CA9: Defense entitled to discovery on whether San Clemente immigration checkpoint also now a general crime control checkpoint

Defendant sought discovery to show that the San Clemente immigration checkpoint on I-5, sustained 40 years ago in Martinez-Fuerte, had also become a general crime control checkpoint, and the district court denied it. The Court of Appeals held that Rule 16 discovery requires the government to disclose information pertinent to searches and seizures. Reversed. United States v. Soto-Zuniga, 2016 U.S. App. LEXIS 16962 (9th Cir. Sept. 16, 2016):

We first address Soto-Zuniga’s argument that the district court abused its discretion in denying his motion for discovery of the San Clemente checkpoint search and arrest statistics. He contends that this evidence is necessary to determine whether the checkpoint itself is constitutional. We agree that the district court abused its discretion in denying discovery that could have revealed an unconstitutional seizure and led to the suppression of the evidence that illicit drugs were found in Soto-Zuniga’s car.

The Fourth Amendment prohibits unreasonable searches and seizures. “It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment.” City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2006). As a general rule, a search or seizure is unreasonable unless it rests on individualized suspicion of wrongdoing. Id. at 37. But the Supreme Court has carved out an exception to this rule for checkpoint seizures that serve “special needs, beyond the normal need for law enforcement.” Id. (citation and internal quotation marks omitted); see also United States v. Fraire, 575 F.3d 929, 931-32 (9th Cir. 2009). In United States v. Martinez-Fuerte, which addressed the constitutionality of the San Clemente checkpoint, the Supreme Court identified immigration control as a valid purpose for stopping cars and posing questions without individualized suspicion. 428 U.S. 543, 556-64 (1976). The Court rejected a Fourth Amendment challenge to the checkpoint, recognizing “that maintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border.” Id. at 556. The Court also “stressed the impracticality of the particularized study of a given car to discern whether it was transporting illegal aliens, as well as the relatively modest degree of intrusion entailed by the stops.” Edmond, 531 U.S. at 38 (citing Martinez-Fuerte, 428 U.S. at 556-64).

The constitutionality of immigration checkpoints, including the San Clemente checkpoint, was raised again nearly two decades later in a separate case before our Court. See United States v. Soyland, 3 F.3d 1312 (9th Cir. 1993). In Soyland, the defendants’ car was searched at an immigration checkpoint’s secondary inspection, revealing drug paraphernalia and small amounts of marijuana. Id. at 1314. A subsequent search of the defendants revealed 220 grams of methamphetamine and a scale. Id. The majority declined to address “the issue of whether checkpoint officers routinely overstep their authority by conducting pretextual narcotics searches,” noting that it had not been argued at trial nor on appeal. Id. Judge Kozinski dissented, voicing his concern that the San Clemente checkpoint and others like it may be violating restrictions on suspicionless searches. Id. at 1315-20 (Kozinski, J., dissenting). While recognizing that Martinez-Fuerte approved internal checkpoints for immigration control purposes, Judge Kozinski warned that “[t]here’s reason to suspect the agents working these checkpoints are looking for more than illegal aliens. If this is true, it subverts the rationale of Martinez-Fuerte and turns a legitimate administrative search into a massive violation of the Fourth Amendment.” Id. at 1316. He recommended remanding the case for a factual inquiry into “whether the policies, programs, directives and incentives put in place by the government, or any customs and practices that have developed with the government’s tacit approval, have turned … San Clemente into [a] general law enforcement checkpoint[].” Id. at 1319 (footnote omitted).

