Petitioners Brief — Bowen v. United States

IN THE

Supreme Court of the Gnit

OCTOBER TERM, 1974

No. 73-6848

JOHN LEE BOWEN,

Petitioner,

UNITED STATES

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR PETITIONER

MICHAEL D. NASATIR, of

Nasatir, Sherman & Hirsch

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 653-3303

JERALD W. NEWTON, of

Newton, Re & Russell

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 655-5011

Attorneys for Petitioner

SS

Wastungton OC © CLE PUBLISHERS ©¢ LAW PRINTING CO « (202) 39306275

JURISDICTION

(i)

TABLE OF CONTENTS

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES AND REGULATIONS

QUESTIONS PRESENTED

STATEMENT OF THE CASE

ARGUMENT:

JOHN LEE BOWEN IS ENTITLED TO

RELIEF PURSUANT TO THIS COURT’S

DECISION IN ALMEIDA-SANCHEZ V.

UNITED STATES, 413 US. 266, 93 S.Ct.

2533 (1973), SINCE THAT CASE

PRESENTS NO CHOICE BETWEEN

PROSPECTIVE OR RETROACTIVE AP.

PLICATION OF NEW CONSTITUTIONAL

PRINCIPLES OR INTERPRETATIONS;

INSTEAD, IT MERELY REAFFIRMS THE

WELL ESTABLISHED SUPREME COURT

“CAR SEARCH CASES” AND “ADMINIS-

TRATIVE SEARCH CASES.” .............

. ASSUMING, ARGUENDO, THAT THE

DECISION OF THE NINTH CIRCUIT

REQUIRING PROBABLE CAUSE AND A

WARRANT TO SEARCH FOR ALIENS AT

CHECKPOINTS FAR REMOVED FROM

THE INTERNATIONAL BOUNDARIES OF

THE UNITED STATES IS “NEW LAW,”

THE HOLDING IN THAT DECISION

MUST BE APPLIED TO JOHN LEE

BOWEN HIMSELF FOR THAT DECISION

TO MEET CASE OR CONTROVERSY

REQUIREMENTS OF ARTICLE Ill, SEC-

TION 2 OF THE UNITED STATES

ETRE h we eeeeseeccccccess

(ii)

lll. THE CONSTITUTIONAL PRINCIPLES RE-

AFFIRMED IN ALMEIDA-SANCHEZ,

SUPRA, AND UNITED STATES V.

BOWEN, 500 F.2d 960 (9th Cir. 1974),

SHOULD BE APPLIED TO JOHN LEE

BOWEN WHO HAS CHALLENGED THE

VALIDITY OF THE INSTANT SEIZURE

AT ALL APPLICABLE JUDICIAL PRO-

CEEDINGS INCLUDING THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA;

THE UNITED STATES COURT OF AP-

PEALS FOR THE NINTH CIRCUIT

(TWICE) AND THE UNITED STATES

SUPREME COURT (TWICE) ....... 2-6-5 e ees 15

COPITRAMIIO ww ccc ccc cece reese cccesccesseens 27

United States Constitution, Article II], §§l and2 ....... la

United States Constitution, Fourth Amendment ......... 2a

United States Constitution, Fifth Amendment ........... 3a

Title 8, United States Code, §1357 ... 2... 2.6 e ee eens 3a

Title 8, Code of Federal Regulations, §287.1(a)2 ........ 6a

TABLE OF AUTHORITIES

Cases:

Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 920

BD ccccccccececececocesesesocoeseecess

Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672

PED ccccantoneceseeses seeseteneoaeeecens 19

Aptheker v. Secretary of State, 378 U.S. 500, 84

BEd. BGSD CISGE) nn cccccccccccssesccces 11,12, 18

Bowen v. United States, 413 U.S. 915, 93 S.Ct.

FEUD CITED cc cccccccccceeccesecescesecess 2,5

(iii)

Page

Brinegar v. United States, 338 U.S. 160, 69 S.Ct.

PE. 660 bhnGuseecaew ee cdadkencen 8,12,18

Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct.

Se SE oh bedbudddechceusadee 10, 12, 18, 22, 24

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280

Se £40004 b645ntabebeebscbeden2 8, 12, 18, 21,24

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975

EE Web be kknbc cébedderentenseccacn 9,12,18

Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034

SE a4 we heebebeesnd nodes tecceceuctaniic 19

Colonnade Catering Corp. v. United States, 397 US.

Oe eee 11

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.

Pn Seeudehaaeusedeenebebacinacies. 10

Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 745 (1868) . 11,12,18

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

eee 14, 19, 20, 23, 24

Dyke v. Taylor Implement Co., 391 U.S. 216, 88

SED wisp cedeeusessncuiosacs 9,12,18

Edwards v. California, 314 U.S. 160, 62 S.Ct. 164

Se SCEKe Ce ae deed bea 11,12,18

Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229

De 6unebneuséeneus cendaooeudenkek ex est 17

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229

A en ee ae 19

Husty v. United States, 282 U.S. 694, 51 S.Ct. 240

Dt? Egteadennthvewd aueeeesuubaeedn a 8,12,18

Johnson v. New Jersey, 384 US. 719, 86 S.Ct.

PKs daousbedad cece onde eee nese ee we 19

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507

TT TTT ETT P TTT Cee rTTrTTrrrer 19, 23

(iv)

Page

Ker v. California, 374 US. 23, 83 S.Ct. 1623

(ii 17

Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415

1S) i i 19

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731

CIGD nn cccccccccccccececccssenns 17, 19, 20, 21

Mackey v. United States, 401 U.S. 667, 91 S.Ct.

|” T( 1)) SEER 19,25

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1965) ..19,21,23

Marbury v. Madison, 1 Cranch 137 (1803) ............. 24

Marchetti v. United States, 390 U.S. 39, 88 S.Ct.

