United States v. Martinez-Fuerte – Oral Argument – April 26, 1976

Media for United States v. Martinez-Fuerte

Audio Transcription for Opinion Announcement – July 06, 1976 in United States v. Martinez-Fuerte

del

Warren E. Burger:

We will hear arguments first this morning in 74-1560, United States against Martinez-Fuerte and 75-5387, a consolidated case.

Mr. Bennett you may proceed whenever you are ready.

Ballard Bennett:

Mr. Chief Justice and may it please the Court.

The case of Rodolfo Sifuentes in which I am court appointed counsel involved the question of whether the border patrol can stop a vehicle at a permanent checkpoint many miles from the border for the purposes of interrogating its occupant and visually searching the interior of the vehicle without cause or suspicion of any kind and also without a warrant of any nature.

Now the Martinez-Fuerte case involves the same question except in that case the checkpoint was operating under some nature of a warrant, a warrant of some kind.

However, the government may intend that they have a right to operate these checkpoints to make these stops and inflict these intrusions upon the people passing without a warrant and the fact that they did have a warrant or did not have a warrant is not controlling and that is their initial argument anyway.

Warren E. Burger:

Mr. Bennett as it goes you would agree that precisely at the border all of the things that we have done here could be done.

Ballard Bennett:

Yes Your Honor, there is no argument about that as far as I know Your Honor.

This could —

Warren E. Burger:

The only issue is the distance, is it not?

Ballard Bennett:

Yes sir.

My checkpoint was approximately 70 miles from the border and as I recall and the checkpoint that I have in my case is near Sarita, Texas and you probably do not know where Sarita, Texas is but it is in the Ranch country of South of Houston between Houston and Brownsville.

The San Clemente checkpoint is about 65 five miles from the border.

In between both the checkpoint and the border in both of those areas there large metropolitan establishment of course they have got San Diego and California and then the Lower Rio Grande Valley which what they call this are.

We have a strain of towns.

I believe we have got about 320,000 people that live in this area between the border itself and the checkpoint.

How large is Brownville itself?

Ballard Bennett:

Your Honor, I would guess Brownville to be about 80,000 people.

And that is south of the checkpoint here in your case?

Ballard Bennett:

Yes sir, it certainly is.

The Highway 77 on which the checkpoint is located originates in Brownville.

It goes from Brownsville through San Benito, through Harlingen, through Raymondville.

Now, the rest of the other valley cities are off back to the west and the roads constantly feed into this Highway 77.

Now when it gets to Raymondville, a few miles outside then it hits the Ranch country and the valley is not really a valley, it is an alluvial belt and they have a very great deal of agriculture, it is highly intense cultivation of raw crops.

But when you get in to this country where they have the checkpoint located, it is in the Ranch country.

The King Ranch is on both sides, but it is not right there where the checkpoint is but the King Ranch is broken up into various divisions.

And, there is one — several divisions to the north and there is at least one or two to the south. And, it is in a remote area.

Now, the valley is like a three-neck bottle and I am speaking of course of the Rio Grande Valley.

There are only three ways to get out of there by automobile going north.

William H. Rehnquist:

When you speak of the Valley Mr. Bennett, how far up the Rio Grande does it go?

Ballard Bennett:

Well, the area that I am talking about, this area where they have a lot of farming and a lot of people about 320,000 or so, it consist generally of four counties.

Three counties starting down at the mouth of the Rio Grande and going up northwest, the river runs in a northwest direction.

There would be three counties running along there and then one county sits on top of Cameron County, which is right at the coast.

William H. Rehnquist:

To the north of those.

Ballard Bennett:

North of there.

Now Highway 77 runs through Cameron County, it runs through Kennedy County, excuse me; one is at Willacy County which is the next county up.

And then, it goes on up into Kennedy County and this checkpoint is about 8/10 of the way up into Kennedy County.

Kennedy County is a huge county it has got about 1500 square miles in it.

So, there is really no connection between this checkpoint and the border.

The traffic coming by there comes out of the valley and there is no assurance or whatsoever that any of these cars have recently come across the border.

We maintain that there is no substantial extension between that stop by roving patrol and it stop at a checkpoint.

We feel that the reasoning of the Brignoni-Ponce case should be controlling and should be extended to the checkpoint stop.

It is our contention that these intrusions can be characterized and it is sort of a three-pronged attack.

First there would be the stop itself, now, at Sarita, every car coming down that road except people containing the local inhabitants are stopped.

Now, whether you call that taking a man to custody, a short of traditional arrest, or whether you call it a seizure or however you characterize it.

The fact remains that once you come within the site of that checkpoint then you were in the custody of the border patrol agent on duty.

Potter Stewart:

You are stopped and then what happens?

Then each car stopped except those whose occupants are recognized as local residents.

Ballard Bennett:

That is right.

Potter Stewart:

And then it is a stop and then what happens?

Ballard Bennett:

The first thing that happens is the agent approaches close enough to the car to be able to see down in that car.

He does that deliberately for that purpose.

And the third thing is an interrogation.

Potter Stewart:

Of whom, of the driver — and all the occupants?

Ballard Bennett:

All the occupants and the driver.

Now, this interrogation is open ended.

It can be simply “are you all United States citizens?”

“Yes, we are all United States citizens” or there is no regulations, it is completely in the discretions of the border patrol officer and he can ask you why, you say you are United States citizen, “where were you born?”

“Well, I was born in so and so.”

“Where are you living now?

Ballard Bennett:

How long have you lived there?

What is your occupation?

Where are you going?

Why are you going there?”

You see, when you are talking about a man’s citizenship, practical anything that he has done could be pertinent.

Potter Stewart:

Is there anything that record that shows the average length of the stop?

Ballard Bennett:

Not in my record.

Potter Stewart:

Not in your record.

Ballard Bennett:

The only people that would know that would be the border patrol and they did not offer —

Thurgood Marshall:

What happens if the people say it is none of your business?

Ballard Bennett:

Well, that is the point, Your Honor.

That stop, when you are stopped you are there and, I believe Mr. Justice White in the Terry case in his concurring opinion was talking about up in Cleveland when they ask you about a crime.

You do not have to answer, you can walk away.

Well, you do not walk away from these checkpoints.

These men are there, they have got guns.

You are there until they tell you, you can leave.

Thurgood Marshall:

There is nothing in the record that shows what happen if he did not answer?

Ballard Bennett:

If he did not —

Thurgood Marshall:

Could he be arrested?

Ballard Bennett:

Yes sir, I believe they would —

Thurgood Marshall:

For what?

What would they charge there?

Ballard Bennett:

They would just take you, bring you back and question you about your, why did you run through there or why did not you stop.

Thurgood Marshall:

I did not say he ran through, I said he stopped.

Ballard Bennett:

Yes sir.

Thurgood Marshall:

And the officer asked him are you an American citizen, he says it is none of your business.

Ballard Bennett:

Yes sir.

Thurgood Marshall:

What happens?

Ballard Bennett:

Well, I think he — the officer —

Thurgood Marshall:

You think?

Thurgood Marshall:

Do you know?

Ballard Bennett:

No sir.

I just rely on what I know is in common sense, the officer would tell him that it was his abundance and he would keep him there and interrogate him.

Now, whether he would eventually charge him with an offense, I do not know but I do know that he would not continue running down the road which he would probably what he wanted to do when he started out on his trip.

People coming out of the valley if they get far enough north and passed this checkpoint or going a substantial distance and it can be anticipated that they would like to get on their way, and when you are stopped you have the — you are facing the possibility of being detained for some time if they wanted to take you over to secondary and question.

That is what happened in the Sifuentes case.

Potter Stewart:

Does the record show how many cars or what percentage of the cars that are stopped or taken over to the secondary?

Ballard Bennett:

Your Honor not in my case it does.

Now, the same committee —

Potter Stewart:

I know there are not.

Ballard Bennett:

— is operated in somewhat different fashion some time.

Potter Stewart:

They make a one stop out of twenty?

Ballard Bennett:

Yes sir, that is correct.

Potter Stewart:

And, what were the facts in your case?

I am sure you are going to get to them.

Ballard Bennett:

Well, the facts in my case were that the defendant came up to this checkpoint at the early morning hours.

They stopped him on a routine basis.

Potter Stewart:

By early morning hours what time of the day?

Ballard Bennett:

Two, three, or four in the morning.

William H. Rehnquist:

About 3 a.m.

