No. 71-6278
Argued: Decided: June 21, 1973
- (a) The search cannot be justified on the basis of any special rules applicable to automobile searches, as probable cause was lacking; nor can it be justified by analogy with administrative inspections, as the officers had no warrant or reason to believe that petitioner had crossed the border or committed an offense, and there was no consent by petitioner. Pp. 269-272.
- (b) The search was not a border search or the functional equivalent thereof. Pp. 272-275.
452 F.2d 459, reversed.
STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 275. WHITE, J., filed a dissenting opinion, in which BURGER, C. J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 285. [413 U.S. 266, 267]
James A. Chanoux, and John J. Cleary by appointment of the Court, 411 U.S. 903 , argued the cause for petitioner. Mr. Chanoux was on the brief.
Deputy Solicitor General Lacovara argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, Mark L. Evans, Beatrice Rosenberg, and Roger A. Pauley. *
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner in this case, a Mexican citizen holding a valid United States work permit, was convicted of having knowingly received, concealed, and facilitated the transportation of a large quantity of illegally imported marihuana in violation of 21 U.S.C. 176a (1964 ed.). His sole contention on appeal was that the search of his automobile that uncovered the marihuana was unconstitutional under the Fourth Amendment and that, under the rule of Weeks v. United States, 232 U.S. 383 , the marihuana should not have been admitted as evidence against him.
The basic facts in the case are neither complicated nor disputed. The petitioner was stopped by the United States Border Patrol on State Highway 78 in California, and his car was thoroughly searched. The road is essentially an east-west highway that runs for part of its course through an undeveloped region. At about the point where the petitioner was stopped the road meanders north as well as east – but nowhere does the road reach the Mexican border, and at all points it lies north of U.S. 80, a major east-west highway entirely within the [413 U.S. 266, 268] United States that connects the Southwest with the west coast. The petitioner was some 25 air miles north of the border when he was stopped. It is undenied that the Border Patrol had no search warrant, and that there was no probable cause of any kind for the stop or the subsequent search – not even the “reasonable suspicion” found sufficient for a street detention and weapons search in Terry v. Ohio, 392 U.S. 1 , and Adams v. Williams, 407 U.S. 143 .
The Border Patrol conducts three types of surveillance along inland roadways, all in the asserted interest of detecting the illegal importation of aliens. Permanent checkpoints are maintained at certain nodal intersections; temporary checkpoints are established from time to time at various places; and finally, there are roving patrols such as the one that stopped and searched the petitioner’s car. In all of these operations, it is argued, the agents are acting within the Constitution when they stop and search automobiles without a warrant, without probable cause to believe the cars contain aliens, and even without probable cause to believe the cars have made a border crossing. The only asserted justification for this extravagant license to search is 287 (a) (3) of the Immigration and Nationality Act, 66 Stat. 233, 8 U.S.C. 1357 (a) (3), which simply provides for warrantless searches of automobiles and other conveyances “within a reasonable distance from any external boundary of the United States,” as authorized by regulations to be promulgated by the Attorney General. The Attorney General’s regulation, 8 CFR 287.1, defines “reasonable distance” as “within 100 air miles from any external boundary of the United States.”
The Court of Appeals for the Ninth Circuit recognized that the search of petitioner’s automobile was not a “border search,” but upheld its validity on the basis of [413 U.S. 266, 269] the above-mentioned portion of the Immigration and Nationality Act and the accompanying regulation. 452 F.2d 459, 461. We granted certiorari, 406 U.S. 944 , to consider the constitutionality of the search.
I
No claim is made, nor could one be, that the search of the petitioner’s car was constitutional under any previous decision of this Court involving the search of an automobile. It is settled, of course, that a stop and search of a moving automobile can be made without a warrant. That narrow exception to the warrant requirement was first established in Carroll v. United States, 267 U.S. 132 . The Court in Carroll approved a portion of the Volstead Act providing for warrantless searches of automobiles when there was probable cause to believe they contained illegal alcoholic beverages. The Court recognized that a moving automobile on the open road presents a situation “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Id., at 153. Carroll has been followed in a line of subsequent cases, 1 but the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search. 2 As MR. JUSTICE WHITE wrote for the Court in Chambers v. Maroney, [413 U.S. 266, 270] 399 U.S. 42, 51 : “In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.”
