11.
AT THE FRIDAY CONFERENCE ON FEBRUARY 19, 1975, THE justices discussed the Brignoni-Ponce case and took a straw vote, which split 4–4. William Brennan, Thurgood Marshall, Lewis Powell, and Potter Stewart would affirm the Ninth Circuit ruling in Felix Brignoni-Ponce’s favor, while Harry Blackmun, Warren Burger, William Rehnquist, and Byron White would reverse and rule in favor of the Border Patrol’s right to stop all vehicles in the border zone for brief questioning. William O. Douglas missed the Friday conference—he was convalescing after suffering a massive stroke while on vacation in the Bahamas on New Year’s Eve. The stroke paralyzed Douglas’s left leg and forced him into a wheelchair. However, he did not want to retire.
Douglas is the longest-serving Supreme Court justice and believed in liberal activism from the bench, often dissenting based on principles that were outside the mainstream at the time. His focus on principles, not practical politics, frustrated his ideological allies. President Lyndon Johnson once remarked to him “Liberty and Justice . . . that’s all you apparently think of. And when you pass over the last hill, I suppose you will be shouting ‘Liberty and Justice.’” Douglas replied, “You’re goddamn right, Mr. President.”1
In the spring of 1975, as he recovered from his stroke, Douglas was determined to continue his work, but he was not able to attend many of the oral arguments or participate fully in the affairs of the court. The other justices had doubts about his ability to continue and agreed among themselves that they would try to avoid any 5–4 ruling in which Douglas would be the deciding vote.2
On February 27, Douglas wrote a memo on the Brignoni-Ponce case indicating that he would also affirm, placing five votes on that side. Lewis Powell was assigned the case and set about working on what he hoped would be a consensus argument that would draw in the support of his more conservative colleagues, thereby avoiding the problem of the incapacitated Douglas’s deciding vote.
Fits and Starts
At the beginning of the term, Powell assigned a roughly equal number of cases to each of his clerks. David Boyd was assigned Brignoni-Ponce. Boyd produced a thirty-page memo summarizing the issues in the cases, which dwelled on the sensitive racial questions. He wrote: “I continue to be quite troubled by the palatability of an opinion that rests exclusively on the racial characteristics of the occupants of the automobile . . . such an opinion would be a disaster.” For Boyd, “the preferable approach is to indicate that the officer’s ability to stop rests on a combination of factors, of which the racial characteristics of the occupants is only one.”3 It was an approach that would be “more acceptable ‘politically.’” However, Boyd became bogged down with other opinions, so Powell asked Penny Clark to take over the Brignoni-Ponce case.
Powell focused his interest on the idea of a judge or magistrate issuing an area search warrant that would allow for brief stops in the border zone, an idea he proposed in his concurrence in the Almeida-Sanchez decision in 1973. In his own summary memo produced in preparation for the oral arguments, Powell wrote, “Although there is obvious force to the government’s reluctance to endorse a general area-type warrant or specific checkpoints, I am not yet persuaded that this procedure is not feasible—especially if we laid down some fairly broad guidelines.”4 At the oral arguments, Powell asked John Cleary a question about area warrants and jotted in his notes, “Responding to my Q, Cleary expressed view that a warrant procedure for checkpoints is ‘conceptually feasible.’” Unbeknownst to Powell, the Border Patrol had begun to use area warrants at the San Clemente checkpoint, and at that very moment, the Ninth Circuit Court in San Francisco was considering a case brought by the Federal Defenders of San Diego about area warrants.
As Clark worked on a draft of the Brignoni-Ponce opinion, she struggled to find the key to it. She expressed doubts about general area warrants in a memo to Powell on May 8: “I am still fairly uncomfortable with it, and I will outline my current thoughts about its weak points. I have tried to write as strong a case as I can for the area probable cause and search warrant theories, but the more time I spend on them, the less I am convinced.”5 She pointed out that parts of his current opinion would appeal to each faction, but also possibly lose all of them.