Ballard Bennett:

Yes.

Potter Stewart:

So this checkpoint operates 24 hours a day?

Ballard Bennett:

Yes sir, it does unless they have to close it down for fall or some reason, but it tries to operate 24 hours a day.

And, the officer walked out and walked up to the car and started talking with the driver.

As he got close to the car he looked down and in the — lying down on the front seat was one man and on the back seat lying down were three men.

He could not see these men at all until he got ride on it, but he had an understanding off to decide observing the traffic passing by.

He would not have seen the three men lying down on the seat.

Potter Stewart:

They were lying down as if asleep, I think the record shows.

Ballard Bennett:

Right, yes sir.

So he asked him — first of all he determined that the driver was an American citizen which he was.

Ballard Bennett:

The driver was may (Inaudible) in town I believe, he has lived there all his life.

And next, he asked these aliens and he did not get satisfactory response from them.

So he took the driver and the aliens to what they call secondary.

The aliens were taken into van which I believe is shown in the photograph that the government has attached into their brief and the driver was separated and taken off and interrogated at another place separate from the aliens.

Warren E. Burger:

In your statements a few minutes ago Mr. Bennett, you said something to the effect that there was nothing to indicate that this car have been recently in Mexico or had come from Mexico.

Now, suppose there were something to indicate that had probably just been in Mexico what effect would you say that would have?

Ballard Bennett:

Well sir, that is — when you say probably just been you mean he just come to record on the border —

Warren E. Burger:

No, but suppose on field or somewhere on the car was a sticker about some rodeo that had just been completed the day before with as an example.

Ballard Bennett:

Any sticker or anything like that could not be observed Your Honor until after the stop has been made.

If there was some indication and then they just —

Warren E. Burger:

Maybe that sticker was a bright orange which the toll guards could recognize at any distance of 100 feet more or less.

Ballard Bennett:

Well, I could answer in this way but I think that the government has a right to stop people if they have reasonable suspicion that they may have been committing —

Potter Stewart:

That was decided last term?

Ballard Bennett:

Yes sir.

I do not know, they were just coming from Mexico is very sufficient to–

Warren E. Burger:

Now, let me pursue that though.

Suppose on every car that came by the precise border, a great, large bunch, piece papers, because your hand would be pasted on the windshield and the law would require, regulations would require you to keep that on your car for 48 hours after you come across the border from Mexico, every car that pass the border, anything that unconstitutional about that?

Ballard Bennett:

No sir, I do not see anything unconstitutional in and off hand.

Warren E. Burger:

Could they then route these cars with the orange sticker on them for inspection, 65 miles north of the border?

Ballard Bennett:

Well, yes certainly I think they could put, they — the theory that you might be going on is that there is a continuation of a border search.

Now, of course, they have border searchers up in Saint Louis because that is better than having to stop and go through every thing, and what is the device of this checkpoint is and what we are complaining of is that they are stopping all of these people who do not have any relation to the problem that they are searching.

They are the ones that get the stack.

Warren E. Burger:

Let us get back to orange, bright orange sticker the color of this pen, with that bright orange sticker then you say as far as your concern there would be no constitutional barrier to stopping every car that carried that sticker.

Ballard Bennett:

Well now, you should for a period of time —

Warren E. Burger:

48 hours.

Ballard Bennett:

How would you — would they stop and look on the date of the sticker and put the time and they stop and look at that?

Warren E. Burger:

Yes, if after 48 hours the driver had not taken the trouble to take it off, which on my hypothetical regulation, you would be permitted to do.

Ballard Bennett:

I would say that that — I really often do not have seen any strong objection on constitutional ground.

It would be infinitely preferable to stopping everybody that happens to come by with this point and on the chance that they might have come from the border, which one of their indication that the, chances are that they probably did not come from the border, and I think that reasoning it on a consent basis if you want to cross the boarder you have to consent to this reasonable regulation.

I feel that a constitutional justification might be made in that common tips.

Lewis F. Powell, Jr.:

Mr. Bennett.

Ballard Bennett:

Yes sir.

Lewis F. Powell, Jr.:

In Texas does the state highway patrol system periodically undertake to check driver’s licenses?

Ballard Bennett:

Yes sir it does.

Lewis F. Powell, Jr.:

Does it stop people for that purpose?

Ballard Bennett:

Yes sir, it does.

Lewis F. Powell, Jr.:

Is that unconstitutional?

Ballard Bennett:

I do not necessarily think that it does, I have been through three of those in the last few years.

One of them was obviously reported to be a driver’s license check, they had state what you called state troopers, a department of public safety men standing on each side and they had apparently a checklist and they look and they ask you for your driver license.

They want to see your windshield work, they watch your lights.

The two others were obviously subdiffuses that they were using just to stop you, so they could look at you for some reason.

In fact in one of them I was fumbling around in my pocket book trying to find my driver’s license which I could never find when I need it, and the men said oh, well forget it and turned around and walked off and went back to the next car.

Now, I would say that is obviously unconstitutional but there is one big —

Lewis F. Powell, Jr.:

What is unconstitutional?

Ballard Bennett:

To stop you as a sugdiffused like I do not see —

Lewis F. Powell, Jr.:

The objective is legitimate.

Is that the point you made?

Ballard Bennett:

Yes, I think that a fairly legitimately checking your driver’s license and making an administrative check of your car, I see —

Lewis F. Powell, Jr.:

Is it your view that the objective in this case is illegitimate?

Ballard Bennett:

No but it is — the idea is to see if people have committed crimes and here is —

Lewis F. Powell, Jr.:

Is it lawful to drive in Texas without having a valid driver’s license?

Ballard Bennett:

Yes sir, it is and they will give you a ticket presumably if you do not have it and sometimes you will have it and do not have it on you and they will give you a ticket then you have to go show up and they will dismiss the charge.

Lewis F. Powell, Jr.:

What is the constitutional distinction?

Ballard Bennett:

The constitutional distinction as I say it Your Honor is these checkpoints have been here for now on a 20 or 30 years.

The people who lived down in the valley have been going thorough there every time that they want to leave this country.

And these drivers’ license things are done on a routine basis and they are not near as likely to be oppressive.

These checkpoints, as I said in a brief, they are (Inaudible) devices.

You are down there and you have got to go through down and let them look at you.

John Paul Stevens:

Mr. Bennett if in your case where you rummaged for your driver’s license and they were not really looking for driver’s licenses.

You said it is obviously unconstitutional, suppose that they had been inform that a bank robber was to be found in that area and they are just checking cars for the suspect, would that make it — would that be permissible or impermissible?

Ballard Bennett:

Yes surely, I think as I point out in my brief I think you can put up roadblocks in the case of an emergency, in an exigent situation.

I think society has that power to protect itself but that is not what we are talking about here.

John Paul Stevens:

Well, would it be an emergency if the crime had been committed months before but they just had reason to believe that perhaps the suspect was in the area?

Ballard Bennett:

No sir, I do not think so.

John Paul Stevens:

They cannot do it then?

Ballard Bennett:

I would say that they could not put up roadblocks just on a belief that they might save up some person —

John Paul Stevens:

But even on the belief they might find people without driver’s licenses?

Ballard Bennett:

Well, they can check in the driver’s license situation the only way they have of saying if you are driving without a driver’s license is to ask when you are driving if you have got a driver’s license, but that is not the only way they can act with the smugglers or the illegal agents Your Honor.

It is not part of your case here Mr. Bennett, is it, that these stops were pretextual, similar to your experiences as second time you —

Ballard Bennett:

No sir, it surely not part of my case because my man had aliens that were prosecuted and sentenced.

Well, in your case in any event they always find that was what they were probably looking for?

Ballard Bennett:

One of my points is that they could be used for other purposes.

But it is not your point that they are now being used for other purposes.

Ballard Bennett:

In this instance, no sir.

Lewis F. Powell, Jr.:

Mr. Bennett, you have mentioned emphasized as I understand your argument the intrusion of the stop.

Suppose instead of stopping your client he have been brought down to a speed let us say at five miles an hour and he also had detected the presence of these individuals lying on the floor of the back area.

Would that be a constitutional violation?

Ballard Bennett:

Well, that gets into a gray area, I would say, I do not think stopping a man and taking him to custody is a gray area but I feel that he is and there again it is just what the Court wants to let the federal officials how far they want to let them intrude and internalize.

