Warren E. Burger: -- next in 71-6278, Almeida-Sanchez against the United States. Mr. Cleary.
John J. Cleary: Mr. Chief Justice and may it please the Court. The issue in this case concerns the application of the Fourth Amendment to interior searches. More specifically the petitioner contends that the nature and extent of this search permitted by immigration regulation is in conflict with the Fourth Amendment, the Carroll decision and the litany of precedent, following that decision, basically can the government authorize a regulation that permits a search of an automobile on a highway without a warrant and more specifically without probable cause. That is the issue.
Potter Stewart: Does the issue include unnecessarily the constitutional validity of the statute?
John J. Cleary: No, Your Honor. I think that this Court under its general mandate, if it could construe the statute so as to find the constitution would do so. However, I think the regulation would fall. The question is, what is reasonable distance and I think the Court would have to make it eminently clear what reasonable distance is to adjudicate this particular issue.
Warren E. Burger: But would we fix that Mr. Cleary in terms of 37 ½ miles or would we say a reasonable distance in the context of the geographical area in which it occurred, which way would we (Voice Overlap).
John J. Cleary: You Honor, it is really faced with a tough decision in that area and I would suggest that in reviewing the Glazu (ph) decision where it was a peer search. Judge Browning in his dissent in this case called it a substantial equivalent. I would, if the Court would permit, suggest a decision that has a judicial import and not a legislative one so as to try to quantify. That decision after reading the decisions in this case and many others, I would suggest would be that distance necessary for the customs to make the first practical contact with the entrant after crossing the border. Now, with that definition, you can apply it so as to take care of the situation where the man flies from Acapulco to Chicago or the man is in the immediate proximity of the area and he outruns the border inspector, but at the other end of this scale which I would contend that this continuous surveillance technique, and as modified in the Alexander case called a substantial continuous surveillance because you can have some interruption, my suggested rule would be a one shot rule. Meaning that if the law enforcement officers allow the person to pass through customs and he clears it, then any search thereafter must be based upon probable cause. If the government having reliable informants and having say corroboration under Draper or the other decisions of this Court would then contend that they can arrest the person once into the interior if further information has been corroborated, would have probable cause and would need this subterfuge of a border search. So I would suggest to the Court that a definition of border search is possible to quantify it. I think is next to impossible because I could be searched right now under the existing regulation if I got into an automobile and were to drive to national airport on the grounds that I might be from a country, say a virulent or some other basis and they were looking for other Irish people in the vehicle.
William H. Rehnquist: Had your client passed through a customs here, Mr. Almeida-Sanchez?
John J. Cleary: There were some question there, Your Honor in that one Mr. Justice Rehnquist because the first statement was on being inquired and he said, I picked up the car in Calexico which is in the interior of the United States whereas another statement of the customs man when he stopped and said, I came from Mexicali, would have meant he was born in Mexicali and of course as his immigration card was marked, indicated that he did have some residence in Mexicali, but there was no evidence, I would contend in this record of a border entry and again the point is, we have to look ab initio at the stop on the highway. That officer did not know whether the man had cleared the border and they had to stop. This was just a random sampling, using his own rule of thumb whatever discretion whim caprice had in stopping an automobile.
William H. Rehnquist: But your statement of the rule I thought had as a part of the rule that when a man had cleared customs then there would be a certain limits, probable cause limits.
John J. Cleary: That is correct.
William H. Rehnquist: And I was wondering how that rule would apply to this particular case?
John J. Cleary: In this case, since there was no border entry observed, the only way that vehicle could be stopped on the highway consistent with the Carroll decision is upon probable cause.
William H. Rehnquist: You say, the burden of proof then is on the government to show that he had not come through customs rather than the burden of proof on him to show that he did?
John J. Cleary: I think the burden of proof would be on the government, Mr. Justice Rehnquist, if they were seeking (1) an exemption of the warrant requirement and (2) an exemption of the probable cause requirement, I think that would be eminently fair.
Warren E. Burger: But if he didn't come through customs, then would not his strong position be that he is just a local fellow who is out for a ride and he had never been to Mexico in his life?
John J. Cleary: Your Honor, that would possibly be his contention, but the more important issue is the stopping of the vehicle to make this type of search. What is not before the Court right now is an interstitial area known as the founded suspicion, a situation where a vehicle might be briefly detained on is the highway so that the officer could make some initial questions or check of the man. That's not an issue here and if I could point out two other serious aspects of this case; the government and its total candor which is always been the position, has cited to you not only the Rule that permits up to a hundred air miles but 287.1 sub B points out that the customs, I mean excuse me, the immigration director can go beyond the 100-mile limit if he so desires. So that the 100-mile is not a estop and the second point --
Potter Stewart: Well that, certainly I think you already conceded, would take care of the situation where an airplane flies non-stop from London to St. Louis?
John J. Cleary: Yes, Your Honor. In the sense of not permitting the search though of this random search as they would now interpret it.
Potter Stewart: But B has all sorts of seeming safeguards in it. The district director has to forward a completely report with respect to the matter to the commission and justify anything within a 100-mile (Inaudible).
John J. Cleary: I can have point out another serious constitutional defect in a regulation, is that this Court in Coolidge versus New Hampshire struck down an Attorney General acting with its another hat as Justice of the Peace issuing out his own search warrant. Does it not seem anomalous to this Court that here we have the Attorney General defining what is reasonable distance or what is the exempted area of the Fourth Amendment? And so for the executive to take that type of role in cutting down a Fourth Amendment application and as I point out to the Court, the Fourth Amendment does not have first of all, an exception in it for the border, but this Court in the Carroll case held that the Fourth Amendment will be interpreted at the time of its adaption and certainly border searches are proper. But if I were council for the establishment in 1776 in this country and were thinking of ways in which to draft legislation or rules authorizing a writ of assistance, I couldn't do a better job than what we have right here in this regulation. And I would suggest to the Court that it is not the authority of the executive to so limit, define, contract the Fourth Amendment. It applies throughout the United States and I think it is the function of this Court to uphold it.
Warren E. Burger: Does not the regulation by its terms apply to border crossers?