Instead of the area warrant, Clark suggested the court emphasize the difference between a stop and a search, which would harmonize the rules for both roving patrols and the checkpoints and would represent a middle path between the government’s claim that they could stop everyone and the Fourth Amendment’s ban on unreasonable searches and seizures. Clark proposed that a search would require consent or probable cause, as the court’s opinion in Almeida-Sanchez held in 1973 for roving patrols and for checkpoints. However, she proposed that for a short stop with questions by a roving patrol, a lesser standard of reasonable suspicion might be sufficient. Clark ended the memo by suggesting that Powell might have a better chance at a majority if he went with that line of argument.
Even before Clark wrote her memo, Powell had expressed his personal concerns about the Border Patrol cases in a memo to the other justices after the Ninth Circuit Court released its decision in the area warrant case about the interior checkpoint at San Clemente. In Martinez-Fuerte, the Ninth Circuit invalidated almost every stop at the interior checkpoints, extending the logic of Almeida-Sanchez to stops as well as searches. Additionally, the Ninth Circuit decision also had several pages criticizing Powell by name for his area warrant idea.
Powell immediately saw that the court would have to address the issue of the interior checkpoints as well. Since he was already struggling with the border cases and because he was worried about the possibility of a 5–4 split with the ill Douglas casting the deciding vote, Powell suggested to his colleagues that they postpone their decision until Martinez-Fuerte reached the court the following term. He wrote, “If a court cannot be assembled, the cases presumably should be set for reargument early next fall.”6
However, a few days later, on April 1, Powell was presented with another important fact that changed his mind again. Chief Judge John Brown of the Fifth Circuit Court, which covered Texas, Louisiana, and Mississippi, called Powell and told him there were almost twenty border cases pending at that court and two hundred more at the prosecutors’ offices waiting for resolution. Consequently, Judge Brown was hoping for a decision on at least some of Border Patrol issues that term.7 Powell went back to work.
“Dear Fellow Losers”
As the justices draft their opinions on cases, they send short memos back and forth to each other stating where they stand. Powell circulated his latest version of the Brignoni-Ponce opinion, which removed his unpopular area search warrant idea and instead pursued Penny Clark’s idea of reasonable suspicion based on articulable facts for stops, which was alluded to in Powell’s concurrence in Almeida-Sanchez and in John Cleary’s oral arguments before the court.
Powell was disappointed when the responses came back 5–4, in the same configuration as Almeida-Sanchez. Brennan, Marshall, and Stewart signed onto the ruling, and the ill Douglas planned a concurrence that agreed that Mr. Brignoni-Ponce should be released but did not go along with the lower reasonable suspicion standard for the Border Patrol.
Powell was frustrated to find himself with a majority of five that was dependent on the incapacitated Douglas’s fifth vote, despite his efforts to appease the more conservative bloc. Powell was particularly disappointed in the chief justice’s position, who he had hoped would also not want a 5–4 decision with Douglas as the deciding vote and would therefore sign on to the latest draft.
Chief Justice Burger, however, was not swayed. He wrote on June 6 that he was “glad you now avoid the ‘area search warrant’ approach but I fear we may not have found the key I need to the resolve the problem.”8
Powell wrote a personal note back to Chief Justice Burger on the same day, expressing his surprise and disappointment that the chief justice was not a vote in favor of his revised opinion in Brignoni-Ponce. Powell said he had “devoted more time to the study of these cases than to any assignment you have given me this year.” He pointed out that his current draft “can be said that I have departed somewhat from precedent. In Brignoni-Ponce, I proposed ‘reasonable suspicion’ standard for random stopping and questioning of occupants of vehicles by roving patrols. This affords more leeway to law enforcement officers than any prior Fourth Amendment case with which I am familiar.”9 Powell then noted that he was working with Rehnquist on changes to limit the ruling to the Border Patrol. Powell’s point was that this was already a generous ruling for the Border Patrol and likely the best the conservatives could get, given the court’s current makeup.
