Jasinski v. Adams, 83-5176

• Citation: 781 F.2d 843
• Decision Date: 03 February 1986
• Docket Number: No. 83-5176,83-5176
• Parties: Robert M. JASINSKI, Plaintiff-Appellee, v. R.A. ADAMS, Joe Mongiello, and United States Border Patrol, Defendants- Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 843

781 F.2d 843

Robert M. JASINSKI, Plaintiff-Appellee, v. R.A. ADAMS, Joe Mongiello, and United States Border Patrol,

Defendants- Appellants.

No. 83-5176.

United States Court of Appeals, Eleventh Circuit.

Feb. 3, 1986.

Robert A. Rosenberg, Asst. U.S. Atty., Stanely Marcus, U.S. Atty., Linda Collins Hertz, Asst. U.S. Atty., Miami, Fla., for defendants-appellants.

Alan S. Kessler, Miami Beach, Fla., for plaintiff-appellee.

Robert M. Jasinski, pro se.

Appeal from the United States District Court for the Southern District of Florida.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HATCHETT and CLARK, Circuit Judges, and STAFFORD ^*, District Judge.

PER CURIAM:

Appellee Robert Jasinski brought this Bivens action alleging violation of Fourth Amendment rights against appellants R.A. Adams and Joseph Mongiello, and the United States Border Patrol. Adams is the Chief Border Patrol Officer of the Miami Border Patrol Sector and Mongiello is the former Immigration and Naturalization Service (INS) Regional Commissioner for the Southern Region. Mongiello had authorized a roadblock and checkpoint on U.S. Route 1, south of Florida City, Florida, on April 18, 1982. Adams was present when Jasinski was stopped that day at the roadblock for a routine citizenship check. Although the parties dispute whether any Border Patrol officer questioned Jasinski about his citizenship, all agree that Adams asked Jasinski to open his car trunk for inspection. Jasinski, a Florida attorney, refused to comply without a search warrant. After Jasinski refused twice more, Adams told Jasinski that the trunk would be opened with a crowbar unless he voluntarily opened it by key. Jasinski opened the trunk, nothing suspicious was found and he proceeded on his way. Three days later Jasinski filed suit for a preliminary injunction against further Border Patrol checkpoints in the same vicinity. He also requested compensatory and punitive damages from the individual defendants for an illegal search and seizure of his car.

Adams and Mongiello moved to dismiss the case or grant summary judgment. The order was denied on November 12, 1982, and the parties began discovery. On January 27 and 28, 1983, defendants moved again for dismissal or summary judgment. The motions were again denied on February 18, and defendants immediately filed a notice of appeal from the denial of such motions. The district court then stayed the commencement of trial on the merits pending appeal. This panel heard oral argument and on September 26, 1984, 745 F.2d 70 (1984), dismissed the appeal for lack of jurisdiction over an interlocutory order. See 28 U.S.C. Sec. 1291 (appeal as of right limited to final judgments). Petitions for rehearing and rehearing en banc were similarly denied. Appellants filed a successful petition for writ of certiorari and the Supreme Court, --- U.S. ----, 105 S.Ct. 3518, 87 L.Ed.2d 646 (1985), vacated this court's dismissal of the appeal and remanded the case for further consideration in light of Mitchell v. Forsyth, 472 U.S. ----, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The Supreme Court announced in Forsyth that the denial of a defendant's motion for summary judgment on grounds of qualified immunity is an appealable final decision under the collateral order doctrine. See 472 U.S. at ----, 105 S.Ct. at 2815.

In addition to defining this court's appellate jurisdiction, Forsyth also outlines the scope of appellate review. This court is confined to determining whether defendants' positions as public officials shield them from "the costs of trial or ... the burdens of broad-reaching discovery." Id. at 2815 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982)). "Unless plaintiff alleges a violation of clearly established law," defendants are specifically entitled under the doctrine of qualified immunity to dismissal prior to the discovery phase of the case. Id. Defendants may still avoid the burden of trial by moving for summary judgment after discovery has begun. Summary judgment is proper whenever discovery "fails to uncover evidence sufficient to create a genuine issue as to whether defendant in fact committed [acts in violation of clearly established law]." Id. While review of the denial of motions for dismissal or summary judgment is purely a legal task, we must, in the course of that review, consider all factual assertions in the complaints, affidavits and other evidence. ¹ See id., 102 S.Ct. at 2817. Upon reviewing these allegations, as well as current law regulating INS Border Patrol checkpoints, we conclude that the district court properly denied both motions.