John J. Cleary: No, Your Honor. It applies to, it can search any vehicle, meaning it could be anyone's vehicle. Your Honor's vehicle could be down the highway and technically under this regulation, you could be stopped and not only are you questioned, but your vehicle is searched and the trunk opened up and in the case we have in point to show you how far they are gone under the seat and there is even Ninth Circuit cases where they looked in paper bags for aliens and the Court held that, of course, that was not a proper place to look for aliens or in (Inaudible) crevices and in other places, but it shows the potential for abuse in such searches. I would further point out and I would like to cite to the Court an additional authority in Ninth Circuit opinion written by Judge Hufstedler, it's U.S. versus Mallides, it's slip opinion only, 72-1898 and it was decided on the 22nd of January and there, six of Mexican appearing individuals driving down a highway in a Chrysler automobile steered straight ahead as a patrol car passed them. They were stopped and they were interrogated and the court there reviewed that this was of course an improper stop. The reason I raise this is that such a regulation or its implementation can be clearly discriminatory in its application, that is to say even the government’s brief at page 24, in the footnote in the last line points out the these stops on a random sampling are made on apparent nationalities. Well, I do not know how one can physically observe one’s nationality other than to use certain racial or color characteristics and I think that --
William H. Rehnquist: How else would you do with that at the border between Mexico and United States though?
John J. Cleary: You Honor, at the border in Mexico and United States, there are a great deal of Mexican American people. There are a lot of people here legally. I think that the stop for aliens and that is the reasonable alternative in this case is to apply the protective and preventative measures at the border. If you look at our border, there are just holes in the fence all the way along. The government contends there is 2,000 miles of border, there is 4,000 on Canada and they got 1,400 out of their 1,700 border patrol officers down on the Mexican border. The question is and I think appropriately is they are stopped at the border and if we don't have so to speak a preventative policing of the border, then we should not allow the highest pragmatism with the government to lay back and claim inherent exceptions to the Fourth Amendment to stop all vehicles.
Warren E. Burger: Is anybody made an estimate of how many people it would take to cover that 2,083-mile border?
John J. Cleary: Your Honor, the --
Warren E. Burger: With the kind of mechanism you are suggesting?
John J. Cleary: I have made suggestion, Your Honor to our U.S. attorney. In fact, one of the suggestions I made was that, we are having now many of our armed forces returning from Vietnam and one of suggestions I had is that properly the armed and brought into an auxiliary capacity, could be an excellent device to act as a constabulary, something every other country in the world has but our own. In any event, I do not see the advantages of placing this. Now, the essential question is, why should we even have a border patrol at all. I mean that is a very serious moral question and I cannot answer that. I am only in a legal framework now, but if you are asking for ways in which to supply that manpower, I would suggest, notwithstanding the fact that might not be philosophically in line with that type of policing, I would say that, that resource would be available. I further would point out that one of the other problems with these type of searches is, we are not dealing with the minor intrusion, we're not dealing with the licensing requirement. We're dealing with a serious look for evidence, evidence of a crime. The government has cited the See, Camara, Colonnade and Biswell decisions. I would suggest to the Court that those are readily distinguishable.
Potter Stewart: Before we move on, could you give me the spelling of Mallides please and tell me the date again, January what?
John J. Cleary: January 22nd, Your Honor. It is M-a-l-l-i-d-e-s. And if the Court would like an analysis of border searches in a recent opinion by Judge Dunaway, I would cite U.S. versus Petersen, that's 72-2123 and that was decided 18th of January and is also in a slip opinion.
Potter Stewart: Thank you.
John J. Cleary: In this case, there was not a momentary detention and the possibility for a subterfuge or something other than just an alien check as in this case is just paramount. I would point out that in dealing with the Camara and See cases, we had situations where a warrant was required. It was held not only was man’s residence protected to a certain degree even though the probable cause requirement could be dropped but also a business. In the Colonnade, Biswell cases, I would tender to the Court four basic distinctions. First, the group involved in that area is a self-defined target group, that is to say, men who have chosen their particular occupation, firearms or the liquor business. Two, that in this business venture, there is not a justifiable expectation of privacy one would expect in an automobile. And when the statute and regulation here says vehicle that would include also van, it would include camper which is kind of like a quasi home and a mobile home which might be a person’s only home on the highway. Second of all, I would indicate that the searches in Colonnade and Biswell were of business establishment during day light hours. This case, it was in shortly after midnight, stopped on a highway. It's a very personal in nature when you start to go through a man’s vehicle which this Court with Justice Jackson in Brinegar has defined as one of the effects, the automobile itself that he was driving on a highway. I would dare say that there are reasonable alternatives to the rule that is proposed here. The first one is, greater registration requirements. There is now a requirement that aliens register in January. I would suggest that one on employers; if registration was required by employers, it would be a great way to alleviate the burden of the illegal aliens in this country. Sometime, we do not consider the cause and effect. Why are these aliens here? And a little application of common sense logic would indicate that we had some type of registration or kind of control in that area, we might alleviate some of the problems. Second one, on welfare and third; I would suggest even license in activities. One of the best detectives for aliens in our area, happens to be the California Department of Motor Vehicles because people come in and do not have this evidence and they determine that they are here illegally.
Warren E. Burger: But Mr. Cleary, as long as you have got into these practical things, you probably are -- since you live down there, recall at one point, they tried making a search of every car coming across the border and provoked as you recall an international incident. Mexico wouldn't stand for it and quite many other people wouldn't. There are practical difficulties that are hard to crossover, aren't they?
