Warren E. Burger: Mr. Frey, you may proceed.
Mr. Andrew L. Frey: Mr. Chief Justice and may it please the Court. This case is here on the Government's petition to review the judgment of the Court of Appeals for the Ninth Circuit, reversing respondent’s conviction for transporting aliens who were present in this country illegally. The reversal was predicated on the ground that the stopovers respondent's car and the ensuing inquiry as to the nationality of its occupants violated the Fourth Amendment, and the testimony of trial with the aliens who were being transported by respondent was the fruit of the poisonous tree, and that their testimony should have been suppressed. Respondent was arrested on the evening of March 11, 1973 by two border patrol officers who were on duty on a patrol car, stationed at the San Clemente checkpoint. The checkpoint was closed at the time due to inclement weather. The patrol car was parked at right angle to the highway with its headlights directed toward the highway in such a fashion that it could -- would illuminate the passing cars. The officers observe respondent's car passed by containing respondent and two passengers, all of whom to appeared to be of Mexican decent. They pursued and stopped the vehicle for what they characterized suppression hearing as a routine immigration inspection.
Byron R. White: Mr. Frey, did they close these checkpoints who know the weathers about?
Mr. Andrew L. Frey: They closed them for various reasons. There is a concern about the effect of the checkpoint operation on the flow of traffic. And at times when traffic is heavy for instance on Sunday afternoon, they normally feel compelled to close the checkpoint down because it’s interfering too much with the normal flow of traffic.
Byron R. White: Wasn't interfered with traffic isn't it?
Mr. Andrew L. Frey: Well, the board --
Byron R. White: -- just wait till Sunday?
Mr. Andrew L. Frey: The board -- well, that that is a problem and in our reply brief in Ortiz, we have a footnote which indicates what happened when one Sunday quite unexpectedly, they kept the checkpoint open, and they caught exceptionally large numbers of illegal entrance on that occasion.
Byron R. White: Well, what is that (Inaudible)?
Mr. Andrew L. Frey: Well, it is a problem and the border patrol believes that it its responsibility to attempt to balance its interest in apprehending aliens with the interest of motorist on the highway to proceed without a two-hour traffic jam. We try to avoid that kind of imposition on the traffic. Now of course, it does -- there are holes in the system. It is possible for a skilled, knowledgeable smuggler and many of the alien smugglers are highly sophisticated. They have drop houses and near the border, they have scouts who go ahead and phone back and so on. It is possible for -- to evade the system, and that is not air tight.
Warren E. Burger: Well, in some prior casement to try, don't recall which one, not Almeida-Sanchez, I think before that. There was reference to in occasion when this strict border search that Mr. Justice White alluded to was enforced for some period of time, resulted in diplomatic representations by the Mexican Government to the state department of the United States.
Mr. Andrew L. Frey: I'm afraid I'm not familiar with that.
Warren E. Burger: Was that in the case -- you're not familiar with the case?
Mr. Andrew L. Frey: I would say though that even at the border, the question of how closely they search people's bags, how many people, what proportion of the entrance arriving at the port of entry or search at the Dallas Airport of something will depend on the volume of people. If there’s a three 747's that just come in with a large number of people, checking is going to be somewhat more cursory, more people will probably passed through by customs without a care for search of their baggage. These are the accommodations to the exigencies of the situation. In any event in this case, they questioned the passengers in English which they appeared not to understand, and then in Spanish concerning their citizenship, and they discovered that the passengers had no papers authorizing them to be in the United States. Respondent and the passengers where then arrested. The suppression hearing took place prior to this Court's decision in Almeida-Sanchez and there was a quite cursory exploration of the circumstances surrounding the stop.
Warren E. Burger: The suppression of what?
Mr. Andrew L. Frey: Well, there was a motion made by respondent to suppress testimony of the aliens as the fruit of an illegal search. At the time, it was I think quite clear to everybody on the Ninth Circuit law then that that motion had no hope of prevailing at that time. And as I say, the -- I think, it was actually held on the day of trial and denied. The only inquiry into the particular reason for selecting respondent's car for a stop was made in the form of a couple of leading question asked on cross-examination by respondent’s counsel. Now on appeal, the Court of Appeals first considered the question of whether this was a roving patrol or a checkpoint stop and decided that it was more properly characterize as a roving patrol and we haven’t challenge that characterization here. If the side of the roving patrol stops are invalid and the absence of a warrant or particularized found that suspicion. I don't even think it's -- it didn't suggest that a warrant would do, but in this case of course, there was no warrant. It consider this conclusion to flow from the decision of this Court and in Almeida-Sanchez and from this Court’s reliance on Carroll which I point out Carroll is square with Almeida-Sanchez in the sense that Carroll involve a roving patrol search. The other cases we have here are not -- are distinguishable from Carroll. One on the basis that they involved checkpoints which we say are different and in this case that we're not seeking here the authority to search, but simply to stop and Carroll was not concerned with a pure stop, but rather with a search of Mr. Carroll’s car. We submit that there is a substantial constitutionally significant difference between a search of an automobile and a stop for the purpose of briefly interrogating its occupants regarding their right to be in the United States. And that with respect to stops within the reasonable distance of the Mexican border, this Court should honor the congressional judgment that warrant will stops for this limited purpose, a reasonable and proper to held enforce a vitally important congressional policy to limit the influx of aliens for residence in the United States.
Harry A. Blackmun: Let's see if I follow you there Mr. Frey. In other words, if this were in Chicago, you wouldn't be defending it? I think you say --
Mr. Andrew L. Frey: Well, we would have to look at the circumstances. We would not -- we do not assert a right to stop cars on a random basis or without particularized suspicion in Chicago. There is an issue if we believe that a car contain an alien of if we believe that a pedestrian was an alien. Subsection 1 of the statute appears to confer a right to interrogate that person. I basically rely in this case on Subsection 3 rather than on Subsection 1 of Section 287; that is I'm relying on the -- I'm contending that stop and question authority is necessarily encompass within the authority that Congress conferred to board and search. And that although to the extent that purported to give that authority to search on roving patrols in Almeida-Sanchez, this Court held that invalid. We think that the lesser authority at stake in stopping and interrogating is constitutionally permissible and that the statute should be upheld in that regard.
Potter Stewart: You say you relying primarily on 1 and/or 3?
