Petition — Bowen v. United States

Supreme Court brief1975

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MICHAEL D. NASATIR 20° Wie

hp Tn RECEIVIc)D

1 NASATIR,. SHERMAN & HIRSCH

6uiTe 510 JUN 7 1.

8383 WiisHire BouLevaro

2 BEVERLY HILLS, CALIFORNIA 90211 |

TELEPHONE (213) 653-3303 OFFICE . FC :

3|| JERALD W. NEWTON, of Newton, Re & feenen cole 02

Russell, 8383 Wilshire Boulevard, #510 aon |

4 Beverly Hills, CA 90211 655-5011

are ;

5 | Attorneys for_- etitioner

7 )

8 IN THE SUPREME COURT OF THE UNITED STATES ,

9 October Term, 1973 |

ot JOHN LEE BOWEN, ) Case wb 3 . e a 4A R

) o

12), Petitioner, ) (Undocketed) |

)

13 vs. ) (Ninth Circuit Court of Appeals

) No. 72-1012)

14|| UNITED STATES COURT OF ) |

| APPEALS FOR THE NINTH ) PETITION FOR WRIT OF CERTIORARI

15 CIRCUIT, ) TO THE NINTH CIRCUIT COURT OF

) APPEALS

16 Respondent, )

)

17); UNITED STATES OF AMERICA, )

)

18 Real Party in Interest. )

; )

19 |,

20 This is a Petition of JOHN LEE BOWEN for a Writ of

21 | Certiorari to review the Order made by the United States Court of

22) Appeals for the Ninth Circuit on May 9, 1974, refusing to make

| |

23|, the rule enunciated on that date prohibiting checkpoint searches |

| i

24 | away from the border without probable cause in Petitioner's case

25 | applicable to Petitioner. The United States Court of Appeals

26|| for the Ninth Circuit established the fixed checkpoint rule in

27 : Part I of its Opinion, and this ruling is not questioned by Peti- |

28 tioner herein. Petitioneris specifically petitioning for certi-

29 : Orari to challenge the failure of the Ninth Circuit to apply the

30 | rule enunciated in Petitioner's case to Petitioner himself.

31 |, On October 7, 1971, BOWEN was sentenced to seven years |

32|| imprisonment for violation of Title 21, U.S.C. §§176(a) and 331(q)

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(3) (b). On June 16, 1972, the United States Court of Appeals

for the Ninth Circuit affirmed BOWEN'S conviction and on July 24,

1972, BOWEN'S Petition for Rehearing en Banc was denied. On

June 25, 1973, this Honorable Court granted Petitioner leave to

proceed ir forma pauperis, vacated the Opinion of the United

States Court of Appeals for the Ninth Circuit, and remanded the

cause back to said Court for further consideration. United States |

jie

v. Bowen, 413 U.S. %.15, 93 S.Ct. 3069 (1973). On October 23, 1973,

the United States Court of Appeals for the Ninth Circuit voted

to hold an en banc hearing on Petitioner's cause and on May 9,

1974, the Court held, in Part II of its Opinion, that Petitioner

BOWEN was not entitled to relief from the search determined to

be unconstitutional in Part I of the Opinion.

OPINIONS BELOW

To Petitioner's knowledge there are no official or un-

official reports of the Order of the District Court denying

BOWEN'S Motion to Suppress Evidence. The original opinion of

of the United States Court of Appeals for the Ninth Circuit is

reported at 462 F.2d 347 (9th Cir. 1972). The opinion of this

Honorable Court granting certiorari, granting leave to proceed

in forma pauperis and remanding to the Ninth Circuit in light of

Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2533

(1973), is reported at 413 U.S. 915, 93 S.Ct. 3069 (1973).

To Petitioner's knowledce the en banc decision of the United

States Court of Appeals for the Ninth Circuit, on remand, has not

been officially or unofficially reported as yet. (A copy of said

Opinion is attached hereto as Appendix "A".)

JURISDICTION

l. Petitioner was arrested on January 19, 1971, and

a three count Indictment was returned against him on January 27,

1971, charging him with violations of Title 21, U.S.C. §§176 (a)

and 331()) (3) (b).

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2. On August 23, 1971, Petitioner's Motion to Suppress

Evidence in connection with the instant cause was denied. On

August 27, 1971, BOWEN'S jury trial commenced and on August 31,

1971, BOWEN was found guilty as charged 1 all three counts of

the Indictment. On October 7, 1973, BOWEN was sentenced to

seven years imprisonment. A timely Notice of Appeal was filed

with the Ninth Circuit.

3. On June 16, 1972, the United States Court of

Appeals for the Ninth Circuit affirmed BOWEN'S conviction, and

on July 24, 1972, BOWEN'S Petition for Rehearing en Banc was

denied by said Court. A Petition for Writ of Certiorari and

Request for Leave to Proceed in Forma Pauperis were prepared

and filed with the United States Supreme Court.

4. On June 25, 1973, the United States Supreme Court

granted Petitioner leave to proceed in forma pauperis, vacated

the previous Opinion of the United States Court of Appeals for

the Ninth Circuit and remanded the cause back to the Ninth Cir-

cuit for further consideration in light of Almeida-Sanchez, supra.

$. On October 23, 1973, the United States Court of

Appeals for the Ninth Circuit voted to hold an en banc hearing

on Petitioner's case. On May 9, 1974, said Court held that

fixed checkpoint searches, away from the border, not located at

the functional equivalent of a border, without probable cause,

violated the Fourth Amendment to the United States Constitution.

However, the Court of Appeals further held that Petitioner was

not entitled to the benefits of said ruling as said ruling

was made retroactive only until June 21, 1973, the date of this

Court's rule on Almeida-Sanchez, supra. Petitioner's Petition

for Certiorari is only directed to the retroactivity portion of

said Opinion.

6. No rehearing was requested in the United States

Court of Appeals for the Ninth Circuit in connection with the

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ruling on retroactivity and no orders were requested granting an

extension of time within which to file the Petition for Certi-

orari.

7. The jurisdiction of this Court is invoked under

Title 28, U.S.C. §1254(1).

QUESTIONS PRESENTED

lL. Whether the constitutional principles reaffirmed

in Almeida-Sanchez, 413 U.S. 266, 93 S.Ct. 2533 (1973), and

in United States v. Bowen, F.2d __- (9th Cir. 1974), should

be applied to Petitioner JOHN LEE BOWEN who has challenged the

validity of the instant seizure at all applicable judicial pro-

ceedings, and whose case was pending before this Honorable Court

on the date that Almeida-Sanchez, supra, was decided. Speci-

fically:

A. Whether Petitioner BOWEN should be entitled

to the fruits of his appeal from the United States District

Court for the Central District of California, to the United

States Court of Appeals for the Ninth Circuit, to the

United States Supreme Court, and then back to the United

States Court of Appeals for the Ninth Circuit, where estab-

lished fundamental constitutional principles were applied

to the specific facts of his case and a determination was

made that his contentions that a warrantless checkpoint

search away from the border, without probable cause, was

correct;

B. Whether the decision in United States v. Bowen,

__ F.2d ss (9th Cir. 1974), must be applied to Mr. BOWEN

himself so that the Opinion of the Court is not “mere

dictum" and so that the "case or controversy" requirement

of Article III of the Constitution would be followed; and

C. Whether the United States Court of Appeals

for the Ninth Circuit can refuse to retroactively apply

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Almeida-Sanchez v. United States, supra, to Petitioner when

Almeida-Sanchez, supra, did not “make new law," was itself

based on fundamental constitutional law, and did not overrule

any previous determination of the United States Supreme

Court.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

See Appendix "B.”

STATEMENT OF THE FACTS

The Indictment charged BOWEN with violations of Title

21, U.S.C. §176(a) and Title 21, U.S.C. §331(q) (b). Count 1

charged BOWEN with smuggling marijuana; Count 2 charged sonceal-

ment and transportation of that marijuana; and Count 3 charged

BOWEN with possession of stimulant drugs.

BOWEN was stopped at a checkpoint sixty (60) miles

from the Mexican border. There was no showing that BOWEN had

been in Mexico that day, or any day. BOWEN'S vehicle did not

look unusual or suspicious. It was “routinely” searched for

aliens. The search of BOWEN'S vehicle, a "camper," revealed

the presence of marijuana.

Counsel for BOWEN argued during a pre-trial Motion to

Suppress and at trial that the search of the vehicle could not

be justified as an “alien search" when it was conducted 60 miles

from the Mexican border without any showing of probable cause.

The trial court denied BOWEN's Motion to Suppress, Motion to Dis-

miss, and Motion for Judgement of Acquittal. The United States

Court of Appeals for the Ninth Circuit affirmed BOWEN'S convic-

tion; the United States Supreme Court vacated said decision and

remanded to the United States Court of Appeals for the Ninth

Circuit in light of Almeida-Sanchez, supra; the Ninth Circuit

then held that a search at a fixed checkpoint which was not a

functional equivalent of a border without probable cause was

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illegal; however, said Court also held that Petitioner was not

entitled to the benefit of said rule. The question of retro-

activity of this rule is the only question Petitioner is bring-

ing before this Honorable Court.

REASONS WHY THE WRIT SHOULD BE GRANTED

In Almeida-Sanchez v. United States, supra, this Honor-

able Court held that a search of a vehicle without a warrant and

without probable cause away from the border or the functional

equivalent of the border, was in violation of the Fourth Amend-

ment to the United States Constitution. In reaching this deter-

mination, the Court concluded that no prior decision of this

Court provided the Government with a basis for concluding that

a warrantless search in this situation would be justified. In

fact, the Court stated that both the “administrative search

cases" and the “car search" cases indicated that probable cause

or a warrant, or both, were required before searches of this

type could be conducted. Petitioner's case, which was before

this Honorable Court at the time Almeida-Sanchez, supra, was de-

cided, was remanded to the United States Court of Appeals for

the Ninth Circuit for determination in light of Almeida-Sanchez,

supra. Throughout all court proceedings, Petitioner has contended

that the search of his vehicle without probable cause 60 miles

from the United States/Mexican border was illegal. Respondents,

relying upon decisions from the United States Courts of Appeal

contended, in effect, that Title 8, U.S.C. §1357(a) and (c), and

8 C.F.R. §287.1(a) (2), overruled the established constitutional

doctrine and allowed seizures of this type.

On remand the United States Court of Appeals for the

Ninth Circuit in United States v. Bowen, supra, held that Peti-

tioner was correct and that the search conducted against him was

unconstitutional. However, in Part II of the Opinion the Court

concluded that Petitioner was not entitled to the protection of

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the rule that his case established. This was in direct contra-

diction to the rulings on retroactivity of Almeida-Sanchez, supra,

by the Fifth Circuit in United States v. Byrd, 483 F.2d 1196 (5th

Cir. 1973), and the Tenth Circuit in United States v. Maddox,

458 F.2d 361 (10th Cir. 1973), and United States v. King, 485 F.

2d 353 (10th Cir.

1973). This conflict should be resolved by

this Court. The decision of the United States Court of Appeals

for the Ninth Circuit is also in direct contravention to the

“ease or controversy" requirement of Article III of the Consti-

tution since it reduces the Opinion in United States v. Bowen,

Supra,

to "mere dictum.”

Finally, the United States Covrt of Appeals for the

Ninth Circuit established a new criterion for determining retro-

activity. That Court held that a decision that consistently

followed established constitutional law as articulated in opinions

of this Honorable Court, should not be applied retroactively

even though there were no prior decisions of this Honorable Court

to indicate that a contrary result should be reached. Petitioner

respectfully submits that this Honorable Court should take this

Opportunity to determine the constitutionality of this new retro-

activity test proposed by the United States Court of Appeals for

the Ninth Circuit and its application to Petitioner herein.

ARGUMENT A

THE CONSTITUTIONAL PRINCIPLES REAFFIRMED IN

ALMEIDA-SANCHEZ, SUPRA, AND UNITED STATES Vv.

BOWEN, SUPRA, SHOULD BE APPLIED TO PETITIONER,

JOHN LEE BOWEN, WHO HAS CHALLENGED THE VALIDITY

OF THE INSTANT SEIZURE AT ALL APPLICABLE JUDICIAL

PROCEEDINGS INCLUDING THE UNITED STATES DISTRICT

COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA;

THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT (TWICE); AND THE UNITED STATES

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SUPREME COURT (TWICL).

JOHN LEE BOWEN has challenged the validity of a fixed

checkpoint search 60 miles away from the border from January 19,

1971, until the present. On May 9, 1974, the United States Court

of Appeals for the Ninth Circuit in interpreting Almeida~Sanchez,

supra, held that searches conducted at fixed checkpoints, away

from the functional equivalent of a border, without probable

cause, were unconstitutional. However, the benefits of said

decision were not applied to Petitioner BOWEN himself. This is

in direct contradiction with results reached by the United States

Courts of Appeal for the Fifth and Tenth Circuits. In United

States v. King, supra, in answer to a position similar to tat

adopted by the United States Court of Appeals for the Ninth

Circuit, the Court held:

"In our view, that argument has no

application to one in King's position.

King, like Almeida-Sanchez, challenged on

constitutional grounds the validity of the

statute and regulation throughout the trial

court proceedings and has pursued his chal-

lenge as well. And King now asks that he

be given the same relief as has been afforded

485 F.2d at 359.

in Almeida-Sanchez. We agree."

In United States v. Maddox, supra, the Court replied

to a similar argument by emphasizing that the Appellant in that

case, like Almeida-Sanchez, had challenged on constitutiornal

grounds the validity of the statute and regulation throughout

the trial court proceedings and had continued to press that chal-

lenge throughout the proceedings:

"And Maddox now asks that he be afforded

the same relief as has been afforded in Almeida-

485 F.2d at 363.

Sanchez. We agree."

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In United States v. Byrd, supra, the Court concluded

that an appellant who was in exactly the same position on appeal

as Petitioner BOWEN was before the Ninth Circuit, should be

afforded relief under the doctrine of Almeida-Sanchez. In that

case, the Court did not even deem it necessary to comment on the

obvious point that Petitioners such as Byrd and Bowen, whose

cases were on appeal before the Supreme Court at the same time

as Almeida-Sanchez, should be allowed relief.

In previous cases the United States Supreme Court has

held Fourth Amendment decisions retroactive to cases pending on

direct review at the time the decision was rendered. Stoner Vv.

California, 376 U.S. 483, 84 S.Ct. 889 (1964); Fahy v. Connecti-

cut, 375 U.S. 85, 84 S.Ct. 229 (1963); Ker v. California, 374

U.S. 23, 83 S.Ct. 1623 (1963). To refuse to hold Almeida-

Sanchez, supra, applicable to Petitioner BOWEN would be a grave

injustice. At each and every Stage of the proceedings Petitioner

has contested the constitutionality of the search for, and seizure

of, contraband in his camper.