John J. Cleary: Yes, Your Honor and I am not trying to indicate that. I am saying that given the balancing of the interest here that at the border when operation intercept was in operation and custom backed up things along ways. I might add to the Court that they have been substantially improved at the Tijuana Border. They have a very expeditious way of processing. However, I think the answer lies in applying the border search at the border. And further, on the doctrine of pragmatism, I would suggest to the Court its own opinion in United States where U.S. District Court, in that case, this Court where the government contended a very strong issue, national security, this Court not only of course required the probable cause for wire tapping but even went further and said, we're not going to allow you to use that pragmatic approach to excuse even the warrant requirement. And all we're asking for here is once a vehicle is in the interior, it's on the highways, should not the government be required to have at least probable cause. Some of the other reasons why this Court should be concerned with this particular rule, because of the dichotomy that exists as between contraband and aliens. On one hand, the introduction of this noxious controlled substance, be it marijuana, heroine or any of the other narcotics is a national interest, a super concern in fact in my humble opinion far more important than the question of a man from another country seeking a better way of life in our country. And that under the application of the law as it now stands, there must be probable cause once the vehicle clears the border area or the immediate border area and that Judge Browning in his dissent points out the strange dichotomy and I might point out to the Court that the statute used here is not as liberal as the customs statutes which are 19-482 and 19-1581. They are far more liberal, yet the circuit and other circuits have held to allow those statute to operate without probable cause would fly in the face of the Fourth Amendment, but for aliens, we make an exception. I feel that, that is not a fair balancing of the issue. Second, I would point out that we can sometimes in our federal system learn from the states. Chief Justice Roger Traynor, California Supreme Court, a well-known national jurist, familiar with criminal law wrote well on this decision when dealing with sheriffs to try to justify a border search for a vehicle. In fact, they might have had something that might have almost amounted to founded suspicion when a man had a dented fender and in People versus Giles, cited to you in the government’s brief, the court held that such a search would be intolerable and took the Carroll decision of this Court to find why state officers couldn't do it. So on one hand, we have state officers who can't conduct such searches, but on the other hand, we have federal law officers with this unlimited power.
Warren E. Burger: Well, but is not that a consequence of the fact that federal government has the exclusive control of the borders in the example you give?
John J. Cleary: Yes, Your Honor.
Warren E. Burger: Federal government can't permit each one of border states to have its own customs control, could they?
John J. Cleary: No sir. That is correct. I only contend that a border search requires a border entry. And in this case, a border entry was not established and also the type of search conducted here on the highways would apply anywhere in the United States when they almost covered the majority of the existing population in the United states. And although the government does point out that it would not exercise that power to conduct searches, say in Times Square in New York City, the Fourth Amendment does not rely upon the goodwill of the executive. It is an absolute bar in that if there was some type of nexus shown with the border prior to the stop, a different situation might exist. And I might also point out to the Court, we are not dealing with the founded suspicion situation, we are not dealing with the Terry versus Ohio situation or Adams versus William situation where there was a stop and a protect of, first for the officer involved which is certainly an anomaly reasonable type of situation. With the Court permission, I would like to reserve time for rebuttal.
Warren E. Burger: Very well Mr. Cleary. Mr. Lacovara?
Philip A. Lacovara: Mr. Chief Justice and may it please the Court. The case before the Court presents some very important Fourth Amendment issues as counsel for the petitioners just brought out, but as some of the questions from the bench indicate, there are important practical issues at stake here too. And I think it is important for the Court to keep both sets, theoretical and practical, of these issues are carefully in mind in tending to the arguments and in resolving the disputes between the parties. First of all, it's important I think to give a little background on what the facts of this particular case are. The case, the search and seizure issue arose originally on stipulated facts on a motion to suppress and it was stipulated that two border patrol agents, members of the uniformed service of the Immigration and Naturalization Service with the responsibility for controlling illegal entry of aliens into the United States, were conducting a roving patrol on a state highway, Highway 78 in the South Eastern part of California. In order to clarify the stipulated facts and to give the Court some further sense of the topography, we have included in our brief a map of the area involved to indicate the interrelationship of the points involved and if I may respectfully direct the Court’s attention to the map which we had the army map service prepare, rather quickly I confess, so that it would be compact and yet would focus on the important areas in question.
William H. Rehnquist: This is for a illustrative purposes I take it, Mr. Lacovara.
Philip A. Lacovara: Yes sir, yes sir. I would suggest that if necessary this would be a subject to petition notice, since these are indisputable geographical features, but we're just trying to clarify what stipulated facts are. The stipulation was that Highway 78 on which they stopped, at a place, just South of Glamis, California is about the only north-south highway in Southern California leading away from the Mexican border that does not have an established checkpoint on it and for that reason, it is frequently patrolled by the border patrol. Highway 78 of course is an even numbered highway generally runs east and west and we have included this map to show that the portion of the highway involved here where it runs near the Mexican border although it never touches the border, runs generally north easterly.
William H. Rehnquist: Well, it's a California number that the highway has, not a U.S. number?
Philip A. Lacovara: Yes sir, but I believe the California system is the same as the general federal system. In any event, down in the lower left-hand corner of the case begins, according to the stipulated facts, that's the border crossing point, at Calexico, California, the sister city of Mexicali, Mexico, the point from which petitioner can see that he at least began his journey. He said that he picked up the automobile that was stopped and searched across the border in Calexico. He said he was driving up to Blythe, California which is in the extreme top right-hand corner of the map, the little yellow area is the town of Blythe. The only road that leads through this approximately 120 mile drive across mountains and generally dessert, is Highway 78 and as the Court can see, Glamis is circled almost on the center of the map. Although it is shown as a town, the Atlas that I, and this is not in the record but I believe also, it might be a subject of official notice the official Atlas' list, the population of Glamis is somewhere between 10 and 100 people. But the point that I am trying to suggest is this was a desolate area. This was conceded at the trial on the merits. The border patrol agents testified as did petitioner and it was brought out that this was desert country, the highway is partially unpaved and the stop took place at about sometime after midnight and --
Potter Stewart: And where on the road was it? West of Glamis or --
Philip A. Lacovara: Just south so that would be right of -- as I interpret the record, that would be just before he arrived at Glamis.
Potter Stewart: Lot more west, south of the --
Philip A. Lacovara: Yes, but the testimony of the trial was south and that would be consistent though, Your Honor with the idea that he was driving generally from the border area north of Blythe. So if you look in the map (Voice Overlap).
Potter Stewart: From Calexico, he would come up 99 up to Brawley, would he?
Philip A. Lacovara: That's right.
Potter Stewart: And there get on Highway 78?
Philip A. Lacovara: 78, it cuts across and then goes up.
