United States v Flores-Montano, 02-1794, March 30th, holding that reasonable suspicion is not required for a gas tank removal as a part of a border search. Although the government had reasonable suspicion in this case, it chose to disclaim reliance on reasonable suspicion and go with the border search exception, and the Supreme Court agreed that reasonable suspicion does not apply, holding that the Ninth Circuit's requirement of reasonable suspicion for more intrusive searches of persons could not be imported into searches of vehicles at the border because of the differing and lesser privacy interests involved in vehicles.
As a practical matter, I do not see this case having much effect on the law of border searches. It serves one salutary interest of the government and the judiciary: not having to litigate whether reasonable suspicion was present. Rehnquist commented that a wait of 1-2 hours at the border is "to be expected. " If one has ever crossed at Tijuana or Niagara Falls (in either direction), you know that's how long it can take without being detained. The result was not unexpected.
Besides, Terry holds that any search can be argued to be unreasonable, even if it was justified from its inception. That would apply here. From the syllabus: "At the international border in southern California, customs officials seized 37 kilograms of marijuana from respondent's gas tank by removing and disassembling the tank. After respondent was indicted on federal drug charges, he moved to suppress the drugs recovered from the gas tank, relying on a Ninth Circuit panel decision holding that a gas tank's removal requires reasonable suspicion under the Fourth Amendment.
The District Court granted the motion, and the Ninth Circuit summarily affirmed. "Held: The search did not require reasonable suspicion. In the decision relied on below, the Ninth Circuit panel seized on language from United States v. Montoya de Hernandez, 473 U. S. 531, 538, that used "routine" as a descriptive term in discussing border searches. The panel took "routine," fashioned a new balancing test, and extended it to vehicle searches.
But the reasons that might support a suspicion requirement in the case of highly intrusive searches of persons simply do not carry over to vehicles. Complex balancing tests to determine what is a "routine" vehicle search, as opposed to a more "intrusive" search of a person, have no place in border searches of vehicles. The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. United States v. Ramsey, 431 U. S. 606, 616.
Congress has always granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country. Montoya de Hernandez, supra, at 537. Respondent's assertion that he has a privacy interest in his fuel tank, and that the suspicionless disassembly of his tank is an invasion of his privacy, is rejected, as the privacy expectation is less at the border than it is in the interior, id., at 538, and this Court has long recognized that automobiles seeking entry into this country may be searched, see Carroll v. United States, 267 U. S. 132, 154.
And while the Fourth Amendment "protects property as well as privacy," Soldal v. Cook County, 506 U. S. 56, 62, the interference with a motorist's possessory interest in his gas tank is justified by the Government's paramount interest in protecting the border. Thus, the Government's authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle's fuel tank.
" Groh v Ramirez, 02-811 (5-4), Feb. 24th, 157 L Ed 2d 1068, holding that a search warrant was defective and not saved by Leon or qualified immunity where the warrant failed to specify the items sought even though the affidavit did; the officer could not rely on the magistrate's signing off on a clearly deficient warrant as providing any refuge. (The Supreme Court affirmed the Ninth Circuit on this one: Ramirez v Butte-Silver Bow County (2002, CA9 Mont) 298 F3d 1022). §§ 43. 11 n. 73. 1 & 43. 30 n. 188. 1. The syllabus follows:
"Petitioner, a Bureau of Alcohol, Tobacco and Firearms agent, prepared and signed an application for a warrant to search respondents’ Montana ranch, which stated that the search was for specified weapons, explosives, and records. The application was supported by petitioner’s detailed affidavit setting forth his basis for believing that such items were on the ranch and was accompanied by a warrant form that he completed. The Magistrate Judge (Magistrate) signed the warrant form even though it did not identify any of the items that petitioner intended to seize.
The portion calling for a description of the 'person or property' described respondents’ house, not the alleged weapons; the warrant did not incorporate by reference the application’s itemized list. Petitioner led federal and local law enforcement officers to the ranch the next day but found no illegal weapons or explosives. Petitioner left a copy of the warrant, but not the application, with respondents.
Respondents sued petitioner and others under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, and 42 U. S. C. § 1983, claiming, inter alia, a Fourth Amendment violation. The District Court granted the defendants summary judgment, finding no Fourth Amendment violation, and finding that even if such a violation occurred, the defendants were entitled to qualified immunity.
The Ninth Circuit affirmed except as to the Fourth Amendment claim against petitioner, holding that the warrant was invalid because it did not describe with particularity the place to be searched and the items to be seized. The court also concluded that United States v. Leon, 468 U. S. 897, precluded qualified immunity for petitioner because he was the leader of a search who did not read the warrant and satisfy himself that he understood its scope and limitations and that it was not obviously defective. "Held: 1. The search was clearly 'unreasonable' under the Fourth Amendment. Pp. 5–11. "(a) The warrant was plainly invalid. It did not meet the Fourth Amendment’s unambiguous requirement that a warrant 'particularly describ[e] ... the persons or things to be seized.
” The fact that the application adequately described those things does not save the warrant; Fourth Amendment interests are not necessarily vindicated when another document says something about the objects of the search, but that document’s contents are neither known to the person whose home is being searched nor available for her inspection. It is not necessary to decide whether the Amendment permits a warrant to cross-reference other documents, because such incorporation did not occur here. Pp. 5–6. "(b) Petitioner’s argument that the search was nonetheless reasonable is rejected.
Because the warrant did not describe the items at all, it was so obviously deficient that the search must be regarded as warrantless, and thus presumptively unreasonable. This presumptive rule applies to searches whose only defect is a lack of particularity in the warrant. Petitioner errs in arguing that such searches should be exempt from the presumption if they otherwise satisfy the particularity requirement’s goals. Unless items in the af-fidavit are set forth in the warrant, there is no written assurance that the Magistrate actually found probable cause for a search as broad as the affiant requested.