GOP CIGETD nn cccccccccccrccccccsccccccesens 19

Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966,

SPU GINEED cccccccceccesceseceeceseecosces 20

Olmstead v. United States, 277 U.S. 438, 48 S.Ct.

PROGID ccccccescccceccescossecsoscess 19, 23

Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 879

EEE codedveceeecnesevocenceseeeesoeeses 7

Santobello v. New York, 404 U.S. 257, 92 S.Ct.

GIGS cccceccciccesesvecsssscecesceees 25

See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737

TT? -coceweevendenseedeseveeeeereas 11, 12,18

Stoner v. California, 376 U.S. 483, 84 S.Ct. 889

PD cc¢beceuseececeeeesesoeetaseeevneness 17

Stovall v. Denno, 388 U.S 293, 87 S.Ct. 1967

Dt ctsktedakdesbseceneuncenseaeeess4 14, 25

Tehan v. United States, 382 U.S. 406, 86 S.Ct. 459

Dt? sscudeecedendennesecessseneateeeens 19

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

DD <accecengubevdesesbeteseneeneds 24

United States v. Biswell, 406 U.S. 311, 92 S.Ct.

Pn cibb dn he cOGbCCERDEES CEOS OHH EE ES 11

(v)

United States v. Bowen, 462 F.2d 347 (9th Cir.

1972)

United States v. Bowen, 500 F.2d 960 (9th Cir.

er ee 2, 3, 4, 6, 7, 13, 20, 25, 27

United States v. Byrd, 483 F.2d 1196 (Sth Cir.

a RE re ee rn 16

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

DT chee SehUeheehenuedeeereee eda sce cdi 16

Pn Suceuieieneueduade beeen see teak k cKed ss 16

United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct.

I a eee a en 5) 19

Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341

PD ¢ueb606066000R¢665086400058 8, 21, 22,24

Williams v. United States, 401 U.S. 646, 91 S.Ct.

one Ve 19

Williams v. United States, 401 U.S. 675, 91 S.Ct.

1'71 (1971), Justice Harlan concurring and

DE Gs865 066 0h00060 0666604650 000460 008 25

Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359

hs eee ee he eae ee ee ene ae 19

Miscellaneous:

SP es OED gcc un vccccceceeséoss 3, 24

EE a 3,24

ff RR 8 PTT TTT Te TTT rsT Terry 4

Pe i se SUOMI cc cccccccesccceccesees 4

oe coon ee enedeenaeseus 2

Article III], § 2, United States Constitution ........... 3,13

Fourth Amendment to United States Constitution ........ 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-6848

JOHN LEE BOWEN,

Petitioner,

UNITED STATES

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR PETITIONER

OPINIONS BELOW

To Petitioner’s knowledge there are no official or

unofficial reports of the Order of the District Court

denying John Lee Bowen’s Motion to Suppress

Evidence. The original opinion of the United States

Court of Appeals for the Ninth Circuit affirming the

instant search and seizure and Mr. Bowen’s conviction is

United States v. Bowen, 462 F.2d 347 (9th Cir. 1972).

The first opinion of this Court granting certiorari,

2

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 as Bowen v. United States, 413 U.S.

915, 93 S.Ct. 3069 (1973). The en banc decision of the

United States Court of Appeals for the Ninth Circuit,

on remand is reported as United States v. Bowen, 500

F.2d 960 (9th Cir. 1974).

JURISDICTION

On May 9, 1974, the United States Court of Appeals

for the Ninth Circuit, held that fixed checkpoint

searches, away from the international border, not

located at the functional equivalent of a _ border,

without warrant or probable cause, violated the Fourth

Amendment to the United States Constitution. How-

ever, the Court of Appeals further held that John Lee

Bowen was not entitled to the benefits of said “new”

ruling and that said ruling was made retroactive only

until June 21, 1973, the date of this Court’s ruling on

Almeida-Sanchez, supra. United States v. Bowen, 500

F.2d 960 (9th Cir. 1974).

A timely petition for writ of certiorari in the instant

cause was lodged with this Court on June 7, 1974.

The jurisdiction of this Court is invoked under Title

28, U.S.C. § 1254(1).

3

CONSTITUTIONAL PROVISIONS, TREATIES.

STATUTES AND REGULATIONS

1. United States Constitution, Article III.

2. The Fourth Amendment to the United States

Constitution.

3. The Fifth Amendment to the United States

Constitution.

4. Title 8, U.S.C. § 1357.

5. Title 8, C.F.R. § 287.1(a) (2).

The foregoing have been set forth in the Appendix

attached hereto.

QUESTIONS PRESENTED

Whether the constitutional principles requiring prob-

able cause and warrants for searches reaffirmed in

Almeida-Sanchez, supra, and in United States vy. Bowen,

S00 F.2d 960 (9th Cir. 1974), Part I, involving

“immigration searches” far removed from the inter-

national boundaries should be applied to John Lee

Bowen who has challenged the validity of the instant

seizure at all applicable judicial proceedings, and whose

cause was pending before this Honorable Court on the

date that A/meida-Sanchez was decided. Specifically:

|. Whether the United States Court of Appeals for

the Ninth Circuit can refuse to apply the probable

cause and warrant requirements for immigration

searches far removed from the international boundaries

of the United States articulated in Almeida-Sanchez,

supra, to Petitioner, when Almeida-Sanchez did not

4

make “new iaw;” was itself based on fundamental

Fourth Amendment law as enunciated in the “car

search cases” and “administrative search cases; and did

not overrule any previous determination of the United

States Supreme Court?

2. Whether the decision in Part I of United States v.

Bowen, 500 F.2d 960 (9th Cir. 1974), which held as

“new law” the principle that fixed checkpoint searches

away from the international boundaries of the United

States must be conducted with probable cause and a

warrant, must be applied to the litigant himself, John

Lee Bowen, so that the opinion of the Court is not

“mere dictum” and the “case or controversy” require-

ment of Article III, Section 2 of the United States

Constitution would be followed?