Mr. Andrew L. Frey: Primarily on 3, within the border area. In other words, our position is that we have a superior, a greater right to stop and interrogate within a reasonable distance of the boarder then we would have outside the reasonable distance of the boarder. I think we've tried to make it clear in our brief that we are not saying that we could setup a checkpoint on road between Omaha and Des Moine and do the same thing.
Potter Stewart: Well, I think I'm right on remembering that Terry against Ohio said in passing in that opinion that any policeman can interrogate anybody about anything at anytime constitutionally?
Mr. Andrew L. Frey: That's true, but we have here more than a simple interrogation in order to get to interrogate respondent, we have to stop his automobile.
Potter Stewart: Well, if he were a pedestrian --
Mr. Andrew L. Frey: If he were a pedestrian, I think there would be a basis for arguing that you could go up to him and simply say “I'm an officer of the immigration service and --
Potter Stewart: Did you see a man go by here in a white hat?
Mr. Andrew L. Frey: Or indeed, are you a citizen of the United States?
Potter Stewart: Or are you a citizen of the United States?
Byron R. White: But you want to do more than that, do you?
Mr. Andrew L. Frey: Yes.
Byron R. White: Terry in those cases would indicate that if a person says none of your business, go on -- it's just any citizen, then it’s without reasonable suspicion, they couldn’t hold the person. You're suggesting you can only stop but you can hold them until you ask the question?
Mr. Andrew L. Frey: That's correct. When I get into the legal portion of the argument, we're suggesting that --
Byron R. White: -- or reasonable suspicion, the officer supposedly could hold them until he finished his questions?
Mr. Andrew L. Frey: That's true. Now of course, respondent says --
Byron R. White: But just with any other citizen know?
Mr. Andrew L. Frey: If they were no -- I don't believe that a police officer could forcibly detain just any person.
Byron R. White: You're saying that because it wasn't a reasonable distance to the border, you do have a greater power to stop and then interrogate and just with any citizen on the street?
Mr. Andrew L. Frey: Absolutely.
Byron R. White: Yes.
Mr. Andrew L. Frey: Absolutely. And I think the statute makes that distinction and we rely on 3. There is an argument about what Subsection 1 means because Subsection 1 talks about a belief that the person is an alien. Subsection 3 requires no belief of that sort. I think it would be debatable as to whether we would have the authority under Subsection 1 to forcibly detain somebody within the border area within the 100 miles without a belief that he was an alien. There would be some problems under the language of the statute.
Potter Stewart: And where is 3 give you the power to forcibly detain somebody?
Mr. Andrew L. Frey: Well, 3 gives us the power to stop and search as we construe it.
Potter Stewart: To board and search?
Mr. Andrew L. Frey: To board and search.
Potter Stewart: Any vessel?
Mr. Andrew L. Frey: Well --
Potter Stewart: At any railway car, aircraft and vans or vehicle?
Mr. Andrew L. Frey: Well, vehicle. In this case, we're --
Potter Stewart: Board or search? I thought rather that was referring to the practice used to be with -- when people travel by ship rather than by airplane or --
Mr. Andrew L. Frey: There is --
Potter Stewart: -- going out beyond Ambrose Winder -- up to Ambrose Winder, the custom’s official boarding the vessel out there, beyond our borders.
Mr. Andrew L. Frey: Well, the statute is derived from authority at the border with respect to stop vehicles, but I think it’s entirely clear from an examination of the history of the statute that this was intended to confer the power to stop a moving automobile. And that was not doubted in Almeida-Sanchez, and I think it's quite clear that the statute already contained the language board and search. In 1946, what Congress did was it remove from the statute the requirement that there be a belief that the person be an alien, and it introduce then to the statute the right to make this search within a reasonable distance of the border and not simply at the border. And I think if the court looks at what Congress did in 1946, there -- I don't think there's any serious question that Congress intended to confer this power that intended to confer the power to search. We say this is necessarily included within the power to search is the power to stop.
Byron R. White: -- within the border area that you think this special rule applies, are you urging that you must have the power randomly to stop? Or do you say we -- it's only one in immigration officer or border patrol officer believes there’s something suspicious?
Mr. Andrew L. Frey: No. We say that we have the power to stop randomly. I would like to make a point in connection with Terry. We say we have the power to stop and interrogate randomly.
Byron R. White: Randomly, as a deterrent?
Mr. Andrew L. Frey: As both of deterrent and apprehension tools.
William O. Douglas: -- which makes irrelevant from this case that they thought that these to look Mexicans they thought they’re Mexican or anything else?
Mr. Andrew L. Frey: I think it's completely irrelevant. Now, I could picture a case in which the individual stop was let us say a 60-year-old lady who was alone in her car and who was clearly Anglo-Saxon, and her car was stop for simply for the purpose of asking her about her citizenship and --
Byron R. White: Or if you stop the moving vehicle.
Mr. Andrew L. Frey: Well, I'm not talking about search authority. Now, I'm just talking about stopping and asking the person in the car with their citizenship is, and I -- such a person might be able to argue that while it’s true that ought to have random power --
Potter Stewart: You might be know --
Mr. Andrew L. Frey: It's unreasonable to stop me because she might be, that’s true. But of course, the conditions in the Mexican border area that justify the power that we are asserting here and that we say make this case distinguishable from Terry's articulated particularize suspicion requirement is an applicable to Mexican.
Potter Stewart: What you say is that in this area within a reasonable distance of the border, there is the generalized justification to make the random searchers of anybody that is equivalent to the particularized justification that the court found in Terry?
Mr. Andrew L. Frey: That's correct.
Potter Stewart: Is that it?
Mr. Andrew L. Frey: That's correct.
Potter Stewart: Because of its proximate remedy that border is now become a generalized to support a random search of anybody.
Mr. Andrew L. Frey: Because of the particular conditions that is existed --
Potter Stewart: Where is the equivalent and particularized hunt your suspicion --
Mr. Andrew L. Frey: -- is the equivalent of --
Potter Stewart: With respect to Mr. Terry on the street of Cleveland, Ohio.
Mr. Andrew L. Frey: That's correct. In the case of Mr. Terry, it was obviously necessary for the court to require specific facts relating to Mr. Terry because otherwise, you would have a rule that would leave -- the police have liberty any place in the country to forcibly detain anybody with no reason at all. Now here, we're saying there's a substitute.
Byron R. White: Yes. There's another analogy be you say in the San Diego to police were making a license check for automobile licenses, or for driver’s license.
