Petitioner, a Mexican citizen and holder of a valid work permit,
challenges the constitutionality of the Border Patrol's warrantless
search of his automobile 25 air miles north of the Mexican border.
The search, made without probable cause or consent, uncovered
marihuana, which was used to convict petitioner of a federal crime.
The Government seeks to justify the search on the basis of §
287(a)(3) of the Immigration and Nationality Act, which 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 defines
"reasonable distance" as "within 100 air miles from any external
boundary of the United States." The Court of Appeals upheld the
search on the basis of the Act and regulation.
The warrantless search of petitioner's
automobile, made without probable cause or consent, violated the
Fourth Amendment. Pp. 413 U. S.
(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. 413 U. S.
(b) The search was not a border search or the functional
equivalent thereof. Pp. 413 U. S.
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. 413 U. S. 275
WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and
BLACKMUN and REHNQUIST, JJ., joined, post,
p. 413 U. S.
Page 413 U. S. 267
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.
, 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
Page 413 U. S. 268
United States that connects the Southwest with the west coast.
The petitioner was some 26 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
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
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
Page 413 U. S. 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
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
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."
at 267 U. S. 153
has been followed in a line of subsequent cases,
] but the
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. [Footnote 2
] As MR. JUSTICE WHITE wrote for the Court in
Page 413 U. S. 270
U.S. 42, 399 U. S.
"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 case fail to
support the constitutionality of this search.
In Camara v. Municipal Court, 387 U.
, 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.
387 U. S.
-536, 387 U. S. 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
search in the present case was conducted in the unfettered
discretion of the members of the Border Patrol, who did not have a
warrant, [Footnote 3
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,
387 U. S.
Two other administrative inspection cases relied upon by the
Government are equally inapposite. Colonnade Catering Corp. v.
United States, 397 U. S. 72
United States v. Biswell, 406 U.
, both approved
Page 413 U. S. 271
warrantless inspections of commercial enterprises engaged in
businesses closely regulated and licensed by the Government. In
the Court stressed the long history of federal
regulation and taxation of the manufacture and sale of liquor, 397
U.S. at 397 U. S. 76
the Court noted the pervasive system of
regulation and reporting imposed on licensed gun dealers, 406 U.S.
at 406 U. S. 312
n. 1, 406 U. S.
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."
at 406 U. S.
Moreover, in Colonnade
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
Page 413 U. S. 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
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
297 U. S. 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
130 U. S.
-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:
"Travelers 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
267 U.S. at 267 U. S. 154
See also Boyd v. United States, 116 U.
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
Page 413 U. S. 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. [Footnote
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, [Footnote 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
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
Page 413 U. S. 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
Brinegar v. United States, 338 U.
, 338 U. S. 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:
"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. Travelers 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 interruption or search unless
Page 413 U. S. 275
known to a competent official authorized to search, probable
cause for believing that their vehicles are carrying contraband or
267 U.S. at 267 U. S.
Accordingly, the judgment of the Court of Appeals is
E.g., Chambers v. Maroney, 399 U. S.
; Dyke v. Taylor Implement Mfg. Co.,
391 U. S. 216
Brinegar v. United States, 338 U.
; Husty v. United States, 282 U.
"[n]either Carroll, supra,
nor other cases in this
Court require or suggest that, in every conceivable circumstance,
the search of an auto, even with probable cause, may be made
without the extra protection for privacy that a warrant
Chambers v. Maroney, supra,
at 399 U. S. 50
See also Coolidge v. New Hampshire, 403 U.
, 403 U. S.
The Justices who join this opinion are divided upon the question
of the constitutionality of area search warrants such as described
in MR. JUSTICE POWELL's concurring opinion.
With respect to aircraft, 8 CFR § 281.1 defines "reasonable
distance" as "any distance fixed pursuant to paragraph (b) of this
section." Paragraph (b) authorizes the Commissioner of Immigration
and Naturalization to approve searches at a greater distance than
100 air miles from a border "because of unusual circumstances."
