UNITED STATES v. ORTIZ
Legal provision: Amendment 4: Fourth Amendment
Argument of Mark L. Evans
Chief Justice Warren E. Burger: We will hear argument next in 73-2050 and 6848 consolidated.
That is United States against Ortiz and Bowen against the United States.
Mr. Evans, you may proceed whenever you are ready.
Mr. Mark L. Evans: Mr. Chief Justice, may it please the Court.
The question in these cases which were consolidated for oral argument is whether the principles Almeida-Sanchez should be applied to invalidate a warrantless search of a vehicle for the presence of concealed aliens when conducted at a boarder patrol checkpoint rather than by officers on a roving patrol.
Each case also presents a retroactivity issue that need be reached by the Court only if it disagrees with our contentions with respect to the principal issue and on that issue, our contention is that checkpoint searches in the Mexican boarder area may properly be conducted without a warrant and without particular knowledge about any specific vehicle that is to be searched.
Chief Justice Warren E. Burger: And without regard to the location of the checkpoint, the fixed checkpoint?
Mr. Mark L. Evans: Correct.
Chief Justice Warren E. Burger: That is the factor in which these two cases are distinguishable from the one just argued.
Mr. Mark L. Evans: Correct.
It is also the basis on which these cases are distinguishable from the next, which raises an issue on the merits slightly different variety variant of Almeida-Sanchez in which a roving patrol officer stopped but did not search an automobile.
Justice Byron R. White: Are you saying it is irrelevant where the checkpoint is?
Mr. Mark L. Evans: Well it is not irrelevant in the broad sense of the reasonableness --
Justice Byron R. White: But that does not have to be within the statute, it should be a reasonable distance from the boarder.
Mr. Mark L. Evans: And has to be within a reasonable distance of the boarder under the statute and within 100 miles from the boarder under the regulation of implementing statute.
I am not sure.
I believe it was and I believe it was adopted so shortly after the statute after the statute was passed.
The search in the Bowen case was conducted two and a half years prior to this court's decision in Almeida-Sanchez at a checkpoint on California State Highway 86, about 36 miles north of the Mexican boarder and a picture of that checkpoint appears on page 2 (a) of our reply brief in Ortiz.
It was 10 o'clock in the evening on a week night and traffic was light when Bowen approached the checkpoint in a camper truck, the officers stopped him and asked for a citizenship and then as a routine matter they asked him to open the rear of the camper to permit them to check for the presence of concealed aliens.
As soon as Bowen did saw Agent Ortmier smelled marijuana coming from the camper.
He thereupon entered the camper with a flashlight and saw in the forward part of the camper on a mattress what appeared to be in his words either a bedroll or a person.
When he investigated he found that the objects were actually two backpacks, and as he approached the mattress, he saw stack underneath the mattress kilo bricks of marijuana in cellophane wrapped packages.
After Bowen was arrested and the full search of the camper was conducted, the officers found 356 pounds of marijuana in the camper and 158 bends of dream tablets in a jacket on the front seat of the camper.
Bowen was prosecuted and convicted for the drug offenses based upon the evidence seized from the camper.
And the Ninth Circuit initially affirmed the conviction stating simply that the search and seizure were plainly lawful.
This Court thereafter remanded the case for further consideration in light of Almeida-Sanchez and the Court of Appeals again affirmed in a two part embank opinion.
In part one the court splitting seven to six ruled that the search of a vehicle for aliens at a checkpoint may not be conducted in the absence of probable cause or warrant unless the checkpoint is at the functional equivalent of the border.
It also held that the checkpoint in this case was not at the functional equivalent of the border.
In part two of the opinion however, the court held that the ruling part in one should not be applied to exclude the evidence seized from Bowen's camper because the search took place prior to this Court's decision in Almeida-Sanchez at a time when the settled law, the Ninth Circuit was the such checkpoints searches were valid.
The search in Ortiz took place after this Court's decision in Almeida-Sanchez, but before the Ninth Circuit's decision in Bowen.
It occurred at the Border Patrol checkpoint on Interstate Route 5, near San Clemente, California, about 62 miles north of the Mexican border and the picture of that checkpoint appears on the prior page in the appendix to the reply brief.
Justice Byron R. White: Mr. Evans, when was your reply brief filed?
Mr. Mark L. Evans: I believe it was filed on Friday.
Justice Byron R. White: I do not have it to the --
Mr. Mark L. Evans: Well, for lack of -- this is the San Clemente checkpoint.
Sorry that it was -- brief was filled to late to reach you.
Justice William H. Rehnquist: How about the Highway 86 checkpoint, where on Highway 86 was the checkpoint?
Mr. Mark L. Evans: It is approximately 36 air miles north of the Mexican border.
Justice William H. Rehnquist: North of Brawley?
Mr. Mark L. Evans: Let me take a look at the map so I can -- do you have copies of these maps that we had lodged with the Court for distribution to each Justice?
Justice Byron R. White: I don't.
Justice William H. Rehnquist: I don't.
Mr. Mark L. Evans: These were lodged not Friday, but when our brief was first filed.
This is a map that shows the --
Justice Potter Stewart: 4 17th that was yesterday, wasn't it?
Mr. Mark L. Evans: Pardon me?
Justice Potter Stewart: This reply brief is stamp's February 17th.
Mr. Mark L. Evans: Well, my understanding Mr. Justice was that it was filed in the court on Friday.
I do not know when it was received here.
Justice Potter Stewart: It says filed February 17th which was yesterday, a holiday.
Mr. Mark L. Evans: There have been mistakes before.
I am judging from what I am told.
I did not personally delivered them, but I understand it was --
Justice Potter Stewart: No problem.
Mr. Mark L. Evans: This is a map that shows the checkpoints in the southern district of California.
The one at San Clemente is right over here.
This is a little bit awkward I am afraid.
The one involved in the Bowen case is right over here.
It is bordered on the east by farmland leading to Salton Sea and on the east by desert.
Justice William H. Rehnquist: So it is between Brawley and Indio?
Mr. Mark L. Evans: I don't know the names, the towns, but I think that is correct.
Unknown Speaker: How far from the border?
Mr. Mark L. Evans: It is approximately 36 miles, air miles from the border leading from the twin cities of Mexicali and Calexico.
Chief Justice Warren E. Burger: Now when you described this as a fixed checkpoint, the signs in the arch over the highway are permanent more or less, are they not?
Mr. Mark L. Evans: That is correct with respect to the San Clemente checkpoint, there is an overhead support for permanent signs which have lights that can be turned on or off depending on whether the checkpoint is in operation.
Unknown Speaker: Well at the right of the picture, it seems to be a road off the area?
Mr. Mark L. Evans: Yes.
That is what is called the secondary inspection area.
It is also the side of the State of California truck weighing station.
Justice Byron R. White: The port of entry?
Mr. Mark L. Evans: Not the port of entry, no.
I am sorry.
Justice Byron R. White: But it is California's inspection.
Mr. Mark L. Evans: That is right.
It is the state highway inspection facility for weighing trucks.
Justice William J. Brennan: Now the federal inspection is initially made on the highway itself?
Mr. Mark L. Evans: That is correct.
Justice William J. Brennan: Stop signs?
Mr. Mark L. Evans: The cars are funneled into two lanes ordinarily with one officer standing right behind the stop sign and one officer standing on the side over here.
Justice William J. Brennan: Now, Mr. Evans some of those cars maybe then centered off to the secondary?
Mr. Mark L. Evans: That is correct.
At San Clemente, the prior practice had been that the point officer -- the practice has been operated for some time is that the traffic slows down to roughly five miles an hour and the officer standing at the point, it is called visually surveys the approaching traffic and when something arouses his suspicion about a particular automobile, he refers it to the secondary area where there are additional officers to make inquiry of the occupancy of the vehicle and if it seems appropriate at the time to conduct the search of the vehicle.
Justice William J. Brennan: When I look at the next page, the Highway 86 checkpoint, apparently everything automatically is funneled of to what --
Mr. Mark L. Evans: That is correct.
Justice William J. Brennan: -- as it may as a secondary point is there a reason for that?
Mr. Mark L. Evans: Well, the traffic is far lighter on highway 86, and as a consequence the officer at the point, there he is now -- to go back for second, the point officer at San Clemente almost never says anything to the passengers in the vehicles, he either waves them through or refers them to secondary.
The officer here however talks according to the record to about 75%.
Justice William J. Brennan: The officer where?
Mr. Mark L. Evans: Well, I am sorry.
There is a small hut, if you can see it on the island there between the road and --
Justice William J. Brennan: Yes, but the car has to go off to that side.
Mr. Mark L. Evans: It goes off to the side, the officer there ordinarily in about 75% of the cases will lean over, say, “Good morning.
This is an immigration checkpoint, what is your citizenship, please?”
And after a response, the car is ordinarily waved through although in about 10 or 15% of the cases, the automobile is subjected to a search.
Now the Ortiz search which took place at the San Clemente\ checkpoint, there is not all that many facts in the record, the facts were stipulated.
We know that the search occurred at the checkpoint when Ortiz approached in a 1969 Chevrolet, he was referred to the secondary inspection area and the officers there opened the trunk of the car and found three Mexican aliens who were present in this country illegally.
Ortiz was prosecuted and convicted of transporting these aliens knowing them to be in the United States.
Justice William J. Brennan: Now incidentally, are the later photographs in your reply brief, are these photographs of the actual car on the people in it?
Mr. Mark L. Evans: No, I should explain that the photographs appearing -- the first two photographs are not photographs that appear in the record of this case, they are official Border Patrol photographs and we inserted them so that the justices could see roughly what it is we are talking about in terms of a checkpoint.
The other photographs were all introduced in the Ortiz.
Justice William J. Brennan: Well look at this 5 (a) for example.