3. Whether John Lee 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, back again to the

United States Court of Appeals for the Ninth Circuit

and back to the United States Supreme Court, when

Mr. Bowen’s matter was on “direct” appeal at the time

of Almeida-Sanchez, supra, and where the result

reached in Almeida-Sanchez was foreshadowed by

previous Supreme Court decisions?

STATEMENT OF THE CASE

1. 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(g)(3)(b).

5

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

Suppress Evidence in connection with the instant cause

was denied. On August 27, 1971, John Lee Bowen’s

jury trial commenced and on August 31, 1971, Mr.

Bowen was found guilty as charged on all three counts

on 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 Mr. Bowen’s

conviction in United States v. Bowen, 462 F.2d 347

(9th Cir. 1972); Bowen’s Petition for Rehearing en banc

was denied by said Court on July 24, 1972. A Petition

for Writ of Certiorari and request for leave to proceed

in forma pauperis were prepared and lodged with this

Court on August 28, 1972.

4. On June 25, 1973, this 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 Circuit for further consideration in light of

Almeida-Sanchez, supra, in Bowen y. United States,

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

5. 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. On May 9, 1974, said

Court held that fixed checkpoint searches away from

the border, not located at the functicnal equivalent of a

border, without warrant or probable cause, violated the

Fourth Amendment to the United States Constitution.

However, the Court of Appeals further held Petitioner

was not entitled to the benefits of said “new” ruling as

said ruling was made retroactive only until June 21,

6

1973. the date of this Court’s ruling on Almeida-

Sanchez, supra. United States v. Bowen, 500 F.2d 960

(9th Cir. 1974).

6. A timely petition for writ of certiorari in the

instant case, Bowen v. United States, was lodged with

this Honorable Court on June 7, 1974.

7. On October 15, 1974, this Court granted

Petitioner’s Petition for writ of certiorari and leave to

proceed in forma pauperis in the above-entitled cause.

ARGUMENT

I.

JOHN LEE BOWEN IS ENTITLED TO

RELIEF PURSUANT TO THIS COURT'S

DECISION IN ALMEIDA-SANCHEZ,

SUPRA, SINCE THAT CASE PRESENTS NO

CHOICE BETWEEN PROSPECTIVE OR

RETROACTIVE APPLICATION OF NEW

CONSTITUTIONAL PRINCIPLES OR _IN-

TERPRETATIONS; INSTEAD, IT MERELY

REAFFIRMS THE WELL ESTABLISHED

SUPREME COURT “CAR SEARCH CASES”

AND “ADMINISTRATIVE SEARCH

CASES.”

In the proceedings in the United States Court of

Appeals for the Ninth Circuit, on remand, that Ceurt

held in Part I of the decision that the warrantless search

of Mr. Bowen’s camper, conducted without probable

cause, at a checkpoint over fifty miles from the

international boundaries of the United States violated the

Fourth Amendment. However, in Part II of the decision

the Court further held that this holding established

“new” law and therefore Mr. Bowen was not entitled to

the benefits of said decision. In reaching this decision, the

:

divided Court held that to constitute a new rule a

decision must:

“(1) Overrule clear past precedent or (2) Dis-

rupt a practice long accepted and widely relied

upon.'” (Footnote omitted) 500 F.2d at 975.

The Court then found that fixed checkpoint searches

had become established precedent under Title 8 U.S.C.

§1357(a) and that the Ninth Circuit had continually

upheld convictions based upon evidence seized during

searches made at fixed checkpoints. United States y

Bowen, 500 F.2d 960, 977, n.2 (9th Cir. 1974) The

Ninth Circuit did not, and could not, cite any authority

from this Court upholding the aforementioned statute or

the result reached in the aforementioned cases. This

reliance on lower Courts’ decisions to determine whether

“new law’ is made, as opposed to decisions of this

Honorable Court, would seem to be misplaced. See

Robinson vy, Neil, 409 U.S. 505, 93 S.Ct. 876, 879

(1973).!

In fact, the previous decisions of this Court have

clearly indicated in analogous situations that searches

such as the one directed against Mr. Bowen and his

vehicle without probable cause or warrant were

unconstitutional. As was stated in A/meida-Sanchez,

supra:

No claim is made, nor could one be, that the

search of the petitioner’s car was constitutional

under any previous decision of this Court involving

the search of an automobile.” 93 S.Ct. at 2537.

‘An excellent opinion pointing out the chaotic effect of

reliance on lower court decisions to determine whether a decision

constitutes “new law” can be found in the dissenting opinion of

Judge Hufstedler in United States v. Bowen, 500 F.2d 960, 985

(9th Cir., 1974).

8

The Court continued to state:

“In seeking a rationale for the validity of the

search in this case, the Government thus under-

standably sidesteps the automobile search cases.

Instead, the Government relies heavily on cases

dealing with administrative inspections. But these

cases fail to support the constitutionality of this

search.” 93 S.Ct. at 2538

Indeed, ever since Weeks v. United States, 232 US.

383, 34 S.Ct. 341 (1914), the exclusionary rule has

been applied in federal cases to prohibit the introduc-

tion of evidence seized without probable cause and

without warrant unless there were exigent circumstan-

ces. This Court has never allowed the fruits of a search

not based upon probable cause into evidence.

In arriving at the decision in Almeida-Sanchez, supra,

this Court merely followed the doctrine first enunciated

by Mr. Chief Justice Taft in Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280 (1925). Carroll, supra,

merely dispensed with the warrant requirement for

searching automobiles under certain limited circumstan-

ces while specifically reaffirming the constitutional

necessity that all searches be based upon probable

cause.

Carroll was followed by Husty v. United States, 282

U.S. 694, 51 S.Ct. 240 (1931), where Mr. Justice Stone

(later Chief Justice), said:

“The Fourth Amendment does not prohibit the

search, without warrant, of an automobile, for

liquor illegally transported or possessed, if the

search is upon probable cause.” 51 S.Ct. at 241.

