368 F.Supp. 398 (S.D.Cal. 1973), 14656, United States v. Baca

Docket Nº:14656, 14964, 15803, 15850, 15813, 15991, 14344, 15410, 16245, 15666, 15463, 15847, 15046, 15650, 16360, 15606, 15651.
Citation:368 F.Supp. 398
Party Name:UNITED STATES of America, Plaintiff, v. Bernardo Cuellar BACA et al., Defendants.
Case Date:December 05, 1973
Court:United States District Courts, 9th Circuit, Southern District of California
 
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Page 398

368 F.Supp. 398 (S.D.Cal. 1973)

UNITED STATES of America, Plaintiff,

v.

Bernardo Cuellar BACA et al., Defendants.

Nos. 14656, 14964, 15803, 15850, 15813, 15991, 14344, 15410, 16245, 15666, 15463, 15847, 15046, 15650, 16360, 15606, 15651.

United States District Court, S.D. California.

Dec. 5, 1973

Page 399

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Harry D. Steward, U. S. Atty. by James Meyers, Asst. U. S. Atty., San Diego, Cal., for plaintiff.

Federal Defenders of S.D. Inc. by John Cleary, San Diego, Cal., for defendants: Charles Earl Benson, Chalmer Lynn Carter, Anacleto Nava-Bibayoff, Camilo Juarez-Rodriguez, Adela Solorio Juarez, Gloria May Gilmore, Bernardo Cuellar Baca, Donald James Pennington, James R. Thompson, Lucero Alberto Escalante, Joe Valdivez Luna, Peter Michael Roundrup, Luis Antonio Ortiz.

Anthony S. Deutsch, San Diego, Cal., for Peter Frederick Sackrider and Scott Eugene Atkinson.

Kevin J. McInerney, San Diego, Cal., for Laura Elena Esquer-Rivera and Norman Richard Lindsay.

Ron Romines, Menlo Park, Cal., for Philip Luther Omdahl.

Michael S. Evans, San Diego, Cal., for Dennis James Rich.

George Haverstick, San Diego, Cal., for Michael Alfred Ray.

Frederick L. Darvey, Los Angeles, Cal., for Louis Michael Kuljis.

OPINION

TURRENTINE, District Judge.

On June 21, 1973, the United States Supreme Court ruled in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) that a "roving search" of an automobile, without a warrant and without probable cause, when not a border search, or the functional equivalent thereof, violated the Fourth Amendment to the United States Constitution. Thereafter, the Ninth Circuit remanded cases to this and other districts for "consideration of the impact of Almeida-Sanchez...." E. g. United States v. Cuellar Baca, Slip No. 73-2048 (Sept. 10, 1973). Presently there are well in excess of 20 cases pending in this District either on remand from the Circuit or upon original hearing raising constitutional questions left open by Almeida-Sanchez.

On October 21, 1973, the judges of the United States Federal District Court for the Southern District of California in General Order 176 ordered that a comprehensive factual hearing be held to evaluate the consequences, if any, of Al meida-Sanchez

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on the checkpoints operated by the Border Patrol within this District. All cases in this District raising this issue were consolidated on a voluntary basis.

Subsequently, on November 19, 20 and 21, this Court held hearings wherein the interested parties presented evidence on this question. This Court, it should be noted, did not include in its deliberations the issue of Almeida-Sanchez' retroactivity.

Based upon that hearing and the extensive evidence submitted, the Court files the following opinion.

THE ILLEGAL ALIEN PROBLEM

The United States through legislative action has determined that it is in the best interest of the nation to limit the number of persons who can legally immigrate into the country in any given year. These controls reflect in part a Congressional intent to protect the American labor market from an influx of foreign labor. Karnuth v. United States, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed. 677 (1929); § 201(a) of the Immigration and Nationality Act of 1952, 66 Stat. 163, as amended by the Act of October 3, 1965, 79 Stat. 911, 8 U.S.C. § 1151(a).

Under this policy of limited admission, 385, 685 new immigrants entered the United States legally during fiscal year 1972. Since July 1, 1968, the law has established an annual quota of 120,000 persons for the independent countries of the Western Hemisphere. Included within this quota are immigrants from the Republic of Mexico who in fiscal year 1972 totalled 64,040. 1972 Annual Report, Immigration and Naturalization Service, p. 2, 28.

Currently illegal aliens are in residence within the United States in numbers which, while not susceptible of exact measurement, are estimated to be in the vicinity of 800,000 to over one million. Department of Justice, Special Study Group on Illegal Immigrants from Mexico, A Program for Effective And Humane Action on Illegal Mexican Immigrants, 6 (1973), [hereinafter cited as Cramton Rpt.].

