UNITED STATES v. PELTIER

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Argument of William L. Patton

Chief Justice Warren E. Burger: We'll hear arguments next this morning in number 73-2000, United States against James Robert Peltier.

Mr. Patton, before you proceed, I want to indicate to you and to other counsel in these cases being argued today that Mr. Justice Marshall reserves the right to participate on the basis of the filed papers, of course, and the tape recording of the oral argument.

Now, you may proceed whenever you are ready.

Mr. William L. Patton: Mr. Chief Justice and may it please the Court.

This is one of four cases that will be argued today concerning issues related to this Court's decision in Almeida-Sanchez against the United States decided June 21, 1973.

In Almeida-Sanchez, this Court held that warrantless searches of automobiles for concealed illegal aliens conducted without probable cause by border patrol agents on roving patrol violated the Fourth Amendment.

Each of these cases is here on writ of certiorari to the Ninth Circuit.

The questions presented in Ortiz and Bowen, Nos. 73-2050 and 73-6848, are whether Almeida-Sanchez should be extended to searches conducted at fixed check points and, if so, whether the extension should apply to searches conducted before the Ninth Circuit's decision in United States against Bowen.

The question presented in Brignoni-Ponce, No. 74-114, is whether the warrantless stop of an automobile by border patrol officers violates the Fourth Amendment and requires the suppression of evidence obtained as a result of the stop but without any subsequent search.

The sole issue presented in this case, United States against Peltier, No. 73-2000, is whether Almeida-Sanchez should be given retroactive effect.

The prior proceedings of this case are set forth in detail in our brief and I will only briefly summarize them here.

On March 7, 1973, respondent was indicted for possession of approximately 270 lbs. of marijuana with intent to distribute in violation of Title 21 of the United States Code.

He filed a motion to suppress the marijuana, claiming that the search of his automobile had violated the Fourth Amendment and that motion was denied after a hearing.

The evidence showed that on February 28, 1973, at approximately 2:30 in the morning, the respondent's automobile was stopped by border patrol agents on roving patrol near Temecula, California.

The stop occurred on Highway 395 at a point of approximately 70 air-miles north of the Mexican border.

The agents testified that they had stopped the respondent's car because he was driving an old-modeled car and because he appeared to be a Mexican man.

At the agent's request, the trunk was opened to permit them to inspect the presence of concealed illegal aliens.

Although no aliens were discovered, the agents did find 270 lbs. of marijuana in plastic bags in the trunk of the car.

The respondent was tried on stipulated facts.

He stipulated, among other things, that he possessed the marijuana with intent to distribute, and the stipulation contained a proviso that it would not have been entered into if his motion to suppress had been granted and he reserves his right to appeal the question “suppression motion.”

The District Court found the respondent guilty and sentenced him to prison term of one year and one day subject to immediate parole eligibility and to special parole term of two years.

The Court of Appeals sitting and back, by a 7-6 vote, reversed the conviction and remanded to the District Court with instructions to suppress the marijuana.

We conceded in the Court of Appeals that the search of respondent's automobile was invalid under this Court's decision in Almeida-Sanchez, but we urge there as we urge here that Almeida-Sanchez should not be given retroactive effect.

The majority in the Court of Appeals held that it need not reach the retroactivity issue because, in its view, Almeida-Sanchez did not establish a new rule.

The majority concede that numerous since its decision, since 1961, had contained language from which the government would infer that the Court would uphold a roving patrol search, but the majority distinguished this language as dicta apparently on the ground that many of these cases involve checked point searches.

The majority also conceded that, in 1970, it had upheld the roving patrol search in its decision in United States against Miranda and again in Almeida-Sanchez itself.

It also noted that the Tenth Circuit had uphold-- upheld a roving patrol search in Roa-Rodriguez, but the majority said these decisions enjoyed only a brief acceptance.

The decision of the Ninth Circuit is in conflict with United States against Miller, a decision of the Fifth Circuit which is pending before this Court on a petition for writ of certiorari in No. 73-6975.

The Ninth Circuit also reached the opposite result in United States against Bowen.

The only difference between Bowen and this case is that Bowen involved the checkpoint search and, there, the majority, again by a 7-6 vote, founded Almeida-Sanchez had overruled clear past precedent.

The Tenth Circuit has given Almeida-Sanchez retroactive effect in the case of checkpoint searches and, presumably, it would give a retroactive effect in the case of roving patrol searches.