In Brinegar vy. United States, 338 U.S. 160, 69 S.Ct.

1302 (1949), the Court sustained the warrantless search

9

of an automobile by federal officers upon the ground

that:

“Each of the ultimate facts found in Carroll to

constitute probable cause, when taken together, is

present in this case and is fully substantiated by

the proof. Accordingly, the Carroll decision must

be taken to control this situation, unless it is now

to be overruled.” 69 S.Ct. at 1308.

Mr. Justice White relied on Brinegar, supra, and

Carroll, supra, in reversing Dyke v. Taylor Implement

Co., 391 U.S. 216, 88 S.Ct. 1472 (1968), Stating:

“Automobiles, because of their mobility, may

be searched without a warrant upon facts not

justifying a warrantless search of a residence or

office. (Citing Brinegar and Carroll) The cases so

holding have, however, always insisted that the

officers conducting the search have ‘reasonable or

probable cause’ to believe that they will find the

instrumentality of a crime or evidence pertaining

to a crime before they begin their warrantless

search. The record before us does not contain

evidence that Sheriff Kirkpatrick, Deputy Sheriff

Powers, or the officers who assisted in the search

had reasonable or probable cause to believe that

evidence would be found in petitioners’ car.” 88

S.Ct. at 1475.

In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975

(1970), Mr. Justice White quoted with approval the

Carroll holding:

e+

{T] hose 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 the

vehicles are carrying contraband or illegal merchan-

dise. * * *

10

“*The measure of legality of such a seizure is,

therefore, that the seizing officer shall have

reasonable or probable cause for believing that the

automobile which he stops and seizes has contra-

band liquor therein which is being illegally

transported.’. . .” 90 S.Ct. at 1980.?

Similarly, the administrative search cases decided by

this Honorable Court provide no basis for the

conclusion that the decision in Almeida-Sanchez, supra,

was “new” law. In fact, the administrative search cases

substantiate Mr. Bowen’s claim that a warrant and

probable cause were required before his camper was

susceptible to search under the Fourth Amendment. In

Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct.

1727 (1967), the Court determined that the Fourth

Amendment protections of a search warrant and

probable cause applied to administrative searches of

private residences:

“In summary, we hold that administrative

searches of the kind at issue here are significant

intrusions upon the interests protected by the

Fourth Amendment, that such searches when

authorized and conducted without a _ warrant

procedure lack the traditional safeguards which the

Fourth Amendment guarantees to the individual

and that the reasons put forth in Frank v. State of

Marviand, and in other cases for upholding these

warrantless searches are insufficient to justify so

substantial a weakening of the Fourth Amend-

ment’s protection.” 87 S.Ct. at 1733

—

2See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022

(1971), where it was held that the word “automobile” is not a

talisman in whose presence the Fourth Amendment fades away

and disappears. 91 S.Ct. at 2035.

In a companion case, See v. City of Seattle, 387 U.S.

541, 87 S.Ct. 1737 (1967), the Court held that the

probable cause and warrant requirements of the Fourth

Amendment applied to administrative searches of

businesses:

“The businessman like the occupant of a

residence, has a constitutional right to go about his

business free from unreasonable official entries

upon his private commercial property.” 87 S.Ct. at

1739 (387 U.S. at 543)

It must also be remembered that this Court has

consistently prohibited the infringement upon travel of

United States citizens. Aptheker v. Secretary of State,

378 U.S. 500, 84 S.Ct. 1659 (1964): Edwards y.

California, 314 U.S. 160, 62 S.Ct. 164 (1941): Crandall

v. Nevada, 6 Wall. 35, 18 L.Ed. 745 (1868). The

stopping and searching of Bowen and his vehicle fifty

miles within the international boundaries of the United

States certainly infringed upon his right to travel.

The Government should not be allowed to ignore the

long standing principles clearly announced in the cases

cited above. Such a policy would seriously undermine

the Supreme Court’s position as the final arbitrator of

‘cf. United States v. Biswell, 406 US. 311, 92 S.Ct. 1593

(1972); Colonnade Catering Corp. v. United States, 397 U.S. 72,

90 S.Ct. 774 (1970). Both of these cases require warrants before

the fruits of a search of a business establishment may be

introduced against the accused. Further, as these cases involve

searches of well regulated business (firearms and liquor), the

Court reasoned that the benefit of conducting these businesses

allow the Government certain practices which would not be

available against a private citizen. It certainly cannot be argued

that Mr. Bowen was engaged in a “regulated business’ when his

vehicle was stopped and searched by immigration agents as he was

driving on the open highway.

12

constitutional doctrine.

As can be seen from a review of the above cases

decided by this Honorable Court, John Lee Bowen is

aot claiming the benefit of a decision overruling or

enlarging “then applicable constitutional norms,” rather,

he seeks the application of well established principles of

constitutional law consistently delineated by this Court.

Consequently, the question here is not whether

Almeida-Sanchez, supra, should be applied retroactively,

but whether 1925 Carroll, 1931 Husty, 1949 Brinegar,

1968 Dyke, 1970 Chambers, 1967 Camara, 1967 See

1868 Crandall, 1941 Edwards, and 1964 Aptheker should

be applied prospectively to unconstitutional searches

occurring after those dates. The affirmative answer to

that question cannot seriously be disputed.

13

Il.

ASSUMING, ARGUENDO, THAT THE

DECISION OF THE NINTH CIRCUIT

REQUIRING PROBABLE CAUSE AND A

WARRANT TO SEARCH FOR ALIENS AT

CHECKPOINTS FAR REMOVED FROM

THE INTERNATIONAL BOUNDARIES OF

THE UNITED STATES IS “NEW LAW,”

THE HOLDING IN THAT DECISION MUST

BE APPLIED TO JOHN LEE BOWEN

HIMSELF FOR THAT DECISION TO MEET

CASE OR CONTROVERSY REQUIRE

MENTS OF ARTICLE III, SECTION 2 OF

THE UNITED STATES CONSTITUTION.

