12.
JOHN CLEARY AND CHUCK SEVILLA DID NOT IMMEDIATELY see the broader implications of the Brignoni-Ponce ruling. They were elated, and blinded, by the fact that they won a unanimous verdict for their client, which followed on their win in the Almeida-Sanchez case two years earlier. They also won a unanimous verdict in United States v. Ortiz, which was announced the same day as the Brignoni-Ponce decision. The Ortiz case was argued by Sevilla and the decision written by Justice Lewis Powell. In Ortiz, the court followed the precedent of their decision in Almeida-Sanchez, finding that the Border Patrol needed to have the higher standard of probable cause to search a vehicle at an interior checkpoint.
Cleary and Sevilla thought they had the wind at their backs as they continued to defend clients stopped by the Border Patrol over the summer and into the fall of 1975. In the previous three cases, the court had ruled that all Border Patrol searches, whether by a roving patrol or at an interior checkpoint, required probable cause or consent. Additionally, even a brief stop by a roving patrol required multiple facts of reasonable suspicion.
The only question that remained was whether the Border Patrol could make brief stops at interior checkpoints without a warrant or reasonable suspicion. Cleary and Sevilla had what seemed like a favorable decision in Brignoni-Ponce that would force the court to rule that all interior checkpoints violated the Fourth Amendment of the Constitution. If the Border Patrol needed reasonable suspicion to stop a single vehicle when conducting roving patrols, then surely, Cleary and Sevilla contended, they needed at least reasonable suspicion to stop every single vehicle on a major interstate highway.
The lawyers had the perfect case to test that theory—and, they hoped, to get the Supreme Court to decide that the Border Patrol’s interior checkpoints throughout the border zone were unconstitutional. United States v. Martinez-Fuerte was the Ninth Circuit ruling that came just as Justice Lewis Powell had been wrestling with his Brignoni-Ponce decision the previous term. Despite seeming to have momentum on their side, Cleary and Sevilla’s final moment of triumph would not go as planned, and Powell would again write the decisive opinion of the court.
The San Clemente Interior Checkpoint
On June 24, 1974, Amado Martinez-Fuerte was driving two women north on I-5, the main interstate highway that connects two of California’s largest cities, San Diego and Los Angeles. The women paid a smuggler in Tijuana $200 ($1,050 in 2022, adjusted for inflation) for fake documents to cross the border. He told them to proceed through the border checkpoint and then go to the San Diego bus station, where he would meet them. They crossed without incident at San Ysidro, the busiest border checkpoint in the world, then found the same man waiting for them at the San Diego bus station. He took back the fake documents and then walked the women to a car, where Martinez-Fuerte was waiting at the wheel. They got in and Martinez-Fuerte drove off without even asking where they wanted to go.
The skyscrapers of San Diego faded in the distance as they headed north on I-5. The sun set over the Pacific Ocean as they passed the last beach towns of Carlsbad and Oceanside and sped past the rugged hills and grassy coastline before they reached the southern suburbs of Los Angeles.
Martinez-Fuerte knew that the last barrier for the women to pass was the Border Patrol’s checkpoint at San Clemente, sixty-six miles north of the border. The Border Patrol had operated a checkpoint along this stretch of highway since its founding in 1924. At first, it was closer to Oceanside, but after I-5 was opened in 1968, it was set up at its current location.1 The San Clemente checkpoint was the same spot where Felix Brignoni-Ponce had been arrested a year and half before, except on that rainy evening the checkpoint was closed due to the inclement weather.
Martinez-Fuerte was transporting the women on a warm and cloudy Monday evening, so he knew the checkpoint would probably be open. He hoped to pass through with only a cursory glance from the agents on duty. On average, 1,200 vehicles passed through the checkpoint every hour in 1974, over 10 million per year. Less than 1 percent of those were diverted to secondary inspection for more thorough questioning.
As Martinez-Fuerte and his two passengers approached the checkpoint at 8:00 p.m., they saw a large sign with flashing yellow lights that indicated that the checkpoint was in operation. It warned, ALL VEHICLES STOP AHEAD, 1 MILE.2 As they got closer, another sign spanned the highway itself: WATCH FOR BRAKE LIGHTS. When they reached the checkpoint, flashing red lights lit up a sign that instructed all vehicles to STOP HERE—U.S. OFFICERS. Orange traffic cones funneled the vehicles into two lanes for the inspection. Two Border Patrol agents stood on the road below the flashing lights, and Border Patrol vehicles were parked sideways on the shoulders of the interstate to prevent efforts to evade the checkpoint. As the sun slipped below the horizon over the Pacific Ocean to their left, the floodlights that lit up the checkpoint at night had just been turned on.