Sanchez decision and exhausted every possible avenue to avail

himself of his Fourth Amendment rights. It would be a terrible

injustice to deny Petitioner the protection enunciated in Almeida-

Sanchez, supra, in this instance. Petitioner is not a "Johnny-

Come-Lately” who is trying to take advantage of a recent Supreme

Court decision, he is an an individual who has demanded his

rights at every stage of the proceedings against him. In this

light it is important to ntoe that the search of Petitioner's

vehicle took place on January 19, 1971. Neither the decision in

the Supreme Court nor the decision in the United States Court

of Appeals for the Ninth Circuit in Almeida-Sanchez, supra, gives

the date for the seizure of that matter. However, Petitioner is

of the belief that the search in Almeida-Sanchez took place prior

to January 19, 1971. It would be an anomaly to say that Almeida-

Petitioner anticipated the Almeida-.

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Sanchez, who was searched prior to Petitioner, could have the evi-

dence introduced against him Suppressed, while Petitioner, who

was searched at a later date, and who pursued the same avenues

as Almeida-Sanchez, could not.

ARGUMENT B

THE HOLDING IN UNITED STATES V. BOWEN, SUPRA,

MUST BE APPLIED TO PETITIONER BOWEN hiMSELF

FOR THAT DECISION TO MEET THE CASE OR CONTRO-

VERSY REQUIREMENT OF ARTICLE III OF THE UNITED

STATES CONSTITUTION.

Throughout the proceedings in the lower federal courts

and before this Honorable Court, Petitioner BOWEN has contended

that a search at a fixed checkpoint away from the functional

equivalent of a border, without probable cause or warrant, is

unconstitutional. The United States Court of Appeals for the

Ninth Circuit, on May 9, 1974, concluded that Petitioner BOWEN

was correct in his argument. However, that Court refused to

apply the rationale of that decision to Petitioner BOWEN himself. .

This refusal was in direct violation of the “case or controversy”

requirement of Article III of the United States Constitution and,

in effect, rendered the decision outlawing these checkpoint

"mere dictum."

searches This was established in Stovall v. Denno,

388 U.S. 293, 87 S.Ct. 1967 (1967), where the Court stated:

"We have recognized that Wade and Gilbert

are, therefore, the only victims at pre-trial

confrontations in the absence of their counsel

‘to have the beneif of the rules established

in their cases. That they must be given that

benefit is, however, an unavoidable consequence

of the necessity that constitutional adjudica-

tions not stand as mere dictum. Sound policies

of decision-making, rooted in the command of

10.

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Article III of the Constitution that we re-

solve issues solely in concrete cases or

—7

controversies, and in the possible effect

upon the incentive of counsel to advance con-

tentions requiring a change in the law,

militate against denying Wade and Gilbert

the benefit of today's decisions." 87 S.Ct.

at 1972. (Footnotes omitted) (Emphasis added)

See Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 1036

n. 24 (1969).

To allow the United States Court of Appeals for the

Ninth Circuit to refuse to apply the rule established in United

States v. Bowen, supra, to Petitioner BOWEN himself, would be

to allow the United States Court of Appeals for the Ninth Cir-

cuit to effectively overrule this Court's repeated mandate that

constitutional decisions be rendered only where there exists

actual “cases or controversies." |

ARGUMENT C

THE DECISION OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT IN UNITED

STATES V. BOWEN, SUPRA, MUST BE APPLIED

TO PETITIONER BOWEN BECAUSE THERE WAS NO

PREVIOUS DECISION OF THE UNITED STATES

SUPREME COURT TO JUSTIFY A CONTRA RESULT;

IN FACT, ALL DECISIONS BY THE SUPREME COURT

WOULD INDICATE THAT THE SEARCH AGAINST

‘PETITIONER BOWEN WAS, IN FACT, UNCONSTI-

TUTIONAL.

In refusing to apply the rationale of Unite? States v.

Bowen, supra, to Petitioner, the United States Court of Appeals

for the Ninth Circuit developed a new test for retroactivity.

This test, in essence, states that if any lower court has pre-

ll.

™-

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viously held contra to a recent Supreme Court decision, said

lower court does not have to apply the recent United States

Supreme Court decision retroactively. As can be seen in the

factual situation of Petitioner, this test is absurd. Prior to

this Honorable Court's decision in Almeida-Sanchez, supra, this

Court had held that searches of automobiles without probable

po se administrative searches without ey, see un-

constitutional. It would seem obvious that the lower courts

would recognize that these constitutional principles could not

be ones by statute, administrative regulation, or lower court

rulings. United States v. Arizona, 400 U.S. 112, 91 S.Ct. 2060

(1970); Marbury v. Madison, 1 Cranch 137, 178, 180 (1803).

The end result of this disregard for decisions from this

Honorable Court by the lower courts was the so-called "alien

exception" to the Fourth Amendment. As previously stated, this

exception was in direct conflict with this Honorable Court's

prior decisions and, in effect, placed the lower state and federai

courts in a position “above the law." To allow the lower courts

to refuse to retroactively apply the principles reaffirmed in

Almeida-Sanchez, supra, and explicitly defined in United States

v. Bowen, supra, to Petitioner BOWEN would be tantamount to this

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1971);

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975 (1970); Brinecar

v. United States, 338 U.S. 160, 69 S.Ct. 1302 (1949); Hus Vv.

Unite tates, 282 U.S. 694, 51 S.Ct. 240 (1931); and Carroll v.

hited States, 267 U.S. 132, 45 S.Ct. 280 (1925).

~ Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727; See

v. City of Seattle, 357 U.S. 541, 87 S.Ct. °

™~ See United States v. Elder, 425 F.2d 1002 (9th Cir. 1970);

F.2d 91, 92-93 (9th Cir. 1967);

Barba~-Reyes v. United States, 387

Fernandez v. United States, 321 F.2d 283 (9th Cir. 1963);

Contrearas v. United States, 291 F.2d 63 (9th Cir. 1963);

Title /({a) and (c); and 8 C.F.R. §287.1(a) (2).

’ U.S. .

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Court condoning lawless behavior by Government officials and

the lower echelons of the judiciary.

This type of retroactivity test could go a long way in

emasculating the power of the Supreme Court to render a final

decision in conflicts between the decisions of the United States

Courts of Appeal. For example, if the Ninth Circuit held that

warrantless border searches were constitutional and the

Fifth Circuit held that warrantless border searches were un-

constitutional, a subsequent decision by this Court that warrant-

less border searches were in fact unconstitutional, would dis-

allow all Fifth Circuit border searches without a warrant, but

it would allow all Ninth Circuit searches up until the date of

the Supreme Court's decision. A retroactivity rule that would

yield this result would turn the present "confusion" on retro-

activity into "chaos."

CONCLUSION

For the above-mentioned reasons, Petitioner JOHN LEE

BOWEN respectfully requests that this Honorable Court apply the

underlying rule of law in United States v. Bowen, supra, to

Petitioner BOWEN.

DATED: June 6, 1974

Respectfully submitted,

/ ee

, Ps Ji YY a

MICHAEL D. NASATIR, of Nasatir,

Sherman & Hirsch, Attorneys for

Petitioner BOWEN

4’

- NEWTON, of Newton, Re &

sell, Attorneys for Petitioner

BOWEN

13.

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UNITED STATES — or APPESIEY yp, OF Abpea

FOR THE NINTH CIRCUIT +

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

-vs- No. 72-1012

JOHN LEE BOWEN,

Defendant-Appellant.

Appeal From the United States District Court

For the Southern District of California .

Before: CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY,

ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN,

WALLACE and SNEED, Circuit Judges

PER CURIAM:

This appeal is before the court upon the remand of

the Supreme Court, Bowen v. United States, 413 U.S. 915

(1973), vacating 462 F.2d 347 (9th Cir. 1972).

Bowen was convicted of smuggling and transporting

marijuana and of possessing depressant and stimulant drugs.

The evidence of the violations was discovered during a rou-

i tine search for illegal aliens of a camper truck at a perman-

tent border-patrol checkpoint on California State Highway 86

approximately 36 air miles and 49 highway miles north of the

Mexican border. Highway 86 is a principal route from Mexicali

to Los Angeles by way of Indio and Riverside.

‘! On June 21, 1973, the Supreme Court held in Almeida-

ij Sanchez v. United States, 413 U.S. 266 (1973), rev'g 452

[F.2d 459 (9th Cir. 1971), that border-patrol agents on

i) roving patrol cannot stop and search cars pursuant to

8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1 without probable

APPENDIX "A"

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$-3-72-100M-940!

cause Or warrant.

Two scparate issues are presented here: (1) How

does Almeida-Sanchez affect searches conducted at a fixed

checkpoint? (2) If fixed-checkpoint searches, as well as

roving-patrol searches, are included within the ambit of

the Almeida-Sanchez ruling, should that ruling be applied

to fixed-checkpoint searches conducted by borcer-patrol

agents prior to June 21, 1973, in cases pending on appeal

on that date?

For the reasons set forth in Part I of the opinion

of the majority of the court here, we hold that the rule

announced by the Supreme Court in Almeida-Sanchez does

apply to searches at fixed checkpoints. However, for the

reasons set forth in Part II, we also hold that Almeida-

Sanchez will not be applied to fixed-checkpoint searches

conducted prior to June 2l, 1973.

The judgment of conviction is affirmed.

<~o

——

i eo 7 a oc. »&» wo WN

es ss — _—_ —_-_ + |

8 oso & acl CC Ol > oo NS SY OC

UNITED STATES v. BOWEN

No. 72-1012

PART I

GOODWIN, Circuit Judge:

According to the Supreme Court in Almeida~Sanchez v.

United States, 413 U.S. 266 (1973), the government has been

conducting three types of alien searches pursuant to 8 U.S.C.

§ 1357(a) and 6 C.F.R. § 287.1: (1) searches at "([p)erma-

nent checkpoints * * * maintained at certain nodal inter-

sections"; (2) searches at “temporary checkpoints * * *

established from time to time at various places"; and (3)

searches carried out by “roving patrols.” 413 U.S. at 268.

The government argued in Almeida-Sanchez that all these

searches conducted “within a reasonable distance from any

external boundary,” 8 U.S.C. § 1357(a) (3), could be con-

sidered border searches, and thus be carried out with

neither a warrant nor probable cause. See Carroll v. United

States, 267 U.S. 132, 154 (1925).

The search condemned in Almeida-Sanchez was of the

“roving patrol” type. It was conducted 25 miles north of

the Mexican border, on a California east-west highway that

lies at all points at least 20 miles north of the border.

413 U.S. at 267-68, 273. The search of Bowen's camper,

however, was a fixed-checkpoint search, a type of search

reserved from the Almeida-Sanchez decision. The checkpoint,

on California State Highway 86, was between the major popu-

lation centers of the Imperial Valley and Indio.

The opinion in Almeida-Sanchez, delivered by Mr.

Justice Stewart, leaves little doubt that traditional

Fourth Amendment standards apply to fixed-checkpoint

searches as well as to roving-patrol searches. Early in

the opinion, after listing the three types of surveillance

conducted by the Border Patrol along inland roadways and

Part I - Page l

— ee

Yt -Handatone

8-26 @ 60M -420)

noting that the government argues that “[i)n all these

operations * * * the agents are acting within the Constitu-

tion when they stop and search automobiles without a warrant,

without probable cause to believe the cars contain aliens,

and even without probable cause to believe the cars have

made a border crossing,” the Court stated that "“[t)he only

asserted justification for this extravagant license to

search is § 287 of the tenigration and Nationality Act,

66 Stat. 233, 8 U.S.C. § 1357(a) * * * ." 413 U.S. at 268.

Moreover, the government in Almeida-Sanchez sought to

justify roving-patrol searches on the basis of 8 U.S.C.

§ 1357(a) (3) and 8 C.F.R. § 287.1(a)(2). Here, the govern-

ment seeks to justify the fixed-checkpoint search by refer-

ence to the same statute and regulation. But, when the

Supreme Court held that this statute and regulation could

not exempt searches carried out pursuant to them from tra-

ditional Fourth Amendment scrutiny, see 413 U.S. at 272,

the government's statutory justification for fixed-checkpoint

searches as well as for roving-patrol searches vanished.

Finally, at the very end of its opinion, 413 U.S. at

274-75, the Court quoted from Carroll v. United States as

follows:

“ * * * It would be intolerable and unrea-

sonable if a prohibition agent were authorized

to stop every automobile on the chance of find-

ing liquor and thus subject all persons law-

fully using the highways to the inconvenience

and indignity of such a search. Travellers may

be stopped in crossing an international boundary

because of national self-protection reasonably

requiring one entering the country to identify

bimself as entitled to come in, and his belong-

ings as effects which may be lawfully brought

in. But those lawfully within the country,

entitled to use the public highways, have a

right to free passage without interruption 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 * * * ."

267 U.S. at 153-54.

Part I - Page 2

PPT -tandsions

® 26-69 KOM -a2¥)

It would be strange indeed for the Court to quote this lan-

guage if it meant to Leave intact the government's asserted

right to establish fixed checkpoints anywhere within 100

miles of the border. Surely, searches at these checkpoints,

like searches by roving patrols, have the effect of violat-

ing the "right to free passage without interruption or

search" of "those lawfully within the country * * *

searches, therefore, must meet constitutional standards

regardless of their utility in carrying forware the diffi-

cult mission of the Border Patrol.

To be sure, Mr. Justice Powell in his concurrence

and Mr. Justice White in his dissent both correctly pointec

out that Almeida-Sanchez did not present a question of a

fixed-checkpoint search. See 413 U.S. at 275-76, 288.

Nonetheless, these disclaimers do not override clear indi-

cations in the opinion of the Court that any distinction

between fixed and movable checkpoints will be meaningless

unless the distinction can be based upon reasoned Peurth

Amendment considerations.

The government araques that there are, in fact, sig-

nificant constitutional differences between roving patrols

and fixed checkpoints. First, since fixed checkpoints

often involve a stop and inspection of every car passing

through them, they provide much less opportunity for the

unfettered discretion of the police officer that was con-

See 413 U.S. at 268.

demned in Almeida-Sanchez. Second,

being stopped on a lonely road at night in a sparsely

populated part of the country (Almeida-Sanchez) is more

burdensome to the traveler than a stop at an identified

and lighted checkpoint (Bowen). The government contends

once again that the Constitution does not forbid all

Part I = Page 3

o* Sueh

ees

co + SO WN

PVT teemlstane

searches, but only “unreasonable” ones. In support of the

validity of arguably “reasonable” fixed-checkpoint searches,

the government cites a number of judicial decisions uphold-

ing roadblocks established for the purpose of checking

drivers’ licenses and registrations. See, e.cg., United

States v. Croft, 429 F.2d 884, 886 (10th Cir. 1970); Peosle

vy. Washburn, 265 Cal. App. 24 665, 71 Cal. Rptr. 577, 581

(2d Dist. 1968); State v. Smolen, 4 Conn. Cir. 385, 232 A.2é6

339 (App. Div.), pet. for certification for apreal denied,

231 A.2d 283 (Conn. 1967), cert. denied, 389 U.S. 1044

(1968); State v. Severance, 108 N.H. 404, 237 A.2d 683

(1968).

We agree with the government that a fixed-checkpoint

search that does not entail significant delay is probably

less offensive than a roving-patrol search. Being asked

to stop at a fixed checkpoint is not frightening to a sea-

soned traveler. Being flagged over to the side of the

road by a roving patrol might be traumatic. Also, an offi-

cer on roving patrol probably has more discretion in decid-

ing which cars to stop than one stationed at a fixed check-

point, although the difference might be less than the |

Since not all vehicles passing throuch

a checkpoint are stopped, and since not all vehicles stopped

government contends.

are searched, the officer at the checkpoint still retains

a good deal of discretion to “single out" some travelers

for stops or intrusive searches.

