Petition for Writ of Certiorari — Foerster v. United States

Supreme Court brief1975

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Subject Index

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SIO nibb bk tore oR ee aes SOR ENS Lan ss uae cha bge 2

SNE MINE ot ekadins Gand hacnghedi-oanabesiek Shun 2

Statutory provisions involved .............cceeeeeeeeeeeee 3

Constitutional provision involved ...............eeeeeeeees 5

IN Wt I i ilo ocd od ig eda sig Kk Aad oe oO 5

Reasons for granting the writ .............cccceeccceceece 10

This court must grant review in order to resolve the

sharp conflict among the Fifth, Ninth and Tenth

Cireuits as to whether Almeida-Sanchez v. U.S., 413

U.S. 266, is to be applied retroactively .............. 10

Review should be granted to declare that Almeida-

‘Sanchez is to be applied retroactively to at least those

GORGE TUE FOG TNE Gia okay 65845 Cine cehses op cansce ck 12

Review should be granted to resolve serious inconsist-

encies within the Ninth Circuit regarding the basis

and application of this court’s retroactivity doctrine;

this court should determine whether statutes and de-

cisions of inferior courts constitute “clear precedent”

for retroactivity purposes, and if they do, should

fashion rules for situations where existing inferior

court decisions are in conflict or issues have been

decided in some jurisdictions but not in others ...... 14

Review should be granted to determine the Fourth

Amendment standards to be applied to stops, interroga-

tions, and searches at fixed vehicular immigration

checkpoints located well away from the border on

major highways between large urban population

TEST TES CELT RPMS ETP Tey Pore eee Pee Ty 17

COE. ov cé Fe dededanene eda ce EeNKee eres VER ERTL tee 20

————— oF )

FA Table of Authorities Cited

: Cases Pages

i Almeida-Sanchez v. U.S., 413 U.S\ 266 ..........eeeeeeee

SS Seesewesnesnsnsebtasees 2, 5, 6, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19

4 Chambers v. Maroney, 399 U.S. 42 (1970) .....-....0000e- 13

i Coolidge v. New Hampshire, 403 U.S, 443 (1971) .......- 13

4 Desist v. U.S., 394 U.S. 244 (1969) .......cccccecccsveees 13

: Johnson v. New Jersey, 384 U.S. 719 (1966) ..........+: 13

j Linkletter v. Walker, 381 U.S. 618 (1965) ............065 13

} Mapp v. Ohio, 367 U.S. 643 (1961) ........--e cece eeeeee i3

Terry v, Ohio, 392 U.S. 1 (1968) .........seeeeeeeeeeees 19

4 United States v. Bowen, ..... F.2d ....., No. 72-1012 (5-9-74)

De re Le aa an ear eae be acai named bens 6, 11, 14, 15, 16, 17

; United States v. Bowman, 487 F.2d 1229 (10th Cir. 1973) 19

United States v. Foerster, 455 F.2d 981 (1972) .......... 5

United States v. Gordon, No. 73-1524 (5-9-74) ........... 6

ji United States v. Johason, 425 F.2d 630 (1970), cert. grtd.

4 400 U.S. 990, dismissed 404 U.S. 802 ..............005- 20

; United States v. King, 485 F.2d 353 (1973) .......-...6. 11

Z United States v. Maddox, 485 F.2d 361 (1973) ........... 11

j United States v. Miller, 492 F.2d 37 (1974) ............. 11

United States v. Peltier, . F.2d —.. No. 73-2509 (5-9-74)

Dane a seen eee Ete so eee een ceserssccncesseseens 6, 11, 12, 15, 16, 17

4 United States v. Speed, 489 F.2d 478 (1973) .......++.++: 11

me Constitutions

F United States Constitution, Amendment IV .............. 5

Regulations

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Rules

Federal Rules of Criminiil Procedure, Rule 41(a) ......... 5

Supreme Court Rule 60(2) .......... ee eec eee eeeeeeeeee 20

Statutes .

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In the Supreme Cowt

OF THE

United Staten

OctToBER TERM, 1973

No.

GILBERT Bryant FoErsteEr, Petitioner

vs.

Untrep States or AMErIcA, Respondent

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

‘ ‘The Petitioner, Gilbert Bryant Foerster, respect-

fully prays that a Writ of Certiorari issue to review

the Order of the United States Court of Appeals for

the Ninth Circuit, entered in this proceeding on May

15, 1974, affirming Petitioner’s judgment of conviction.

- OPINION BELOW

The Court of Appeals did not render an opinion

herein, but affirmed Petitioner’s conviction by an

Order, which is set forth in Appendix A.

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JURISDICTION

The Order of the panel of the Court.of Appeals,

which constituted a final judgment, was entered on

May 15, 1974. This petition was filed within thirty

days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

(1) Does the Fourth Amendment permit Immigra-

tion officers to search a private vehicle at a fixed ve-

hicular immigration checkpoint located seventy miles

north of the Mexican border on a major interstate high-

way running between two large metropolitan United

States cities, when the officers possess neither probable

cause nor articulable facts supporting a real suspicion

that the occupants or the vehicle have crossed the bor-

der or that aliens are concealed within the vehicle?

(2) Should Almeida-Sanchez v. U.S., 413 U.S. 266,

be applied retroactively to searches by. immigration

officials on roving patrol but not to searches by immi-

gration officials at fixed checkpoints ?

(3) For purposes of applying this Court’s retro-

activity doctrine, did Almeida-Sanchez v. U.S. make a

“new” rule, or did it reaffirm long standing fundamen-

tal Fourth Amendment principles?

(4) For purposes of applying this Court’s retro-

activity doctrine, are lower federal court and state

court decisions “clear precedent” the overruling of

which creates a “new” rule, and, if so, how is it to be

Spe Beem ARNO ER Ee eee

determined what constitutes a “new” rule when exist-

ing lower court cases are in conflict or an issue has

been decided in some jurisdictions but not in others?

(5) For purposes of applying this Court’s retro-

activity doctrine, are existing statutes “clear prece-

dent”, the construction of which creates a “new” rule?

STATUTORY PROVISIONS INVOLVED

8 U.S.C, §1357 provides, in pertinent part:

(a) Any officer or employee of the. Service

authorized under regulations prescribed by the

Attorney General shall have power without war-

rant...

(3) Within a reasonable distance from any

external boundar’’ of the United States, to board

and search for aiiens any vessel within the terri-

torial 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; ...

8 C.F.R. §287.1 provides, in pertinent part:

(a) (1) Ezaternal Boundary. The term “ex-

ternal boundary” as used in Section 287 (a) (3)

of the Act, means the land boundaries and the

coast line of the United States, including the

ports, harbors, bays and other enclosed arms o.

the sea along the coast, and a marginal belt of

the sea extending three geographic miles from

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the outer limits of the land that encloses an arm

of the sea.

(2) Reasonable Distance. The term “reason-

able distance”, as used in section 287 (a) (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 dis-

trict director, or, so far as the power to board

and search aircraft is concerned, any distance

fixed pursuant to paragraph (b) of this section.

