422 U.S.

891
95 S.Ct. 2585.
45 L.Ed.2d 623

UNITED STATES, Petitioner,

v.
Luis Antonio ORTIZ.
No. 732050.
Argued Feb. 18, 1975.
Decided June 30, 1975.

Syllabus*
The Fourth Amendment, held to forbid Border Patrol officers, in the
absence of consent or probable cause, to search private vehicles at traffic
checkpoints removed from the border and its functional equivalents, and
for this purpose there is no difference between a checkpoint and a roving
patrol. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37
L.Ed.2d 596, followed. Pp. 892-898.
Affirmed.
Mark L. Evans, Washington, D.C., for the United States.
Charles M. Sevilla, San Diego, Cal., for Luis Antonio Ortiz.
Mr. Justice POWELL delivered the opinion of the Court.

Border Patrol officers stopped respondent's car for a routine immigration search
at the traffic checkpoint on Interstate Highway 5 at San Clemente, Cal., on
November 12, 1973. They found three aliens concealed in the trunk, and
respondent was convicted on three counts of knowingly transporting aliens who
were in the country illegally. The Court of Appeals for the Ninth Circuit
reversed the conviction in an unreported opinion, relying on dictum in its
opinion in United States v. Bowen, 500 F.2d 960 (CA9 1974), aff'd, 422 U.S.
916, 95 S.Ct. 2569, 45 L.Ed.2d 641, to the effect that our decision in AlmeidaSanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973),
required probable cause for all vehicle searches in the border area, whether

conducted by roving patrols or at traffic checkpoints. We granted certiorari.

419 U.S. 824, 95 S.Ct. 40, 42 L.Ed.2d 47 (1974).
2

Nothing in this record suggests that the Border Patrol officers had any special
reason to suspect that respondent's car was carrying concealed aliens. Nor does
the Government contend that the San Clemente checkpoint is a functional
equivalent of the border. Brief for United States 16. The only question for
decision is whether vehicle searches at traffic checkpoints, like the rovingpatrol search in Almeida-Sanchez, must be based on probable cause.

* In Almeida-Sanchez we rejected the Government's contention that the

Nation's strong interest in controlling immigration and the practical difficulties
of policing the Mexican border combined to justify dispensing with both
warrant and probable cause for vehicle searches by roving patrols near the
border. The facts did not require us to decide whether the same rule would
apply to traffic checkpoints, which differ from roving patrols in several
important respects. 413 U.S., at 273, 93 S.Ct., at 2539; id., at 276, 93 S.Ct., at
2541 (Powell, J., concurring).

A consolidated proceeding on motions to suppress in this and similar cases

produced an extensive factual record on the operation of traffic checkpoints in
southern California. United States v. Baca, 368 F.Supp. 398 (SDCal.1973). The
San Clemente checkpoint is 62 air miles and 66 road miles north of the
Mexican border. It is on the principal highway between San Diego and Los
Angeles, and over 10 million vehicles pass the checkpoint in a year. United
States v. Martinez-Fuerte, 514 F.2d 308, 312 (CA9 1975). The District Court in
Baca described the checkpoint as follows:

'Approximately one mile south of the checkpoint is a large black on yellow

sign with flashing yellow lights over the highway stating 'ALL VEHICLES,
STOP AHEAD, 1 MILE.' Three-quarters of a mile further north are two black
on yellow signs suspended over the highway with flashing lights stating
'WATCH FOR BRAKE LIGHTS.' At the checkpoint, which is also the
location of a State of California weighing station, are two large signs with
flashing red lights suspended over the highway. These signs each state 'STOP
HEREU.S. OFFICERS.' Placed on the highway are a number of orange
traffic cones funneling traffic into two lanes where a Border Patrol agent in full
dress uniform, standing behind a white on red 'STOP' sign checks traffic.
Blocking traffic in the unused lanes are official U.S. Border Patrol vehicles with
flashing red lights. In addition, there is a permanent building which houses the
Border Patrol office and temporary detention facilities. There are also
floodlights for nighttime operation.' 368 F.Supp., at 410411.

The Border Patrol would prefer to keep this checkpoint in operation

continuously, but bad weather, heavey traffic, and personnel shortages keep it
closed about one-third of the time. When it is open, officers screen all
northbound traffic. If anything about a vehicle or its occupants leads an officer
to suspect that it may be carrying aliens, he will stop the car and ask the
occupants about their citizenship. If the officer's suspicion persists, or if the
questioning enhances it, he will 'inspect' portions of the car in which an alien
might hide.1 Operations at other checkpoints are similar, although the traffic at
some is light enough that officers can stop all vehicles for questioning and
routinely inspect more of them.

