Circuit Judge (dissenting):
Judge Duniway correctly states the limited issues presented by the above appeals, viz. — (1) the legality of the stop and diversion of the vehicles to the secondary inspection area, and (2) the legality of the interrogation of the occupants. In Guillen, the two defendants were riding in the front seat. Four aliens were found by a search of the trunk. Interro*323gation of these four aliens showed their illegal status and that one of the defendants, Medrano-Barragan, was also an illegal alien. Our record does not disclose whether the search of the trunk was based on consent or on probable cause because of the presence of an illegal alien in the front seat or on Section 3 of the warrant: “To conduct routine inspection of the vehicles for the presence of aliens.”
In Martinez-Fuerte and Jiminez-Gar-cia, there was only the stop, diversion and interrogation.
Judge Duniway, as shown by notes 1 and 3, does not reach the question of the search in Guillen. I would, as discussed infra, uphold the stop, diversion and interrogation in all three cases but remand Guillen for findings as to the basis of the search, i. e., whether consent, probable cause or the terms of the warrant, and whether the testimony of the aliens found in the trunk was admissible.
The most interesting aspect of the majority opinion is its references to Justice Powell’s concurrence in Almeida-San-chez. The opinion reads as if Justice Powell stood alone in his views as to the validity of an area warrant. Whether or not Justice Powell was correct in his views is one question, but a breakdown of the votes in Almeida-Sanchez indicates that his views were supported by a majority of the Court. We concede that Justice Powell’s concurrence did not involve fixed checkpoints.
In his dissent in Almeida-Sanchez, Justice White (joined by the Chief Justice, Justice Blackmun and Justice Rehnquist) stated:
“. . . Justice Powell, would uphold searches by roving patrols if authorized by an area warrant issued on less than probable cause in the traditional sense. I agree with Mr. Justice Powell that such a warrant so issued would satisfy the Fourth Amendment . . . ” 413 U.S. at 288, 93 S.Ct. at 2547. (Emphasis added).
Thus five Justices are on record in support of the validity of area search warrants executed by roving patrols.
Justice Stewart stated: “The Justices who join this opinion [Douglas, Brennan, Marshall and Powell] are divided upon the question of the constitutionality of area search warrants such as described in Mr. Justice Powell’s concurring opinion.” Id. at 270 n. 3, 93 S.Ct. at 2538. I speculate that had only Justice Powell been of the view expressed, the footnote would have been unnecessary.
I conclude that Justice Powell’s concurrence in Almeida-Sanchez, when read together with Justice White’s dissent, supports the legality of the stop, limited visual inspection, and occasional interrogation of motorists at a fixed checkpoint, pursuant to a warrant issued by a “neutral and detached magistrate” involved in these cases.
The four dissenters in Almeida-San-chez would have upheld a warrantless search by roving patrols on less than probable cause. Clearly, they would uphold a fixed checkpoint procedure pursuant to a “checkpoint” warrant. If Justice Powell would uphold the present warrant, the necessary majority would be created. Without repeating it here, I rely generally on the analysis of the issue by Justice Powell for my dissent. I comment briefly.
Justice Powell recognized the need for traffic checking operations removed from the physical boundary line, and that stops and searches on less than probable cause could be constitutionally conducted:
“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.” Id. at 279, 93 S.Ct. at 2542. (emphasis added).
The four factors suggested by Justice Powell as relevant to determining the validity of warrants such as the one in*324volved in the present cases are noted at p. 16 of the majority’s opinion.
Although 68 miles from the border would seem to be too far to qualify under Justice Powell’s second factor, a number of considerations demonstrate that the San Clemente checkpoint is in fact reasonable. First, in requiring proximity to the border, Justice Powell was referring to roving patrols in a rural, unlighted area. If people could be stopped at any time by roving patrol cars, without any notice, then clearly the area in which such stops could occur should be limited to an area quite close to the border, where very few residences or travelers could be found. The same purpose is achieved, however, by a fixed checkpoint which limits the area of possible search to a small, permanent portion of a single road. The checkpoint is lighted. There is abundant notice, most cars need only slow down, there are no houses, etc. In other words the fixed San Clemente checkpoint is less intrusive than roving patrols in a relatively unpopulated area close to the border.