(b) Reasonable Distance; Fixing by District

Directors, In fixing distances not exceeding 100

air miles pursuant to paragraph (a) of this

section, district directors shall take into consider-

ation topography, confluence of arteries of trans-

portation leading from external boundaries,

density of population, possible inconvenience to the

traveling public, types of conveyances used, and

reliable information as to movements of persons

effecting illegal entry into the United States:

Provided, That whenever in the opinion of a dis-

trict director a distance in his district of more

than 100 air miles from any external boundary of

the United States would because of unusual cir-

cumstances be reasonable, such district director

shall forward a complete report with respect to

the matter to the Commissioner, who may, if he

determines that such action is justified, declare

such distance to be reasonable.

CS MSELI RIEL SELL TET TOE AGG, We PL AIOE

CONSTITUTIONAL PROVISION INVOLVED

Constitution of the United States, Amendment IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation.

and particularly describing the place to be

searched, and the persons or thing to be seized.

STATEMENT OF THE CASE

Petitioner, Gilbert Bryant Foerster, was convicted

in the United States District Court for the Southern

District of California of two counts of violation of

Title 21, United States Code, Section 176a, know-

ingly receiving and transporting smuggled marijuana

and conspiring to do the same. He received a sentence

of seven years imprisonment.

Prior to trial, Petitioner moved, pursuant to Fed-

eral Rules of Criminal Procedure, Rule 41(a), to sup-

press for use as evidence 715 pounds of marijuana

seized from him on the ground that the property was

illegally seized without warrant. After an evidentiary

hearing, the motion to suppress was denied.

Petitioner appealed his judgment of conviction to

the United States Court of Appeals for the Ninth

Circuit, which affirmed the conviction, U.S. v. Foer-

. ster, 455 F.2d 981 (1972).

| Petitioner then petitioned this Court for Certiorari.

His petition was held pending decision in Almcida-

Sanchez v. United States, 413 U.S. 266 (1973). There-

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after, his petition was granted, 413 U.S. 915 (1973),

the judgment of the Ninth Circuit was vacated, and

the case was remanded for further consideration in

light. of Almeida-Sanchez.

Upon return to the Ninth Circuit, the matter was

rebriefed and submitted. Decision was then postponed

pending hearing and decision ex dane of three cases

‘aising issues legally but not factually despositive of

Petitioner’s case,’ U.S. v. Bowen, ... F.2d ....... , No.

72-1012 (5-9-74); United States v. Peltier, ... F.2d

neal , No. 73-2509 (5-9-74); and United States v. Gor-

don, No. 73-1524 (5-9-74). Thereafter, Petitioner’s

conviction was affirmed by an Order, which merely

cited the new Ninth Circuit Bowen decision.

As the affirmance of Petitioner’s conviction is prem-

ised upon the Ninth Circuit’s decision in U.S. v.

Bowen, supra, that decision is set forth in Appendix

Bb. And as consideration of some of the issues raised

by this petition requires examination of the opinion

of the other case involving the same issues decided

simultaneously by the Ninth Circuit, U.S. v. Peltier,

aay eee (5-9-74), is set ferth in Appendix C.

The facts relevant to the checkpoint where Peti-

tioner was searched are as follows:

The United States government operates a vehicular

immigration checkpoint at San Onofre, California.

1Petitioner is unable to explain why his case was not included as

one to be heard en banc.

2In Gordon, the conviction was affirmed without opinion by an

evenly divided court.

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The checkpoint is on Interstate Highway 5, an eight-

lane Interstate freeway in Southern California run-

ning between San Diego and Los Angeles (T.M.S. 5,

10, 13, 16). The checkpoint is located 54 miles north

of the City of San Diego and 70 miles north of the

Mexican border. Interstate Highway 5 is a heavily

traveled Interstate route, and when all four north-

bound lanes are in use between 2,700 and 3,600 vehi-

cles pass through the checkpoint per hour (13).*

Interstate Highway 5 is the main vehicular route

between Los Angeles and San Diego.’ The Highway

8All numerical references are to page numbers in the transcript

of the motion to suppress.

4According to the California Division of Highways, the rate of

vehicular traffic through the Camp Pendleton interchange, the fed-

eral military area where the San Onofre checkpoint is located, was

54,000 vehicles per day in 1973; it was 43,000 per day in 1970, the

year of Petitioner’s arrest.

Traffic figures are for both northbound and southbound traffic.

The Division of Highways has counted traffic in both directions;

the figures are on the average very close for each direction. See

1970 and 1973 Traffic Volumes on California State Highways, pub-

lished by the State of California Division of Highways.

This means that in 1973 over 9,855,000 vehicles went through

the checkpoint and in 1970 over 7,800,000 went through the check-

point.

5The Court may wish to notice that Los Angeles City is the lar-

gest city in California with a population over 2,800,000. It is the

third largest city in the United States. The metropolitan area pop-

ulation is approximately 7 million, and is the second largest metro-

politan area in the United States. Los Angeles is a major business

and cultural center for the West and especially for California.

San Diego is one of the four iargest cities in California, and is

also a major business and tourist center for the southern part of

the state. Located within San Diego and environs are Sea World,

Wild Animal Park, many beaches, San Diego Zoo, Balboa Park

(1,400 aeres), a bay and boat harbor, four missions, and many

facilities for fishing, golfing, and boating. Between San Diego and

San Onofre are at least ten state beaches and resort towns, inelud-

ing DelMar with its race track and La Jolla with its branch of the

University of California. Among the great many businesses located

in San Diego are major facilities of the United States Navy.

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is also a main north-south highway to Northern Cali-

fornia and Oregon.

Estimates by the witnesses of the number of vehi-

cles searched at the San Onofre checkpoint varied.

Agent Gaines testified that approximately 60 vehicles

per 15-minute period or 5,760 vehicles per day are

searched (16). According to prosecution witness

Agent Mitchell, approximately 500 vehicles per eight-

hour period are searched.®

The operations at the checkpoint result in the ap-

prehension of about 700 aliens per month, but 75%

of these 700 are found through conversations with

vehicle occupants and only 25% are found as the

result of searches. (52-53) Further, the government

introduced no evidence indicating how many of the

searches which produced aliens were based on probable

cause or a “founded suspicion” rather than policy or

hunch.

The criteria for deciding to search some vehicles

but not others was, according to the testimony of

Agent Gaines, as follows:

Well, our formal policy, of course, being close

to the international boundary, our past apprehen-

sion reports show about 90% of our apprehen-

sions come from Mexican-Americans or Mexican

aliens. We pull these people predominantly over.

We pull U-haul trucks. We cannot see inside—

almost any vehicle that comes through that we

cannot observe on the inside as a matter of pol-

icy, automatically pull those over.

6Extrapolation of these figures indicates that between one-half

million and two million vehicles were searched on an annual basis.

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Vehicles that have the back end unusually low

to the ground, indicating an unnecessary or un-

usual amount of weight in the trunk are often

times suspect. Then it is a kind of undefinable

thing except based on experience. You have been

in the business a long time and some people look

a little bit different to you, and they are worth

a check, or they may not be, but they may be.

So I say it is based a lot on experience and a

great deal on what we are looking for. (16-17)

(emphasis added)

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The facts relative to the search are as follows:

On May 1, 1970 Petitioner Foerster was driving a

Ford pick-up truck with a camper sheil north on

Highway 5, between San Diego and Los Angeles.