Throughout the proceedings in the lower federal

Courts and before this Honorable Court, John Lee

Bowen has contended that a search at a fixed

checkpoint away from the functional equivalent of a

border, without probable cause or warrant, is prohibited

by the Fourth Amendment. The United States Court of

Appeals for the Ninth Circuit, United States v. Bowen.

500 F.2d 960 (9th Cir. 1974) (Part 1), concluded that

Bowen was correct in his argument. However, the Court

refused to apply the rationale of this decision to

Petitioner Bowen himself.* This refusal would seem to

be in direct violation of the “case or controversy”

requirement of Article III, Section 2 of the United

States Constitution which provides as follows:

“The judicial Power shall extend to all Cases,

Law and Equity arising under this Constitution,

the Laws of the United States and Treaties made,

*See Part Il of the decision located at 500 F.2d at 975.

14

or which shall be made, under their Authority;

—to all Cases...; —to Controversies to which the

United States shall be a party...”

The refusal of the Court to apply the rule involving

such checkpoints to Mr. Bowen himself rendered the

decision outlawing these checkpoint searches “mere

dictum.” -This was first recognized in Stovall v. Denno,

388 U.S. 293, 87 S.Ct. 1967 (1967); wherein the Court

stated:

“We have recognized that Wade and Gilbert are,

therefore, the only victims at pre-trial confronta-

tions in the absence of their counsel to have the

benefit of the rules established in their cases. That

they must be given that benefit is, however, an

unavoidable consequence of the necessity (that

constitutional adjudications not stand as mere

dictum. Sound policies of decision-making rooted

in the command of Article III of the Constitution

that we resolve issues solely in concrete cases or

controversies,’ and in the possible effect upon the

incentive of counsel to advance contentions

requiring a change in the law,’ militate against

denying Wade and Gilbert the benefits uf 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).°

‘Underlying policy reasons concerning development and

refinement of constitutional law would seem to require that the

denefits of a “new” decision go to the accused challenging the

“old” rule. Any other decision would discourage defendants and

their attorneys from seeking review of what they feel to be

“unconstitutional” rulings. Without the incentive of allowing the

new rule to apply to the moving party, there would be no

incentive for constitutional litigation.

15

THE CONSTITUTIONAL PRINCIPLES

REAFFIRMED IN ALMEIDA-SANCHEZ,

SUPRA, AND UNITED STATES V. BOWEN,

500 F.2d 960 (9th Cir. 1974), SHOULD BE

APPLIED TO 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 SOUTHERN DISTRICT OF CALI-

FORNIA; THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

(TWICE) AND THE UNITED STATES

SUPREME COURT (TWICE).

A.John Lee Bowen is Entitled to the Benefits of

the Ruling in Almeida-Sanchez Because his

Cause was Pending Before the United States

Supreme Court on Direct Review when

Almeida-Sanchez was Decided.

John Lee Bowen has challenged the validity of a

fixed checkpoint search sixty miles away from the

international boundaries of the United States from

January 19, 1971 until the present. On May 9, 1974,

the United States Court of Appeals for the Ninth

Circuit, in interpreting A/meida-Sanchez, supra, held

that searches conducted at fixed checkpoints, away

from the functional equivalent of a border, without

probable cause or warrant, were unconstitutional.

However, even though John Lee Bowen’s cause was

pending before this Honorable Court when A/meida-

Sanchez was decided, and the cause was then remanded

to the Ninth Circuit for action not inconsistent with

16

Almeida-Sanchez, the benefit of the instant decision

was not applied to Mr. Bowen himself.

This unconscionable result is in direct contradiction

with the results reached by the United States Courts of

Appeal for the Fifth and Tenth Circuits. In United

States v. King, 485 F.2d 353 (10th Cir. 1973), the

Court answered the contention that Almeida-Sanchez

should not apply to the litigant in that case. 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

challenge as well. And King now asks that he be

given the same relief as has been afforded in

Almeida-Sanchez. We agree.” 485 F.2d at 359.

In United States v. Maddox, 485 F.2d 361 (10th Cir.

1973), the Court replied to a similar argument by

emphasizing that the appellant in that case, like

Almeida-Sanchez, had challenged on _ constitutional

grounds the validity of the statute and regulation

throughout the trial court proceedings and had

continued to press that challenge throughout the

proceedings:

““And Maddox now asks that he be afforded the

same relief as has been afforded in Almeida-

Sanchez. We agree. 485 F.2d at 363.

In United States v. Byrd, 483 F.2d 1196 (Sth Cir.

1973), the Court concluded that an appellant who was

in exactly the same position on appeal as John Lee

Bowen was before the Ninth Circuit on remand, should

17

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

defendants 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.

These decisions by the Fifth and Tenth Circuits were

consistent with previous United States Supreme Court

decisions concerning cases pending on direct review at

the time a Supreme Court decision was rendered.

Stoner yv. California, 376 U.S. 483, 84 S.Ct. 889

(1964); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229

(1963); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623

(1963); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct.

1731 (1965).

To refuse to hold Almeida-Sanchez, supra, applicable

to John Lee Bowen would be a grave injustice in the

instant factual situation. As previously discussed, (see

Argument I, supra) Almeida-Sanchez was not a “new”

decision and, in fact, it was “foreshadowed” by

previous Supreme Court decisions (see Argument III(B)

infra). At each and every stage of the proceedings Mr.

Bowen has contested the constitutionality of the search

for, and seizure of, contraband in his camper. Mr.

Bowen anticipated the Almeida-Sanchez decision and

exhausted every possible avenue to avail himself of his

Fourth Amendment rights. It would be a terrible

injustice to deny Mr. Bowen the protections 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 individual who has demanded his

rights at every stage of the proceedings against him. In

18

this light, it is important to note that the search of

Petitioner’s vehicle took place on January 19, 197].