The Government maintains that these characteristics justify dispensing with

probable cause at traffic checkpoints despite the Court's holding in AlmeidaSanchez. It gives essentially two reasons for distinguishing that case. First, a
checkpoint officer's discretion in deciding which cars to search is limited by the
location of the checkpoint. That location is determined by high-level Border
Patrol officals, using criteria that include the degree of inconvenience to the
public and the potential for safe operation, as well as the potential for detecting
and deterring the illegal movement of aliens. By contrast, officers on roving
patrol were theoretically free before Almeida-Sanchez to stop and search any
car within 100 miles of the border. Second, the circumstances surrounding a
checkpoint stop and search are far less intrusive than those attending a rovingpatrol stop. Roving patrols often operate at night on seldom-traveled roads, and
their approach may frighten motorists. At traffic checkpoints the motorist can
see that other vehicles are being stopped, he can see visible signs of the
officers' authority, and he is much less likely to be frightened or annoyed by the
intrusion.

These differences are relevant to the constitutional issue, since the central
concern of the Fourth Amendment is to protect liberty and privacy from
arbitrary and oppressive interference by government officials. Camara v.
Municipal Court of City and County of San Francisco, 387 U.S. 523, 528, 87
S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967); Schmerber v. California, 384 U.S.
757, 767, 86 S.Ct. 1826, 18331834, 16 L.Ed.2d 908 (1966). The Fourth
Amendment's requirement that searches and seizures be reasonable also may
limit police use of unnecessarily frightening or offensive methods of
surveillance and investigation. See e.g., Terry v. Ohio, 392 U.S. 1, 1617, 88
S.Ct. 1868, 18771878, 20 L.Ed.2d 889 (1968); Camara, supra, 387 U.S. at
531, 87 S.Ct. at 1732; Schmerber, supra, 384 U.S. at 771772, 86 S.Ct. at
1836. While the differences between a roving patrol and a checkpoint would be
significant in determining the propriety of the stop, which is considerably less
intrusive than a search, Terry v. Ohio, supra, they do not appear to make any

difference in the search itself. The greater regularity attending the stop does not
mitigate the invasion of privacy that a search entails. Nor do checkpoint
procedures significantly reduce the likelihood of embarrassment. Motorists
whose cars are searched, unlike those who are only questioned, may not be
reassured by seeing that the Border Patrol searches other cars as well. Where
only a few are singled out for a search, as at San Clemente, motorists may find
the searches especially offensive. See Note, Border Searches and the Fourth
Amendment, 77 Yale L.J. 1007, 10121013 (1968).
9

Moreover we are not persuaded that the checkpoint limits to any meaningful
extent the officer's discretion to select cars for search. The record in the
consolidated proceeding indicates that only about 3% of the cars that pass the
San Clemente checkpoint are stopped for either questioning or a search, 368
F.Supp., at 411. Throughout the system, fewer than 3% of the vehicles that
passed through checkpoints in 1974 were searched, Brief for United States 29,
and no checkpoint involved in Baca reported a search rate of more than 10% or
15%. 368 F.Supp., at 412415. It is apparent from these figures that
checkpoint officers exercise a substantial degree of discretion in deciding which
cars to search. The Government maintains that they voluntarily exercise that
discretion with restraint and search only vehicles that arouse their suspicion,
and it insists the officers should be free of judicial oversight of any kind.
Viewed realistically, this position would authorize the Border Patrol to search
vehicles at random, for no officer ever would have to justify his decision to
search a particular car.

10

This degree of discretion to search private automobiles is not consistent with

the Fourth Amendment. A search, even of an automobile, is a substantial
invasion of privacy.2 To protect that privacy from official arbitrariness, the
Court always have regarded probable cause as the minimum requirement for a
lawful search. Almeida-Sanchez, 413 U.S., at 269270, 93 S.Ct., at 2537
2538; Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d
419 (1970). We are not persuaded that the differences between roving patrols
and traffic checkpoints justify dispensing in this case with the safeguards we
required in Almeida-Sanchez. We therefore follow that decision and hold that at
traffic checkpoints removed from the border and its functional equivalents,
officers may not search private vehicles without consent or probable cause.3

11

The Government lists in its reply brief some of the factors on which officers
have relied in deciding which cars to search. They include the number of
persons in a vehicle, the appearance and behavior of the driver and passengers,
their inability to speak English, the responses they give to officers' questions,
the nature of the vehicle, and indications that it may be heavily loaded. All of

these factors properly may be taken into account in deciding whether there is
probable cause to search a particular vehicle. In addition, as we note today in
United States v. Brignoni-Ponce, 422 U.S., at 884885, 95 S.Ct., at 2582, the
officers are entitled to draw reasonable inferences from these facts in light of
their knowledge of the area and their prior experience with aliens and
smugglers. In this case, however, the officers advanced no special reasons for
believing respondent's vehicle contained aliens. The absence of probable cause
makes the search invalid.
II
12

The Government also contends that even if Almeida-Sanchez applies to

checkpoint searches, the Court of Appeals erred in voiding this search because
it occurred after the date of decision in Almeida-Sanchez but before the Court
of Appeals stated in United States v. Bowen, supra, that it would require
probable cause for checkpoint searches. Examination of the Government's brief
in the Ninth Circuit indicates that it did not raise this question below. On the
contrary, it represented to the court that the decision in Bowen would be
'determinative of the issues in this case.' We therefore decline to consider this
issue, which was raised for the first time in the petition for certiorari.