Mr. Andrew L. Frey: Oh, we think this is quite analogous to a driver's license check, although we think that the showing of the constitutional equivalent of probable cause that we can show here is far greater than any that can be shown to justify stopping people for a license check, because we think that what’s at stake here is literally -- the problem of --
Byron R. White: You wouldn't say though that in some other city, Memphis, Tennessee -- that you could just stop anybody and forcibly detain him while he is required about his citizenship.
Mr. Andrew L. Frey: No. We're not asserting the authority to stop anybody in Memphis, Tennessee and forcibly detain them, unless, there might be circumstance --
Byron R. White: -- who are in the Southern California.
Mr. Andrew L. Frey: We are in Southern California.
Byron R. White: -- and detain them until you ascertain with their citizens or not.
Mr. Andrew L. Frey: We are asserting --
Byron R. White: Only for a brief time.
Mr. Andrew L. Frey: For a brief time, we consider -- I mean, to call it a forcible detention for most people who drive along the highway, it’s a question of stopping your car. The officer comes over. He says you know, what is your citizenship? If they are not been citizen --
Byron R. White: If you're last in line of a hundred cars and you're in a hurry to get home one Sunday night, that's quite a while --
Mr. Andrew L. Frey: But that's one of the reasons why the border patrol are sensitive to those concerns, closes the checkpoint so it does -- it avoids the situation in which you have a hundred cars backed up. The way the San Clemente checkpoint operates, it does not stop every car. The figure of 99.9% that was given to you in the last argument with respect to the number of aliens that are apprehended is a terribly misleading figure because what was done there was to compare the total flow of traffic across the road with the number of aliens who were caught. But the vast bulk of the traffic is not stopped. We do not stop every car in a highway like San Clemente where the traffic is extremely heavy, a very small proportion or stop. Now of course, many are required to slow down as they go by the checkpoint. That is an inconvenience. We think that the constitution does not prohibit our subjecting people to that kind of inconvenience to serve the vital objective that this program is design to serve. Now, I think it's important to --
Warren E. Burger: Excuse me. Before you go on with that, sit back and track your argument on applying the Terry stop principles to the situation. You say that -- but then a reasonable distance of the border, the officers may stop any car for any reason just to ask him questions?
Mr. Andrew L. Frey: Without any particular reason?
Warren E. Burger: Without a particular reason.
Mr. Andrew L. Frey: Yes.
Warren E. Burger: Without probably cause.
Mr. Andrew L. Frey: Or even found it suspicion, right.
Warren E. Burger: Now then, when it develops at that point that the occupants of the car or some of them cannot speak English, are you suggesting that a probably cause then comes in to be in?
Mr. Andrew L. Frey: Yes. I think Mr. Chief Justice that there is no serious dispute on that, that is if we were entitled to stop respondent’s car, I don't think there’s any serious challenge that once they shrug their shoulders and didn't speak English, we had an effect probably cause for the -- and suing arrest. The focus of this case is on whether we could stop this in the first place and get to ask the question. And of course, if we can't stop this car, then we have no way of interdicting with the flow through in our view.
Warren E. Burger: Well, taking that step-by-step, you would claim the same right in Des Moines, Iowa necessarily.
Mr. Andrew L. Frey: No we wouldn't, unless there were special conditions that I don't think exist in Des Moines, Iowa.
Warren E. Burger: You're saying that probable cause arises from the inability of these people to speak English because they are in close proximity to the Mexican border?
Mr. Andrew L. Frey: Well, no. But well, let me make a distinction Mr. Chief Justice. There are -- the distinctions that are constitutionally portent and those that are made by the statute. The statute makes a distinction between the area within a hundred miles of the border and the rest of the country. The interrogation authority that the statute confers which is nationwide is restricted to persons who were believed to be aliens. Now from the constitutional standpoint, the court asks us what is our justification for impeding people in going about their business from making them stop their cars and roll down their windows and answer a question, and we are saying that in this case and in this group of cases, the constitutional justification is that there are special in the area of the Mexican border, that these problems are enormous, that the traffic check operations are vital to our system of stopping the inflow of illegal entrance from Mexico into the interior labor markets. That is our constitutional justification and we're relying on Camara together with Terry. We rely on Camara for the portion that says we don't need special focus probable cause when we have shown conditions which we say in gravity for our society far out way the kinds of things that see and the Camara, we're concerned with housing codes whether the basement, apartment, in an apartment building was being used for residence.
Byron R. White: What basis was the man arrested?
Mr. Andrew L. Frey: He was arrested for the offense of transporting -- knowingly transporting aliens who are illegally in the country.
Byron R. White: At what point was he arrested at?
Mr. Andrew L. Frey: After it turned out that the aliens both couldn't speak English and when they were interrogated in Spanish had no papers whatsoever indicating their right to be in the country.
Byron R. White: But they weren't arrested until after that?
Mr. Andrew L. Frey: They were not arrested.
Byron R. White: Not on the fact that they couldn't speak English.
Mr. Andrew L. Frey: No. That was -- they were then ask whether they had papers since their presumably, they might not be able to speak English, that they might have been lawfully admitted. But if -- but an alien, even if he's lawfully admitted has a duty to carry around -- I think it's a 151, and he can be ask for that. The only problem is whether we can woke up to somebody in the street not knowing that he is an alien, but thinking that he might be, that that’s an issue.
Byron R. White: -- that within an area near the border --
Mr. Andrew L. Frey: We could stop a car. Another point, I don't --
Harry A. Blackmun: You said earlier, you thought there might be a distinction between the old lady driving the car and these people, and I swear I don't understand this. I don't apply to what you just said --
Mr. Andrew L. Frey: If I were representing the old lady, I would say that while it's true that the Government may have a right --
Harry A. Blackmun: No, it isn't.
Mr. Andrew L. Frey: Well, I was responding to the question of Mr. Justice Brennan's.
Speaker: Before the question, you said he's representing them.
Mr. Andrew L. Frey: I'm trying my best.
Byron R. White: Well, what's the answer?
William J. Brennan, Jr.: What is the answer? What is the distinction?
Mr. Andrew L. Frey: The distinction is that -- is that -- it's not -- I'm saying that we have a right to stop anybody. Now the question is in particular circumstances, we might unreasonably exercise that right. Suppose we have -- suppose someone had going through the San Clemente check --
William J. Brennan, Jr.: If you have the right to stop like random stops, I don't understand.