Upon arriving at the check point, the truck was

stopped by Agent Thomas F. Gaines. Agent Gaines

attempted to look into the back of the shell of the

camper, but was unable to see inside. He then ordered

Foerster to drive the vehicle into the “secondary

area”. (7) All vehicles that are pulled into the “see-

ondary area” are searched, (18)

After the truck arrived in the “secondary area”,

Agent H. R. Mitchell questioned Petitioner and his

passenger and determined that they were citizens of

the United States. (38) He then asked Foerster to get

out of the vehicle and open the camper shell. (38)

Foerster immediately complied with this request. (38)

The view in the back of the camper disclosed what

appeared to be miscellaneous camping gear, and a cab-

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inet-type compartment. (76) Agent Mitchell testified

that this cabinet arrangement in the camper was not

unusual, (48)

Foerster was directed to open the cabinet, but stated

that ne did not have a key. (40) Agent Mitchell then

directed the vehicle to another area of the checkpoint

area for further search. (40)

When the vehicle arrived at this area, Agent Robert

M. Moscharak boarded the rear of the camper, lifted

the lid of the cabinet (60) and discovered the mari-

juana in question, wrapped in brown paper, covered

with a plastic-type wrapper. (60-62) Foerster was

then placed under arrest by Agent Mitchell. (71)

It is clear that Petitioner’s vehicle was searched

solely because Immigration officials could not see in

the back. (7, 33) The record reflects that (1) there

was nothing unusual about the vehicle at the time it

was pulled over; (2) there was no reason to believe

either the vehicle or any of its occupants were ever

outside the continental U.S.; and, (3) there was no

reason to believe that the vehicle contained aliens or

contraband. (22, 33)

REASONS FOR GRANTING THE WRIT

THIS COURT MUST GRANT REVIEW IN ORDER TO RESOLVE

THE SHARP CONFLICT AMONG THE FIFTH, NINTH AND

TENTH CIRCUITS AS TO WHETHER ALMEIDA-SANCHEZ

v. U.S., 413 U.S. 266, IS TO BE APPLIED RETROACTIVELY.

The Ninth Circuit has held en bane that Almeida-

Sanchez v. U.S., 413 U.S. 266 (1973) is to be applied

SENET Stor eS eS ae a a a ak ee ee

—

retroactively to immigration searches by roving pa-

trols, U.S. v. Peltier, ....... F.2d ...... (5-9-74), Appendix

C, infra. The Ninth Circuit has simultaneously held

en banc that Almeida-Sanchez is not to be applied

retroactively to immigration searches at fixed check-

points, U.S. v. Bowen, ........ ) ge. Sameee (5-9-74), Appen-

dix B, tnfra.

The Fifth Cireuit recently held en bine that Al-

meida-Sanchez is not to be applied retroactively to

roving patrol searches, U.S. v. Miller, 492 F.2d 37

(1974), but has applied Almeida-Sanchez retroactively

to a fixed checkpoint search, U.S. v. Speed, 489 F.2d

478 (1973).

The Tenth Circuit has applied Almeida-Sanchez

retroactively, to searches occurring at fixed check-

points, over dissent arguing non-retroactivity, U.S. v.

Maddoz, 485 F.2d 361 (1973); U.S. v. King, 485 F.2d

353 (1973).

The central issue dividing the circuits and presented

by this case, is whether Almeida-Sanchez established

a ‘‘new” rule to be applied prospectively, or whether

this Court merely construed the relevant statutory

provisions in light of long standing constitutional

principles, in which case no question of retroactivity

arises. Only this Court can resolve the issue and the

conflict; certiorari must therefore be granted.

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REVIEW SHOULD BE GRANTED TO DECLARE THAT ALMEIDA-

SANCHEZ IS TO BE APPLIED RETROACTIVELY TO AT

LEAST THOSE CASES NOT YET FINAL.

It is undisputed that Almetda-Sanchez v. U.S., 413

U.S. 466, did not overrule any prior case of this Court,

nor did it disapprove any long standing Supreme

Court doctrine:

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

search of petitioner’s ear was constitutional un-

der any previous decision of this Court involving

the search of an automobile. Id.

- neither this Court’s automobile search de-

cisions nor its administrative inspection. decisions

provide any support for the constitutionality of

the stop and search in the present case... . Id.

. none of our Fourth Amendment decisions

supports the search conducted in this case... .

Id. (J. Powell, concurring)

Almeidu-Sanchez did not declare the relevant

statute. & U.S.C. §1357, unconstitutional; rather it

construed the statute to require probable cause for

immigration searches at locations which are not the

functional equivalent of a border. As pointed out by

the majority in U.S. v. Peltier, ....... i - eae (5-9-

74), Appendix C, infra, Almeida-Sanchez did not

overrule or enlarge previously applicable constitu-

tional norms. Instead it applied

principles enunciated by Chief Justice Taft in

1925 in Carroll [v. U.S., 267 U.S. 132 (1925)]

and consistently adhered to by the Supreme Court

thereafter. U.S. v. Peltier, ........ F.2d ......., Appen-

dix C at p. 64.

A reading of any previous decision regarding ve-

hicle searches must have put one on notice that the

Attorney-General’s remarkable arrogation of authority

in 8 C.F.R. §287.1, and the behavior of searching

immigration officers pursuant thereto, was subject to

serious question.” All of the prior vehicle search cases

before this Court have required probable cause as a

prerequisite minimum requirement for a search. See

Chambers v. Maroney, 399 U.S. 42 (1970).

Thus, Almetda-Sanchez should be applied retroac-

tively.

At a minimum, it must be applied to cases, like this

one, which are not yet final, for here, as in Linklet-

ter v. Walker, 381 U.S. 618 (1965), we deal with a

case where, to paraphrase this Court in Johnson v.

New Jersey, 384 U.S. 719 (1966) and Desist v. U.S.,

394 U.S. 244 (1969) :

. . . the situation before [Almeida-Sanchez .. .

was] that the . . . [government] at least knew

that [it was] constitutionally forbidden from en-

gaging in unreasonable searches and seizures ,. .

Id., 394 U.S. 244 at 253.

In fact, Petitioner’s case is much stronger than

that in Linkletter, for Almetda-Sanchez, unlike Mapp

v. Ohio, 367 U.S. 643 (1961), did not make a clear

7Thus, for example:

The stopping of a vehicle on the open highway and a subse-

quent search amount to a major interference in the lives of the

occupants. Coolidge v. New Hampshire, 403 U.S. 443 (1971).

In enforeing the Fourth Amendment’s prohibition against un-

reasonable searches and seizures, the Court has insisted upon

probable cause as a minimum requirement for a reasonable

search permitted by the Constitution. Chambers v. Maroney,

399 U.S. 42 (1970).

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break with the past, and a major justification for

purely prespective application is therefore lacking. It

is clear that when Justice Stewart stated for this Court

in Almeida-Sanchez that ‘‘Chief Justice Taft’s opin-

ion [in Carroll] clearly controls the case at bar”, he

was dealing not with the application of a ‘“‘new”

rule but with the continuing vitality of the funda-

mentals set forth in Carroll,

This Court should therefore grant review to apply

Almedia-Sanchez retroactively to Petitioner’s case.