The restraint petitioner showed in conducting the instant search was imposed by the agent himself, not a judicial officer. Moreover, the particularity requirement’s purpose is not limited to preventing general searches; it also assures the individual whose property is searched and seized of the executing officer’s legal authority, his need to search, and the limits of his power to do so. This case presents no occasion to reach petitioner’s argument that the particularity requirements’ goals were served when he orally described the items to respondents, because respondents dispute his account. Pp. 6–11.
2. Petitioner is not entitled to qualified immunity despite the con-stitutional violation because 'it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted,' Saucier v. Katz, 533 U. S. 194, 202. Given that the particularity requirement is stated in the Constitution’s text, no reasonable officer could believe that a warrant that did not comply with that requirement was valid. Moreover, because petitioner prepared the warrant, he may not argue that he reasonably relied on the Magistrate’s assurance that it contained an adequate description and was valid.
Nor could a reasonable officer claim to be unaware of the basic rule that, absent consent or exigency, a warrantless search of a home is presumptively unconstitutional. '[A] warrant may be so facially deficient ... that the executing officers can-not reasonably presume it to be valid. ' Leon, 468 U. S. , at 923. This is such a case. Pp. 11–14. Illinois v. Lidster, 02-1060, 157 L Ed 2d 843, 124 S Ct 885, decided Jan. 13th, holding that an informational gathering, not general crime control, roadblock was constitutional. Lidster was found DWI when he came to the roadblock. From the Court's Syllabus:
"Police set up a highway checkpoint to obtain information from motorists about a hit-and-run accident occurring about one week earlier at the same location and time of night. Officers stopped each vehicle for 10 to 15 seconds, asked the occupants whether they had seen anything happen there the previous weekend, and handed each driver a flyer describing and requesting information about the accident. As respondent Lidster approached, his minivan swerved, nearly hitting an officer. The officer smelled alcohol on Lidster's breath. Another officer administered a sobriety test and then arrested Lidster.
He was convicted in Illinois state court of driving under the influence of alcohol. He challenged his arrest and conviction on the ground that the government obtained evidence through use of a checkpoint stop that violated the Fourth Amendment. The trial court rejected that challenge, but the state appellate court reversed. The State Supreme Court agreed, holding that, in light of Indianapolis v. Edmond, 531 U. S. 32, the stop was unconstitutional. "Held: The checkpoint stop did not violate the Fourth Amendment. "(a) Edmond does not govern the outcome of this case.
In Edmond, this Court held that, absent special circumstances, the Fourth Amendment forbids police to make stops without individualized suspicion at a checkpoint set up primarily for general 'crime control' purposes. 531 U. S. , at 41, 44. Specifically, the checkpoint in Edmond was designed to ferret out drug crimes committed by the motorists themselves. Here, the stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask the occupants, as members of the public, for help in providing information about a crime in all likelihood committed by others.
Edmond's language, as well as its context, makes clear that an information-seeking stop's constitutionality was not then before this Court. "(b) Nor does the Fourth Amendment require courts to apply an Edmond-type rule of automatic unconstitutionality to such stops.
The fact that they normally lack individualized suspicion cannot by itself determine the constitutional outcome, as the Fourth Amendment does not treat a motorist's car as his castle, see, e. g. , New York v. Class, 475 U. S. 106, 112-113, and special law enforcement concerns will sometimes justify highway stops without individualized suspicion, see, e. g. , Michigan Dept. of State Police v. Sitz, 496 U. S. 444. Moreover, the context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role to play, and an information-seeking stop is not the kind of event that involves suspicion, or lack thereof, of the relevant individual.
In addition, information-seeking highway stops are less likely to provoke anxiety or to prove intrusive, since they are likely brief, the questions asked are not designed to elicit self-incriminating information, and citizens will often react positively when police ask for help. The law also ordinarily permits police to seek the public's voluntary cooperation in a criminal investigation.
That the importance of soliciting the public's assistance is offset to some degree by the need to stop a motorist–which amounts to a 'seizure' in Fourth Amendment terms, e.g., Edmond, supra, at 40–is not important enough to justify an Edmond-type rule here. Finally, such a rule is not needed to prevent an unreasonable proliferation of police checkpoints. Practical considerations of limited police resources and community hostility to traffic tie-ups seem likely to inhibit any such proliferation, and the Fourth Amendment's normal insistence that the stop be reasonable in context will still provide an important legal limitation on checkpoint use. "(c) The checkpoint stop was constitutional.
In judging its reasonableness, hence, its constitutionality, this Court looks to 'the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. ' Brown v. Texas, 443 U. S. 47, 51. The relevant public concern was grave, as the police were investigating a crime that had resulted in a human death, and the stop advanced this concern to a significant degree given its timing and location. Most importantly, the stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect.
Viewed objectively, each stop required only a brief wait in line and contact with police for only a few seconds. Viewed subjectively, the systematic contact provided little reason for anxiety or alarm, and there is no allegation that the police acted in a discriminatory or otherwise unlawful manner. " I watched the oral argument, and one could see this coming. Stevens, Souter, and Ginsburg concurred in part and dissented in part, concluding that the case should have been remanded for a reasonableness determination.
See the NY Times article, Court Upholds Police Use of Roadblocks to Seek Witnesses. The Washington Post headline is misleading: High Court Rules Roadblocks Don't Violate Privacy. All roadblocks are constitutional? Hardly, roadblocks to locate witnesses to a vehicular homicide are involved, and that's a big difference. (Comment: Headline writers aren't lawyers, and half the time don't carefully read the articles. The problem is that police officers sometimes base their actions on newspaper headlines as accurately reflecting the story. )