Mr. Mark L. Evans: Yes.
Justice William J. Brennan: Is that --
Mr. Mark L. Evans: That is an actual --that is an illegal alien, an actual photo.
Justice William J. Brennan: Now, this is as they open the trunk or this is the front of the car?
Mr. Mark L. Evans: Well it is not clear to me whether they take these pictures anticipating that they are going to find someone in the hood or whether they go through some routine afterwards.
I just do not know.
Justice William J. Brennan: But 5 (a) with someone under hood, isn't it?
Mr. Mark L. Evans: That is correct.
And the next page shows her emerging from the hood.
Justice Potter Stewart: But none are exhibits in either one of these cases, are they?
Mr. Mark L. Evans: Yes they are.
All the photographs appearing from pages 3 (a) through the end are photographs that were introduced in evidence in the consolidated proceeding in the District Court of which the Ortiz case was a part.
Justice Potter Stewart: That it was -- was it Baca.
Mr. Mark L. Evans: Baca was the first alphabetized name under which the opinion is known.
Justice Potter Stewart: Baca, but that was in Judge Turrentine.
Mr. Mark L. Evans: Exactly.
Justice Potter Stewart: And are these photographs beginning with 3 (a) and continuing through 14 -- 13 (a), do they involve the parties in this -- in any of these cases?
Mr. Mark L. Evans: No, they do not, they were introduced --
Justice Potter Stewart: Or the cars involved in either one of these cases?
Mr. Mark L. Evans: They do not.
Justice Potter Stewart: I do not think so.
Mr. Mark L. Evans: They were submitted to the District Court --
Justice Potter Stewart: As examples?
Mr. Mark L. Evans: As examples, precisely, but not particularly typical example either I would say.
This is not the typical manner in which aliens are apprehended by the Border Patrol.
Justice Potter Stewart: And are these -- they are just supposed models or do you not know?
Mr. Mark L. Evans: No, no, these are the record reflex, that these are the actual vehicles and the actual persons who were apprehended.
As I said, I do not know whether they -- at what point the photographs were taken, this is no way for me to know that, but my understanding is that these are all real cases and there is testimony with respect to each of these photographs in the hearing.
Justice Potter Stewart: 5 (a) for example.
Mr. Mark L. Evans: 5 (a) for example --
Justice Potter Stewart: The photographer would say, “Now, you have to stay right there while I am getting –“
Mr. Mark L. Evans: Well he may have.
I do not know.
They may have been asked if the were willing to cooperate.
I just do not know how these things were arranged.
This case, the one with the woman inside the hood of the car was a case that arose at the San Clemente checkpoint, the same place of the Ortiz case arose.
The same for the prior page 3 (a) and 4 (a) which shows a trunk of an automobile that has been specially designed to contain an illegal alien in a special compartment and that also arose the San Clemente checkpoint.
Justice Potter Stewart: But none of these vehicles was involved in either one of these cases?
Mr. Mark L. Evans: That is correct.
These are not parties in this case.
Justice Byron R. White: What was the significance, Mr. Evans, you comment a moment ago that this not typical.
Mr. Mark L. Evans: Well the cases in which aliens are found hidden in compartments makes up a relatively small proportion of the number of aliens that were apprehended by the Border Patrol at their checkpoints.
Justice Byron R. White: But ordinarily if they are in the vehicle you can see them.
Mr. Mark L. Evans: It is hard to say ordinarily because with regularity there are compartment cases, but the more likely manner of apprehension is from the vehicle itself apprehending alien sitting visibly in the passenger compartment.
Actually the principal purpose I thought it might be useful to include these photographs as to show that it is not unusual and at least it happens with some regularity that human beings are hidden in trunks, in hoods, in compartments that seemed too small to contain them are indeed even under the cars as the last photograph in the reply brief shows.
Chief Justice Warren E. Burger: Is it in one of these records or in the record of some other cases that I am recalling that some has not been unknown that some persons being smuggled in died from suffocation.
Mr. Mark L. Evans: it appears in this record on a number of occasions dying of asphyxiation, there are occasions when in this record when aliens apparently were either pushed or jump from a moving vehicles approaching a checkpoint to their death.
It is a dirty business and people do die.
Justice Byron R. White: Are you going to get into why the service leads checkpoints?
Mr. Mark L. Evans: I certainly am.
Mr. Justice White, our principal contention in this case is that there are significant differences between roving patrols and checkpoints in terms not only of the Governmental need, not only the nature of the intrusion or the nature of the circumstances in which intrusion occurs, but also in terms of the amenability of the operation to a meaningful warrant procedure.
And these differences in our view make it possible for the Court to do here what it was unwilling to do in Almeida-Sanchez and that is consistently with the Fourth Amendment to give a fact to the congressional judgment reflected in section 287 (a) 3 of the immigration nationality act that searches vehicles for aliens within a reasonable distance of the border may reasonably be conducted without warrants and without specific backs casting suspicion on a particular vehicle to be searched.
I would like to start by discussing the Governmental need involved in these operations.
In some respects, the public interest is quite an analogous, similar, identical for that matter to that involved in the circumstances that were before this Court in Almeida-Sanchez except perhaps that the problem has intensified.
At the time of the Baca hearing, which is the district -- consolidated District Court proceeding of which the Ortiz case was a part.
It was estimated that there were about 1 million aliens present in this country illegally.
Current estimates placed the figure much higher, ranging from 5 million to 12 million.
Out of the portable aliens who are apprehended in this country, some 90% are Mexican nationals and about 98% of those who have entered clandestinely without inspection are Mexican nationals.
Justice Harry A. Blackmun: Does the record show what proportions are uncovered at a fixed checkpoint?
Mr. Mark L. Evans: Well, the figures are not broken down in that detail.
The record shows in the fiscal year 1973 more than 55 thousand illegal entrants were apprehended in Border Patrol traffic checking operations which in that period would have included to a certain extent a roving patrol operations but that was always a far less significant proportion of the apprehensions that is roving patrols were accounted for far less -- far fewer apprehensions.
So you can think in terms I think roughly of 50 thousand out of the -- it was about 13% as I recall from the record of the total number of deportable aliens apprehended by the Border Patrol for the whole year.
The social cost of that is associated with the presence of these many millions of illegal entrance is also enormous and it too is intensified particularly in this present period of high employment.
The District Court related one estimate that is long ago is 1971 when nearly 600 thousand Californians were unemployed.
Between 200 thousand and 300 thousand illegal immigrants were employed in that state earning $100 million of wages.
And the group of American citizens and lawful resident aliens who were the hardest hit by the presence of illegal entrance are the group of unskilled or slightly skilled workers who in any event find it difficult to find employment.
The court also found that illegal immigrants pose a potential health hazard because of a high incidence of communicable disease, which is not treated because these persons have not presented themselves for inspection at the border and in some states, the District Court know that the public assistance resources of the communities are devoted in large part to illegal immigrants and their families.
We think that the public interest in the effect of enforcement of the immigration laws is obvious the traffic checkpoint system plays a substantially greater role in the Border Patrols enforcement scheme than to roving patrols.
Roving patrols are themselves important as we argued in Almeida-Sanchez and as Mr. Feit will tell you shortly.
But they have always been essentially supplementary to the checkpoints themselves, which are the heart of the enforcement effort.
The record shows that most of the inland movement of illegal aliens is on the major highways leading north from the border and it is there that the checkpoints are placed.
Apart from the line watch which is the patrol of the physical boundary, the checkpoints are the principal deterrent to illegal entry and the record demonstrates what the concurring and dissenting opinions recognize in Almeida-Sanchez that the line watch itself is simply incapable of controlling the unauthorized entries across our 2,000 miles of border.
Justice William J. Brennan: One of these is 62 miles from the border.
Are there any further from the border than that?
Mr. Mark L. Evans: The farthest from the border is the truth or consequences checkpoint in New Mexico, which is 98 miles from the border.
There are none beyond the hundred mile limit.
The regulation specifies 100 miles.
Justice William J. Brennan: Well, are there any other between 62 and 98?
Mr. Mark L. Evans: Yes, they vary.
Most of them are beyond 25 miles in part because in most cases it is particularly in the California area.
Justice William J. Brennan: Well put it together why most are within what distance?
Mr. Mark L. Evans: All of them are within a hundred.
It is hard for me to say what most are within.
There is a wide variety outside the 25 mile range.
The Border Patrol agents testifying the consolidated District Court proceeding testified that the -- their interviews with apprehended aliens and their intelligence sources in Mexico made it plain that the checkpoints were the principle deterrent to unlawful entry.
Justice Byron R. White: But in some circumstances I gather, the checkpoint away from the border is not to supplement, but to as a substitute for a traffic check at the border.
Mr. Mark L. Evans: Well Mr. Justice White, there are situations and there is a recent case in the Fifth Circuit in which the situation is close to this, where there are ports of entry on the border that close down at night and the checkpoint located 10 or 12 miles from the border operates at night.
Now if that is a substitute for the port of entry, I would say it is, but they do not -- the function of the Border Patrols traffic checkpoints is not to perform the function, the identical function is performed at the border.
That is a full customs and immigration search and inspection.
That is not what they are doing, their job is to only look for illegal immigrants and not at all for -- I mean they are designated as customs officers so that they can make appropriate seizures and arrest when their investigations lead to discoveries of narcotics but they are not -- or the discovery of any illegal contraband but they are not -- that is not their principal function, their principal function is one of looking for aliens and they do not perform the full inspection services that are performed at the border itself.
Justice Byron R. White: Yes but there are some places I gather, you can cross the border legitimately and not be subject to inspection right at the border?
Mr. Mark L. Evans: If there are, I am not aware of them.
I do not believe that is the case.
