United States v. Martinez-Fuerte

MR. Justice Brennan, with whom Mr. Justice Marshall joins,

dissenting.

Today's decision is the ninth this Term marking the continuing evisceration of Fourth Amendment protections against unreasonable searches and seizures. Early in the Term, Texas v. White, 423 U. S. 67 (1975), permitted the warrantless search of an automobile in police custody despite the unreasonableness of the custody *568and opportunity to obtain a warrant. United States v. Watson, 423 U. S. 411 (1976), held that regardless of whether opportunity exists to obtain a warrant, an arrest in a public place for a previously committed felony never requires a warrant, a result certainly not fairly supported by either history or precedent. See id., at 433 (Marshall, J., dissenting). United States v. Santana, 427 U. S. 38 (1976), went further and approved the warrantless arrest for a felony of a person standing on the front porch of her residence. United States v. Miller, 425 U. S. 435 (1976), narrowed the Fourth Amendment’s protection of privacy by denying the existence of a protectible interest in the compilation of checks, deposit slips, and other records pertaining to an individual’s bank account. Stone v. Powell, ante, p. 465, precluded the assertion of Fourth Amendment claims in federal collateral relief proceedings. United States v. Janis, ante, p. 433, held that evidence unconstitutionally seized by a state officer is admissible in a civil proceeding by or against the United States. South Dakota v. Opperman, ante, p. 364, approved sweeping inventory searches of automobiles in police custody irrespective of the particular circumstances of the case. Finally, in Andresen v. Maryland, 427 U. S. 463 (1976), the Court, in practical effect, weakened the Fourth Amendment prohibition against general warrants.

Consistent with this purpose to debilitate Fourth Amendment protections, the Court’s decision today virtually empties the Amendment of its reasonableness requirement by holding that law enforcement officials manning fixed checkpoint stations who make standard-less seizures of persons do not violate the Amendment. This holding cannot be squared with this Court’s recent decisions in United States v. Ortiz, 422 U. S. 891 (1975); United States v. Brignoni-Ponce, 422 U. S. 873 (1975); *569and Almeida-Sanchez v. United States, 413 U. S. 266 (1973). I dissent.

While the requisite justification for permitting a search or seizure may vary in certain contexts, compare Beck v. Ohio, 379 U. S. 89 (1964), with Terry v. Ohio, 392 U. S. 1 (1968), and Camara v. Municipal Court, 387 U. S. 523 (1967), even in the exceptional situations permitting intrusions on less than probable cause, it has long been settled that justification must be measured by objective standards. Thus in the seminal decision justifying intrusions on less-than-probable cause, Terry v. Ohio, supra, the Court said:

"The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard .... Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.” 392 U. S., at 21-22 (emphasis added, footnote omitted).
“This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” 392 U. S., at 21 n. 18.

Terry thus made clear what common sense teaches: Conduct, to be reasonable, must pass muster under objective standards applied to specific facts.

We are told today, however, that motorists without number may be individually stopped, questioned, visu*570ally inspected, and then further detained without even a showing of articulable suspicion, see ante, at 547, let alone the heretofore constitutional minimum of reasonable suspicion, a result that permits search and seizure to rest upon “nothing more substantial than inarticulate hunches.” This defacement of Fourth Amendment protections is arrived at by a balancing process that overwhelms the individual’s protection against unwarranted official intrusion by a governmental interest said to justify the search and seizure. But that method is only a convenient cover for condoning arbitrary official conduct, for the governmental interests relied on as warranting intrusion here are the same as those in Almeida-Sanchez and Ortiz, which required a showing of probable cause for roving-patrol and fixed checkpoint searches, and Brignoni-Ponce, which required at least a showing of reasonable suspicion based on specific articulable facts to justify roving-patrol stops. Absent some difference in the nature of the intrusion, the same minimal requirement should be imposed for checkpoint stops.