Nonctheless, even conceding that a fixed-checkpoint

search might be less of an imposition on domestic travelers

— ’

than a roving-patrol search we able to find nothing in

the opinion of the Court in Almcida-Sanchez which suspends

Fourth Amendment standards in dealing with immigration |

searches at fixed checkpoints.

—_—_——

Part I - Page 4

} |

¥Pi-Oandatone

sar)

{

Moreover, the government's reliance on judicial deci-

sions upholding automobile stops for ghe purpece of check-

ing drivers’ licenses is misplaced. Although the govern-

ment has cited only roadblock stops, there is a parallel

line of decisions upholding roving-patrol stops to check

for valid license and registration. See, e.c., Lipton v.

United States, 348 F.2d 591 (9th Cir. 1965); State v. Rear,

19 Ariz. App. 131, 505 P.2d 569 (Div. 1, Dept. B, 1973);

Leonard v. State, 496 S.W.2d 576 (Tex. Crim. 1973). In

other cases, courts did not even find the fact that the

stop may have been at a roadblock rather than incident to

a roving patrol significant enough to mention. See, e.c.,

United States v. Lepinski, 460 F.2d 234, 237 (10th Cir.

1972); Myricks v. United States, 370 F.2d 901 (5th Cir.),

pet. for cert. dismissed, 386 U.S. 1015 (1967). Hence,

since this line of vehicle-registration-check decisions

was as relevant in Almeida-Sanchez as here, we do not fine

these decisions to be an appropriate means for distinsuish-

ing Bowen's search from that of Almeida-Sanchez.

What is more, the rationale for the drivers'-license

decisions will not support the government's position here.

For example, in Lipton v. United States, supra, in which

this court upheld a stop by a motorcycle police officer

of a youth driving an automobile, we reasoned that there

was no way for a police officer to determine that a driver

had a valid license permitting him to operate a motor

vehicle other than by stopping him and asking him to pro-

duce his license. We noted:

"* * * A contrary holding would render

unenforceable the State statute recuiring that

automobile drivers be licensed.“ 348 F.2d

at 593.

Part I - Page 5

We are not persuaded that laws prohibiting illegal ismigra-

tion will be rendered similarly unenforceable should we

deny to the government the power to stop and search automo-~

biles, without probable cause or warrant, at fixed check-

points.

We hold, then, that fixed-checkpoint searches, like

roving-patrol searches, even though conducted within a

“reasonable distance" from the border, are not necessarily

exempt from the traditional Fourth Ame ent recsuirerent

of a warrant ox eromablec cause. This holding, however,

eee

merely shifts the focus of our inquiry. The opinion in

_ ——_

Almeida-Sanchez does not require that a border searcn, to

be constitutional, be at the border itself; rather, a

legitimate border search may also be conducted “in certain

circumstances” at the border's “functional equivalents.”

413 U.S. at 272. The search conducted in the present case

was obviously not at the border itself; nor was it ata

“functional equivalent" of the border.

The “function” of a border checkpoint is to regu-

late border crossings. Thus, in attempting to clarif

what would constitute a “functional equivalent" of the

border, the Court in Almeida-Sanchez offered two examples:

“ * * * Por example, searches at an

established station near the border, at a

point marking the confluence of two or more

roads that extend from the border, micnt be

functional equivalents of border searc*es.

For another example, ‘a search of the passen-

gers and cargo of an airplane arriving at a

St. Louis airport after a nonstop flight from

Mexico City would clearly be the functional

equivalent of a border search." 413 U.S.

at 272-73. (Emphasis added.)

These examples are then contrasted with the search con-

ducted in Almeida-Sanchez:

Part I - Page 6

rn a

“* * * (T)}he search of * * * {an} auto-

mobile by a roving patrol, on a California

road that lies at all points at least 20 miles

north of the Mexican border, was of a wholly

different sort * * * ." 413 U.S, at 273.

In other words, if a search takes place at 4 location where

virtually everyone searched has just come from the other

side ofetha border, the search is 2 functional equivalent

ofee-border search. In contrast, if a search taxes place

at a location where a significant number of those stopped

are domestic travelers going from one point to another

within the United States, the search is not the functional

equivalent of a border search. One need only contemplate

the volume of domestic travel between Buffalo and Rochester,

New York, to see why a checkpoint between those two cities

could not be the functional equivalent of a border check-

point even though the checkpoint could be less than twenty

miles from an international border.

In addition to the two examples of a functional

equivalent of a border search provided by the Court in

Almeida-Sanchez, other examples may be drawn from two

series of decisions of this court. Representative of the

first line of authority is Alexander v. United States,

362 F.2a4 379 (9th Cir.), cert. denied, 385 U.S. 977 (1966).

In that case customs officials, acting upon a tip from an

informer, placed the defendant's automobile under surveil-

lance when it crossed the border, and kept it under almost

continuous watch as it made suspicious movements through

the streets of a border city. In holding that a subse-

quent search by customs officials was properly called a

border search, the court stated:

“where * * * a search for contraband by

Customs officers is not made at or in the

immediate vicinity of the point of inter-

national border crossing, the legality of

Part I - Page 7?

oclUC comlhlmlCSS

the search must be tested by a determination

whether the totality of the surrounding cir-

cumstances, including the time and distance

elapsed as well as the manner and extent of

surveillance, are such as to convince the

fact finder with reasonable certainty that

any contraband which might be found in or on

the vehicle at the time of the search was

aboard the vehicle at the time of entry into

the jurisdiction,of the United States * * * .”

362 F.2d at 382.

In a second line of our own cases, this court has

treated a search north of the border as the equivalent of

a border search, where it appeared with reasonable cer-

tainty that the vehicle searched contained either coods

which have just been smuggled or a person who had just

crossed the border illegally. See, e.g., United S-ates v.

Weil, 432 F.2d 1320 (9th Cir. 1970), cert. deniec, 401 U.S.

947 (1971), in which this court held:

"“ * # * [I)£ customs agents are reason-

ably certain that parcels have been (a)

smuggled across the border and (b) placed

in a vehicle, whether the vehicle has itsel

crossed the border or not, they may stop anc

search the vehicle. Similarly, if agents

are reasonably certain that a person has

crossed the border illegally, and has then

entered a vehicle on this side of the bor-

der, we think that they may stop and searc>.

the vehicle and person. They can assume

that he may have brought something with hir."

432 F.2d at 1323.°

In both of these pre-Almeida-Sanchez lines of Ninth

Circuit authority, as well as in the two examples offered

by the Supreme Court in Almeida-Sanchez, although the

search was not conducted precisely at the border, it still

was directly related to a recent entry from across a bor-

der. See United States v. Almeida-Sanchez, 452 F.2d at

463 (dissenting opinion of Browning, J.), rev'd, 413 U.S.

266 (1973).

— <a e o

It is clear that the search conducted in the present

case lacks the vital connection between the vehicle stopped

Part I - Page 8

rr ee ee |

and a reasonable certainty, or even a

or its contents had recently crossed an ational bor-

epproximateiy 36 air miles and 49

The checkpoint was /kx» NADL “highway

Sat it

der.

miles north of the Mexican border. Several significant

population centers and highways, including Interstaie 8,

a major east-west freeway that connects the Southwest with

the West Coast, lie between the checkpoint and the border.

Under these circumstances, border-patrol agents had no

reason to believe that virtually all or even most of the

cars passing through their checkpoint had recently, or ever,

crossed the border. Moreover, there was neither the con-

tinuing surveillance from the border nor the dependable

intelligence from other sources required to fit this case

into the Alexander line of decisions: nor was there the

reasonable certainty that the vehicle contained either

recently smuggled goods or aliens required under the weil

line. See United States v. Petersen, 473 F.2d 874 (Sth

Cir. 1973); United States v. Mitchell, 472 F.2d 67, 68 n.1

(9th Cir. 1973). Hence, the record in this case clearly

indicates that the search conducted was not the functional

equivalent of a border search. Were the record more

equivocal, we would not hesitate to remand the case +o

the district court for a determination of functional equiv-

alency. Where the record is as clear as it is here, how -

ever, we see no need for a remand.

As its last line of defense, the government arsues

that fixed-checkpoint searches, even if not the functional

equivalent of border searches, should be upheld sirsly

because they are urgently needed. The government's diffi-

culty in detecting and repatriating illegal aliens along

our southern boundary needs no new documentation here.

Part I - Page 9

0-14-67- 129M. 1. 08

The short answer to this argument, however, is that neccs-

sity alone cannot override the Fourth Amendment's prohibi-

—

A similar

—_

tion against unreasonable searches and seizures.

argument was made and rejected in Almeida-Sanchez itself.

See 413 U.S, at 293 (dissenting opinion of White, J.). Mr.

Justice Powell in his concurring opinion in Almeida~-Sanchez

suggested that warrants based on area-wide conditions could

be employed to resolve the contending interests of law

enforcement and Fourth Amendment safeguards. 413 U.S. at

275-85; see generally The Supreme Court - 1972 Term, 87 Harv.

L. Rev. 55, 200-04 (1973). Since the government did not

seek such a warrant in this case, we need not now express

an‘opinion on a hypothetical search conducted pursuant to

a judicial warrant authorizing searches for a limited time

at a specific checkpoint. We refer to Mr. Justice Powell's

opinion here merely to suggest to the government that pro-

cedures less offensive to the Fourth Amendment than judi-

cially unapproved checkpoint searches might be devised and

implemented to supplement its program for enforcing immi-

gration laws.

Our conclusion that Almeida-Sanchez is as applicable

to fixed-checkpoint searches as to roving-patrol searches

is consistent with that reached by the Court of Appeals for

the Fifth Circuit in United States v. Speed, 489 F.2d 478

(Sth Cir. 1973). There, the court held that a border-

patrol search at a temporary checkpoint on a north-south

highway approximately 65 to 75 miles north of the Mexican

border was neither a border search nor a functional equiva-

lent of a border search and, hence, was unconstitutional.

The court commented, “The distinction between a checkpoint

and a roving patrol is not important." 489 F.2d at 480.

Part I - Page 10

Likewise, the Court of Appeals for the Tenth Circuit

has held that a warrantless search, without probable cause,

of an automobile at the checkpoint at Truth or Conseguences,

New Mexico, violates the Fourth Amendment unless a search

at that checkpoint could be deemed the functional equiva-

lent of a border search. United States v. King, 485 F.2d

F.2d 353 (10th Cir. 1973); United States v. Maddox, 485 F.2¢

361 (10th Cir. 1973).

We hold here that under the rule announced by the

Supreme Court in Almeida-Sanchez the search of Bowen's

—

camper truck violated the Fourth Amendment because the

search wag io: the functional equivalent of a border search

and was authorized neither by warrant nor by probable cause.

Judges Merrill, Browning, Duniway, Ely, Hufstedler

and Trask concur in this majority opinion (Part I),

os8Fgem0UlCOlmlCUD

PPh Sanontone .-

0-14.67~—125M — J000

‘

Pret os tho

UNITED STATES v. BOWEN

No. 72-1012

FOOTNOTES :

lur. Justice Stewart's opinion is explicitly identi-

fied as “the opinion of the Court." It was approved by a

majority of five justices, including Mr. Justice Powell, who

stated, " * * * I join the opinion of the Court * * * ,"

413 U.S. at 275. Mr. Justice Powell has demonstrated else-

where that he understands the difference between concurring

in an opinion and concurring only in its result. Compare

Weinber = ¢ v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609,

637 (1973) ("I concur in Part II of the Court's opinion* * *,

As to Part I * * * I concur only in the result * * * .")

with Cleveland Bd. of Educ. v. LaFleur, 42 U.S.L.W. 4186,

4192 (U.S. Jan. 21, 1974) ("I concur in the Court's result,

but I am unable to join its opinion.") and Frontiero v.

Richardson, 4ll U.S. 677, 691 (1973) (concurring only in

judgment). The language of Mr. Justice Powell's concurrence |

in Almeida-Sanchez strongly suggests that his concurrence

was not limited to the result. Moreover, his concurring

opinion was written primarily to elaborate his views on an

issue not presented by the facts of Almeida-Sanchez and not

reached by the other justices (but see 413 U.S. at 270 n.3):

whether a roving search would be sustainable if it were

based on an area search warrant.

But see Commonwealth v. Swanger, 453 Pa. 107, 307

A.2d 875 (1973), in which the Supreme Court of Pennsylvania

held that a routine check of a motor vehicle to determine

whether it and its operator were properly licensed violates

the Fourth Amendment. See also State v. Cloman, 254 Or. l,

6 n.2, 456 P.2d 67, 69 n.2 (1969), in which the Supreme

Part I =- Page a.

’

‘

Court of Oregon expressly reserved ruling upon "the right to

stop and examine the driver's operating license or the right

to stop at a general roadblock."" See generally Note, Non-

arrest Automobile Stops; Unconstitutional Seizures of the

Person. 25 Stan.L.Rev. 865 (1973).

3Mr. Justice Powell in his concurrence also noted;

"The search here involved * * * was not a border search, nor

can it fairly be said to have been a search conducted at the

"functional equivalent’ of the border." 413 U.S. at 275-276.

4 See also United States v. Mejias, 452 F.2d 1190,

1192-1193 (9th Cir. 1971): United States v. Terry, 446 F.2d

579 (9th Cir.), cert. denied, 404 U.S. 946, 92 S.Ct. 301, 30

L.Ed.2d 261 (1971): Castillo-Garcia v. United States, 424 F.2d

482, 484-485 (9th Cir. 1970); Bloomer v. United States, 409

F.2d 869, 870-871 (9th Cir. 19659): Gonzalez-Alonso v. United

States, 379 F.2d 347, 349-350 (9th Cir. 1967): Rediquez-

Gonzalez v. United States, 378 F.2d 256, 258 (9th Cir. 1967):

Leeks v. United States, 356 F.2d 470, 471 (9th Cir. 1966):

King v. United States, 348 F.2d 814, 816 (9th Cir.), cert.

denied, 382 U.S. 926, 86 S.Ct. 314, 15 L.Ed. 2d 339 (1965):

Murgia v. United States, 285 I.2d 14 (9th Cir. 1960), cert.

denied, 366 U.S. 977, 81 S.Ct. 1946, 6 L.Ed2d 1265 (1961),

cert. denied, 376 U.S. 946, 84 S.Ct. 803, 11 L.Ed.2d 769

(1964).

*see also United States v. Vigil, 448 F.2d 1250

(9th Cir. 1971): United States v. Markham, 440 F.2d 1119,

1121-1123

Part I - Page b

ZOO IO

<r eres ene

Pre BabesTONeE -

23 (9th Cir. 1971). Sec generally Note, From Bags to Body

Cavities: The Law of Border Search, 74 Colum. L. Rev. 53

(1974); Note, In Search of the Border: Searches Conducted

by Federal Customs and Immigration Officers, 5 N.Y.U.J.

Int'l L. & Politics 93 (1972).

Scr. United States v. King, 485 F.2a 353 (10th Cir.

