exist to justify it." Id. at 563. The two motorists, by looking nervous and giving different answers in response to a question about from where they had come, gave the border patrol agents reason to refer them to the secondary inspection area. The fact that neither the defendant nor his passenger looks hispanic does not negate this conclusion. Id. at 563, n. 16.
Once the car was referred to the secondary inspection point, the agents needed consent or probable cause to seize the gun holster sitting on the front seat of the vehicle. Id. at 567 (citing U.S. v. Brignoni-Ponce, 422 U.S. 873, 882, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975)) ("'Any further detention [or search] must be based upon consent or probable cause. . . .'"). Such probable cause existed here; it is well-settled that a police officer who sees a suspicious item in plain view in a vehicle that has been stopped at a routine checkpoint may seize the item. Texas v. Brown, 460 U.S. 730, 739, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1982).
The officers were legally justified in asking the motorists to exit their car, patting them down, and seizing the money and drugs found on their persons. Under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), an officer who reasonably believes that a defendant is armed and is contemplating a crime may "stop and frisk" the defendant. The police may also require the stopped motorist to exit his car. Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). Since the agents found an empty gun holster in the vehicle, they reasonably suspected that the defendants were armed and contemplating a crime.
Finally, there is no claim that the defendant did not knowingly and voluntarily waive his Miranda rights when he made a statement to the officers. As the fruit of a lawful search, his statement is properly admissible at trial. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
It is clear that all steps taken by the border patrol in stopping, searching, seizing, and questioning defendant Franzenberg were lawful. Accordingly, defendant Franzenberg's motion to suppress evidence and statements is denied.
2. Criminal Number 90-0266-JLI
The prosecutor and defense counsel have stipulated to the following legal conclusions:
(1) there was founded suspicion to refer the motorists and their vehicle to the secondary inspection area, and the motorists were legally detained until the trunk was searched;
(2) once nothing was found in the trunk, the continued detention would only be reasonable if founded on: (a) reasonable suspicion; or (b) legal authority that the San Clemente permanent checkpoint may be used to investigate narcotics offenses;
(3) defendant Bojorquez's detention was not consensual, and he was not free to leave either alone or with his vehicle;
(4) defendant Bojorquez has standing to object to his detention, the detention of the vehicle, and the searches of the vehicle, but Galdamez legally consented to the searches;
(5) probable cause to arrest arose when the agents found the methamphetamine in a compartment in the car; and
(6) the physical evidence and statements were fruits of the detention of the defendant.
U.S. v. Bojorquez, Crim. No. 90-0266-JLI, Stipulated Facts and Legal Conclusions Presented (May 14, 1990).
The Court hereby accepts these stipulated legal conclusions, excluding the following: (1) that only reasonable suspicion could sustain the detention of the defendants after the trunk was searched; and (2) that defendant Bojorquez has standing to contest the constitutionality of the detention and search of Galdamez's vehicle.
Under U.S. v. Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976), a border patrol agent may detain a motorist in the secondary inspection area of a permanent checkpoint with less than reasonable suspicion in order to determine the motorist's immigration status. The need for such detention, like the need for stops authorized by Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), far outweighs a minimal intrusion on the fourth amendment. Id. 428 U.S. at 559-61. Only after the purpose of such a detention is exhausted (i.e. the inquiry into the motorists' immigration status is completed), must the detention be based upon consent or probable cause. Id. at 567 (citing U.S. v. Brignoni-Ponce, 422 U.S. 873, 882, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975)) ("'Any further detention . . . must be based upon consent or probable cause.'") (emphasis added). If the agents suspect that a defendant is armed and that a "crime is underfoot," they may "stop and frisk" him. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
Thus, the border patrol agents' decision to detain the two motorists after searching the trunk of Galdamez' vehicle was proper. The detention of Galdamez is justified by consent; after his car's trunk had been searched, he gave the agents permission to search the rest of the vehicle and its interior compartments.
The detention of defendant Bojorquez is justified as part of a reasonable Martinez-Fuerte stop -- the defendant, who looks hispanic and was nervously riding in a car that was unnaturally loaded down, had not provided the agents with proof of his United States citizenship by the time they had completed their search of the trunk. Until he did so, the agents could lawfully detain him. Once drugs were found in a container in the car, the agents were justified in frisking the motorists.
Because defendant Bojorquez was properly detained after the trunk had been searched, the fruits of his detention need not be suppressed. Accordingly, the defendant's motion to suppress evidence and statements is denied.
B. Permanent Border Patrol Checkpoints Cannot Be Used to Investigate Narcotics Offenses
The parties to both of these actions raise the additional issue of whether permanent checkpoints may be used to investigate narcotics offenses. The defendants, who assert that permanent checkpoints may not be used for such a purpose, argue that all evidence of drug trafficking that is seized at a permanent checkpoint must be suppressed unless there is probable cause or consent to search the vehicle. Although this important issue has come before the Court on previous occasions, it has never before been squarely addressed. In response to counsel's urging, the Court shall proceed to this novel issue.