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 in 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-Sanchez, who was

searched prior to Petitioner, could have the evidence

introduced against him suppressed, while Petitioner,

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

same avenues as Almeida-Sanchez, could not.

B. The Decision in Almeida-Sanchez, supra, and

in United States v. Bowen, 500 F.2d 960 (9th

Cir. 1974), Part I, was Foreshadowed by

Previous Decisions of this Honorable Court

and for this Reason John Lee Bowen Should

Have the Benefit of Said Decision.

As indicated in Argument I, supra, the decision of

this Honorable Court in Almeida-Sanchez, supra, was

clearly foreshadowed by previous decisions of this

Court. For this reason, John Lee Bowen is in a

®See Carroll v. United § fates, supra; Husty v. United States,

supra; Brinegar v. United States, supra; Dyke vy. Taylor

Implement Co., supra; Chambers vy. Maroney, supra; Camara y.

Municipal Court, supra; See y. Seattle, supra; Aptheker y.

Secretary of State, supra; Edwards y. California; supra; and

Crandall v. Nevada, supra.

19

different situation than the moving parties in other cases

in which this Court has held the controlling decision not

to be retroactive to matters on direct appeal.’ As was

stated in Williams v. United States, 401 U.S. 646, 91

S.Ct. 1148 (1971):

“The petitioners in both Linkletter and Desist

were convicted in proceedings that conformed to

all then applicable constitutional norms... Each

defendant, Linkletter by the habeas corpus route,

and Desist on direct appeal, claimed the benefit of

a later decided case and demanded a new

trial...In these circumstances we found no

constitutional warrant for setting aside either

conviction.” (Emphasis added) 91 S.Ct. at 1153

(401 U.S. at 654, 655).

Further support for this proposition is found in

Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772

(1966), where the Court stated:

—_—~

7Thus, Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160

(1971) held Marchetti v. United States, 390 US. 39, 88 S.Ct.

697 (1968), which overruled Lewis v. United States, 348 US.

419, 75 S.Ct. 415 (1955) not to be retroactive; Williams v.

United States, 401 U.S. 646, 91 S.Ct. 1148 (1971), held Chimel

v. California, 395 US. 752, 89 S.Ct. 2034 (1969), which

overruled United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430

(1950) not to be retroactive; Desist v. United States, supra, held

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967), which

overruled Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564

(1928), not to be retroactive; Tehan v. United States, 382 US.

406, 86 S.Ct. 459 (1966), held Griffin v. California, 380 U.S.

609, 85 S.Ct. 1229 (1965) which overruled Adamson y.

California, 332 US. 46, 67 S.Ct. 1672 (1947), not to be

retroactive; and Linkletter v. Walker, supra, held Mapp v. Ohio,

367 US. 643. 81 S.Ct. 1684 (1965), which overruled Wolf v.

Colorado, 338 US. 25, 69 S.Ct. 1359 (1949), not to be

retroactive.

20

“Nor would retroactive application have the

justifiable effect of curing errors committed in

disregard of constitutional rulings already clearly

foreshadowed.” 86 S.Ct. at 1779.8

For these reasons, John Lee Bowen should be

entitled to the benefit of the rule announced in

Almeida-Sanchez, supra, and applied to fixed check-

points in United States v. Bowen, 500 F.2d 960 (9th

Cir. 1974).

C. Application of the Retroactivity Test First

Enunciated in Linkletter v. Walker Indicates

that John Lee Bowen Should be Given the

Benefit of the Rule Prohibiting Warrantless

Probable Causeless Searches of Vehicles at

Fixed Checkpoints Within the International

Boundaries of the United States Which are

not the Functional Equivalent of the Border.

The Supreme Court has devised three criteria to be

applied to the determination whether new constitu-

tional rules affecting criminal trials are to be applied

retroactively or prospectively.

“The criteria guiding resolution of the question

implicate (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 affect on the administration of justice of a

retroactive application of the new standards.” 87

S.Ct. at 1970

Of these factors, the most important is the purpose to

be served by the new constitutional rule. Desist y.

"See Michigan v. Payne, 412 US. 47. 93 S.Ct. 1966, 1971

(1973); Adams v. Illinois, 405 U.S. 278, 283, 92 S.Ct. 916, 920

(1972).

21

United States, supra. The question to be answered is

whether the purpose of the mule is advanced by

applying the rule retrospectively. The factors of police

reliance and burden placed on the administration of

justice by retroactive application have been significant

in retroactivity determinations “only when the purpose

of the rule in question did not clearly favor either

retroactivity or prospectivity.” Desist v. United States,

supra.

1. Purpose: The purposes of the Almeida-Sanchez,

supra, decision were to reaffirm prior case law relating

to automobile searches, to enforce the Fourth Amend-

ment, to protect the fundamental right of privacy by

deterring illegal police action, and to protect the

integrity of the judicial system. As Almeida-Sanchez has

an exclusionary purpose, it is contended by the

Government that it should have only prospective

application. Since the decision in Linkletter v. Walker,

supra, which gave partial retroactivity to the exclusion-

ary rule of Mapp v. Ohio, supra, by applying it to all

cases not final on the date of the Mapp decision, this

Court has not given retroactive application to three

Fourth Amendment decisions.

The decision in Almeida-Sanchez is quite unlike the

decisions in the other Fourth Amendment exclusionary

cases, and the purpose of the A/meida-Sanchez rule will

indeed be advanced by retroactive application. Almeida

-Sanchez applied well established Fourth Amendment

law to protect the right of privacy by excluding from

evidence materials seized without a warrant and without

probable cause. Almeida-Sanchez announced no new

rule of law, but was simply the application of the

principles of Weeks v. United States, supra; Carroll v.