Warren E. Burger: It cannot be.
Mr. Andrew L. Frey: I don't think it's a matter that -- I don't wish to spend very much time. I could picture an argument being made which I don't think can be made by respondent. If we have just stop him at the San Clemente checkpoint, searched his car, interrogated him and say drive of, and then we followed him and stop him again two miles down the road, somebody could say that was unreasonable. We have no issue of anything like that here. That's the point that I'm making.
William J. Brennan, Jr.: -- we have the officers sitting at the side of the road with the headlights on the cargos back, it's an old lady in it, and you stop --
Mr. Andrew L. Frey: They would have a right to stop it in our view, yes.
William J. Brennan, Jr.: But I thought you said.
Potter Stewart: Those old ladies can be very suspicious sometimes.
Mr. Andrew L. Frey: The question, there is a question apart from the statute and apart from the general area probable cause. There is a question whether in particular circumstances, a search was unreasonable. For instance, if we yank somebody out of the car and put him up against the car and padded him down for instance, that would be an unreasonable search on our part. That's all I need to say is that there could be an argument --
Potter Stewart: Because I understand now that you're asserting in this case the right to search and all of it’s --
Mr. Andrew L. Frey: Not at all, not at all.
Potter Stewart: -- and ask questions, is that right?
Mr. Andrew L. Frey: That's it, the right to stop --
Potter Stewart: I understood based upon my reading of the opinion of the Court of Appeals that you're relying on Section 1357 (a) (1), and you’ve now --
Mr. Andrew L. Frey: No. They discussed the --
Potter Stewart: -- accuse me of that misunderstanding. I gather you made the different -- the Government made the different argument on --
Mr. Andrew L. Frey: Well, I'm -- I'm not certain what the Government argued there, but the Court of Appeals was talking about the Bowman case in the Tenth Circuit and the Bowman case relied on (a) (1). And the Court of Appeals said “well, if you rely on (a) (1), what you’re claiming is a very broad authority of a kind that we're not prepared to say the Government has.” And all that I'm saying here is that we are not relying -- we're not saying we could do the same thing anyplace outside the border area. What's the stake in this case is whether we can deal it within the border.
Potter Stewart: In Chicago or in Omaha or St. Louis, you can -- your people can walk up to anybody and ask him?
Mr. Andrew L. Frey: Yes. But if this --
Potter Stewart: With or without a warrant?
Mr. Andrew L. Frey: Without a warrant.
Byron R. White: But if they say that go about your business, I don't want to answer a single question, you're not suppose to hold them? Here, you say you can hold them to ask them questions, what is it?
Mr. Andrew L. Frey: Well, I'm -- we say we can hold them here. I don't see that is fruitful really to get into the -- we say that this is different.
Byron R. White: Oh, it's fruitful, and it is so fruitful that the Ninth Circuit (Inaudible)
Mr. Andrew L. Frey: Well, I'm not sure as to what they thought we were wrong, but they would not attack it. I take it, they would not take issue with our contention that we don't rely on the Bowman analysis that we could do it anyplace in the country. We're saying that it does make a difference that we're in the border area here. Now the reason the Ninth Circuit thought we were wrong unanimously, I believe was a product of a superficial analysis of the issues on their part, and the same superficial analysis it’s seems to me is contained in the respondent’s brief. He looks at the Terry case and he says Terry requires articulated suspicion. Well, the answer to that is that as I've said before, there are reasons why you have to have that in Terry. Here, we are dealing with the situation where we have a constitutionally acceptable substitute for particularized suspicion. If you look at the Camara decision Mr. Justice White, they're spelled out the factors, the persuasive factors that combined --
Byron R. White: -- the court that is.
Mr. Andrew L. Frey: --the court, I'm sorry, and then your opinion, spelled out the fact that persuasive factors that combine to support the reasonableness of the inspections there. It pointed out that there was a long history of judicial and public acceptance. Now, we believe that the statute reflects a public judgment that that Congress has may on behalf of the people that we’re willing to submit ourselves to this kind of intrusion for the purpose of accomplishing the objective of preventing illegal entrance from gaining access to the interior. Second, the court pointed to the public interest that was at stake and we've heard a lot about that, and the lack of other canvassing techniques. Now, you've heard before that there are other techniques. We, of course, are not going to give up our efforts to detect and return illegal entrance to their homeland, even if the traffic checking operation is stopped. But we think that the traffic checking operation is a vital link. We think it's the -- it's instrumental not only in the people that captures were chooses substantial number, but in the people that discourages from attempting to gain entry into the United States. I think I like to save couple of minutes for rebuttal if I may.
Warren E. Burger: Very well Mr. Frey. Mr. Cleary?