We submit that Almeida-Sanchez did, indeed, establish a new rule that overruled past Court of Appeals precedent and a long-established practice and-- that under principles of this Court's retroactivity decisions and other principles of exclusionary rule policy itself, Almeida-Sanchez should not be given retroactive effect, that is it should not apply to searches conducted before June 21, 1973, the date on which it was decided.

Support for roving patrol searches prior to Almeida-Sanchez was both judicial and statutory.

Section 1357 of Title 8 authorized Immigration and Naturalization Service officers without a warrant, within a reasonable distance from any external border of the United States, to board and search any vehicle or conveyance for illegal aliens.

In regulations promulgate under the statute, the Attorney General had defined a reasonable distance from the border to be any point within 100 air-miles from an external boundary.

And, we believe that the statute alone, in the absence of a contrary judicial construction, would be sufficient basis for reliance by law enforcement officers and would present a retroactivity question and, that, we believe is the thrust of this Court's plurality opinion in Lemon against Kurtzman, declining to give retroactive effect to its prior decision holding a Pennsylvania statute unconstitutional that provided public aid to non-public sectarian schools.

But, we do not rely on the statute alone because the unconstitutionality of the statute was upheld in numerous decisions in the Fifth, Ninth, and Tenth Circuits.

The Ninth Circuit distinguished many of these cases as dicta, as I said, presumably on the ground that they involved checkpoint searches, but the language in those decisions was not so limited.

And, prior to Almeida-Sanchez, there was no distinction drawn in the case law between checkpoint searches and roving patrol searches, and the majority of the Ninth Circuit conceded that its cases contained language from which the government might infer that roving patrol searches would be upheld and that, of course, is precisely what happened.

The Ninth Circuit upheld roving patrol searches in Miranda and Almeida-Sanchez, the Tenth Circuit in its decision in United States against Roa-Rodriguez, and the Fifth Circuit in its decision in United States against Miller.

Mr. Justice Powell's concurring opinion in Almeida-Sanchez recognized this consistent judicial approval.

He wrote the roving automobile searches in border regions for aliens had been consistently approved by the judiciary, and Mr. Justice White's dissenting opinion also recognized this prior judicial approval for he observed that the Courts have consistently and almost without dissent come to the same conclusion that is embodied in the judgment that is reversed today.Respondent himself recognized, at the time of his suppression motion, that the state of the law sustained roving patrol stops and searches for concealed illegal aliens.

In the District Court, he contended that while it was permissible to stop and search for aliens, once border patrol agents discovered no illegal aliens, they then were required to go no further even though they observed the marijuana in the trunk of the car.

For example, at page 23 of the appendix, respondent's counsel say to the Court “now, if Agent Ansco had felt the bag to see if there was an alien in there, I would say, fine, we do not have an illegal search and seizure.”

Respondent did ask that his case be stayed pending this Court's decision in Almeida-Sanchez, but that is simply recognition that he needed a change in the law.

The only additional factors which could be required are either a prior decision by Court or additional Court of Appeals opinions, but neither requirement is sound.

There is no support in this Court's decisions for the proposition that a decision must overrule a prior precedent of this Court before a retroactivity issue is presented.

In Chevron Oil against Huson, for example, this Court declined to give retroactive effect to Rodriguez against setting a casualty even though Rodriguez had overruled only a long line of Fifth Circuit opinions.

Justice Potter Stewart: That's-- for example, what other cases are there, if any?

Mr. William L. Patton: Other than Chevron, I don't think of any--

Justice Potter Stewart: There aren't any, are there?

And, Chevron was a civil case, wasn't it?

Mr. William L. Patton: It was a civil case.

Justice Potter Stewart: Involving him.

Mr. William L. Patton: But in Linkletter, Mr. Justice Stewart, this Court indicated that it saw no difference between civil and criminal cases for purposes of retroactivity.

I think-- we believe that the majority opinion in Bowen in the Ninth Circuit is the correct analysis on this point.

Every issue cannot be brought to this Court and, by necessity, a number of important issues of law enforcement must be litigated in the Courts of Appeals.

Justice Potter Stewart: This issue was brought this Court a few many years ago in Carroll against the United States.

Mr. William L. Patton: Well, we disagree about that, Mr. Justice Stewart.

We believe that it's true, this Court's opinion in Almeida-Sanchez relied on prior Fourth Amendment precedent, but there was an intervening federal statute which we believe the law enforcement officers were entitled to rely on until Courts declared otherwise.