The Government represents that the highway on which this search
occurred is a common route for illegally entered aliens to travel,
and that roving patrols apprehended 195 aliens on that road in one
year. But it is, of course, quite possible that every one of those
aliens was apprehended as a result of a valid search made upon
probable cause. On the other hand, there is no telling how many
perfectly innocent drivers have been stopped on this road without
any probable cause, and been subjected to a search in the trunks,
under the hoods, and behind the rear seats of their
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. [Footnote 2/1
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,
Page 413 U. S. 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.
] 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.
Page 413 U. S. 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.
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.
(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:
"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."
at 387 U. S.
Page 413 U. S. 278
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
at 387 U. S.
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
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
Page 413 U. S. 279
were not "aimed at the discovery of evidence of crime," 387 U.S.
at 387 U. S. 537
violators of the housing code there were subject to criminal
387 U. S. 527
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
399 U. S. 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
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.
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
Page 413 U. S. 280
'unreasonable' unless it has been authorized by a valid search
Camara v. Municipal Court, supra,
at 387 U. S.
-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
United States v. United States District Court,
407 U. S. 297
407 U. S. 317
(1972). See also Coolidge v. New Hampshire, 403 U.
, 403 U. S. 481
(1971); Chimel v. California, 395 U.
, 395 U. S.
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
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 392 U. S. 29
Nothing in Terry
supports an exception to the warrant
Colonnade Catering Corp. v. United States, 397 U. S.
(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,
or the sale of guns,
Page 413 U. S. 281
In those cases, Congress was held to have
power to authorize warrantless searches. As the Court stated in
"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 406 U. S. 316
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,
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
"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 267 U. S. 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
Page 413 U. S. 282
to evidence about a particular automobile renders irrelevant the
justification for warrantless searches relied upon in
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
"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 387 U. S. 533
See also United States v. United States District Court,
at 407 U. S.
The Government argues that Camara
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
Page 413 U. S. 283
he is refused permission to inspect an automobile. It is also
true that the judicial function envisioned in Camara
not extend to reconsideration of "the basic agency decision to
canvass an area," Camara v. Municipal Court, supra,
387 U. S. 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. [Footnote 2/3
] 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 387 U. S. 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 407 U. S.
Although standards for probable cause in the context of this
case are relatively unstructured (cf. id.
at 407 U. S.
), 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;
Page 413 U. S. 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, [Footnote 2/4
] 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 387 U. S.
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,
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
Page 413 U. S. 285
to the legitimate need of Government . . . and the protected
rights of our citizens."
407 U.S. at 407 U. S.
-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.
I am in accord with the Court's conclusion that nothing in §
287(a)(3) of the Immigration and Nationality Act, 8 U.S.C. §
1357(a)(3), or in 8 CFR § 287.1 serves to authorize an otherwise
The Solicitor General's brief in this Court states explicitly
"We . . . do not take the position that the checking operations
are justified because the officers have probable cause or even
'reasonable suspicion' to believe, with respect to each vehicle
checked, that it contains an illegal alien. Apart from the
reasonableness of establishment of the checking operation in this
case, there is nothing in the record to indicate that the Border
Patrol officers had any special or particular reason to stop
petitioner and examine his car."
Brief for the United States 9-10.
There is no reason why a judicial officer could not approve
where appropriate a series of roving searches over the course of
several days or weeks. Experience with an initial search or series
of searches would be highly relevant in considering applications
for renewal of a warrant.
Depending upon the circumstance, there may be probable cause for
the search to be authorized only for a designated portion of a
particular road or such cause may exist for a designated area which
may contain one or more roads or tracks. Particularly along much of
the Mexican border, there are vast areas of uninhabited desert and
arid land which are traversed by few, if any, main roads or
highways, but which nevertheless may afford opportunities -- by
virtue of their isolated character -- for the smuggling of
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting.
Trial and conviction in this case were in the United States
District Court for the Southern District of California under an
indictment charging that petitioner, contrary to 21 U.S.C. § 176a
(1964 ed.), had knowingly received, concealed, and facilitated the
transportation of approximately 161 pounds of illegally imported
marihuana. He was sentenced to five years' imprisonment. He
appealed on the sole ground that the District Court had erroneously
denied his motion to suppress marihuana allegedly seized from his
automobile in violation of the Fourth Amendment.