I. Applicable Law

The constitutionality of a particular search and seizure ² by Border Patrol agents depends in large part on the context in which it occurs. Legal standards developed in this area reflect due consideration of both the government's need to police border crossings and the individual's right to privacy in his person and his motor vehicle. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 546, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975). As the individual's privacy interest escalates, so too does the government's burden to justify its intrusion therein. A prior panel of this court has illustrated this proposition by summarizing the applicable standards for principal categories of border patrol search and seizure. See United States v. Garcia, 672 F.2d 1349 (11th Cir.1982).

The first category of search and seizure occurs at the border or the "functional equivalent of the border," where "there is a reasonable certainty that the object or person searched has just crossed the border, ³ there has been no time or opportunity for the object to have changed materially since the time of crossing, and the search is conducted at the earliest possible point after the border is crossed." Id. at 1363-64. If these conditions obtain, the search and seizure require neither a warrant nor any level of individualized suspicion. See id. Here, the government's need to police the border, as soon as practicable, clearly outweighs the individual interest in privacy. See id. at 1353-54 (quoting United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977)).

A second class of activity may be termed "extended border searches," occurring somewhere other than the earliest point after crossing the border but still "with [the Border Patrol's] reasonable certainty that a border crossing has occurred and that conditions have remained unchanged from the crossing until the search." Id. at 1364. The lapse of time from crossing to search, however, raises a greater privacy interest than that involved in the border or functional equivalence cases. Thus, Border Patrols conducting extended border searches must have reasonable suspicion to search without warrants. See id.

Another class of search and seizure occurs at permanent checkpoints "relatively near" the border. Unlike the previous categories, checkpoint searches do not require a showing that the particular item or person searched has actually crossed the border. Rather, checkpoints are premised on the fact that patrols somewhat removed from the border are, in some cases, more effective at policing border crossings than stops at the actual border. See Martinez-Fuerte, supra, 96 S.Ct. at 3082. Permissible search and seizure is more restricted in this context than any other. As travelers proceed further into the interior, away from the border, their justified expectation of privacy escalates. See Garcia, supra at 1365 (referring to "the resumed expectation of privacy that generally accompanies one's assimilation into the mainstream of domestic activities"). Thus, the scope, duration and location of checkpoint search and seizure must be circumscribed to ensure that travelers' "rights to 'free passage without interruption' " are only minimally affected. See Martinez-Fuerte, supra at 3082. Border Patrol agents are authorized to stop motorists without any individualized suspicion for the limited purpose of checking citizenship. Agents may ask questions, request proof of citizenship, and conduct a purely visual (plain view) inspection of the vehicle to check for concealed illegal aliens. See id. Further "inspection" ⁴ constitutes a search and thus requires probable cause. See United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975).

These latter standards for checkpoint activity control decision of the present case since defendant neither alleges nor establishes by undisputed fact the predicate to the functional equivalence or extended border analyses. None of the agents at Florida City based their actions on a reasonable certainty that traffic had recently crossed the border. ⁵ Instead, defendants have justified the Florida City operation on the checkpoint rationale: policing the influx of aliens over the actual border, the Florida Keys' two hundred miles of shoreline, would be a hopeless task requiring enormous Border Patrol resources. Florida City, on the other hand, despite its distance from the shore, ⁶ provides a strategic and economic advantage over a border checkpoint. From there, the Border Patrol can monitor all traffic flowing north from the Keys on U.S. Route 1, just before that road divides into several routes to the interior. Since the Border Patrol relies upon the checkpoint rationale, the allegations and evidence should be measured against the legal standards of Martinez-Fuerte and Ortiz: no suspicion is necessary for a stop, but probable cause is required for a search.

II. Sufficiency of the Qualified Immunity Defense

Under these standards for a Border Patrol checkpoint operation, an agent must have probable cause to search a car stopped for citizenship inquiries directed to the car's occupants. Plaintiff alleges a violation of this clearly...