The Court assumes, and I certainly agree, that persons stopped at fixed checkpoints, whether or not referred to a secondary detention area, are “seized” within the meaning of the Fourth Amendment. Moreover, since the vehicle and its occupants are subjected to a “visual inspection,” the intrusion clearly exceeds mere physical restraint, for officers are able to see more in a stopped vehicle than in vehicles traveling at normal speeds down the highway. As the Court concedes, ante, at 558, the checkpoint stop involves essentially the same intrusions as a roving-patrol stop, yet the Court provides no principled basis for distinguishing checkpoint stops.

Certainly that basis is not provided in the Court’s reasoning that the subjective intrusion here is appreciably less than in the case of a stop by a roving patrol. *571Brignoni-Ponce nowhere bases the requirement of reasonable suspicion upon the subjective nature of the intrusion. In any event, the subjective aspects of checkpoint stops, even if different from the subjective aspects of roving-patrol stops, just as much require some principled restraint on law enforcement conduct. The motorist whose conduct has been nothing but innocent— and this is overwhelmingly the case — surely resents his own detention and inspection. And checkpoints, unlike roving stops, detain thousands of motorists, a dragnet-like procedure offensive to the sensibilities of free citizens. Also, the delay occasioned by stopping hundreds of vehicles on a busy highway is particularly irritating.

In addition to overlooking these dimensions of subjective intrusion, the Court, without explanation, also ignores one major source of vexation. In abandoning any requirement of a minimum of reasonable suspicion, or even articulable suspicion, the Court in every practical sense renders meaningless, as applied to checkpoint stops, the Brignoni-Ponce holding that “standing alone [Mexican appearance] does not justify stopping all Mexican-Americans to ask if they are aliens.” 1 422 *572U. S., at 887. Since the objective is almost entirely the Mexican illegally in the country, checkpoint officials, uninhibited by any objective standards and therefore free to stop any or all motorists without explanation or excuse, wholly on whim, will perforce target motorists of Mexican appearance. The process will then inescapably discriminate against citizens of Mexican ancestry and Mexican aliens lawfully in this country for no other reason than that they unavoidably possess the same “suspicious” physical and grooming characteristics of illegal Mexican aliens.

Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today’s decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists. To be singled out for referral and to be detained and interrogated must be upsetting to any motorist. One wonders what actual experience supports my Brethren’s conclusion that referrals “should not be frightening or offensive because of their public and relatively routine nature.” Ante, at 560.2 In point of fact, refer*573rals, viewed in context, are not relatively routine; thousands are otherwise permitted to pass. But for the arbitrarily selected motorists who must suffer the delay and humiliation of detention and interrogation, the experience can obviously be upsetting.3 And that experience is particularly vexing for the motorist of Mexican ancestry who is selectively referred, knowing that the officers’ target is the Mexican alien. That deep resentment will be stirred by a sense of unfair discrimination is not difficult to foresee.4

*574In short, if a balancing process is required, the balance should be struck, as in Brignoni-Ponce, to require that Border Patrol officers act upon at least reasonable suspicion in making checkpoint stops. In any event, even if a different balance were struck, the Court cannot, without ignoring the Fourth Amendment requirement of reasonableness, justify wholly unguided seizures by officials manning the checkpoints. The Court argues, however, that practicalities necessitate otherwise: “A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens.” Ante, at 557.

As an initial matter, whatever force this argument may have, it cannot apply to the secondary detentions that occurred in No. 74-1560. Once a vehicle has been slowed and observed at a checkpoint, ample opportunity *575exists to formulate the reasonable suspicion which, if it actually exists, would, justify further detention. Indeed, though permitting roving stops based on reasonable suspicion, Brignoni-Ponce required that “any further detention or search must be based on [the greater showing of] consent or probable cause.” 422 U. S., at 882. The Court today, however, does not impose a requirement of even reasonable suspicion for these secondary stops.