The motion to suppress was heard on stipulated evidence in the
District Court. [Footnote 3/1
United States Border Patrol Officers Shaw and Carrasco stopped
petitioner's car shortly after midnight as it was traveling from
Calexico, on the California-Mexico border, toward Blythe,
Page 413 U. S. 286
The stop was made on Highway 78 near Glamis, California, 50
miles by road from Calexico. The highway was "about the only
north-south road in California coming from the Mexican border that
does not have an established checkpoint." [Footnote 3/2
] Because of that, "it is commonly used to
evade check points by both marijuana and alien smugglers." On
occasions "but not at all times," officers of the Border Patrol
"maintain a roving check of vehicles and persons on that particular
highway." Pursuant to this practice "they stopped this vehicle for
the specific purpose of checking for aliens." Petitioner's
identification revealed that he was a resident of Mexicali, Mexico,
but that he held a work permit for the United States. Petitioner
had come from Mexicali, had picked up the car in Calexico and was
on his way to Blythe to deliver it. He intended to return to
Mexicali by bus. [Footnote 3/3
officers had been advised by an official bulletin that aliens
illegally entering the United States sometimes concealed themselves
by sitting upright behind the back seat rest of a car, with their
legs folded under the back seat from which the springs had been
removed. While looking under the rear seat of petitioner's car for
aliens, the officers discovered packages believed by them to
contain marihuana. Petitioner was placed under arrest and advised
of his rights. His car was then searched for additional marihuana,
which was found in substantial amounts.
On this evidence, the motion to suppress was denied,
Page 413 U. S. 287
and petitioner was convicted. A divided Court of Appeals
affirmed, 452 F.2d 459 (CA9 1971), relying on its prior cases and
on § 287(a)(3) of the Immigration and Nationality Act, 8 U.S.C. §
1357(a)(3), which provides that officers of the Immigration and
Naturalization Service shall have the power, without warrant, to
search any vehicle for aliens within a reasonable distance from any
external boundary of the United States. [Footnote 3/4
] I dissent from the reversal of this
The Fourth Amendment protects the people "in their persons,
houses, papers, and effects, against unreasonable searches and
seizures," and also provides that "no Warrants shall issue, but
upon probable cause. . . ." The ordinary rule is that to be
reasonable under the Amendment a search must be authorized by
warrant issued by a magistrate upon a showing of probable cause.
Page 413 U. S. 288
Amendment's overriding prohibition is nevertheless against
"unreasonable" searches and seizures; and the legality of
searching, without warrant and without probable cause, individuals
and conveyances seeking to enter the country has been recognized by
Congress and the courts since the very beginning. Boyd v.
United States, 116 U. S. 616
(1886), said as much; and in Carroll v. United States,
267 U. S. 132
267 U. S. 154
(1925), the Court repeated that neither warrant nor probable cause
was required to authorize a stop and search at the external
boundaries of the United States:
"Travelers 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
This much is undisputed in this case. Persons and their effects
may be searched at the border for dutiable articles or contraband.
Conveyances may be searched for the same purposes, as well as to
determine whether they carry aliens not entitled to enter the
country. Neither, apparently, is it disputed that warrantless
searches for aliens without probable cause may be made at fixed
checkpoints away from the border.
The problem in this case centers on the roving patrol operating
away from, but near, the border. These patrols may search for
aliens without a warrant if there is probable cause to believe that
the vehicle searched is carrying aliens illegally into the country.
But without probable cause, the majority holds the search
unreasonable, although at least one Justice, MR. 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, and I would expect that
such warrants would be readily issued. But I disagree with him
Page 413 U. S. 289
and the majority that either a warrant or probable cause is
required in the circumstances of this case. As the Court has
reaffirmed today in Cady v. Dombrowski, post,
413 U. S. 433
governing standard under the Fourth Amendment is reasonableness,
and, in my view, that standard is sufficiently flexible to
authorize the search involved in this case.