IIT

REVIEW SHOULD BE GRANTED TO RESOLVE SERIOUS INCON-

SISTENCIES WITHIN THE NINTH CIRCUIT REGARDING

THE BASIS AND APPLICATION OF THIS COURT'S RETRO-

ACTIVITY DOCTRINE; THIS COURT SHOULD DETERMINE

WHETHER STATUTES AND DECISIONS OF INFERIOR

COURTS CONSTITUTE “CLEAR PRECEDENT” FOR RETRO-

ACTIVITY PURPOSES, AND IF THEY DO, SHOULD FASHION

RULES FOR SITUATIONS WHERE EXISTING INFERIOR

COURT DECISIONS ARE IN CONFLICT OR ISSUES HAVE

BEEN DECIDED IN SOME JURISDICTIONS BUT NOT IN

OTHERS. \

In U.S. v. Bowen, ........ F.2d... , Appendix \B,

infra, the Ninth Circuit held, inter alia, that Almeida-

Sanchez was not to be applied retroactively to

searches conducted at fixed immigration checkpoints

because Almeida-Sanchez declared a “new” fixed

checkpoint rule. In so doing, the Ninth Cireuit indi-

cated that a Supreme Court decision is “new” if it

overrules or departs significantly from previous deci-

sions of lower federal Courts. The Court also held

that statutes constitute “clear past precedent”, 2

that a limiting construction placed by the Supreme

Court on a statute would therefore constitute the over-

ruling of clear past precedent, thus making the con-

struction a “new” rule.

Such holdings may warrant a grant of certiorari

standing alone. More significantly however, the Ninth

Cireuit in U.S. v. Peltier, ........ F.2d ........... Appendix

C, infra, in support of its decision that Almeida-

Sanchez is to be retroactively applied to searches by

roving patrols, indicated that neither the overruling

of state or circuit court decisions by a Supreme Court

case nor the construction of a statute by the Supreme

Court would thereby make the Supreme Court decision

a “new” rule. The conflict is evident.

Both decisions were rendered the same day by the

Ninth Cireuit, sitting en banc. The doctrinal differ-

ences obviously cannot be resolved by further en banc

proceedings or by adopting the most recent statement

of the Court. The only resolution of the conflict can

come from this Court.

The issues are crucial, for the question of retroac-

tivity continually arises in the civil as well as the

criminal context. At this time, no one within the

jurisdiction of the Ninth Circuit can determine the

factors relevant to the application of the retroactivity

doctrine.

Further, if the' views expressed in Bowen prevail,

and if lower court cases are “precedent” for retroac-

tivity purposes, further disturbing questions, clearly

and precisely raised by Judge Hufstedler in her dis-

sent in Bowen, must be confronted:

1. To prevent restrictions on the retroactivity of

its decisions, must the Supreme Court take every case

on a constitutional issue to prevent “old” law from

accumulating ?

2. If one circuit had upheld immigration searches

and another had struck them down, would Almeida- |

Sanchez be retroactive in the latter circuit and non-

retroactive in the former?

3. Can state courts deciding federal constitutional

issues create “old” law from which the Supreme Court

departs when it reaffirms established con:ztitutional

principles ?

4, In the circuits where the issue was never de-

cided, did Almeida-Sanchez state a “new” rule?

5. Is a single decision in one circuit upholding a

search enough to create “old”. jaw with which Al-

meida-Sanchez broke ?

Petitioner’s case, involving a search at a fixed

checkpoint, was affirmed on the basis of Bowen. Yet

Petitioner cannot conceive why he should be treated

differently from Peltier, to whom Almeida-Sanchez

was retroactively applied. Not only are the doctrinal

bases of Bowen unsound, but an analysis of prior

Ninth Circuit cases involving immigration searches

would indicate that, before Almeida-Sanchez, searches

by roving patrols and searches at fixed checkpoints

stood on an equal footing.‘

~ 8Petitioner realizes that this statement is conclusory in nature.

However, there are in excess of twenty immigration search cases in |

the Ninth Circuit, and Petitioner does not feel that an exhaustive

exegesis of all of them is appropriate in a Petition for Certiorari.

| ee eee es ee ee eee

;

Ra eee Bho pees

Review should thus be granted in this case not only

because Petitioner is entitled to the benefits of

Almeida-Sanchez but because his case provides an

appropriate vehicle for the resolution of the retro-

activity issues raised by Bowen and Peltier from the

Ninth Circuit, and the conflicting decisions from the

Fifth and Tenth Circuits.

REVIEW SHOULD BE GRANTED TO DETERMINE THE FOURTH

AMENDMENT STANDARDS TO BE APPLIED TO STOPS, IN-

TERROGATIONS, AND SEARCHES AT FIXED VEHICULAR

IMMIGRATION CHECKPOINTS LOCATED WELL AWAY

FROM THE BORDER ON MAJOR KIGHWAYS BETWEEN

LARGE URBAN POPULATION CENTERS.

The Ninth Circuit, in U.S. v. Bowen, Appendix B,

infra, found that Almeida-Sanchez applied to fixed

checkpoints. That Court then found it necessary to

' determine whether the checkpoint there involved was

the functional equivalent of a border. It is not possible

to finally determine how the Ninth Circuit feels about

the checkpoint at which Petitioner was searched, for

Petitioner’s conviction was affirmed by an order, with-

out discussion. However, applying well established

rules regarding the construction and interpretation

of judgments, it must be assumed that the Ninth Cir-

cuit has held that the San Onofre checkpoint, where

Petitioner was searched, is a functional equivalent

of a border. ©

NT ee ee ee

Given this construction, Petitioner’s case presents

the question of whether fixed checkpoints with char-

acteristics such as those possessed by the San Onofre

‘ ‘checkpoint, where Petitioner was searched, are func-

tional equivalents of a border. Resolution of this ques-

tion is important to the government in its enforce-

ment of the immigration laws and to the many domes-

tic travelers whose Fourth Amendment rights will be

continually affected.

If this Court were to agree that fixed checkpoints

such as San Onofre were functional equivalents of

a border, then the government would be able to con-

tinue to exercise the “extravagant license” which

- Almeida-Sanchez intended to curb, for the San Onofre

checkpoint is not at a location where virtually every-

one searched has crossed the border nor at one where

even a reasonable certainty exists that passing vehi-

cles or their contents have recently crossed an inter-

national. boundary. Rather, the checkpoint, estab-

lished to investigate traffic from Mexico to the south,

is located seventy miles from Mexico on a major high-

_ way between Los Angeles and San Diego. It thus

appears clear that a. significant number of those

searched at the checkpoint are domestic travelers

going from one point to another within the United

States.

Application of the principles of Almeida-Sanchez

_ to fixed checkpoints such as the one here involved

indicates that such checkpoints are not functional

equivalents of a border. Nevertheless, this Court

should grant certiorari to clarify its application of the

;

Almeida-Sanchez principles for the guidance of all

concerned parties. Of perhaps greater importance, if

such checkpoints are not functional equivalents of a

border, this Court must grant review to determine

and set forth the Fourth Amendment standards ap-

plicable to investigative behavior at such fixed check-

points.

This Court unquestionably has tools with which to

fashion rules effecting a proper balance between the

conflicting rights of the government and of its citizens

at fixed vehicular checkpoints. cf. Terry v. Ohio, 392

U. S. 1 (1968). While explication of all the factors

involved must await full briefing, it is possible to

foresee that resolution of the competing interests

might involve a rule permitting stops and orief inter-

rogations without probable cause. As the government

has never shown it cannot work within this rule, and

as most aliens now appear to be detected through

these procedures, such a rule may well provide an

adequate solution. See U. S. v. Bowman 487 F.2d

1229 (10th Cir. 1973).

