8.

Terrorists in Suits

JAMES CHANOUX WAS ALREADY FEELING ILL WHEN HE HEARD Chief Justice Burger call his name and ask him to proceed with his oral arguments for Condrado Almeida-Sanchez before the Supreme Court on Monday, March 19, 1973. Out in California, Felix Brignoni-Ponce was awaiting his first trial after his arrest on I-5 near San Clemente on March 11, completely unaware that another significant Border Patrol case was being heard at the Supreme Court, where his case would finally arrive two years later. Indeed, without some last-minute maneuvering by a clerk and an eleventh-hour change of heart by one of the justices, the Almeida-Sanchez case would have been decided differently and the Brignoni-Ponce case would never have made it to the Supreme Court.

Chanoux, a forty-year-old lawyer from San Diego representing Almeida-Sanchez, did not have the pedigree of a typical attorney arguing a case before the highest court in the land. He had been a probation officer in San Diego as he took classes to get his law degree from the University of San Diego. However, when he took on Almeida-Sanchez’s case in his small private practice, he recognized that there were important Fourth Amendment constitutional questions in play.

Condrado Almeida-Sanchez was arrested while driving on California Highway 78 late at night in 1971. The road did not come directly from the border and instead was an east-west corridor that was at all points at least twenty miles north of the border. The Border Patrol agents did not see his vehicle cross the border but began tracking it in Calexico, the border town on the United States side. The Border Patrol agents had neither a warrant nor the probable cause required under the Carroll doctrine to stop the vehicle based on the belief that the vehicle was smuggling people or contraband. However, the Border Patrol regulations at the time said they did not need probable cause and could stop any vehicle in the one-hundred-mile zone for any reason.

The agents stopped Almeida-Sanchez to ask his citizenship and discovered he was a legal permanent resident of the United States. The Border Patrol had recently given agents a memo stating that smugglers were hollowing out back seats in cars to fit people inside, and one of the agents decided to check behind the seat of the car. He did not find any people, but he did find marijuana. Almeida-Sanchez was convicted of smuggling drugs. His lawyer, James Chanoux, appealed the original conviction to the Ninth Circuit Court of Appeals and eventually to the Supreme Court.

As he stepped to the lectern, Chanoux must have felt both proud to have risen this far and also awestruck by the surroundings he found himself in. The justices sat in black leather chairs at an imposing mahogany table with white Italian marble columns behind them and an ornate ceiling above. Despite its importance as the pinnacle of one of three coequal branches of the U.S. Government, the Supreme Court did not even have its own building until 1935. Prior to that, it used different parts of the Capitol building. The Supreme Court building was constructed during the Great Depression and, due to declining wages, actually came in under budget, something that is hard to imagine today. When it was completed, the Supreme Court finally had a building that symbolized its role. The white marble steps leading up to classical Corinthian columns are imposing and grave, setting the solemn mood for the proceedings inside.

From his first words, Chanoux seemed uncomfortable, perhaps feeling nerves as he stood in front of the nine justices at the pinnacle of the American court system for the first time in his life. He stumbled over the traditional “Mr. Chief Justice and may it please the court,” saying instead, “May the, uh, court please.” Chanoux spoke slowly and coughed every few words but soldiered on for several minutes, explaining his contention that the Border Patrol’s regulations should be ruled unconstitutional on Fourth Amendment grounds. He coughed violently and said, “Excuse me, if the court please.” He took a sip of water and tried to continue. While Chanoux collected himself, Justice Potter Stewart filled the silence by asking a question about airports.

Suddenly, Chanoux collapsed onto the table in front of him. Chief Justice Burger broke in and noted that Chanoux looked ill and asked an officer to help him, “Just let counsel sit down and we’ll, uh, relax.” Burger sent for the court’s nurse and then decided to take a recess. As the nurse and paramedics arrived, it became clear that Chanoux had suffered a heart attack and was rushed to the hospital. Since Chanoux obviously could not continue, the Supreme Court rescheduled the oral arguments in the case for nine days later, on March 28.

James Chanoux survived the heart attack and recovered but was not able to represent Mr. Almeida-Sanchez in the rescheduled hearing.¹ The court quickly had to find someone to step in who was familiar with Border Patrol case law and experienced enough to argue before the Supreme Court. They turned to the Federal Defenders of San Diego and its executive director, John J. Cleary. Cleary was young, brash, and ultra-confident, which probably explains his quixotic decision to take the case with only a week to prepare.

The Federal Defenders of San Diego

John Cleary grew up on the streets of Chicago, the son of a police officer.² He went to the University of Chicago for his undergraduate and law degrees before joining the Army Special Forces. His law training allowed him to become the first Green Beret to serve as a Judge Advocate General. He left the army in 1964 and became the deputy director of the National Defender Project from 1964 to 1969, which had received a Ford Foundation grant to establish public defender offices across the United States. After briefly serving as the attorney in residence for the Illinois Law Enforcement Commission, Cleary moved to San Diego and became the executive director of one of the new public defender offices he had established, the Federal Defenders of San Diego.