In seeking a rationale for the validity of the search in this case, the Government thus understandably sidesteps the automobile search cases. Instead, the Government relies heavily on cases dealing with administrative inspections. But these cases fail to support the constitutionality of this search.
In Camara v. Municipal Court, 387 U.S. 523 , the Court held that administrative inspections to enforce community health and welfare regulations could be made on less than probable cause to believe that particular dwellings were the sites of particular violations. Id., at 534-536, 538. Yet the Court insisted that the inspector obtain either consent or a warrant supported by particular physical and demographic characteristics of the areas to be searched. Ibid. See also See v. City of Seattle, 387 U.S. 541 . The search in the present case was conducted in the unfettered discretion of the members of the Border Patrol, who did not have a warrant, 3 probable cause, or consent. The search thus embodied precisely the evil the Court saw in Camara when it insisted that the “discretion of the official in the field” be circumscribed by obtaining a warrant prior to the inspection. Camara, supra, at 532-533.
Two other administrative inspection cases relied upon by the Government are equally inapposite. Colonnade Catering Corp. v. United States, 397 U.S. 72 , and United States v. Biswell, 406 U.S. 311 , both approved [413 U.S. 266, 271] warrantless inspections of commercial enterprises engaged in businesses closely regulated and licensed by the Government. In Colonnade, the Court stressed the long history of federal regulation and taxation of the manufacture and sale of liquor, 397 U.S., at 76 -77. In Biswell, the Court noted the pervasive system of regulation and reporting imposed on licensed gun dealers, 406 U.S., at 312 n. 1, 315-316.
A central difference between those cases and this one is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business. The businessman in a regulated industry in effect consents to the restrictions placed upon him. As the Court stated in Biswell:
- “It is also plain that inspections for compliance with the Gun Control Act pose only limited threats to the dealer’s justifiable expectations of privacy. When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection. Each licensee is annually furnished with a revised compilation of ordinances that describe his obligations and define the inspector’s authority. . . . The dealer is not left to wonder about the purposes of the inspector or the limits of his task.” Id., at 316.
Moreover, in Colonnade and Biswell, the searching officers knew with certainty that the premises searched were in fact utilized for the sale of liquor or guns. In the present case, by contrast, there was no such assurance that the individual searched was within the proper scope of official scrutiny – that is, there was no reason [413 U.S. 266, 272] whatever to believe that he or his automobile had even crossed the border, much less that he was guilty of the commission of an offense.
II
Since neither this Court’s automobile search decisions nor its administrative inspection decisions provide any support for the constitutionality of the stop and search in the present case, we are left simply with the statute that purports to authorize automobiles to be stopped and searched, without a warrant and “within a reasonable distance from any external boundary of the United States.” It is clear, of course, that no Act of Congress can authorize a violation of the Constitution. But under familiar principles of constitutional adjudication, our duty is to construe the statute, if possible, in a manner consistent with the Fourth Amendment. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (Brandeis, J., concurring).
It is undoubtedly within the power of the Federal Government to exclude aliens from the country. Chae Chan Ping v. United States, 130 U.S. 581, 603 -604. It is also without doubt that this power can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders. As the Court stated in Carroll v. United States: “Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.” 267 U.S., at 154 . See also Boyd v. United States, 116 U.S. 616 .
Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. For [413 U.S. 266, 273] example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search. 4
But the search of the petitioner’s automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border, 5 was of a wholly different sort. In the absence of probable cause or consent, that search violated the petitioner’s Fourth Amendment right to be free of “unreasonable searches and seizures.”
It is not enough to argue, as does the Government, that the problem of deterring unlawful entry by aliens across long expanses of national boundaries is a serious one. The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards. It [413 U.S. 266, 274] is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials:
- “These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” Brinegar v. United States, 338 U.S. 160, 180 (Jackson, J., dissenting).