Further, application of the factors discussed in the

majority opinion of Almeida-isanchez, and of those

listed by Justice Powell as relevant in determining,

on a case by case basis, the validity of an area search

program pursuant to a search warrant, Id., may

indicate that some checkpoints would require probable

cause for searches, but not for stops and brief inter-

rogations. Other checkpoints, possessing a different

balance of the relevant factors, may warrant searches

cached ei |

DO AEA as IIA aiid antes tntia daa i des Je Radtaanind Sei nl edb eo Dt LS ng ee;

based on a founded suspicion, rather than full prob-

able cause. ef. U. S. v. Johnson, 425 F.2d 630 (1970),

cert. grtd. 400 U.S. 990, dismissed under Rule 60(2)

on motion of United States, 404 U.S. 802.

Thus, in addition to the other reasons for granting

certiorari in this case, review should be granted to

determine what investigative procedures are permitted

by the Fourth Amendment at fixed vehicular immi-

gration checkpoints which do not qualify as fune-

tional equivalents of a border.

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests that his Writ of Certiorari be granied.

Dated, Oakland, California, ae

June 7, 1974.

Respectfully submitted,

ARTHUR WELLS, JR.,

Attorney for Petitioner.

(Appendices Follow)

Appendix A

United States Court of Appeals

for the Ninth Circuit

~ United States of America, i

Piaintiff-A ppellee,

= No. 71-2620

Gilbert Bryant Foerster, ORDER

Defendant-A ppellant. :

[May 15, 1974]

Appeal from the United States District Court

for the Southern District of California

Before: MERRILL, BROWNING, and WriGHT,

Circuit Judges

The judgment is affirmed. United States v. Bowen,

eS a (9th Cir. May 9, 1974).

Appendix B

United States Court of Appeals

for the Ninth Circuit

United States of America, 4

Plaintiff-Appellee,

vs.

John Lee Bowen,

Defendant-A ppellant. 4

r No. 72-1012

[May 9, 1974]

Appeal From the United States District Court

For the Southern District of California

Before: CHAMBERS, MERRILL, KoELScCH, BROWNING,

Duntway, Evy, Hursrepter, WricHt, TRASK,

Cuoy, Goopwix, WALLACE and SNEED, Cir-

cuit Judges

Per CURIAM:

This appeal is before the court upon the remand

of the Supreme Court, Bowen v. United States, 4138

U.S. 915 (1973), vacating 462 F.2d 347 (9th Cir.

1972).

Bowen was convicted of smuggling and ‘ransport-

ing marijuana and of possessing depressant and stim-

ulant drugs. The evidence of the violations was dis-

. sees

;

: ——

ae BTCA re mare noe:

| 3

covered during a routine search for illegal aliens of

a camper truck at a permanent border-patrol check-

point on California State Highway 86 approximately

36 air miles and 49 highway miles north of the Mexi-

can border. Highway 86 is a principal route from

Mexicali to Los Angeles by way of Indio and River-

side.

On June 21, 1973, the Supreme Court held in Al-

meida-Sanchez v. United States, 413 U.S. 266 (1973),

rev’g 452 F.2d 459 (9th Cir. 1971), that border-patrol

agents on roving patrol cannot stop and search cars

pursuant to 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1

without probable cause or warrant.

Two separate 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 rul-

ing be applied to fixed-checkpoint searches conducted

by border-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 A/lmeida-

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 21,

1973.

The judgment of conviction is affirmed.

PART I

GoopwIn, Circuit Judge:

According to the Supreme Court in Almeida-San-

chez v. United States, 413 U.S. 266 (1973), the govern-

ment has been conducting three types of alien searches

pursuant to 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1:

(1) searches at “[p]ermanent checkpoints * * * main-

tained at certain nodal intersections”; (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 govern-

ment 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 considered border searches, and thus be carried out

with neither a warrant nor probable cause. See Car-

roll v. United States, 267 U.S. 132, 154 (1925).

The search condemned in Almetda-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 Cali-

fornia State Highway 86, was between the major pop-

ulation centers of the Lmperial Valley and Indio.

The opinion' in Almeida-Sanchez, delivered by Mr.

Justice Stewart, leaves little doubt that traditional

1Mr. Justice Stewart’s opinion is explicitly identified as “the opinion

of the Court.” It was approved by a majority of five justices, including

RE DG EEALLL AS SRN RPE BP LED SAIN RE LES POEL TOL IE IE PBT OBES r

Fourth Amendment standards apply to fixed-check-

point 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 noting that the government

argues that “[i] all these operations * * * the agents

are acting within the Constitution when they stop and

search automobiles without a warrant, without prob-

able 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 Immigration and Nationality

Act, 66 Stat. 233, 8 U.S.C. § 1357(a) * * *.” 413 U.S.

at 268.

Moreover, the government in Almetda-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 government seeks to justify the fixed-check-

point search by reference to the same statute and regu-

lation. But, when the Supreme Court held that this

Mr. Justice Powell, who stated, “* * * I join the opinion of the Court

* * *” 413 U.S. at 275. Mr. Justice Powell has demonstrated elsewhere

that he understands the difference between coneurring in an opinion

and concurring only in its result. Compare Weinberger v. Hynson, West-

cott & Dunning, Inc., 412 U.S. 609, 637 (1973) (“I concur in Part II of

the Court’s opinion® * *. As to Part I * * * I econeur only in the

result * * *.”) with Cleveland Bd. of Educ. v. LaFleur, 42 U.S.L.W.

4186, 4192 (U.S. Jan. 21, 1974) (“I coneur in the Court’s result, but

I am unable to join its opinion.”) and Frontiero v. Richardson, 411

U.S. 677, 691 (1973), (coneurring only in judgment). The language of

Mr. Justice Powell’s concurrence in Almeida-Sanchez strongly suggests

that his coreurrence was not limited to the result. Moreover, his con-

curring 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.

statute and regulation could not exempt searches car-

ried out pursuant to them from traditional Fourth

Amendment scrutiny, see 413 U.S. at 272 the govern-

ment’s statutory justification for fixed-checkpoint

searches as well as for roving-patrol searches van-

~ ished.

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

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

as follows:

. “* * * Tt would be intolerable and unreasonable

if a prohibition agent were authorized to stop

_ every automobile on the chance of finding liquor

and thus subject all persons lawfully using the

highways to the inconvenience and indignity of

such a search. Travellers may be stopped in

_ erossing an international boundary because of

national self-protection reasonably requiring one

~ entering the country to identify himself as en-

titled to come in, and his belongings as effects

which may be lawfully brought in. But those law-

fully within the country, entitled to use the pub-

ke highways, have a right to free passage without

interruption or search unless there is known to a

F competent official authorized to search, probable

; cause for believing that their vehicles are carrying

; contraband or illegal merchandise * * *.” 267 U.S.

at. 153-54.

wads Neancith

It would be strange indeed for the Court to quote this

: language 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 chéckpoints, like searches by roving patrols have

the effect of violating the ‘‘right to free passage with-

a \ out interruption or search” of ‘‘those lawfully within

‘\ the country * * *.” Such searches, therefore, must

_\ meet constitutional standards regardless of their util-

\ ity in carrying forward the difficult mission of the

\ Hester Patrol.