13

Affirmed.

14

Mr. Justice REHNQUIST, concurring.

15

I joined the dissent of my Brother White in Almeida-Sanchez v. United States,

413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), and recognize that the
present decision is an extension of the unsound rule announced in that case. I
nonetheless join the opinion of the Court, because a majority of the Court still
adheres to Almeida-Sanchez and because I agree with the Court's analysis of
the significance of the Government's proffered distinctions between roving and
fixed-checkpoint searches.

16

I wish to stress, however, that the Court's opinion is confined to full searches,
and does not extend to fixed-checkpoint stops for the purpose of inquiring
about citizenship. Such stops involve only a modest intrusion, are not likely to
be frightening or significantly annoying, are regularized by the fixed situs, and
effectively serve the important national interest in controlling illegal entry. I do
not regard such stops as unreasonable under the Fourth Amendment, whether or
not accompanied by 'reasonable suspicion' that a particular vehicle is involved
in immigration violations, cf. United States v. Brignoni-Ponce, 422 U.S. 873,

95 S.Ct. 2574, 45 L.Ed.2d 607, and I do not understand today's opinion to cast
doubt upon their constitutionality.
17

Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN joins,
concurring in the judgment.

18

Like Mr. Justice WHITE I can, at most, do no more than concur in the
judgment. As the Fourth Amendment now has been interpreted by the Court it
seems that the Immigration and Naturalization Service is powerless to stop the
tide of illegal aliensand dangerous drugsthat daily and freely crosses our
2,000-mile southern boundary.1 Perhaps these decisions will be seen in
perspective as but another example of a society seemingly impotent to deal with
massive lawlessness. In that sense history may view us as prisoners of our own
traditional and appropriate concern for individual rights, unableor unwilling
to apply the concept of reasonableness explicit in the Fourth Amendment in
order to develop a rational accommodation between those rights and the literal
safety of the country.

19

Given today's decisions it would appear that, absent legislative action, nothing
less than a massive force of guards could adequately protect our southern
border.2 To establish hundreds of checkpoints with enlarged border forces so as
to stop literally every car and pedestrian at every border checkpoint, however,
would doubtless impede the flow of commerce and travel between this country
and Mexico. Moreover, it is uncertain whether stringent penalties for
employment of illegal aliens, and rigid requirements for proof of legal entry
before employment, would help solve the problems, but those remedies have
not been tried.

20

I would hope that when we next deal with this problem we give greater weight
to the reality that the Fourth Amendment prohibits only 'unreasonable searches
and seizures' and to the frequent admonition that reasonableness must take into
account all the circumstances and balance the rights of the individual with the
needs of society. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d
1669 (1960); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d
87 (1972).

21

APPENDIX TO OPINION OF BURGER, C.J., CONCURRING IN THE

JUDGMENT

Excerpt from Judge Turrentine's opinion in United States v. Baca, 368 F.Supp. 398,
22

402408 (SDCal.1973)
THE ILLEGAL ALIEN PROBLEM
23

The United States through legislative action has determined that it is in the best
interest of the nation to limit the number of persons who can legally immigrate
into the country in any given year. These controls reflect in part a
Congressional intent to protect the American labor market from an influx of
foreign labor. Karnuth v. United States, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed.
677 (1929); 201(a) of the Immigration and Nationality Act of 1952, 66 Stat.
163, as amended by the Act of October 3, 1965, 79 Stat. 911, 8 U.S.C.
1151(a).

24

Under this policy of limited admission, 385,685 new immigrants entered the
United States legally during fiscal year 1972. Since July 1, 1968, the law has
established an annual quota of 120,000 persons for the independent countries of
the Western Hemisphere. Included within this quota are immigrants from the
Republic of Mexico who in fiscal year 1972 totalled 64,040. 1972 Annual
Report, Immigration and Naturalization Service, pp. 2, 28.

25

Currently illegal aliens are in residence within the United States in numbers
which, while not susceptible of exact measurement, are estimated to be in the
vicinity of 800,000 to over one million. Department of Justice, Special Study
Group on Illegal Immigrants from Mexico, A Program for Effective And
Humane Action on Illegal Mexican Immigrants, 6 (1973) (hereinafter cited as
Cramton Rpt.).