22

United States, supra; and Camara vy. Municipal Court,

supra, to a Government practice in contravention of

these principles. Consequently, while Almeida-Sanchez

is a Fourth Amendment case and applies the exclusion-

ary rule, it is unlike other Fourth Amendment decisions

in recent years since it did not amplify the evidentiary

exclusionary rule, but affirmed existing standards that

the Government had attempted to avoid. It is apparent

that any decision with the purpose of reaffirming

existing constitutional doctrine must receive retroactive

application in order to advance the purposes of that

decision.

Further, part of the purpose of the exclusionary rule

has been ignored in previous decisions of this Court

concerning retroactivity. Specifically, the Court talks to

the aspect of the exclusionary rule of deterring illegal

police conduct but it does not speak to the other

purpose of the exclusionary rule which is the

maintenance of the integrity of the judicial system. This

purpose was established in Weeks vy. United States,

supra, where the Court stated:

“The effect of the Fourth Amendment is to put

the Courts of the United States and federal

Officials, in the exercise of their power and

authority, under limitations and restraints as to the

exercise of such power and authority, and to

forever secure the people, their persons, houses,

papers, and effects, against all unreasonable

Searches and seizures under the guise of law ...

The tendency of those who execute the criminal

laws of the country to obtain conviction by means

of unlawful seizures and enforced confessions, the

latter often obtained after subjecting accused

persons to unwarranted practices destructive of

rights secured by the federal Constitution, should

23

find no sanction in the judgments of the courts

which are charged af all times with the support of

the Constitution, and to which people of all

conditions have a right to appeal for the

maintenance of such fundamental rights.” 34 S.Ct.

at 344. (Emphasis added)

See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961).

2. Reliance: The Government can point to no

Supreme Court decision or statute authorizing such

governmental practices as occured in the instant case.

On the contrary, the applicable Supreme Court

decisions and statutes, as the Court held in Almeida-

Sanchez, provided no support for the legality of such

searches. In this respect, the Government is in the same

position as the petitioner in Desist v. United States,

supra, whose case arose prior to the decision in Katz v.

United States, supra. There petitioner argued that

Supreme Court decisions leading to Katz had so

undermined prior cases distinguishing between tres-

passory searches and those without physical penetration

of premises, that that doctrine could no longer be

considered controlling. Consequently, the petitioner

contended that the decision in Olmstead yv. United

States, supra, not overruled until Katz, should not have

been applied to electronic surveillance conducted before

the date of that decision. The Court rejected this

argument completely. Similarly, in this case, any

Government argument that has relied on developing

constitutional law to support Almeida-Sanchez-type

searches should likewise be rejected. Surely,. if a

defendant caxnot rely upon case law evolution

ultimately leading to a new decision to permit

application of the new law to his case, the Government

may not rely upon it to bolster its authority to engage

24

in searches and seizures ultimately declared illegal by

the Supreme Court.’

Respondent further justifies deniai of relief to Bowen

on the premise that law enforcement relied upon the

constitutionality of Title 8, C.F.R. §287.1(1)(2). This

Honorable Court has never authoritatively construed

this regulation to be constitutionally valid and no

elected legislative body has passed such legislation.

Therefore, the Justice Department’s reliance upon its

own administrative regulation is misplaced.

In any event, reliance on this regulation was

unwarranted because of the fundamental principle of

constitutional law that the Constitution cannot be

amended by mere legislation or administrative regula-

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

2060 (1970); Marbury v. Madison, 1 Cranch 137

(1803).

3. Effect: There is also the factor of the effect of

the holding of retroactivity upon the administration of

justice. Since we deal only with the issue at hand, that

is, the retroactive application of Almeida-Sanchez to the

case pending on appeal at the time of the Almeida-

Sanchez decision, it can affirmatively be said that there

will be little effect on the administration of justice.

Cases not yet finalized may ultimately have to be

reheard for many reasons, and this is fully accepted as a

”In other words, the Government contention that Title 8,

U.S.C. §1357 and Title 8 C.F.R. §287.1(a(2) as well as the

more recent decisions of the Ninth Circuit evolved and displaced

the probable cause requirement of Weeks, Carroll and Camara (so

that the latter no longer controlled immigration car searches)

simply do not hold water as Almeida-Sanchez made clear. Having

been made clear, the Government is in no better position than

the petitioner in Desist to argue reliance on such a rationale as a

basis for prospective only relief.

25

part of our system of justice. Until such cases are final

and the legal system’s values respecting finality come

into a play, cf., Mackey v. United States, 401 U.S. 667,

675, 91 S.Ct. 1160, 1171 (Harlan, J., concurring and

dissenting) (1971), there is no deleterious effect upon

the administration of justice of a retroactive application

of a decision of the Supreme Court.

4. Policy: There are strong policy reasons why the

supervisory powers of this Court should be invoked to

apply Almeida-Sanchez, supra, and Bowen vy. Untied

States, 500 F.2d 960 (9th Cir. 1974), to John Lee

Bowen whose case is currently before this Court on

direct appeal. Many of these cases arrived on stipulated

fact trial records in which defendants forfeited obvious

plea bargaining advantages derived from guilty pleas in

return for possible reversals after trial under Almeida-

Sanchez. See Santobello v. New York, 404 U.S. 257, 92

S.Ct. 495 (1971). By the practice of holding appeals in

abeyance pending the Supreme Court decision in

Almeida-Sanchez, the lower Courts affirmatively encour-

aged this practice. Now that Almeida-Sanchez has been

decided in the accused’s favor, for this Court to exclude

the pending appeals on direct review from the benefits

of the decision will cruelly dash the reasonable

expectations of litigants who surrendered plea bargains

in reliance upon the application of Almeida-Sanchez to

their cases.'°

Petitioner is of the opinion that the “three-pronged

retroactivity test” is fundamentally unfair when applied to cases

which are on direct review at the time of the Supreme Court's

decision. For this reason, John Lee Bowen would urge this C yor

to reconsider this test enunciated in Stovall v. Denno, supra. -

to adopt the position expressed by Mr. Justice a s

concurring and dissenting opinion in United States v. | a

and Mackey v. United States, 401 U.S. 675,91 S.Ct. 1171 ( ).