To be sure, Mr. Justice Powell in his concurrence

\and Mr. Justice White in his dissent both correctly

pointed 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 over-

ide clear indications in the opinion of the Court that

any distinction between fixed and movable checkpoints

\, ull be meaningless unless the distinction can be based

ujon reasoned Fourth Amendment considerations.

he government argues that there are, in fact, sig-

nificant constitutional differences between roving

patrols and fixed checkpoints. First, since fixed check-

points 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 condemned in Almecida-Sanchez. See

413 U.S. at 268. Second, being| stopped on a lonely

road \at night in a sparsely populated part of the

country (Almcida-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

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

the validity of arguably “reasonable” fixed-checkpoint

searches, the government cites a number of judicial

decisions upholding roadblocks established for the

Niles << aR ter ee

t i.

SR reso NRE E RELLY YIN PI: OV IERIE IB IS EGY

purpose of checking drivers’ licenses and registrations.

See, e.g., United States v. Croft, 429 F.2d 884, 886

(10th Cir. 1970); People v. Washburn, 265 Cal. App.

2d 665, 71 Cal. Rptr. 577, 581 (2d Dist. 1968) ; State v.

Smolen, 4 Conn. Cir. 385, 232 A.2d 339 (App. Div.),

pet. for certification for appeal 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-check-

point 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 fright-

ening to a seasoned traveler. Being flagged over to

the side of the road by a roving patrol might be

traumatic. Also, an officer on roving patrol probably

has more discretion in deciding which cars to stop than

j one stationed at a fixed checkpoint, although the differ-

ence might be less than the government contends.

: Since not all vehicles passing through a checkpoint are

stopped, and since not all vehicles stopped are

searched, the officer at the’ checkpoint still retains a

good deal of discretion to ‘‘single out” some travelers

for stops or intrusive searches.

2But 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. 1, 6 n. 2, 456 P.2d 67, 69 n. 2 (1969),

in which the Supreme 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, Nonarrest

Automobile Stops: Unconstitutional Seizures of the Person, 25 Stan. L.

Rev. 865 (1973).

‘a

Nonetheless, even conceding that a fixed-checkpoint

search might be less of an imposition on domestic

travelers than a roving-patrol search, we are able to

find nothing in the opinion of the Court in Almeida-

Sanchez which suspends Fourth Amendment standards

in dealing with immigration searches at fixed check-

points.

Moreover, the government’s reliance on judicial de-

cisions upholding automobile stops for the purpose

of checking drivers’ licenses is misplaced. Although

the government 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.g., Lipton v. United States, 348 F.2d 591 (9th Cir.

1965); State v. Ream, 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. Sec, e.g., 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 Almeitda-Sanchez as here, we do not

find these decisions to be an appropriate means for.

_ distinguishing 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,

4 i

;

in which this court upheld a stop by a motorcycle

police officer of a youth driving an automobile, we rea-

soned 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 produce his license. We noted:

“* * * A contrary holding would render unen-

forceable the State statute requiring that auto-

mobile drivers be licensed.” 348 F.2d at 593.

We are not persuaded that laws prohibiting illegal

immigration will be rendered similarly unenforceable

should we deny to the government the power to stop

and’ search automobiles, without probable cause or

warrant, at fixed checkpoints.

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

roving-patrol searches, even though conducted within

a “reasonable distance” from the border, are not nec-

essarily exempt from the traditional Fourth Amend-

ment requirement of a warrant or probable cause.

This holding, however, merely shifts the focus of our

inquiry. The opinion in A/meida-Sanchez does not

require that a border search, 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 obvi-

ously not at the border itself; nor was it at a “fune-

tional equivalent” of the border.

The “function” of a border checkpoint is to regulate

border crossings. Thus, in attempting to clarify what

would constitute a “functional equivalent” of the bor-

der, the Court in Almeida-Sanchez offered two exam-

ples:

“* * * Ror 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, might be functional equivalents of

borders searches. For another example, a search

of the passengers and cargo of an airplane arriv-

ing 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

conducted in Almeida-Sanchez:

«* * * [T]he search of * * * [an] automobile

by a roving patrol, on a California road that lies

at all points at least 20 miles north of the Mexi-

can border, was of a wholly different sort * * *.”

413 US. at 273.’

In other words, if a ‘earch takes place at a location

where virtually everyone searched has just come from

the other side of the border, the search is a functional

equivalent of a border search. In contrast, if a search

takes 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 do-

mestic travel between Buffalo and Rochester, New

8Mr. Justice Powell in his coneurrence 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 275-76.

Biexes

ida iene: Soba tit a BUNGE

as ee eee sania

York, to see why a checkpoint between those two cities

could not be the functional equivalent of a border

checkpoint even though the checkpoint could be less

than twenty miles from an international borde7v,

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. Representa-

tive of the first line of authority is Alexander v.

United States, 362 F.2d 379 (9th Cir.), cert. denied,

385 U.S. 977 (1966). In that case customs officials,

acting upon a tip from an informer, placed the de-

fendant’s automobile under surveillance when it

crossed the border, and kept it under almost con-

tinuous watch as it made suspicious movements

through the streets of a border city. In holding that

a subsequent search by customs officials was properly

called a border search, the court stated:

“Where * * * a search for contraband by Cus-

toms officers is not made at or in the immediate

vicinity of the point of international border cross-

ing, the legality of the search must be tested by

a determination whether the totality of the sur-

rounding circumstances, including the i:me and

distance elapsed as well as the manner and extent

of surveillance, are such as to convince the tact

finder with reasonable certainty that any conteca-

band which might be found in or on the vehicic

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.*

4See also United States v. Mejias, 452 F.2d 1190, 1192-93 (9th Cir.

1971); United States v. Terry, 446 F.2d 579 (9th Cir.), cert. denied,

SAFE Re eS lias

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

treated a search north of the border as the equivalent

of a border search, where it appeared with reasonable

certainty that the vehicle searched contained either

goods which have just been smuggled or a person who

had just crossed the border illegally. See, e.g., United

States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert.

denied, 401 U.S. 947 (1971), in which this court held:

«* * * TT1f customs agents are reasonably cer-

tain that parcels have been (a) smuggled across

the border and (b) placed in a vehicle, whether

the vehicle has itself crossed the border or not,

they may stop and 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 border, we think that

they may stop and search the vehicle and person.

They can assume that he may have brought some-

thing with him.” 432 F.2d at 1823.°

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

Circuit authority, as well as in the two examples of-

fered by the Supreme Court in Almeida-Sanchez,

404 U.S. 946 (1971); Castillo-Garcia v. United States, 424 F.2d 482,

484-485 (9th Cir. 1970); Bloomer v. United States, 409 F.2d 869, 870-71

(9th Cir. 1969); Gonzales-Alonso v. United States, 379 F.2d 347, 379-

50 (9th Cir. 1967); Rodriquez-Gonzales 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 (1965); Murgia v. United States, 285 F.2d 14 (9th

Cir. 1960), cert. denied, 366 U.S. 977 (1961), cert. denied, 376 U.S.

946 (1964).

