514 F.2d 308 (9th Cir. 1975), 74-2462, United States v. Martinez-Fuerte

Docket Nº:74-2462, 74-2680 and 74-2714.
Citation:514 F.2d 308
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Amado MARTINEZ-FUERTE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Jose JIMINEZ-GARCIA, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Raymond Rangel GUILLEN and Fernando Medrano-Barragan, Defendants-Appellees.
Case Date:March 05, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 308

514 F.2d 308 (9th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,

v.

Amado MARTINEZ-FUERTE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant,

v.

Jose JIMINEZ-GARCIA, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant,

v.

Raymond Rangel GUILLEN and Fernando Medrano-Barragan,

Defendants-Appellees.

Nos. 74-2462, 74-2680 and 74-2714.

United States Court of Appeals, Ninth Circuit

March 5, 1975

Page 309

Charles M. Sevilla, Frank M. Mangan, Federal Public Defenders, San Diego, Cal. (argued), for defendants-appellants.

Jack Robinson, Asst. U. S. Atty. (argued), for plaintiff-appellee.

Before DUNIWAY and CARTER, Circuit Judges and WEIGEL, [*] District Judge.

OPINION

DUNIWAY, Circuit Judge:

These consolidated appeals question the constitutionality of stops and immigration inspections, without probable cause or founded suspicion, of vehicles passing through the San Clemente traffic checkpoint, as operated by the United States Border Patrol under an inspection warrant issued by a United States magistrate. We hold that the warrant is invalid and that the checkpoint operations which it purports to authorize violate the Fourth Amendment of the Constitution.

I. The Facts.

  1. The Three Appeals.

    1. No. 74-2462, Martinez-Fuerte.

      Martinez-Fuerte appeals from a conviction of transporting "illegal" aliens in violation of 8 U.S.C. § 1324(a)(2). On June 24, 1974, in Tijuana, Mexico, two Mexican women met an unidentified man who promised to take them into the United States in return for their promises to pay him $200 each once they started working. Using false papers provided by the man, the two women entered the United States at the port of entry at San Ysidro, California. From there, according to the man's instructions, the women traveled by bus to San Diego, where they again met the man and returned the false papers to him.

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      He directed them to Martinez-Fuerte's car. Without asking his passengers where they were going, Martinez-Fuerte drove north towards Los Angeles along Interstate 5.

      At approximately 8:00 p. m. on June 24, they reached the San Clemente checkpoint. There they were stopped by border patrol agents acting under a "warrant of inspection" issued by a United States magistrate on June 22, 1974. Martinez-Fuerte was instructed to drive off the highway to a secondary inspection area where an agent questioned him and his two passengers about their rights to be in the United States. Martinez-Fuerte, an immigrant, was lawfully within the country and so demonstrated with appropriate identification. However, in response to the agent's inquiry, the two female passengers admitted being citizens of Mexico, illegally within the United States. Martinez-Fuerte was then arrested and charged with transporting "illegal" aliens, i. e., those unlawfully in this country.

      Before trial he moved to suppress all evidence derived from the stop and detention at the checkpoint on the grounds that the stop was made without founded suspicion, probable cause, or valid warrant. On appeal, he challenges his conviction by arguing that this pre-trial motion, which was denied, should have been granted.

    2. No. 74-2680, Jiminez-Garcia.

      Also on June 24, 1974, Jiminez-Garcia, driving a 1968 Chevrolet, was stopped and detained at the San Clemente checkpoint. There agents discovered that his passenger was an "illegal" Mexican alien. The passenger had made arrangements with an unknown person in Tijuana to be smuggled into the United States and transported to Los Angeles. Earlier on the day of the stop, the alien had been guided across the border to a certain residence in San Ysidro, where he stayed for a short time before meeting Jiminez-Garcia for the trip north. Jiminez-Garcia was charged with transporting an "illegal" alien in violation of 8 U.S.C. § 1324(a)(2) and conspiracy to transport an "illegal" alien in violation of 18 U.S.C. § 371. The trial court granted his motion to suppress, and the government appeals.