26

Of these illegal aliens, approximately 85 percent are citizens of Mexico.

Cramton Rpt. at 6. They are industrious, proud and hard-working people who
enter this country for the purpose of earning wages, accumulating savings, and
returning or sending their savings home to Mexico.

27

Since 1970, the number of illegal Mexican aliens in the United States who have
been apprehended has been growing at a rate in excess of 20 percent per year.
Cramton Rpt. at 6.

28

The increasingly large numbers of Mexican nationals seeking to illegally enter

this country reflects the substantial unemployment and underemployment in
Mexicofueled by one of the highest birth rates in the world. Moreover,
Mexican employment statistics are not likely to improve dramatically since
fully 45 percent of Mexico's population is under 15 years of age and, therefore,

will soon be attempting to enter the labor market.

29

Further prompting Mexican nationals to seek employment in the United States

is the fact that there is a significant disparity in wage rates between this country
and Mexico. In Mexicali and Tijuana, both Mexican cities bordering the
Southern District and each with a population in excess of 400,000, the average
daily wage is about $3.40 per day. The minimum wage is even lower for
workers in the interior of Mexico. The average worker in Mexico, assuming he
can find work, earns in a day as much as he can make in only a few hours in the
United States.

30

In addition, it is estimated that the per capita income of the poorest 40 percent
of the Mexican population, the strata most likely to leave their homeland in
search of employment in the United States, is less than $150 per year.

31

The manpower needs of the United States generated by World War II resulted
in many Mexicans being imported into this country and becoming familiar with
employment opportunities and practices in the United States. See Diaz v. KayDix Ranch, 9 Cal.App.3d 588, 88 Cal.Rptr. 443 (1970).

32

The opportunities available to Mexican aliens have traditionally been in

agriculture. While still true in many parts of the United States Southwest, in
recent years the pattern has changed and more and more illegal aliens are
obtaining employment in the service and manufacturing sectors of our
economy. These aliens are increasingly found in virtually all regions of the
country and in all segments of the economy. State Social Welfare Board, Issue:
Aliens in California, 12 (1973) (Hereinafter cited as Aliens in California).

33

The nature of the change in employment opportunities available is

demonstrated by one estimate that 250,000 illegal aliens are employed in Los
Angeles County where agricultural opportunities are known to be limited.
Hearings on Illegal Aliens Before Subcomm. No. 1 of the House Comm. on the
Judiciary, 92d Cong., 1st Sess., pt. 1, at 208 (1971) (Hereinafter cited as
Hearings on Illegal Aliens).

34

Other estimates of the impact of illegal aliens in California suggest that in 1971,
when 595,000 Californians were unemployed (7.4 percent of the State's labor
force), there were between 200,000 and 300,000 illegal aliens employed in
California earning approximately $100 million in wages. Hearings on Illegal
Aliens at 150.

35

Since the majority of Mexicans are unskilled or low skilled workers they tend
to compete with Mexican-Americans, blacks, Indians, and other minority
groups who, due to the declining percentage of jobs requiring low or no skills,
are finding it increasingly difficult to obtain gainful employment. Cramton Rpt.
at 12.

36

Illegal aliens compete for jobs with persons legally residing in the United
States who are unskilled and uneducated and who form that very group which
our society is trying to provide with a fair share of America's prosperity.

37

In addition, illegal aliens tend to perpetuate poor economic conditions by

frustrating unionization, especially in such occupations as farm work.

38

Illegal aliens pose a potential health hazard to the community since many seek
work as nursemaids, food handlers, cooks, housekeepers, waiters, dishwashers,
and grocery workers. Immigration and medical officials in Los Angeles, for
example, have discovered that the illegal alien population in Los Angeles'
barrio is infected with a high incidence of typhoid, dysentery, tuberculosis,
tapeworms, veneral disease and hepatitis. L. A. Times, Sept. 16, 1973, pt II, at
1.

39

In some states illegal aliens abuse public assistance programs. In some

instances entire families who entered the country illegally have been admitted
to the welfare rolls. Aliens in California at 35, 43.

40

Another aspect of the problem created by illegal aliens is that employed aliens
tend to send a substantial portion of their earnings to relatives or friends in
Mexico. This outflow of United States dollars exacerbates our balance of
payments problem to the extent of $1 billion a year. Hearings on Illegal Aliens,
pt. 3 at 683.

41

The net effect of this silent invasion of illegal aliens from Mexico is suffering
by the aliens who are frequently victims of extortion, violence and sharp
practices, displacement of American citizens and legally residing aliens from
the labor market, and irritation between two neighboring countries.