The chief justice wrote back a few days later on June 9, 1975.10 Burger began the letter with an apology—“I’m sorry to ‘let you down’ on the Border Search cases”—but he could not overlook the connection between the border and social problems in the United States. Burger placed some of the blame on Court’s previous decision in the Almeida-Sanchez case, in which Powell cast the deciding vote. Burger suggested, “And the vexing aspect of the plurality opinion in Almeida-Sanchez is that it has been followed by an unemployment figure exceeded only by the number of illegal aliens reliably estimated to be in the United States.” For Burger, rising unemployment and crime were caused by immigrants, “With a shocking rise in crime, . . . Here, as elsewhere, the key lies in the irrational, monolithic, mechanical application of the Suppression Doctrine [the rule from Mapp that forbade improperly obtained evidence from being used in court] . . . You have my vote on the Border cases if you link it with a sane, selective use of exclusion—as in England, Israel, and every other civilized country in the world save ours!” The exclamation point was added later by pen, with some emphasis.
With Powell frustrated by the lack of conservative support for his draft opinion, Rehnquist made his move on June 10. Seeing that there was a 5–4 majority in favor of exonerating Felix Brignoni-Ponce, but unease about how to allow the Border Patrol to do their work, Rehnquist penned a memo to the other three holdouts, Chief Justice Burger, Byron White, and Harry Blackmun.
Rehnquist began the letter “Dear Fellow Losers” and pointed out that they had two choices.11 They could continue to dissent, which would likely allow the cases to be held over to the following term. Alternatively, they could offer up some revisions and pledge that if Powell made the changes, they would agree to vote in favor of the opinion. Rehnquist concluded, “I think the second choice has much to be said for it for at least two reasons.” First, even if they dissented, the current formulation would become law. As it was written at that moment, Rehnquist felt that the Fourth Amendment protection of “the interest of innocent citizens in using the highway” was trumping the need for law enforcement to make brief stops and inquiries. Given the dynamic, he instead proposed a series of changes in the opinion that would dismiss the charges against Felix Brignoni-Ponce but also give law enforcement the latitude it needed to make stops based on reasonable suspicion in the future.
The gambit worked. Powell, who was conservative by nature and always sought consensus and compromise, quickly rewrote the text to include Rehnquist’s changes. These were a line that confirmed that agents with reasonable suspicion could stop vehicles and language that limited the ruling to roving Border Patrol stops. Rehnquist insisted that the ruling explicitly state that Border Patrol checkpoints, and other police checkpoints, were still allowed.
On June 16, Powell then wrote to the other more liberal justices, who had already indicated their agreement with the earlier draft, to tell them about the changes. Powell wrote that the changes were minor and did not alter the basic formulation of the decision. However, he was pleased to see the possibility of a broad consensus opinion on the border cases. He concluded: “In sum, I think we have a chance now to bring these cases down. We will have settled conclusively the ‘search’ issue at fixed checkpoints as well as by roving patrols; we also will have settled the ‘stop’ issue with respect to roving patrols. These decisions will go far toward resolving the doubt which now overhangs the entire Border Patrol operations.”12
Given the late-term rush to finish opinions and the fact that the outcome remained the same with the release of Felix Brignoni-Ponce, it is not clear how closely the bloc of liberal justices reviewed the new draft. Penny Clark surmises that William Brennan may not have given the revisions careful scrutiny because he was pleased that it would be a unanimous ruling in favor of the defendant.13 By June 26, all the justices signed on to the revised opinion.
“The Characteristic Appearance of Persons Who Live in Mexico”
As the author of the opinion, Lewis Powell announced the decision in Brignoni-Ponce on the last day of the term, June 30, 1975. After establishing the basic parameters of the case, Powell got to the point: “[B]ecause it was a mere stop, the questioning about citizenship is less intrusive than a search, we hold that the standard of probable cause is not required. But even random stops for questioning anywhere near the Mexican border could subject law-abiding citizens to potentially unlimited interference with their use of the highways. We therefore hold that Border Patrol officers on roving patrol may not stop a private vehicle unless they have reasonable grounds to suspect that it contained aliens.” Therefore, the stop based solely on the perceived Mexican appearance of the people in the car did not rise to this standard, and the court unanimously upheld the Ninth Circuit’s ruling in Felix Brignoni-Ponce’s favor.