John J. Cleary: Mr. Chief Justice and may it please the Court. I don't mind having my brief called superficial if the unbanked Ninth Circuit's reasoning is called superficial. This case raises a constitutional question of the highest magnitude, and would be the contention of the respondent that Terry versus Ohio in the analysis in Adams versus Williams did not affectively answer any of the questions here because in Terry versus Ohio, there was an interference with the liberty of a person on the street which was held to constitute a seizure, such as to bring in to play the Fourth Amendment, and for such at seizure to take place, there must be objective, articulable facts to justify that seizure. This Court never reached the issue of interrogation at that point, but held that under the concept of the protective safety of the officer, the officer could pack down a minimum intrusion. And I believe Mr. Justice White in his concurring opinion pointed out that the man could not be in anyway compelled to answer any questions under those circumstances that it had not been reached, even if there was that reasonable suspicion. Further this Court in Adams versus Williams decided that there must be two requirements for such a momentary stop and relied upon Ninth Circuit precedent, Wilson versus Porter. Mr. Justice Rehnquist speaking for the court said one; I focus suspicion and two, facts. The intrusions and both of those cases involved one, a person on the street, the other, a parked car. In this case, we have a car moving down the highway, an interstate highway flagged over by law enforcement officers at Wilmer Caprice for whatever reason. There is a killer who is executed in California, Mr. Chessman for using the red light technique of flagging cars over. I would contend that that intrusion is of a most important magnitude. I would start off by saying that the Government in this case is not giving you the full flavor of the statutory analysis involved that we are seeing a gut -- a visual reaction of the Government saying “we need these things, therefore we’re going to have it.” There is a serious obstacle involved and it's not the checkpoints to alien traffic. It's that our Government was founded on the principle, over 200 years to go. The famous James Otis case in 1761 with the writs of assistance, on that, we don't substantiate the hunches, the ESP, the sixth sense of law enforcement officers. In that case, the famous writ of assistance case, they ask merely customs officers to get untaxed goods in the port of entry. And although with the English judges, they did get that right, which of course lead to the Fourth Amendment. I'm saying that in this particular case, we are deeming with the point, some 66 road miles from the border, lot further and then Boston was from the external territorial limits of the United States. The statutory history start in 1862 with the Collie Trade Act, and to that first statute, we have dealing with the regulation, a person from outside countries are racial tone involved most assuredly was that we required reasonable cause. The statutory history mounts forward, step-by-step; there is reasonable cause, probable cause. In 1891, the predecessor as just Justice White analogized in his dissenting opinion. We have 1225 (a) which is now Section 235 (a) of the Immigration Act of 1952. That was the right at the border to exercise any powers of inspection, and that right was developed onto 1917. And in 1917, it was expanded to the first time to allow bordering and searching of vehicles which they, the officers believe are bringing aliens into the United States. In 1925, just like Carroll, they've done for the law enforcement officer excused the warrant. So, we now have a new section that pops up, ironically created an appropriation bill that gives an exception to the warrant under certain circumstances. That statute in 1925, the source of 287 today tracks identical language from the original one that says that they, when they believe that the vehicle is bringing aliens into the United States. In 1946, the Attorney General and his one line letter said “We'd like to have the power to stop and search.” Congress merely gave them the right to continue boarding operation did not deal with the fundamental question now before this Court the right to interdict traffic on a highway moving throughout the United States. We're dealing with a fundamental right. In 1952, the limited legislative analysis which now creates both sections, 1357 (a) (1) and 1357 (a) (3) was early, but 1357 (a) (1). We have there Congress saying at the border, we don't want indiscriminate questioning or harassment of citizens returning to the United States and would expect that even at the border, probable cause would be necessary to question citizens that they are committing a crime or about to commit a crime. That's the legislative history behind the act. Justice -- Judge Browning in his dissent in Almeida-Sanchez referred to the fact that even the legislative history clearly announced that constitutional requirements will be consisted and interposed upon this statute and that the act have to be read in such a fashion.
Byron R. White: If your argument that at the border, there must be probable cause?
John J. Cleary: No Your Honor, it is not. I'm saying that --
Byron R. White: What was the authority to not the people or not people to border and interrogate?
John J. Cleary: The authority in my mind Your Honor would be Boyd versus the United States, 1886, Carroll versus the United States which indicated traditionally.
Byron R. White: No, but the constitution. How about the statute?
John J. Cleary: The statutory authority would exist under 1225 (a).
Byron R. White: How about 1357?
John J. Cleary: 1357 is the exception to the warrant that makes no reference to at the border. If you read each one of those four subsections --
Byron R. White: Oh, I've read it, but -- and on their face that on the face, the language of 1257 -- 1357 (3), it just said you may assert.
John J. Cleary: I read 1357 (a) (1) says that a reasonable distance.
Byron R. White: Yes.
John J. Cleary: You may conduct a search.
Byron R. White: But it certainly includes at the border.
John J. Cleary: Because I think what there's --
Byron R. White: Include them all.
John J. Cleary: I would not -- I would think that it's covered already in 1225 (a), and if one trace is back, the legislative history back to 1891, you will see that the right to stop at the border was early recognized in our country, in fact with the original act in 1875. And so that my contention is that although 1357 (a) (1) does give at a reasonable distance from the border, it must be taken in context with the empowering section which is 1225 (a), and this is the accepting for the warrant section. In that case, the switch was made in 1946 where the language was change not in 1225 (a), but --
Byron R. White: You didn't -- at the border, all you need is 1225, I take it.
John J. Cleary: That is correct Your Honor.
Byron R. White: To the best of either warrant are probable?
John J. Cleary: That is correct. They have medical inspections in the same original legislation that talked about the right to examine the person at the border, and that was the genesis.
Byron R. White: But 1225 doesn't say at the border here?
John J. Cleary: Yes it does. It says the right to enter the United States. Reenter it says all inclusive and upon goes at the earlier legislative sources of this legislation and will see them was oriented at the border, and then was expanded as it has been expanded to today. And the contention I would make is in looking at 1357 (a) (1) on (a) (3), once you look at 1357 (a) (2) and (a) (4) under the concept of sui generis. And there, the right to arrest an alien for a violation of alien law must require the likelihood of escape. Otherwise, they have to resort to a warrant. In a fundamental power to make a felony arrest which is authorize in immigration officer in Subsection 4, there is a statement that there must be the likelihood of escape. And even further, it must be in the sense, if I'm not mistaken, require that the likelihood of escape and the first section, Section 2 requires in his presence or view. I would point out further that one of the most troubling concepts we have here is that this was an application of 1357 (a) (1). I heard that Deputy Solicitor General tell me that the Court of Appeals went on 1357 (a) (1), I was there at oral argument embank. At that time, the Government counsel relied upon the Escape Clause, he could see he was going down on 1357 (a) (3) with the other cases and sought to justify a distinction and generated 1357 (a) (1). And ironically, you might ask that a court which is otherwise split comes down to track unanimous on 1357 (a) (1). And the reason why is, is that by the all courts, even this Court has different viewpoints, there is sometimes accommodation. And that the big point to made in 1357 (a) (1) is that with Carroll, and the interpretation in Almeida-Sanchez, even a stop, if one was to scrutinized Supreme Court precedent requires probable cause. And at least we can do is under these circumstances, no matter where it might be, require a reasonable suspicion which was in some way, articulated by this Court in Terry versus Ohio. And it's the same analysis that was used by the DC Circuit in the Aline Wong case which is the basis for the Ninth Circuit's a dash of that rule in not adopting the Tenth Circuit’s analysis which of course was asserted by this Solicitor General in saying why there was a confusion on the interpretation of 1357 (a) (1). I would contend that was before the Court right now as 1357 (a) (1).
Potter Stewart: The Ninth Circuit, it's now settled after this case I gather, requires what it calls a founded suspicion for a stop, is that it?