And, this issue was litigated in the Courts of Appeals for the Fifth, Ninth, and Tenth Circuits and the government never lost the issue.

Now, we rely on this Court's opinion in Lemon against Kurtzman that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct, and that's exactly what the border patrol did.

Roving patrols were extensively used in the Mexican border area prior to Almeida-Sanchez.

For example, we are informed that in fiscal year 1972, approximately 240,000 man-hours were devoted to highway surveillance of roving patrol searches-- roving patrol activities.

We believe that Almeida-Sanchez did establish a new rule, that it was a clear break with the past and, under this Court's retroactivity decisions and under exclusionary rule policy itself, it should not be given retroactive effect.

This Court's decisions have established three tests.

The first and most important of those is the purpose of the rule itself.

And, uniformly, this Court's decisions involving the exclusionary rule had declined to give exclusionary rule decisions retroactive effect.

Whether the rule, as viewed as directed at conforming police conduct or addendicating the right of privacy protected by the Fourth Amendment, in either case, there is no effect on the integrity of the fact finding process and neither purpose is advanced by retroactive application.

The second two-test, the extent of reliance by law enforcement officers and the disruption of the administration of justice that would result from retroactive application, are looked to only when the first-- when the purpose of the rule is neutral as to retroactivity.

As we've indicated, that purpose is not neutral but, looking to those tests, there was widespread reliance on the authority to conduct roving patrol searches and, as for disruption, there are approximately 40 cases in the Courts of Appeal that involve Almeida-Sanchez roving patrol issues.

There are an indeterminate number of cases in the District Courts and, of course, there would be a large number of cases affected in collateral attack proceedings if Almeida-Sanchez were given retroactive effect.

So, for all of these reasons, we submit that Almeida-Sanchez should not be applied to searches conducted before the date that it was decided and we submit that the judgment of the Court of Appeals should be reversed.

Chief Justice Warren E. Burger: Mr. Shapery.

Argument of Sandor W. Shapery

Mr. Sandor W. Shapery: Mr. Chief Justice and may it please the Court.

The main question that we're confronted with here is whether or not Almeida-Sanchez should be applied retroactively or prospectively.

However, before we should even approach that question, we must realize that the issue of retroactive-- retroactivity only applies to a new constitutional rule.

The dissenting opinion in Milton versus Wainwright, I believe the government will clearly agree, it sets out the test for determining whether or not a new constitutional rule is even stated by a decision of this Court and, that is, whether it overrules clear past precedent or disrupts a practice long-accepted and widely relied upon.

The third--

Justice Byron R. White: Do you think the statute authorizes-- authorized the search and escape?

Mr. Sandor W. Shapery: I don't feel that any statutes of the United States are greater than the constitution.

Justice Byron R. White: That isn't what I asked you, is it?

Mr. Sandor W. Shapery: I-- could you possibly rephrase the question?

I-- maybe it's my misunderstanding, but I feel that the statute--

Justice Byron R. White: I asked you whether a statute authorized the-- purported to authorize the search in this case.

Mr. Sandor W. Shapery: Read literally, the statute would purportedly authorize the search.

Justice Byron R. White: Had it ever been held unconstitutional before Almeida?

Mr. Sandor W. Shapery: I don't believe that the issue had even been presented in this Court.

Justice Byron R. White: Let's assume a statute, in so many words, authorizes a particular kind of search, and the officers who had been operating under and performing in accordance with its terms.

So, everybody held it unconstitutional and then the Court declares it unconstitutional.

Now, what about the retroactivity in that context?

Mr. Sandor W. Shapery: I think, to determine the retroactivity issue in that context, we should look at the statute itself, and whether or not the reliance on the literal interpretation of the statute was even reasonable and I feel that looking at this statute, 1357 Section a (1) and a (2).

Justice William J. Brennan: I don't think it was even reasonable, although the Courts of Appeals said it was.

Mr. Sandor W. Shapery: I don't think it was.

I don't think the Section a (3) being read devoid of the Fourth Amendment was reasonable in light of the fact that Sections a (1) and a (2) have recognized Fourth Amendment requirements of constitutionality.

Chief Justice Warren E. Burger: Are you suggesting that one of the border patrol officers reading the statute should have known that on its face, it was unconstitutional?