In Terry v. Ohio, 392 U. S. 1
the Court proceeding under the "general proscription against
unreasonable searches and seizures," id.
at 392 U. S. 20
(footnote omitted), weighed the governmental interest claimed to
justify the official intrusion against the constitutionally
protected interest of the private citizen. Id.
392 U. S. 20
The "need to search'" was balanced "`against the invasion which
the search . . . entails,'" quoting from Camara v. Municipal
Court, 387 U. S. 523,
387 U. S.
534-535, 536-537 (1967). Terry, supra, at
392 U. S. 21. In
any event, as put by Mr. Chief Justice Warren, the
"question is whether, in all the circumstances of this
on-the-street encounter, his right to personal security was
violated by an unreasonable
search and seizure."
at 292 U. S. 9
Warrantless but probable cause searches of the person and
immediate surroundings have been deemed reasonable when incident to
arrest, see Chimel v. California, 395 U.
(1969); and, in Terry,
the stop of a
suspected individual and a pat-down for weapons without a warrant
were thought reasonable on less than traditional probable cause. In
Camara v. Municipal Court, supra,
an inspection of every
structure in an entire area to enforce the building codes was
deemed reasonable under the Fourth Amendment without probable
cause, or suspicion that any particular house or structure was in
violation of law, although a warrant, issuable without probable
cause, or reasonable suspicion of a violation, was required with
respect to nonconsenting property owners. Also, in Colonnade
Catering Corp. v. United
Page 413 U. S. 290
States, 397 U. S. 72
(1970), MR. JUSTICE DOUGLAS, writing for the Court and recognizing
that the Fourth Amendment bars only unreasonable searches and
seizures, ruled that the historic power of the Government to
control the liquor traffic authorized warrantless inspections of
licensed premises without probable cause, or reasonable suspicion,
not to check on liquor quality or conditions under which it was
sold, but solely to enforce the collection of the federal excise
tax. [Footnote 3/5
States v. Biswell, 406 U. S. 311
(1972), involved the Gun Control Act of 1968 and its authorization
to federal officers to inspect firearms dealers. The public need to
enforce an important regulatory program was held to justify random
inspections of licensed establishments without warrant and probable
The Court has been particularly sensitive to the Amendment's
broad standard of "reasonableness" where, as in Biswell
authorizing statutes permitted the
challenged searches. We noted in Colonnade
has broad power to design such powers of inspection under the
liquor laws as it deems necessary
Page 413 U. S. 291
to meet the evils at hand," 37 U.S. at 37 U. S. 76
we relied heavily upon the congressional
judgment that the authorized inspection procedures played an
important part in the regulatory system. 406 U.S. at 406 U. S.
-317. In the case before us, 8 U.S.C. § 1357(a)(3),
authorizes Border Patrol officers, without warrant, to search any
vehicle for aliens "within a reasonable distance from any external
boundary of the United States" and within the distance of 25 miles
from such external boundary to have access to private lands, but
not dwellings "for the purpose of patrolling the border to prevent
the illegal entry of aliens into the United States. . . ." At the
very least, this statute represents the considered judgment of
Congress that proper enforcement of the immigration laws requires
random searches of vehicles without warrant or probable cause
within a reasonable distance of the international borders of the
It is true that, "[u]ntil 1875, alien migration to the United
States was unrestricted." Kleindienst v. Mandel,
408 U. S. 753
408 U. S. 761
(1972). But the power of the National Government to exclude aliens
from the country is undoubted and sweeping.
"That the government of the United States, through the action of
the legislative department, can exclude aliens from its territory
is a proposition which we do not think open to controversy.
Jurisdiction over its own territory to that extent is an incident
of every independent nation. It is a part of its independence. If
it could not exclude aliens, it would be to that extent subject to
the control of another power."
Chae Chan Ping v. United States, 130 U.
, 130 U. S.
-604 ( 1889).
"The power of Congress to exclude aliens altogether from the
United States, or to prescribe the terms and conditions upon which
they may come to this country, and to have its declared policy in
that regard enforced exclusively . . . is settled by our previous
Page 413 U. S. 292
Lem Moon Sing v. United States, 158 U.