The Court that decided Carroll v. United States, supra, sat during a period in our history when the Nation was confronted with a law enforcement problem of no small magnitude – the enforcement of the Prohibition laws. But that Court resisted the pressure of official expedience against the guarantee of the Fourth Amendment. Mr. Chief Justice Taft’s opinion for the Court distinguished between searches at the border and in the interior, and clearly controls the case at bar:
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- “It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without.
MR. JUSTICE POWELL, concurring.
While I join the opinion of the Court, which sufficiently establishes that none of our Fourth Amendment decisions supports the search conducted in this case, I add this concurring opinion to elaborate on my views as to the meaning of the Fourth Amendment in this context. We are confronted here with the all-too-familiar necessity of reconciling a legitimate need of government with constitutionally protected rights. There can be no question as to the seriousness and legitimacy of the law enforcement problem with respect to enforcing along thousands of miles of open border valid immigration and related laws. Nor can there be any question as to the necessity, in our free society, of safeguarding persons against searches and seizures proscribed by the Fourth Amendment. I believe that a resolution of the issue raised by this case is possible with due recognition of both of these interests, and in a manner compatible with the prior decisions of this Court. 1
I
The search here involved was carried out as part of a roving search of automobiles in an area generally proximate to the Mexican border. It was not a border search, [413 U.S. 266, 276] nor can it fairly be said to have been a search conducted at the “functional equivalent” of the border. Nor does this case involve the constitutional propriety of searches at permanent or temporary checkpoints removed from the border or its functional equivalent. Nor, finally, was the search based on cause in the ordinary sense of specific knowledge concerning an automobile or its passengers. 2 The question posed, rather, is whether and under what circumstances the Border Patrol may lawfully conduct roving searches of automobiles in areas not far removed from the border for the purpose of apprehending aliens illegally entering or in the country.
The Government has made a convincing showing that large numbers of aliens cross our borders illegally at places other than established crossing points, that they are often assisted by smugglers, that even those who cross on foot are met and transported to their destinations by automobiles, and that roving checks of automobiles are the only feasible means of apprehending them. It would, of course, be wholly impracticable to maintain a constant patrol along thousands of miles of border. Moreover, because many of these aliens cross the border on foot, or at places other than established checkpoints, it is simply not possible in most cases for the Government to obtain specific knowledge that a person riding or stowed in an automobile is an alien illegally in the country. [413 U.S. 266, 277] Thus the magnitude of the problem is clear. An answer, reconciling the obvious needs of law enforcement with relevant constitutional rights, is far less clear.
II
The Government’s argument to sustain the search here is simply that it was reasonable under the circumstances. But it is by now axiomatic that the Fourth Amendment’s proscription of “unreasonable searches and seizures” is to be read in conjunction with its command that “no Warrants shall issue, but upon probable cause.” Under our cases, both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, though in certain limited circumstances neither is required.
Before deciding whether a warrant is required, I will first address the threshold question of whether some functional equivalent of probable cause may exist for the type of search conducted in this case. The problem of ascertaining the meaning of the probable-cause requirement in the context of roving searches of the sort conducted here is measurably assisted by the Court’s opinion in Camara v. Municipal Court, 387 U.S. 523 (1967), on which the Government relies heavily. The Court was there concerned with the nature of the probable-cause requirement in the context of searches to identify housing code violations and was persuaded that the only workable method of enforcement was periodic inspection of all structures:
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- “It is here that the probable cause debate is focused, for the agency’s decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building.” Id., at 536.
In concluding that such general knowledge met the probable-cause requirement under those circumstances, the Court took note of a “long history of judicial and public acceptance,” of the absence of other methods for vindicating the public interest in preventing or abating dangerous conditions, and of the limited invasion of privacy occasioned by administrative inspections which are “neither personal in nature nor aimed at the discovery of evidence of crime.” Id., at 537.
Roving automobile searches in border regions for aliens, likewise, have been consistently approved by the judiciary. While the question is one of first impression in this Court, such searches uniformly have been sustained by the courts of appeals whose jurisdictions include those areas of the border between Mexico and the United States where the problem has been most severe. See, e. g., United States v. Miranda, 426 F.2d 283 (CA9 1970); Roa-Rodriquez v. United States, 410 F.2d 1206 (CA10 1969). Moreover, as noted above, no alternative solution is reasonably possible.