Mr. Sandor W. Shapery: No, I am suggesting that the attorneys that wrote the statute for the government were perfectly aware of the problem and, where aware of it, they were treading on, so to speak, thin ice in regard to this but saw this was a viable alternative and that they may step forward and take their chances until the question is presented to this Court.

It was submitted that this Court's decision in Almeida-Sanchez overruled past precedent. However, the test is clear past precedent.

We do not feel that one case prior to Almeida-Sanchez allowing a roving patrol to stop and search a car without probable cause or even reasonable suspicion that a criminal activity was at foot establishes clear past precedent.

As a matter of fact, the Ninth Circuit has held, with the exception of United States versus Almeida-Sanchez, that all other cases that ever addressed themselves to that issue required either probable cause to believe that the vehicle had contraband or illegal aliens, or that there was a reasonable certainty existed that contraband was aboard the vehicle at the time it entered the United States, or a reasonable certainty that the vehicle contained aliens or goods which had been smuggled into the United States.

This is the Ninth Circuit's own recognition of their prior case law.

Contrary to the Ninth Circuit, the Tenth Circuit and the Fifth Circuit have uniformly required reasonable or founded suspicion to stop a search prior to this court's decision in Almeida-Sanchez.

It would appear, therefore, that the Ninth Circuit is the only Court and that United States versus Almeida-Sanchez and United States versus Miranda are the only cases which held that the border patrol can make a roving stop and search of a vehicle without probable cause or founded suspicion or even any recognition of Fourth Amendment rights under the constitution.

On this basis, I feel that it can be hardly argued that this Court's decision in Almeida-Sanchez overruled clear past precedent.

The second test is did this Court's decision overrule a practice long-accepted and widely relied upon?

As I have pointed out, I feel that the reliance must be reasonable.

I do not think that the-- that illegal governmental activity should be allowed to establish constitutional precedent no matter how long it has been relied upon, and this is exactly what the government is asking to occur in this situation.

The government is relied on Section 1357 (a) 3 on its literal interpretation which is completely devoid of the Fourth Amendment to the constitution and it is unreasonable, in light of the fact that prior decisions of Circuit Courts have held that the same statute of a prior code section, 1357 (a) 1, applied the Fourth Amendment reasonable suspicion standard to interrogate an alien, and that was in the case of Au Yi Lau versus the Immigration and Naturalization Service.

Likewise, Section 1357 (a) 2 applied the Fourth Amendment probable cause to arrest an alien, and Yam Sang Kwai, another Circuit Court decision.

On that basis, I feel that it is unreasonable to hold that the first two sections of the Act require recognition of the Fourth Amendment where the third section of the Act can be read completely devoid of the constitutional requirement.

Likewise, I feel that the governmental reliance on the statute was unreasonable in light of the history of the immigration laws which have been set out in the Brignoni-Ponce brief of the petitioner.

All prior statutes recognize Fourth Amendment requirements even in this area.

Furthermore, the small number of cases which have even addressed themselves to the roving search show that there was very little reliance upon this practice.

Therefore, it can hardly be said that this Court's decision in Almeida-Sanchez overruled the practice which was long-accepted and widely relied upon as one of the requirements to determine whether a new constitutional rule has been established.

On that basis, it is submitted that Almeida-Sanchez did not establish a new constitutional rule, but merely reaffirmed the long line of decisions which have followed Carroll v. United States.

To hold that Almeida-Sanchez establishes a new exclusionary rule based solely on governmental reliance would be to hold that the government can establish constitutional precedent by its illegal unilateral activity.

The third test is set out in Chevron Oil versus Huson.

Well, it's whether or not Almeida-Sanchez decided an issue of first impression whose resolution was not clearly foreshadowed.

The Chevron Oil case held that respondent can only rely on the law as it then was.

So, he must look at the laws that then was.

The Fifth Circuit had determined that a roving check always required at least reasonable or founded suspicion and recognize application of the Fourth Amendment.

The Ninth Circuit and Tenth Circuit, since this Court's decision in Almeida-Sanchez have stated that a roving check always require probable cause, they'd find this-- they'd achieve this conclusion by determining that this Court's decision in Almeida-Sanchez did not state a new rule, but merely reaffirmed Carroll versus the United States and, on that basis, that has always been the rule.

Based on the Chevron Oil case which held that respondent can only rely on the law as it then was, it is submitted that Paltier can only rely on the law as it then was, and it has been determined that the law as it then was required probable cause to stop and search a vehicle by a roving border patrol.