, 158 U. S. 547
( 1895). See also Fong Yue Ting v. United States,
149 U. S. 698
149 U. S. 711
(1893); Yamataya v. Fisher, 189 U. S.
, 189 U. S. 97
(1903); United States ex rel. Turner v. Williams,
194 U. S. 279
194 U. S.
-290 (1904); Oceanic Steam Navigation Co. v.
Stranahan, 214 U. S. 320
214 U. S.
-336 (1909); United States ex rel. Volpe v.
Smith, 289 U. S. 422
289 U. S. 425
Since 1875, Congress has given
"almost continuous attention . . . to the problems of
immigration and of excludability of certain defined classes of
aliens. The pattern generally has been one of increasing control. .
Kleindienst v. Mandel, supra,
at 408 U. S.
-762. It was only as the illegal entry of aliens
multiplied that Congress addressed itself to enforcement
mechanisms. In 1917, immigration authorities were authorized to
board and search all conveyances by which aliens were being brought
into the United States. Act of Feb. 5, 1917, § 16, 39 Stat. 886.
This basic authority, substantially unchanged, is incorporated in 8
U.S.C. § 1225(a).
In 1946, it was represented to Congress that,
"[i]n the enforcement of the immigration laws, it is at times
desirable to stop and search vehicles within a reasonable distance
from the boundaries of the United States and the legal right to do
so should be conferred by law."
H.R.Rep. No. 186, 79th Cong., 1st Sess., 2 (1945). The House
Committee on Immigration and Naturalization was "of the opinion
that the legislation is highly desirable," ibid.,
counterpart in the Senate, S.Rep. No. 632, 79th Cong., 1st Sess., 2
(1945), stated that "[t]here is no question but that this is a step
in the right direction." The result was express statutory
authority, Act of Aug. 7, 1946, 60 Stat. 865, to conduct searches
of vehicles for aliens within a reasonable distance from the border
without warrant or possible cause. Moreover, in the Immigration and
Nationality Act of 1952, 66 Stat.
Page 413 U. S. 293
163, Congress permitted the entry onto private lands, excluding
dwellings, within a distance of 25 miles from any external
boundaries of the country "for the purpose of patrolling the border
to prevent the illegal entry of aliens into the United States. . .
." § 287(a)(3), 66 Stat. 233.
The judgment of Congress obviously was that there are
circumstances in which it is reasonably necessary, in the
enforcement of the immigration laws, to search vehicles and other
private property for aliens, without warrant or probable cause, and
at locations other than at the border. To disagree with this
legislative judgment is to invalidate 8 U.S.C. § 1357(a)(3) in the
face of the contrary opinion of Congress that its legislation
comported with the standard of reasonableness of the Fourth
Amendment. This I am quite unwilling to do.
The external boundaries of the United States are extensive. The
Canadian border is almost 4,000 miles in length; the Mexican,
almost 2,000. Surveillance is maintained over the established
channels and routes of communication. But not only is inspection at
regular points of entry not infallible, but it is also physically
impossible to maintain continuous patrol over vast stretches of our
borders. The fact is that illegal crossings at other than the legal
ports of entry are numerous and recurring. If there is to be any
hope of intercepting illegal entrants and of maintaining any kind
of credible deterrent, it is essential that permanent or temporary
checkpoints be maintained away from the borders, and roving patrols
be conducted to discover and intercept illegal entrants as they
filter to the established roads and highways and attempt to move
away from the border area. It is for this purpose that the Border
Patrol maintained the roving patrol involved in this case and
conducted random, spot checks of automobiles and other vehicular
Page 413 U. S. 294
The United States in this case reports that, in fiscal year
1972, Border Patrol traffic checking operations located over 39,000
deportable aliens, of whom approximately 30,000 had entered the
United States by illegally crossing the border at a place other
than a port of entry. This was said to represent nearly 10% of the
number of such aliens located by the Border Patrol by all means
throughout the United States. [Footnote
Section 1357(a)(3) authorizes only searches for aliens and only
searches of conveyances and other property. No searches of the
person or for contraband are authorized by the section. The
authority extended by the statute is limited to that reasonably
necessary for the officer to assure himself that the vehicle or
other conveyance is not carrying an alien who is illegally within
this country; and more extensive searches of automobiles without
probable cause are not permitted by the section. Roa-Rodriquez
v. United States,
410 F.2d 1206 (CA10 1969); see Fumagalli
v. United States,
429 F.2d 1011, 1013 (CA9 1970). Guided by
the principles of Camara, Colonnade,
I cannot but uphold the judgment of Congress that, for purposes of
enforcing the immigration laws, it is reasonable to treat the
exterior boundaries of the country as a zone, not a line, and that
there are recurring circumstances in which the search of vehicular
traffic without warrant and without probable cause may be
reasonable under the Fourth Amendment although not carried out at
the border itself.