Potter Stewart: And start to east and then (Voice Overlap)
Philip A. Lacovara: Goes up towards the (Voice Overlap). Yes sir. The additional facts in the case, apart from the fact that this is a rather desolate area, according to the stipulation was that this is a road that is known by border patrol agents to be used by alien smugglers. It was so agreed and for that reason, it is frequently subjected to roving patrols. The volume of traffic on the road is such that it does not -- it is not practical to maintain a permanent checkpoint for aliens trying to enter the interior. In our brief, we have suggested again this is outside the record, some statistics showing the actual experience on this road and they are included in the footnote in our brief. The agents decided to stop this car, acting pursuant to the statutory power that Congress conferred in 1946 to stop vehicles and to search them for aliens and I have to emphasize that this is not a custom search and all the Courts of Appeals that have reviewed this issue have distinguished searches for contraband from searches for aliens as has Congress. So we're talking about a distinction made not by the Attorney General, but by congress. The statute enacted in 1946 authorized a search for aliens within a reasonable distance to the border. The regulation promulgated in 1952 which is printed in our brief fixes 100 miles as the outside limit for a reasonable distance except as Mr. Justice Stewart and counsel agreed for airport entries in the interior for example.
Thurgood Marshall: Didn't take much looking to find a person as they were to find?
Philip A. Lacovara: We suggest Mr. Justice that that is one of the reasons why when you get to the reasonable mis-balance, the extent of the intrusion that's involved here is much less than it would be if Congress has done the same thing with contraband.
Thurgood Marshall: I mean once you look into car, you don't see any other person, you then turn it loose (Voice Overlap).
Philip A. Lacovara: That is what the border patrol agents must do. All they can do under their statutory power is to examine the car for aliens. And we have cited the statistics in discussing the searches at checkpoints to show that approximately 40%, 2 million, 20% of the ten million cars that pass through checkpoints are stopped for interrogation, that is a request to the driver and the passengers as to whether they are aliens or American nationals. Only about 20% of the number of cars stopped at checkpoints, about 400,000 is subjected to any search or inspection and that is only the trunk area.
Thurgood Marshall: When he opens -- when he stops you, does he say I am searching for an alien or I am searching for dope?
Philip A. Lacovara: Well, frequently, he does not explain the objectives first.
Thurgood Marshall: He just says I am searching.
Philip A. Lacovara: That is right. If he goes beyond looking into areas where aliens as a practical matter can be hidden and have been hidden. We have cited cases, not just speculation, but cases in which aliens have been found hiding under the hoods of cars. We have cited cases in which, well in this case though --
Thurgood Marshall: Was it air conditioned?
Philip A. Lacovara: Mr. Justice, one of the reasons why the border patrol tries to do this is because the conditions under which aliens are smuggled into the country are (Inaudbile). They are -- almost some of them are smothered and some of the vehicles that they are packed into --
Warren E. Burger: We have a petition which shows that one of the Mexicans, are very small size person under the hood was almost dead when they opened the hood and let him out?
Philip A. Lacovara: This happens, there was a recent seizure of a fuel oil truck that was two-thirds loaded with fuel oil and a central compartment had been made and there were 22 Mexican aliens crammed in there and they were standing in knee deep inflammable oil when the border patrol finally detected them. These are some of the practical aspects.
Warren E. Burger: So that merely looking in the car or vehicle is not --
Philip A. Lacovara: Not at all unreasonable.
Warren E. Burger: The checking process.
Philip A. Lacovara: Now, we have also have in the stipulated facts here the agreement and it was later testified to a trial by the border patrol agents that they had been advised by intelligence bulletins from the border patrol that this particular kind of smuggling technique was being used that is that, the rear seat springs of a car were being removed and aliens and perhaps two aliens could sit between the seat frame and the cushion. Now, it's not in the stipulated facts but it was testified to a trial before the suppression motion was renewed and again denied that when the agents stopped this car, they looked in the trunk first and it was only if I may --
Warren E. Burger: We'll resume there after lunch.[Luncheon Recess] Mr. Lacovara, you may continue.
Philip A. Lacovara: Thank you Mr. Chief Justice. I was in the process of describing what actually occurred in this case and it reached the point of describing the stop of the vehicle that petitioner was driving, a car which he said did not belong to him and which he was simply driving up to Blythe, California to drop off as a favor to some man he had met in a bar in Mexicali, Mexico. But the agents as is customary in inspecting vehicles for aliens, looked first in the trunk of the automobile which would of course be the natural place where aliens are discovered. Officer Shaw of the border patrol testified at the trial that when he looked in the trunk, he did not see any aliens or any other items but saw that the plate over the back springs of a car which of course was visible from the trunk area, the dividing material between the rear seat and the trunk was unusual. It was the standard kind of backing. He said it looked to him like cardboard or some other kind of light board and he thought that, that might indicate that this rear seat had actually been altered and relying, he testified on the intelligence bulletins from the border patrol, he entered the cabin of the automobile, removed the rear seat cushion and discovered marijuana. The petitioner was then placed under arrest and a further search of the car turned up 73 kilo bricks of marijuana, 161 lbs. The government's position in this case on the legal questions is that under settled decisions of this Court, searches can be conducted as reasonable within the meaning of a Fourth Amendment even though there may not be probable cause to suspect that the object of the search is involved in illegal activity and even if there is no warrant specifically approving that search in advance. We have relied on several interrelated series of decisions in our brief. We start with the proposition that the basic test under the Fourth Amendment is reasonableness, that generally under the warrant clause this implies the two qualifications must be met in order for search to be reasonable. That is, that there must be probable cause for the search and that probable cause must be adjudicated in advance by a magistrate issuing a warrant. This Court has held in numbers of cases but neither of those requirements is absolute. We rely primarily on the administrative inspection line of decisions, Camara versus the San Francisco Municipal Court and See versus the City of Seattle in which this Court specifically upheld the reasonableness of an area inspection program requiring access to private homes as well as to private businesses. Even without any reason to suspect, much less any probable cause to believe that a violation was taking place within the particular home or business.
Potter Stewart: But the Court in other cases did require that a “warrant” be secured?
Philip A. Lacovara: Yes, with the explicit caveat Mr. Justice Stewart that the warrant that was being required in accordance with the general presumption that warrants are necessary unless there are exigent circumstances excusing it. Mr. Justice White’s opinion for the Court in that case pointed out that the object of the traditional administrative inspection under a building or fire code is to detect a rather fixed violation which cannot be quickly remedied in a structure which of course is not movable. The opinion specifically leaves open the conduct of such area inspections even without warrant if they are reasonable under those circumstances and that exception was taken in the other line of cases that we rely on Colonnade Catering Corporation and Biswell in which the court specifically held that without even suspicion and without a warrant an administrative inspection to enforce regulatory law was valid.