Justice Byron R. White: Well what about at night at the one you just spoke of?
Mr. Mark L. Evans: Well it is not legitimate to cross the border when the port of entry is down.
Justice Byron R. White: You just do not cross.
Mr. Mark L. Evans: Well you are --
Justice Byron R. White: But you have a checkpoint.
Mr. Mark L. Evans: Well there is --
Justice Byron R. White: You have a checkpoint inland.
Mr. Mark L. Evans: There is checkpoint inland.
Now in this particular case I am referring to in the Fifth Circuit, the highway in which the checkpoint was located is one that parallel at the border, wondering further or closer, but the checkpoint itself was quite close to these two ports of entries that were closed at night.
Justice Byron R. White: Well does the port of entry perform any function that relieves the burdens on what happens at the border?
Mr. Mark L. Evans: Well it does not really, it performs a very similar portion with respect to those who are determined to enter without inspection, but as to those -- I mean the function of the port of entry is to inspect those who enter lawfully and present themselves for inspection to determine whether they lawfully can enter this country and whether they are bring anything that needs to be declared, but the purpose of the inland checkpoints is to determine whether someone has entered without inspection or has exceeded the limits of his entry permit.
Justice Byron R. White: I take it at the border there are some -- there is very heavy commuter traffic at some point.
Mr. Mark L. Evans: That is correct.
Justice Byron R. White: And the Border Patrol people just do not interrupt that flow of traffic, do they?
Mr. Mark L. Evans: Now that is in the border area of the United States.
So far as the extent to which the officers at the ports of entry in busy ports check every vehicle or check every person, I do not know the answer to that.
I do not think that they check necessarily everybody but I suppose they have some superficial inquiry made of everybody.
But the Border Patrols --
Justice Byron R. White: I said, if you weren't reluctant to interrupt that flow of heavy commuter traffic, it might not be the checkpoint interior?
Mr. Mark L. Evans: No, I do not think that is correct because the checkpoints Mr. Justice White are not designed so much to get to apprehend or deter the entry through the port.
What they are concerned, which is the 98% who enter without inspection.
There are very small number who enter lawfully and then to violate the terms of their entry permits.
It is really the entrance without inspection that the inland checkpoints are designed to apprehend.
Justice Lewis F. Powell: Mr. Evans, in this connection, the 72 out passes are good up to 25 miles as I understand it.
Mr. Mark L. Evans: That is correct.
Justice Lewis F. Powell: And am I correct also in understanding that this one of the reasons, perhaps the principal reason why the checkpoints are located beyond the 25 mile area.
Mr. Mark L. Evans: Yes, it is combination of that and as I indicated the urban congestion in the immediate border areas particularly in California.
But that is correct, in order to control not only those who come across lawfully with visitors cards to control their unlawful exceeding of the 25 mile limit, which is a very successful effort because very few people do.
It is also designed to prevent the use of forged or elicit visitors cads, which are used very widely by smuggling operations in the area.
And one of the reasons why a checkpoint within 25 miles could accomplish nothing in this respect at least that everybody would flash a look alike card when the officer would have no real way beyond, you know, apart from a very intensive investigation to determine whether it was really legitimate.
As under that extent Mr. Justice White, I suppose does relief some of the pressure because there are a number of people who do enter with visitors cards to which they are not entitled but which are look-a-likes, and to that extent, they are intercepted if they carry them with them, which they ordinarily do not, they ordinarily mail them back to Mexico for further use.
But if they carry them with them, they are intercepted further on.
Justice William H. Rehnquist: Is the heavy volume port of entry like San Isidro open 24 hours a day?
Mr. Mark L. Evans: I do not -- yes, I gather it is.
Justice Lewis F. Powell: Mr. Evans, pertaining to the procedure at the San Clemente checkpoint for a moment, possibly you covered this.
Looking at this picture, a large stop sign, is every single vehicle stop?
Mr. Mark L. Evans: There is some dispute between the litigants here as to whether they are or not.
The record in the consolidated District Court proceeding just does not speak to the question at least not clearly the District Court findings were that at the most to the motorist is subjected to is a fleeting stop.
We are informed by the Border Patrol hear that with the exception of those vehicles that are referred to secondary, very few come to a full stop except when traffic is light and they are curious, they make -- I mean the sign does say stop and they may stop, but the officer wants to keep the traffic moving and he motions with one hand and then other and generally waives them through four to five miles per hour.
We may be disputed on that point by the other side, but I have no way of answering it other than what I have said.
I referred to some of the smuggling that goes on with respect to the transportation of illegal entrance, the record shows that those smuggling operations have been designed specifically to evade the checkpoints and that an alien who pays 200 to $300.00 for transportation to an inland job market is paying for a safe through a checkpoint.
One witness stated that without the checkpoints the smugglers would be out of business immediately.
Indeed the mere cost of -- that a smuggler charge -- the mere price is smuggler charges is a very significant deterrent to many of the persons who otherwise would be tempted to come to this country as Judge Turrentine found the average per capital income of the poorest 40% of Mexican nationals is in the range of a $150.00.
There is another difference between checkpoints and roving patrols that we think is significant and this the circumstances in which the intrusion occurs.
In both cases of course a vehicle -- search of a vehicle is limited to those places in which an alien or a person could reasonably be concealed and that usually means the trunk, sometimes they look in the hood for the reason that this pictures demonstrate.
Sometimes they look under the car with a mirror and occasionally they will have to do what they did in the case of Almeida-Sanchez which is to look under the back seat particularly if there is something about the trunk that makes them think there is compartment there or if the driver does not have a key to the trunk.
Unlike a roving patrol however, in which an officer patrols a large area, stopping vehicles by pursuing with a siren and a flashing light often at night.
Checkpoints are stationed there and their procedure is more regularized and the Fifth Circuit in the decision that I mentioned earlier stated in upholding a warrantless non-probable cause search of a vehicle for aliens at a permanent checkpoint in Sierra Blanca, Texas.
A permanent checkpoint the court said does not have the constitutionally frightening aspect of a roving patrol.
Similarly, there is less flexibility in the operation of a checkpoint and less discretion is vested in the officer himself who is limited to a single location which has been established by senior officials of the Border Patrol.
That decision I think is subject to important self limiting constraints.
There is a very severe shortage of manpower, the officials who are responsible for locating these checkpoints are highly motivated to place them in those spots in which they can operate most effective --
Justice Byron R. White: Is it as I understand it Mr. Evans, could the same car pass through on the same road more than one checkpoint, one at 25 miles, another at 62 miles.
Mr. Mark L. Evans: I don't believe so, but my understanding is that the aim is to cover every road leading north.
But now, let me take that back.
There are a couple of east, west type roads in which there are I think more than or there are more than one in the vicinity.
I am really not quite clear, but I am confident that that is not the normal procedure, there is usually on checkpoint for each major artery and there will be a less often operated checkpoints at the less significant arteries.
Justice William J. Brennan: Mr. Evans, could you spare that map?
Mr. Mark L. Evans: Sure.
Justice William J. Brennan: For a moment.
Mr. Mark L. Evans: I also have another one if you are interested.
Justice William J. Brennan: Incidentally, there doesn't seem to be any of those maps in our courts.
Mr. Mark L. Evans: I do not -- the one that I showed you before is the one at Southern California, this one shows all 47 of the Border Patrols checkpoints.
And if there's been problem with having the maps delivered here, I will see to it this afternoon that enough copies are supplied.
Justice William J. Brennan: Is there any chance they were delivered in perhaps of one of the cases rather to one of these arguments?
Mr. Mark L. Evans: No, they were submitted together with our brief in Ortiz and they were lodged as I understand it with that brief.
Justice William H. Rehnquist: Did opposing counsel receive them?
Mr. Mark L. Evans: Yes, certainly.
Justice Harry A. Blackmun: Would you agree if in Ortiz that as they say that --
Mr. Mark L. Evans: That is the reply brief, isn't it?
Justice Harry A. Blackmun: The reply brief.
Mr. Mark L. Evans: Well again, I am told as my understanding that that brief was filed on Friday.
I do not know whether it was inadvertently not stamped or whether for some reason the delivery did not take place, but in my understanding it was -- it was served on council on Friday I should add although counsel were in route from California.
I was saying that the decision to locate a checkpoint is not one that is -- the decision of a cop on the bit.
And the Fifth Circuit appelee stated that again in that same case, the case named by the way is Heart and it was decided January 15, 1975.
The court stated that permanent checkpoints, the commitment of time, money, personnel and the administrative decision for location of the search are all presumably such as to remove to a large extent the individual arbitrariness that might be available to roving agents.
And we believe that the combination of these three factors that greatly increase need for checkpoints are less frightening aspect of the intrusion contemplated in the reduce discretion of the officers at least with respect to the place of the search themselves distinguish checkpoints searches from roving patrol searches and should make it possible for the court to honor the congressional judgment that warrantless searches at vehicles for aliens if conducted within a reasonable distance of the border are necessary for the protection of our border against unauthorized entries and are reasonable under the Fourth Amendment.
Indeed, we think that checkpoint search is very, very close resemblance to the searches that are in fact made at the border far more intrusive actions.
Justice Byron R. White: Are you urging at the hundred miles under the regulation is itself reasonable in every case?
Mr. Mark L. Evans: No, no.
There may certainly be if a checkpoint were established in downtown San Diego, I do not think we could sustain it and I do not think we would try to.
It would havoc as the evidence shows with respect to a checkpoint even outside the city, but near the major commuter and shopping areas.
We suggest that the analysis of Mr. Justice White's dissent in Almeida-Sanchez that congress contemplated the border for purposes of immigration law enforcement as a zone rather than as a line is particularly up here.