The decision was another victory for John Cleary, Chuck Sevilla, and the Federal Defenders of San Diego. The charges against Brignoni-Ponce were dropped and he was released. The ruling made clear that unlimited stops in the border zone would violate the Constitution. A superficial reading of the decision would make it seem to be another confounding example of the supposedly law-and-order Burger Court coming down on the side of the defendant and undercutting law enforcement further, this time unanimously.
However, the votes by the conservative justices suggest the ruling was not exactly as it appeared. After Rehnquist’s late intervention, the details of the ruling were favorable to the Border Patrol.
The ruling finds that unlimited stops and stops based only on the race of the occupants of a car are not allowed. However, it recognizes a legitimate need for the Border Patrol agents to make stops: “In this case as well, because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion.”
In order to make a stop, the Border Patrol agents need specific, articulable facts that give them reasonable suspicion that a particular vehicle contains someone without documents. Although Clark is sure that Powell never thought of it this way, the Border Patrol has interpreted the ruling to mean that a single fact is not sufficient, but two is enough.14
In some of the most remarkable text in a Supreme Court decision still in force, the opinion laid out what might constitute the necessary facts for reasonable suspicion. These include (quoted verbatim from the ruling, but with citations and case law removed):
1.The characteristics of the area in which they encounter a vehicle
2.Its proximity to the border
3.The usual patterns of traffic on the particular road
4.Previous experience with alien traffic are all relevant
5.Information about recent illegal border crossings in the area
6.The driver’s behavior
7.Erratic driving
8.Obvious attempts to evade officers
9.Aspects of the vehicle itself
10. Certain station wagons, with large compartments for fold-down seats or spare tires
11. The vehicle may appear to be heavily loaded
12. It may have an extraordinary number of passengers
13. The officers may observe persons trying to hide
14. The characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut
15. Previous experience with aliens
Most of these facts individually could seem like reasonable reasons for a Border Patrol agent to stop a vehicle. In constructing the first draft of the list, Clark drew from past Border Patrol cases to demonstrate the types of factors that are reasonable.15 However, in totality, they create a broad range of possible reasons to stop someone, so broad that virtually any stop can be justified.
The final two examples about race and the agents’ previous experience with what undocumented people look like are the most troubling. In the oral arguments, John Cleary mocked the idea that clothes or haircuts could be used to identify foreigners as “rank racism,” but the opinion allows precisely that. The result of Powell’s opinion is that the Border Patrol can use racial profiling to make a vehicle stop as long as race is combined with one other articulable fact of reasonable suspicion, such as fact 2, driving on a road near the border. Although Cleary and the Federal Defenders of San Diego won the individual case for their client, they opened the door for racial profiling across the border zone.16
The Brignoni-Ponce opinion focuses exclusively on the Mexican border, which makes clear that the justices did not realize that their decision would also authorize similar racial profiling stops based on the lower standard of reasonable suspicion, not probable cause, within one hundred miles of coastlines and the Canadian border. The opinion mentions the possible intrusion of these stops in American cities, but only lists San Diego, El Paso, and the Brownsville-McAllen area in the Rio Grande Valley. It is surprising that neither the court nor any of the lawyers saw that the case was not just about the Mexican border, but also all the other areas where the Border Patrol operates.
Despite these far-reaching implications, the Brignoni-Ponce decision was treated as a minor case at the time. The only time the term Brignoni-Ponce has ever appeared in the entire history of The New York Times, the newspaper of record in the United States, was in a short roundup of Supreme Court decisions on the following day. The Times noted that the court “Ruled that law enforcement officers on roving border patrol cannot stop vehicles and question occupants about citizenship solely on the grounds that the occupants appear to be Mexican (No. 74-114, United States v. Brignoni-Ponce).”
As the court recessed for the summer and Lewis Powell retreated to his home in Richmond to read and visit with his grandchildren, the only Border Patrol issue that remained was brief stops at Border Patrol checkpoints. The case of United States v. Martinez-Fuerte, which the Ninth Circuit had ruled on in April just as Powell was trying to find a consensus on Brignoni-Ponce, was sure to be added to the docket. The court’s opinion in the case would resolve the final questions about the authority of the Border Patrol to make stops in the one-hundred-mile border zone, and Powell would make one more unexpected decision.