John J. Cleary: That is in fact Your Honor, it requires a founded suspicion to believe that there's illegal aliens and what the court felt was that under Wilson versus Porter, it required for any interdiction of highway traffic, there must be founded suspicion. They felt that they were bound in by that precedent and could not use this euphemism of alien searches to justify this type of conduct, absent a functional equivalent. I would point out further that the interesting thing in this case is that we have the statute, and it's a good reason why the Government backs away from 1357 (a) (1) is one, they can't show actual knowledge of an alien, and the second step is a person believe to be an alien. Can they say that a person who appears to be of Mexican decent in the area of Southern California contiguous with the Republic of Mexico constitute some rational basis, reasonable suspicion that that person is an alien. I would contend if such ever was the case that would be rank racism.
Potter Stewart: I suppose that the -- you're just talking about words. Unless you believe the person subjectively, subjectively believe him to be an alien, you wouldn’t stop and ask him. Not, not -- the statute didn't say unless it's a rational grounds for belief that he's an alien is believe by somebody to be an alien. And if he weren't believed by the person to be an alien, he wouldn't be stop and ask, would you?
John J. Cleary: Well, I think there has to be a belief that a person is an alien, and then the question is can it be purely subjective, that is to say can the officer use anything whatsoever, and I would have to say that under eh Fourth Amendment analysis, there has to be some basis to a reviewing court that that was in a sense based upon something and not purely arbitrary that there has to be something more than a hunch.
Potter Stewart: The statute didn't say that.
John J. Cleary: The statute does not say that, but the point is that one who believed to be an alien would have to be construed. I think consistent with the Fourth Amendment and I think that is the position here that we would take that under Terry versus Ohio, that there must be at least two criteria. One, suspicious circumstance, and two, objective articulable facts, and we contend that the Ninth Circuit’s construction is consistent with the statute, that implements the statute and at the same time gives validity to the Fourth Amendment. The more important thing is that the hunch of the officer can be used and abused. In this case, we make note of that because here, the only articulable basis given in cross-examination was that the person appeared to be of Mexican decent. I would suggest to the Court that we are dealing here with a problem in the area of the Mexican border, and that is the analysis. Well, let us take a look. What do we mean by area of the Mexican border? Well, we know is at least 2,000 miles long in one respect, but how far does it go inland? Well, where's the limitation in 1357 (a) (1)? There is none. There is a limitation in 1357 (a) (3), reasonable distance. Now, the Government contends well, you have to interpolate (3) onto (1) and you come up with rationale for the action. I would say there's two cases they cited, and I believe the Court does have the reply brief at this time. The first one they cite is Montes Hernandez, a District Court case appears at page 14 and 28 of the Principle Government brief in the footnote, and there, because of the heavy alien population in Sacramento, California or Bright, California, 500 miles from the border, the court upheld the right to stop and interrogate an alien. So, that's one demonstration of how 1357 (a) (1) is used. The second example cited to us by the Government is in their reply brief on the last page, the last footnote to Saldana case. There, alien was stopped on the 1357 (a) (1). What was the distance from the border? It was the Will Rogers turnpike in Oklahoma, six to 700 miles from the border. Now, the Government could say we’re going to be good guys. We'll only go up to a 100 miles. I don't think that this type of power is dealing with a serious constitutional questions can be so delegated to the executive. I think there has to be some intervention, either judicial review or on the alternative warrant.
Warren E. Burger: You think that reasonable standard must taken to account the nature of the country in which the reasonable distance is to be measured? Whether it's open wild country or whether it's San Antonio, Texas for example or either city?
John J. Cleary: I certainly agree Your Honor. I think that one has to consider the geographical territory. I think that was the rational behind what is called functional equivalent in the border. But again as an advocate for particular case, I'm talking about a roving patrol operating some 66 miles north of San Diego, the second largest city on the west coast, half way between Los Angeles which is the largest city on the west coast. And I think that under those circumstances, such a roving patrol can't be condone and that this rationale or distinction by saying that distance -- true if we were talking about the stacatti checkpoint which I've never known to exist. Number 4, in Government’s map in the Otis case, if there was a rover patrol up in that area, maybe the right to stop would exist because the area plus other factors might give a reasonable or found it suspicion or even probable cause to stop.
Byron R. White: Do you think this officer could stop this car and ask the man for his driver's license?
John J. Cleary: Certainly, not a border patrol officer Your Honor. And if it was a -- and this is an important.
Byron R. White: -- was a state patrol officer?
John J. Cleary: Then, we have to understand that in the federal system, we have as I'm told by this Court so often, a very limited jurisdiction. And if you take the average officer --
Byron R. White: -- they just don't ask you again, but how about a state patrol, highway patrol officer, what if he know suspicion at all, he was just making a license check, the driver’s license check, but didn't stop him and ask him for his driver's license.
John J. Cleary: In that case --
Byron R. White: Unless you didn't have, one he get arrested.
John J. Cleary: In that case Your Honor, I would point out that there would be inappropriate for several reasons in that analogy. First is the point --
Byron R. White: -- let's just talk about the analogy. How about its validity under the Fourth Amendment?
John J. Cleary: His right to stop at random a person for a driver's license check, in my contention would not be appropriate if it went beyond the scope of that. Number two, --
Byron R. White: All right, and he stops him and ask him for his driver's license, he doesn't have it and he arrest him for driving without a license, and he objects to the -- the man claims that his Fourth Amendment rights were violated, is he right or not?
John J. Cleary: I think he has a right in California and the reason I would say is that a person arrested for none possession of a driver’s license is not necessarily take into the custody.
Byron R. White: Oh, I know that, but I asked you about if I pose the facts and ask you the validity under the Fourth Amendment.
John J. Cleary: And I'm trying to respond Your Honor. The Fourth Amendment, if he didn't have a valid basis for arresting him, he could make a lawful arrest. He has the physical power, but you asked it in terms as to whether or not he had the authority under the Fourth Amendment, and my contention is where a man can turn in, submit by mail to effect that he does have a driver’s license indicates that the right of the state in preserving its highways has only one means to check --
Byron R. White: I think your answer would be that if California law authorizes the arrest on those facts that it would be all right under the Fourth Amendment?
Potter Stewart: Fourth and Fourteenth Amendment.
Byron R. White: Fourth and Fourteenth Amendment.