Though the Court did not accept that analysis in the context of a search conducted by a roving patrol officers pursuing and stopping a passing vehicle, we believe a different result is appropriate here because the facts make the operations so much more closely resembling the operations at the border itself.
Justice Byron R. White: Well I gathered some of the things you say in your reply brief particularly on page nine of the Ortiz brief.
This is in line of what I'm asking a while ago.
In the case was just perhaps impractical to really do the job at the border at certain point such as in the Chula Vista.
Mr. Mark L. Evans: Mr. Justice White that is correct except that we are talking about here is impractical to do the job of protecting the borders other than the ports of entry.
The Border Patrols line watch just cannot control unauthorized entries other than a port of entry.
That is the job it can't be done at the border.
The job at the inspection stations is being down when people present themselves for inspection, they are inspected and they are admitted or not admitted but that job is --
Justice Byron R. White: But if you're traffic control or your traffic check you suggest here just cannot be done without crating havoc.
Mr. Mark L. Evans: In the border area.
Justice Byron R. White: Yes.
Mr. Mark L. Evans: I am not talking about the port of entry.
Again, I am referring over the border on this side of the line, but in the urban area around the border as it is in the case of San Diego area.
Justice Byron R. White: So, the reason why the line watch at the border says here in the southern California area, the reason why that is not effective and you must supplement it is just because of evasion?
Mr. Mark L. Evans: Essentially that is correct.
If everybody presented -- every person who saw entrance to this country presented themselves for inspection at the border, there would be no serious problem of illegal entrance in this country.
Justice Byron R. White: Oh!
I understand that, but you seem to think that somebody by making a traffic check 30 or 40 miles inland can find something out about from the flow of traffic that he couldn't find out at the border.
Mr. Mark L. Evans: No, he could find it out at the border if they had a way of patrolling the entire 2,000 miles of the border.
Justice Byron R. White: I know but let us assume that particular port entry.
Now why is the border check 30 miles inland any better for you than at the traffic check at the border?
Mr. Mark L. Evans: Because the --
Justice Byron R. White: Other than for or because of evasion.
Mr. Mark L. Evans: Well, because those who have evaded the inspection station at the border, the record shows move north to jobs markets in automobiles.
Justice Byron R. White: So we must check even if it is the same traffic we would likely check it twice.
Mr. Mark L. Evans: Well in certain circumstances, it is going to be the same traffic that passed through the inspection point, but in most cases the aliens who are found or aliens who have not come across in a vehicle.
They have walked across or have been guided to cross.
Justice Byron R. White: So that is the thing the United States has stressed before.
I just happen to run into this other --
Mr. Mark L. Evans: The argument in the reply brief is addressed to the suggestion that we should move our checkpoints closer to the border, not at the border.
They are suggesting at one point in their brief or adversaries that these checkpoints cannot be justified so far from the border and our suggestion is that we cannot physically do the job near the border, there are too many roads, there are too much traffic, there is too much local traffic, they just cannot be checked effectively.
Justice William H. Rehnquist: When you say checkpoint, you do not mean the port of entry of San Isidro --
Mr. Mark L. Evans: That is correct.
Justice William H. Rehnquist: You mean something like San Clemente.
Mr. Mark L. Evans: Exactly, that is a checkpoint at the port, at the entrance to the country with the usual phrase as port of entry and that is how I have used those terms so far.
Justice Potter Stewart: And most of these -- most illegal aliens in fact have not come through the ports of entry, they have come across the border at some place where there was not a port of entry.
Mr. Mark L. Evans: And almost a 100%.
Justice Potter Stewart: Almost presumably.
Mr. Mark L. Evans: Yeah.
Justice Lewis F. Powell: And they have prearranged around to the points with smugglers often.
Mr. Mark L. Evans: Very frequently.
Justice Lewis F. Powell: And the smugglers them to the labor markets, which are well beyond San Diego and often in the northern part of California in other places?
Mr. Mark L. Evans: As far as Chicago, it is not all common for truck loads of illegal entrance to be destined for Chicago.
They are either found in New York.
It is all over, it is not --
Justice Lewis F. Powell: So you are saying that if you have a thousand checkpoints on this 2,000 mile border itself, you would not solve this problem?
Mr. Mark L. Evans: Well if we had a thousand checkpoints --
Justice Lewis F. Powell: On the border itself?
Mr. Mark L. Evans: On the border itself, it would not solve the problem of illegal entry.
There are estimates in the testimony in the District Court by the senior officers in this Border Patrol sectors that it would take just an enormous army to control the potential of unlawful entry, if there is someone there when they try the first time as one officer says “They will bounce off and try somewhere else.”
Justice Lewis F. Powell: Right.
Mr. Mark L. Evans: And he estimated it would take 21,000 men to cover his sector of a 145 miles.
Justice Lewis F. Powell: Mr. Evans, since I have interrupted you.
Let me come back to the legal problem.
I understand the Government's position and that is that no warrant procedure of any kind is necessary for the fixed checkpoint, but let us assume for the moment that the court does not accept that position, what about a warrant procedure authorization by a district judge for the maintaining of a checkpoint after the judge has been convinced that facts and circumstances justified.
Mr. Mark L. Evans: Mr. Justice Powell, our principal contentions have indicated that no warrants are needed.
If we loose that, we consider it essential that the court make it plain if it can properly do so that a warrant could properly be issued.
We have had very serious problems with respect to the checkpoint warrants that have been issued in the Ninth Circuit following its decision in Bowen and then in Brignoni-Ponce, which is the next case.
Some judges think that warrants are not permitted by the Fourth Amendment as Mr. Patten indicated one of the principal checkpoints in California has been closed for quite a long time now because one judge said that he did not think he have authority to issue a warrant.
Justice Byron R. White: Which one was that?
Mr. Mark L. Evans: This is Temecula which is the second one over I believe from the ocean.
Justice Lewis F. Powell: If this Court said that the district judges had a tie to that resolve that problem, what are the causes?
Mr. Mark L. Evans: Right.
Well there are other problems.
We have found that nearly all the magistrates and judges have been requiring statistical showings for particular checkpoints that are just simply impossible to meet.
These checkpoints are designed as deterrence and the more effective they are as deterrence, the fewer the apprehensions they are going to be.
And as a consequence, we have had to shutdown essential but less frequently traveled checkpoints because -- in three cases, because the warrants were refused on the ground that the statistics were inadequate.
Justice Byron R. White: Why did you shut them down because of refusal, the warrant when you contention is you do not need a warrant?
Mr. Mark L. Evans: Well the Ninth Circuit is ruled that we cannot --
Justice Byron R. White: This is after post Bowen?
Mr. Mark L. Evans: This is post Bowen.
We did not start the warrants procedure until they decided Bowen, which held the checkpoints could not be -- checkpoint searches could not be conducted without warrants and then Brignoni-Ponce, which was soon followed by decision that said the checkpoints stops, could not be conducted without warrants.
Justice Byron R. White: Mr. Evans, have any of these refusals taken into account the distance of a particular checkpoint?
Mr. Mark L. Evans: I am sure --
Justice Byron R. White: Not merely the traffic through it.
Mr. Mark L. Evans: Yes.
Justice Byron R. White: But the distance from the border?
Mr. Mark L. Evans: I do not know from personal experience or even from talking to those who do --
Justice Byron R. White: Well, you think that would be a relevant consideration?
Mr. Mark L. Evans: I think it would be, certainly, I think the whole geographic situation is relevant.
There is another problem we have had and that is that the warrants have been issued in every case for 10 days at the most and that 10-day period makes it necessary repeatedly to get approval of the same warrant even though it is operation location, the procedure of not changed a whit.
Chief Justice Warren E. Burger: What kind of a warrant are you referring to now?
Mr. Mark L. Evans: Well, the warrants that have been issued in the Ninth is not a problem, the Ninth Circuit warrants have been limited solely to one warrants authorizing the stopping of vehicles for purposes of acquiring as to the citizenship of the occupants.
There has been no authority granted to conduct the kind of searches that Border Patrol considers are essential to its enforcement scheme and these warrants do not say nothing more essentially than you are commanded to conduct a checkpoint and you are authorized to stop any north bound vehicle during your hours of operation to inquire as the citizenship of the occupants.
Chief Justice Warren E. Burger: I take it there is no suggestion from the Ninth Circuit of Appeals that you need anything in the nature of a warrant for the port of entry, stop,
Mr. Mark L. Evans: That is correct.
Chief Justice Warren E. Burger: And complete search.
Mr. Mark L. Evans: That is correct.
Well, there are some limits as to body cavity searches for example.
Justice Byron R. White: Well is there some suggestion in the Bowen that the warrants would not be authorized?
Mr. Mark L. Evans: Bowen left the issue open.
It stated we do not have to reach that issue much as this Court left it open in Almeida-Sanchez, but there have been as I have said, we have lost the checkpoint in essential district.
That is actually an essential district although it was treated in the --
Justice Byron R. White: Well I do not want to read your private notes from your map --
Mr. Mark L. Evans: That is okay.
Justice Byron R. White: -- apart from you but --
Mr. Mark L. Evans: I have no legitimate expectation of privacy with respect to the map.
Justice Byron R. White: You have these checkpoints number six and eight, you have a note at the side that not sought.
That means a warrant was not sought.
Mr. Mark L. Evans: That is exactly.
Now I was going --
Justice Byron R. White: -- could you close those down or you still operate?
Mr. Mark L. Evans: No, those have been closed down and the reason they were closed down and there are – I forgot the number now, I have the total number --
Justice Byron R. White: The county of five and five --
Mr. Mark L. Evans: There are total of six warrants in the checkpoints in the jurisdiction of the Ninth Circuit that have been shut down because the responsible officials and the United States attorney felt that there was not an adequate showing to make to the magistrates to meet the requirements they had established.
Justice Byron R. White: Why that the warrant was refused?