Even applying the straight reasonableness test as set out in the dissent in Almeida-Sanchez, Peltier, unlike Almeida-Sanchez, lacked reasonableness.

By comparison, the highway where Almeida-Sanchez was apprehended came directly from the border.

In Peltier, the highway upon which he was apprehended began in downtown San Diego and is one of the main-- three major roads leading out of Southern California.

In Almeida-Sanchez, there is no checkpoint.

Justice Harry A. Blackmun: Are you sure about that?

Didn't Almeida-Sanchez-- wasn't the highway parallel to the border?

Mr. Sandor W. Shapery: It was parallel to the border, but I believe it terminated in Calexico or Mexicali which is the twin border town.

Justice Potter Stewart: It was an east-west road, Route 90, as I remember, that at no time was it closer to 20 miles to the border.

That, as I recollect, was the record in the case but it's, perhaps, not that important.

Mr. Sandor W. Shapery: It was further stated in Almeida-Sanchez that this highway is often used bec-- by smugglers of contraband and illegal aliens because it did not have a checkpoint.

On the contrary, there is a fixed checkpoint.

There was a fixed checkpoint on highway 395, right-- near the point where Peltier was stopped.

Justice William H. Rehnquist: Is this the Sunol Opera?

Mr. Sandor W. Shapery: No, this is the Temecula checkpoint.

Justice Byron R. White: Temecula.

Mr. Sandor W. Shapery: It's approximately the same location from the border but another major highway.

Justice William H. Rehnquist: Yes, Temecula is inland from Sunol.

Mr. Sandor W. Shapery: Yes, it is.

That's correct.

Almeida-Sanchez was purportedly stopped 20 miles from the border, where Paltier was stopped 70 miles from the border, separated by the second largest city in the State of California.

In Almeida-Sanchez--

Justice William H. Rehnquist: What are you talking about, the second largest city in--

Mr. Sandor W. Shapery: San Diego.

Justice William H. Rehnquist: San Diego?

Mr. Sandor W. Shapery: Right.

Highway 395, upon which Mr. Paltier was stopped, begins in downtown San Diego and all of the residents of San Diego wishing to go to Northern inland California or even to the Midwest would be going on Highway 395 as the most direct route.

So, there would be millions of people who had never even been to the Mexican border travelling on this highway in the same direction that Mr. Peltier was and at the same time point.

Justice Potter Stewart: Mr. Peltier was, in fact-- he has a French name.

Was he a United States citizen or an American or a Frenchman or what?

Mr. Sandor W. Shapery: Mr. Peltier is a United States citizen and he, as far as I know, had never even been to Mexico.

I don't even know whether he speaks any Spanish.

I don't think he does, but I know that he does not speak with an accent and, upon communicating with him, the border patrol officers could easily recognize that he was not a Mexican citizen or even of Mexican descent as they had stated when they pulled him over.

Justice William H. Rehnquist: Of course, that's no guarantee that he might not have aliens in the backseat.

Mr. Sandor W. Shapery: That is true, but there is no guarantee that any person, any citizen in this-- in San Diego might not be having aliens behind the backseat.

Justice Potter Stewart: And, in this case, there was no showing of any kind that either he or his car had ever either been to Mexico or had aliens in it.

Mr. Sandor W. Shapery: None whatsoever and, in fact, that is another distinguishing factor between Almeida-Sanchez and Peltier.

It is in addition to the fact that Almeida-Sanchez was a resident of Mexico and had stated that he was coming from Mexico.

Mr. Peltier was questioned before the search as to his citizenship and as to where he was coming from and into his destination.

At which point, he stated he was coming from San Diego and he was going to Las Vegas, never even having mentioned the Mexican border or having been there.

Looking at the totality of the circumstances and applying the reasonableness test of the Fourth Amendment that is set out in the dissent in Almeida-Sanchez, taking all of the factors in Almeida-Sanchez--

Chief Justice Warren E. Burger: Does the record show in this case the point of origin of the marijuana that he was carrying in his car?

Mr. Sandor W. Shapery: No, it does not.

Justice Lewis F. Powell: Mr. Shapery, what do you perceive to be the principal purpose of the exclusionary rule?

Mr. Sandor W. Shapery: The principal purpose of the exclusionary rule is to deter unlawful governmental conduct and, at the same time, insulate the Court system and maintain the integrity of the judicial system in determining its decisions.

