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The Supreme Court's interpretation of border search questions
The delicate balance of "reasonable ÷ unreasonable"
defines the relative strengths of government and individual interests
in the United States Supreme Court. Determination of reasonableness
is essential to border search questions. Most of the case law
on border searches expands the definition of reasonableness in
searches conducted by the border police.
For many years judges have ruled on and scholars have debated
the relationship between the two "halves" of the Fourth
Amendment, the "warrant clause" and the "reasonableness
clause.ä Many believe that the Warrant Clause simply explains
the Reasonableness Clause -- so that every search, whether or
not accompanied by a warrant, must satisfy the requirements of
probable cause and specific purpose. (Search
and Seizure Findlaw.com http://caselaw.findlaw.com/data/constitution/amendment04/index.htm
l)
Others argue that the Reasonableness Clause and the Warrant Clause
are independent of one another -- that the probable cause and
specific purpose requirements of the amendment apply only to searches
by warrants. The U.S. Supreme Court's reliance on this model has
led to increasingly intrusive searches based on justifications
that have moved farther and farther away from the language and
intent of the Fourth Amendment. By greatly broadening the definition
of reasonableness, the courts have usually held that government
interests outweigh the privacy and dignity of the individual.
(ibid.)
The conflict between these two parts of the Fourth demonstrate
the division in society between the "war" and rights.
Public approval for the border police presence is high even though
it is in conflict with the idea of fundamental rights.
Leo Mandell and L. Anita Richardson concluded, in a 1986 Arizona
Law Review (331) article, that: "The appropriate balance
between conflicting interests and societal interests established
by the Fourth Amendment need not be sacrificed to the "war
on drugs.'" (371) The Supreme Court has almost always ruled
that government should have wide latitude in searches at the border
region; latitude created by the Court's interpretation of "reasonableness.:.
Mandell and Richardson trace the conflict between governmental
and individual interests to the Framers' experience with the general
warrant,
"For the Framers, warrantless searches and seizures and the general warrants symbolized the balance between these competing values (punishment of criminals vs. personal privacy and dignity) if their discretion was unconstrained· the solicitude accorded governmental interests at the expense of individual interests, embodied in warrantless searches and seizures and the general warrant, was categorically repugnant to those drafting the fourth amendment.ä (340)
Today's imbalance between those interests is obvious in nearly every case heard by the US Supreme Court that defines the Fourth Amendment at the border. In U.S. v. Ramsey, 431 U.S. 606 (1977), the Court held that regardless of how intrusive, searches designated as "border" searches are exempt from the probable cause requirements that must still be respected elsewhere. (See also U.S. v. Montoya , 473 U.S. at 538. 1985) Although searches at the border require no probable cause, the Court held in Ramsey that the searches must be at least reasonable. Since Ramsey, the definition of reasonableness has expanded to the point that any two factors of reasonableness of suspicion as cited by an agent are sufficient. Generally, the greater the degree of intrusiveness of the search, the greater the level of suspicion that must be attained by the official (Fine 854)
In U.S. v. Montoya, (473 U.S. at 538. 1985) the Supreme Court
upheld the twenty-hour detention of a traveler (without any formal
charges) as reasonable. In this seven to two decision (Justices
Brennan and Marshall dissenting) the court held,
The detention of a traveler at the border, beyond the scope of
a routine customs search and inspection, is justified at its inception
if customs agents, considering all the facts surrounding the traveler
and her trip, reasonably suspect that the traveler is smuggling
contraband in her alimentary canal; here, the facts, and their
rational inferences, known to the customs officials clearly supported
a reasonable suspicion that respondent was an alimentary canal
smuggler. Pp. 536-544.
Professor Fine, in her discussion of the U.S. v. Montoya case,
concludes
Presently, there are almost non-existent requirements for officials conducting a routine search and seizure at the border. ·(In Montoya) The result of the Court's decision was to confer no Fourth Amendment rights to travelers at the border. This decision has severely undermined the Fourth Amendment warrant and reasonableness requirements. (The Montoya case) represents an overzealous desire for law enforcement which may "blind us to the peril of our free society" (quoting Florida v. Royer, 460 U.S. 491, 513, 1983. Brennan, J. dissenting). (884).
In a rare case in which the Supreme Court held as unreasonable
a search which was determined by the apparent "Hispanic"
origins of the suspect. In United
States v. Brignoni-Ponce, 422 U.S. 873 (1975) . The Government's
claim for stopping cars without warrants in the border areas as,
"Section 287 (a) (1) of the Immigration and Nationality Act,
8 U.S.C. 1357 (a) (1), authorizes any officer or employee of the
Immigration and Naturalization Service (INS) without a warrant,
"to interrogate any alien or person believed to be an alien
as to his right to be or to remain in the United States."
There is no geographical limitation on this authority. The Government
contends that, at least in the areas adjacent to the Mexican border,
a person's apparent Mexican ancestry alone justifies belief that
he or she is an alien and satisfies the requirement of this statute.
Section 287 (a) (3) of the Act, 8 U.S.C. 1357 (a) (3), authorizes
agents, without a warrant, "Within a reasonable distance
from any external boundary of the United States, to board and
search for aliens any vessel within the territorial waters of
the United States and any railway car, aircraft, conveyance, or
vehicle'" (FindLaw.Com http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=422&invol=873)
Current regulations allow that this authority may be exercised
anywhere within 100 miles of the border. 8 CFR 287.1 (a) (1975).