Page 413 U. S. 295
This has also been the considered judgment of the three Courts
of Appeals whose daily concern is the enforcement of the
immigration laws along the Mexican-American border, and who,
although as sensitive to constitutional commands as we are, perhaps
have a better vantage point than we here on the Potomac to judge
the practicalities of border-area law enforcement and the
reasonableness of official searches of vehicles to enforce the
The Court of Appeals for the Ninth Circuit, like other circuits,
recognizes that, at the border itself, persons may be stopped,
identified, and searched without warrant or probable cause and
their effects and conveyances likewise subjected to inspection.
There seems to be no dissent on this proposition. Away from the
border, persons and automobiles may be searched for narcotics or
other contraband only on probable cause; but, under § 1357(a)(3),
automobiles may be stopped without warrant or probable cause and a
limited search for aliens carried out in those portions of the
conveyance capable of concealing any illegal immigrant. This has
been the consistent view of that court.
In Fumagalli v. United States, supra,
stopped at a checkpoint in Imperial, California, 49 miles north of
the international boundary. In the course of looking in the trunk
for an illegal entrant, the odor of marihuana was detected, and
marihuana discovered. Fumagalli contended that the trunk of the
automobile could not be examined to locate an illegal entrant
absent probable cause to believe that the vehicle carried such a
person. The court, composed of Judges Merrill, Hufstedler, and
Byrne, rejected the position, stating that
"[w]hat all of these cases make clear is that probable cause is
not required for an immigration
search within approved
limits [footnote omitted] but is generally required to sustain the
legality of a search for contraband
Page 413 U. S. 296
in a person's automobile conducted away from the international
borders. . . . Appellant has confused the two rules in his attempt
to graft the probable cause standards of the narcotics
cases . . . onto the rules justifying immigration inspections. . .
429 F.2d at 1013. Among prior cases reaffirmed was Fernandez
v. United States,
321 F.2d 283 (1963), where an automobile was
stopped 18 miles north of Oceanside, California, on Highway 101 at
a point 60 to 70 miles north of the Mexican border. An inspection
for illegally entering aliens was conducted, narcotics were
discovered and seized, and the stop and seizure were sustained
under the statute. The Immigration Service, it was.noted, had been
running traffic checks in this area for 31 years, many illegal
entrants had been discovered there, and there were at least a dozen
other such checkpoints operating along the border between the
United States and Mexico. [Footnote
The Courts of Appeal for the Fifth and Tenth Circuits share the
problem of enforcing the immigration laws along the
Mexican-American border. Both courts agree with the Ninth Circuit
that § 1357(a)(3) is not void, and that there are recurring
circumstances where, as the statute permits, a stop of an
automobile without warrant or probable cause and a search of it for
aliens are constitutionally permissible.
In United States v. De Leon,
462 F.2d 170 (CA5 1972),
De Leon was stopped without warrant or probable cause,
Page 413 U. S. 297
while driving on the highway leading north of Laredo, Texas,
approximately 10 miles from the Mexican border. The purpose of the
stop was to inspect for illegally entering aliens. De Leon opened
the trunk as he was requested to do. A false bottom in the trunk
and what was thought to be an odor of marihuana were immediately
noticed, and some heroin was seized. Judge Wisdom, writing for
himself and Judges Godbold and Roney, concluded that:
"Stopping the automobile ten miles from the Mexican border to
search for illegal aliens was reasonable. See United States v.
[463 F.2d 129 (CA5 1972)]; United States v.