Justice Lewis F. Powell: I think, in Calandra, we said that the principal purpose of that rule was to deter future police misconduct.

The rule that you advocate here today would not be relevant to that, would it?

Mr. Sandor W. Shapery: I think it would be relevant to that, in as much as-- I believe the conduct in this situation was one unreasonable in light of the fact that the statute had always required-- all the statutes have required probable cause.

We have to look to the reasonableness and I think that to hold that the exclusionary rule only totally across the border will prevent future conduct would be to give the government and overzealous law enforcement officers a free ride to conduct illegal activities until such time as this Court decides the issue.

Justice Lewis F. Powell: But do you think that where there is a statute enacted by the Congress that, I think you conceded earlier, authorized this type of stop and search should be rejected by policemen on their own initiative before this Court decides it's unconstitutional?

Mr. Sandor W. Shapery: I feel that Congress has always recognized the Fourth Amendment, in that in passing this legislation they did not intend to completely abrogate the Fourth Amendment in this particular statute, as is shown in Section a (1) and a (2).

There has always been recognition for the Fourth Amendment, and I feel that it is the unilateral activity of the border patrol which has overstepped the bounds, not Congress.

And, on that basis, it is their unilateral illegal activity which has abrogated the use of the Fourth Amendment.

Justice William J. Brennan: Are you suggesting the statute requires probable cause for a search at the border?

Mr. Sandor W. Shapery: No, I'm not.

I--

Justice William J. Brennan: Well, it's the same section that authorizes it.

Mr. Sandor W. Shapery: I think there's a distinction that it's been--

Justice William J. Brennan: It's the same section, isn't it?

Mr. Sandor W. Shapery: I believe it refers to a search at the border of functional equivalent.

Justice William J. Brennan: Well, it refers to a search with-- at the border or reasonable distance from the border.

Mr. Sandor W. Shapery: That is correct, but I meant--

Justice William J. Brennan: So, it's the same statute that authorizes these-- the examination at the border or authorizes an examination at a reasonable distance from the border.

Are you suggesting the statute requires probable cause at the border?

Mr. Sandor W. Shapery: I'm suggesting that the statute requires recognition of the Fourth Amendment.

Now--

Justice William J. Brennan: What about probable cause at the border?

Mr. Sandor W. Shapery: I feel that the probable cause issue at the border is not brought up in as much as the government has a need to prepa-- protect the integrity of the entire country.

Justice William J. Brennan: But the statute, on its face, purports to authorize the same kind of a search a reasonable distance from the border as it does at the border as you, I thought, indicated earlier in our conversation.

Mr. Sandor W. Shapery: That is correct.

Justice William J. Brennan: And, so that the border patrol officer does have or did have some thought that the statute authorized a warrantless and non-probable cause searches, although not particularly-- not exactly at the border.

And, it's a rather old statute, isn't it?

Mr. Sandor W. Shapery: I believe the statute was enacted in 1946 and then amended in 1952.

The reasonable distance requirement, though, I believe would relate to the functional equivalent of the border and, on that basis, where it is--

Justice William J. Brennan: But the point may be that it isn't a functional equivalent?

Mr. Sandor W. Shapery: I believe that is the case.

Justice William J. Brennan: That's another matter, but this-- if it were, it wouldn't have to have probable cause.

Mr. Sandor W. Shapery: That is correct.

Chief Justice Warren E. Burger: Doesn't it come down with the proposition that you're saying that the officer should have known and been able to predict the ultimate outcome of the Almeida-Sanchez case?

Mr. Sandor W. Shapery: I don't think that's the case.

I think--

Chief Justice Warren E. Burger: In terms of the deterrence that Mr. Justice Powell was asking you about.

Mr. Sandor W. Shapery: I think the point should not have been left up to the individual officer as such.

I think that the problem stems from his superiors, from the attorneys working in passing-- in creating these rules and regulations pursuant to the statute, and I feel that they, at all times, realize that they were rather in a precarious position.

However, looking to the recent application of the exclusionary rule, possibly felt that until some alternative better than this comes up we'll do what we can as long as we can.

And, on that basis, the interpretation has been unreasonable through its application, wherein, other sections of the statute require probable-- not probable cause, but require recognition of the Fourth Amendment requirements.

In the Ninth Circuit, the Courts, for a short period of time, held that the statute could be read devoid to the constitution.

And, I feel that this is not a new rule where a statute must be read in recognition of the higher law of the land being the constitution.