THE LAW ENFORCEMENT PROBLEM

42

Given that illegal aliens are a significant problem in American life, especially
for those minority groups who are described as economically deprived, and that

Congress has decreed that all but a relatively few aliens are to be permanently
excluded, then we must analyze what law enforcement problems exist. In this
regard, the following findings of fact are made:
43

The illegal alien problem is one found primarily in the Southwestern Region of
the United States.

44

This problem along the Mexican-American border has existed for some time
with the original responsibility for securing the integrity of the border being
assigned to the U.S. Army, along with the Departments of Treasury and Labor,
who had about 20,000 men assigned to the border between Brownsville, Texas,
and San Diego, California, in 1920. National Geographic Magazine, 'Along Our
Side of the Mexican Border.' (July 1920).

45

Currently the burden of controlling the entry of aliens and stemming the flow of
illegal aliens along the Mexican-American border is assigned to the INS.1

46

The border extends for almost 2,000 miles from the Gulf of Mexico to the
Pacific Coast.

47

Along this border there were over 152 million legal entries at authorized ports
of entry during fiscal 1972, of which over 91 million were made by aliens. Over
39 million of the legal entries were made at the three ports of entry in Southern
California (Calexico, San Ysidro and Tecate) of which over 24 million were
made by aliens. Immigration and Naturalization Service, 1972 Annual Report,
25.

48

Of these entries made by aliens, the large portion were made by visitors with
official permission to enter the country who had been issued temporary 'border
passes' such as I186 cards (issued to residents of Mexico), which authorize
the holder to travel within an area no further than 25 miles from the border and
for a period of time not to exceed 72 hours. See 8 C.F.R. 212.6.

49

These temporary border passes (I186) are issued to simplify procedures

needed for entry, and the issuing process recognizes the inter-relationship of
contiguous communities along both sides of the border. Hearings on Illegal
Aliens, pt. 1, 192.

50

In fiscal 1973 approximately 208,000 I186 cards were issued and it is

estimated that over two million such cards are currently in circulation. Hearings

on Illegal Aliens, pt. 1, 173.

51

Within the INS, the U.S. Border Patrol, which was first established in 1924, has
the primary function of preventing the illegal entry of aliens and the
apprehension of those who have entered illegally and those who smuggle these
illegal entrants.

52

The Border Patrol has approximately 1,700 agents, who are well-trained law
enforcement officers, and of these about 80 percent are assigned along our
southern border with Mexico.

53

A 'deportable alien' is a person who has been found to be deportable by an

immigration judge, or who admits his deportability upon questioning by
official agents.

54

The number of deportable aliens apprehended by the Border Patrol (which

makes the great majority of apprehensions) nationally has grown from 38,861
during fiscal 1963 to 498,123 in fiscal 1973; of this number 128,889 were
found by Border Patrol agents working in the Chula Vista sector which includes
70 miles of the border in San Diego County, and 23,125 were located by agents
in the El Centro sector which includes the Imperial County of California and 75
miles of the Mexican-American border.

55

The Border Patrol agents have the power to apprehend illegal aliens since by
regulation the Attorney General has designated Border Patrol agents to be
immigration officers and authorized them to exercise powers and duties as such
officers (8 C.F.R. 103.1(i)); immigration officers by statute 101(a)(17) of
the Immigartion and Nationality Act of 1952, 66 Stat. 163; as amended by the
Act of October 3, 1973, 79 Stat. 911, 8 U.S.C. 1101(a)(17), are empowered,
without a warrant, to stop and interrogate any alien or person believed to be an
alien as to his right to remain or to be in the United States. See Au Yi Lau v.
I.N.S., 144 U.S.App.D.C. 147, 445 F.2d 217 (1971), cert. denied, 404 U.S. 864,
92 S.Ct. 64, 30 L.Ed.2d 108.

56

Sec. 287(a)(3) of the 1952 Immigration Act provides authority for an

immigration officer within a reasonable distance from the border of the United
States to board and search any conveyance or vehicle; 'reasonable distance' as
used in that section of the Act means within 100 air miles from any external
boundary of the United States, 8 C.F.R. 287.1(b).

57

Immigration officers also are authorized to conduct inspection of aliens seeking

admission or readmission to, or the privilege of passing through, the United

States, and also are authorized and empowered to board and search any vehicle
or like conveyance in which they believe aliens are being brought into the
United States. Sec. 235(a) of the 1952 Immigration Act, 8 U.S.C. 1225(a).
58

The deployment of Border Patrol agents along the border is intended to

maximize the effectiveness of the limited number of personnel, with the first
line of defense being called the 'line watch.' The line watch consists of agents
being placed immediately upon the physical boundary where experience has
shown that large numbers of illegal aliens can be detected attempting entry. A
large number of agents so assigned are primarily concerned with responding to
sensor alarms (electronic detection equipment) which are located at strategic
positions. These agents also respond to citizen complaints concerning the
suspected presence of deportable aliens.