Thurgood Marshall: I submit that (Inaudible) comment in this case is that there is nothing in this record to show that this man was in the business of hauling illegal aliens?
Philip A. Lacovara: That's right and that is clearly true. We have conceded that these are not licensed activities that we're talking about, but by the same token, people who own apartments as Mr. Camara did and Camara against Municipal court are not in the business of living in apartments, but the Court, Mr. Justice, specifically left open the possibility that going through the balancing test which is at the core of the reasonableness standard of the Fourth Amendment that it might be reasonable to insist on inspecting his apartment even though he is not licensed without a warrant.
Thurgood Marshall: They suspected that this man had an alien?
Philip A. Lacovara: No. It was conceded at trial that there was no particular reason to suspect that this car was carrying an alien.
Thurgood Marshall: Will they stop my car if I was driving through that?
Philip A. Lacovara: In that area?
Thurgood Marshall: Yes.
Philip A. Lacovara: Yes sir. Yes, what we are saying is the focus here as in --
Thurgood Marshall: Could you stop the President’s car?
Philip A. Lacovara: Well, if the car were marked as the President’s car, they would be --
Thurgood Marshall: If it was not, you could stop it?
Philip A. Lacovara: Yes sir.
Thurgood Marshall: Nobody is protected.
Philip A. Lacovara: The position that we are taking is that the object, the reasonableness inquiry in this case is the reasonableness of the stopping of a car under all of the circumstances. Those circumstances include the size of the vehicle, obviously, a motorcycle could not be searched for aliens. The location of the stop, is it on a highway that has a permanent checkpoint, has the car already been stopped. Is it an area that is known to be used by alien smugglers? Is it fairly close to the border?
Byron R. White: Do you mean some circumstances could be held to be un-reasonable within a 100-mile?
Philip A. Lacovara: Yes sir. That's the other thing that I wanted to emphasize. We have explicitly disclaimed in our brief any contention that the mere fact that the search takes place within a 100 miles of the border automatically validates --
Byron R. White: So the regulation on its face may not be valid in all circumstances?
Philip A. Lacovara: Well, as applied, I would say it is valid on its face because it talks about reasonable distances and that's a constitutional standard.
Byron R. White: Why?(Inaudible)
Philip A. Lacovara: Pardon me? (Voice Overlap). Up to a 100 miles.
Warren E. Burger: Then as you concede that in San Antonio, this would not wash?
Philip A. Lacovara: Yes.
Warren E. Burger: How far is San Antonio from the border?
Philip A. Lacovara: I cannot say exactly.
Warren E. Burger: Relatively short.
Philip A. Lacovara: It is relatively (Inaudible)
Byron R. White: (Inaudible) as a part of the circumstance that would make a search within 100 miles from the border, a reasonable as compared with some unreasonable a 100 miles searches. It would be, whether there are some reason to suspect or probable cause to believe that the car just come from the border?
Philip A. Lacovara: No sir. We are -- again, this was discussed in the colloquy between Mr. Justice Rehnquist and --
Byron R. White: But then again, you say that no necessity for that?
Philip A. Lacovara: No, because as we have tried to detail in our brief and as reported decisions that we have cited make clear the common aliens smuggling technique is not for the car to pass the border, but for the aliens unlike contraband and this is one of the practical distinctions, unlike contraband which has to be moved by somebody, the aliens can walk across this almost 2,000-mile border even where the Rio Grande, it's frequently affordable and meet someone with whom they have advance arrangements a mile or so inside the American border and be transported into the interior. That is one of the reasons why is a practical matter. It is not feasible to accept counsel's suggestions to undertake all of these searches on the physical border itself. I might say that --
Thurgood Marshall: Best thing that could be done, if they are transporting, he wasn't importing an alien?
Philip A. Lacovara: That's right. The same statute in Section 13-24 of Title 8, makes an offense to smuggle into the United States or to transport within United States an illegal entrant who has not submitted himself to inspection at the border of entry. So it is the same violation. I would like to say that the statistics that are officially published bear this out. In fiscal year 1972, the immigration service discovered 505,000 deportable aliens in the United States. 398,000 of these, Mr. Justice, had not entered through legitimate ports of entry, that is they had crossed the border at places where border patrol, border checkpoints are not established and about virtually all of these 393,000 were Mexican aliens who would come across the border other than at the -- through the checkpoints.
Potter Stewart: Is that -- you say that's not a legitimate point of entry. Is that criminal offense in and of itself? If I were in Mexico and walked across at the border back to United States, that point where there was no checkpoint, will I be guilty of a criminal offense even though I --
Philip A. Lacovara: Well, it applies to aliens, plus any alien who enters the United States other than at a point designated and without inspection, commits a misdemeanor for which the possible --
Potter Stewart: But not everybody who enters the United States.
Philip A. Lacovara: No. If you are citizen --
Potter Stewart: You can walk across anywhere.
Philip A. Lacovara: Yes.
Warren E. Burger: Going back to those circumstances that Justice White was probing at, isn't one of the circumstances that you rely on the fact that this is identified as a habitual smuggling route and road?
Philip A. Lacovara: Yes sir. That we say is one of the important ingredients that the District Court --
Warren E. Burger: And that's the wide open area in which you have enormous difficulty making checks?
Philip A. Lacovara: Yes, the border is 2,000 miles long. There are only 1,400 men stationed there. Even if we had the United States army station there which I suspect, I suggest would be a much more difficult program to adapt for a variety of reasons than of the one that is adapted, it is physically impossible to line every foot of the border to keep people from walking across and the circumstance – the statistics bear this out. 398,000 people out of the 505,000 deportable aliens found in the country had crossed that other than the approximately two dozen legitimate ports of entry along the Mexican border. I should also say in response to a question dealing with the possible criminal aspect of this that we submit that there is justification for relying on this statute as an administrative enforcement mechanism rather than as a criminal enforcement technique. The basic object of the immigration laws of course is not to put people in jail. These are not malum in se violations. This is part of the congressional program of regulating entry into the United States and into the interior. The statistics on prosecution confirm this as I have mentioned 398,000 people were located in the last fiscal year who had technically violated that misdemeanor statute that I referred to Section 13-25 yet only about 10,000 of them, two-and-half percent were subjected to any prosecution at all. Even on the alien smuggling or alien prosecution or alien transportation side, Mr. Justice Marshall, statistics show somewhat similar results. About 5,800 transporters or smugglers were arrested. The felony prosecution was authorized to not only about 10% of those and a misdemeanor prosecution for aiding and abating.