5See also United States v. Vigil, 448 F.2d 1250 (9th Cir. 1971);

United States v. Markham, 440 F.2d 1119, 1121-23 (9th Cir. 1971).

See 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. & Polities 93 (1972).

although the search was not conducted precisely at the

border, it still was directly related to a recent entry

from across a border. See United States v. Almeida-

Sanchez, 452 F.2d at 463 (dissenting opinion of

Browning, J.), rev’d, 413 U.S. 266 (1973).

It is clear that the search conducted in the present

ease lacks the vital connection between the vehicle

stopped and a reasonable certainty, or even a prob-

ability, that it or its contents had recently crossed

an international border. The checkpoint was approxi-

mately 36 air miles and 49 highway miles north of

the Mexican border. Several significant population

centers and highways, including Interstate 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 check-

point had recently, or ever, crossed the border. More-

over, there was neither the continuing surveillance

from the border nor the dependable intelligence from

other sources required to fit this case into the 4ler-

ander 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 Unitel States v. Petersen, 473 F.2d 874 (9th

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

nl (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 to the district court for a determina-

;

NES GIS a PRON TS ae PLN LISS PEI LIGNE ELE OLE LLC LC LIVI IIL

“5

tion of functional equivalency. Where the record is

as clear as it is here, however, we see no need for a

remand.°

As its last line of defense, the government argues

that fixed-checkpoint searches, even if not the func-

tional equivalent of border searches, should be upheld

simply because they are urgently needed, The govern-

ment’s difficulty in detecting and repatriating illegal

aliens along our southern boundary needs no new

documentation here. The short answer to this argu-

ment, however, is that necessity alone cannot override

the Fourth Amendment’s prohibition against unrea-

sonable searches and seizures. A similar 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 wararnts 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. Rey. 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 lim-

6Cf. United States v. King, 485 F.2d 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

functional equivalent of a border search. Both cases were remanded to

the district court for determination of that issue. However, beyond

directing the distriet court to interpret the phrase as it was used in

Almeida-Sanchez, the opinions offer no guidance in defining the fune-

tional equivalent of a border search.

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ited time at a specific checkpoint. We refer to Mr

Justice Powell’s opinion here merely to suggest to

the government that procedures less offensive to the

Fourth Amendment than judicially unapproved check-

point searches might be devised and implemented to

supplement its program for enforcing immigration

laws.

Our conclusion that Almeida-Sanchez is as applica-

ble 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 (5th Cir. 1973). There, the court

held that a border-patrol search at a temporary check-

point on a north-south highway approximately 65 to

75 miles north of the Mexican border was neither a

border search nor a functional equivalent 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.

Likewise, the Court of Appeals for the Tenth Cir-

cuit has held that a warrantless search, without prob-

able cause of an automobile at the checkpoint at Truth

or Consequences, New Mexico, violates the Fourth

Amendment unless a search at that checkpoint could

be deemed the functional equivalent of a_ border

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

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

(10th Cir. 1973).

We hold here that under the rule announced by the

Supreme Court in Almeida-Sanchez the search of Bow-

PLE ONE AS EPIL ERIE, . 5 Bae

en’s camper truck violated the Fourth Amendment

because the search was not the functional equivalent

of a border search and was authorized neither by

warrant nor by probable cause.

Judges Merrill, Browning, Duniway, Ely, Huf-

stedler and Trask concur in this majority opinion.

(Part I).

[Part I]

Watace, Circuit Judge, Dissenting:

I respectfully dissent to Part I of the opinion per-

taining to the applicability of Almeida-Sanchez to

searches conducted at fixed checkpoints.

With one fell swoop, the majority in Part I hews

down a law enforcement procedure used for 44 years

to curtail the everincreasing tidal wave of illegal

aliens. The use of fixed checkpoints has been neither

secret nor clandenstine. The procedure has come be-

fore our court on numerous occasions’ with no hint

that the practice was constitutionally infirm. For us

to reverse ourselves at this late date requires clear

and convincing reasons. See Smith v. United States,

973 F.2d 462, 465 (10th Cir. 1959), cert. denied, 363

U.S. 846 (1960). I fail to see them in the majority

decision. The only apparent change is the opinion,

or better said opinions, in Alemida-Sanchez v. United

States, 413 U.S: 266 (1973). A careful analysis, there-

fore, is required to see if that case dictates our re-

versal of a long-standing and accepted police practice.

1See cases cited in note 1 of Part II of majority opinion, supra.

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The majority concedes that Almeida-Sanchez is a

case involving stops and searches by roving border

patrol officers. But by some mystic bridging, it holds

that Almeida-Sanchez also requires that we outlaw

searches at fixed checkpoints. The Opinion of the

Court was delivered by Justice Stewart and concurred

in by Justices Douglas, Brennan and Marshall. That

opinion becomes the majority only with the added vote

of Justice Powell. Justice Powell wrote:

While I join the epinion of the Court, which

sufficiently establishes that none of our Fourth

Amendment decisions supports the search con-

ducted in this case, I add this concurring opinion

to elaborate on my views as to the meaning of

the Fourth Amendment in this context.”

413 U.S. at 275 (emphasis added). Justice Powell’s

concurrence, therefore, adds a fifth Justice, and thus

a majority, only to that part of the Justice Stewart

opinion which invalidates the type of search “con-

ducted in [that] case”—a roving patrol search.

This critical distinction is brought into even closer

focus by Justice Powell’s demarcation of the four

areas where searches typically occur:

[The search of Almeida-Sanchez’ automobile] was

not a border search, nor can it fairly be said to

2In footnote 1 of Part I of the majority opinion, it is contended that

Justice Powell’s concurring opinion joins in the entirety of Justice Stew-

art’s opinion. The grammatical structure of the sentence qualifies his state-

ment. The majority quotes him, “... 1 join the opinion of the Court ....”

But he stated, “While I join the opinion of the Court, .. . I add this

coneurring opinion ... .” If he had joined without any qualifications, his

concurring opinion would have been for naught.

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have been a search conducted at the “functional

equivalent” of the border. Nor dues this case in-

volve the constitutional propriety of searches at

permanent or temporary checkpoints removed

from the border or its functional equivalent.

413 U.S. at 275-76 (emphasis added). Thus, one could

infer from his statement that searches can constitu-

tionally occur at (1) the border, (2) functional equiv-

alents of the border, (3) permanent checkpoints and

(4) temporary checkpoints. He emphasized that the

search in question did not occur in any of the four

categories. His concurrence, therefore, cannot be said

to give any weight to projecting Almeida-Sanchez to

cover searches for aliens at fixed checkpoints’ He spe-

cifically and emphatically limited his concurrence to

answering the question of “whether and under what

circumstances the Border Patrol may lawfully con-

duct roving searches of automobiles in areas not far

removed from the border for the purpose of appre-

hending aliens illegally entering or in the country.”

413 U.S. at 276.

Our brothers of the Tenth Circuit were faced with

a question similar to that presented in this case in

United States v. Bowman, —.. F.2d... (10th Cir.

Noy. 29, 1973), which involved a stop at a fixed

checkpoint located a few miles north of Truth or

Consequences, New Mexico, Although they arrived at

their conclusion by an alternate route, they discussed

the effect of Almeida-Sanchez on the validity of the

initial stopping of the defendant’s vehicle and held:

“We therefore do not read the [Almecida-Sanchez] de-

2h EILEEN IR AIET LES IIEL SIO

cision as challenging the right of immigration officials

to make routine inquiries as to an individual’s nation-

ality.”* The Tenth Circuit apparently has recognized

that Almeida-Sanchez does not resolve the validity of

immigration stops and searches at fixed checkpoints.