1973); United States v. Maddox, 485 F.2d 361 (10th Cir.

1973). Both cases held that a warrantless search, without

probable cause, of an automobile at the checkpoint in Truth

or Consequences, New Mexico, violates the Fourth Amendment

unless a search at that checkpoint could be deemed the func-

tional equivalent of a border search. Both cases were

remanded to the district court for determination of that

issue. However, beyond directing the district court to

interpret the phrase as it was used in Alreida-Sanchez,

the opinions offer no guidance in defining the functional

equivalent of a border search.

Part I = Page ¢

United States v. Boren |

No. 72-1012 United States v. Bowen

Dissent to Part I

t (part 1) 4 in this case, 1 add this concurring opinion

2 WALLACE, Circuit Judge, Dissenting: 2 he tearth anaes io ea

. I respectfully dissent to Part I of the a ameees ° 8 1413 U.S. at 275 (emphasis added). Justice Powell's concur-

4 pertaining to the applicability of Almeida-Sanchez to searches 4 | sence, snecntnne. ebte o Citi Seiten: end Gee 6 mubeele.

. conducted at fixed checkpoints. . ‘only to that part of the Justice Stewart opinion which invali-

. With one fell swoop, the majority in Part — . | dates the type of search “conducted in [that] case"--a roving

’ down a law enforcement procedure used for 44 years to curtail 7 Scenes er, ,

a. the ever-increasing tidal wave of illegal aliens. The use of 8 | ike enbihens Gtettnenten to hens bine one

° fixed checkpoints has been neither secret nor clandestine. : 9 — focus by Justice Powell's demarcation of the four areas

: - procedure has come ane our court en nee ese : denels tennis (eenteais enteiiie

. — no hint that the practice ee siping sepa ee infirn. - | (The search of Almeida-Sanchez! automobile] was

- | For vs to reverse ourselves at this late date requires “ss m | to have been a search conducted at —_ _tene-

“ and convincing reasons. See Smith v. United States, 273 F.2¢ : > Seo — seat itationet nceeetete

- i 462, 465 (10th Cir. 1959), cert. denied, 363 U.S. 846 (1960). i 1 OX Searches 2 permanent or temporary oe

\, fail to see them in the majority decision. The only ap~ tional equivalent.

. Baas change is the opinion, or better said opinions, in - on U.S. at 275-76 (emphasis added). Thus, one could infer

18 | nlmeide-Sanches v. United States, 413 U.S. 266 (1973). A ” | from his statement that searches can constitutionally occur

19 } careful analysis, therefore, is required to see if that ease. : at (1) the border, (2) functional equivalents of the border,

20 ! dictates our reversal of a long-standing and accepted police Mi (3) permanent checkpoints and (4) temporary checkpoints. He

a1 | practice. i emphasized that the search in question did not occur in any

22 The majority concedes that Almeida-Sanchez is a - of the four categories. His concurrence, therefore, cannot

23 1 case involving stops and searches by roving border patrol - ; be said to give any weight to projecting Almeida-Sanchez to

24 officers. But by some mystic bridging, it holds that - | cover searches for aliens at fixed checkpoints. He spe-

25 Almcida-Sanchez also requires that we outlaw searches at - I cifically and emphatically limited his concurrence to answer-

26 : fixed checkpoints. The Opinion of the Court was delivered 26 | ing the question of “whether and under what circumstances the

27 } by Justice Stewart and concurred in by Justices Douglas, 07 | Border Patrol may lawfully conduct roving searches of auto-

28 Brennan and Marshall. That opinion becomes the majority oniy 28 | mobiles in areas not far removed from the border for the

= } with the added vote of Justice Powell. Justice Powell wrote: 29 purpose of apprehending aliens illegally entering or in the

30 : While I join the opinion of the Court, which 30 country." 413 U.S. at 276.

‘ sufficicntly establishes that none of our Fourth | |

a” Amendment decisions supports the search conductec 31 Our brothers of the Tenth Circuit were faced with

32 32 a question similar to that presented in this case in United

MiSertee -1- a >

a rr ae ae —

United States v. Bowen ;

Dissent to Part I

1 States v. Bowman, P.2d ss (10th Cir. Nov. 29, 1973), 1 the concurrence of the three other Justices, concluded:

3 which involved a stop at a fixed checkpoint located a few 2 "Neither, apparently, is it disputed that warrantless searches

é miles north of Truth or Consequences, New Mexico. Although 3 for aliens without probable cause may be made at fixed check-

4 they arrived at their conclusion by an alternative route, they 4 points away from the border." 413 U.S. at 288. Thus, four

° discussed the cffect of Almcida-Sanchez on the validity of 5 Justices have specifically taken a position diametrically

. the initial stopping of the defendant's vehicle and held: 6 opposed to that adopted by the majority in this case. As

’ _" therefore do not read the [Almcida-Sanchez] decision as 7 Justice Powell has limited his opinion to the facts of the

° ‘neem the right of immigration —s to raxe routine 8 roving search, we are left to speculate as to his approach to

. } inquiries as to an individual's nationality." The Tenth ’ the fixed checkpoint in. Suffice it to say that based on

~ Circuit apparently has recognized that Almeida-Sanc-2z does 10 the Almeida-Sanchez opinions, four Justices have concluded

- not resolve the validity of immigration stops and searches " i that searches for aliens at fixed checkpoints are not consti-

13 at fixed checkpoints. ; tutionally infirm and that there is no majority consensus to

14 Ignoring the significance of Justice Powe-1's a the contrary. I, therefore, fail to see how the majority in

18 limited concurrence, the majority relies basically ~pon the mf this case can draw comfort from the Almeida-Sanchez decision.

16 | language quoted by Justice Stewart from Carroll v. united , After concluding that the search of Bowen's vehicle

17 States, 267 U.S. 132 (1925), and contends that that language - could be justified if it were conducted at a "functional

18 demonstrates that Almeida-Sanchez also controls the question - equivalent" of the border, the majority holds that as a matter

19 | of searches at fixed checkpoints. However, here the majority - of fact, this checkpoint is not a functional equivalent.

20: jjfalls into the trap of failing to realize that Justice Powell’: 20 | Justice Stewart acknowledges in Almeida-Sanchez that border

21 concurrence does not necessarily make the language in the 21 searches may be conducted at the functional equivalents of

22 Justice Stewart opinion a pronouncement by a majority of th 22 the border and gives us two examples. 413 U.S. at 272-73.

23 pete 23 , But the examples give us precious little by way of definition.

34 | Because of the close fragmented vote anc because 24 | The majority attempts to expand that definition by referring

= Justice Stewart's opinion must be limited in application to 25 c border extension cases where the vehicle involved has been

- ‘ae patrols, great insight can be secured from the dissent- 28 I ander surveillance since it crossed the border, or where it

ad fing opinion of Justice White in which the Chief Justice and 27 TP reasonably certain that persons had just illegally entered,

- ,Justices Blackmun and Rehnquist concurred. Justice White, 28 or goods were just illegally smuggled into the United eae

- after noting that the Court in Carroll v. United Ssates, 267 29 These cases are far different from checkpoint cases. They

: }U.S. at 154, recognized that neither a warrant nor probable 30 compare like apples and oranges. The only real assistance

ve cause is required to stop and search at the borders, stated 31 comes from the two examples in Justice Stewart's opinion.

this right was undisputed in Almeida~Sanchez. He also, with as Yet, with this little guidance, the majority makes a factual

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United States Vv.

Dissent to Part I

Bowen

finding that the checkpoint in this case was not a functional

equivalent. Wow is this done? The majority merely states,

based on “the record." The record in this case, however,

only tells us where the fixed checkpoint is, how far it is

from the border, that several highways intersect Highway 86

before the checkpoint, that there are several cities along thie

Highway before the checkpoint, that Bowen was stopped to see is

any aliens were aboard his vehicle and that during the stop,

contraband was discovered. There is no evidence as to the

amount of traffic that comes through the checkpoint from the

border area, the number of illegal aliens arrested at the

checkpoint, or other information that would seem to bear on

| this question. The imprudence of deciding this issue on an

incomplete record looms ever larger in view of the fact that 4

district court, after taking extensive testimony, concluded

that the Route 86 checkpoint was a functional equivalent of

the border. United States v. Baca, F.Supp. (S.D?-

Cal. Jan. 3, 1974). We would be far better advised to test

the majority's theories on a factual record such as that de-~

veloped in Baca rather than to make factual assumptions whic?

|may or may not be correct.

This leads to the real question: What test does tthe

‘majority apply to determine whether a fixed checkpoint meets®

‘the strictures of the Fourth Amendment?

It says that the government cannot justify searche®s

1, . . .

¢ made at fixed checkpoints without a warrant or probable causS©

on the basis of 8 U.S.C. § 1357(a)(3) and 8 C.F.R. § 287.1(29) |

because the statute and regu! ation were vitiated in Almeida-—

But, once again, the majority fails to realize thaat

the Justice Powell concurrence limits the Opinion of the covwrt

so that it cannot be construed to apply to fixed checkpoints:

But even if one ignores the significance of Justice Powell':<S

T 4

United States v.

Dissent to Part I

Rowen

concurrence, Justice Stewart did not state that 8 U.S.C. §

1357(a) and the regulations issued pursuant to it were uncon~

stitutional on their face, but merely that the statute could

not vindicate a search that is otherwise in violation of the

Fourth Amendment. Consequently, when the majority invalidates

searches at fixed checkpoints simply because they too are

§ 1357 (a) without independent

conducted pursuant to 8 U.S.C.

consideration of whether such searches are reasonable under

'the Fourth Amendment, they bridge a gap with oversight rather

than sound legal reasoning.

After finding as a fact that the checkpoint on

Highway 86 was not a functional equivalent (in spite of there

| being no record upon which such a conclusion could be basec)

| ana after holding that the statutory power has been dissolved

by Almeida-Sanchez (when there was no majority of the Supreme

Court so holding), the majority concludes that the Fourth

Amendment was violated because (1) “the search was not the.

and (2) it “was au-

thorized neither by warrant nor by probable cause." The

functional equivalent of a border search"

imajority's test is incomplete. Four Supreme Court Justices

have conclded that warrantless searches for aliens without

probable cause may be made at fixed checkpoints. Their test

was one of balancing the appropriate interests to determine

whether the search was reasonable. Such an approach does not

| preclude Fourth Amendment analysis, but applies it without re~

quiring that the search satisfy artificial criteria. It

| focuses upon the balancing protections afforded by the Fourth

Amendment, as reiterated by Justice White, dissenting in

'Almeida-Sanchez: “The Amendment's overriding prohibition is

«++ against ‘ynreasonable' searches and seizures ...-" 413

433, 439

U.S. at 287-88.

See Cady v. Dombrows ski, 413 U.S.

o ww

United States V- Bowen

Dissent to Part I

(1973). Whether or not a‘ search is reasonable *egepends upon

the facts and circumstances of cach case and ..- searches of

cars that are constantly movable may make the search of a car

without a warrant a reasonable one although the results might

be the opposite in a search of a home, store, OF other fixed

piece of property." Cady v. Dombrowski, 413 U.S. at 440,

quoting Cooper _v. California, 386 U.S. 58, 59 (1967).

In addition, we should not overlook the fact that

the law enforcement personnel were operating pursuant to a

statute. In such a case, there is even more reason to apply

See United States V-

! the broad test of reasonableness.

Biswell, 406 U.S. 311 (1972); Colonnade Caterins Corp. V.

United States, 397 U.S. 72 (1970).

approved as reasonable although they have been made without

probable cause OF a warrant. A careful analysis of areas

| where such searches have been upheld as reasonable within the

meaning of the Fourth Amendment demonstrates persuasive rea~

{so for the same approach in testing the constitutionality

f of stops and searches at fixed checkpoints. For example, in

itt)

| sexs vy. Ohio, 392 U.S. 1 (1968), the Court concluded that

4, a search was reasonable after applying a test that balances

-the interests of the individual in being free from invasion:

to his personal privacy against the interests of society in

assuring the safety of its law enforcement officers. Under

the circumstances of Terry, 4 pat-down without a warrant c=:

“probable cause” was not considered unreasonable. Similar-,y

in Camara v. Municipal Court, 387 U.S. 523 (1967), the Cour>

upheld a non-objected-to search of all structures in a cer-

tain area to enforce a building code in spite of the nonex:s~

tence of probable cause or a warrant. Once again, the

Certain types of searches have been constitutional-

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United States v.

Dissent to Purt I

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balancing test of reasonableness was applied to measure “the

need to search against the invasion which the search entails.”

Id. at 537.

Stops and searches similar to the one objected to

by Bowen occur not infrequently and, in many instances, are

necessary facets of our way of life. The complexity of our

| society requires such limited intrusions in order to protect

the rights of the endecten.” In these specific areas, as lonc

as the stops and searches are limited in their scope to a

proper objective and are not unreasonable, they satisfy the

Fourth Amendment.

For example, all interstate motor carriers may be

stopped for safety or other regulatory inspections. 49 U.S.C.

§ 304 and 49 C.F.R. § 396.5. Certainly, if contraband is

discovered during such a search it could be used as evidence

of the commission of a crime. Motor carriers are also stopped

and weighed, which can be considered a limited search, as

they enter a state. Such stops and searches have been uphel¢

as legal. Commonwealth v. Abell, 275 Ky. 802, 122 S.W.2d

757 (Ky.App. 1938). Similarly, probable cause is not neces~

in to stop a vehicle to check for a valid driver's license

and contraband found incident to such a stop is not the sub-

United States v. Croft, 429 F.2¢

jc of an illegal search.

'g84 (10th Cir. 1970); Lipton v. United States, 348 F.2d 591

}

| baggage and other personal effects of persons entering the

(9th Cir. 1965). Another example is the routine searches of

mainland from Hawaii for infectious plants which has also

been upheld as reasonable within the Fourth Amendment. Unitec

States v. Schafer, 461 F.2d 856 (9th Cir. 1972).

Perhaps the most obvious example is the limited

search that all passengers on airline flights are subjected tc

I .?

oeoeoesnese@egeFees., ¢ Ne =

United States v. Bowen

Dissent to Part I

before they are even allowed in the boarding arcas. At least

at one time, if the would-be passenger met additional cri-

teria (supposedly objective but which were secretly held by

officers and airline employees), he could be subjected to an

even more detailed search. We have repeatedly held that evi-

dence of a crime found in the course of such a search may not

be suppressed on the theory that the search violates the

Fourth Amendment.

E.g., United States v. Doran, 482 F.2d 929

(1973); United States v. Davis, 482 F.2d 893 (1973). When

the interest of the public in being protected against the

dangers of a highjacking were weighed against the intrusion,

we concluded that such searches were reasonable. As we

stated in United States v.

Davis, 482 F.2d at 910:

To pass constitutional muster, an admin-

istrative search must meet the Fourth Amend-

ment’s standard of reasonableness. “Unfor-

tunately, there can be no ready test for

determining reasonableness other than by

balancing the need to search against the

invasion which the search entails.“ Camara

v. Municipal Court, supra, 387 U.S. at 536-

537, 87 S.Ct. at 173 .