Secondly, Justice Powell referred to “roving vehicular searches.” (Emphasis supplied). No search is involved in two of our cases — only a stop and interrogation. In all three cases the interrogation revealed the alien status of either the driver or the passengers, or both. The majority in our case limits its holding to stops, diversion and interrogation. See notes 1 and 3.
Nor is the inconvenience or invasion of privacy (Justice Powell’s fourth relevant factor) unreasonable. With respect to the vast majority of motorists passing through the various checkpoints maintained by the Government, a visual inspection is performed without the necessity of more than a temporary slowdown of traffic. Baca, supra, 368 F.Supp. at 406-407.
The majority states that it “cannot countenance the cumulative intrusion of stopping ten million cars per year where only one out of every 1,000 passing cars may contain aliens illegally within the country.” I cannot accept this description of the procedures at the San Clem-ente checkpoint. As indicated supra, most cars are never even stopped. Rather, “[i]f 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.” Baca, supra, at 406 — 407. From the record in Baca, on the basis of which the present warrant was issued, it would be more reasonable to conclude that only the 820 cars directed to secondary were stopped during the nine-day warrant period instead of the 145,960 suggested by the majority.
The majority, in footnote 7, cites the case of United States v. Evans, 507 F.2d 879 (9 Cir. 1974) and states: “We have recently held that mere diversion of a moving automobile through a zone (a traffic checkpoint) where border patrol agents could see in plain view two aliens lying on the floor behind the front seat does not violate any constitutionally protected expectation of the right of privacy.”
Surely, if a diversion of a car through a checkpoint was not illegal, the slowing of cars at a checkpoint would also not be illegal.1
The majority makes much of the inconvenience to travelers who passed through checkpoints but were not diverted for interrogation or inspection. The slowing of the 145,410 cars during the nine-day period of the warrant in question was not unreasonable under constitutional provisions.
With respect to Justice Powell’s first relevant factor, the court below found, and the Government makes a strong factual showing, that illegal aliens are frequently transported to Los Angeles and *325farther north via Interstate 5. Amicus Curiae calculated that 319,000 illegal aliens pass through the checkpoint each year. Even though very few actual stops were made by the agents (only 820 of 145,960 vehicles during the nine days of the warrant), during 1973, 16,863 de-portable aliens were apprehended at the checkpoint and the number deterred is inestimable.
I question the majority’s statistics and percentages on this point. The opinion states at p. 8 that “border patrol statistics reveal that of the 145,960 vehicles passing through the checkpoint, only 171, or 0.12 percent, were found to contain deportable aliens.” Since all but 820 of the vehicles passed through without a “stop” or inquiry, however, aliens were found to be present in about 21 percent of the vehicles stopped (171 out of 820). Further, in only 202 of the 820 vehicles referred to “secondary” for questioning was there any interrogation or inspection. Of those 202 vehicles, 171 contained illegal aliens — in 169 (84 percent) the aliens were in plain view.
Thus, as the degree of intrusion and inconvenience increases, so also does the likelihood of discovering illegal aliens in plain view. And this represents merely the “tip of the iceberg.” In Baca, supra, the court found that:
“[wjhile 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.” 368 F.2d at 407.
In his Almeida-Sanchez concurrence, Justice Powell stated: “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.” 413 U.S. at 284, 93 S.Ct. at 2545. The warrant in these cases was very limited — a ten-day duration, single designated place on a highway, small percentage of vehicles stopped, and smaller yet investigated. The warrant was issued following careful scrutinization of the factual basis by a neutral and detached magistrate. These facts demonstrate the reasonableness of the warrant. The Fourth Amendment and Almeida-Sanchez require no more.
In Martinez-Fuerte, I would affirm the conviction. In Jiminez-Garcia, I would reverse the order granting the motion to suppress and remand for trial. In Guillen, I would uphold the stop and diversion, but remand for findings concerning the subsequent search.
I would at least remand to the district court for consideration of this issue, regardless of the validity of the warrant in question.
. At least two circuits have upheld stops at fixed checkpoints for the purpose of making routine inquiries as to the nationality of the occupants — even without a warrant. United States v. Hart, 506 F.2d 887, 16 Cr.L. 2382 (5 Cir. 1975) (“A permanent checkpoint does not have the constitutionally frightening aspect of a roving patrol”); United States v. Bowman, 487 F.2d 1229 (10 Cir. 1973).