So, the question comes down to whether or not it is a new rule that the-- a law or a statute passed must be read in recognition of the constitution.

That is not a new rule.

It's been with us from the beginning of our legal history and, on that basis, we have to look to Carroll versus the United States as establishing the rule by this Court.

It has not been modified by this Court, but merely reaffirmed by the case in Almeida-Sanchez.

Additionally, I'd like to point out that the border patrol agents, upon examination, have stated that the sole basis for their stopping Mr. Peltier is that he appeared to be of a Mexican descent.

This, in itself, is invidious discrimination to stop and search a car because a person appears to be of Mexican descent.

Justice William H. Rehnquist: Well, what if they stopped him because he spoke Spanish?

Mr. Sandor W. Shapery: I don't feel that they could tell that he spoke Spanish until they did stop.

Justice William H. Rehnquist: Well, I didn't ask you whether they had in fact stopped him because he spoke Spanish.

I said what if they had stopped him because he spoke Spanish.

Mr. Sandor W. Shapery: I have a little problem with the analogy because I couldn't understand how they would know that he spoke Spanish until they made the stop and, at that point, violated his constitutional right through this invidious discrimination.

Justice William H. Rehnquist: Well, do you feel that speaking-- stopping a person for speaking Spanish is of the same order, and your apparent scale of values is stopping a person because he appear to be of Mexican descent?

Mr. Sandor W. Shapery: I think that the Courts have held that discrimination based upon apparent national origin is invidious discrimination and because a person speaks Spanish is justification for the stop, I feel that that is just one step away from Mexican descent and is just another justification for this invidious discrimination.

Justice William H. Rehnquist: Well, isn't the job of the border patrol to figure out who are illegal aliens from Mexico and who are people either lawfully admitted aliens or United States citizens that they don't have any business with?

Mr. Sandor W. Shapery: I believe that the decision in Almeida-Sanchez has established that the border patrolman cannot do this without probable cause.

Justice William H. Rehnquist: Well, what I'm trying to get at, what are the elements of probable cause?

You apparently rule out both speaking Spanish and the appearance of a Mexican nationality.

Mr. Sandor W. Shapery: I think that the Ninth Circuit has established that a person's national origin or his ancestry must remain a neutral factor and not be considered by the Court, as it would raise an issue of invidious discrimination.

Justice William H. Rehnquist: Even if he is stopped at the border, they can't ask him his national ancestry?

Mr. Sandor W. Shapery: No, being stopped at the border I think is a-- quite a different matter, as I've stated--

Justice William H. Rehnquist: Well, I should think it would be as invidious there as it would be any place else.

Mr. Sandor W. Shapery: Now, the government has a need and the public has an interest in maintaining the integrity of the country, in that integrity is maintained through controlling what is coming into the country.

Now, we do not have a situation felt here.

We have a stop of a person, north of the second largest city in California, and the sole basis is because he--

Justice William H. Rehnquist: Well, would it be invidious at the border?

Mr. Sandor W. Shapery: I don't think so.

Justice William H. Rehnquist: But it would be, say, 10 miles inland?

Mr. Sandor W. Shapery: If they had no reason to believe that this person had crossed the border, I would think so.

Justice Harry A. Blackmun: Well, then the same answer you would give if it were 1 mile north of the border?

Mr. Sandor W. Shapery: I think that the proximity to the border has a lot to do with the reasonableness, using the reasonableness standard that's set out in the dissent.

I think that the distance from the border, in addition to the distance of the route or the proximity to--

Unknown Speaker: (Inaudible)

Mr. Sandor W. Shapery: I believe that the question of reasonableness can be raised in as much as--

Unknown Speaker: (Inaudible)

Mr. Sandor W. Shapery: Well, it's pointed out in the government's case in Bowen, on page 11 note 6, that if a party prevails in a lower decision, they can bring up any basis or any ground upon which to additionally make a determination on that case.

The issue of reasonableness has been maintained from the Trial Court level.

I wish to also point out that all Circuit Courts who have ever addressed themselves to this issue, that is the Fifth, the Ninth, and the Tenth, would obtain the exact same result in Pelteir as the Ninth had.

And, the Ninth and the Tenth Circuits hold that the law now, after Almeida-Sanchez, always required probable cause to search on a roving patrol.

Wherein, Almeida-Sanchez reaffirmed the rule of Carroll versus the United States.