Thurgood Marshall: Could you have stopped to search this car for dope?
Philip A. Lacovara: No sir, not without probable cause. We have consistently taken up the --
Thurgood Marshall: You could stop and search it for an alien?
Philip A. Lacovara: If under all of the circumstances (Voice Overlap).
Thurgood Marshall: (Voice Overlap) where he could not be laying under the back seat and find out?
Philip A. Lacovara: Well, what happened in this case was searching for aliens and (Voice Overlap).
Thurgood Marshall: He saw something that he suspected, so then he took the car apart?
Philip A. Lacovara: Well, he didn't take it apart. He removed the rear sear cushion knowing that there had in fact been aliens discovered in the past under the rear seat and as soon as he looked in the trunk, he saw that there was something different about this rear seat.
Thurgood Marshall: But he couldn't have done it, with the --
Philip A. Lacovara: Not without probable cause. Whether he had probable cause, after he looked in the trunk for aliens to believe --
Thurgood Marshall: Well, I driving down that road is that the reason the question I asked you, how do I know what you are searching for, I don't?
Philip A. Lacovara: Well, I am not sure that is a necessary factor under the Fourth Amendment that you should stop --
Thurgood Marshall: But you are stopping me and I have a right to travel on that public road and I am minding my own business and not be stopped. You have a right to stop me and you can use a pretext if you so desire to look for an alien and look for anything you want to look for --
Philip A. Lacovara: No sir. In the pretext --
Thurgood Marshall: I understand, the only thing you said, you can look in the paper bag for an alien, but you are looking in for drugs?
Philip A. Lacovara: There have been three or four or five reported decisions that I have seen over the last 20 years in which Courts of Appeals have said, although you legitimately stopped this car for aliens and legitimately looked in the trunk for aliens, when you saw something that could not contain an alien, since we find you didn't have probable cause to look for contraband, you've violated the Fourth Amendment by looking in that jacket or paper bag or small trunk. So that the courts have applied the distinction that Congress has drawn. Congress has not purported to authorize searches for contraband inside the border on less than probable cause.
Byron R. White: Do you have any figure -- do you have figures about how many aliens have been discovered in the searches like this?
Philip A. Lacovara: Yes sir. We have --
Byron R. White: How many?
Philip A. Lacovara: Well, out of the 398,000 who entered the country without inspection which means that other than a border crossing point about --
Potter Stewart: Year, period?
Philip A. Lacovara: In one fiscal year of 1972. 39,000 were discovered, 39,000 illegal aliens were discovered, in traffic checks, approximately 10%.
Byron R. White: Within a 100 miles of the border?
Philip A. Lacovara: Yes sir.
Byron R. White: And does that include those that were discovered at the border?
Philip A. Lacovara: No, this is in the traffic checking operation which is inside --
Byron R. White: So these were spot checks within a 100 mile.
Philip A. Lacovara: Well, there are three types. The type that's involved in this case is the least frequently used.
Byron R. White: Well, that is what I wanted to know about this kind of check.
Philip A. Lacovara: Well, it varies from station to station, from local to local. In some regions, up to one-half of the aliens who are discovered in one of the three kinds of traffic checking operations are detected in the roving patrol type. In other locals --
Byron R. White: Does it make a difference to you or to the government in terms of reasonableness if they only discovered one alien out of every million stops?
Philip A. Lacovara: That of course is a circumstance that has to be taken into account in appraising what this Court in Camara and See appraised, the general reasonableness of the administrative program. Once you start changing the factors being weighed in the scales and the balance --
Byron R. White: Spot checking operation without that, based on the assumption that every now and then we're going to find an alien and your claim is that we're going to find them up and that justifies stopping anybody who want to within that area?
Philip A. Lacovara: Yes sir. In our brief, and I mentioned at the outset of my argument, this was not in the record because no one -- it's not in the record, but we have made the representation that on this road in one fiscal year, I believe, it has been a 192 aliens were actually discovered as part of the roving patrol because there is no fixed or temporary fact.
Byron R. White: But you do know how many out of -- out of how many?
Philip A. Lacovara: Not how many out of the 39,000 and I do not --
Byron R. White: I suppose every (Inaudible)
Philip A. Lacovara: I believe that's true, but I am not sure.
Byron R. White: But you do not know how many stops --
Philip A. Lacovara: I cannot give you that statistic. I can say --
Thurgood Marshall: How much dope was found in the same area?
Philip A. Lacovara: We have that statistic in there. At the same time that the 192 aliens were discovered, there were five drug seizures.
Thurgood Marshall: Along with the aliens or separate?
Philip A. Lacovara: The statistics that I have don't show whether they were joint or in addition but I would suggest that indicates that our experienced bears out that the real thrust of this is looking for aliens rather than and as I say, the reported decisions do not indicate that there has been any abuse of this power and the Courts of Appeals, all of the Courts of Appeals that are concerned with this, the Fifth, the Tenth and then the Ninth have all specifically upheld this statute and this regulation as a reasonable exercise of congressional authority under the Fourth Amendment and of administrative interpretation using the case by case method to analyze each particular search under it.
Byron R. White: Was there any checkpoint on this road or --
Philip A. Lacovara: No sir. That was stipulated.
Byron R. White: So this is all there is -- the only kind of a stop that on this road is kind of the stop that was made on this?
Philip A. Lacovara: Yes sir.
Byron R. White: So all 192 were seized?
Philip A. Lacovara: Under roving patrols on this road and if this kind of inspection program is held unconstitutional then there will be -- I must point out that the same rationale would presumably apply to the fixed and the temporary checkpoints inside the border.
Byron R. White: A checkpoint is no better within the 100 miles?