John J. Cleary: The Fourth and Fourteenth? I would say no Your Honor. Under the Commonwealth versus Swanger Pennsylvania recent analysis would said even a roadblock check for driver's license must have at least found it suspicion, because otherwise, the intrusion on privacy is not justified by the community need. I would point out again that the traffic situation is totally different because we have a state officer and again as the only means to protect the highways from incompetent drivers. I think that also, there’s a serious question in this area. I'm not in the position if this Court is. But I think the case before the Court deals with a right of a federal officer in restricting aliens. I would further point out that the argument of the Government is this would not apply in New York City or in some of the larger cities, but would apply in San Diego and in Tucson for example. And I think even further if we don't know if a 100-mile limit applies. I think the arbitrariness of that is that a man's constitutional rights will vary by were he happens to live. I think that people should not be so discriminative against. I would point out that in the brief, we have indicated the reference in New York City sometimes that certain sweeps are made was raised by the Court earlier in questioning, but I think the issue is you cannot pick out certain areas because then you’re going to get into the winos of the problem. I think the second is that you can justify an excuse. Some type of camera analysis, there has been no showing of the warrant in this case, and I think that that forecloses the use of camera in this particular situation. This particular case is rather unique in the sense of -- I know, there’s a previous case pending before the Court, Juana Sanchez. In this case, I would point out that one, the objects of the indictment, count 1 and count 2, the named individuals are the person that was seize from the automobile. And that same ways that he had an unregistered machine gun in back or control substance, he would have stand into object to that. Further, these people gave testimony against him and uses own statements. Third, you got to understand to deny that testimony, and fourth, he was cross-examined by the prosecutor by money found in his pocket. So, there was a seizure of money at the time of his arrest flowing from this as we would contend unlawful stop. I would further point out is to retroactivity in this case that we are in a unique posture and not to be overly technical. We would take advantage of the fact that the Government did not assert non-retroactivity in this case and we would rely upon that factor which appears at their brief pages 7 and 8 and on page 9 of the brief and the petition --
Lewis F. Powell, Jr.: Mr. Cleary, I want to have benefit of your thinking as to the validity of a warrant procedure for fix checkpoint.
John J. Cleary: Your Honor, I think that the fix checkpoint could be subject under the Fourth Amendment concepts to a warrant. I think that a warrant can be tailored for a checkpoint based upon an analysis to use the Court’s reference to four points that were cited in your concurring opinion. I think though that it has to be one, that complies with some procedure either annunciated by this Court in the opinion or that there would have to be some change in say Rule 41 or Federals and Criminal Procedure. There is we called it a warrant for inspection in our area and there some equivocation as to how it works out. The difficulty comes and trying to make a showing and often, I feel that there is not a full adversary showing and we even tried to for example to get statistics on the aliens coming from the border at the San Clemente checkpoint. One, the border patrol denied this an opportunity to get such statistics. Two, we got an action for mandate pended on the Ninth Circuit. So that the question in this area is that we don't have access to some of this information and I feel that there should be some substantial showing made to a court, I don't know what to be called that could allow other parties to contest some of the facts to justify the need. I think it is conceptually feasible as I've indicated in our brief that such a warrant could be established. I think that as Mr. Savilla has point out that one of the key factors is proximity to the border in the sense that the Fifth Circuit analysis might be certainly, reasonable in the Hart case on Zero Blanca, but would be grossly unreasonable in this case. For example the reason Mr. Savilla and I differ which Judge Turrentine, he held every checkpoint in the Southern District of California to be the functional equivalent of border, even San Clemente and although one might have conclusion to be reached, we might differ with the reasoning and the approach to that topic, and yet not foreclose the area that such warrants might be possible or that it could be considered a functional equivalent. The second point on retroactive --
Potter Stewart: -- there had to be an adversary hearing? Generally, you get a warrant ex parte?
John J. Cleary: Well Your Honor, I would say that there would be in a sense, an after effect that a motion to suppress, but that in the ease of criminal justice that if such notice could be given, I don't know how would we -- their renewed and using every 10 days because Rule 41 I think provides only now for 10-limit out of warrant so that there has to be a return on them. And that sometimes, and I'm trying to reduce litigation. We can go on a file motion to suppress until the cows come home. But if sometimes the court when is dealing with such a touchy area could give notice to the other parties, and the point I'm trying to suggest right now is although a warrant is certainly possible, the real answer lies in Congress in dealing with the alien problem. And that just like in Biswell and Colonnade, the Congress set forth the search warrant requirement in the other procedures and I think that their in an areas where that procedure could be adopted. I don't those two cases applied to this.
Byron R. White: Was Congress made the effort to the statute, but if you're chewing on that right now. You just want to go back and make another proof of statute.
John J. Cleary: No Your Honor. I think that -- I think if Congress was faced with the thing, they do provide for all viewpoints to be expressed, and I think that there would be a much more workable conclusion establish, and I think that some of these things where done at that time when the problems that are now before the Court weren't fully presented to the Congress and I think that consistent with our tri parte form of Government, we should use different avenues for different results. Here, I'm pleading the Fourth Amendment situation and the rights of the individual given the statutory language with more properly how they are applied by federal agents. I would point out further to the Court that one of the most serious concerns in this case was that this defendant, now respondent, was stop because the three occupants appeared of Mexican decent. Number one; the driver is a Spanish speaking Puerto Rican American citizen. Number two; one is a Mexican from Guadalajara. The number thee; the third one is a woman from Guatemala. Now, the concern was Mexican appearing alone. And counsel being sensitive to this area laid in the record in this as to the reason for the stop. I think the Solicitor General properly contended that there could be arbitrary in the shown on his power. If this Court where to give him cart blanch power on the 1357 (a) (1) that even cart blanch power exercise and say the area, the Mexican border could be done arbitrarily if done purely on the basis of raise, a Yick Wo concept. Now first, I would start off in their Government reply brief, they respond to this issue and this issue alone. They contend that I don't have standing because I haven't file a cross petition. I would point out two things that cuts both ways, they use that argument on page 11 in the Bowen brief and number two, the analysis I’m making here is my conclusion on the last page of my brief says very simply,. I want you to uphold the Ninth Circuit. Im not asking you to order the charges dismissed. I'm here defending that opinion. I'm asking for no more that upholding the unanimous action of the Ninth Circuit. I do believe that under Ballad versus the United States, I can assert any reason to defend that particular opinion. Now, the interesting aspect was before I raise the racial discriminatory issue, the Government in five places in its brief raises Mexican appearing as the basis of giving them something maybe less than reasonable suspicion, but the justification for the stop. It's our contention that you can't use race alone, possibly is one of many factors it can be used. It might be used in many other things. Spanish speaking, we have a problem because I think we have a substantial portion of the citizen population that speaks Spanish and Spanish only. The analogy I'd like to refer to was an opinion cited by the Government in the footnote following up the Aline Wong case, the Cheung Tin Wong case which Judge McKinnon of the DC Circuit said you will never have suspicion alone based upon oriental appearance for a stop. However, suspicion plus that fact that the man couldn't speak English and was in white clothes gave justification for a momentary stop.