Although Judge Kozinski’s dissent primarily discussed the searches that occur at the San Clemente checkpoint, his concerns are also relevant to the initial seizure—the vehicle stop—at issue in Soto-Zuniga’s case. In City of Indianapolis v. Edmond, the Supreme Court clarified that the constitutionality of suspicionless immigration checkpoints is governed by the same standard as administrative searches. 531 U.S. at 37-38. The Court also reaffirmed that checkpoints with the principal purpose of thwarting criminal activity do not comport with the Fourth Amendment, and noted that it had “never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing,” as opposed to purposes of “policing the border” or “ensuring roadway safety.” 531 U.S. at 38, 41. The constitutionality of the San Clemente checkpoint turns on whether its “primary purpose” is to control immigration, as has been contended by the government, or rather is to interdict drug trafficking and other “ordinary criminal wrongdoing.” Id.; see also Fraire, 575 F.3d at 932 (“[T]he court must determine whether the primary purpose of the checkpoint was to advance the general interest in crime control. If so, then the stop is per se invalid under the Fourth Amendment.” (internal citations, quotation marks, and alterations omitted)). If the checkpoint’s primary purpose is to detect evidence of drug trafficking, then the initial seizure of Soto-Zuniga’s car and person offended the Fourth Amendment and the drug evidence recovered from his car must be excluded as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

It is on this issue that the requested discovery is pertinent. Although the district court held an evidentiary hearing to determine the checkpoint’s primary purpose, the only evidence before it was the testimony of Agent Rabreau and several news articles, including a few detailing the interdiction of narcotics. Based on Agent Rabreau’s testimony that he had reviewed seizure and arrest records and that upwards of 90 percent of arrests were immigration related, the district court concluded that the checkpoint was constitutional and denied further discovery of the search and arrest statistics.

It may well be that Agent Rabreau’s experience and knowledge is consistent with the general practices at the San Clemente checkpoint. But there is a risk that the district court made its decision as if in part blindfolded, considering only one version of the evidence. Our system of criminal justice relies on an adversary system to help ensure that justice will be done.

Under Federal Rule of Criminal Procedure 16(a)(1)(E), the government is required to produce, inter alia, documents or data “if the item is within the government’s possession, custody, or control and … the item is material to preparing the defense.” The government, relying on United States v. Armstrong, 517 U.S. 456 (1996), contends that Soto-Zuniga is not entitled to discovery under this Rule because the evidence he seeks is not material to his defense against the government’s case-in-chief. Armstrong, which concerned discovery in a selective prosecution case, held that Rule 16(a)(1)(E)5 does not permit discovery of government documents in selective-prosecution claims because such discovery does not assist in “the preparation of their defense against the Government’s case in chief.” Id. at 463. The Supreme Court in Armstrong analyzed the meaning of the term “defense” in the context of the Rule 16(a)(1)(E) and reasoned that “[w]hile it might be argued that as a general matter, the concept of a ‘defense’ includes any claim that is a ‘sword,’ challenging the prosecution’s conduct of the case, the term may encompass only the narrower class of ‘shield’ claims, which refute the Government’s arguments that the defendant committed the crime charged.” Id. at 462.

Notwithstanding that language and guidance of the Supreme Court, we do not read Armstrong to preclude Rule 16(a)(1)(E) discovery related to the constitutionality of a search or seizure. In our view, the holding of Armstrong applies to the narrow issue of discovery in selective-prosecution cases. See id. at 471 (Ginsburg, J., concurring) (“I do not understand the Court to have created a major limitation on the scope of discovery available under Federal Rule of Criminal Procedure 16. As I see it, the Court has decided a precise issue: whether the phrase ‘defendant’s defense,’ as used in Rule [16(a)(1)(E)], encompasses allegations of selective prosecution . … The Court was not called upon to decide here whether Rule [16(a)(1)(E)] applies in any other context, for example, to affirmative defenses unrelated to the merits.” (citation omitted and internal quotation marks omitted)). Also, our post-Armstrong case law within the Ninth Circuit indicates that Rule 16(a)(1)(E) permits discovery related to the constitutionality of a search or seizure. In United States v. Cedano-Arellano, a defendant charged with cocaine smuggling sought discovery of the training records of the narcotics detector dog that “alerted” on his gas tank. 332 F.3d 568, 570 (9th Cir. 2003) (per curiam). We acknowledged that the materials at issue “were crucial to [the defendant's] ability to assess the dog’s reliability, a very important issue in his defense, and to conduct an effective cross-examination of the dog’s handler” at the pretrial evidentiary hearing. Id. at 571. We held that such materials were discoverable under Rule 16(a)(1)(E). Id.; see also United States v. Thomas, 726 F.3d 1086, 1096-97 (9th Cir. 2013) (defendant was entitled under Rule 16(a)(1)(E) to discovery of unredacted training and certification records of a narcotics detector dog). Cedano-Arellano and Thomas support the conclusion that Rule 16(a)(1)(E) permits discovery to determine whether evidence in a particular case was obtained in violation of the Constitution and is thus inadmissible.