I would not restrict the constitutional test in this

fact situation as does the majority but would determine

whether the search at this fixed checkpoint was unreasonable

under the Fourth Amendment. The majority holds that:

The opinion in Almeida-Sanchez, delivered

by Mr. Justice Stewart, leaves little doubt

that traditional Fourth Amendment standards

apply to fixed-checkpoint searches as well

as to roving-patrol searches. (Foonote

omitted.)

But there is a majority holding only on the issue of roving

patrols. There is a vast difference between a red-light,

midnight stop on a loncly road and approaching a well-lighted,

fixed checkpoint with warning signs and uniformed men plainly

visible. The majority's assumption that five of the

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3 8

United States v.

Dissent to Part I

Bowen

Justices have or would apply the same standard in both is one

I cannot accept.

Under the correct test, whether the search at this

fixed checkpoint was unreasonable should be determined in the

first instance by the trial court after hearing all of the

evidence. Such a determination is primarily factual. In

applying this test the trial coiirt would balance the rights

of the individual vehicle driver against the interests of all

the people of the country in stemming an avalanche of persons

illegally crossing our borders. Both Justices Powell

and

White refer to the Herculean challenges faced by those di-

rected to prevent illegal entries. Befcre we direct the Dutch

boy to remove his finger from the dike, we owe it to the

American people at least to balance their interests against

the interests of the individual in being free from this

limited intrusion.

While no one can give an accurate count, it has been

estimated that there are approximately 800,00to over 1 mi llior.

illegal aliens in our country; approximately 85% of these are

citizens of Mexico.

United States v. Baca, F.Supp. at

. The major problem is the abortive attempt to guard

2,000 miles of border with Mexico from the Gulf of Mexico to

the Pacific coast.

In addition to aliens entering illegally, 91 million

aliens entered the United States legally during the fiscal

§ voar 1972, with over 39 million of these entering directly

into Southern California. Id. at - A large percentage

of these visitors enter with temporary border passes, re-

stricting them to a seventy-two hour stay and to travel within

twenty-five miles from the border.

Id. at es see 8 C.F.R.

§€ 212.6. To enforce these restrictions, some type of

-10-

~~» wn

United States v. Dowen

Dissent to Part I

investigation away from.the border is required. The majority

suggests that this flow of illegal aliens can be sufficiently

regulated by alternative methods. But I suggest that we do

not have sufficient information in this record to make that

determination. Indications are that anything short of an

» Iron Curtain type border patrol would be ineffective in cur-

tailing the number of illegal entries. United States v.

> .

barca,

F.Supp. at __—_.«. *~=Further, even stopping the illegal

flow across the border would not halt those legally entering

but illegally travelling more than twenty-five miles from

the border. Therefore, while I agree with the majority that

alternative methods of enforcement of the law should be in-

cluded in the balancing approach, one district court founc:

The evidence presented before this court

clearly established that there is no reasonable

or effective alternative method of detection

FYI -Sandtene

$-3-72-10084 -010

and apprehension available to the Border Pa-

trol, in the absence of the checkpoints, for

even a geometric increase in its personnel or ‘

line watch would not leave any control over

those admitted as temporary visitors from

Mexico.

——————S——_—=

Id. at - Certainly from the record before us, we cannot

make a contrary conclusion.

If we are to test the search in this case as to

| whether it is unreasonable under the Fourth Amendment, it

j wound be necessary to remand the matter for a factual deter-

| mination.

The findings already made by one district court

| pertaining to the checkpoint where Bowen was stopped indicate

}quate factual record, we could proceed with the delicate con-

that such would not be a fruitless exercise. With an adce-

Stitutional balancing necessary to determine whether the stop

and search were unreasonable. EXM4MLNXYXMXNEXYNKSXSASKXESE

KAM KXPUMPAK AX

Judges Chambers, Koelsch, Wright, Choy and Snecd

concur in this dissenting opinion to Part I.

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United States v.

—_———— ——— -

Bowen - Dissent to Part I

No. 72-1012

FOOTNOTES

l. See cases cited in note 1 of Part II of majority

opinion, Supra.

2. In footnote 1 of Part I of the majority opinion, it is co:

: tended that Justice Powell's concurring opinion joins in the

entirety of Justice Stewart's Opinion. The grammatical struc-

ture of the sentence qualifies his Statement. The majority

quotes him, "... I join the opinion of the Court But

he stated, "While I join the opinion of the Court, ... I

add this concurring opinion ...."

If he had joined without

any qualifications, his concurring opinion would have been

for naught.

De F.2d at

+ but see United States v. King, 485

F.2d 353 (lOth Cir. 1973), which invalidated a search at a

fixed checkpoint unless it is a functional equivalent of a

border. Bowman, King and United States v. Maddox, 485 F.2d

361 (10th Cir. 1973), Suggest that our brothers of the Tenth

Circuit may have adopted a two-step approach: The initial

Stop at the checkpoint and inguiry as to citizenship may be

made without probable cause or a warrant; but if the officer

is going to search beyond what is in plain view, he must be

at a functional equivalent of the border Or have probable

it is noted that the four dissenters agree with Justice

Powell that an area search warrant would satisfy the Fourth

Amendment for a roving patrol. A fortiori, it would appear

five Justices would also approve such a practice for fixed

checkpoints.

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8-3-72-10045 10)

United States v.

Dissent to Part I

Footnotes

Bowen

5. The Tenth Circuit, erroneously, I think, has also applied

a limited Fourth Amendment test to a fixed checkpoint but did

remand for a factual determination on the question of whether

the checkpoint was a functional equivalent. United States v.

King, 485 F.2d 353 (lOth Cir. 1973); United States v. Maddox,

485 F.2d 361 (10th Cir. 1973).

6. The majority would apparently require that an officer

have probable cause to believe that a crime has been committed

‘eee a warrantless search would be allowed. Such a belief

would allow him to make an arrest and conduct a search inci-

dent to that arrest. This ruling would, in effect, mean that

no vehicle could be searched at fixed checkpoints for illegal

aliens unless the officer first had probable cause to arrest

the driver of the car or had obtained a search warrant. Since

‘he search warrant, in the traditional sense, could not be ob-

tained prior to the time when the vehicle reached the check-

— and since requiring the driver to wait for the officer

to obtain a warrant would be an arrest, the checkpoints would

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6 3-72-1009 1-490)

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- United States v. Rowen

Dissent to Part I

Footnotes

be limited in their deterrent effect on illegal aliens. It

is not clear whether the Majority opinion would allow immigra-

tion officials to Stop vchicles as they come through the

checkpoints to ask the citizenship of the Occupants. If so,

the checkpoints could still have some deterrent effect.

7. Camara is partially distinguishable due to the non-

objected-to search but a similarity exists in that adequate

Warnings are given as one approaches a fixed checkpoint and

a driver can Stop (and may in some instances be able to turn

around) rather than proceed if he objects to the fixed check-

point stop.

See United States v. Baca, F.Supp. at

8. In balancing the interests of the majority against the

interests of the individual, it is necessary that before we

a warrantless search we give major consideration to

whether requiring a warrant would frustrate the governmental

purpose behind the search. Camara vy. Municipal Court, 387

U.S. 523, 529 (1967). Since requiring a search w rrant, '

in the traditional sense, would in effect preclude the search

of all automobiles at the checkpoints, this requirement has

been satisfied in this case. However, some type of area

search warrant, as suggested by Justice Powell, may be pos-

—_—e— eee aaa

sible in the checkpoint Situation. See note 3, Supra. That

alternative is not before us now.

9. The majority notes the cases upholding stops for inspec-

tion of drivers’

licenses and vehicle registration, but dis-

tinguishes them from Stops at fixed checkpoints on the basis

that if such stops were not allowed the driver's license and

vehicle statutes would be rendered unenforceable, whereas the

majority is “not persuaded" that the immigration laws would

Similarly be rendered unenforceable

by this decision. The

record in this case is not complete enough to allow us to

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PIri-fandstone

6-3-72-100M-2101

————

‘ legal aliens may be within the vehicle.

United States v.

Dissent to Part I

Footnotcs

Bowen

determine what effect our decision will have on the enforce-

ment of the immigration laws, but indications are that the

adverse effects will be substantial. See United States v.

Baca, ____ F.Supp. at __n

10. In United States v. Davis, 482 F.2d 893 (9th Cir. 1973),

we the set forth the criteria necessary for such a search

to be reasonable. We stated that (1) the search must be

“conducted as part of a general regulatory scheme in fur-

therance of an administrative purpose, rather than as part

of a criminal investigation to secure evidence of a crime

+++" 482 F.2d at 908. (2) The essential purpose of the

search must be not to detect contraband or apprehend crimi-

nals, but “to deter persons carrying [weapons or explosives]

from seeking to board at all." 482 F.2d at 908. (3) The

scope of the search must be limited to meet reasonably the

need. And (4) the person must have the choice of electing

to submit to the search or to not board the flight. 482 F.2d

at 913.

The search in this case satisfies these criteria. (1)

| Bowen was stopped as part of a routine check for illegal

aliens proceeding to the interior of this country. Either

all vehicles passing through the checkpoint were stopped

or a limited number were stopped based upon objective cri-

teria that would give the officer reasons to suspect that il-

United States v.

Baca, __—s F.Supp. at sw =(2)~=— The primar? purpose of th-

stop and the scarch was not to detect contraband or criminals,

but rather to deter illegal aliens from attempting to flee to

The

interior cities with large populations. Id. at °

stop and the search were conducted pursuant to a statute

designed to regulate immigration rather than gencral law

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United States v.

Dissent to Part I

Footnotes

Bowen

enforcement. (3) The scope of the search was limited to

areas where a person may hide. Other areas were not scarched

until the officer had probable cause to believe a crime had

been committed. And (4) the checkpoint was permanent, well-

lighted and clearly identified. All persons proceeding

through the checkpoint had reason to know that they would be

questioned as to their citizenship ‘and subjected to a limited

search for illegal aliens. They had the alternative to stop

or, in this case, to turn around.

ll. United States v. Baca, F.Supp. at °

Many of the factors enumerated by Justice Powell as a

Prerequisite for an area search warrant might also be con-

sidered in determining whether there was an unreasonable in-

terference with the individual's rights:

{[T]hey include (i) the frequency with which aliens

illegally in the country are known or reasonably

believed to be transported within a particular

area; (ii) the proximity of the area in question

to the border; (iii) the extensiveness and geo-

graphic characteristics of the area, including

the roads therein and the extent of their use;

and (iv) the probable degree of interference

with the rights of innocent persons, taking into

account the scope of the proposed search, its

duration, and the concentration of illegal alien

traffic in relation to the general traffic of

the road or area.

413 U.S. at 283-84 (footnote omitted).

13. The Government has made a convincing showing

that large numbers of aliens cross our borders

ilkbgally at places other than established crossing

points, that they are often assisted by smugglers,

that even those who cross on foot are met and

transported to their destinations by automobiles

It would, of course, be wholly impracticable

to maintain a constant patrol along thousands

Miles of border. Moreover, because many of these

aliens cross the border on foot, or at places other

than established checkpoints, it is Simply not

possible in most cases for the Government to ob-

tain specific knowledge that a person riding or

stowed in an automobile is an alien illegally

in the country. Thus the magnitude of the problem

is clear.

413 U.S. at 265-66.

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8. 3-72-100R1-™0)

United States v. Bowen

Dissent to Part I

Footnotes

14. The external boundarics of the United States

are extensive. The Canadian border is almost

4,000 miles in length; the Mexican, almost 2,000.

Surveillance is maintained over the established

channels and routes of communication. But not

only is inspection at regular points of entry not

infallible, but it is also physically impossible

to maintain continuous patrol over vast stretcnes

of our borders. The fact is that illegal cross-

ings at other than the legal ports of entry are

numerous and recurring.

413 U.S. at 293 (emphasis added).

15. In United States v. Baca, F.Supp. at , the

trial judge made the following findings of fact:

The Border Patrol has established a checkpoint

‘ On Route 86 west of the Salton Sea National Wildlife

Refuge just north of the intersection of State Route 78.

This location is approximately 36 air miles and 49 road

iniles from the Mexican border. The checkpoint is bordered

on the cast by farm land extending for about three miles

to the Salton Sea. To the west and south of this checkpoin:

lies desert. —

At this location the Border Patrol has a building

md traffie check signs together with blinker lights.

A power source is located at the facility. The signs are

of the usual “ype and the floodlights ac night cause the

area to be very well lit. As can be seen froia photographs

introduced by the government, the area is desolate

country with virtually no inhabitants between the cheekpoir.

and the border.

The Border Patrol attempts to .keep this checkpoint

operating on a 24-hour basis and in fiscal 1973 they

operated around 6,000 hours which is approximately 65 to

70 percent of the time.

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PPI-Sandstone

$-3-72-100N-v 101

20 a

United States v. Bowen

Dissent to Purt I

Footnotes

. At this checkpoint the checking operations are of

the usual type with about 75 percent of the vehicles travel.

ing through it being stopped for inquiry with around 10 :

percent to 15 percent of all vehicles being detained for

furthér inspection. It is estimated that. over half of

the vehicles at this checkpoint have come directly fron

* Mexicali or have occupants whe walked serecs the border at

Calexico. | .

During the first ten months of calendar year 1973

“approximately 690 deportable aliens were apprehended at.

-~ tm meee « ‘om ~

this checkpoint according to the detailed traffic logs

maintained by the Border Patrol.

This checkpoint is located on a point with one of

the lowest volumes of traffic along Route 66 north of the

_ population centers of Calexico, Brawley and El Centro.

From these facts, the district court concluded in part:

The checkpoint on Route 86 is situated at a point

with one of the lowest volumes of traffic on that highway,

thus tending to cause little intrusion and inconvenience

to travelers, as well as scarcely impeding the goal of safe.

driving. This checkpoint is not easy to intentionally

circumvent without being steered into another checkpoint

on another highway, in that it is bordered by the Salton

Sea on one side and desert on the other. It lies just 36

air miles from the Mexican border and it has been estimated

that over half of the vehicles reaching this checkpoint

have come directly from Mexicali, B.C., Mexico.

NBG OS OG ON XOX DUOC AIK ADL HN NK EX

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United States v. Bowen

No. 72-1012

PART II

WALLACE, Circuit Judge:

The first step in deciding whether a casé is to

have retroactive effect is to apply a threshold test to

determine whcther the decision establishes a new rule. If

it docs, we proceed to test whether the new rule is retroac-

tive. If it does not, no such testing is necessary as, ‘by’ *~

‘

definition, without a new rule, there is no change in the

law and the question of retroactivity is immaterial. For

purposes of this case, we hold that to constitute a new rule,

the decision must either (1) overrule clear past precedent

or (2) disrupt a practice long accepted and widely relied

upon.