Philip A. Lacovara: Well, unless you wanted to say as in Palmor case I might point out pending before this Court involving also the D.C. Court Reorganization Act, the validity of a stop or spot check of an automobile for a license and registration under the Fourth Amendment is before the Court. Counsel in that case is arguing that a universal check at a road block would be all right, but selectively stopping people would not be. Conceivably, that could be a distinction between roving patrols and fixed checkpoints. But if the court --
Byron R. White: You wouldn't like that?
Philip A. Lacovara: Well, if the Court invalidated the roving checkpoints, so I would be back here next term making that distinction I suspect, but --
Potter Stewart: Mr. Lacovara, you said there were three different methods. One is this roving patrol. We have this --
Philip A. Lacovara: Yes, roving patrol and the other two involve established checkpoints. One is a permanent checkpoint.
Potter Stewart: At our border.
Philip A. Lacovara: No sir. No, no. These are all inside the border.
Potter Stewart: All inside the border.
Philip A. Lacovara: Under the authority of this statute to stop in the interior of the border within a reasonable distance.
Potter Stewart: So one is a roving patrol, the other is an established checkpoint?
Philip A. Lacovara: A permanent checkpoint that is a large capital structure. It's built right across the highway and it has (Voice Overlap)
Potter Stewart: Now why would it be there rather than at the border?
Philip A. Lacovara: Well, we have argued that in our brief because so many people cross at other than the two dozen or so approved ports of entry that what these permanent checkpoints stopped in the interior, they come at confluence of roads and they are also away from the border because there is a lot of ordinary border crossing traffic that goes on legitimately and it would be disproportionately interfering with that kind of legitimate traffic to do all of this kind of inspection at the border. So by the time you get to the permanent or temporary checkpoints within the interior that local traffic has been filtered out. There are about 13 permanent checkpoints, all but one more than 25 miles from the border and all less of course (Voice Overlap).
Potter Stewart: And then the other one is a temporary checkpoint?
Philip A. Lacovara: Well no. There are 13 permanent checkpoints, 12 of them are more than 25 miles from the border. One is closer, the one at the Laredo was closer. And temporary checkpoints can be established from time to time in order to avoid alien smugglers using roads that bypass the established checkpoints.
Potter Stewart: Right and then there is temporary checkpoint, you set it up for a temporary period of time that when during the time it is set up, do you check every single vehicle coming through there?
Philip A. Lacovara: Well, it is the same procedure that's followed at a permanent checkpoint and we have given the statistics on our brief. Approximately 10 million cars passed through temporary and permanent checkpoints in the last fiscal year.
Potter Stewart: At those borders --
Philip A. Lacovara: No, no, only the Canadian. There are only --
Potter Stewart: Only the Mexican border?
Philip A. Lacovara: There are only measures like this on the Mexican border because 95% of the immigration problem is at the Mexican border. The statistics that the immigration service has provided indicate that about 10 million cars pass through one or two of these types of checkpoints near the Mexican border. About 2 million, 20% were stopped only for questioning. Are you an American citizen? Of the numbers stopped, only about another 20% or 400,000 were subjected to any inspection, that is looking in the trunk and only about 2,000, excuse me 2% of those inspected or about 8,000 cars over fiscal year out of 10 million were subjected to searches under the hoods or under the rear seats.
Byron R. White: Has the petition in the statute with respect to searching of real property or (Inaudible)
Philip A. Lacovara: No sir. Not that I have ever seen.
Byron R. White: How old is the statute?
Philip A. Lacovara: That provision was added in 1952.
Byron R. White: And the regulation?
Philip A. Lacovara: The regulation was added in 1952. The statute that is before the Court on the search of vehicles within 100 miles was enacted in 1946.
Byron R. White: And I take it there is a flexibility among the various districts as to whether they are having a 100 or 25 or five?
Philip A. Lacovara: Well, it's flexibility following the factors that are set in the regulations considering topography, confluence of arteries, inconvenience to the traveling, public, population density and reliable information. The local district director decides generally where to set these up but in the case of the permanent checkpoints, since these are large capitals --
Byron R. White: What is the local district director determination?
Philip A. Lacovara: Pardon me?
Byron R. White: What is the local district director determination?
Philip A. Lacovara: Well, in this case, there is no local district determination because this was a roving patrol rather than a fixed checkpoint.
William J. Brennan, Jr.: I gather the, are still roving patrols was no determination whether they want to be within a 10-mile area or 25-mile area or?
Philip A. Lacovara: There is not any explicit determination that is left generally to administer the supervision and in implementing the statute. I would submit that this is like the executive field level discretion that has to be exercised under an arrest statute. The officer has to make his judgment on the spot subject to some guidance.
Warren E. Burger: If you told us before, Mr. Lacovara, I did not take note of it. What checkpoints are in the range of this map of the orders, any at all?
Philip A. Lacovara: None sir, not that I know of. There is a checkpoint on Highway 78 to the West of Brawley, that would be off to the left of the map, but 40 miles are more from where this took place. But the stipulated evidence and at this Court with what I understand the actual experience to be is that in that 40 mile or so, slice of the border or more that is represented by this map, there is no permanent or temporary border patrol or checkpoint. Highway 78, as you will see from the map is about the only road that cuts across this dessert.
Warren E. Burger: That is the one that goes northeast from the circled city?
Philip A. Lacovara: Yes sir, it runs -- Highway 78 runs through Brawley. It's also called U.S. Highway 99 when it is going to the City of Brawley, but it comes -- it cuts through Glamis, the town of Glamis.
Harry A. Blackmun: Isn't there a point in New Mexico?
Philip A. Lacovara: That is a regular border station. That is a port of entry. We're talking in this case about alien checkpoints not at the border. Calexico is one of the five ports of entry in Southern California, but the statistics that I suggest to the court showed that 398,000 people -- 393,000 of the Mexican aliens entered at other than one of these borders.
Harry A. Blackmun: As I understood you say the map did not include any permanent or temporary checkpoint on the (Voice Overlap).
Philip A. Lacovara: Well, it doesn't in the sense that we're using. Well, you're talking about permanent and temporary checkpoints as checkpoints beyond the border of the United States established under this statutory authority. It's conceded by both sides that a point on the border and if someone had crossed at the border and presented himself for inspection as other statutes required, there could have been a routine inspection and thorough concluding physical search of the person without probable cause or without a warrant. But we're talking here about power of Congress to establish a mechanism for enforcement of the alien, smuggling and illegal entry controls that authorizes some inspections inside the border and these are the permanent and temporary checkpoints and roving patrols that we're talking about that are implemented under the statute and regulation. Thank you.
