United States v. Soto-Zuniga, — F.3d — (9th Cir. Sep. 16, 2016): Drug-bust defendant entitled to discovery relating to constitutionality of checkpoint seizure, and to government’s investigation of drug-smuggling operation
A lot has happened since 1976. Bell-bottoms have gone out of fashion, and come back again, sort of. The original members of Menudo have begun contemplating collecting retirement benefits. People without aluminum foil under their hats have begun talking about taking pictures with their telephones, and about the government watching us more or less all the time. And maybe, just maybe, the San Clemente checkpoint has become unconstitutional. At least, held the Ninth Circuit, Hector Soto-Zuniga should have been permitted to conduct discovery to find out.
The Border Patrol agents who stopped Mr. Soto-Zuniga at the San Clemente checkpoint thought he looked nervous. You know the rest: Referred to secondary, more looking nervous (including a “bounding” carotid artery), smell of marijuana, car search, drugs (in this case, methampetamine) found behind the driver’s seat. The government charged possession with intent to distribute. Mr. Soto-Zuniga filed a motion challenging the constitutionality of the checkpoint, accompanied by a motion seeking discovery of “statistics regarding the number and types of arrests and vehicle searches” conducted at the checkpoint. His point was this: Generally, a search or seizure is unreasonable and violates the Fourth Amendment unless it rests on individualized suspicion of wrongdoing. The Supreme Court has carved out an exception to this rule for “checkpoint” searches that serve “special needs, beyond the normal need for law enforcement.” In 1976 the Supreme Court held, in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), that the San Clemente checkpoint was a constitutional suspicionless seizure because it served the “special” purpose of immigration control. But Mr. Soto-Zuniga wanted to show that the checkpoint has morphed into a “general law enforcement” tool, the primary purpose of which is to detect “ordinary criminal wrongdoing” – which would render it unconstitutional. The district court denied the motion, satisfying itself with an evidentiary hearing at which a Border Patrol agent assured the court that “upwards of 90 percent of arrests” at the checkpoint were “immigration related.” The Ninth Circuit found this insufficient, noting that the district court “made its decision as if in part blindfolded, considering only one version of the evidence.” Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E), Mr. Soto-Zuniga was entitled to data within the government’s possession “material to preparing the defense,” and in light of his particular Fourth Amendment defense, the discovery that he sought fit the bill.