Under the first alternative of the test, a decision

constitutes a new constitutional rule if it overrules clear

past precedent. The test does not require, however, that the

Supreme Court reverse itself in order for there to be an

overruling of clear past precedent. Such a requirement would

not only be illogical but would also be violative of the

reason for the rule. Only a small number of the appealed

federal cases are ever reviewed by the Supreme Court. AS a

PVI-Candstons

§-3-72-100M-9401

| matter of necessity, the Court must leave the day-to-day ap~-

plication of the law to the lower courts. Therefore, law

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6-3-72- 100M)

enforcement procedures must be based to a great cxtent upon

circuit court decisions. Because of this necessity, a law

enforcement practice may develop and be sanctioned by court

approval for many years before it is reviewed by the Supreme

Court. Where such a rule is ultimately reversed by the

Court, the pronouncement is “new” simply by virtue of the

fact that the people who apply the law on a day-to-day bisis

have not previously understood the new statement to be the

proper rule. Justice Blackmun recognized this principle,

noting specifically that the new pronouncement need not over-

rule a prior Supreme Court case, when he wrote in Gosa v.

Mayden, 413 U.S. 665, 673 (1973):

Although the Court in O'Callahan did not

! expressly overrule any prior decision, it

did announce a new constitutional princi-

ple, and it effected a decisional change

in attitude that had prevailed for many

decades.

Prior to Almeida-Sanchez, there was no indication

‘.

from any of the courts of appeals that searches at fixed

checkpoints were unconstitutional. Rather, the indication

was that such searches were constitutional, for 35 of 36 judge:

iwho had considered the question in the three circuits involved

in enforcing the immigration laws along our Mexican border hac

——

"upheld immigration stops and searches. Almeida-Sanchez v.

Hunited States, 413 U.S. at 298-99 n.10 (White, J. dissenting).

In addition to the numerous court pronouncements,

i the statute pursuant to which the Border Patrol acted also

constitutes clear past precedent. Since 1952, searches for

alicns within a reasonable distance from the border have been

authorized by Congress. 8 U.S.C. § 1357(a)(3). Obviously,

such a statute establishes a legal rule until repealed or

declared unconstitutional. Although the Supreme Court did

=2-

Part II

aes...

PVT Sen tetone 4

6-3. 7.4-10981-0 1)

hold that, under the facts of Almeida-Sanchez, that statute

cannot make a search conducted by a roving patrol reasonable

within the Fourth Amendment, it was the prior law just as

much as Wolf v. Colorado, 338 U.S. 25 (1949), was the prior

law until Mapp v. Ohio, 367 U.S. 643 (1961). The prior law,

be it statutory or case law, guides law enforcement personnel

and courts until abrogated. Here, the prior law was, in part,

Statutory and remained unassailed by the Supreme Court or

circuit courts for twenty years. It was then limited by

Almeida-Sanchez. Although it is true that statutes have to

be measured by the Constitution, a legally enacted statute

becomes the law until it is vitiated by a court decision.

upheld by the lower courts, it becomes a clear precedent for

: law enforcement action. Prior Statutory law should be treated

no differently from prior case law. Thus, Almcida-Sanchez,

as applied to searches at fixed checkpoints, overrules clear

# Past precedent, both statutory and case law.

Under the second alternative of the threshold test,

a decision constitutes a new constitutional rule if it dis-

rupts a practice long accepted and widely relied upon. Here

| too, Almeida-Sanchez measures up as a new pronouncement. For

t over a decade we have consistently and repeatedly upheld con-

i vietions based upon evidence scized during searches made at

| fixed checkpoints; in none of these cases has the constitu-

‘ tionality of such searches been questioned.

_ practice authorized by our court for such an extensive period

» Casily Satisfies the second alternative of the test.

j .

geither alternative, Almecida-Sanchez is a new pronouncement.

Under

We, therefore, must determine whether this new rule

should be applied retroactively to fixed checkpoints. As the

j |

Where the constitutionality of the statute has been repeateciy

A law enforce>er:.

oe ww

PTT fae stone

6-3-T2- OA -w 1

Constitution docs not mandate retroactive application,

Linkletter v. Walker, 381 U.S. 618, 629 (1965), we must use

judicially conceived guidelines to resolve the issue. The

tripartite test developed by the Supreme Court in numerous

decisions over the last decade was enunciated in Stovall v.

Denno, 388 U.S. 293 (1967), and recently reiterated in

Michigan v. Payne, 412 U.S. 47,.51 (1973). The Stovall test

| requires that, before we apply new constitutional protections

retroactively, we consider the following three criteria:

(a) the purpose to be served by the new

Standards, (b) the extent of the reliance

| by law enforcement authorities on the old

standards, and (c) the effect on the ad-

ministration of justice of a retroactive

application of the new standards.

, Stovall v. Denno, 388 U.S. at 297.

Criterion (a) of the Stovall test, the purpose

; to be served by the new standard, generally dictates that the

new pronouncement be applied retroactively only when the pro~

nouncement affects the “fairness of the trial--the very in-

Linkletter v. Walker,

eeeiee of the fact-finding process."

' 381 U.S. at 639.

| Since the legality of the search in no way

| tentens is actually guilty of committing the crime, a pro-

| ;

affects the court's ability to determine whether or not the

»mouncement requiring the suppression of such evidence serves

y . .

only as a procedural device to deter future improper police

[conaver. See United States v. Calandra, U.S.

(Jan. 8, 1974). Such pronouncements generally should not be

applied retroactively. As we held in Williams v. United

iStates, 418 F.2d 159, 162 (9th Cir. 1969), aff'd, 401 U.S.

646 (1971):

The Court in Desist [394 U.S. 244 (1969) ]

said the foremost of the three criteria

was the first. If the purpose is to deter

misconduct of police officers in conducting

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a search, the new exclusionary rule will

not be given retrospective effect because

that purpose is not advanced by penalizing

conduct that has already occurred. The ex-

Clusionary rule in such cases, the Court

observed, was a procedural device to curb

illegal police action and not a rule af-

fecting the integrity of the process for

finding the innocence or guilt of an ac-

cused.

Criterion (b) of the Stovall test, the reliance of

law enforcement officers on the old standards, is similar to

the second alternative of our threshold test. A careful

; analysis demonstrates that law enforcement personnel justi-

fiedly relied on the prior rule. Since Almeida-Sanchez did

not determine the constitutionality of searches at a fixed

checkpoint, let alone establish a new rule as to such searches

applying Almeida-Sanchez to fixed checkpoints would overturn

our own Ninth Circuit precedents which stretch back over a

; decade.

In Fernandez v. United States, 321 F.2d 283 (9th

Cir. 1963), we were specifically faced with the issue of the

/constitutionality of the statute and regulations authorizing

stops and limited searches at a fixed checkpoint. Appellant

Fernandez expressly specified as error:

1. Regulations sanctioning check points 70

miles within the United States are unconstitu-

tional and illegal per se, and are unconstitu-

tional and illegal as applied in this case.

2. The stopping of, cars 70 miles within the

confines of the United States constitutes un-

constitutional and illegal scarch and is un-

lawful without probable cause.

3. Evidence discovered during a search fol-

lowing such illegal stopping of a car is

“fruit of a poisoned tree", and must be sup-

pressed.

321 F.2d at 285. We found that the statute and regulations,

pursuant to which the checkpoints were operated, were "clcarl,

constitutional.” After reviewing extensive findings of fact

rel Gandntone

5 -3-73-109M-9 1

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by the district court concerning the necessity of such check-

points, we concluded that the statute and regulations as ap-

plied were “neither arbitrary nor capricious." We further

held that after the officers had legally stopped the car,

their detection of the odor of marijuana constituted probable

cause sufficient to justify a search of the car. We have re-

peatedly reaffirmed Fernandez, not only upholding the validit:

of the initial stopping of the car, but also upholding rea-

sonable searches for aliens made without probable cause. in

Fumagalli v. United States, 429 F.2d 1011 (9th Cir. 1970), af-

ter reviewing Fernandez and a number of our other earlier

cases, we concluded:

What all of these cases make clear is

that probable cause is not required for an

immigration search within approved limits

but is generally required to sustain the

legality of a search for contraband in a

person's automobile conducted away from the

international borders.

429 F.2d at 1013 (footnote omitted). Given the number and

the explicitness of our prior pronouncements, it would be

hard to find a clearer case justifying reliance on an old

standard. Immigration stops and searches at fixed checkpoints:

a practice that has extended over a 44 year period, has en-

joyed ten years of continued and uninterrupted judicial ap-

proval. If the border patrol agents cannot rely upon a

statute supported by clear regulations which have repeatecly

been upheld by a Court of Appeals with no Supreme Court dis-

approval, it is difficult to conceive what degree of officia-

pronouncements would be necessary to make their reliance

justified. See Adams v. Illinois, 405 U.S. 278, 283-84 (1972

Johnson v. New Jersey, 384 U.S. 719, 731 (1966).

What was said in Stovall v. Denno, 388 U.S. 293,

299-300 (1967), is equally applicable here:

1 Today's rulings were not foreshadowed in

our cases; no, court announced such a re- ‘ Linkletter when the rule was directed “to collateral purposes

2 quirement .... Law enforcement authori- . '

ties fairly relicd on this virtually such as the deterrence of unlawful police conduct ...." Id

3 unanimous weight of authority, now no . 2c;

longer valid, in conducting pretrial at 509. They then specifically distinguished rules with

4 confrontation in the absence of counsel. 4

; collatcral purposes from the double jeopardy situation w

° Criterion (c) of the Stovall test requires that ei 5 ey n were

eee F a defendant could possibly be punished twice for the same

° we consider the effect the retroactive application of the j 6

4 ws : crime. The obvious import of Robinson in reference to the

new pronouncement would have on the administration of jus- 7 7 a

° het ‘3 case before us is that where the purpose of the rule i >

. tice. The record before us is inadequate to indicate what > 2 ie ’ 8 Gs

9 Rey: } . deterrence of unlawful police conduct, the rule will be

the effect would be in requiring probable cause or a warrant 9

10 ; ‘7 prospective only.

for all prior stops and searches made at fixed checkpoints. 4 10 |

1 . 4 The only remaining question is the date upon which

For example, it is impossible to tell how many illegal aliens, , 1) P '

12 ca : ; 12 ; Almeida-Sanchez would become applicable to searches at fixed

as well as alien smugglers and other criminals, were capturec 4 ad

13 ; ee 13 ; checkpoints. Some would argue that there should be at least

red-handed at fixed checkpoints since their inception in + '

ae 7 , | a limited retroactivity, requiring us to apply the new rule

1922. Nonetheless, we are aware that in fiscal year 1973 . 1% ; PpAy

” a 5 , to th involvi ;

; ; ot 15 ose cases involving searches at fixed checkpoints that are

- , alone, there were approximately 55,300 deportable aliens al P

_. 1G , now on direct appeal. These are the so-called “pipeline"

7 apprehended at traffic checkpoints. United States v. Baca, 4 ' PiP

‘t 17 cases. We reject this approach and hold that Almeida-Sanchez

- F.Supp. , (S.D. Cal. Jan. 3, 1974). Ther< =

q 18 | applies only to searches at fixed checkpoints after June 2

19 can be no doubt that a rule requiring the suppression of all i ‘ P i,

it i I, 19 1973, the date of the Almeida-Sanchez decision. The Supreme

20 : evidence obtained by searches made at fixed checkpoints witn- te. ;

ae ag 40 Court's recent decisions indicate that the pipeline theory

21 out a warrant or probable cause, applied retroactively, woulce “ ~

; a , mene ‘j jj does not enjoy majority approval. See Stovall v. Denno, 388

22 create immense problems hindering the administration of jus-~ i -

; +. ” ,U-S. 293 (1967). The Court had precisely that issue before it

25 tice. It is not inconceivable that thousands of convicted t* ie i

\ i, -~ ji in Williams v. United States, 401 U.S. 646 (1971 and

; . ° : *O- a ma-

24 ! criminals might have to be retried or set free. He 24 t ; ( ye

| | 12 ' Jority declined to apply the new rule either to the cases in

25 | Nor do we believe, as has been contended, that te 25 |

Hee | the pipeline (on direct appeal) or to the cases that were be-

26 | Robinson v. Neil, 409 U.S. 505 (1973), should lead us to a ie 2G f ,

‘ ay i | fore the Court on collateral attack. Only Justices Brennan

27 i different conclusion. There, retroactivity was applied to 4 ‘ 27 i

f : , and Marshall supported the pipeline theory.

2n ' non-fact-finding aspect (double jeopardy). But the Court FE 26 |

29 , i In Michigan v. Payne, 412 U.S. 47 (1973), the Court

clearly noted that it was creating an exception to the 29 4

. : ; again adopted limited prospectivity, i.e., only the challeng-

ed Linkletter-Stovall approach similar to that which made the ; 30 i . =! » g

31 2. ; ing appellant would benefit from the new rule. In Payne

death penalty cases retroactive. The Court explained that } 31 =aXDS -

32 , } , the Court held that the prophylactic limitations established

prospective application has gencrally been applied under } 32 :

an i: in North Carolina v. Pearce, 395 U.S. 711, 723-26 (1969),

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would not be applicable to resentencing proceedings that oc \ Almeida-Sanchez as applied to fixed checkpoints enunciates |

Lal .

“ curred prior to tl at ‘arce decisi ve —

adi to the date of the Pearce decision, even though : : a new rule of criminal procedure. The sole purpose for the 3

3 Payne's appeal in the pi the srce was ,

y ep was in the pipeline when Pearce was decided ; 3 new rule is to deter future police misconduct. United States |

4 . , , i

Justice Marsh , S i :d that " s > , ,

' all, dissenting, concluded that “consideration 4 v. Calandra, U.S. (Jan. 8, 1974). Given this

; of fairness rooted i sti 3 ° ases ‘

P in the Constitution [require] that ¢ | 6 conclusion, the new rule can reasonably be applied only to

in the pipeline wl i i -ion: De need P ,

7 P*P mon & ROW CONSESCutional fule S68 sande ° convictions based upon searches conducted after the date of

= must be given the bencfi at ” .S. at 60. 1 ; aoe

t « o . :

' None of the other Justic joi is p: f his dissent . & ee ; a '

= ——

: and Justice Marshall himself -t at, > han ecx- 9 . : , ,

s 10 mses admitted that, other t | If the new constitutional rule is designed to cor-

7 ceptions not applicable i i e Sti ional 10 , — :

' li P PP able in this case, all “constitution | rect a defect that involves the court's ability to determine

.." rules of criminal procedure have } ive ospective effect 11 ; ; , : .

i 12 P — a : ; whether a defendant is guilty or not, it obviously has to be

‘a 12

4 only." 412 U.S. at 62 (footnote omitted). He noted that 7 = ;

i 13 y ( 7 4 - fully retroactive. But here, the new rule has no such effect.

a limited retroactivit as a icd in Linkletter [381 U.S. at 4 ; i . : :

, 14 Ys ppl a nese I “4 Bowen, like Almeida-Sanchez, is a convicted felon--caught

ig " 622 was an “anomaly.” It would be unwise for us to adopt ‘

x 15 \ ly Y P | 15 | red-handed. The question is not whether they violated the

ithe pipeline theory when the Court has declined to apply it. , \

54 16 : tied y tied 16 ; law, but rather whether they should be freed because the po-

' Limited prospectivity is not a new idea in the line 4 : , , ’

a _ af : 17 ll lice detected their violations through unconstitutional pro- |

18 "Of cases dealing with the retroactivity of new rules of crimi- | - ' |

; , 18 ' cedures. We are applying the Almeida-Sanchez rule to searches —

19 {nal procedure. In Johnson v. New Jersey, 384 U.S. 719 (1966), ‘4 | p - a

7 19 conducted at fixed checkpoints only to deter these unconsti-

20 decided only one year after Linkletter, the Court held that 7 f

\ 4 20 y tutional procedures in the future. Our reason for applying

21 !Escobedo and Miranda would apply only to cases in which the 5 H : : :

a 21 y the rule demonstrates that it should be applied prospectively

22 , trial began after the dates of the decisions. One could argue : 4 ; ;

i 22 only. Almeida-Sanchez receives the benefit of the new rule

23 j, that Johnson does not really deal with the pipeline theory be- .