One of his first hires was Chuck Sevilla, another young, confident lawyer who had recently returned to his native California from a stint in Washington, D.C., while his wife was getting a degree at George Washington University. Sevilla was blanketing defense attorney openings across the area with applications and was hired after one interview with Cleary, which started a lifelong partnership. Sevilla stayed at the Federal Defenders of San Diego for five years before moving to the state public defender office in 1976. The two reconnected in 1983 when they established their own private defense practice of Cleary and Sevilla in San Diego and remained partners until 2004.

Later in life, Cleary developed an interest in the Russian language and judicial reforms in Russia after the collapse of the Soviet Union. He wrote his 1998 PhD dissertation in Russian. After that, he spent time lecturing at Moscow State University and San Diego State University, establishing an exchange program where students from each city spent time in the other. An online course evaluation said, “Cleary was the most difficult strange but brilliant and caring prof around.”³ In 2018, Cleary briefly made the national news after he offered a course at the San Diego State Law School on impeaching Donald Trump.

With Cleary at the helm in the 1970s, the San Diego office became a model for other public defender branches around the country. Cleary was an aggressive attorney who gained nicknames of “Machine-Gun Cleary” and “the white phosphorus kid” for his incendiary tactics. Cleary wore suits in court, but always with his trademark army boots and his vintage seventies-era flowing hair. Sevilla and the entire office followed Cleary’s lead, with a local magistrate referring to them as “terrorists in suits” as they aggressively filed motions and doggedly pursued cases on behalf of their poor clients. During a later Border Patrol case in front of the Supreme Court, United States v. Martinez-Fuerte in 1976, Chief Justice Burger lamented all the frivolous petitions the court had to deal with each week. Sevilla replied, “I’ve probably written a few, Your Honor,” drawing laughter in the court.⁴

As the crackdown on immigration played out after the 1965 Immigration Act, Cleary and Sevilla found themselves on the front lines of new and novel legal questions about how the Fourth Amendment of the Constitution and the regulations for the Border Patrol should be balanced. The Federal Defenders of San Diego also gained the grudging respect of prosecutors and the courts. Cleary had already argued and won a case before the Supreme Court in United States v. Campos-Serrano in 1971, a statutory case about border identity cards, which was why the Supreme Court called him to step into the Almeida-Sanchez case.

Almeida-Sanchez v. United States was the first case to reach the Supreme Court that began to wrestle with the complicated racial and Fourth Amendment questions at the border. The issue at stake was fundamentally a constitutional one: What takes priority in the border zone, the Fourth Amendment protections against unreasonable searches and seizures or the congressional legislation authorizing the Border Patrol to search for undocumented people inside the United States?

“Nobody Is Protected”

When the oral arguments in Almeida-Sanchez were reheard on Wednesday, March 28, 1973, most of the country was focused on events in Vietnam as U.S. troops made their final exit. The last American combat troops left on the following day, March 29, but the famous images of helicopters evacuating the U.S. embassy in Saigon were still two years away, on April 29, 1975.

The oral arguments of the Supreme Court are held in the great room in two-week intervals on Mondays, Tuesdays, and Wednesdays throughout the term, running from the first Monday in October until late April. The arguments begin precisely at 10:00 a.m. as the court crier announces “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.” The justices, gathered behind the maroon felt curtains, simultaneously emerge between white marble columns and take their seats. The chief justice is at the center and the associate justices are arranged on either side, with the most junior at the ends. Early in his time on the court, Chief Justice Burger redesigned the bench to bend slightly at the ends so the justices could see each other.

John Cleary came ready to win his case even though the odds seemed very long. Straightaway, Cleary framed the case as not about the border and immigration but about the Fourth Amendment of the Constitution, which should apply equally to everyone in the United States. He said, “The issue in this case concerns the application of the Fourth Amendment to interior searches. More specifically the petitioner contends that the nature and extent of this search permitted by immigration regulation is in conflict with the Fourth Amendment, the Carroll decision, and the litany of precedent. Following that decision, basically can the government authorize a regulation that permits a search of an automobile on a highway without a warrant and more specifically without probable cause? That is the issue.”⁵

As the Border Patrol cases made their way through the courts, it became clear that there were four distinct locations in which a stop might occur: a vehicle at the border itself, a vehicle that agents maintained continuous surveillance of after crossing the border, a vehicle not seen crossing the border that was stopped by a roving patrol, and a vehicle not seen crossing the border that was stopped at an interior checkpoint on a highway away from the border. In each location, the court needed to consider whether the agents could only ask questions or whether they could conduct a search. In the first two locations, at the crossing point and stops of vehicles under continuous surveillance after crossing, it was considered to be a border search that did not require a warrant because the individual had consented to the search by presenting themselves at the border.⁶ The Almeida-Sanchez case considered the third location: a warrantless search of a vehicle by a roving patrol away from the border.

For Cleary, the key distinction was that the vehicle was not observed crossing the border, so the Carroll doctrine had to apply. Under the Carroll doctrine, police are required to have probable cause and exigent circumstance to search a vehicle without a warrant.