So, on that basis, the Ninth Circuit has held that lacking probable cause, lacking recognition of the Fourth Amendment that Pelteir, like Almeida-Sanchez, should have the evidence suppressed.

Now, the Fifth Circuit has always required, now this is pre-Almeida-Sanchez, have always required at least a founded or reasonable suspicion and, since June 25-- or since June 21, 1973, it required probable cause, but even the Fifth Circuit on pre-Almeida-Sanchez law would have suppressed the evidence in Peltier because it did not even comport to the founded or reasonable suspicion requirements.

Therefore, lacking probable cause or even if founded or reasonable suspicion, all the Circuits would've dismissed Peltier.

The government, in this situation, attempted to apply a statute, completely devoid of the Fourth Amendment requirements.

Now, the Ninth Circuit, for a period of time, went along with the Immigration and Nationality Service.

However, the Fifth Circuit, at all times, refused to go along with recognizing-- or without recognizing the Fourth Amendment at all, and they attempted to carve an exception to Carroll versus the United States by requiring a founded suspicion and applying, therefore, a minimal Fourth Amendment recognition.

Now, to agree with the Fifth Circuit would be to allow all Circuit Courts to establish their own constitutional exceptions until overturned by this Court.

I feel that to so do that would create chaos in the lower Court decisions giving them authority to carve exceptions to rules established by this Court and justify those exceptions until the issue is brought to this Court and reviewed and overturned.

Constitutional rule should begin with the Supreme Court and they should end with the Supreme Court.

And, as occurred in the case of Carroll versus United States and reaffirmed by Almeida-Sanchez, Peltier's case should be affirmed.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Patton?

Rebuttal of William L. Patton

Mr. William L. Patton: Mr. Chief Justice, I just like to make a few quick remarks.

First of all, we're not talking about the government's unilateral conduct establishing a rule.

There was a federal statute that had been construed in all of the Circuits that encompassed jurisdictions bordering on the Republic of Mexico.

We disagree with respondent's analysis of the decisions of the Fifth, Ninth, and Tenth Circuits and we say it is simply not true that there is any requirement of probable cause for immigration searches prior to Almeida-Sanchez.

The Fumagalli decision in the Ninth Circuit, which is discussed in Justice White's dissenting opinion in Almeida-Sanchez, is representative of the Ninth Circuit decisions.

They drew a distinction between contraband searches for which they required probable cause and immigration searches.

In immigration searches relying on the statute, they did not require probable cause.

The same is true with the Fifth Circuit.

If you look at the Miller decisions and the Wright decision which is cited in our brief, you will see that what the Fifth Circuit said is that the test is where the search is reasonable under the circumstances, but it was not probable cause or reasonable suspicion.

If it was, it was no more than a requirement that border patrol officers search only compartments large enough to conceal illegal aliens.

And, as to the reasonableness issue which respondent has brought up in his argument, I don't believe that was raised in the Court of Appeals.

Unfortunately, I don't have the briefs here, and I don't think it should be considered now but, in any event, under the prior law--

Justice Byron R. White: Well, why isn't he entitled to defend the decision below on any ground that doesn't expand his relief?

Mr. William L. Patton: Well, he would-- ordinarily, this Court would not consider an issue that was not raised.

Justice Byron R. White: Well, we would.

Ordinarily, we would if our respondent to be defending a decision below on the ground-- even if it was rejected below, we could.

Mr. William L. Patton: Well--

Justice Byron R. White: If he doesn't try to expand his judgment.

Mr. William L. Patton: Well, let me assume, Mr. Justice White, for the purpose of argument that it can be raised now even so, as we've said, that under all the decisions in the Ninth, Tenth, and Fifth Circuits there is simply nothing to decline that the search was unreasonable under prior law, prior to Almeida-Sanchez.

Justice Byron R. White: Could I ask you a question.

I might as well ask you now as in some of the later case.

Is the government seeking to get any kind of an area warrant for a checkpoint?

Mr. William L. Patton: Well, Mr. Justice White, at Temecula, where this search was conducted, we did operate a checkpoint there for a period in 1974 under an area warrant.

Unfortunately, in October of 1974, the District Court in the Central District of California refused to renew the warrant on the ground that it lacked the authority to give an area warrant.

We didn't go up on that case, but we have taken the issue up to the Ninth Circuit, and Mr. Evans will discuss this in more detail in his argument in United States and Bowen.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

73-2000 is submitted.