5 Cir.1971, 441 F.2d 821; Marsh v. United
5 Cir.1965, 344 F.2d 317, 8 U.S.C. §§ 1225, 1357; 19
U.S.C. §§ 482, 1581, 8 C.F.R. § 287.1 ; 19 C.F.R. §§ 23.1(d),
23.11 . Once the vehicle was reasonably stopped pursuant to
an authorized border check, the agents were empowered to search the
vehicle, including the trunk, for aliens."
at 171. Similarly, United States v.
463 F.2d 129 (CA5 1972), upheld a stop and an
ensuing search for aliens that uncovered another crime. Judge
Goldberg, with Judges Wisdom and Clark, was careful to point out,
however, that the authority granted under the statute must still be
exercised in a manner consistent with the standards of
reasonableness of the Fourth Amendment.
"Once the national frontier has been crossed, the search in
question must be reasonable upon all of its facts, only one of
which is the proximity of the search to an international
at 133. This view appears to have been the law in
the Fifth Circuit for many years. [Footnote 3/8
Page 413 U. S. 298
The Court of Appeals for the Tenth Circuit has expressed similar
views. In Roa-Rodriquez, supra,
the automobile was stopped
in New Mexico some distance from the Mexican border, the purpose
being to search for aliens. Relying on the statute, the court,
speaking through Judge Breitenstein, concluded that, "[i]n the
circumstances, the initial stop and search for aliens were proper."
at 1208. However, when it was determined by the
officers that there were no occupants of the car illegally in the
country, whether in the trunk or elsewhere, the court held that the
officers had no business examining the contents of a jacket found
in the trunk. The evidence in this case was excluded. The clear
rule of the circuit, however, is that conveyances may be stopped
and examined for aliens without warrant or probable cause when, in
all the circumstances, it is reasonable to do so. [Footnote 3/9
Congress itself has authorized vehicle searches at a reasonable
distance from international frontiers in order to aid in the
enforcement of the immigration laws. Congress has long considered
such inspections constitutionally permissible under the Fourth
Amendment. So, also, those courts and judges best positioned to
make intelligent and sensible assessments of the requirements of
reasonableness in the context of controlling illegal entries into
this country have, consistently and almost without dissent, come to
the same conclusion that is embodied in the judgment that is
reversed today. [Footnote
Page 413 U. S. 299
I also think that § 1357(a)(3) was validly applied in this case,
and that the search for aliens and the discovery of marihuana were
not illegal under the Fourth Amendment. It was stipulated that the
highway involved here was one of the few roads in California moving
away from the Mexican border that did not have an established check
station, and that it is commonly used by alien smugglers to evade
regular checkpoints. The automobile, when stopped sometime after
midnight, was 50 miles along the road from the border town of
Calexico, proceeding toward Blythe, California; but, as a matter of
fact, it appears that the point at which the car was stopped was
approximately only 20 miles due north of the Mexican border. Given
the large number of illegal entries across the Mexican border at
other than established ports of entry, as well as the likelihood
that many illegally entering aliens cross on foot and meet
prearranged transportation in this country, I think that, under all
the circumstances, the stop of petitioner's car was reasonable, as
was the search for aliens under the rear seat of the car pursuant
to an official bulletin suggesting search procedures based on
experience. Given a valid search of the car for aliens, it is in no
way contended that the discovery and seizure of the marihuana were
contrary to law. [Footnote
I would affirm the judgment of the Court of Appeals.
The facts, except for when petitioner was stopped, are taken
from the oral stipulation in open court. See
The time petitioner was stopped is given by the Complaint as 12:15
a.m., App. 4, while petitioner testified at trial that he was
"stopped about 1:00." 3 Tr. of Rec. 62.
West of Glamis the prevailing direction of the highway is
east-west. At the point of the stop west of Glamis, the highway is
only approximately 20 miles north of the border, running parallel
to it. East of Glamis, the highway proceeds sharply northeast to
Blythe, a distance of over 50 miles.
It appears, see
App. 12, 13, that the officers were
informed of these facts before initiating any search for aliens,
and hence before finding any contraband.