The fourth amendment to the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const., amend. IV. Wherever a person has harbored a reasonable "expectation of privacy," he or she is entitled to be free from unreasonable governmental intrusion. Katz v. U.S., 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). An intrusion is generally unreasonable if it is not supported by probable cause. See Wong Sun v. U.S., 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
The right to be free from governmental intrusion absent probable cause, however, is not absolute. Over the years, the Supreme Court has carved out a number of exceptions to the probable cause requirement. See, e.g., U.S. v. Montoya de Hernandez, 473 U.S. 531, 87 L. Ed. 2d 381, 105 S. Ct. 3304 (1985) (routine searches of the persons and effects of entrants at the international border are not subject to any requirement of reasonable suspicion, probable cause, or warrant); U.S. v. Martinez-Fuerte, 428 U.S. 543, 568, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (stops for brief questioning regarding immigration status at permanent checkpoints may be conducted without reasonable suspicion or probable cause); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (a police officer who reasonably suspects that an individual is armed and intends to commit a crime may "stop and frisk" the individual despite a lack of probable cause). These exceptions present situations in which the public interest far outweighs a minimal intrusion on the fourth amendment. See Terry v. Ohio, 392 U.S. at 20-21.
The question here is whether the use of permanent checkpoints to investigate narcotics offenses falls within one of these limited exceptions. In other words, does the public's interest in apprehending drug traffickers outweigh a motorist's fourth amendment right to be free from unreasonable governmental intrusion?
The government urges this court to extend the exception in U.S. v. Martinez-Fuerte, 428 U.S. 543, 568, 96 S. Ct. 3074, 49 L. Ed. 2d 1116, to authorize "dual purpose" investigations of both immigration and narcotics violations at permanent checkpoints. Under the government's proposal, border patrol officers would be permitted to refer vehicles to the secondary inspection point of permanent checkpoints if articulable factors, such as nervousness, indicate that the vehicle's occupants might be trafficking in narcotics. At the secondary inspection point, border patrol agents would be permitted to ask motorists whether there are drugs in their cars. Searches of the automobiles, however, would be impermissible absent consent or probable cause. The government argues that such a procedure would be appropriate because the public interest in apprehending drug traffickers today is even greater than was the public interest in preventing illegal aliens from entering the United States at the time that Martinez-Fuerte was decided.
In Martinez-Fuerte, the Supreme Court chronicled the strong need to prevent the entry of illegal aliens into the United States. Id. at 559.
The government takes the same position here to show how "great" is the public interest in stepping up narcotics investigations. It presents a significant amount of evidence of the drug importation problem, including: (1) a sworn affidavit of Steven J. Trent, the Regional Operation Alliance Coordinator for the United States Customs Service, stating that the amount of marijuana and cocaine seized at the United States/Mexican border today is significantly greater than that seized only a few years ago;
(2) the testimony of Drug Enforcement Officer Robert Candelaria, who stated that he believes that only about ten (10) percent of all narcotics entering the country are apprehended at the border;
and (3) the narcotics seizures record for fiscal years 1983 through 1989, indicating that the border has not stopped the flow of illegal drugs into this country.
The Court strongly agrees with the government's position that the transportation of illegal drugs into the United States is an extremely serious problem facing society today.
The government also emphasizes that extending Martinez-Fuerte to authorize narcotics investigations would entail only a minimal intrusion on the fourth amendment. Under Martinez-Fuerte cars and drivers already must stop at the permanent checkpoints. Allowing border patrol agents to ask a few additional questions about drugs during these stops would barely enlarge the previously authorized governmental intrusions. Since the stops generally last only a few minutes anyway,
the government asserts that the proposed additional invasion of motorists' privacy interests would be minimal.
The government's efforts to demonstrate the modesty of such a fourth amendment intrusion are not persuasive. Despite the gravity of the drug trafficking problem and the brevity of the proposed stops, this court cannot condone the evisceration of the fourth amendment by allowing permanent checkpoints to serve the "dual purpose" of permitting border patrol officers to investigate both immigration and narcotics violations. The Supreme Court in Martinez-Fuerte specifically stated that its holding was limited to stops for brief immigration purposes. Id. at 567 ("our holding today is limited to the type of stops described in this opinion."). Extending the case as the government suggests would be inconsistent with this limitation.
Accepting the government's position would also come uncomfortably close to rejecting the Supreme Court's holding in Carroll v. U.S, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1924), a case decided during the height of the prohibition era, a time when the illegal transportation of alcohol was considered at least as grave a problem as drug trafficking is viewed today. Chief Justice Taft, speaking for the majority in Carroll, wrote:
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. . . . Those lawfully within the country, entitled to use the public highways, have a right to free passage without interference or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.