Warren E. Burger: Mr. Cleary, we know of course that a border line is simply a hypothetical line, a thin line made by map maker with a pen. Is there a constitutional barrier do you think for Congress to set up a sanitare zone as it were and say that the border is going to be three miles or five miles wide from the identifiable international boundary, three miles, five miles back, this is boundary borders as far as the United States Immigration and Custom Services are concerned. Would that have constitutional problems?
John J. Cleary: I think it would have constitutional problems, however, it'd be in a much better posture than what we have here, specifically I think what Your Honor might be touching upon which has troubled me greatly about this particular case, is unlike Colonnade and Biswell where there was detailed statutory scheme set up where Congress outlined the procedure here. The statutes has reasonable distance and in the executive through the INS takes over with regulations and they set up the sanitized zone, I would say serious. Now there might be a court case where Congress could create this sanitized area with certain limitations as to the nature of the intrusion that would be conducted limiting also the operation of these various checkpoints. The ironic thing about this case is that the checkpoints are little borders so to speak. If you are stopped on Interstate 5 going towards L.A., at the border what we call as the first stop is just initial check and if you look funny, you are suspicious or anything out of the ordinary, you are kicked over to what they call secondary and there they could literally take your car apart and you have little to say at the border. The question, the ironic thing is when you are stopped at the checkpoints, the INS uses the same term over the secondary with the same limitation. They have created the second border exception. Now, my only reaction is that, it kind of strikes at what the Fourth Amendment has designed to do for the executive do that, but I think the Congress as a lawmaker could sit down and work out certain things. I think also metropolitan areas would be in a different posture.
Warren E. Burger: And I was just going to come to that. I suppose, at least one of the considerations that moved the Congress to give rule-making power in a sense to the service. It was that they wanted to have flexibility for the boundary near San Antonio, Texas or any other densely populated area and broader rule for this big open space that we have got on this map. Is that reasonable?
John J. Cleary: Well, I think that's a possibly giving the counsel too much credit because the analysis, the legislative history is very sparse on this particular statute and further, I think this was a response to an exhortation of the government to include this amendment about reasonable distance and I feel that the matter was not properly dealt with by Congress in present posture of this case and that given the areas though, even open or desolate areas as they might be called, the person in those areas is no less of a person under our system of government than say, someone else so that the camper in that area who is a transient or the resident in that area, really because he is so fortuitously located near the border, so not subject him to some type of police surveillance to which, it's our contention of Fourth Amendment would prohibit. In the posture of this case, I would also suggest that like the Carroll decision where they were looking for alcohol and not an administrative regulation just eliminating alcohol, here they're looking for aliens and the alien himself, one alien, no matter how big or how small is in violation of the statute, is present in the country, in violation of 1325 as counsel has pointed out. The person carrying him is in violation of 1324, a felony dealing with either transporting or the bringing in unlawfully of aliens and further, that a man who comes back the second time after having been deported is not just a person we're going to slap on the wrist but who is subject to a felony prosecution under 8 U.S.C. 1326. This is criminal business. Further, the other difficulty is in this particular matter is the scope with the search. Now, counsel has said that there are few cases litigated about how far the immigration service go. I think there is quite a few and not only that, but at the district court level, we had a case where the agent with his unique olfactory senses discovered what he thought was marijuana by sniffing hard in the vehicle. He sniffed so hard that he opened up the suitcase and there it was, narcotics. He went to court. The only trouble was when the motion to suppress was granted, it was cocaine in the suitcase rather than marijuana. Another situation turned up on how far they go in locating aliens. There were two suitcases together. Neither one of which would hold an alien and they searched both trunks and the Court said, well that is not a very good thing, they had it go all the way to the Ninth Circuit, you should have pushed the cases apart before you started to look for an alien because it although was physical possible. And I think that there is a certain amount of gymnastics that go on to allow legitimate law enforcement inquiry. But I think in this area, if there is a reasonable bar as to contraband, a far more serious, a more harmful thing to our national interest. Then that bar should stand also as to aliens.
Warren E. Burger: Would you think if Congress had the power to create some kind of a sanitare zone or cordon, they could require everyone in that area, day or night, 24 hours a day to have a pass?
John J. Cleary: Well, Your Honor, I cannot speak as to the law but speaking as American citizen, I think that smacks of something that just so grows with our way of life that I can never understand Congress doing something.
Warren E. Burger: You don't have that same objection about a passport to leave or enter the country?
John J. Cleary: No sir, I do not. But that is at the border and that is if I leave this country but here in this country, if I carried something like that, I would have to start checking out my arm for some type of tattoo. It smacks of a form of government and so (Inaudible) that I doubt if there were something like that dealt by Congress.
Warren E. Burger: What specific provision of the constitution would you think could be the barrier to that?
John J. Cleary: I am at a lost to a respond to, Your Honor. Mr. Chief Justice, I could not say it is just --
Warren E. Burger: Not in this case, so we will not directly involve so I do not hold your turn. But would you think there is a Fourth Amendment problem there if people are required to carry and show their pass that this would be unreasonable?
John J. Cleary: I think so. I think also a Fifth Amendment going back to Shapiro versus Thompson and all the other ones on the freedom of movement concept. There is clearly law and I fully agree with the right of aliens, carrying identification cards, the I-151, that is I think is legitimate, clearly legitimate. But for American citizen to carry identification in that type of area, it might be also be an equal protection argument that a person is inside and not on the sanitized zone. Why would he not have to carry such an application. It's fraught with problems of course. It's not here before you in this particular case. I think there is much ingenuity that could be worked out by Congress that was not handled in this particular case and I think that is one of the troublesome aspects.
Warren E. Burger: Thank you Mr. Cleary.
John J. Cleary: Thank you very much.
Warren E. Burger: Mr. Cleary, you appeared here by appointment to the court after your colleague, unfortunately became incapacitated and on behalf of the Court, I want to thank you for your assistance to us and of course your assistance to your client.
John J. Cleary: Thank you so much, Mr. Chief Justice.