—— 23 , because of the Court's apparent belief that to do otherwise

2 cause the case was before the Court on collateral attack. 4 o4 } , a aaa :

‘ 4 , would put the Court in the position of providing advisory

25 ; But such an argument would ignore the fact that the Court ex- . 25 aa 6

; 7 opinions. That policy is not enhanced or furthered by apply-

a6 | pressly announced that: + 26 ; P :

97 . j ing the rule to other cases on appeal. There is no compelling

, 4 {[W)e do not find any persuasive reason to 27 ; . ace

2g t extend Escobedo and Miranda to cases tried ; , reason which requires that we overturn many convictions

- i before those decisions were announced, 3 23 I

29 even though the cases may still be on direct » merely because the Supreme Court mandates that one must be

, appeal. : 29

30 ™, ¢] | overturned.

' 384 U.S. at 733. Limited prospectivi as the Court dis- : 30 : ;

31 il . ’ 7 a ao i ; We conclude that any application of Almeida-Sanchez

. '

jcussed it in Johnson, is particularly suited for application $1 a , :

30 ——’ P Y PP to fixed checkpoints would be a new rule and under the Stovall

in this case. A majority of our rt has agreed that i 32 ' ,

J Y - court hee ag t test, it would have to be applicd prospectively to searches |

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subsequent to June 21, 1973. Therefore, Almeida-Sanchez

can be of no assistance to Bowen.

APFIRMED.

Judges Chambers, Koelsch, Wright, Trask, Choy and

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imi ted States v.

ited stat Bowen -

No. 72-1012

Part II

FOOTNOTES

- This threshold test comes from a footnote in Justice

Stewart's dissent in Milton vy. Wainwright, 407 U.S. 371

‘

81-82 n.2. (1972). Whether this abridged test should be

applied in all cases is unclear:

——

-———-—=

-———o

-———

-————

——

-_ er te

———

-———

-——— oo

-——-—o—

-————

-———

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-——-——

-_—-——-

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-—-—-—-—-—

-—_—-—-—

5 ; United Stat es Vv. Bowen - Part II

‘ . , No. 72-1012

" 1 mnited States v. Bowen - Part II Footnotes - 3

re No. 72-1012

; 2 Footnotes - 2 1 equally to all defendants regardless of the date of their

: 5 ‘ 2 sentencing. MWowever, the Court applied the Stovall test to

: . Justice Stewart enunciated a similar test a year seshies So . the “prophylactic” limitations established in Pearce requir-

4 Seceems G48 Ge. 0. Canens O04 6.0. 0. 006 COT. wc Cotto 4 ing the judge to give reasons, concluding that they should be

‘ 6 if)he decision to be applicéd nonretroactively | 5 applied only prospectively. One could infer from Payne that

; 1 cape eal eg geno Rt an gga , 6 the Stovall test should be applied only to “new" rules, but

8 aay ath beh ene Ral le BR one cree ’ Robinson indicates that other factors may also be relevant.

4 9 was not clearly foreshadowed .... (Citations 8

poe Pree B Perhaps the clearest cxample indicating that the Court

- The fact that Chevron Oil was a civil rather than a criminal : may apply a threshold test is Justice Blackmun’s opinion in i

: case should not make any difference. Linkletter v. Walker, 1 Gosa v. Mayden, 413 U.S. 665 (1973), in which the Court de-

. 381 U.S. at 627. It is not clear, however, whether the Court - clined to apply the rule announced in O'Callahan v. Parker,

- will require that one of the Justice Stewart threshold tests 13 395 U.S. 258 (1969), retroactively. Before applying the

; 8 always be satisfied before it will apply the Stovall test. “4 Stovall test, Justice Blackmun found it necessary to Sateensne |

; - For example, in Robinson v. Neil, 409 U.S. 505 (1973), the 18 whether Gosa was an appropriate case to even consider the |

i : ene Unibiens te eante Ghabbemees Ube Hes etd we OF - question of retroactivity. Although noting that the O'Callahan

" 8 termine whether Waller v. Florida, 397 U.S. 387 (1970), should 17 case was a “clear break with the past," the primary considera- |

19 be applied retroactively because the issue in question was 18 tion influencing Justice Blackmun to apply the Stovall test |

2 20 directed to the fundamental fairness of double jeopardy rather 19 was the fact that the convictions under the prior rule were

~ 21 than directed “to collateral purposes such as the deterrence 20 not "so unfair as to be void ab initio.” 413 U.S. at 675.

3 22 of unlawful police conduct ...." 409 U.S. at 509. Although 21 Rather, O'Callahan created a prophylactic rule designed to

iy 23 one could argue that Waller was a "new" constitutional pro- 22 enhance “a newly recognized constitutional principle." 413

7 24 |nouncement, the Court did not discuss this consideration in 23 U.S. at 675. Even though he noted that the rule was new, _ :

26 | In Michigan v. Payne, 412 U.S. 47 (1973), the Court was 25 | More concerned with whether the rule affected the integrity

27 | faced with the question of whether North Carolina v. Pearce, 26 of the judicial process than with whether or not it was new.

28 395 U.S. 711 (1969), should be retroactive and applied the sd From these cases, it appears that the Court has not yet

29 Stovall tqst to only part of the Pearce rule. The Court 28 formulated a single threshold test to be applied in all cases.

ad stated, without applying the Stovall test, that no new consti-~ ” ' Race

as tutional rule was established by requiring that resentencing - |

- not be retaliatory and, thus, that rule would be available ” |

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' ! United States v. Rowen - Part II

: No. 72-1012

1 United States v. Bowen = Part II . Footnotes - 5

. No. 72-1012 3

Footnotes - 4 d

‘

8 4 reason for the Court's adoption of limited prospectivity in

d 4 2. United States v. Barron, 472 F.2d 1215 (9th Cir.), cert. | . cases involving new rules of criminal procedure may be that if

S 6 denied, U.S. (1973); United States v. Campos, 471 ° the new rule is not applicd to the defendant before the Court,

: aoe ”

6 F.2d 296 (9th Cir. 1972); United States v. Aranda, 457 F.2d defense counsel may lack incentive to proceed with an appeal

; : . 8 ,

7 761 (9th Cir. 1972); Mienke v. United States, 452 F.2d 1076 | in cases where they believe there may be an unconstitutional

1. 9

1 ° (9th Cir. 1971); Duprez v. United States, 435 F.2d 1276 (9th | ’ practice. See Stovall v. Denno, 388 U.S. at 301; Note,

9 10

Cir. 1970); Fumagalli v. United States, 429 F.2d 1011 (9th Retroactivity Of Criminal Procedure Decisions, 55 Iowa L. Rev.

10 ‘ 1

Cir. 1970); United States v. Avey, 428 F.2d 1159 (9th Cir.), | 1309, 1317 (1970).

7 11 : 12

cert. denied, 400 U.S. 903 (1970); United States v. Miranda, ; - 5. Justice Marshall stated:

12 2

426 F.2d 283 (9th Cir. 1970); Valenzuela-Garcia v. United Linkletter v. Walker, 381 U.S. 618

; 13 ’ i (1965), givina a limited retroactive effect

4 States, 425 F.2d 1170 (9th Cir. 1970); Barba-Reyes v. United ’ . te Mapp v. Ohio, 367 U.S. 643 (1961), is an

i 1% | anomaly at odds with the Court's subsequent

States, 387 F.2d 91 (9th Cir. 1967); Renteria-Medina, 346 , ' 16 ! treatment of problems of retroactivity and

; 15 } can be explained only by the Court's un-

. 4 F.2d 853 (9th Cir. 1965); Fernandez v. United States, 321 F.2d 3 17 familiarity with those problems when the

; 16 9th Cir. Hy | case was decided. See also Johnson v.

j 17 283_£1963); Contreras v. United States, 291 F.2d 63 (9th Cir. | : 18 \ New Jersey, 384 U.S. 719 (1966). :

i ' . -

t 18 1961); Cervantes v. United States, 278 F.2d 350 (9th Cir. | : 19 I ar2 U.S. at 62 n.5.

id “4

re 19 1960). | : 20 le See note 4, supra.

£ 20 | 3. See cases cited in note 2, supra. | a 21 |

4 91 4. Apparently, the Court has adopted a position of limited ; 22

; ! ' ‘

; prospectivity, rather than pure prospectivity, on the rationale 4 23

: | 23 that in order for the Court's pronouncement to avoid being ; 24

‘ B . ’

1] 24 classified as dictum, it must be applied to the parties before 35 H

| 25 the Court. See Stovall v. Denno, 388 U.S. 293, 301 (1967). =

i 21

& 26 There has been some criticism of this rationale, [see, e.9., ‘4

t 28 "

3 27 1B J. Moore, Federal Practice ¥ 0.402 [3.--2-3} (1965)] and ;

‘ | 29

28 the Court has not hesitated to apply a pronouncement with full

20 prospectivity when such a result was appropriate. %.g., ‘

31 '

ed | England v. Louisiana State Board of Medical Examiners, 375 U.S.

411 (1964); James v. United States, 366 U.S. 213 (1961). See

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UNITED STATES v. DOWEN

No. 72-1012

{Part I1)

GOODWIN, Circuit Judge,‘ concurring and dissenting:

Believing that the legal history of roving patrols

is fundamentally different from the legal history of fixed-

checkpoint searches, I concur in that part of Judge Wallace's

opinion in Part II which limits the holding of Part I to |

searches conducted after June 23, 1973. While a roving-

patrol search, supported by neither warrant nor probable

cause, was not upheld by this circuit until 1970 (United

States v. Miranda, 426 F.2d 283 (9th Cir. 1970)), a mere

two years before certiorari was granted in Almeida-Sanchez

(406 U.S. 944 (1972)), fixed-checkpoint searches enjoyed

judicial approval at least since 1963 (Fernandez v. United

States, 321 F.2d 283 (9th Cir. 1963)) and apparent statu-~

tory authorization since 1946 (Act of Aug. 7, 1946, ch. 768, |

60 Stat. 865). Our rejection of fixed-checkpoint searches

therefore “marks a sharp break in the web of the law,"

Milton v. Wainwright, 407 U.S, 371, 381-82 n.2 (1971) (dis-

senting opinion of Stewart, J.), sufficient to deny retro-

active application.

My concurrence is gualified, however, by the belief

that Bowen himself should be entitled to the fruits of his

appeal. He fully preserved his objections to the search

of his camper-truck by the border patrol. He took his case

all the way to the Supreme Court, which reversed his con-

viction and remanded the case for reconsideration in light

of Almeida-Sanchez. Now, we tell Bowen that he was right,

that searches at fixed checkpoints, supported by neither

a warrant nor probable cause, are unconstitutional. Yet, :

we also tell him that because of a judicially created rule |

of nonretroactivity, he cannot take advantage of a ruling |

Opinion of Goodwin, J., concurrin:

in and dissenting to Part II -

Page 1. |

$Sse 3S 8BRBBBS ER

which he has fought for two years to obtain. However,

regardless of the nonretroactivity of our newly announced

rule on fixed checkpoints, as the moving party in the case

in which this new rule has been announced, Bowen is fully

entitled to its protection.

tion in Part I stand as mere dictum, as well as to comply

with the “case or controversy” requirement of Article III

of the Constitution, we must allow Bowen to benefit from

our constitutional determination. See Stovall v. Denno,

388 U.S. 293, 301 (1967). See also Desist v. United States,

394 U.S. 244, 254-55 n.24 (1969).

Judges Merrill, Browning and Duniway concur in

this concurring and dissenting opinion.

Opinion of Goodwin, J., concvr-

ring in and dissenting to

Part II - Page 2.

To prevent having our determina-

No, 72-1012, Bowen

*STEDLI. sui Age Ely concurs,

NUPSTEDLER, Circuit Judge, with whom Juc

concurring in part I and dissenting from part II, of the

opinion of the Court:

I cannot concur in the opinions confining the

Almeida-Sanchez rule to searches occurring after June 21,

1973, with or without an exception for Bowen himself, when

the locale of the search was a fixed checkpoint that was not

the functional equivalent of an international border.

My brothers and I agree that no retroactivity issue

arises unless Almeida-Sanchez stated a new rule marking “a

sharp break in the web of the law.”

We are also in agree-

ment that Almeida-Sanchez announced no new Supreme Court

rule and that it signaled no break at me the consti-

tutional principles stated by the Court. Injection of the

retroactivity issue in the opinions of my brothers Wallace

and Goodwin rests on two assumptions: (1) Congress, the Nint>

Circuit, and the Immigration and Naturalization Service, pric

to Almeida-Sanchez, had long agreed that automobile searches

conducted by personnel of the Service at fixed checkpoints

j ; 's dissent-

1 The phrase is taken from Mr. Justice Stewart's

oll entaael in Milton v. Wainwright (1972) 407 U.S. 371,

381-82 n.2. See Desist v. United States (1969) 394 U.S.

244, 248 ("clear break with the past").

2/ “No claim is made, nor could one be, that the search

(Almeida-Sanchez v. United States (1973) 413 U.S. 266, 269.)

The Court has recognized, however, at least since eal

Carroll v. United States (1925) 267 U.S. 132, that automo. -

travellers could be stopped and their vehicles searched Yr

crossing an international boundary because of national se :

protection reasonably requiring one entering the country) ee

identify himself as entitled to come in, and his belongincs

as effects which may be lawfully brought in. (Id. Se

But nothing in Carroll, or in any other Supreme Court ecis:.

even implicd that, for Fourth Amendment purposes, the —

ment could create portable boundaries or affix artificia

borders wherever it chose.

> 8 8

8-16-67 120M teos

that were not functional equivalents of international boundar-

ics should be treated as if they were such “border searches,"

thus climinating, the Fourth Amendment's requirements of a

warrant and probable cause, and (2) for retroactivity purposes,

the weavers of the constitutional law web are not limited to

the members of the Supreme Court, but also include Congress,

the lower federal courts, and the personnel of the Immigration

and Naturalization Service, The first assumption is inaccurate

as a matter of fact; the second is wrong as a matter of law.

My brothers correctly state that the Immigration and

Naturalization Service began establishing fixed checkpoints

some distance from international boundaries in 1929. The

information before us about those checkpoints is fragmentary.

We do not know how many there were, where they were located,

or which, if any of them, qualified as functionally equivalent

to international boundaries. We also lack information about

the kinds of searches, if any, that were conducted at them.