The Court’s rationale is also not persuasive because several of the factors upon which officers may rely in establishing reasonable suspicion are readily ascertainable, regardless of the flow of traffic. For example, with checkpoint stops as with roving-patrol stops, “[a]spects of the vehicle itself may justify suspicion.” Id., at 885. Thus it is relevant that the vehicle is a certain type of station wagon, appears to be heavily loaded, contains an extraordinary number of persons, or contains persons trying to hide. See ibid. If such factors are satisfactory to permit the imposition of a reasonable-suspicion requirement in the more demanding circumstances of a roving patrol, where officers initially deal with a vehicle traveling, not at a crawl, but at highway speeds, they clearly should suffice in the circumstances of a checkpoint stop.

Finally, the Court’s argument fails for more basic reasons. There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied. Dispensing with reasonable suspicion as a prerequisite to stopping and inspecting motorists because the inconvenience of such a requirement would make it impossible to identify a given car as a possible carrier of aliens is no more justifiable than dispensing with probable cause as prerequisite to the search of an individual because the inconvenience of *576such a requirement would make it impossible to identify a given person in a high-crime area as a possible carrier of concealed weapons. “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.” Almeida-Sanchez v. United States, 413 U. S., at 273.

The Court also attempts to justify its approval of standardless conduct on the ground that checkpoint stops “involve less discretionary enforcement activity” than roving stops. Ante, at 559. This view is at odds with its later more revealing statement that “officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.” Ante, at 564. Similarly unpersuasive is the statement that “since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops.” Ante, at 559.5 The Fourth Amendment stand*577ard of reasonableness admits of neither intrusion at the discretion of law enforcement personnel nor abusive or harassing stops, however infrequent. Action based merely on whatever may pique the curiosity of a particular officer is the antithesis of the objective standards requisite to reasonable conduct and to avoiding abuse and harassment. Such action, which the Court now permits, has expressly been condemned as contrary to basic Fourth Amendment principles. Certainly today's holding is far removed from the proposition emphatically affirmed in United States v. United States District Court, 407 U. S. 297, 317 (1972), that “those charged with . . . investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy . . . Indeed, it is far removed from the even more recent affirmation that “the central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials.” United States v. Ortiz, 422 U. S., at 895.6

*578The cornerstone of this society, indeed of any free society, is orderly procedure. The Constitution, as originally adopted, was therefore, in great measure, a procedural document. For the same reasons the drafters of the Bill of Rights largely placed their faith in procedural limitations on government action. The Fourth Amendment’s requirement that searches and seizures be reasonable enforces this fundamental understanding in erecting its buffer against the arbitrary treatment of citizens by government. But to permit, as the Court does today, police discretion to supplant the objectivity of reason and, thereby, expediency to reign in the place of order, is to undermine Fourth Amendment safeguards and threaten erosion of the cornerstone of our system of a government, for, as Mr. Justice Frankfurter reminded us, “[t]he history of American freedom is, in no small measure, the history of procedure.” Malinski v. New York, 324 U. S. 401, 414 (1945).

Brignoni-Ponce, which involved roving-patrol stops, said:

“[Mexican ancestry] alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens. The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Amerieans to ask if they are aliens.” 422 U. S., at 886-887 (footnote omitted).

Today we are told that secondary referrals may be based on criteria that would not sustain a roving-patrol stop, and specifically that such referrals may be based largely on Mexican ancestry. Ante, at 563. Even if the difference between Brignoni-Ponce and *572this decision is only a matter of degree, we are not told what justifies the different treatment of Mexican appearance or why greater emphasis is permitted in the less demanding circumstances of a checkpoint. That law in this country should tolerate use of one’s ancestry as probative of possible criminal conduct is repugnant under any circumstances.

The Court’s view that “selective referrals — rather than questioning the occupants of every car — tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public,” ante, at 560, stands the Fourth Amendment on its head. The starting point of this view is the unannounced assumption that intrusions are generally permissible; hence, any minimization of intrusions serves Fourth Amendment interests. Under the Fourth Amendment, however, the status quo is nonintrusion, for as *573a general matter, it is unreasonable to subject the average citizen or his property to search or seizure. Thus, minimization of intrusion only lessens the aggravation to Fourth Amendment interests; it certainly does not further those interests.