Unbeknownst to Amado Martinez-Fuerte, he arrived at the San Clemente checkpoint just as the Border Patrol was experimenting with a new way of justifying the stops of all the vehicles traveling on the interstate. After the string of Ninth Circuit and Supreme Court rulings limiting their ability to make stops without a warrant, the Border Patrol decided to ask a magistrate for an area warrant for the checkpoint.3 The first area warrant was granted by magistrate Edward Infante two days earlier, on June 22. The warrant stated: “I am satisfied that there is probable cause to believe that mass violations of the immigration laws of the United States have been or are being committed at a point known as the Border Patrol checkpoint on the northbound lanes of Interstate Highway Route 5, approximately five miles south of San Clemente, California.”4
The area warrant allowed for “routine inspections,” which the Border Patrol interpreted to mean cursory searches of trunks and interior spaces of vehicles. The warrant was limited to a ten-day period, but it was continuously renewed twenty-six times in a row. In effect, it was permanent. The area warrant was an idea that Lewis Powell had proposed in his concurrence in the 1973 Almeida-Sanchez ruling. He also worked with his clerk Penny Clark on a draft of the Brignoni-Ponce ruling that relied on area warrants, but abandoned the idea after Clark convinced him that the rest of the justices would not support it. Now it was being used for stops at interior checkpoints.
The area warrant required the Border Patrol to collect and report data on its implementation at the San Clemente checkpoint. For the ten days of the first area warrant in June 1974, 145,960 vehicles passed through the checkpoint. Most vehicles only came to a fleeting stop as the officers quickly looked at the driver and passengers before waving them through. However, if the agent saw something that “broke the pattern” of normal vehicles, then they sent it to secondary inspection for more scrutiny.
During the first ten-day period, only 820 vehicles, less than 1 percent of the total traffic, were diverted to secondary inspection for actual questioning about immigration status and citizenship. Of those, 202 were searched after the occupants’ initial answers were not satisfactory to the agents; 169 of those were found to have undocumented people inside the car “in plain view.” In two more instances, they found undocumented people hidden in the trunks of vehicles. That resulted in a total success rate of 0.12 percent of the 145,960 vehicles that made fleeting stops at the checkpoint.5
Amado Martinez-Fuerte and his two passengers were among the 820 vehicles sent to secondary inspection. As the agents questioned the passengers, Martinez-Fuerte supplied them with his identification documents. He was not a citizen but was legally in the United States as a permanent resident. The two women, however, admitted they were from Mexico and lacked documents to be in the United States. Martinez-Fuerte was charged with transporting illegal aliens and taken to the San Clemente Border Patrol station with the two women. Like Felix Brignoni-Ponce the year before, Martinez-Fuerte’s case was heard in the court of Judge Howard Turrentine and he was convicted of the charge by a jury. His lawyer, Chuck Sevilla, appealed to the Ninth Circuit Court of Appeals in San Francisco.
The Ninth Circuit was not impressed with Judge Turrentine’s decision to accept the evidence gathered from the stop. Instead, they saw a clear violation of the Fourth Amendment and ruled that the checkpoint operations had to stop. They wrote: “The requirements of the Fourth Amendment apply with full vigor at immigration checkpoints. A stop, even a fleeting stop, is subject to Fourth Amendment protections. . . . The Border Patrol must have a founded suspicion to stop a vehicle at a checkpoint and probable cause to search it. As the government concedes, under our decisions and absent a valid warrant, the Border Patrol cannot continue its checkpoint operations.”6
The Ninth Circuit considered the area warrant, Powell’s pet idea and the fact that made this particular case novel, but was not convinced. “We recognize that the seeds of this argument were sown by Mr. Justice Powell in his concurrence in Almeida-Sanchez, but we nevertheless reject the proposed analogy to the administrative inspection cases.” The ruling went on for two pages criticizing Powell’s concurrence: “[W]e conclude that Justice Powell’s premise and the government’s corollary themselves are unsatisfactory.”7 Another paragraph began, “What troubles us most about the administrative inspection analogy, proposed by Justice Powell . . .”
The Ninth Circuit concluded that in order to justify such an intrusion on an individual’s constitutional rights, there had to be a legitimate and significant reason. In the case of the San Clemente interior checkpoint, they ruled there was not a legitimate reason for its location. The checkpoint was too far from the border, and the benefit of finding one car with an undocumented immigrant did not outweigh the brief, but unreasonable, seizure of the other 999 vehicles. Just as the Supreme Court ruled in the Carroll case in 1925 that officers could not stop every vehicle to search for alcohol, the Ninth Circuit ruled that the government could not stop every vehicle to look for immigrants.