Lewis F. Powell, Jr.:

Do you think it might draw a distinction between a stop and say slow down to —

Ballard Bennett:

I think you might Your Honor but —

Potter Stewart:

It is a slow down if I understand, my Brother Powell’s question.

In your case it would have eventuated ultimately in a stop and then an arrest.

Ballard Bennett:

That is right.

Potter Stewart:

A slow down and just go through little bit — (Voice Overlap)

Ballard Bennett:

Well why not put them in places where they are going to slow down anyway.

I have run across, I believe, cases where they were dealing in Oklahoma where they have an expressway that they have to stop and pay a toll on and they have a border patrol agent sitting there, watching them as they go through.

I do not think that is unconstitutional.

I have gone over my time and.

Thank you Court.

Warren E. Burger:

Very well Mr. Bennett.

Warren E. Burger:

Mr. Evans.

Mark L. Evans:

Mr. Chief Justice and may I please the court.

These consolidated cases involve four separate prosecutions in addition to the one involving Mr. Sifuentes involving a stop at the Sarita checkpoint in Texas.

There were three separate cases growing out of three stops at the San Clemente checkpoint which is the same checkpoint that was involved in last year’s Ortiz decision.

Like the Sarita checkpoint the San Clemente checkpoint is 60 or more miles from the — air miles from the border.

The San Clemente checkpoint as you will probably recall as on interstate five between San Diego and Los Angeles.

Each of them is operated essentially around the clock except where weather or manpower prohibits or in the case of San Clemente if the traffic gets too heavy to be controlled protectively.

And, in each of the cases here each of the four cases, illegal aliens were discovered riding in the passenger compartment of the vehicles that were stopped.

In one of the cases involved from the San Clemente checkpoint, the officers after discovering the illegal aliens in the passenger compartment searched the trunk of the automobile and found additional aliens.

The broad issue in all four of these cases is whether border patrol officers may lawfully stop north bound vehicles at a fix checkpoint in the border area for the limited purpose of inquiring about the citizenship and immigration status of the visible occupants in the absence of an articulated reasonable suspicion that the cars carrying aliens who maybe illegally in the country.

The Texas case and the California case is different two respects, first with respect to operating procedure.

The Sarita checkpoint as Mr. Bennett mentioned is customarily operated by stopping for this limited inquiry almost everyone who passes with the exception of local residents or other persons who the officer recognizes, and those persons are simply waived through.

At San Clemente by contrast a very small proportion of these passing vehicles were actually stopped for inquiry.

The figures at the time of the hearing and the Parker (ph) case which you remember was a consolidated proceeding in the Southern District of California concerning all the checkpoints there, estimated that roughly 3% of the vehicles then were being stopped.

The current figures including the figures under the warrant that I will mention in a moment during the period that is involved here San Clemente indicated the percentage was even smaller perhaps one-half of one percent.

At San Clemente unlike the other checkpoints in the border patrol’s network, the point officer that is the officer who stands observing traffic as it approaches does not ordinarily question the occupants of the vehicle because of the heavy traffic when a vehicle is to be stopped for inquiry as referred off the highway to a secondary area where other officers make the inquiries.

Sarita, like most of the checkpoints aside from San Clemente as operated differently, the officers on the point generally makes the stop, and ask any questions that he wants to ask right in there.

And the only time a person is referred over to side of the highway is if the suspicious circumstances warrant further inquiry.

The other difference aside from operating procedure is that the stops at San Clemente were authorized by a warrant issued by a federal magistrate upon showing of area type probable cause.

There is no warrant for the stops at the Sarita checkpoint.

In our view, these differences between the two checkpoints should not produce different results but they do account for somewhat different arguments addressed to the two checkpoints.

The analytical framework for these cases, we think is drawn from this Court’s decision last time in Brignoni-ponce which also involved border patrol stops for inquiry but which involves stops on roving patrol.

I think it is fair to say that all the parties agree that a checkpoint stop and an inquiry procedure is although a seizure under the Forth Amendment something like a street encounter involving a brief detention, shorter traditional arrest and that is therefore to be tested under the general reasonableness requirement of the Forth Amendment.

And I think it is also fair to say that the parties agree that the reasonableness, the test of the reasonableness depends upon a balance between the law and enforcement need to conduct the particular activity on the one hand and the nature and the scope of the intrusion on the other hand.

The Court in Brignoni-Ponce concluded on the basis of precisely such a balance that it was not reasonable to conduct roving patrol stops in the absence of articulable suspicion focused on the particular vehicle to be stopped.

And the real question here again, I think everyone agrees is whether the analysis in Brignoni-Ponce at least to a different result in this case.

Potter Stewart:

Last term in those two cases Brignoni-Ponce and what was the other, Ortiz or one (Inaudible) Ortiz?

It was settled that there could not be a stop even for interrogation by a roving patrol except upon reasonable suspicion.

Mark L. Evans:

That is correct.

Potter Stewart:

But further settled that there could not be a stop and search at a fixed checkpoint, is that correct?

Mark L. Evans:

That is without probable cause and —

Potter Stewart:

Without the ordinary probable cause or for a search or consents.

So, this is the soul remaining issue.

Mark L. Evans:

That is right.

Originally there were four elements to the border patrol’s traffic checking operation.

All of which grew out of the statute which authorized them to make stops and searches within a hundred miles from the border looking for aliens and that what —

And that through Almeida-Sanchez, Ortiz and Brignoni-Ponce, this one issue

Mark L. Evans:

This is what left and it is we think, at once the single most important aspect of the traffic checking program and also but far the least intrusive aspect.

In our view the Court’s analysis leads to a different result in this case because as I just indicated I think the stops involved in a checkpoint stopping and inquiry procedure is substantially less intrusive and substantially more essential to the effective control of illegal immigration.

As, we read the decision in Brignoni-Ponce, the decision turned essentially on two controlling considerations.

First the court perceive that the roving patrol authority sought, it would permit border patrol officers to engage in unlimited stops anywhere within a one hundred mile zone anywhere within a zone 100 miles from the Mexican border which itself is 2,000 miles long; day or night on city streets, dessert roads, and busy highways.

Every motorist anywhere within the zone would be potentially a subject to limitless interference.

Second, the court can put it in the nature of the illegal alien traffic was such that it tends to generate articulable grounds for identifying violators and that the requirement of reasonable suspicion for roving patrol stops will allow the government an adequate opportunity to carry out its objective of protecting the public interest.

The Court in short and so stated, was not convinced that the legitimate needs of law enforcement required the degree of interference with lawful traffic that we believe would be the occasion by the authority that is sought in Brignoni-Ponce.

Well, neither of these considerations is applicable here.

The authority sought for checkpoint officers would give them no roving mandate to move about this zone of one hundred miles from the border to stop any car that they happen to see.

Strategically, each of the checkpoints is located at — first of all it is a fixed location, it is not ordinarily mobile some of them do move from one to another location but essentially the same road and not — there is no roving aspect to it.

The officer has no discretion on its own to decide where cars to be stopped or (Inaudible).

There is no authority to pursue a car except one that goes through a checkpoint without stopping.

There is no interference here with city traffic, there is very little interference with community traffic.

Each of this checkpoints is placed strategically almost by a self-limiting process in a place where the least amount of interference with local traffic would be required in order to check what the border patrol considers to be an essential route to ensure that no — to try to ensure that none of the passing cars contain aliens who do not belonging the country.

Lewis F. Powell, Jr.:

Mr. Evans, who determines the location of the checkpoints?

Mark L. Evans:

By and large, they are determined by relatively high-level border patrol officials in the field.

There are nine sectors that the border patrol has in the southwest area and ordinarily the chief patrol agent of the sector will determine location of the checkpoint.

If it is a major checkpoint it is not established without consultation with higher officials, either in Washington or in the regional office.

Lewis F. Powell, Jr.:

Could you say how long in San Clemente checkpoint had been on operation?

Mark L. Evans:

I believe it has been in operation for at least 35 years.

It was not always exactly where it is, it was at a point — it was further, I think further south but it is been at its present location for somewhat shorter time, but there is always, in fact always been a checkpoint if that location since around 1940.

Thurgood Marshall:

Well, take one in Texas, if you get the checkpoint why a lot people go around it?

Mark L. Evans:

On other the roads?

Thurgood Marshall:

Yeah.

Mark L. Evans:

Well, because other roads are covered as well, at least that is the aim of the of the border patrol —

Thurgood Marshall:

Covered by, how?

Mark L. Evans:

By the checkpoints, by the checkpoints.