Of these illegal aliens, approximately 85 percent are citizens of Mexico. Cramton Rpt. at 6. They are industrious, proud and hard-working people who enter this country for the purpose of earning wages, accumulating savings, and returning or sending their savings home to Mexico.

Since 1970, the number of illegal Mexican aliens in the United States who have been apprehended has been growing at a rate in excess of 20 percent per year. Cramton Rpt. at 6.

The increasingly large numbers of Mexican nationals seeking to illegally enter this country reflects the substantial unemployment and underemployment in Mexico-fueled by one of the highest birth rates in the world. Moreover, Mexican employment statistics are not likely to improve dramatically since fully 45 percent of Mexico's population is under 15 years of age and, therefore, will soon be attempting to enter the labor market.

Further prompting Mexican nationals to seek employment in the United States is the fact that there is a significant disparity in wage rates between this country and Mexico. In Mexicali and Tijuana, both Mexican cities bordering the Southern District and each with a population in excess of 400,000, the average daily wage is about $3.40 per day. The minimum wage is even lower for workers in the interior of Mexico. The average worker in Mexico, assuming he can find work, earns in a day as much as he can make in only a few hours in the United States.

In addition, it is estimated that the per capita income of the poorest 40 percent of the Mexican population, the strata most likely to leave their homeland in search of employment in the United States, is less than $150 per year.

The manpower needs of the United States generated by World War II resulted

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in many Mexicans being imported into this country and becoming familiar with employment opportunities and practices in the United States. See Diaz v. Kay-Dix Ranch, 9 Cal.App.3d 588, 88 Cal.Rptr. 443 (1970).

The opportunities available to Mexican aliens have traditionally been in agriculture. While still true in many parts of the United States Southwest, in recent years the pattern has changed and more and more illegal aliens are obtaining employment in the service and manufacturing sectors of our economy. These aliens are increasingly found in virtually all regions of the country and in all segments of the economy. State Social Welfare Board, Issue: Aliens in California, 12 (1973) [Hereinafter cited as Aliens in California].

The nature of the change in employment opportunities available is demonstrated by one estimate that 250,000 illegal aliens are employed in Los Angeles County where agricultural opportunities are known to be limited. Hearings on Illegal Aliens Before Subcomm. No. 1 of the House Comm. on the Judiciary, 92d Cong., 1st Sess., pt. 1, at 208 (1971) [Hereinafter cited as Hearings on Illegal Aliens].

Other estimates of the impact of illegal aliens in California suggest that in 1971, when 595,000 Californians were unemployed (7.4 percent of the State's labor force), there were between 200,000 and 300,000 illegal aliens employed in California earning approximately $100 million in wages. Hearings on Illegal Aliens at 150.

Since the majority of Mexicans are unskilled or low skilled workers they tend to compete with Mexican-Americans, blacks, Indians, and other minority groups who, due to the declining percentage of jobs requiring low or no skills, are finding it increasingly difficult to obtain gainful employment. Cramton Rpt. at 12.

Illegal aliens compete for jobs with persons legally residing in the United States who are unskilled and uneducated and who form that very group which our society is trying to provide with a fair share of America's prosperity.

In addition, illegal aliens tend to perpetuate poor economic conditions by frustrating unionization, especially in such occupations as farm work.

Illegal aliens pose a potential health hazard to the community since many seek work as nursemaids, food handlers, cooks, housekeepers, waiters, dishwashers, and grocery workers. Immigration and medical officials in Los Angeles, for example, have discovered that the illegal alien population in Los Angeles' barrio is infected with a high incidence of typhoid, dysentery, tuberculosis, tapeworms, venereal disease and hepatitis. L.A. Times, Sept. 16, 1973, pt. II, at 1.

In some states illegal aliens abuse public assistance programs. In some instances entire families who entered the country illegally have been admitted to the welfare rolls. Aliens in California at 35, 43.

Another aspect of the problem created by illegal aliens is that employed aliens tend to send a substantial portion of their earnings to relatives or friends in Mexico. This outflow of United States dollars exacerbates our balance of payments problem to the extent of $1 billion a year. Hearings on Illegal Aliens, pt. 3 at 683.

The net effect of this silent invasion of illegal aliens from Mexico is suffering by the aliens who are frequently victims of extortion, violence and sharp practices, displacement of American citizens and legally residing aliens from the labor market, and irritation between two neighboring countries.

THE LAW ENFORCEMENT PROBLEM

Given that illegal aliens are a significant problem in American life, especially for those minority groups who are described as economically deprived, and that...

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