Chief Justice Burger asked, “Does not the regulation by its terms apply to border crossers?”

Cleary replied, “No, Your Honor. It applies to . . . it can search any vehicle, meaning it could be anyone’s vehicle.”

At the time, the Border Patrol’s regulation had no requirement that the Border Patrol know that a person or vehicle had crossed the border. Cleary turned to his wit in his answer: “Your Honor’s vehicle could be down the highway, and technically under this regulation, you could be stopped and not only are you questioned, but your vehicle is searched. And the trunk opened up. And, in the case we have, to show you how far they have gone, under the seat.”

Cleary’s point was clear. The regulation said the Border Patrol could stop and interrogate anyone about immigration status, including the chief justice of the Supreme Court. The agents were abusing this authority to do what Cleary contended were illegal searches for drugs. In Condrado Almeida-Sanchez’s car, they found them.

Cleary moved on to the racially discriminatory nature of the regulation. He pointed out that the government brief stated that random stops were made based on nationality alone. His voice dripping with indignation, Cleary went on: “Well, I do not know how one can physically observe one’s nationality other than to use certain racial or color characteristics and I think that—”

At that point, Justice Rehnquist broke in and asked Cleary a question, which meant that Cleary’s view on racial profiling at the border would have to wait for a few more years until he was back in front of the court arguing the case of Felix Brignoni-Ponce in 1975.

As his time wound down, Cleary summed up his argument: “All we’re asking for here is once a vehicle is in the interior, it’s on the highways, should not the government be required to have at least probable cause?” Random stops on American highways could not be border searches, he argued, because “I only contend that a border search requires a border entry.”

The U.S. government was represented by Assistant Solicitor General Philip Lacovara, who explained that according to the regulation, the Border Patrol did not need to articulate any reason to make a stop within the one-hundred-mile border zone to inquire about immigration status.

Justice Thurgood Marshall asked, “They suspected that this man had an alien?”

Thoroughgood Marshall, later shortened to Thurgood, was born July 2, 1908, in Baltimore to parents who were both descendants of slaves. He graduated from Lincoln University with a BA in American literature and philosophy and was first in his class at the Howard School of Law. He founded the NAACP legal defense and education fund and argued thirty-two cases in front of the Supreme Court, winning twenty-nine, including Brown v. Board of Education in 1954. In 1961, John F. Kennedy nominated him to the Second Court of Appeals, over the objections of some southern senators, and Lyndon Johnson made him solicitor general in 1965. When Justice Tom C. Clark retired, Johnson nominated Marshall to the Supreme Court. He was approved by the Senate by a vote of 69–11 and joined the court on August 30, 1967.

Marshall was a key member of the liberal wing, voting consistently with William Brennan in favor of defendants and against restrictions on liberty. He saw the Constitution as a document that should protect everyone equally, and he pressed Lacovara over the claim that the government could violate everyone’s Fourth Amendment protections in the border zone.

Lacovara responded “No” to Marshall’s question about whether the agent suspected the car was carrying undocumented people. He continued, “It was conceded at trial that there was no particular reason to suspect that this car was carrying an alien.”

Marshall asked, “Will they stop my car if I was driving through that?”

Lacovara clarified, “In that area?”

“Yes.”

Lacovara said, “Yes, sir. Yes, what we are saying is the focus here as in—”

Marshall broke in, raising the stakes. “Could you stop the president’s car?”

Lacovara paused for a second. “Well, if the car were marked as the president’s car, they would be—”

Marshall got to the point. “If it was not, you could stop it?”

Lacovara agreed, “Yes, sir.”

Marshall had made his point. “Nobody is protected.”

Lacovara’s time ended, and Chief Justice Burger called Cleary back up for the balance of his time. Burger began with an interesting point, starting with a critique of the imaginary nature of borders. “Mr. Cleary, we know of course that a border line is simply a hypothetical line, a thin line made by mapmaker with a pen.” Given that, Burger asked, veering in an unexpected direction, would it not be reasonable for the government to set up a “cordon sanitaire,” or buffer area, in the border zone and “require everyone in that area, day or night, twenty-four hours a day, to have a pass?”

Cleary was taken aback by the totalitarian nature of the suggestion and replied, “Well, Your Honor, I cannot speak to the law, but speaking as an American citizen, I think that smacks of something so gross, with our way of life, I cannot imagine Congress doing something like that.”

Burger backtracked, acknowledging that was not what the case was about and saying, “We won’t hold you to it.” Afterward, the lawyers from the Federal Defenders marveled at the chief justice’s outrageous comment, likening it to the tattoos that prisoners received in Nazi Germany to track them.⁷

After a few more questions, Burger ended the proceedings and thanked Cleary for appearing in front of the court on short notice and under such unusual circumstances. Cleary and the lawyers from the Federal Defenders of San Diego thought the oral arguments went well, but still knew that given the conservative composition of the court, a verdict in Condrado Almeida-Sanchez’s favor was unlikely. All they could do was wait until the decision was announced.