The Government further argues that such searches resemble those conducted in Camara in that they are undertaken primarily for administrative rather than prosecutorial purposes, that their function is simply to locate those who are illegally here and to deport them. Brief for the United States 28 n. 25. This argument is supported by the assertion that only 3% of aliens apprehended in this country are prosecuted. While the low rate of prosecution offers no great solace to the innocent whose automobiles are searched or to the few who are prosecuted, it does serve to differentiate this class of searches from random area searches which are no more than “fishing expeditions” for evidence to support prosecutions. The possibility of prosecution does not distinguish such searches from those involved in Camara. Despite the Court’s assertion in that case that the searches [413 U.S. 266, 279] were not “aimed at the discovery of evidence of crime,” 387 U.S., at 537 , violators of the housing code there were subject to criminal penalties. Id., at 527 n. 2.
Of perhaps greater weight is the fact that these searches, according to the Government, are conducted in areas where the concentration of illegally present aliens is high, both in absolute terms and in proportion to the number of persons legally present. While these searches are not border searches in the conventional sense, they are incidental to the protection of the border and draw a large measure of justification from the Government’s extraordinary responsibilities and powers with respect to the border. Finally, and significantly, these are searches of automobiles rather than searches of persons or buildings. The search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one’s person or of a building. This Court “has long distinguished between an automobile and a home or office.” Chambers v. Maroney, 399 U.S. 42, 48 (1970). As the Government has demonstrated, and as those in the affected areas surely know, it is the automobile which in most cases makes effective the attempts to smuggle aliens into this country.
The conjunction of these factors – consistent judicial approval, absence of a reasonable alternative for the solution of a serious problem, and only a modest intrusion on those whose automobiles are searched – persuades me that under appropriate limiting circumstances there may exist a constitutionally adequate equivalent of probable cause to conduct roving vehicular searches in border areas.
III
The conclusion that there may be probable cause to conduct roving searches does not end the inquiry, for “except in certain carefully defined classes of cases, a search of private property without proper consent is [413 U.S. 266, 280] `unreasonable’ unless it has been authorized by a valid search warrant.” Camara v. Municipal Court, supra, at 528-529. I expressed the view last Term that the warrant clause reflects an important policy determination: “The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility is to enforce the laws, to investigate, and to prosecute. . . . But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.” United States v. United States District Court, 407 U.S. 297, 317 (1972). See also Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971); Chimel v. California, 395 U.S. 752, 763 -764 (1969).
To justify warrantless searches in circumstances like those presented in this case, the Government relies upon several of this Court’s decisions recognizing exceptions to the warrant requirement. A brief review of the nature of each of these major exceptions illuminates the relevant considerations in the present case. In Terry v. Ohio, 392 U.S. 1 (1968), the Court held that a policeman may conduct a limited “pat down” search for weapons when he has reasonable grounds for believing that criminal conduct has taken or is taking place and that the person he searches is armed and dangerous. “The sole justification [for such a] search . . . is the protection of the police officer and others nearby . . . .” Id., at 29. Nothing in Terry supports an exception to the warrant requirement here.
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), and United States v. Biswell, 406 U.S. 311 (1972), on which the Government also relies, both concerned the standards which govern inspections of the business premises of those with federal licenses to engage in the sale of liquor, Colonnade, or the sale of guns, [413 U.S. 266, 281] Biswell. In those cases, Congress was held to have power to authorize warrantless searches. As the Court stated in Biswell:
- “When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection.” 406 U.S., at 316 .
Colonnade and Biswell cannot fairly be read to cover cases of the present type. One who merely travels in regions near the borders of the country can hardly be thought to have submitted to inspections in exchange for a special perquisite.