The aim is to cover — and this is one of the three major roads leading out of the border in that area.

Thurgood Marshall:

Here, the one that we are talking about the Texas one, was there checkpoint on each one of those three roads and there are only three roads out.

Mark L. Evans:

Well, there are essentially three roads out and there are checkpoints.

Thurgood Marshall:

On each one of the three?

Mark L. Evans:

The same is true, I should add of the California areas.

The San Clemente checkpoint is on the major interstate highway but there are also checkpoints on the routes that might be used to avoid the San Clemente checkpoint.

In short on this question of the scope of the discretion given the officers to initiate encounters, the degree of the potential interference with lawful traffic that would be occasioned by permitting these stops at checkpoints is substantially reduced over that, that the court thought would be involved in roving patrol situation.

It is true that the officer would retain discretion at the checkpoint particularly at checkpoints where the traffic is heavy as at San Clemente to select certain cars for the inquiry but there is no discretion as there was in Ortiz to select cars for search randomly.

Of course a car could be searched if probable cause developed but there is no authority claimed here to make that kind of invasion.

There is in effect no substantial invasion of privacy which is what the Court referred to in Ortiz is being involved in a search of a vehicle’s trunk.

Brignoni recognized that the intrusion occasioned by a stop and inquiry is minimal, it is modest.

What was significant in Brignoni was the extent of the potential interference of the lawful traffic and not the nature of the intrusion which is not trivial, it is certainly very limited.

Moreover, I should mention although I do not know if this is necessarily controlling but it adds to the nature of the kind of interference that is involved that I think most people would feel somewhat less frightened or less concerned about stopping at a regular checkpoint where their floodlights have slipped.

It is on a — usually on a fairly large highway, there are other people traveling through.

There is no one is being pulled over to the side of the road by a flashing red light from behind with the siren.

And, to a certain extent I think that minimizes the — it might otherwise be viewed to some peoples as the offensive aspect of the operation.

But even more important in our view is not the intrusiveness which we think — I think it is incontestable as relatively slight but the controlling consideration in our view is that the checkpoint officer unlike a roving patrol officer simply is seldom in a position because of the nature of the operation to observe a vehicle for a long enough period or close enough before a stop to see suspicious signs suggesting illegal activity.

A roving patrol officer can follow a vehicle for as long as he believed is necessary or to determine whether to make a stop on the basis of articulated suspicion.

But a checkpoint officer has only a brief second or two look at an oncoming car and the decision simply cannot, in most instances, be made that there something is suspicious about the car.

And I should mention, I think it is quite significant that our California respondents concede this in their brief.

They say that in a second or two available to an officer it is not likely that he will be able to find anything about a car that would rise the a level of reasonable suspicion.

Now, at most of these checkpoints, as I have mentioned, the stops are made on everybody.

At San Clemente there is a very strong effort to avoid interference with the many thousand of cars that pass through the checkpoint and the effort is made there to select out those who seem to be somehow well worthy of — excuse me — of further inquiry.

The highway is the main highway between San Diego and Los Angeles.

Mark L. Evans:

That is correct.

Two bigger cities in California.

Mark L. Evans:

That is right.

How well, what is it about midway?

Mark L. Evans:

It is about midway, and it is has been the Baca court found that it was at the point of lowest traffic volume anywhere on that road between the two cities.

But still very high traffic density compared to most highways.

Mark L. Evans:

Absolutely and by far the highest traffic density of any of the border patrol checkpoints.

The effort is made there to try to select out those that warrant inquiry.

It is not done on a random basis then?

Mark L. Evans:

That It is to a limited extent but the officers, by the nature of things, do not want to waste their time and do not want waste the time of travelers and their effort is to try to identify which cars for one reason or another looks suspicious to them.

Now, to stay that it does not mean that there necessarily —

There is a reasonable suspicion.

Mark L. Evans:

— that it may not rise to a reasonable suspicion that is right.

They are trained and many of them are very experienced and they tend to call the six sense.

I think in most instances it could be articulated.

But including of other things, the complexion I suppose of the driver.

Mark L. Evans:

I think it is necessary enters into it.

I do not think — the record shows in the Baca case that that is not a controlling consideration in any case but I think it would the front common sense to say that – if they are looking for illegal Mexican aliens.

They should ignore the facial features of the occupants of the vehicle.

But the effort is made to separate out the ones, in their experience, lead them to think maybe there is something wrong with that car.

Sometimes it is articulable sometimes may not be, I suspected the most instances if they were force to articulate, they can articulate it.

But first of all I am not sure that would rise to the level of reasonable suspicion, certainly it would not rise the level of reasonable suspicion as the Ninth Circuit has interpreted that phrase.

And there is a sense, I suppose, there is a certain amount of sixth sense that the officers claim to be exercising that they can just tell but they can just tell but they can not tell why they referred all this, it is part of we are wanted further inquiry.

And, I think it also should be said that although that randomness is placed less a part of these checkpoints just because of the volume traffic and there is a sense that there ought to be some risk to any even in the most well disguised operation.

There ought to be some risk of apprehension and detection there and to a certain extent I suppose there is a certain amount of randomness that goes into the stops and particularly if the traffic is light then they stop a higher proportion of the cars and even though they might not believe that the particular car they are stopping is suspicious.

Now at the other checkpoints as I have said the practice has been stopped virtually all the cars that come by are baring a little bit with the traffic and as I have said that anybody is recognizable as a local resident or someone who eventually travels the area is obviously not going to be stopped.

The point is that because of the nature of the checkpoint operation is just not, this is not a situation like it was in Brignoni, this is — if a reasonable suspicion requirement is imposed on checkpoint stops, it means that the government will not have an adequate ability to enforce the law at this checkpoints.

They will not be able to carry out the responsibilities and protect the public interest.

And I think then the lightly consequence of a reasonable suspicion requirement would be that the checkpoints will have to be closed out because they simply could not be operated in any effective way.

Now, one of the amicus brief suggest that the border patrol has not tried to using spotter vehicles on either side or spotters of some sort to alert checkpoint officer if something suspicious maybe coming up but I really wonder if that is less intrusive, I mean if you can picture a line of border patrol vehicles waiting a mile down the road from the checkpoint and falling into place behind each approaching vehicle and looking at it and seeing whether suspicious then alerting the officer to stop it.

It is seems to me that is much more intrusive than a brief stop with a question or two about the citizenship of the occupants than the risk to have a car riding along side of you for a mile, I think that would offend most people a lot more than a stop.

And, what is the magic of a stop, I do not know what it is, the ninth circuit has held itself but in opinion that I believe Judge Hufstedler (ph) that was on the panel that diverting a car slowing it down to a short for – to a slow speed is not a constitutional violation of any sort.

Mark L. Evans:

The name of that case is United States against Evans quite appropriately.

Potter Stewart:

What happened to that case?

Is that all — slow down or slow speed and went on?

Mark L. Evans:

What happened was it was one of these — it was a checkpoint like in Sarita except that it was set up so that the cars would come off slightly off the road and slightly and pass by the officer.

Potter Stewart:

At a slow rate of speed?

Mark L. Evans:

At a slow rate of speed, I mean they are told these signs generally say slow and there are traffic columns and he approached in this vehicle at a relatively slow rate of speed and the officer waved them on and as he went through the officer looked down and saw a human being were two lying on the floor board at the back seat.

He gave a chase and stopped the car and the defendants argument was, you had no right to be where you were when you saw these person lying on the floor of the car and the Court of Appeals said we hold and as the matter of the fact the Court of Appeals panel in this case reaffirmed the holding that there is no constitutional violation in diverting cars to a position where officers can see inside of them

Potter Stewart:

And there from what they see there might arise a reasonable suspicion.

Is that what the Ninth Circuit was holding?

Mark L. Evans:

Well that was probable cause probably but yes they said that might well rise to reasonable suspicion.

His argument was — he conceded we had sufficient cause to make the stop after the officer saw the person at the back seat, he argue that he was in the position that

Potter Stewart:

Or at least reasonable suspicion.

Mark L. Evans:

That is right.

Lewis F. Powell, Jr.:

Which Ninth Circuit case?

Potter Stewart:

Evans.

Mark L. Evans:

This is United States against Evans which cited in our brief and it is also cited in the opinion of the Court of Appeals.

Lewis F. Powell, Jr.:

In 507 F. 2nd?

Potter Stewart:

Yes.