United States v. Ortiz, 422 U. S. 891 (1975), expressly recognized that such selectivity is a source of embarrassment: “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 others cars as well.” Id., at 895.

Though today’s decision would clearly permit detentions to be based solely on Mexican ancestry, the Court takes comfort in what appears to be the Border Patrol practice of not relying on Mexican ancestry standing alone in referring motorists for secondary detentions. Ante, at 563 n. 16. See also ante, at 566-567, n. 19. Good faith on the part of law enforcement officials, however, has never sufficed in this tribunal to substitute as a safeguard for personal freedoms or to remit our duty to effectuate constitutional guarantees. Indeed, with particular regard to the Fourth Amendment, Terry v. Ohio, 392 U. S. 1, 22 (1968), held that “simple ‘ “good faith on the part of the arresting officer is not enough.” ... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.’ Beck v. Ohio, [379 U. S. 89,] 97 [1964].”

Even if good faith is assumed, the affront to the dignity of American citizens of Mexican ancestry and Mexican aliens lawfully within the country is in no way diminished. The fact still remains that people of Mexican ancestry are targeted for examination at *574checkpoints and that the burden of checkpoint intrusions will lie heaviest on them. That, as the Court observes, ante, at 563 n. 16, “[l]ess than 1% of the motorists passing the checkpoint are stopped for questioning/' whereas approximately 16% of the population of California is Spanish-speaking or of Spanish surname, has little bearing on this point — or, for that matter, on the integrity of Border Patrol practices. There is no indication how many of the 16% have physical and grooming characteristics identifiable as Mexican. There is no indication what portion of the motoring public in California is of Spanish or Mexican ancestry. Given the socioeconomic status of this portion, it is likely that the figure is significantly less than 16%. Neither is there any indication that those of Mexican ancestry are not subjected to lengthier initial stops than others, even if they are not secondarily detained. Finally, there is no indication of the ancestral makeup of the 1% who are referred for secondary detention. If, as is quite likely the case, it is overwhelmingly Mexican, the sense of discrimination which will be felt is only enhanced.

As an empirical proposition, this observation is hardly self-evident. No smaE number of vehicles pass through a checkpoint. Indeed, better than 1,000 pass through the San Clemente checkpoint during each hour of operation. Ante, at 554. Thus there is clearly abundant opportunity for abuse and harassment at checkpoints through lengthier detention and questioning of some individuals or arbitrary secondary detentions. Such practices need not be confined to those of Mexican ancestry. And given that it is easier to deal with a vehicle which has already been slowed than it is to observe and then chase and apprehend a vehicle travelling at highway speeds, if anything, there is more, not less, room for abuse or harassment at checkpoints. Indeed, in Ortiz, the Court was “not persuaded that the checkpoint limits to any meaningful extent the officer’s discretion to select cars for search.” 422 U. S., at 895. A fortiori, discretion can be no more limited simply because the activity is detention or questioning rather than searching.

Camara v. Municipal Court, 387 U. S. 523 (1967), does not support the Court’s result. Contrary to the Court’s characterization, ante, at 561, the searches condoned there were not “routine intrusions.” The Court required that administrative searches proceed according to reasonable standards satisfied with respect to each particular dwelling searched. 387 U. S., at 538. The search of any dwelling at the whim of administrative personnel was not permitted. The Court, however, imposes no such standards today. Instead, any vehicle and its passengers are subject to detention at a fixed checkpoint, and “no particularized reason need exist to justify” the detention. Ante, at 563. To paraphrase an apposite observation by the Court in Almeida-Sanches v. United States, 413 U. S. 266, 270 (1973), “[checkpoints] thus embodied precisely the *578evil the Court saw in Camara when it insisted that the ‘discretion of the official in the field’ be circumscribed . . . .”