Chuck Sevilla and the Public Defenders of San Diego had another resounding win, which invalidated all interior checkpoints across the border zone in California. However, as expected, the government appealed the case to the Supreme Court. Sevilla went into the oral arguments extremely confident, but the paradoxical ruling in Brignoni-Ponce the year before should have given him pause. Additionally, the Ninth Circuit’s ruling included a broadside against Powell and his idea of area warrants, a fact that was sure to rankle the justice. The outcome of the final Border Patrol case was less certain than it seemed.
“The Complexion, I Suppose, of the Driver”
As they prepared for the oral arguments in Powell’s chambers, one of his new group of clerks, Christina Whitman, wrote a detailed memo analyzing the case. Whitman was Powell’s second female clerk and would go onto become a law professor at her alma mater, the University of Michigan Law School, as a scholar of feminism in law. Whitman and Powell disagreed on most political and legal questions, but they remained close throughout their lives, as Powell became a mentor and second father to Whitman.8
Whitman began her memo by stating that she recognized that her view probably diverged from Powell’s, but she recommended affirming the Ninth Circuit ruling that freed Martinez-Fuerte. For her, the problem was not the checkpoints or the area warrants specifically, but rather that they were being used too far from the border and in a way that would affect millions of citizens with no connection to the border whatsoever.9 This would inevitably have a racial component: “I am sure as a practical matter those who appear to be Mexican are singled out more frequently than others (this is unfortunate but, I think, inevitable).” While it might be annoying for most travelers to have to slow down and stop at the checkpoint “for a citizen who looks Mexican and is detained every time he passes the checkpoint, the annoyance must reach really frustrating proportions.” She also expressed “fear that the area warrant in reality will become a mere rubber stamp,” since it was renewed twenty-six times in a row.10
The oral arguments for United States v. Martinez-Fuerte and a similar case, Sifuentes v. United States, were held jointly on Monday, April 26, 1976. Justice William O. Douglas, incapacitated after his stroke on December 31, 1974, had attempted to continue to serve on the court but had finally retired on November 12, 1975. He was replaced by John Paul Stevens on December 17. By the time Stevens retired in 2010 as the third longest serving justice in the history of the court, he was consistently the most progressive justice. However, Stevens was nominated to the court by Republican president Gerald Ford. In his early years, Stevens, already sporting his signature bow tie, tended to vote with the conservative bloc of justices. Consequently, the two remaining progressives, William Brennan and Thurgood Marshall, found themselves even more isolated on the court.
Assistant Solicitor General Mark Evans was familiar with the Border Patrol checkpoints, having argued and lost the Ortiz case about searches at interior checkpoints in the previous term. For Evans, the Fourth Amendment’s protection against unreasonable searches and seizures depended on the balance of law enforcement needs and the imposition it placed on citizens. Therefore, the checkpoint stops differed from the roving patrols adjudicated in Brignoni-Ponce, because “it is, we think, at once the single most important aspect of the traffic checking program and the least intrusive.”11
It was a formulation that resonated with Lewis Powell, who always wanted to protect the ability of law enforcement to do their work, but in a way that had the least intrusion on the lives of citizens.
During the term, Powell was pulled over for speeding on I-95 while driving back to Richmond for a weekend.12 When he recounted the story to his clerks the following Monday, he told them how impressed he was with the professionalism of the officer, who was polite and just gave him a warning. For Powell, it confirmed his belief that police were reasonable and friendly in most interactions. He did concede to the clerks that he had showed the officer his Supreme Court credentials. The clerks marveled at how Powell failed to understand how his position as a distinguished white male Supreme Court justice would mean that his interactions with the police could be any different from anyone else’s.
As Evans stood before the nine justices in their black robes, he argued that because the stop was so short and fleeting, it did not require any evidence against the driver at all: “A checkpoint officer has only a brief second or two to look at an oncoming car and the decision simply cannot, in most instances, be made that there is something suspicious about the car.”
Consequently, Evans conceded, the agents did not even have facts that would constitute a reasonable suspicion about a particular vehicle. He continued, “It may not rise to a reasonable suspicion, that’s right. They are trained and many of them are very experienced, and, they, they tend to call it a sixth sense.”