Mr. Mark L. Evans: The warrant was not refused but --
Justice Byron R. White: But their warrants were refused.
Mr. Mark L. Evans: And warrants were refused in another four.
One of which was in the ground that it was improper grant such a warrant and the other three were on the ground that it was – there was an adequate showing.
In nine of the checkpoints, generally the largest and most important I would say here, there have been warrants issued for nine of them and they have been continuous more or less, but of course with roughly --
Justice Byron R. White: Are they Ninth Circuit check point?
Mr. Mark L. Evans: Pardon me?
Unknown Speaker: Are they ninth?
Mr. Mark L. Evans: Yes, these are all Ninth Circuit.
Now in the Fifth and Tenth circuits, the checkpoints have been operated without warrants pursuant to the procedure that it have been followed in the past because those circuits have up until recent, the Fifth Circuit had not ruled on it.
It is now a rule that permanent checkpoints are lawful.
At least upheld one and its decision can certainly be read broadly enough to hold the rest.
And the Tenth Circuit while it held in King and Madocks that the principles of Almeida-Sanchez should apply to checkpoints.
What it said in essence was that you can not conduct a checkpoint search without warrant, without probable cause unless that the functional equivalent of the border.
It remanded to the District Court to define that term which it did not attempt to do and that was the 98 mile from the border checkpoint involved, and so at least that circuit is completely open.
We have not contended for that definition of functional equivalent here.
We think the Ninth Circuit correctly read that phrase, but at least that circuit has not ruled that that checkpoint or the others within it are unlawfully operating.
So we have been operating them without warrants.
Chief Justice Warren E. Burger: Thank you Mr. Evans.
Argument of Charles M. Sevilla
Mr. Charles M. Sevilla: Mr. Chief Justice, and may it please the Court?
I think Mr. Evans has outlined adequately the facts of this case and issues involved, but I would like to address immediately some of the statements which we take issue with.
First of all in comparing a roving to a fixed check, we have to look at the nature of the intrusion involved and each case were involved with a search, which takes place because of the unfettered exercise of discretion by Border Patrol officer at a checkpoint who decides without any criteria, what so ever, that he is going to select a car, refer to secondary and conduct a full search of a car.
And that this --
Chief Justice Warren E. Burger: These are searches which you would stop sign searches which you would consider lawful at the port of entry, I take it?
Mr. Charles M. Sevilla: No question about that.
Chief Justice Warren E. Burger: But if they are 10 miles or 20 miles or 30 miles interior, then they require a warrant you say?
Mr. Charles M. Sevilla: Then I would have a question because the question would then be, is this the functional equivalent of the border.
Now the Government has sighted the hard case for the preposition that the Fifth Circuits says that, well all check points are valid.
But that is not true.
The Fifth Circuit said that the Sierra Blanca checkpoint located some 10 miles north of the border was the functional equivalent of the border.
And we would say that if a checkpoint is the functional equivalent to the border, no warrant is necessary because obviously the same type of powers would emanate for a functional equivalent checkpoint as a port of entry.
Now with some limitations such for body searches --
Justice Byron R. White: Well what criterion you suggest for the determination of functional equivalent?
Mr. Charles M. Sevilla: Well I think the Heart case listed several.
It should be the first functional point of entry.
Now, in the Sierra Blanca checkpoint, we had two checkpoints pardon me, two ports of entry on the Texas, Mexico border which were closed down.
And the checkpoint located some 10 miles north.
In between those two checkpoints was the first functional point of entry for all of the people traversing through that area.
And I think that is a legitimate --
Justice Byron R. White: If they have been opened and have to close down on the border then what?
Mr. Charles M. Sevilla: Then it would not be functionally equivalent to the border.
And of course the Border Patrol recognizes that by not opening it when the ports of entry are open.
Justice Byron R. White: So, what we're really saying is it is I check which in affect is a substitute for closed border.
Mr. Charles M. Sevilla: That's true but it's not necessarily sold because we only have two ports of interest such as in California and Southern District, one in Calexico and one in San Isidro.
Now, a functional equivalent of the border could also exist today somewhere between those two point or somewhere between the Calexico port of entry in the Yuma port of entry where there is really no port of entry involved but yet there are let's say rural rows which are leading from the border in which a lot of border traffic traversing.
So, that could also be the functionally equivalent of the border --
Justice Byron R. White: You're suggesting that if the checkpoint would pick up traffic that reasonably might not go through a port of entry.
It is the functional equivalent of the border.
Mr. Charles M. Sevilla: That's true as long as -- it have to be other criteria such as it should be reasonably related to the border in terms of distance.
I don't think for instance in this case, we're talking about checkpoint 66 miles north of the port of entry.
This checkpoint in San Clemente, it's 66 miles north of the San Isidro port of entry.
And I'd really take issue with the Government's contention that they don't want to disrupt commuted traffic.
That's exactly what's involved at the San Clemente checkpoint where some 10 million cars traverse north from San Diego to Los Angeles.
And a very few as we say a trickle of traffic emanates from the border and goes through San Clemente.
And we must also look to the fact that 99.9% of the vehicles according to statistical sample taken from Border Patrol affidavits, 99.9% of the vehicles contain no immigration or violators at all.
So, I think these are relative criteria in assessing the reasonableness of the checkpoint in this case.
I would also and getting back to the distinction between a roving and a fixed checkpoint we've got to look one, there is unfettered distinction exercise by officer at the point.
Now, there's a discrepancy at to whether stuff takes place.
I would simply rely on the pictures submitted by the Government in this case.
It says ”All traffic stop here.”
There's a Border Patrol men with a stop sign.
A mile down the road Interviewer it says, “All traffic prepare to stop.”
And then the Government's opening brief that makes illusion back at hearings where the court specifically laid out all of the procedures to notify the oncoming traffic that they're going to be stopped to hit.
Now, for those individuals who are lucky enough to pass the unfettered discretion of the point officer and make it through, that's fine.
But then there's a significant amount of traffic that is referred based on no particular basis except as the Government says, “The ESP powers are the sixth sense power of the point officer.
In the exercise of his sixth sense, he refer to some cars over to the secondary for a full search of the trunk, the hood area, and under the front seat.”
I might add that this is conducted by armed officers in uniform who as the consolidated hearings may have claimed or not the administrative officers, law enforcement officers carrying 357 magnums.
And when a car is referred to the secondary area, one officer approaches the passenger's side, one officer approaches the driver's side, orders the individual out, orders him to open his trunk, orders him to open the hood and then the inspection of the interior may take place.
So, this is hardly a situation where the protections for the Fourth Amendment should be abandoned.
And as this Court said in Calandra “The need for deterrence and hence the rationale for excluding evidence are strongest for the Government's unlawful conduct would result in imposition of a criminal sanction on the victim of the search.”
And that's what exactly is involved here.
The victim of the search in this case was Mr. Ortiz.
A search took place and which it was unlawful after Almeida-Sanchez made it clear that probable cause was required in search not at the functional enclavement of the border and not authorized by warrant.
Nevertheless, the search took place.
The evidence was discovered which led to the conviction of Mr. Ortiz.
With respect to the issue of the card holders, initially Mr. Evans said, “Well, they're not the problem.”
But in addressing Justice Powell he said, “Well, they are the problem.”
That is one of the criteria for the establishment of the checkpoints.
Our brief makes quite clear that the INS was represented to a Congress of the United States that you can't equate the problems of the I-186 card holders with the surreptitious entrance, because the I-186 card holders treasure the card that gives them the right to enter the United States.
They enter at a port of entry.
They do not use smugglers because they can enter legally.
And further INS statistics also reveal that all checkpoint operations in fiscal 1973 accounted 4.003% of the people who had I-186 cards.
It simply not a problem at the checkpoints, of the over half million illegal aliens captured 1973 I think something less than 5,000 were I-186 card holders abusing their privilege.
They are not the problem.
And the Government has two problems with that argument.
Checkpoints were not established to control I-186 card holders because as the decision of the Tenth Circuit in Rhoa Rodriguez makes clear I-186 card holders up until just a few years ago could travel up to 150 miles north of the border.
So, therefore checkpoint up until very recently when that restriction was brought on the 25 miles but checkpoint was orderly useless in monitoring that type of traffic.
Further, the Government has a bootstrap argument with booth I-186 card holders because it's the Government that's issuing those cards.
And if it would be rather ironic reason to allow the Government to conduct this massive road blocks based on the issuance of cards which usually have a perfect right either not to issue at all or to issue in a more restrictive manner.
So, I don't think the I-186 card rationale plus it all on this case.
And I might also add when we're talking about the distinction between a roving and a fixed checkpoint that the Bowen court of course found a significant degree of the discretion with the point officer in selecting whom he would select for this more intrusive type of search and it certainly not a modest intrusion for an individual to be travelling 155 miles an hour in interstate freeway.
Perhaps, never having even come close o the border and then to be ordered of the freeway by an armed officer in this intrusive sort of search conducted.
In this case, there is no evidence that Mr. Ortiz ever went closer than 15 miles north of the border.
The only evidence in the stipulated facts trial is that Mr. Ortiz picked up three aliens in Oceanside of California whom he knew to have entered within three years.
That is the only time in place nexus which connects the search to the border unlike the Almeida-Sanchez case where the officers at the time they conducted a search knew that Almeida-Sanchez had just come from the border.
And this is sort of typical of the blanket drag net type of search and seizure policy that goes on at the checkpoints.
Another problem I have with the Government's information relying on the INS provided maps is in the first map, I'm sort of glad the Court doesn't have the map because it's really inaccurate.
The Government said that there are 12 checkpoints in the southern district of California.
The testimony by the two agents who run all the checkpoints in the southern district of California indicated that there were nine such checkpoints.