Mark L. Evans:

Well, we conclude from all of these that for the reasons I have indicated that the stops at checkpoints ought to be permitted under the reasonableness test of the Fourth Amendment in the absence of an articulated particularized suspicion focused on the vehicle to be stopped.

Both the Fifth and the Tenth Circuits so held, the Ninth Circuits of course has ruled against us on this issue.

Potter Stewart:

And those would be the only three circuits involved, would they?

Mark L. Evans:

That is right.

Potter Stewart:

There are no checkpoints in the northern part of our country?

Mark L. Evans:

Well, there are no established fixed checkpoints that I know off.

I think there is some traffic checking that goes on in the Northern — at the Canadian border areas but —

Potter Stewart:

I know that of course the border there —

Mark L. Evans:

Well, I am talking about inland.

Now, there is some traffic checking inland too, although, so far as I know there is nothing approaching what goes on, on the —

Potter Stewart:

Well, these three circuits at a circuit.

Mark L. Evans:

That is right.

Mark L. Evans:

There are some decisions out of other circuits bearing on some of these issues.

There was a Second Circuit decision involving a check of a board by a border patrol officer of a bus coming from the Canadian border area where he found a person we took off the bus and —

Potter Stewart:

There was a petition for certiorari in that case here, what happened?

It is pending or?

Mark L. Evans:

If there was a petition I did not work on the opposition.

I do not remember generally if the petition is being filed.

We lost the case and I cannot see why anybody would petition certainly —

Potter Stewart:

Well, maybe I am thinking about another similar case.

Mark L. Evans:

Now, we recognized that the existence or nonexistence of a prior judicial judgment as to the reasonableness of a particular operation.

They will bear upon the reasonableness balance itself, although, we think that it is that the nature of the stops are sufficiently non-intrusive and the need for them is sufficiently great.

But, there is no need to worry about the non-existence or existence of a warrant.

We recognized this relevance and our view to start with is that there is no need for a warrant in the context of fix checkpoints.

First because the intrusion is so relatively innocuous that the procedure just does not present the kind of dangers that the warrant procedures are designed to protect against.

This is not a search at least not without probable cause.

There is no electronic eavesdropping here, I mean this relatively trivial.

I think Mr. Justice Stewart, you asked earlier if there was anything in the record indicate the average length of the stops.

There is something in the record that the average length of the stops at the San Clemente checkpoint.

Potter Stewart:

I know that.

Mark L. Evans:

That was three to five minutes that which appears in the application for the warrant, although there is nothing in the record to so indicate that were told that the checks – the stops at most of the checkpoints consume total less than a minute but as a way of gauging how long for routine inquires no longer than about five seconds per occupant.

So, if you take the time that he sees the checkpoint from the time he leaves, if there is even three or four people in the car that is likely to be less than a minute unless something suspicious arises that warrants further investigation.

Potter Stewart:

I am not sure I understood that statistical data and those statistical data in the San Clemente record, because you keep saying repeating in your briefs that the stop here involves no more intrusion and certainly no more time than a stop for a traffic light or a stop sign which is we know as matter of generally seconds less than a minute.

And, yet the indication is that the average stop is from three to five minutes which is considerably longer, but do I understand that three to five minute trade is of those that are put over into called secondary.

Mark L. Evans:

That is right.

Now the ones who are referred off the highway at San Clemente because of the referral of the highway take a little longer than the other checkpoints do.

It may take three to five minutes of the checkpoints if someone is for some reason gives rise to suspicion but at San Clemente the initial inquiries made by an officer at the secondary area and so there is a necessary referral and it takes a little bit longer but it not a very long delay.

Potter Stewart:

So it is substantially longer than a stop sign or a traffic light?

Mark L. Evans:

Well, it is substantially longer, I do not think it substantially more intrusive in any event.

Potter Stewart:

I was inquiring about the length of this.

Mark L. Evans:

Yes, it is longer than at San Clemente but I should indicate that of the 99 or more percent of the cars are not stopped at San Clemente inquiry at least to some dispute and it is continued from the last terms cases about whether the vehicles are actually stopped.

We are told that they are waived through unless they are going to be referred over unless they are curious sometimes they will stop at the stop sign even though the officers is waving them on the stop but even if they were stopped their stop is instantaneous.

Mark L. Evans:

I mean the District Court in Baca pleading that is not even as a traffic light stop.

Potter Stewart:

That is more like a toll booth stop.

Mark L. Evans:

Yes, if that, not only they are going to extract money from you at the checkpoint.

Potter Stewart:

No, but again like the time —

Mark L. Evans:

Yes.

Well, second reason why we think warrants would be unnecessary in the context of a checkpoint stops is that the stationary nature and regularized procedure of the operation makes it in a sense unnecessary to have repeated renewals of warrants for one particular checkpoint, which is the procedure that was followed for sometime at San Clemente and many other checkpoints in the Ninth Circuit after the Ninth Circuit rule that we cannot operate them without warrants.

Unlike a roving patrol which in case I assume would be essentially unique.

A checkpoint does not change substantially from day to day even from year to year and in our view judicial scrutiny can most appropriately awake on occasion an adversary criminal proceeding where the reasonableness of its operation can be determine.

And once determined one way or the other, there is an opportunity for appeal by the either side and that is the ultimate resolution of that checkpoint would stand.

I mean that would be the end of anything you know that checkpoint was reasonable without concluding other people from challenging it or you would know that it was unreasonable in which case the government would have no choice but to close it down.

But it is a single spot it is not a unique special situation requiring the advance approval of a judge because each time it becomes the judge for approval, and the judge says (Inaudible) this last week, no reason to go through this all again.

I think that minimizes at least the need for a warrant of the kind that Mr. Justice Powell suggested in the concurring opinion on Almeida-Sanchez.

Potter Stewart:

Although, in this Sifuentes there was a warrant?

Mark L. Evans:

No, and Sifuentes was a Texas case and no warrant.

Potter Stewart:

Martinez-Fuerte, the current case?

Mark L. Evans:

That is correct.

There was a warrant and as I say the warrants in Ninth Circuit were obtained because the Ninth Circuit ruled, we could not operate the checkpoints without warrants and so we began seeking warrants and they were granted, generally without to much difficulty —

Potter Stewart:

Then you still lost in the Ninth Circuit.

Mark L. Evans:

That is right.

Moreover the warrant procedure in the context of the checkpoints we think has substantial problems of workability, and again in this very central aspect of our case I think the California respondents — although they are not — well the California respondents in effect concede that the beyond workable or at least it would be very difficult.

They say there is a price to be paid but I think it enters into the question whether indeed it should be paid.

First of all there is a problem of coordination, all of these checkpoints are — almost all of these checkpoints are correlated with others that are nearby as I was responding to Mr. Justice Marshall before.

A checkpoint does not stand on its own it is coordinated with other checkpoints in the area so that there is no easy way for a personal intent on violating the immigration laws of avoiding detection.

It does not always work but that is the aim and if one magistrate says the checkpoint A is okay but the other Magistrate says checkpoint B is no good well that is just like having no checkpoint at all because everybody is going to up where checkpoint B is located.

The second thing is the need for flexibility.

The checkpoints we have here do not face this problem because these are permanent checkpoint in a sense they are operated roughly around the clock all of year and there is no question about their operation except where weather is bad or manpower is short.

But there are other checkpoints that can not be operated all the time or there is no need to operate them all the time and experience has shown that border patrol agents, the supervisory officials need just have that flexibility to establish a checkpoint that perhaps has not been used regularly.

But the effect of the warrant requirement because you have to know well in advance whether you are going to use it, maybe to limit the use of checkpoints only the major ones which would in a long run serve very little purpose because the secondary routes would then become flooded.

And third, I think I mentioned just a second ago in this context, there is no established procedure for appellant review over a denial of a warrant and the government would have little recourse if a magistrate or judge refused to grant a warrant and that happened to us during the period of the warrant procedure in the ninth circuit.

We had several warrants denied and we were unable to do anything about the checkpoint have to be shut down.

Mark L. Evans:

Of course if the ruling would occur in an adversary proceeding there will be no question about review.

Well, if we are wrong about the need for a warrant and we need one that would affect only the Texas case.

We can only operate these checkpoints with warrants the Texas case is looser but the San Clemente stops were authorized in advanced by a warrant.

Precisely I think of the sort that was envisioned by Mr. Justice Powell’s concurring opinion on Almeida Sanchez.

