SEATTLE UNIVERSITY LAW REVIEWVolume 30, No. 1FALL 2006
COMMENTS
FOUNDED SUSPICION: THE NINTH CIRCUIT'S RESPONSE TO ALMEIDA SANCHEZ(fn*)
Two immigration patrol officers were monitoring traffic approximately ten to fifteen miles north of the Mexican border, when they observed a car riding low in the rear and apparently driven by a Mexican. Suspecting that the automobile might be transporting illegal aliens, the officers stopped it to conduct a routine inquiry. One agent approached the driver while the other walked to the rear of the car, looked in the window and noticed blue cellophane-wrapped packages wedged between two floor panels. Since he had seen kilo packages of marijuana hundreds of times before, the officer immediately concluded the driver was importing contraband. The agents then searched the car, discovered several kilograms of marijuana and arrested the driver, Bugarin-Casas, who was later convicted in federal district court for possessing a controlled substance with intent to distribute.
The agents' actions in United States v. Bugarin-Casaa(fn1) typify the conduct of federal officers who routinely stop and search suspicious vehicles near the Mexican border.(fn2) Ninth Circuit courts generally uphold such detentive stops of vehicles by applying the doctrine of "founded suspicion," which merely requires the border officer to justify his actions by reciting one or more objective facts reasonably creating suspicion. For example, the Ninth Circuit has accepted the following assertions as constituting founded suspicion: that the car was riding low,(fn3) that it was the type of vehicle used in smuggling,(fn4) that the car was following another car too closely,(fn5) or that the car was dusty.(fn6) Moreover,.the circuit continues to approve automobile searches based on information discovered by the officer following the stop.(fn7) Thus the industrious border officer can make a full search of an automobile .and obtain admissible evidence despite his initial lack.of probable cause to indicate that the vehicle contained aliens or contraband.
Considering the difficulty of interdicting smugglers and aliens at the Mexican border, the Ninth Circuit's ready acceptance of founded suspicion to justify searches near the border is not surprising.(fn8) The United States Supreme Court, however, has consistently held that the mere presence of an important governmental.interest does not justify vitiating Fourth Amendment protections.(fn9) The Fourth Amendment requires courts to scrutinize closely the interests of the individual prior to concluding that the interests of the government, however exigent and compelling, are paramount.(fn10) This comment, after analyzing the conceptual underpinnings of automobile seizure law and "stop and frisk" the possible grounds supporting the founded suspicion doctrine concludes that the doctrine is unconstitutional as presently applied to cases arising near the border.
The authority of customs and immigration officers to search persons and vehicles crossing the border is both longstanding and uncontroverted.(fn11) This plenary power to search at the border has proved ineffective, however, in controlling illegal immigration and smuggling.(fn12) Congress and the federal courts have responded to the border officials' plight by allowing them ever increasing latitude to search away from the border.(fn13) Although courts initially required that customs searches be conducted near the border to qualify as functionally equivalent to border searches, the Ninth Circuit later upheld searches further from the border by modifying its definition of equivalency.(fn14) Congress granted even greater flexibility to federal immigration officers, empowering them to stop and search any vehicle within a reasonable distance of the border.(fn15) The Supreme Court, however, invalidated such a search in Almeida Sanchez v. United States.(fn16)
The Ninth Circuit Court of Appeals, having postponed argument in Bugarin Caeae pending the outcome of Almeida Sanchez, narrowly interpreted the Supreme Court's opinion. In Almeida Sanchez, federal agents discovered marijuana while searching without probable cause for illegal aliens under the seat of the defendant's automobile. The Supreme Court rejected the government's argument that both the stop and the search were valid exercises of statutory power and concluded that an automobile search requires probable cause regardless of any manifes urgency created by the border problem.(fn17) Moreover, a plurality of the Court asserted that the stop as well as the search requires probable cause.(fn18) Nevertheless, the Ninth Circuit, construing Almeida Sanchez as applicable to roving searches only, maintained that federal officers could stop and detain automobiles on less than probable cause.(fn19) To support its decision, the court resurrected founded suspicion, a relatively obscure doctrine originally arising in the context of general police work.(fn20)
Following Bugarin Casas the Ninth Circuit has relied almost exclusively on founded suspicion to justify automotive stops and searches near the border.(fn21) That reliance appears misplaced considering the rule of law quoted by the Almeida Sanohez plurality from the Supreme Court's decision in Carroll v. United States.(fn22) In Carroll, the Court concluded that a person lawfully on the highways has a right to free passage without, interruption unless probable cause exists to believe the vehicle is carrying contraband or illegal merchandise.(fn23) Since the Court has never expressly overruled or modified the Carroll rule, any authority for departing from its strict mandate must be found in related areas in which the Court has spoken automobile seizure law and the doctrine of stop and frisk.
In the few cases squarely presenting the issue, of a forcible automobile stop, the Supreme Court required probable cause.(fn24) Carroll v. United States, decided in 1925, concerned a search similar to those arising today near the Mexican border. At that time, "bootleggers" smuggled liquor across the border at Detroit, Michigan, and drove to a primary market area at Grand Rapids. Federal prohibition agents; aware of the heavy traffic in illegal liquor, were patrolling the main highway between Grand Rapids and Detroit when they recognized Carroll's car from prior encounters. After stopping the car and searching it, the agents discovered a large quantity of contraband whiskey. The Court upheld the stop and search, concluding that the agents' specific knowledge of Carroll's illegal operations constituted probable cause to believe that he was carrying illegal liquor; absent probable cause, the Court emphasized, both the stop and the ensuing search would have violated the Fourth Amendment.(fn25) Thus, despite the widespread national problem, the Court was unwilling to reduce constitutional protections to facilitate law enforcement.
Despite the clear language of Carroll, lower courts have upheld certain types of detentive automobile stops without requiring probable cause.(fn26) Police.officers routinely set up roadblocks to check vehicle licenses, registrations, and equipment and, less frequently, conduct checks on a roving basis. No court has cited the Carroll rule to invalidate such a roadblock(fn27) and only one court has relied on Carroll to find a roving license check unconstitutional.(fn28) When courts sustain a routine vehicle license or equipment check, however, they generally stress the administrative nature of the procedure.(fn29) In an administrative stop the officer's primary responsibility is insuring citizen compliance with safety regulations. Since the emphasis is upon correcting vehicle defects rather than upon detecting possible criminal activity, the stops are not accusatory and are less coercive than investigative stops designed to ferret out crime.(fn30) Moreover, the brief intrusion appears justified considering the strong governmental interest in highway safety and the lack of alternative means to accomplish the desired regulation.(fn31)
Detentive automobile stops conducted near the border by federal officers, on the other hand, are both accusatory and investigatory. Customs and immigration officers, having no authority to check for minor violations of state motor vehicle codes, are responsible solely for discovering illegal aliens or drugs.(fn32) Officers searching for illegal aliens and drugs are likely to carry out a completely different type of inquiry than officers checking turn signals and drivers' licenses. The type of questions asked of a potential smuggler would logically be directed toward discovering his destination, past travels, general character and other matters normally considered personal. Such questions, especially when asked in an accusatory context, are likely to be a substantial affront to an innocent citizen's dignity.(fn33) These stops are therefore more intrusive than administrative stops and cannot be supported by the same reasoning. By contrast, stop and frisk, a police technique enunciated in Terry v. Ohio,(fn34) portends a criminal accusation and engenders considerable coercion, thus providing a better analogy to founded suspicion.(fn35)
In Terry, the Supreme Court upheld the detentive stop of a pedestrian despite the police officer's lack of probable cause to make an arrest. A police officer in that case observed two men walk back...