The Border Patrol claims the authority to stop moving vehicles
and question the occupants about their citizenship, even when
its officers have no reason to believe that the occupants are
aliens or that other aliens may be concealed in the vehicle. Without
reason to believe that the occupants of a vehicle are aliens,
the Border Patrol may conduct a search, and the evidence will
be deemed "reasonable.ä Citing the U.S.
v Almeida-Sanchez,(422 U.S. 873, 878 case the Court said that,
"no Act of Congress can authorize a violation of the Constitution."
(272) and we must decide whether the Fourth Amendment allows such
random vehicle stops in the border areas.
The stops of vehicles (routine stops , as in the facts of the
Brignoni-Ponce case) by the Border Patrol the Court cited Davis
v. Mississippi, (394 U.S. 721 (1969)), andTerry
v. Ohio, (392 U.S. 1, 16-19 (1968), which held that the Fourth
Amendment applies to all seizures of the person, including seizures
that involve only a brief detention short of traditional arrest.
In Terry the Court held that "[W]henever a police officer
accosts an individual and restrains his freedom to walk away,
he has `seized' that person," (ibid. 16). The Fourth Amendment
requires that the seizure be "reasonable." The court
justified this apparent contradiction of Border Patrol stops and
searches, all of which are all considered reasonable, by citing
Camara
v. Municipal Court, (387 U.S. 523, 536-537 (1967)) which held
that ãas with other categories of police action subject
to Fourth Amendment constraints, the reasonableness of such seizures
depends on a balance between the public interest and the individual's
right to personal security free from arbitrary interference by
law officers. (ibid 20-21). In Brignoni-Ponce the Court clearly
held that in the balance between individual rights and the interest
of society the Fourth Amendment would take a back seat.
In what appeared to be a victory for "reasonableness"
the Court ruled that stopping of defendant's car solely because
the officers observed the Mexican appearance of the occupants
was unjustified. (supra 886.) In the unanimous decision the Court
held that
"The Fourth Amendment held not to allow a roving patrol of the Border Patrol to stop a vehicle near the Mexican border and question its occupants about their citizenship and immigration status, when the only ground for suspicion is that the occupants appear to be of Mexican ancestry. Except at the border and its functional equivalents, patrolling officers may stop vehicles only if they are aware of specific articulable facts, together with rational inferences therefrom, reasonably warranting suspicion that the vehicles contain aliens who may be illegally in the country. (878-887).
The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut. (892)
Brignoni-Ponce held that Hispanic appearance alone could not be
used as probable cause, but through the Terry (Terry v. Ohio,
392 U.S. 1 (1968), standard appearance, in combination with other
factors was sufficient. Once the Terry standards was applied through
United States v. Brignoni-Ponce (ibid.) at the border, the list
of "specific and articulable" facts which might be cited
by an agent to justify a detention or search blossomed to extensive
proportions. The Brignoni-Ponce case widened the interpretation
of reasonableness by setting forward a list of officer observations
which would lead to probable cause.
Justice Douglas concurred in the Brignoni-Ponce judgment, but
pointed out the apparent contradiction of the case by stating
that,
"I join in the affirmance of the judgment. The stopping of respondent's automobile solely because its occupants appeared to be of Mexican ancestry was a patent violation of the Fourth Amendment. I cannot agree, however, with the standard the Court adopts to measure the lawfulness of the officers' action. The Court extends the "suspicion" test of Terry v. Ohio, 392 U.S. 1 (1968), to the stop of a moving automobile. I dissented from the adoption of the suspicion test in Terry, believing it an unjustified weakening of the Fourth Amendment's protection of citizens from arbitrary interference by the police. (422 U.S. 873 (1975) at 915)
Commenting further on the "appearance alone" position
of the Court that "The fears I voiced in Terry about the
weakening of the Fourth Amendment have regrettably been borne
out by subsequent events... in narcotics investigations, in apprehension
of "illegal" aliens, and indeed has come to be viewed
as a legal construct for the regulation of a general investigatory
police power. Justice Douglas commented that using a Terry suspicion
test in Brignoni-Ponce that,
"...the nature of the test permits the police to interfere as well with a multitude of law-abiding citizens, whose only transgression may be a nonconformist appearance or attitude. As one commentator has remarked:.. But by specifying factors to be considered without attempting to explain what combination is necessary to satisfy the test, the Court may actually induce the police to push its language beyond intended limits and to advance as a justification any of the enumerated factors even where its probative significance is negligible... For now, I remain unconvinced that the suspicion test offers significant protection of the "comprehensive right of personal liberty in the face of governmental intrusion," Lopez v. United States, 373 U.S. 427, 455 (1963) (dissenting opinion), that is embodied in the Fourth Amendment.ä
Mandel and Richardson in their Arizona Law Review article, (350) listed (each with its companion case) the "polarity factors" which an agent may cite:
") traveling alone or traveling with someone; b) having friends or relatives in this country; c) personally purchasing one's airline ticket with cash or not knowing the specifics of an airline ticket purchase; d) dressing inappropriately, poorly, inexpensively, causally, conservatively, or well; e) wearing clothing that is too tight, too loose, or ill fitting; f) carrying inexpensive or poor quaintly luggage, or carrying good quality luggage g) appearing nervous, calm or passive h) having made no prior trips or frequent trips to the United States;) having little or no money, some money or a lot of money.ä (350)