Title 8 U.S.C. § 1357(a) provides in pertinent part:
"Any officer or employee of the [Immigration and Naturalization]
Service authorized under regulations prescribed by the Attorney
General shall have power without warrant -- "
"* * * *"
"(3) within a reasonable distance from any external boundary of
the United States, to board and search for aliens any vessel within
the territorial waters of the United States and any railway car,
aircraft, conveyance, or vehicle, and within a distance of
twenty-five miles from any such external boundary to have access to
private lands, but not dwellings, for the purpose of patroling the
border to prevent the illegal entry of aliens into the United
States. . . ."
The Court of Appeals also relied on 8 CFR § 287.1, which, in
relevant part, provides:
"(a)(2) Reasonable distance.
The term 'reasonable
distance,' as used in section 287(a)(3) of the Act, means within
100 air miles from any external boundary of the United States or
any shorter distance which may be fixed by the district director,
or, so far as the power to board and search aircraft is concerned,
any distance fixed pursuant to paragraph (b) of this section."
In Colonnade Catering Corp. v. United States,
397 U. S. 72
(1970), the conviction was set aside because it was thought that
Congress, with all the authority it had to prescribe standards of
reasonableness under the Fourth Amendment, had not intended federal
inspectors to use force in carrying out warrantless, non-probable
cause inspections. In dissent, THE CHIEF JUSTICE, joined by
Justices Black and STEWART, would have sustained the search,
"I assume we could all agree that the search in question must be
held valid, and the contraband discovered subject to seizure and
forfeiture, unless (a) it is 'unreasonable' under the Constitution
or (b) it is prohibited by a statute imposing restraints apart from
those in the Constitution. The majority sees no constitutional
violation; I agree."
at 397 U. S.
In a separate dissent, Mr. Justice Black, joined by THE CHIEF
JUSTICE and MR. JUSTICE STEWART, also emphasized that the ultimate
test of legality under the Fourth Amendment was whether the search
and seizure were reasonable. Id.
at 397 U. S.
In fiscal year 1972, 398,000 aliens who had entered the United
States without inspection were located by Immigration and
Naturalization officers; and of the 39,243 deportable aliens
located through traffic checking operations, about one-third,
11,586, had been assisted by smugglers. In fiscal year 1972, 2,880
such smugglers were discovered through traffic checking operations.
Ninety-nine percent of all aliens illegally entering the United
States by land crossed our border with Mexico.
In the Court of Appeals for the Ninth Circuit, 8 U.S.C. §
1357(a)(3) has also been sustained in, e.g., Mienke v. United
452 F.2d 1076 (1971); United States v. Marin,
444 F.2d 86 (1971); Duprez v. United States,
435 F.2d 1276
(1970); United States v. Sanchez-Mata,
429 F.2d 1391
(1970); United States v. Avey,
428 F.2d 1159 (1970);
United States v. Miranda,
426 F.2d 283 (1970); and
United States v. Elder,
425 F.2d 1002 (1970). See also
Valenzuela-Garcia v. United States,
425 F.2d 1170 (1970), and
Barba-Reyes v. United States,
387 F.2d 91 (1967).
E.g., Kelly v. United States,
197 F.2d 162 (1952).
See also United States v. Bird,
456 F.2d 1023, 1024
(1972); Ramirez v. United States,
263 F.2d 385, 387
(1959); and Haerr v. United States,
240 F.2d 533, 535
E.g., United States v. Anderson,
468 F.2d 1280 (1972);
and United States v. McCormick,
468 F.2d 68 (1972).
Without having undertaken an exhaustive survey, in the 20 court
of appeals cases I have noted, including the one before us, 35
different judges of the three Courts of Appeals found inspection of
vehicles for illegal aliens without warrant or probable cause to be
constitutional. Only one judge has expressed a different view.
The United States does not contend, see
Tr. of Oral
Arg. 29, and I do not suggest, that any search of a vehicle for
aliens within 100 miles of the border pursuant to 8 CFR § 287.1
would pass constitutional muster. The possible invalidity of the
regulation and of 8 U.S.C. § 1357(a)(3) in other circumstances is
not at issue here.