The government argues that Cedano-Arellano and Thomas created a narrow “dog discovery” exception to the general rule that Armstrong establishes. The government points to our precedent in United States v. Chon, in which the defendants were convicted of theft and conversion of government property after they broke into a Naval facility and stole military equipment. 210 F.3d 990, 992 (9th Cir. 2000). The defendants were caught and charged as a result of a Naval Criminal Investigative Service (NCIS) investigation. Before the trial, the defendants moved for discovery on any activities of the NCIS and its predecessor agency that targeted civilians to bolster their claim that NCIS violated the Posse Comitatus Act (PCA), which prohibits the military from participating in civilian law enforcement. Id. at 992-93. We affirmed the district court’s determination that this request was a “far reaching fishing expedition.” Id. at 992. We held that the discovery request was “considerably broader” than any materials that could be relevant to the specific charges against the defendants and that the requested discovery did “not serve the purpose of fortifying the appellants’ ‘shield claims.’” Id. at 995.

Chon turns on the determination that the requested discovery had no relevance to whether NCIS violated the PCA in the defendants’ particular case. The materials sought were expansive, “implicating widespread and repeated violations of the PCA in the State of Hawaii and within the United States.” Id. at 994. By contrast, Soto-Zuniga sought discovery of whether he and his automobile were unconstitutionally seized at the San Clemente checkpoint—an issue that is central to his defense, because it could spell the difference in a suppression motion of the key physical evidence against him. Because the primary purpose of the San Clemente checkpoint was placed squarely at issue by Soto-Zuniga’s motion to suppress, defense counsel should have been allowed reasonable discovery relating to this primary purpose. After that discovery, and with all material evidence on the table, the district court would have been in a superior position to assess and decide the motion to suppress.

It has been forty years since the San Clemente checkpoint was upheld by the Supreme Court as constitutional. Martinez-Fuerte, 428 U.S. at 556-64. Whether the primary purpose of the checkpoint has evolved from controlling immigration to detecting “ordinary criminal wrongdoing,” see Edmond, 531 U.S. at 42, is a question that is subject to discovery under Rule 16. Soto-Zuniga “should not have to rely solely on the government’s word that further discovery is unnecessary.” United States v. Budziak, 697 F.3d 1105, 1113 (9th Cir. 2012). We conclude that the district court abused its discretion by denying this discovery. See de Cruz, 82 F.3d at 866. However, because we do not have access to the records in question, we cannot determine the likelihood of whether Soto-Zuniga’s case would have had a different outcome had he been permitted discovery. Id. The proper course under such circumstances is to remand for discovery and an evidentiary determination. See Thomas, 726 F.3d at 1097-98; see also United States v. Doe, 705 F.3d 1134, 1151-52 (9th Cir. 2013). We reverse the district court’s denial of the discovery motion relating to the checkpoint’s arrest statistics, and remand for the district court to assess the constitutionality of the San Clemente checkpoint in further proceedings. See id. at 1097-98.

See United States v. Diaz-Rojas, 2016 U.S. Dist. LEXIS 121700 (S.D.Cal. Sept. 7, 2016), denying broad discovery of a drug dog’s usage at the border checkpoint.

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