The claim that agents did not need any particular suspicion and could use their “sixth sense,” or a hunch, went against all previous Supreme Court precedents regarding the Fourth Amendment. In Terry v. Ohio, the 1968 case that established the lower standard of reasonable suspicion for brief stops such as stop-and-frisk encounters, the court dismissed hunches. The Terry opinion said, “in determining whether the officer acted reasonably in such circumstances, due weight must be given not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”13 Four of the justices on the bench on this day in 1976, Brennan, Marshall, Stewart, and White, had signed onto the majority opinion in Terry eight years before.
Surprisingly, none of the justices questioned Evans’s assertion that the Border Patrol agents had a “sixth sense” that allowed them to spot undocumented immigrants. However, Stewart asked a question about race. Stewart wrote the 1973 opinion in Almeida-Sanchez and at the time was outraged by the violation of the Fourth Amendment it represented. Now he wondered exactly what the agents’ “sixth sense” could detect: “Among many other things, the complexion, I suppose, of the driver?”
Evans acknowledged that race was definitely a factor for the agents. “I think it necessarily enters into it. . . . I think it would affront common sense to say that—if they are looking for illegal Mexican aliens that they should ignore the facial features of the occupants of the vehicle.”
The Brignoni-Ponce ruling allowed race to be one of the factors when agents make a roving patrol stop, but here Evans suggested that it could perhaps be the only factor when deciding which vehicles needed to go to secondary inspection at the interior checkpoints. Evans went on to argue that if the court were to require reasonable suspicion in order to stop a vehicle, “they would have to be closed down because they simply couldn’t be operated in any effective way,” as the Ninth Circuit had ruled the previous year.
“It Is Going to Be a Race”
That was exactly what Chuck Sevilla argued should happen when he stepped to the lectern. As with all the Federal Defenders of San Diego appearances before the court, Sevilla’s arguments were forceful with an edge of righteous indignation.
He began by scoffing at the claim that the checkpoint on I-5 was a minor inconvenience that amounted to a fleeting stop. He reminded the court of all the flashing lights, the series of signs prior to the checkpoint, the Border Patrol vehicles blocking the shoulders, and armed agents standing in the middle of the interstate. It was an intense experience.
Sevilla noted that the Brignoni-Ponce stop from the previous term occurred at precisely the same location as the San Clemente checkpoint. If in that case the officers needed reasonable suspicion to stop a vehicle they observed while sitting on the side of the highway, then surely they also needed reasonable suspicion to stop a vehicle when standing beside traffic in exactly the same location.
Then he moved on to the government’s apparent position that the stop at the checkpoint, which everyone agreed amounted to a brief seizure on the part of the Border Patrol, did not require any evidence or suspicion at all. Sevilla listed previous Court precedents that held that the Fourth Amendment requires “a factual predicate for a seizure,” without which “it is arbitrary, capricious, and unconstitutional.” This was particularly true in this case, when the large majority of the people passing through the checkpoint did not have any connection to the border at all.
Inevitably, Sevilla argued, the stops would inordinately affect people based on their race. He continued: “After all, there are a lot of legal citizens and residents of brown skin who have a right to proceed northward. If we are talking about the right to have these fleeting stops, what is going to be the factor that the officer grasps on to [to] decide whether to waive someone to secondary? It is going to be a race.” Sevilla pointed out that every single individual caught up in the dragnet at the checkpoint was of Latino/a descent. “The names on these cases says something about what goes on at the checkpoint.”
Lewis Powell asked Sevilla if he thought that a driver’s license checkpoint by state police was unconstitutional.
Sevilla said no, and then proceeded to use the example to explain what he saw as the differences. First, a driver’s license was required to drive on the road. In that case, the check was directly related to the location, similar to an immigration check at the border itself. However, an immigration document was not required to drive on the highway, so the checkpoint location on I-5 was inappropriate. Second, driver’s license checkpoints are temporary, often deployed for a few hours at a particular location. The San Clemente checkpoint location was used intermittently by the Border Patrol since 1924, but had been in almost continuous operation for thirty-six years at that point. Finally, there were no other locations to check for driver’s licenses, but there were many other ways for the Border Patrol to enforce immigration rules—for example, at the border line itself.
Drawing on the Ninth Circuit’s ruling, Sevilla argued that even though it might be more difficult or cost more, the border line was where immigration enforcement should happen. In 1976, the Border Patrol reported that they had only thirty people patrolling the U.S.–Mexico border with California on a typical shift, for over one hundred miles of border. Sevilla concluded: “I do not think that we should dilute the protections of the Fourth Amendment to solve a law enforcement problem which Congress has control over but has not deemed fit, at this point, at least to try to solve it.”
Sevilla and his colleagues left the oral arguments feeling good about their prospects because none of the justices had really challenged their points. However, their optimism turned out to be misplaced.