Court of Appeals for the

Ninth Circuit

. No. 73-2050

UNITED STATES OF AMFRICA,

sil 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,

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,

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

RUND, AMICUS CURIAE

3 .

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 tirrough

litigation and education. In its efforts

to assist the Mexican American community to

achieve its rights urder 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.

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 fbr believing either

that the automobile to be searched con-

tains illegal aliens, or that the auto-

mobile or its contents have recently

crossed an internationei 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 a law-

ful administrative search, the warrant-

less, unmconsented 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.

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?

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 searche (App. Pet. in No. 73-2050

2/ Hereinafter cited as (App. Pet. in No.

73-2050 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.

ee SS “Ly

ee LE LS AT OT

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 rea 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

ee ee

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 population 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 satisfied the Immi-

= 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.

4/ Hereinafter cited as.(App. in No. 73-

6848 at _.).

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, Sight 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. I974) (en banc), —

cert. granted, U.S. , 42 L.Ed. 2d 47

(i974). Nevertheless, they affirmed

Bowen's conviction since the search cf his

camper occurred prior to this Court's

decision on June 21, 1973 in Almeida-

Sanchez.

The Brignoni-Ponce Case (No. 74-114).

Respondent Brignoni-Ponce on March ll, 1973,

was driving north on Interstate Highway 5

near San Clemente, California, when his car

was stopped by agents of the United States

Border Patrol. Pispendix 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-

114 at _.).

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) (3) . Furthermore, the

court rejected the government's 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

cir. 1974) (@ 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

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 te reversal

of Brignoni-Ponce's conviction.

The United States Court of Appeals

for the Ninth Circuit reversed the ¢on-"

viction. United States v. Brignoni-Ponce,

499 F.2d 1109 (9th Cir. 1974) (en banc). The

Court of Appeals unanimously held that a

warrantless stop of a vehicle to inquire

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 purstted-and stopped by a

roving border patrol. The Border Patrol

officers then searched the trunk of the

automobile for concealed aliens. The stop

tcok 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

clothes in the back seat. Upon searching

the. car, the agents did not discover any

ot hee 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 (foornote omitted).

}

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 *o far

been limited to cases where there are at

least the paceyuence 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 j.,

our cases do not involve border stops or 4 y

searches. (Brief for Petitioner United ,

States in No. 73-2050 at 16.)

Almeida-Sanchez v. United States, 413

U.S. 266 (1973) Lis 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

—s

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’ é

Appeals for'the Ninth Circuit in Ortiz

(No; 73-2050), Brignoni-Ponce (No. 74-

114) and Peltier (No. - ), reversing

the respondent convictions, 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

peer. 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.

ARGUMENT

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 wa, 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 (Sth Cir. 1974). 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

——

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 iliegal 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

Searches and Seizures of Automobiles, 87

% a : is 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 pro!slem comparable in magnitude

to that faced voday by the Border Patrol.

The transpccation 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

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

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 searched

the interior of a camper truck and the trunk

of an automobile. In United States v.

Madueno-Astorga, 503 F.2d 820, 821 (Sth

Cir. 1974), ene 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.2d 1395 (5th Cir. 1974); United

States v. Nevarez-Alcantar, 495 F.2d 678

th Cir. ; United States v. Marti-

nez-Miramontes, 49 ; th Cir.

is phenomenum has led at least

one circuit court judge to comment in the