We think it was superfluous, but there was a prior judicial approval of the very operation that led to the stops and inquiries and subsequent arrest in these cases in California.

And, we think this represents an additional basis for concluding the stops here was reasonable.

The Court of Appeals on the Ninth Circuit in this case and our California respondents would give the warrant no weight because in their view it is unlawfully broad, but their argument has that kind of catch-22 flavor about it because they argue on the one hand that you need reasonable suspicion to make a stop and if you do not have reasonable suspicion then it sis essential that you have a warrant?

But then they say, in order to get a warrant you have to have probable cause.

What this is really saying I think is as the Court stated in Wyman against James, a warrant is just out of place here but if we have lost that point the warrant is in place here, this is the only kind of warrant that can be issued.

It requires an analysis and a weighing of the basic agency decision to conduct the checkpoint.

Now, Mr. Justice Powell’s suggestion in this concurring opinion on Almeida-Sanchez was for a warrant that would authorize roving patrol searches over a precisely the kind of area that was involved in Brignoni-Ponce although a magistrate would in advance limit the area.

And the four dissenting justices although disagreeing as to the need for the warrant agreed that would be consistent with Fourth Amendment requirements.

This warrant is substantially more limited authorizing only stops and not searches and limited only to a specific location and not to any roving extended aspects.

It is true that the focus of a warrant of this sort is necessarily less precise than it would be the case for more conventional crime but the special problems of enforcement in this respect is they are detailed to Mr. Justice Powell’s concurring opinion.

We think justifies an unconventional solution and in this context I think we can, one can say that a warrant is sufficiently precise if it identifies the place where the operation is to take place, remembering it all times here that we are talking about stops and brief inquiries.

That it identifies the purpose and the scope of the operation.

And then, it is narrowly as it is feasible it limits the class of vehicles to be subjected to it in this case, the class of northbound vehicles in interstate state five which is not a very narrow class, but it is as narrow as it is feasible.

In any event —

Potter Stewart:

There are several million people a year I suppose?

Mark L. Evans:

That is right.

The Court of Appeals —

Potter Stewart:

Maybe some on the same people, is it not?

Mark L. Evans:

That is right.

The Court of Appeals used the figure of 10 million which I think is an accurate reflection of the number of vehicles that pass that point annually although the checkpoint is operated only about 60% of the time or perhaps a little bit less and the figures would indicate that only something less than half of that actually pass through during a period where the checkpoint is in operation.

Potter Stewart:

Pretty close to it, general law in it, is it not?

Mark L. Evans:

Well, it is a close in the sense that it is somewhat general, but it is not close in the sense of what is being authorized.

There is no search being authorized here, no books and papers are being rummaged through.

This is a very limited operation as I indicated there.

Most of the people are not even affected substantially; they just go right through.

Even if they do make a brief pleading stop and the small proportions who are subjected to a stop at secondary for inquiry are not subjected any substantial invasion to their privacy.

Harry A. Blackmun:

Why is San Clemente not operated 24 hours a day?

Mark L. Evans:

It ordinarily is but there are manpower shortages or whatever that sometimes preclude its operation around the clock.

I think if there were no manpower problems and if the weather stayed good at all times and the traffic never got heavy as it does frequently at that point they would operate around the clock.

They would like too, that is their aim but there are various reasons why it can not always be done.

Harry A. Blackmun:

Well, it seems to me it is one of the most important ones on the structure and —

Mark L. Evans:

Well it is but you see to a certain extent Mr. Justice Blackmun it is deterrent and shutting it down for a few hours is not going to decrease substantially its deterrent value, because the persons who are intend to travel that way illegally do not know necessarily when it is down.

Now, I think a brief reflects some of the evidence that was developed in the consolidated proceeding in the Southern District of California that there were scouting operation, there were what the Court have held load houses where illegal aliens are kept until the check — until the scout is told, has called back and say the checkpoint is down.

But there are in a ways of meeting that problem too and they would frequently open the checkpoint unexpectedly after shutting it down and catch as the record indicates an enormous number of people who are trying to get through at that point.

It has been referred to by the border patrol people that I have talked to, it is really a game.

I mean it is like a chess game, they are trying to out guest their adversary in effect.

Warren E. Burger:

Is it reasonable to assume that you agree with Mr. Bennett that if there is something to indicate the car has just come from Mexico that there is suspicion that would support a stop?

Mark L. Evans:

Well, I think if there was a reason to believe that a vehicle had just crossed the border.

You have what would amount to a functional equivalent of a border search.

The example that you are posing to Mr. Bennett may not be a realistic one Mr. Chief Justice because if the car came through at a point where officers could put a sticker on it, it has been subjected to an inspection.

We do not have any problem with people to come through whether they can be inspected that that car has been subjected to the scrutiny that ordinarily goes with coming into this country.

It is the people, it is the cars that do not come through, now those cars are usually runs on this side of the border and their left in remote areas where people who cross the border in remote areas to drive away and those cars —

Warren E. Burger:

Some people cross the border on foot.

Mark L. Evans:

Illegally, that is right, pedestrially (ph).

Do you know, if we were in position to put a sticker on the car we would need to search it later, because we already inspected it.

Warren E. Burger:

Well, one of the factors is time.

There was a period shown by one of the records in one of the cases here where they stopped every car crossing the border and it became an international incident with Mexico protesting.

Mark L. Evans:

That is right.

Warren E. Burger:

And employers on the American side protest here.

Mark L. Evans:

I think in that event as I say if that were a problem, if that were to be done, if it were clear, there was as the Ninth Circuit rules themselves hold.

If there is a reasonable certainty that you got a personal or vehicle containing things or persons who have just crossed the border you can conduct what amounts to a border search wherever you find them.

Warren E. Burger:

Does this record anywhere show any current estimate as to the number of illegal aliens in the country.

Some of your prior cases have reflected the ten or eleven million —

Mark L. Evans:

This record is little stale at this point.

The Baca hearing at the District Court in California, the estimate was somewhat less than a million but their recent estimates that have been given in testimony by Commissioner Chapman of the Immigration Nationalization Service to Congress has indicated that the current estimate is closer to six to eight million.

And as you indicate there have been various estimates and some put as high as twelve million of some of those figures are reflected in a report that the House Judiciary Committee made recently with respect to legislation dealing with making it the crime to knowingly higher illegal aliens.

Mark L. Evans:

I would like to reserve if I may, the balance of my time.

Warren E. Burger:

Very well Mr. Evans.

Mr. Sevilla?

Charles M. Sevilla:

Mr. Chief Justice and may it please the Court.

In a position of respondent I would like to reply to some of the points made by Mr. Evans during his argument.

First, I think a brief statement as to what happens at the checkpoint again is in order.

Last year, Mr. Evans and I disagreed on this point and we disagree again.

I think if one looks at the photograph provided by the government in the reply brief to Ortiz you can see what the on coming traffic faces at the San Clemente checkpoint that is two armed law enforcement officers standing in the middle of the highway in front of stop sign which says clearly stop and overhead there are two additional signs saying stop.

This is what is called the primary stop, what the Baca Court said was the fleeting stop and it is this where the officer without any guideline regulation or rule makes a decision whether or not he is going to let that individual whom he stopped and cease momentarily pass on his passage northward or to be referred to the secondary area for the interrogation as to the right of the individuals to be in the United States.

Potter Stewart:

Now, does that happen to every car?

Charles M. Sevilla:

That happens to every car when the checkpoint is running.

The point officer makes a stop or the functional equivalent of a stop and then decides whether or not he is going to allow that person to go forward.

Potter Stewart:

And he does that with every car?

Charles M. Sevilla:

With every car.

Potter Stewart:

And that is the so-called fleeting stop.

Charles M. Sevilla:

That is the fleeting stop, then he selects–

Potter Stewart:

About one out of twenty?

Charles M. Sevilla:

Whatever the figure is, whatever car he wants to have further inspected.

The car is referred to the secondary area off the road and during this time between 60 — during the average time of the secondary stop between 60 and 100 other cars will be waived through and they will look to the right and see the one victim being interrogated by the law enforcement officers as to the right to be here.

That stop as Mr. Evans indicated is approximately three to five minutes, there are approximately twelve hundred cars going through this checkpoint every hour and therefore there if you break it down about a —

Thurgood Marshall:

What is the problem if he stops and he sees two people lying down and hidden on the floor?

What problem is with that?