The Government has indicated in the maps to this Court that three agricultural stations located on the Arizona-California border are immigration checkpoints established by the INS.
Another one when located in the Tecate, California and number four simply does not exist.
And so that's unfortunate that took place but the record clearly reflects that there are nine and where they are located.
And if I might further add that if this Court sees fit to apply the probable cause standard to the search that took place in this case as it should since it is directly -- the analogy is clear to Almeida-Sanchez and Carroll versus United States that not all checkpoints were immediately going to collapse.
This checkpoint is simply unreasonable.
It doesn't come close to meeting the requirements of a functional equivalent, 99.9% of the traffic according to INS statistics contains no immigration law violators.
96% of those searched at this checkpoint are not violating any law.
It's really a massive intrusion and sort of a blanket scale.
Justice William J. Brennan: Let me get this point Mr. Sevilla we're talking about -- I can't keep this two cases clear to me.
Mr. Charles M. Sevilla: We're talking about the --
Justice William J. Brennan: This is the one in 62 miles, isn't it?
Mr. Charles M. Sevilla: 62 or 66 or at 62 area and 66 road, that's correct.
Justice William H. Rehnquist: You said a certain percentage were we're searched.
Is there a search of the person or is it just of a car?
Mr. Charles M. Sevilla: It's not of the person.
It would be of the car area ostensibly where an alien could be hit in.
But of course since INS officers are also customs officers sometimes their delineation between where they can search for aliens and where they can search for counter band becomes confused.
And we have cases where aliens or the INS officers are searching for an alien in a jacket or in a pocket of cigarettes outside of those cases in the brief.
And that's the unreasonable distinction between the powers.
I think as a custom officers guided by probable cause when he is dealing with the situation not at the functional recruitment of the border, associate and immigration officer.
Chief Justice Warren E. Burger: But wherever it is the functional equivalent he needs and he may make any search without a warrant short of the --
Mr. Charles M. Sevilla: Short of a body cavity search I would say so.
There may be some limitation as to the extent of the search but certainly a search for aliens would be unquestioned that the functional recruitment of the border.
And I would submit that the fifth circuit has already found two of the checkpoints on the maps submitted to the Court to be the functional equivalent of the border.
And so, it's really a non-wanted inference to believe that declaring the unreasonable checkpoint at San Clemente illegal that that would have a domino effect on other checkpoints.
We're only dealing with the San Clemente checkpoint.
Now, the Government's theory which it brings to this Court for the first time I might add since I didn't bring before the District Court or before the Court of Appeals is that there's a functional equivalent of probable cause in this area.
Now Justice Powell is the only member of this Court to have spoken to the relatively unstructured concepts of the functional improvement of probable cause.
But I might just go over the five criteria that Justice Powell talked to and demonstrate other court—I mean how the Government has not addressed any of those.
Number one, there was warrant requirement because this is the concept where certainly a judicial officer should make the determination and not a Border Patrol men standing 66 miles north of a border determining a legal concept such as the functional equivalent of probable cause.Second, the distance from the border, 66 miles in this case and the geographic characteristics.
The geographic characteristics in this area, we have an interstate freeway where the commuted traffic between San Diego and Los Angeles is interrupted.
This is not the -- I do not believe this is what Justice Powell was talking to in his concurrent opinion because after the mention was made of geographic characteristics or there's a footnote to the problem long the border and that is that there are vast areas, rural, desert areas where there are no points of ports of entry.
And yet there are means for aliens to surreptitiously enter.
This isn't the situation.
Here we have a checkpoint north of the Second Circuit largest city of California and north of about 18 other cities along the coast and just south of Los Angeles.
So, it has nothing to do really with border enforcement.
And as a matter of fact the only people who would be coming from the border on I-5 many of them of course would have gone through the San Isidro port of entry.
The most important criteria that Justice Powell talked to was the interference with the rights of the innocent.
And I will not repeat the 99.9% figure again as to of the people who are violating the law when they passed the checkpoint.
So, on these criteria, certainly there is no functional equivalent of probable cause and when the Government says, “Oh, we've had a problem getting a warrant for this checkpoint.”
Well, there's no wonder.
They certainly haven't established the functional equivalent of probable cause unless that's to be a really meaningless concept because if that's functional and equivalent, there should be some probability that the people going through that checkpoint are violating the law, that's what probabilities were all about.
But in this case, it's less than one-tenth of percentage of the vehicles going through the checkpoint.
I've got two minutes before lunch and I'll try to make that time deadline.
I might address myself to the Camara concept which the Government has also sought to take refuge under.
In Camara, the intrusion was that of an administrative clerk who went to a home to look for housing code violation.
Persons who were found in violation were not prosecuted for felonies as Mr. Ortiz was which carries a maximum penalty of five years per alien.
As a matter of fact, as a matter of course they weren't prosecuted at all whereas the Government economic acclaim to this Court that the transporters of aliens were not prosecuted when they found.
As a matter of course they must be.
They have to be prosecuted.
And so, we have a strict law enforcement procedure going forth as Magistrate McCue testified at the consolidated hearings.
Two magistrates in our district in 1972 and 73 handled 7,000 immigration violations which were really transportation of alien charges --
Chief Justice Warren E. Burger: We'll resume right after lunch.
Mr. Charles M. Sevilla: Thank you Your Honor.
Mr. Chief Justice.
Chief Justice Warren E. Burger: Mr. Sevilla?
Mr. Charles M. Sevilla: And may it please the Court.
I believe I was discussing the criminal investigative nature of the San Clemente checkpoint and discussing Magistrate McCue's testimony which is reflected in our brief concerning the thousands of prosecutions in our District for transportation of illegal aliens based upon the arrest of persons by immigration officers on highways and interior of the State of California.
So, I'm going to rely on our brief with respect to the details of that testimony.
I would like to discuss after discussion with the petitioner my allusion to the three checkpoints located on the border between Arizona and California located in the map, number one, provided by the Government.
Justice Byron R. White: Well, we don't have one.
Mr. Charles M. Sevilla: Pardon me that as just as well.
The Government asserts that the three checkpoints which are rather clearly delineated as being in the health central sector on this map or in fact in Arizona.
However, I would point out that these three checkpoints are California agricultural stations which the petitioner informs me that an immigration officer is stationed at this California agricultural station to check for aliens.
So, I don't want to leave any misrepresentations in the record.
However, I would state that this is one of the problems when the Government goes outside the record to supply this current information in a non-advisory proceeding especially when one of the parties is applying the information.
The Government had its opportunity of the consolidated hearings to provide this information.
And I think they should stick with that record.
With that, the Government makes a big point about the need of the checkpoints.
The question in this case is not whether or not searches for legal aliens can take place at all.
It's whether they can take place with probable cause or based upon a warrant, or based upon the functional equivalent of the board -- of probable cause of based upon a checkpoint at the functional equivalent of the border.
But then in addition to those alternatives, the Border Patrol has at least eight or nine other programs which they use to capture illegally entering aliens that includes that line watch roving patrols near the border.
The form investigations, transportation terminal checking procedures, metropolitan investigations, and I'll stop at Metropolitan investigations because in a 20-day period in the City of Los Angeles, a handful of immigration inspectors swept through evidently a barrio in Los Angeles are and captured 20,000 illegal aliens.
That's more --
Chief Justice Warren E. Burger: So, that is of the total entrance is that, would you say?
Mr. Charles M. Sevilla: Well, by comparison in the entire year at the San Clemente checkpoint between 12,000 and 16,000 were captured, that about a half million total were captured in fiscal 73.
But in a 20-day working period, the INS was able to capture 20,000 in the City of Los Angeles which sort of detracts from the theory that the Government will be unable to discover illegal aliens once they have crossed the border which is of course the first line where the Border Patrol should be watching with increased vigor.
I might also point to the record which establishes that the entire California and Mexico border during a typical day is guarded by 30 Border Patrol agents.
And there are nine inland checkpoints in the southern District of California which takes away obviously a significant amount of manpower from the border.
At San Clemente, there are 47 Border Patrol agents assigned there for a full day activity.
And you can multiply that by a factor of nine although I'm sure there are lesser numbers assigned to the other checkpoints.
Chief Justice Warren E. Burger: Well, from what you're saying now and what you have in your briefs and other briefs on this Court I think that you think they aren't doing their job very well?
Mr. Charles M. Sevilla: Well, they have a significant problem.
There is a massive intrusion of illegal aliens.
I'm saying that there is no need to dismantle the constitution to discover illegal aliens when there are so many alternatives available and --
Chief Justice Warren E. Burger: But when they go through the barrio presumably it's a grand sweep, a drag net.
Mr. Charles M. Sevilla: Well, if it nearly --
Chief Justice Warren E. Burger: Can an alien move to suppress the evidence of this illegal presence in the country by a reason of the fact that he was ceased in an illegal search?
Mr. Charles M. Sevilla: He very probably could.
But as this court pointed out in Terry versus Ohio, any law enforcement officer can approach any resident of this country and ask him a question “Where're your papers.”
And the person doesn't have to answer but if the answer says, “I don't have any papers.”
That provides basis for excluding him from the country.
The point is that there are other viable alternatives such as the industrial checks, the boat and stow away checking, etcetera as well as the doctrine who've found it suspicion to stop a car which we have on our warrant and those cases are cited in our brief.
That involves roving Border Patrol cars in the border area looking for suspicious looking cars.
And if there's an articulable basis to stop the car it's permitted.
In addition, there is a Governmental agency interplay involving the IRS and Social Security and HEW which allows the agencies to detect the aliens once they have made it to the cities and they're now applying for Governmental benefits.
And of course the greatest deterrent of all would be passage by Congress of the Rodino Bill which would make the annoying employment of an illegal alien unlawful.