More closely in point on their facts are the cases involving automobile searches. E. g., Carroll v. United States, 267 U.S. 132 (1925); Chambers v. Maroney, supra; Coolidge v. New Hampshire, supra. But while those cases allow automobiles to be searched without a warrant in certain circumstances, the principal rationale for this exception to the warrant clause is that under those circumstances “it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, supra, at 153. The Court today correctly points out that a warrantless search under the Carroll line of cases must be supported by probable cause in the sense of specific knowledge about a particular automobile. While, as indicated above, my view is that on appropriate facts the Government can satisfy the probable cause requirement for a roving search in a border area without possessing information about particular automobiles, it does not follow that the warrant requirement is inapposite. The very fact that the Government’s supporting information relates to criminal activity in certain areas rather than [413 U.S. 266, 282] to evidence about a particular automobile renders irrelevant the justification for warrantless searches relied upon in Carroll and its progeny. Quite simply, the roving searches are justified by experience with obviously nonmobile sections of a particular road or area embracing several roads.
None of the foregoing exceptions to the warrant requirement, then, applies to roving automobile searches in border areas. Moreover, the propriety of the warrant procedure here is affirmatively established by Camara. See also See v. City of Seattle, 387 U.S. 541 (1967). For the reasons outlined above, the Court there ruled that probable cause could be shown for an area search, but nonetheless required that a warrant be obtained for unconsented searches. The Court indicated its general approach to exceptions to the warrant requirement:
- “In assessing whether the public interest demands creation of a general exception to the Fourth Amendment’s warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” Camara v. Municipal Court, supra, at 533.
See also United States v. United States District Court, supra, at 315.
The Government argues that Camara and See are distinguishable from the present case for the purposes of the warrant requirement. It is true that while a building inspector who is refused admission to a building may easily obtain a warrant to search that building, a member of the Border Patrol has no such opportunity when [413 U.S. 266, 283] he is refused permission to inspect an automobile. It is also true that the judicial function envisioned in Camara did not extend to reconsideration of “the basic agency decision to canvass an area,” Camara v. Municipal Court, supra, at 532, while the judicial function here would necessarily include passing on just such a basic decision.
But it does not follow from these distinctions that “no warrant system can be constructed that would be feasible and meaningful.” Brief for the United States 36. Nothing in the papers before us demonstrates that it would not be feasible for the Border Patrol to obtain advance judicial approval of the decision to conduct roving searches on a particular road or roads for a reasonable period of time. 3 According to the Government, the incidence of illegal transportation of aliens on certain roads is predictable, and the roving searches are apparently planned in advance or carried out according to a predetermined schedule. The use of an area warrant procedure would surely not “frustrate the governmental purpose behind the search.” Camara v. Municipal Court, supra, at 533. It would of course entail some inconvenience, but inconvenience alone has never been thought to be an adequate reason for abrogating the warrant requirement. E. g., United States v. United States District Court, supra, at 321.
Although standards for probable cause in the context of this case are relatively unstructured (cf. id., at 322), there are a number of relevant factors which would merit consideration: they include (i) the frequency with which aliens illegally in the country are known or reasonably believed to be transported within a particular area; [413 U.S. 266, 284] (ii) the proximity of the area in question to the border; (iii) the extensiveness and geographic characteristics of the area, including the roads therein and the extent of their use, 4 and (iv) the probable degree of interference with the rights of innocent persons, taking into account the scope of the proposed search, its duration, and the concentration of illegal alien traffic in relation to the general traffic of the road or area.
In short, the determination of whether a warrant should be issued for an area search involves a balancing of the legitimate interests of law enforcement with protected Fourth Amendment rights. This presents the type of delicate question of constitutional judgment which ought to be resolved by the Judiciary rather than the Executive. In the words of Camara,
- “This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search.” 387 U.S., at 532 -533.
Nor does the novelty of the problem posed by roving searches in border areas undermine the importance of a prior judicial determination. When faced with a similarly unconventional problem last Term in United States District Court, supra, we recognized that the focus of the search there involved was “less precise than that directed against more conventional types of crime,” and that “[d]ifferent standards may be compatible with the Fourth Amendment if they are reasonable both in relation [413 U.S. 266, 285] to the legitimate need of Government . . . and the protected rights of our citizens.” 407 U.S., at 322 -323. Yet we refused to abandon the Fourth Amendment commitment to the use of search warrants whenever this is feasible with due regard to the interests affected.
For the reasons stated above, I think a rational search warrant procedure is feasible in cases of this kind. As no warrant was obtained here, I agree that the judgment must be reversed. I express no opinion as to whether there was probable cause to issue a warrant on the facts of this particular case.