Charles M. Sevilla:

With the stop the initial intrusion without any factual basis.

Thurgood Marshall:

No, after he stops and he sees that certainly there is no complaint about him going to the secondary area after that is a —

Charles M. Sevilla:

If you justify, if you can justify the initial intrusion but it seems to me the Fourth Amendment, requires the factual basis for the stop.

Thurgood Marshall:

If you were talking about just being rolled on the side but once he does stop them, I mean once he sees illegal aliens or what appeared to be illegal aliens or for some reason by lying down on the floor and send them on secondary, the only complaint there is the stop.

Charles M. Sevilla:

Yes.

I mean, without a factual basis to allow the point officer to be in the position to see that I would submit that is arbitrary capricious and unconstitutional.

The purpose of the amendment is to have a factual predicate for a seizure and without factual predicate for the seizure it seems to me it would be unjustified to stop a person who is going fifty five miles an hour on an interstate highway 66 miles north of the border without any connection to the border at all.

Thurgood Marshall:

But you could stop him for a red light.

Charles M. Sevilla:

Yes, I know the government has alluded that this is the equivalent of a red light.

Well, at a red light you do not have armed law enforcement officers inspecting your physiognomy, interior of your car and deciding whether or not they want to refer —

Thurgood Marshall:

But he could.

Charles M. Sevilla:

They could.

Thurgood Marshall:

A police officer could stand at the stop sign and look in to your car and it will be nothing real wrong with it.

Charles M. Sevilla:

I agree, I agree absolutely.

Thurgood Marshall:

In this all contraband he could operate accordingly, could not he?

Charles M. Sevilla:

That is correct but that is not what is happening.

Thurgood Marshall:

Which is to lock you up?

Charles M. Sevilla:

That is not what is happening in these cases and I would submit that the whole purpose of the stop procedure is to allow the officers to look the individuals to seize them momentarily and make a decision as to whether they are going to allow the person free passage or —

Thurgood Marshall:

The only point is the stop —

Charles M. Sevilla:

The only point is the stop —

Thurgood Marshall:

— that you are objecting to.

Charles M. Sevilla:

Well, that is the beginning of the whole intrusion.

The stop — I objected the initial stop and of course we would perforce object to the intrusion that follows being referred off the highway and interrogated for three to five minutes but I would object to both.

Thurgood Marshall:

You object to the guard looking in the car, do you?

Charles M. Sevilla:

At a stop sign somewhere in the city any officer can look at traffic just as any citizen can but they cannot put up a road block to stop all north bound traffic 66 miles north to the boarder and above 19 communities and some two million inhabitants just to stop people to see if they look like citizens or local residents.

After all, there are a lot of legal citizens and residents of brown skin who have a right to proceed northward, and if we are talking about the right to have fleeting stop what is going to be the factor that the officer grasps on to decide whether to waive someone to secondary, it is going to be a race.

Thurgood Marshall:

When you see somebody laying down in the back of the car?

Charles M. Sevilla:

Well, if he can see that, but the more typical case is just going to be the random arbitrary decision to refer someone —

Thurgood Marshall:

In this case that is what he did see, did not he?

Charles M. Sevilla:

Not in my case, no, there is no record on what he saw.

Thurgood Marshall:

In the Texas case he saw three of them.

Charles M. Sevilla:

Laying down after the initial stop, correct.

Thurgood Marshall:

Well, he had to do something then, did he not?

Charles M. Sevilla:

Well, it may have allowed for a further investigation but that is not the factors in my case and again I would do some hard back to my point that without a factual predicate under Brignoni-Ponce there is no basis for stopping an individual who is proceeding away from the border.

Warren E. Burger:

Where was the illegal passenger in your case?

Charles M. Sevilla:

There were two women and they are seated up right in the passenger compartment.

Lewis F. Powell, Jr.:

Mr. Sevilla, I take if from what you have said, if your argument would be the same if you represented the non-Mexican who had been subjected only to the fleeting stop.

Charles M. Sevilla:

Oh, yes, yes, but the point is that —

Potter Stewart:

But he probably would not be in court?

Charles M. Sevilla:

He probably would not.

The names of these cases I think tell something about what goes on at the checkpoint with Almeida-Sanchez.

Lewis F. Powell, Jr.:

I understand that but the answer to my question is that if you represented a non-Mexican who had been stopped for five seconds, you would make the same constitutional argument.

Charles M. Sevilla:

Yes, but there is more to it, if I was representing a non-Mexican individual.

He would not be just stopped at the primary point he would be waved off the road and subjected to interrogations.

Lewis F. Powell, Jr.:

No you — perhaps I have not stated the question correctly.

I am assuming a case in which the only intrusion to use you with is a five seconds detention then you waved on, this is your client, he is a non-Mexican, he was waved on, he was going 60 miles an hour as you said, he was brought to the stop for five seconds, he asked you to represent him.

Would you make the same argument you are making here today?

Charles M. Sevilla:

Constitutionally I would make the same argument practically I would take the case.

Potter Stewart:

Well what kind of case would you have?

Charles M. Sevilla:

What is that?

Potter Stewart:

All you would have is a plaintiff’s case.

Charles M. Sevilla:

That is all we have and that is the whole point of the Fourth Amendment is to protect those intrusions so these people do not have to sue the government for a five second stop.

There is no forum unless there is a factual predicate upon which an officer bases his decision.

Lewis F. Powell, Jr.:

I understand that but you are saying in fact that the constitutional intrusion is that initial five second stop that gives out officer an opportunity to take a look.

Charles M. Sevilla:

That is the beginning that is the constitutional intrusion.

The facts of our case are of course more aggravated than that but that is the beginning of the intrusion certainly.

Lewis F. Powell, Jr.:

I understand.

Potter Stewart:

So, you would have a plaintiff’s case under Beavins?

Charles M. Sevilla:

We would have a plaintiff’s case but as we stated in Ortiz to this court we quoted in the Amsterdam’s article, there is no lawyer in the world that would take a case like that and that is why the Fourth Amendment require some protection for the innocent citizenry who travels north ward in the California.

No one is going to take a suit like that, we have to have a reasonable basis, a factual predicate for the actions of the officers.

Warren E. Burger:

Counsel you should read some the petitions for certiorari in this Court and you would find that your statement is not supportive?

Charles M. Sevilla:

I hardly written a few, Your Honor.[Laughing]

I think just to think that no lawyer in the world who would take a case like that is something broad.

Charles M. Sevilla:

Well, if it was a temporary restraining order to prevent the officers from doing that in a form of a class action we have a case.

Suppose the client wanted you to bring 1983 damage against the officer for delaying him —

Charles M. Sevilla:

That is what I said.

Right.

Charles M. Sevilla:

Right.

You would not take the case?

Charles M. Sevilla:

As a practical matter he would have a claim but it would be de minimis unless it was a class action of course and then they could hand out $5 bills to everyone they stopped.

John Paul Stevens:

I have two questions if I may very briefly. As first, as I understand your theory it applies to just the slow down when we talked about a stop that even they just slow them down at 10 miles an hour to look in the car without any reasons for separating the out there–

Charles M. Sevilla:

Yeah, that is a lesser intrusion it is still an intrusion without a factual basis.

John Paul Stevens:

But why is it lesser, they look in the windows both times whether they stop or not, I mean you do not rely on the conversation aspect of the stop it is just believe that —

Charles M. Sevilla:

That is an extension of the intrusions.

John Paul Stevens:

So, they are slowing down slow enough to look in as the same as a stop to look at?

Under your theory —

Charles M. Sevilla:

Basically yes.

John Paul Stevens:

And under in your theory do I correctly conclude that the random stop that Mr. Bennett discussed to ask if there were a driver’s license in the operator’s possession to be equally invalid.

Charles M. Sevilla:

Absolutely not, that is not the case here at all.

What is the difference?

Charles M. Sevilla:

Well, as the court pointed out in Brignoni-Ponce roving patrol officers do not have any thing to deal with regulating highway usage.

And also the only way you can enforce the law with respect traffic safety and individual carrying a license is to stop the individual on the road and see if they have a driver’s license.

There are numerous alternatives to deterrent or apprehending illegal aliens in this country once they have intruded into the interior of this country.

So there are number of alternatives to the police power of a state regulating highway usage and safety which are not analogies by any means to this case and as the Court said to Brignoni that is not an issue in this border patrol stop cases.

That is not the issue.