And that is where the real deterrent rest.
It's up to Congress.
And I think that given the significance burdens of the Border Patrol and nobody is denying that.
But it's up to Congress to give them the constitutional tools with which to deal with the problem.
Justice Harry A. Blackmun: Mr. Sevilla?
Mr. Charles M. Sevilla: Yes sir.
Justice Harry A. Blackmun: As I understand what you are now saying you disagree with the findings that were made by the District Court in the consolidated hearing, I have before me at page 18 (a) of the petition for the writ in which the district judge said “The primary reason for their operation that is a checkpoint is that they effectively deter life's numbers of aliens from illegally entering the country.”
Do I understand that you controvert that finding?
Mr. Charles M. Sevilla: I certainly do and I think the record reflects that.
And that consolidated hearing of course the Border Patrol men said, “We believe it's a deterrent.”
But I think the record reflects that the fact that the immigration commissioner indicated that there are some 10 million illegal aliens here today shows that the checkpoints are an obstacle but an easily evaded obstacle.
Justice Harry A. Blackmun: Right, right.
One must consider alternatives and the district judge also found on page 20 (a) that there's no reasonable or effective alternative method detection and apprehension available to the border control -- Border Patrol, I understand you disagree with that also.
Mr. Charles M. Sevilla: Well, I not only disagree with Your Honor.
But the Ninth Circuit in the Bowen case said that the Government I not going to be rendered helpless if they strike the type of search activity that took place in this case.
There are alternatives.
I've outlined just a few of them and I'm sure the imaginative use of other alternatives would provide great deterrent --
Justice Harry A. Blackmun: Your possession that there's no substantial evidence to support those findings at the District Court.
Mr. Charles M. Sevilla: I would say that's true.
For instance I cited in the brief the statistic that the San Clemente checkpoint captures only 5% of the illegal alien traffic going through it.
With that efficiency ratio, it's hardly a deterrent to illegal aliens passing through that area.
In closing, I would just state Mr. Nasatir is going to address the retroactivity question with respect to checkpoints.
But on page 12 and 13 of the reply brief by the petitioner is the statement concerning the appearance of persons of Mexican residents.
The petitioner has asserted that Border Patrol officers using their sixth sense powers of extra sensory perception can determine merely by a quick visual glance at a person coming in a vehicle and an interstate highway whether that person is an illegal alien from Mexico or a lawful permanent resident from Mexico or a Mexican-American citizen.
And they can make that distinction sufficiently clear to cause a referral to its secondary basically only where there's a reasonable suspicion of unlawful alien.
If we read the characteristics that the Government asserts on page 12 and 13 describing the illegal Mexican alien I think it would be safe to say as the Ninth Circuit has said and just taken judicial notice that it is impossible based on an appearance of an individual to tell whether he is here illegal or legal or illegally.
And in fact of course the imperial county is 52% Mexican-American in the southern district.
San Diego County which has a population of a million and a half is 13% Mexican-American.
Los Angeles has the largest Mexican-American population in the northern hemisphere outside of Mexico City.
Now, these people have a right to uninterrupted travel and not to be referred to secondary because some Border Patrol men thinks they may be illegal aliens.
Chief Justice Warren E. Burger: Thank you Mr. Sevilla, Mr. Nasatir?
Argument of Michael D. Nasatir
Mr. Michael D. Nasatir: Mr. Chief Justice and may it please the Court.
First of all, I would like to make the record perfectly clear that this petitioner does not concede that Section 1357 is the only statute or is a statute upon which the internal -- the Border Patrol could rely upon for these checkpoints.
And certainly is not a basis for reliance in terms of the clear past precedent of this Court and is not a basis of reliance even under the statutory scheme.
Section 1225 (a) of Title 8 supplies the Border Patrol with the right to search at the border, Section 1357 which is the Section that Justice White referred to in the argument on the first case paltrier is merely a statute which enables the Border Patrol to board vehicles within a reasonable distance from the border without a warrant.
Neither of these statutes is clear from a mere reading of them requires a dispensation with the traditional reliance upon probable cause.
Justice Byron R. White: What permits that the extent of the administrative warrant?
Mr. Michael D. Nasatir: Section 1225 (a) of Title 8 Your Honor which is cited at --
Justice Byron R. White: In your position as to what it should be known that the space or any other form to authorize a non-probable cause of entry?
Mr. Michael D. Nasatir: That is correct Your Honor.
Justice Byron R. White: Anywhere?
Mr. Michael D. Nasatir: Anywhere.
Justice Byron R. White: (Inaudible)
Mr. Michael D. Nasatir: No sir because Section 1225 (a), presently Section 1225 (a) which is cited at page 22 of the brief in Brignoni-Ponce, footnote 11 is the statute which enables immigration officers to board and search cars in which they believe aliens are being brought into the country.
This is the enabling statute which allows them to search at the border.
1357 merely allows what Justice Stewart found in Almeida-Sanchez a search within reasonable distance from the border which I think common sense would have told the Immigration and Naturalization Service at that time does not mean that the necessity of probable cause is dispensed with.
Merely, reasonable distance from the border and certainly not some 45 to 50 miles from the border as it was the case in Bowen or some 60 miles as it was the case in Ortiz.
So, certainly we do not concede that this statute either on its phase or any reasonable interpretation of it, by lawyers for the Immigration and Naturalization Service trained in the law, who advise these officers to conclude that the probable cause requirement imposed by the Fourth Amendment since the inception of this country could be dispensed with.
And I hope that the record is perfectly clear as to that lack of a concession.
And in fact a reading of the statutes or both statutes would show that 1225 (a) enables them to search at the border, if they believe aliens are coming in.
And 1357 allows them to search within a reasonable distance from the border.
If they have a probable cause, they could search it without a warrant in both cases certainly.
Every Fourth Amendment case of course turns upon its facts.
And in this case the facts that Mr. Bowen are those of every citizen in the United States I submit who chooses to travel in the hunting and fishing agriculture area of highway 86.
In Almeida-Sanchez if you all remember after he was stopped, Mr. Almeida-Sanchez identified himself as a resident of Mexico.
He told the Border Patrol that he'd pick up a car at the border, that he'd just come from Mexico and that he intended to return to the border on this trip.
Mr. Bowen was stopped.
He identified himself as an American citizen, a citizen of the United States.
The officer testified there was no evidence that he had come to Mexico.
No one had seen him come to Mexico.
He wasn't asked questions whether he was coming to Mexico.
He was merely ordered to open the back of his camper.
Also in Bowen, is distinguished from Almeida-Sanchez even and even stronger facts.
Mr. Bowen was driving a camper which we all know is to some people they're home on wheels especially their vacation home.
The Border Patrol men in Bowen as far as he knew could have discovered Mr. Bowen's wife or his children's sleeping in the back and disturb them.
He could have discovered and guess Mr. Bowen sleeping in the back or doing any of the other private things which we knew are done in Campers including toilet habits or any other private thing you do in your house.
There is nothing in the nature of Bowen's car, nothing in the nature of his appearance, racial or otherwise and nothing in the nature of his statements to the Border Patrol which would indicate anything other than he was a vacation traveler in this recreation area next to the Salton Sea which is a prime fishing area in the Southern California area.
The nature of this search as shown by the Bowen facts is that arbitrary one giving complete discretion to the Border Patrol.
As I stated before, there is no showing whatsoever that Bowen's vehicle had ever been to Mexico.
Of course a reasonable interpretation of the Border Patrol's power in this case that is functional equivalent of the border would have provided this nexus but they didn't have it here.
They had a regulation enacted by the INS itself which said that, “Well, what's reasonable is a hundred miles.”
And I think we can all agree where that 100 miles was picked from.
It's an arbitrary figure having nothing to do with nexus to the border or functional equivalent.
Common sense would tell us that when Congress enacted the statute in light of the Fourth Amendment and in light of the Caroline cases from this Court and without express authorization that Congress never meant to waive the probable cause requirements of the search.
And without the statutory justification and without reasonable reliance, certainly this case presents no retroactivity question.
It presents no retroactivity question because it doesn't overrule clear past precedent because what is the precedent if it's not the statute as I've already argued.
The precedent is merely a self-serving regulation enacted by the Immigration and Naturalization Service.
But was this a precedent for the Immigration and Naturalization Service?
If you will see the record in the Baca hearings, you will see that these checkpoints have been in existence since 1925.
Now, from 1925 to 1946 when Section 1357 was enacted there was no statutory authorization for these checkpoints or whatsoever.
The Immigration and Naturalization Service took it upon themselves to stop and search travelers anywhere within --
Justice Byron R. White: Well, that depends on what you think is 1225, now the issue to search the vehicle to find --
Mr. Michael D. Nasatir: I think a fair reading of 1225 is just that Your Honor.
Justice Byron R. White: Well, that's why I said it doesn't really --
Mr. Michael D. Nasatir: Yes and I think that is the way that reasonable minds would have interpreted that in light of the probable cause requirement of the Fourth Amendment and this court's Caroline of cases.
Not only does --
Justice Potter Stewart: Caroline?
It's the Caroline of cases, I think?
Mr. Michael D. Nasatir: Yes, yes Your Honor -- beginning with the Carol case decided by this Court in 1925.
Just the opposite really is true.
The clear past precedent was Carol.
And an opposite result was compelled by Carol.
Certainly, the past precedent was not clear even in the Ninth Circuit.
As you can se every case before 1970 in the Ninth Circuit not only discussed the stop of these travelers on the highway but discussed probable cause also.
And each and every case prior to 1970 required the discussion of that probable cause to justify that search and they did that in each and every case.
In 1970, Fumegali came along and in 1970 when Almeida-Sanchez was searched that lawyer took that case to this Court and it was then decided.