However, we do know that any vehicle searches that were under-

taken at points other than international boundaries were with-

out color of statutory authority until 1946 when Congress

enacted the precursor of 8 U.S.C. § 1357. (See Act of Aug. 7,

1946, ch. 768, 60 Stat. 865.)2/ Although Congress thus

3/ Congressional objectives in enacting the statute

were stated in a letter from Attorney General Francis Biddle

to the Chairman of the House Committee on Immigration and |

Naturalization that was incorporated in the Committee's Report.

and adopted by its Chairman as “quite completely" explaining

the purposes of the bill. The letter clearly indicated that .

the Attorney General and the Committee believed that the Immi-|

Rration and Naturalization Service lacked statutory authority

to conduct searches away from the boundaries of the United ‘

States:

“HOW. SAMUEL DICKSTEIN,

Chairman, Committee on Immipration and Naturalization,

louse of Representatives, Washington, D.C.

MY DEAR MR. CHAIRMAN, This is in response to your

request for my views relative to a bill (.R. 386) to amend

(FOOTHOTE 3/ CONTINUED ON FOLLOWING PACE)

-2-

ead

OT) GANDRTONS

ote er F29M feun

(FOOTNOTE 3/ CONTINUED)

the law relating to the authority of certain employees of

the Immigration and Naturalization Service to make arrests

without warrant in certain cases and to search vehicles,

Under existing, law arrests of aliens may be made without

warrant only if the alien is entering or attempting to enter

the United States in the presence or view of the arresting

officer (43 Stat. 1049; 8 U.S.C. 110). Aliens illegally in

the United States may be arrested only pursuant to a warrant

issued by the Immigration and Naturalization Service. This

limitation is cumbersome and at times results in frustrat-

ing, the ends of justice. The power to make arrests in such

cases without a warrant should be conferred on personnel of

the Immigration and Naturalization Service with a restric-

tion that an alien so taken into custody should be accorded

a hearing without unnecessary delay.

It is also desirable to confer upon personnel of the

Immigration and Naturalization Service the power of arrest

in cases of violations of immigration laws, subject to the

same limitations as those generally imposed on the right

of an officer to make an arrest,

Existing law (43 Stat. 1049; 8 U.S.C. 110) confers on

personnel of the Service the right to search vessels and

vehicles for aliens being brought into the United States.

This authority should be extended to cover aircraft, in

the light of recent developments in aircraft transportation,

In the enforcement of the immigration laws it is at

times desirable to stop and search vehicles within a reason-

able distance from the boundaries of the United States and :

the legal right to do so should be conferred by law.

The bill under consideration embodies the foregoing

suggestions and is similar to a bill (H.R. 5464, 78th Cong.)

which was introduced at my request and was passed by the

House of Representatives on December 4, 1944,

Accordingly, I recommend the enactment of the legisla-

tion.

I have been informed by the Director of the Bureau of

the Budget that there is no objection to the submission of

this report.

Sincerely yours,

FRANCIS BIDDLE, Attorney General.”

H.R. Rep. No. 186, 79th Cong., 2d Sess. (1945), 1946 U.S.

Code Cong. Service 1414,

ee eg mee +

Ort Banestone

6-14-67 195M 1008

Naturalization personnel, congressional attention never focuse

on the constitutional difficulties engendered by the movable

border concept that was included in section 1357. (See, e.f.,

H.R. Rep. No, 186, 79th Cong., 2d Sess., supra note 3,)

eventually authorized checkpoint searches by Immigration and |

Fourth Amendment challenges to “alien" searches ial

by immigration and customs officials at places other than

international boundaries were raised in the lower federal

courts, The judicial response, however, did not rest on a

comprehensive, critical analysis of the differences between |

searches at international boundaries and those conducted some |

distance from the border; 4/ rather, the law concerning check- |

point and roving patrol searches developed on a case-by-case |

basis, following the practice so familiar in other Fourth |

Amendment contexts. The end product of the evolution in this

circuit was that section 1357 became a justification for the

initial stop of a vehicle and the preliminary interrogation

of the occupants at either a fixed checkpoint or elsewhere '

within a reasonable distance of the border; but probable cause

was still required to validate a warrantless search of the

vehicle, at least if the search went beyond that reasonably

4/ When customs officers at a distance from the border

conducted warrantless searches for narcotics, rather than

for aliens, our circuit refused to uphold the searches in

the absence of probable cause. (E.s., Contreras v. United

States (9th Cir. 1961) 291 F.2d 63, The Government's ;

argument that 26 U.S.C. § 7607 eliminated the traditional

probable cause requirement was rejected as contrary to the

Fourth Amendment. (Ff Plazola v. United States (9th Cir. ,

1961) 291 F.2d 56, 53-59.) These cases, of course, cannot

be reconciled on constitutional prounds with the alien

search cases commencing with Fernandez v. United States

(9th Cir, 1963) 321 F.2d 283.

-h-

+ OF) GaneeTOne

6-14-67 -195M- 1008

related to the discovery of aliens.2/ Although these “alien"

non-international boundary vehicle search, cases were sometimes

labeled “border searches," they were always a breed apart from

The

searches actually conducted at international boundaries.

latter were treated as they always had been: no warrant and

no probable cause were required to validate a thorough, full-

scale search of the vehicle and its contents. The validity

of warrantless, non-boundary “border searches" conducted

without probable cause, on the other hand, was limited both

in scope and in object.

Of perhaps greater moment for our retroactivity analysis, |

an examination of Ninth Cireuit cases reveals that fixed

checkpoint searches fared neither better nor worse than

searches conducted at temporary checkpoints or by roving

5/ We considered numerous cases involving alien searches,

conducted a substantial distance from an international borcer. |

A few, however, are illustrative of the development of the

law in our circuit. In Fernandez v. United States (9th Cir.

1963) 321 F.2d 283, appellant was stopped at a fixed check-

point by customs inspectors looking for aliens. Probable

cause to believe marihuana was concealed in the vehicle

developed during the stop. The constitutionality of 8 U.S.C.

§ 1357 was upheld, and the statute was applied to justify

the initial stop of appellant's vehicle. Barba-Reyes v.

United States (9th Cir. 1967) 387 F.2d 91 involved a stop

and search similar to that in Fernandez. Again, the stop was

justified under section 1357, and probable cause to search

was found to exist following the stop. In United States v.

Marin (9th Cir. 1971) 444 F.2d 86, a roving patrol stopped

appellant's vehicle three miles from the border. The stop

was upheld under section 1357; marihuana was discovered in

plain view. The search at a fixed checkpoint in Valenzuela-

Garcia v. United States (9th Cir. 1970) 425 F.2d 1170 was

invalidated, however, because the search extended to an area

too small to hide aliens and there was no probable cause to

believe that contraband was hidden in the vehicle. Accord,

United States v. Lujan-Romero (9th Cir. 1972) 469 F.2d 653.

The development of “alien” searches followed a similar

pattern in the Tenth Circuit. (FG: : United States v.

Anderson (10th Cir. 1972) 468 F. 1280; United States v.

McCormick (lOth Cir. 1972) 468 F.2d 68; see Roa-Rodriquez v.

United States (10th Cir. 1969) 410 F.2d T206.) But the Fifth

Circuit created an expandible border concept that had only '

tanpential relationship to the Law emerging from the Ninth anc

Tenth Circuits. (E.g., United States v. McDaniel (5th Cir. j

1972) 463 F.2d 129; Harsh v. United States (5th Cir. 1965)

344 F.2d 317.)

o§e

6-14 67. 120M-~- 1008

é.

patrols away from the border. In all of these cases we

approved initial stops pursuant to section 1357 and limited

the scope of subsequent search activity. (See note 5 supra.)

The assumption of my brothers that full-scale international

boundary-type vehicle searches conducted at fixed checkpoi its

located away from the border had received long-continued

judicial approval is not supported by the facts; my brothers"

conclusion that Almeida-Sanchez sharply broke with prior law

from the lower federa? courts concerning fixed checkpoint

searches cannot be sustained.

Even if the Ninth Circuit for many years had consistently |

upheld these alien searches at fixed checkpoints, however,

that fact would not be pertinent to deciding whether retro-

activity is in issue. &/ For this purpose, the only “old"

and "new" law that is relevant is the constitutional law

enunciated by the Supreme Court. (See Robinson v. Neil (1973)

409 U.S. 505, 510.) A contrary rule would impair or destroy

the uniform application of constitutional law in the ‘iii

circuits, increase manifold the certiorari burdens of the

Supreme Court, and erode the power of the Supreme Court as

the ultimate arbiter of constitutional law.

These disturbing consequences might not occur if all

circuits simultaneously decided constitutional questions and

always decided them the same way.

But they do not. The

question of the constitutionality of fixed checkpoint searches

at issue in the case at bench provides an excellent illustra-

tion of the problems that can arise under my brothers' views.

The issue arose at different times with different frequency

6/ I fully recopnize that if the retroactivity doctrine

were Properly in issue, lower court decisions and law enforce-

ment officers reliance upon them would be relevant considera-

tions in deciding, whether to apply a particular Supreme Court

decision retroactively. E.n.. S ‘

U.S. 293.) y. (E.g., Stovall v, Denno (1967) 388

af»

a eee

| : an United States v. Bowen 72-1012 /

i in some circuits and in others did not arise at all. In the oe

2 circuits where the issue was never decided, did Almeida- .

3 Sanchez state a "new" rule? Is a single decision in one ! :

4 circuit upholding the search enough to create “old” law with

5 which Almeida-Sanchez broke? If one circuit had upheld such

6 searches and another had struck them down, would Almeida-

1 Sanchez be retroactive in the latter circuit and nonretro-

7/ ' CHAMBERS, Circuit Judge, concurring and dissenting:

8 active in the former?— To prevent restrictions on the

9 retroactivity of its decisions, must the Supreme Court take

I concur and dissent as indicated above.

10 every new search and seizure issue to prevent “old” law from

I adhere to my original position that these

11 accumulating? If the Court is in any respect bound by the

Almeida-Sanchez cases should not have been taken en banc.

12 constitutional law developed in the lower federal courts, :

i ; : : , , See United States v. Bowen, F.2d °

13 how can it continue to be the final arbiter of constitutional

14 issues? ®/

15 Even when the retroactivity concept is confined exclu- |

16 sively to law stated by the Supreme Court, difficult jurispru- f \ ’ j

| ,

o. . . ' “ 4° A by. “~ as

17 dential problems are generated. (Sce, e.p., Desist v. Unitec : |SWiltua WC ty )

18 States (1969) 394 U.S. 244, 256-69 (Harlan, J., dissenting).) United States Circuit Judge

19 To extend the concept to embrace the law of the circuits

20 would turn confusion into chaos. f° “a 7— 3f) Ae

. L Cat . °

—_ A

22 7/ Even a clarifying Supreme Court decision would not

necessarily prevent retroactivity problems from arising. For

23 example, in light of Almeida-Sanchez, the Fifth Circuit has

invalidated a search conducted at a checkpoint located 65 to

24 75 miles north of the Mexican border. (United States v.

Speed (Sth Cir. 1973) 489 F.2d 478.) If the views expressed

25 in my brother Wallace's dissenting opinion concerning the

applicability of Almeida-Sanchez to fixed checkpoints had

26 gained the adherence of a majority of our court, would a sub-

sequent decision by the Supreme Court affirming the Fifth

27 Circuit decision create new law for the Ninth Circuit, while

. merely confirming old law in the Fifth?

2 . :

8/ The difficulties created by the view that circuit

29 decisions can establish “old” law are multiplied preatly if

unappealed district court decisions also produce old law. Yet

30 the rationale of my brothers' opinions is not in any way limit-

able to circuit decisions. Moreover, deciding issues of federa

31 constitutional law is not solely the prerogative of federal

courts Can the judiciaries of 50 states also create old law

32 from which the Supreme Court departs when it reaffirms estab-

lished constitutional principles and refuses to countenance a

deviation sanctioned by the decisions of one or more state

courts? ane

Prt Sanestons _— — !

Fnac | BEST COPY AVAILABLE J

LAW OFFICES

NASATIR. SHERMAN & HIRSCH

8323 WitsHire BOULEVARD

BEVERLY HILLS, CALIFORNIA 90211

TELEPHONE (213) 653-3303

o onrt oa rt ef ND FY

ee ee ee ee ee

oOo a ® & YD F O

Appendix "B" - Cont inucd

Search without worrrnet

rated under regulations preseribed by the Attorney General, whether

ndividually or as one of a class, shall have power to conduct a

warch, without warrant, of the person, and of the personal effects in

the possession of any person seeking admission to the United States,

cmeerning whom such officer er employce may have reasonable

ravse to suspect that grounds exist for exclusion from the United

Mates under this chapter which would be disclosed by such search.

8. C.F.R. §287.1(a) (2)

Reasonable Distance.

The term “reasonable distance" as used in Section 287

(a) (3) of the Act, means within 100 air miles from any external

boundary of the UnitedStates or any shorter distance which may

be fixed by the District Director, or so far as the power to board

and search aircraft is concerned, any distance fixed pursuant to

paragraph (b) of this section.

“ere «

Suite 510

8383 WicsHire BOULEVARD

BEVERLY HILLS. CALIFORNIA 90211

LAW OFFICES

NASATIR. SHERMAN & HIRSCH

TELEPHONE (213) 653-3303

bn db Dd DDD WDD YP YP KP PP PP PP PP PP Pe

2~ogne® wns rowvoeomwnxr oo oo & & BD FY O

APPLNDLX “B"

AMENDMENT LV = UNITLD STALLS CONSTLTUTION

The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches and

seizures shall not be violated and no warrants shall issue but

upon probable cause supported by oath or affirmation, and par-

ticularly describing the place to be searched and the person or

things to be seized.

TITLE 8, U.S.C. §1357 (a) and (c)

§ 1357.

Powers of immigration officers and employees

Powers without warrant

(a) Any officer or employee of the Service authorized under regu.

lations prescribed by the Attorney General shall have power without

warrant—

(1) to interrogate any alien or person believed to be an alien

as to his right to be or to remain in the United States;

(2) to arrest any alien who in his presence or view is entering

or attempting to enter the United States in violation of any law

or regulation made in pursuance of law regulating the admis.

sion, exclusion, or expulsion of aliens, or to arrest any alien in

the United States, if he has reason to believe that the alien so

arrested is in the United States in violation of any such law or

regulation and is likely to escape before a warrant can be ob-

tained for his arrest, but the alien arrested shall be taken with-

out unnecessary delay for examination before an officer of the

Service having authority to examine aliens as to their right to

enter or remain in the United States;

(3) within a reasonable distance from any external boundary

of the United States, to board and search for aliens any vessel

within the territorial waters of the United States and any rail-

way car, aircraft, conveyance, or vehicle, and within a distance

of twenty-five miles from any such external boundary to have

access to private lands, but not dwellings, for the purpose of

patrolling the border to prevent the illegal entry of aliens into

the United States; and

(A) to make arrests for felonies which have been committed

and which are cornizable under any law of the United States

regulating the admission, exclusion, or expulsion of aliens, if

he has reason to believe that the person co arrested is guilly of

such felony and if there is likelihood of the person escaping he-

fore a warrant can be obtained for his arrest, but the person

arrested shall be taken without unnecessary delay before the

nearest available officer empowered to commil persons charged

with offenses against the laws of the United States. Any such

employee shall also have the power to execute any warrant or

other process issued by any officer under any law regulating

the admission, exclusion, or expulsion of aliens.

| BEST COPY Arana

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