26

If no Supreme Court decision relating to the

exclusionary rule is to be given any retroactive effect,

the Government may, with impunity, conduct illegal

searches under the aura of promulgated search regula-

tions or past patterns of conduct. It could then argue

reliance on its own illegal regulations or practices to

sustain a prospective only application of the Supreme

Court decision invalidating its practice. Prospective

application in such a case will take away the incentive

the Government may have to act with greater caution

and consideration in the drafting of regulations

approaching the outer limits of the Fourth Amend-

ment.'!

"If Respondent’s argument is adopted, the lower federal

courts can disregard established constitutional principles when

new factual situations develop and incarcerate accused citizens

upon this departure from precedent. The accused will then have

no means of release from this aberration of established authority

unless his particular case is reviewed by the United States

Supreme Court and reversed or, unless he is not prosecuted until

the United States Supreme Court rules on that particular

problem. This simply cannot be the law.

27

CONCLUSION

For the aforementioned reasons, John Lee Bowen

should be given the benefits of the decision in

Almeida-Sanchez v. United States, supra, and of Part I

of the decision in United States v. Bowen, 500 F.2d

960 (9th Cir. 1974). The application of these decisions

to Mr. Bowen will require the exclusion of the seized

marijuana and pills from evidence and it will necessitate

a remand to the United States District Court for the

Southern District of California to determine whether

there is enough admissible evidence to proceed to trial

against Mr. Bowen.

DATED: November 26, 1974

Respectfully submitted,

MICHAEL D. NASATIR, of

Nasatir, Sherman & Hirsch

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 653-3303

JERALD W. NEWTON, of

Newton, Re & Russell

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 655-5011

Attorneys for Petitioner

la

APPENDIX

THE JUDICIARY 3§1

ARTICLE III.-THE JUDICIARY

Section 1. The judicial Power of the United States,

shall be vested in one supreme Court, and in such

inferior Courts as the Congress may from time to time

ordain and establish. The Judges, both of the supreme

and inferior Courts, shall hold their Offices during good

Behaviour, and shall, at stated Times. receive for their

Services, a Compensation, which shall not be diminished

during their Continuance in Office.

Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitu-

tion, the Laws of the United States, and Treaties made,

or which shall be made, under their Authority;—to all

Cases affecting Ambassadors, other public Ministers and

Consuls;—to all Cases of admiralty and maritime

Jurisdiction;—to Controversies to which the United

States shall be a Party;—to Controversies between two

or more States;—-between a State and Citizens of

another State;—between Citizens of different States,—

between Citizens of the same State Claiming Lands

under Grants of different States, and between a State,

or the Citizens thereof, and foreign States, Citizens or

Subjects.

In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State shall

be Party, the supreme Court shall have Original

Jursidiction. In all the other Cases before mentioned,

the supreme Court shall have appellate Jurisdiction,

+ aan

2a

both as to Law and Fact, with such Exceptions, and

under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of

impeachment, shall be by Jury; and such Trial shall be

held in the State where the said Crimes shall have been

committed; but when not committed within any State,

the Trial shall be at such Place or Places as the Congress

may by Law have directed.

Section 3. Treason against the United States, shall

consist only in levying War against them, or in adhering

to their Enemies, giving them Aid and Comfort. No

Person shall be convicted of Treason unless on the

Testimony of two Witnesses to the same overt Act, or

on Confession in open Court.

The Congress shall have Power to declare the

Punishment of Treason, but no Attainder of Treason

shall work Corruption of Blood, or Forfeiture except

during the Life of the Person attainted.

AMENDMENT IV-— SEARCHES AND SEIZURES

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, sup-

ported by Oath or affirmation, and _ particularly

describing the place to be searched, and the persons or

things to be seized.

EE

3a

AMENDMENT V—CAPITAL CRIMES; DOUBLE

JEOPARDY; SELF-INCRIMINATION; DUE

PROCESS; JUST COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for

public use, without just compensation.

§ 1357. Powers of immigration officers and employees—

Powers without warrant

(a) Any officer or employee of the Service author-

ized under regulations 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 admission, 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

4a

any such law or regulation and is likely to escape

before a warrant can be obtained for his arrest, but

the alien arrested shall be taken without 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 railway 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

(4) to make arrests for felonies which have been

committed and which are cognizable under any law

of the United States regulating the admission,

exclusion, or expulsion of aliens, if he has reason to

believe that the person so arrested is guilty of such

felony and if there is likelihood of the person

escaping before 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 commit 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, oF

expulsion of aliens.

Sa

Administration of oath; taking of evidence

(b) Any officer or employee of the Service desig-

nated by the Attorney General, whether individually or

as one of a class, shall have power and authority to

administer oaths and to take and consider evidence

concerning the privilege of any person to enter, reenter,

pass through, or reside in the United States, or

concerning any matter which is neterial or relevant to

the enforcement of this chapter and the administration

of the Service; and any person to whom such oath has

been administered, under the provisions of this chapter,

who shall knowingly or willfully give false evidence or

swear to any false statement concerning any matter

referred to in this subsection shall be guilty of perjury

and shall be punished as provided by section 1621 of

Title 18.

Search without warrant

(c) Any officer or employee of the Service author-

ized and designated under regulations prescribed by the

Attorney General, whether individually or as one of a

class, shall have power to conduct a search, without

warrant, of the person, and of the personal effects in

the possession of any person seeking admission to the

United States, concerning whom such officer or

employee may have reasonable cause to suspect that

grounds exist for exclusion from the United States

under this chapter which would be disclosed by such

search. June 27, 1952, c. 477, Title II, ch. 9, §287,66

Stat. 233.

6a

Title 8, C.F.R. §287.1(a)(2)

(2) Reasonable distance. The term ‘reasonable

distance,’ as used in section 287(aX(3) of the Act,

means within 100 air miles from any external boundary

of the United States 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.”