    3. No. 74-2714, Guillen.

      On June 28, 1974, a border patrol agent at the San Clemente checkpoint stopped the car which Guillen was driving in the company of Medrano-Barragan and the latter's wife. Upon inquiry the agent learned that the two passengers were "illegal" aliens. Guillen was a United States citizen. Agents then searched the car and discovered three more "illegal" aliens in the trunk. 1 Medrano-Barragan had led the other aliens across the border at the beach near Tijuana, Mexico, and to a highway in the United States where they piled into Guillen's car for the drive north. Guillen and Medrano-Barragan were charged with inducing illegal entry of aliens in violation of 8 U.S.C. § 1324(a)(4), transporting "illegal" aliens in violation of 8 U.S.C. § 1324(a)(2), and conspiracy, in violation of 18 U.S.C. § 371. The trial court granted defendants' motion to suppress, and the government appeals.

  2. The Warrant of Inspection.

    The focal point of these appeals is the "warrant of inspection" which the government sought and obtained from a United States magistrate on June 22, 1974, to "authorize" the continued operation of the San Clemente immigration traffic checkpoint shortly after recent decisions of this court had sharply curtailed border patrol authority to search

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    or stop passing vehicles at that checkpoint. The warrant, which is set out in full in the margin, 2 concludes that there is "probable cause" to believe that mass violations of the immigration laws are committed at the San Clemente checkpoint and therefore commands the border patrol to conduct an immigration traffic checkpoint, stopping northbound vehicles to make routine inquiries to determine the immigration status of the occupants. At issue here is the constitutionality of this stop and inquiry procedure. 3

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    We make two further observations about the warrant. First, although the warrant is limited in duration to ten days, it has been renewed 26 times for ten-day periods. (San Francisco Examiner, February 25, 1975, page 6.) The particular warrant before us, then, was by no means a temporary measure; it was simply the first installment in what appears to be a perpetual succession of similar warrants. Second, although the warrant incants the words probable cause, there is no claim that there existed probable cause in the traditional sense of articulable, individuating circumstances which would lead a reasonable agent to believe that "illegal" aliens were in any particular vehicles. In each case the government has stipulated that there was neither probable cause nor founded suspicion for the stop. The government relies solely on the inspection warrant to justify the stops and inquiries.

  3. Operation of the Checkpoint.

    We have in the record before us only summary accounts of the three stops involved in the instant appeals. But to decide the validity of the inspection warrant and the checkpoint operations it authorizes, we must also consider the routine procedures to which innocent ordinary travelers are subjected. To that end, counsel have supplemented the record in these cases with the official reporter's transcript of hearings held in the Southern District of California to assess the impact of Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, on the checkpoint operations. United States v. Baca, S.D.Cal., 1973, 368 F.Supp. 398, summarizes the findings made after those hearings. In issuing the inspection warrant which is now before us, the magistrate expressly relied on the Baca court's findings and on the reporter's transcript in that case. We have reviewed that transcript 4 as well as the records in the instant appeals to help us understand what goes on at the San Clemente checkpoint.

    Although the San Clemente checkpoint has been the subject of previous cases before this court, 5 we think it important to summarize here just how the checkpoint works. As the enforcement arm of the Immigration and Naturalization Service, the border patrol operates what it calls a permanent fixed immigration checkpoint on Interstate 5 near San Clemente. Actually the checkpoint is five miles south of San Clemente at San Onofre, between San Onofre State Beach on the west and Camp Pendleton Marine Base on the east. The checkpoint is 62 miles by air and 66 miles by road from the international border with Mexico. Baca, supra, 368 F.Supp. at 410. Interstate 5 is an eight lane freeway, the principal highway connecting California's two largest cities, Los Angeles and San Diego. The route is heavily traveled. According to the affidavit of Robert D. McCord submitted in support of the application for the inspection warrant, on the average 1200, and at peak times over 2500, cars pass through the checkpoint per hour. Clerk's Record in No. 74-2462 at 91, 93. Simple multiplication of the hourly average reveals that over ten and one-half million cars pass the checkpoint in a year. The overwhelming majority of persons traveling north through the checkpoint are lawfully within the country; indeed, most of them are not aliens and have not crossed the border at all.

    When in operation, the checkpoint operates as a roadblock causing all northbound vehicles, which are generally traveling at freeway speeds, to slow or come to at least a "fleeting stop" for an immigration check. Baca, supra, 368 F.Supp. at 411, 415. The Baca court described the physical layout of the checkpoint as follows:

    Approximately one mile south of the checkpoint is a large black on yellow sign with flashing yellow lights over

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    the highway stating "ALL VEHICLES, STOP AHEAD, 1 MILE." Three-quarters of a mile further north are two black on yellow signs suspended over the highway with flashing lights stating "WATCH FOR BRAKE...

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