John Paul Stevens:

Now, your statement just now as once they have intruded, so you want to give them the first bait.

Are there alternatives to keep the mouth in the first place?

Charles M. Sevilla:

Yes.

Well, as the Baca hearing show there has to be some commitment by Congress to solving this problem.

The government attorneys make a very persuasive pitch to the courts to solve the problem and as Justice White included the courts cannot solve the problem alone.

We need some help from a legislative branch.

For one thing in the Baca hearing, and as you will see in our brief there are only 30 people, 30 border patrol man on a typical day shift covering the entire California Mexican border.

30 people for about a 125 to a 140 miles of border.

That is an impossible situation they have not got enough man to respond to their sensor alerts on the border.

They have not got enough money to repair the fences that are down in the high smuggling areas.

They cannot even replace fences.

One of the agents, testify in the Baca hearings is that the appropriations to get the fences repaired have been stricken in Congress every year.

And of course the major deterrent even as the border patrol officials can see the major deterrent is going to be the pass legislation to cut off the magnet for the illegal alien entering this country, and that is employment.

Charles M. Sevilla:

In this Court cannot legislate that legislation, it has to come from Congress, and if they are concerned about the problem enough to solve it, I do not think that we should dilute the protections of the Fourth Amendment to solve a law enforcement problem which congress has control over but has not deemed fit at this point at least to try to solve it.

And, I think unless they go to that alternative we should not take the lowest constitutional role to solve the problem as Justice, Judge Oaks has said in the Second Circuit.

A border patrol stop case in the United State versus Barbera.

So there are other circuits also that have looked at this problem and you know the only link of the written opinions which rule on this issue are the ones that hold up the Fourth Amendment protections applied because those are the only ones that can be written with — that are easy to write.

The other ones are one line opinion saying it appears reasonable.

The stop is not reasonable without a factual predicate giving the officers a reasonable suspicion to believe that illegal activity as a flit and that is the language directly out of Terry versus Ohio where reasonable was defined.

The only way that we can take the factual predicate away is if we are in a purely administrative atmosphere such as Cameron this Court held in Almeida-Sanchez that the administrative analogy does not apply and it does not apply here either where in the same situation.

(Inaudible) employment legislations?

Charles M. Sevilla:

Well, as I understand it Senator McClellan who is the head of Immigration Subcommittee in the Senate has decided to hold the first meeting of this subcommittee in seven years to consider the Rodino Bill or Rodino type bill.

The Rodino Bill has passed the House several times as I understand it.

It has never been brought to the floor of the Senate.

And as I understand it and I read in the paper about a month or two ago that the Senator McClellan has decided to call a meeting of this subcommittee, and I think that is where the answer lies.

No matter what the decision this Court makes in these cases, the illegal alien problem is not going to go away.

When border patrol powers were in full flower the problem was as great as it is today and I made an estimate in our brief that up to 20% of Mexico is currently residing illegally in this country, if you take, accepting the border patrol’s figures.

That of course came about with border patrol powers in full flower, it is an ineffective deterrent.

They can get through — San Clemente for example is only open 70% of the time and 95% of the alien traversing through that checkpoint get through.

It is, San Clemente is in effective deterrent as are all border patrol checkpoint.

And the other point, the irony of this case is the Brignoni-Ponce involved the same area the San Clemente checkpoint.

In that case, rather than standing in the middle of the highway the officer of course proceeded in a car perpendicular to the roadway saw Mr. Brignoni, and thought he was a Mexican looking individual pulled out and stopped him.

The only difference in this case is that the officer who is standing in the middle of the road and I cannot believe that that difference is of constitutional significance when people’s right through at stake and especially when the discretion which is unbridled at this point for a point officer to decide to take people off the road is so subject to possible abuse because we are dealing with sensitive factors such as the racial appearance of an individual and in Southern California we have a substantial Mexican American population who are validly residing here.

For the government to say well the point officer only stops or lets through the local inhabitant, it is unrealistic to believe that a point officer is going to know the 1.5 million residents who are in southern — south of the San Clemente checkpoint.

Warren E. Burger:

When you referred to something about this committee which had not met for seven years and it is now going to meet.

Is that to consider the legislation that relates to making it a criminal act to employ an illegal alien knowingly?

Charles M. Sevilla:

That is my understanding, yes.

Warren E. Burger:

That has not anything to do with the fences on the other deficiencies in our boarder situation?

Charles M. Sevilla:

No but that is certainly something for a Congress to act upon if they want to solve the problem.

If the government considers it as a problem as I said before it seems to me that they should be acting upon it rather than the government attorneys coming to the courts to ask for a dilution of traditional Fourth Amendment protections.

And if I might say something about the warrants as my time is just about out.

This is a warrant perhaps not against the entire American nation but it is a warrant against the entire population of Southern California.

The warrant was unlimited, it was perpetual, it did not even attempt to meet Justice Powell’s four factors in Almeida-Sanchez for the functional equivalent of probable cause, because it could not, 99.9 % of the vehicles, not the people but vehicles going to the San Clemente checkpoint contains no aliens at all, no illegal aliens.

Charles M. Sevilla:

And of course the figure would be higher for the number of people traversing that checkpoint.

That in no way could be deemed the functional equivalent or probable cause.

Second, there is no nexus to the border.

There is, if we are talking about the equation for functional equivalency which was not even attempted to be met in this warrant, there is no nexus to the border.

66 miles from the border, and as we point out in our brief, we attached a little appendix here to show where the border is at the bottom and some 66 miles north of the border up near the San Clemente area is the checkpoint along I5 the major route north for Southern Californians and it is above some 19 major communities including San Diego and ocean side.

So, this warrant as the court below indicated does not even approach to Justice Powell’s criteria, the magistrate merely concluded there was cause to believe that massive immigration violation were taking place without even citing a particular statute.

He just said, there was probable cause to believe that violations of Title VII were taking place, and we say, consider a warrant which indicated that there was probable cause to believe that Title 18 violations were taking place in an area.

It is much too wide it is not the type of warrant that is near for a location, near the border to be form as a stop gap for areas where there is no border patrol port of entry where people can be checked.

In our brief we do include the alternative because the government pitches its case on the need — we point out that there are numerous alternatives the border patrol has about ten other programs other than traffic checking.

They include farm and ranch checking, airport terminal checking, industrial checking.

I might — we point out in our brief that in 20 dyas in Los Angeles the border patrol captured 12,000 illegal aliens in 20 days, 70 agents in a 20-day working period captured 12,000 in Los Angeles area just walking along the street and asking for their identification.

That is a much more efficient way of doing things than stopping the ingress of the entire Southern California population into the Los Angeles area and points northward.

Potter Stewart:

Do you think that is a constitutional permissible intrusion walking down the street and stopping any passerby and asking for his identification?

Is that what happened here at this checkpoint?

Charles M. Sevilla:

As long is there no seizure of the individual — at the checkpoint there are seizure taking place, you cannot go any place.

If you try to run the checkpoint you are going to be flight down and arrest and if you do not answer you going to be detained until you come up with an answer that satisfies the officer of the checkpoint.

If someone is walking along the street and they simply asked a question, as long there is no seizure according to I think it was Justice White in Terry versus Ohio there is probably no problem, we are just asking the question.

There are many in situation where officers simply ask questions of individual said —

Potter Stewart:

They have to slow them down to ask the question, do they not?

Charles M. Sevilla:

Yes.

Thank you.

Warren E. Burger:

Mr. Evans you have just one minute left.

Mark L. Evans:

I will make it brief.

It is quite misleading to say that 99.9% of the vehicles are contained no aliens.

99.8% of them are not referred over for — about 99% of them are not referred over for secondary inspection, of those that are the figures under the warrant at issue here show that 21% were in fact found with illegal aliens in it.

Mr. Chief Justice on the status of the legislation what used to be H.R. 982, and the House has now been made up into a clean bill called H.R. 8713 which was reported to the House by the Judiciary Committee on September 24, 1975 in its report number 94-506.

The Senate has been one of the stumbling blocks in this legislation in the past.

Senator Eastland, the Chairman of the Senate Judiciary Committee has recently introduced own version of the bill, it is S3074 which, at Section 12 and 13, make it unlawful to knowingly employ illegal aliens, although the bill, as submitted by Senator Eastland, does not have criminal penalties it has a civil penalties structure.

Warren E. Burger:

Thank you Mr. Evans.

Thank you gentlemen.

Warren E. Burger:

The case is submitted.