59

In fiscal 1973, there were 175,511 deportable aliens apprehended throughout

the nation by agents assigned to the line watch, with 69,147 being apprehended
in the Chula Vista sector and 5,908 in the El Centro sector.

60

While the Border Patrol would like to apprehend all deportable aliens right on
the border by agents of the line watch, inspections at regular points of entry are
not infallible and illegal crossings at other than legal ports of entry are
numerous and recurring. The maintenance of continuous patrol over the vast
stretches of the border in Southern California is physically impossible, since
the approximately 145 miles of boundary creates geographic barriers to
effective patrol and man-made devices such as fences and electronic devices
are in large part ineffective.

61

Increased manpower on line watch would not make that activity appreciably
more effective as was demonstrated in 1969 during 'Operation Intercept' when
many more agents were stationed immediately on the border, and yet, the
number of illegal aliens apprehended by agents operating inland was not
significantly different from like periods when such additional manpower was
not located at the boundary.

62

Once the aliens negotiate their way through the port of entry or, as is most
common, walk across the border at a place other than an official port of entry,
they find transportation inland either in public conveyances, or private vehicles
with increasing numbers being transported by professional smugglers. A few
have been known to walk some distance inland and have been apprehended
after having walked as far north as Julian, California, which is over 60 miles

from the border.

63

After crossing the line watch some illegal aliens seek employment in the
Southern District, but the vast majority attempt to proceed to Los Angeles
County and points north.

64

Once the illegal alien gets settled in a big city far away from the border it
becomes very difficult to apprehend him, and therefore, the Border Patrol
attempts to contain the illegal entrant within this district. Aliens in California at
7. With this objective in mind, they have (pursuant to their statutory authority
discussed above) established, since at least 1927, strategically located traffic
inspection facilities, commonly referred to as checkpoints, on highways and
roads, for the purpose of questioning vehicle occupants believed to be aliens, as
to their right to be, or to remain, in the United States, and also to search such
vehicles for illegal aliens. Immigration and Naturalization Service Border Patrol
Handbook 91 (1972) (hereinafter cited as Handbook).

65

The primary objective of the checkpoints is to intercept vehicles or

conveyances transporting illegal aliens, or nonresident aliens admitted with
temporary border passing cards (I 186), with particular attention being paid to
vehicles operated by smugglers or transporters destined for inland cities in
violation of 8 U.S.C. 1324.

66

The selection of the location of a checkpoint is determined by factors relevant

to the interdiction or interception of deportable aliens who have succeeded in
gaining entry in an unlawful manner or are proceeding beyond the immediate
border area in violation of conditions of their admission as border crossers, 8
C.F.R. 212.60. The primary factors in selecting a checkpoint site are:

67

1. A location on a highway just beyond the confluence of two or more roads

from the border, in order to permit the checking of a large volume of traffic
with a minimum number of officers. This also avoids the inconvenience of
repeated checking of commuter or urban traffic which would occur if the sites
were operated on the network of roads leading from and through the more
populated areas near the border.

68

2. Terrain and topography that restrict passage of vehicles around the

checkpoint, such as mountains, desert, and, as in the case of the San Clemente
checkpoint, the Camp Pendleton Marine Base.

69

3. Safety factors: an unobstructed view of oncoming traffic, to provide a safe

distance for slowing and stopping; parking space off the highway; power
source to illuminate control signs and inspection area, and bypass capability for
vehicles not requiring examination.
70

4. Due to the travel restrictions of the I186 nonresident border crosser to an

area 25 miles from the border (unless issued additional documentation) the
checkpoints, as a general rule, are located at a point beyond the 25 mile zone in
order to control the unlawful movement inland of such visitors.

71

Strategic sites that meet the foregoing enumerated criteria are selected for
'permanent checkpoints.' These are sites equipped to handle a large volume of
traffic on what would be a 24-hour basis except in case of manpower shortage,
poor weather, or where traffic becomes excessive causing a potential safety
hazard. Handbook at 93.

72

Other traffic checkpoints, known as 'temporary checkpoints' are maintained on

roads where traffic is less frequent. The placement of these sites will be
governed by the same safety factors as involved in permanent site placement
and are usually located where the terrain allows an element of surprise.
Operations at these temporary checkpoints are set up at irregular intervals and
intermittently so as to confuse the potential violator. Handbook at 93.

73

When the checkpoints, whether permanent or temporary, are in operation, an

officer standing at the 'point' in full dress uniform on the highway will view the
decelerating oncoming vehicles and their passengers, and will visually
determine whether he has reason to believe the occupants of the vehicle are
aliens (i.e., 'breaks the pattern' of usual traffic). If so, the vehicle will be
stopped (if the traffic at the checkpoint is heavy, as at the San Clemente
checkpoint, the vehicle will be actually directed off the highway) for inquiries
to be made by the agent. If the agent does not have reason to believe that the
vehicle approaching the checkpoint is carrying aliens, he may exchange
salutations, or merely wave the vehicle through the checkpoint.