William H. Rehnquist: Well Mr. Cleary, supposing an immigration officer is proceeding under 1357 (a) (1) to enter interrogate any alien or person believe to be an alien, what factors does he use in reaching his initial determination of believing a person to be an alien? I mean, what would you suggest?
John J. Cleary: My suggestion Your Honor would be a multiplicity. If I can use --
William H. Rehnquist: What particular factor?
John J. Cleary: Okay. The first things I would use would be one, the proximity to the border. I would based it upon factors that might lead me to believe that the person was an alien such as if he didn’t speak the language, it might alert me was certainly not justify me in stopping the man. I think the --
William H. Rehnquist: The ability to speak the language, I suppose you'd have a hard time determining it before you actually stop them.
John J. Cleary: Before you stop them, I think the problem would be is that you'd have to have some other basis.
William H. Rehnquist: What factors would you suggest taking into consideration and making the initial stop?
John J. Cleary: My factors would be that the critical aspect is the source of his entry. i.e., --
William H. Rehnquist: I thought you're going to give me some factors on the way you begun that sentence.
John J. Cleary: Your Honor, the only thing I can suggest is that factors would determine in a multiplicity circumstances. If I followed along the border and I saw footprints running in a mile, it would be to a certain bush; I go walk up and found the man as the bush, I would say that's a factor to believe that that person is an alien, and yet I haven’t talk to him, I don’t know how to addressing him by his race and I think, I would have a right as a law enforcement officer to stop him. But to give you something that I could go by physical appearance in these days, where the freedom of the individuals are so protected, I can’t give you any basis that would justify on appearance alone of a stop. They would rise to the level founded suspicion. In Terry versus Ohio, was the man walking back and forth outside the jewelry, sufficient to justify the stop and the answer was, the court held it took 20 minutes of watching the conduct, the experience officer, and at that time, the had probably -- even probable cause to believe a conspiracy to rub was take in place. My contention is that you can't use the fact of a -- now, if he had on made to Mexico on his back, on a shirt or Tijuana, then maybe that might be an appearance factor that will help out. But I'm hard press to give you any facts that would suit this case where an officer at Wilmer Caprice some 66 miles from the border could stop a car on the basis of appearance. I can't say old cars or new cars. In fact, what shocks me is the Government in the reply brief in Otis say that you can tell a Mexican resident because they’re thin. How many fat aliens have I represented? You contest because they have coarse hands, that they ware coarse clothes; they have their haircut in a certain way. I've had my haircut once or twice in Tijuana. The point I'm trying to say is that there are facts but the facts are difficult and the reason is there's a balancing of interest.
Warren E. Burger: What you're really saying is you can't get there from here, aren't you? You can't stop them. There's no basis for stopping and inquiring.
John J. Cleary: There's no basis --
Warren E. Burger: You said and you have a very, very broad experience as we know Mr. Cleary. If you can't think of any reason, how about these border patrol officers who haven't nearly you’re read of experience or education?
John J. Cleary: If I was at the San Clemente checkpoint and I sought car drive by with the Baja California license plate, I think I might a have a fact to stop a car. Thank you very much Your Honor.
Warren E. Burger: Thank you Mr. Cleary. How about three minutes left I think Mr. Frey?
Mr. Andrew L. Frey: Thank you Mr. Chief Justice. I think in effect, you've just heard my opponent say that there is no basis on which we can constitutionally stop cars at the San Clemente checkpoint or any distance in from the border. Now, we think that just to stop a car and ask people about their citizenship is a limited intrusion. We think this is an important distinction from Camara. The warrant issue which I was unable to reach in my opening argument is treated simply well. In Camara warrant was required and therefore, we can't rely on Camara. Well of course in Camara, there were searching a -- what was arguably a home. The power they asserted was a power to assert homes and to search homes and then see the power to search business premises which the court treated as homes. Here, we are talking about not a search but a stop and not a home but a car. These factors make a difference not only in the constitutional reasonableness under the Fourth Amendment, but in the necessity for a warrant. Now with respect to the question of whether a warrant is needed, I think that -- the answer is not simply whether we could get a warrant. We have problems about getting warrants, but that would be true of the border also. We could easily get warrants for the border. We could get warrants that would say where we could setup our ports of entry, warrants that would try to describe who we could stop, how we could go about searching people. There isn't a logical difference between at least the checkpoints and the border ports of entry from the standpoint of could we get a warrant. I don't think the answer that we could get a warrant is sufficient. Now, there are problems about our ability to get a warrant. Roving patrol operations cover amenced variety of operations. They can be an operation like this totally unexpected due to bad weather. Now, possibly are San Clemente checkpoint warrant could encompass the authority to make roving patrol stops. But we have other situations, we have farm checks during the harvest season when we expect us likely for migrant workers to be moving from farms in the southern area to farms in the northern area, we send the patrol car around on the farm roads. We see a truck drive by with the group of migrant workers; we may stop and check the citizenship of these people. There is in a sense in issues suppose that a border patrol car is driving along the road and it sees a car drive by, six persons who appear to be Mexicans and I think that to ask the officer to ignore that fact would be to ignore the reasonableness requirement of the Fourth Amendment. Seating uncomfortably nervously looking away from him, he's suspicious. He is -- he can't maybe articulate more than that which my opponent says it's not enough, but the question is can he just stop the car and say can I inquire about your citizenship and make a brief inquiry of that nature? Now, we think that’s not the kind of thing that could be really subjected to a warrant. In affect, Congress says may the judgment, the warrant judgment that we should be allowed to do this, and we urge this Court to sustain that judgment and allow roving patrol stops for interrogation without warrants. Thank you.
Warren E. Burger: Thank you Mr. Frey. Mr. Cleary, you appeared of our request by our appointment and on behalf of the Court, I thank you for your assistance.
John J. Cleary: Thank you very much Your Honor.