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576 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
grant traffic there; (5) appearance of the vehicle; (6) number, appearance,
and behavior of persons in the vehicle; and (7) “characteristic
appearance of persons who live in Mexico.” 48 For this last factor, the
Court suggested officers could rely on a person’s mode of dress or
haircut. 49
C. Martinez-Fuerte: Rejecting Stigmatization Concerns and
Allowing Secondary Checkpoint Stops without
Reasonable Suspicion
The Court engaged in another Fourth Amendment balancing test
about Border Patrol investigations just one year after Brignoni-Ponce
was decided. In Martinez-Fuerte, the Court held that routine Border
Patrol checkpoints that refer motorists to secondary inspection areas
without a reasonable individualized suspicion are constitutional. 50
Certain plaintiffs claimed that, compared to the vehicle stop in
Brignoni-Ponce, being referred to a secondary inspection point entailed
an extra element of intrusiveness that resulted in the stigmatization
of those diverted. 51 The Court dismissed those claims and held
that the secondary stops and questioning are a necessary element of
Border Patrol discretion and that even referrals “made largely on the
basis of apparent Mexican ancestry” do not violate the Constitution. 52
Justice Brennan, joined by Justice Marshall, vehemently dissented
in Martinez-Fuerte. 53 Brennan first criticized the distinction
the majority drew between roving stops that would have required at
least reasonable suspicion and checkpoint secondary referrals that the
majority decided need no justification. 54 He questioned “what actual
experience supports my Brethren’s conclusion that referrals ‘should
not be frightening or offensive because of their public and relatively
48. Id. at 884–85.
49. Id. at 885. Mode of dress, haircut, and even vehicle type can be proxies for race
if people of a certain race share those particular characteristics while people of other
races do not. For more discussion about proxies, see infra notes 71–76 and accompa- R
nying text. These factors, particularly vehicle type, can also be proxies for socioeconomic
status. See id. at 889–90 (Douglas, J., concurring in the judgment) (noting
that suspicious vehicles are also old vehicles).
50. United States v. Martinez-Fuerte, 428 U.S. 543, 550, 563 (1976). Checkpoint
searches, however, must be justified by consent or probable cause in order to be constitutional.
United States v. Ortiz, 422 U.S. 891, 896–97 (1975).
51. Martinez-Fuerte, 428 U.S. at 560.
52. See id. at 562–63.
53. Id. at 567 (Brennan, J., dissenting). Justice Brennan noted that it was the ninth
decision of that term that eviscerated the Fourth Amendment protections against unreasonable
searches and seizures. Id.
54. Id. at 570–71 (Brennan, J., dissenting).