74

If, after questioning the occupants, the agent then believes that illegal aliens
may be secreted in the vehicle (because of a break in the 'pattern' indicating the
possibility of smuggling) he will inspect the vehicle by giving a cursory visual
inspection of those areas of the vehicle not visible from the outside (i.e. trunk,
interior portion of camper, etc.).

75

At the point of location of the sites now in regular use few aliens have reached
the locale on foot, with 99 percent having entered a vehicle of one type or

another. Approximately 12 percent of all apprehensions of deportable aliens

throughout the nation are made at checkpoints.
76

In the United States, during fiscal 1973, approximately 55,300 deportable aliens
were apprehended by Border Patrol agents working traffic checking operations.
In the Chula Vista sector the number for that period was 21,232, while in the El
Centro sector the total was 3,825. 2 During fiscal 1973, a total of 4,975 of the
above were visitors apprehended at the checkpoints and a majority of these
were those who were in violation of the terms of temporary border passes
(Form I186).

77

The placement of the checkpoints and their operations are coordinated between
the two sectors located in this district and with Border Patrol activities to the
east in Arizona. In actual operation the checkpoints, be they 'permanent' or
'temporary,' have the same basic accouterments. Typically, about one-half mile
to one mile south of the checkpoint is the first notification that the checkpoint
is ahead. The notice is in the form of a black on yellow sign indicated 'STOP
AHEAD' which has floodlights for nighttime illumination, handbook at 99.
Next, about 200 yards from the checkpoint is another sign cautioning the traffic
to slow down or to be careful; this sign usually has flashing yellow lights
attached. For the fifty yards directly south of the checkpoint there are placed
traffic cones evenly spaced along each side of the highway. The actual
checkpoint has a sign indicating to the traffic to stop, with official Border Patrol
vehicles parked on each side of the stop zone showing the official Border Patrol
emblem and/or the designation U.S. OFFICERS. At this point the agents
assigned at the 'point,' in their official uniform, conduct checking and
inspection operations. Beyond the checkpoint is usually a sign indicating
'THANK YOU.'

78

While a large number of apprehensions are made at the checkpoints each year,
as related above, the primary reason for their operation is that they effectively
deter large numbers of aliens from illegally entering the country or violating the
terms of any temporary crossing card they may have, because they form an
effective obstacle and are located on all major routes north out of the border
region.

79

The deterrence aspect of these traffic checkpoint operations is amply

demonstrated by the fact that the illegal alien has to resort to the employment of
professional smugglers to provide transportation around or through these
checkpoints.

80

Some of these smuggling operations have developed into sophisticated and

80

Some of these smuggling operations have developed into sophisticated and

involved operations with the following general modus operandi:

81

1. Contact is made between the smuggler and the alien prior to the latter's
leaving Mexico.

82

2. The aliens then make entry on foot, with possibly the aid of a 'guide,' or by
use of temporary border passes. Then they enter vehicles approximately 2 or 20
miles inland after having passed through the Border Patrol's line watch
activities.

83

3. To get through the traffic checkpoint they might use a 'drop house,' which
acts as a staging area to keep the aliens awaiting inclement weather, or any
event that might cause the checkpoint to close down temporarily. Or, they may
use a 'decoy' vehicle, which is a vehicle loaded with illegal aliens which it is
anticipated will be stopped at the checkpoint and would therefore occupy the
agents so that other vehicles could pass through without inspection. They even
use 'scout cars' to probe those roads where temporary checkpoints are
maintained, so as to advise other vehicles whether it is safe to proceed.

84

4. The 'load' vehicles themselves can be of any type of conveyance and the
methods used to secrete aliens inside them are varied and often show some
originality. Unfortunately, sometimes these are very dangerous to the aliens
themselves. It has been reported, for example, that it is not at all unusual for an
alien to die from asphyxiation while concealed in an automobile trunk or a tank
car.

85

5. The cost of the transportation provided to the aliens is approximately $225 to

$250 for each alien for the trip through the checkpoint on to the Los Angeles
area. Since smuggling operations are almost exclusively 'cash and carry'
businesses and the average income among Mexican nationals who may wish to
seek residence here illegally is quite small, this cost tends to act as a very
significant deterrent in and of itself. The checkpoints are the major reason for
such a high price and if they were discontinued for any length of time it would
be one more encouragement to illegal immigration.

86

The deterrent impact of these checkpoints has been noted on several occasions
when they resumed operation unexpectedly and a great number of aliens were
apprehended.