So certainly, the precedent in the Ninth Circuit was far from clear as it is so ably pointed out by Justice Hufstedler in her decent in the Bowen case.
Justice Harry A. Blackmun: What about the majority opinion if it's so clear?
Mr. Michael D. Nasatir: Well, the majority appearance I feel it was mistaken and the fact that they mistook the Fumegali line of cases as clear past precedent—
Justice Harry A. Blackmun: You're painting a picture here of consistency of the Ninth Circuit and yet you have a substantial number of votes of the present circuit judges the other way.
Mr. Michael D. Nasatir: I believe that a close reading of the cases leading up to Fumegali shows that probably because it was required up until Fumegali.
Certainly until not the beginning of the line of cases even cited by the Ninth Circuit Your Honor was in 1963.
That's the beginning of even the cases which discussed probable cause and require probable cause in their discussions in order to affirm the opinions upon which the Ninth Circuit rely.
But not only that Your Honor, I think it's the final arbiter of the constitutional rules this Court must be look to as the Court which defines constitutional principles.
Certainly, the Ninth Circuit cannot be the definer of constitutional principles because the Tenth Circuit right next door might define them different and that would lack uniformity.
Anyone who looked at the Supreme Court for guidance in this case would have found Carol and would have found a probable cause certainly control the statute.
The Ninth Circuit also spoke to the fact that this was a long, established and widely relied upon practice as defined by previous decisions.
Now, the previous decisions I submit that were talked about in Milton versus Wainwright with the decisions of this Court, not the decision of the lower court.
But secondly of all, this is not a widely relied upon practice.
No other law enforcement agency in the United States but the Immigration and Naturalization Service relied upon this practice.
The Immigration and Naturalization Service enacted a regulation which I submit have the drafters of that regulation of imprudent and not haphazard would have found the Caroline of cases which limited searches without warrants to reasonable distances from the border and then and only then with probable cause.
Justice William H. Rehnquist: Mr. Nasatir, we're talking here I take it about the retroactivity of the Ninth Circuit's decision in Bowen.
Mr. Michael D. Nasatir: We're talking here about the lack of retroactivity analysis even having to be made Your Honor because clear past precedents supported the fact that—always has supported the fact.
Clear past precedent from this Court.
Justice William H. Rehnquist: Well, I've heard that part of your argument I think.
What I was trying to direct your attention to was the focus isn't on the retroactivity of any decision of this Court but on the decision of the Ninth Circuit.
Mr. Michael D. Nasatir: The Ninth Circuit held Your Honor that Bowen was not entitled to the benefit of the decision outlying checkpoints.
What I'm saying to this Court is that Bowen is entitled to the benefit of the Caroline of cases and the cases that have always held that the Fourth Amendment applies to searches well within our borders.
Justice William H. Rehnquist: Don't you see some difficulty?
And I would think perhaps if you see some difficulty it might just as well help your client as hindering -- in carrying over retroactivity analysis that's been applied in decisions of this Court down to Court of Appeals decisions and presumably ultimately to the District Courts so that you have different rules presumably in every judicial district in the Untied States?
Mr. Michael D. Nasatir: I do see that difficulty Your Honor.
Justice William H. Rehnquist: Well, how would you propose that it be solved?
Mr. Michael D. Nasatir: I would propose first that it would be solved by having no retroactivity analysis at all by declaring that that's always been the law as it was declared in Almeida-Sanchez clearly.
And the checkpoint searches are certainly no different than Almeida-Sanchez.
Justice William H. Rehnquist: Well, that's fine for your particular case.
But all that would give us is a case by case analysis, not just of our own precedents but ultimately of the courts of appeals decision and presumably the courts of appeals are going to have to analyze the district court's decision to see whether they should be retroactive from a particular time.
I think perhaps something more than just urging that here, the things should the non-retroactive maybe required.
Mr. Michael D. Nasatir: Well --
Justice Potter Stewart: I think as I've understood your argument you at least partially addressed Mr. Justice Rehnquist question by saying that the court to look to is this Court and only this Court --
Mr. Michael D. Nasatir: That is precisely what I'm saying.
Justice Potter Stewart: And that's what Judge Hufstedler said in her separate opinion that otherwise something will be one way in one circuit, one way in another, one way in one district of a circuit, one way in another.
Mr. Michael D. Nasatir: That's correct Your Honor.
Justice Potter Stewart: That the only place there were retroactivity or even get into the question is if you see that this court has overruled a long settled previous precedent or practice.
Mr. Michael D. Nasatir: That is exactly my argument.
Justice William H. Rehnquist: But the difficulty with that is that Bowen isn't the decision of this Court.
Justice Potter Stewart: Even the Government concede, as I understand it, that the Court of Appeals was wrong in saying that Bowen was not entitled to its judgment.
The Government quarrels with its judgment with the Court of Appeals judgment but says that if the judgment is correct Bowen should have been the beneficiary.
Mr. Michael D. Nasatir: That is correct.
Justice William H. Rehnquist: But not because it should be retroactive.
Mr. Michael D. Nasatir: No Your Honor because it's always been the law, that is my point.
And also of course—
Justice William H. Rehnquist: Isn't it the Government's point?
Rebuttal of Mark L. Evans
Mr. Mark L. Evans: No, it's not the Government's point.
Well, the Government's point is because Bowen was the litigant in the Ninth Circuit.
And because the Ninth Circuit decided the Bowen case that that should be the basis for all decisions in the Ninth Circuit.
I submit certainly if that is the judgment of this Court that certainly Bowen should receive the benefit.
But of course if the judgment of this Court that Bowen is decided today nationwide then Bowen should also receive the benefit of that decision.
But what I'm really urging is that Bowen should receive the benefit not of this decision, not only for those two reasons but also for the reason that Bowen is the beneficiary of this Court's first opportunity to review border checkpoint cases in the light of its past decisions under Carol.
And I think under all three of those focuses of analysis, Bowen gets the benefit of this decision.
Once more in the retroactivity analysis, I think what you're also looking at is reasonable reliance.
The Ninth Circuit made a big point of the fact that the INS relied upon Ninth Circuit opinions.
I've already pointed out that from 1925 to 1946 the INS relied on nothing, not statute, not decision, nothing to establish these checkpoints.
It's also pointed out at page 74 of the brief and I believe the brief in Ortiz that the INS stopped and searched a citizen one month after the Bowen decision was decided in the Ninth Circuit outlying that very practice without a warrant and without probable cause.
That's on page 74 of the Ortiz brief.
So, certainly they're not relying on the Ninth Circuit either for the prior justification before the statue or for the subsequent justification.
The INS is just stopping and searching people without authority or certainly not relying upon the Ninth Circuit.
If it could be argued, the INS stopped Sanchez Pedroza which is the case a month after Bowen was decided in the Ninth Circuit.
If it's argued that way, then of course they're waiting for this Court to decide Bowen finally and that would show that they originally should have looked to the carol decision in making their judgments and drafting the regulations.
The point is made in the amicus brief Your Honor that this case should be decided not on a retroactivity analysis for another reason, that this Court should control the applicability of its constitutional decisions.
And I think that's a very, very important point because what you're deterring here by that kind of analysis is future drafting of regulations in a haphazard manner.
What you're encouraging by that kind of analysis is the drafting of regulations carefully and prudently looking at all the law especially including the laws announced by this Court.
Had that been done by the persons and why not looking at law enforcement just -- you noted reasonable reliance by law enforcement officers.
That's not all you're deterring in this case.
The only authority for these officers to conduct this search was a regulation drafted by their own people at the INS.
What you are deterring and would be deterring in the future by a non-retroactivity analysis and deciding whether retroactivity applies on a case-by-case basis is careful, prudent, drafting of regulations which guides this law enforcement officers.
And I think that's a practice you want to encourage and I think a practice you want to deter is haphazard drafting without research or without authority.
Even under the traditional retroactivity analysis this case differs from the prior Court's decisions.
This case will not have nationwide application as all of the other cases where non-retroactivity was ordered.
This case deals with the INS, the INS only.
The smallness of that law enforcement agency is well apparent from the Government's briefs and from the petitioner's briefs and all of these cases.
Nor will it disrupt state, local and federal courts all over the country or law enforcement authorities.
Certainly, this analysis would aid in that conclusion.
And aids you to see that this in the first instance is not a retroactivity case because at the prior law of this Court.
And second, that even if you consider it under the traditional analysis, the extent of the reliance is much smaller.
The effect on courts and administration of justice is much smaller.
And certainly no one can say that this is reasonable reliance by the Immigration and Naturalization Service on clear past practice.
Your case is on retroactivity as I see it falling into two categories, number one, where you've overruled cases like Rabinotwitz and Goldman and one of your retroactivity cases.
But number two, where you've ordered law enforcement officers to do something that they have never been required to do before such as Miranda.
You've got to give warnings now as what you've said in certain cases.
And neither of those cases -- those two types of cases has anything to do with this situation where as we‘ve already pointed out clear law did not support the regulations issued by the justice department nor did a fair reading of the statute.
And as I say when you talk about law enforcement in a situation like this, you're talking about not only the officer in the field but those who are advising him.
Chief Justice Warren E. Burger: I believe your time is entirely used up Mr. Evans.
Mr. Sevilla and Mr. Nasatir you've accepted your point from this Court to appear in this case and acted at our request.
In behalf of the Court I thank you for your assistance to the Court and of course your assistance to your client.
Rebuttal of Charles M. Sevilla
Mr. Charles M. Sevilla: Thank you.
Chief Justice Warren E. Burger: Before we proceed with your case Mr. Feit.
I want to remedy an oversight.
I did not -- I overlooked thanking Mr. Shapiro for his assistance to the Court and to his client because you too acted at the request of the Court and by the appointive of the Court.
Unknown Speaker: Sure.