87

The evidence presented before this court clearly established that there is no

reasonable or effective alternative method of detection and apprehension

avilable to the Border Patrol in the absence of the checkpoints, for even a
geometric increase in its personnel or line watch would not leave any control
over those admitted as temporary visitors from Mexico.
88

Of the approximately half million illegal aliens apprehended in fiscal 1973,

virtually none were prosecuted, unless they presented counterfeit or altered
documents or aided in smuggling endeavors.

89

This district has only 3 percent of the total length of land borders, and yet fully
30 percent of all apprehensions of deportable aliens made in the United States
are made within this district.

90

Mr. Justice WHITE, with whom Mr. Justice BLACKMUN joins, concurring in
the judgment.

91

Given Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37

L.Ed.2d 596 (1973), with which I disagreed but which is now authoritative the
results reached in these cases were largely foreordained. The Court purports to
leave the question open, but it seems to me, my Brother REHNQUIST
notwithstanding, that under the Court's opinions checkpoint investigative stops,
without search, will be difficult to justify under the Fourth Amendment absent
probable cause or reasonable suspicion. In any event, the Court has thus
dismantled major parts of the apparantus by which the Nation has attempted to
intercept millions of aliens who enter and remain illegally in this country.

92

The entire system, however, has been notably unsuccessful in deterring or

stemming this heavy flow; and its costs, including added burdens on the courts,
have been substantial. Perhaps the Judiciary should not strain to accommodate
the requirements of the Fourth Amendment to the needs of a system which at
best can demonstrate only minimal effectiveness as long as it is lawful for
business firms and others to employ aliens who are illegally in the country. This
problem, which ordinary law enforcement has not been able to solve, essentially
poses questions of national policy and is chiefly the business of Congress and
the Executive Branch rather than the courts.

93

I concur in the judgment in these two cases.

The syllabus consitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 287, 50 L.Ed. 499.
1

Such places typically include the trunk, under the hood, and beneath the
chassis. If the vehicle is a truck, a camper, or the like, the officer inspects the
enclosed portion as well. But an immigration inspection is not always so
confined. In Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37
L.Ed.2d 596 (1973), the officer removed the back seat cushion because there
were reports that aliens had been found seated upright behind seats from which
the springs had been removed. Id., at 286, 93 S.Ct., at 2546 (White, J.,
dissenting).

The degree of the invasion of privacy in an automobile search may vary with
the circumstances, as there are significant differences between 'an automobile
and a home or office.' Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975,
1979, 26 L.Ed.2d 419 (1970); Almeida-Sanchez v. United States, 413 U.S., at
279, 93 S.Ct., at 2542 (Powell, J., concurring).

Not every aspect of a routine automobile 'inspection,' as described in n. 1,

supra, necessarily constitutes a 'search' for purposes of the Fourth Amendment.
There is no occasion in this case to define the exact limits of an automobile
'search.'
Nor do we have occasion to decide whether a warrant could issue approving
checkpoint searches based on information about the area as a whole, in the
absence of cause to believe that a particular car is carrying concealed aliens,
because the officers had no such warrant in this case and had not tried to obtain
one. See Almeida-Sanchez v. United States, 413 U.S., at 275, 93 S.Ct., at 2540
(Powell, J., concurring); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct.
1727, 18 L.Ed.2d 930 (1967). We also need not decide whether checkpoints
and roving patrols must be treated the same for all purposes, or whether Border
Patrol officers may lawfully stop motorists for questioning at an established
checkpoint without reason to believe that a particular vehicle is carrying aliens.
Cf. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d
607. Nor do we suggest that probable cause would be required for all
inspections of private motor vehicles. It is quite possible, for example, that
different considerations would apply to routine safety inspections required as a
condition of road use.

The Court today recognizes that as many as 12 million illegal aliens are now
present in this country. United States v. Brignoni-Ponce, 422 U.S., at 878, and
n. 4, 95 S.Ct., at 2578 2579. See also U.S. News and World Report, July 22,

1974, p. 27; id., Dec. 9, 1974, p. 77. By all indications the problem will
increase in the future, not abate. United States v. Baca, 368 F.Supp. 398, 402
403 (SD Cal.1973). In the Baca case Judge Turrentine conducted a thorough
review of the entire problem and the present Government response. Appended
to this opinion is an excerpt from Judge Turrentine's Baca opinion describing
the illegal alien problem and the law enforcement response.
2

For example, testimony in the Baca hearings revealed that a complement of

21,000 officers would be needed to control adequately the 75 miles of border in
the El Centro sector alone.

The notation 'INS' when used herein has reference to the Immigration and
Naturalization Service.

Apparently apprehensions other than those actually made at the checkpoint are
included in these figures, but they are a representation of the total activity at
these checkpoints and the majority of apprehensions included therein are made
at the checkpoints (R.T. 274, 396).