Ignoring the significance of Justice Powell’s limited

concurrence, the majority relies basically upon the

language quoted by Justice Stewart from Caroll v.

United States, 267 U.S. 132 (1925), and contends that

that language demonstrates that Almeida-Sanchez

also controls the question of searches at fixed check-

points. However, here the majority falls into the

trap of failing to realize that Justice Powell’s con-

currence does not necesarily make the language in the

Justice Stewart opinion a pronouncement by a major-

ity of the Court.

Because of the close fragmented vote and because

Justice Stewart’s opinion must be limited in applica-

tion to roving patrols, great insight can be secured

from the dissenting opinion of Justice White in which

the Chief Justice and Justices Blackmun and Rehn-

quist concurred. Justice White, after noting that the

Court in Carroll v. United- States, 267 US. at 154,

recognized that neither a warrant nor probable cause

_ aston F.2d at ......; but see United States v. King, 485 F.2d 353 (10th

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 Cireuit may have adopted a two-step approach: The initial stop

at the checkpoint and inquiry 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 cause.

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is required to stop and search at the borders, stated

this right was undisputed in Almeida-Sanchez. He

also, with the concurrence of the three other Justices,

concluded: “Neither, apparently, is it disputed that

warrantless searches for aliens without probable cause

may be made at fixed checkpoints away from the bor-

der.” 413 U.S. at 288. Thus, four Justices have spe-

cifically taken a position diametrically opposed to

that adopted by the majority in this case. As Justice

Powell has limited his opinion to the facts of the rov-

ing search, we are left to speculate as to his approach

to the fixed checkpoint issue.’ Suffice it to say that

based on the Almeida-Sanchez opinions, four Justices

have concluded that searches for aliens at fixed check-

points are not constitutionally infirm and that there

is no majority consensus to the contrary. I, therefore,

fail to see how the majority in this case can draw

comfort from the Almeida-Sanchez decision.

After concluding that the search of Bowen’s vehicle

could be justified if it were conducted at a “functional

equivalent” of the border, the majority holds that as

a matter of fact, this checkpoint is not a functional

equivalent. Justice Stewart acknowledges in Almeida-

Sanchez that border searches may be conducted at

the functional equivalents of the border and gives us

two examples. 413 U.S. at 272-73. But the examples

give us precious little by way of definition, The ma-

jority attempts to expand that definition by referring

4It 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.

to border extension cases where the vehicle involved

has been under surveillance since it crossed the bor-

der, or where it is reasonably certain that persons

had just illegally entered, or goods were just illegally

smuggled into the United States. These cases are far

different from checkpoint cases. They compare like

apples and oranges. The only real assistance comes

from the two examples in Justice Stewart’s opinion.

Yet, with this little guidance, the majority makes a

factual finding that the checkpoint in this case was

not a functional equivalent. How 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 the

Highway before the checkpoint, that Bowen was

stopped to see if any aliens were aboard his vehicle

i 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 ioums ever larger in view of

the fact that a 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

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developed in Baca rather than to make factual as-

sumptions which may or may not be correct.’

This leads to the real question: What test does the:

majority apply to determine whether a fixed check-

point meets the strictures of the Fourth Amendment ?

It says that the government cannot justify searches

made at fixed checkpoints without a warrant or prob-

able cause on the basis of 8 U.S.C. § 1857(a)(3) and

8 C.F.R: § 287.1(a)(2) because the statute and regu-

lation were vitiated in .Almeida-Sanchez. But, once

again, the majority fails to realize that, the Justice

Powell concurrence limits the Opinion of the Court

so that it cannot be construed to apply to fixed check-

points. But even if one ignores the significance of

Justice Powell’s concurrence, Justice Stewart did

not state that 8 U.S.C. § 1357(a) and the regulations

issued pursuant to it were unconstitutional 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. invali-

dates searches at fixed checkpoints simply because

they too are conducted pursuant to 8 U.S.C. § 1357(a)

without independent consideration of whether such

searches are reasonable under the Fourth Amendment,

they bridge a gap with oversight rather than sound

legal reasoning.

5The Tenth Cireuit, erroneously, I think, has also applied a limited

Fourth Amendment test to a fixed checkpoint but did remand for a fae-

tual determination on the question of whether the checkpoint was a fune-

tional equivalent. United States v. King, 485 F.2d 353 (10th Cir. 1973);

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

After finding as a fact that the checkpoint on High-

way 86 was not a functional equivalent Gn spite of

there being no record upon which such a conclusion

could be based) and after holding that the statutory

power has been dissolved by Almeida-Sanchez (when

there was no majority of the Supreme Court so hold-

ing), the majority concludes that the Fourth Amend-

ment was violated because (1) “the search was not

the functional equivalent of a border search” and (2)

it “was authorized neither by warrant nor by probable

cause.”* The majority’s test is incomplete. Four Su-

preme Court Justices have concluded that warrantless

searches for aliens without probable cause may be

made at fixed checkpoints. Their test was one of bal-

ancing the appropriate interests to determine whether

the search was reasonable. Such an approach does not

preclude Fourth Amendment analysis, but applies

- it without requiring that the search satisfy artificial

eriteria. 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

6The majority would apparently require that an officer have probable

cause’ to believe that a crime has been committed before a warrantless

search would be allowed. Such a belief would allow him to make an arrest

and conduct a search incident 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 a search warrant, in the

traditional sense, could not be obtained prior to the time when the vehicle

reached the checkpoint, and since requiring the driver to wait for the

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

limited in their deterrent effect on illegal aliens. It is not clear whether

the majority opinion would allow immigration officials to stop vehicles as

they come through the checkpoints to ask the citizenship of the occupants.

If so, the checkpoints could still have some deterrent effect.

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‘unreasonable’ searches and seizures... .” 413 U.S.

at 287-88. See Cady v. Dombrowsit, £3 OS. £55, 459

(1973). Whether or not a search is reasonable “de-

pends upon the facts and circumstances of each case

and ... searches of cars that are constantly movable

may make the search of a car without a warrant

reasonable one although the results might be the oppo-

site in a search of a home, store, or 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 pur-

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

reason to apply the broad test of reasonableness. See

United States v. Biswell, 406 U.S. 311 (1972) ; Colon-

nade Catering Corp. v. United States, 397 U.S. 72

(1970).

Certain types of searches have been constitutionally

approved as reasonable although they have been made

without probable cause or a warrant. A careful analy-

sis of areas where such searches have been upheld

as reasonable within the meaning of the Fourth

Amendment demonstrates persuasive reasons for the

same approach in testing the constitutionality of stops

and searches at fixed checkpoints. For example, in

Terry v. Ohio, 392 U.S. 1 (1968), the Court concluded

that such a search was reasonable after applying a

test that balanced the interests of the individual in

being free from invasions to his personal privacy

against the interests of society in assuring the safety

of its law enforcement officers. Under the circum-

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stances of Terry, a pat-down without a warrant or

“probable cause” was not considered unreasonable.

Similarly in Camara v. Municipal Court, 387 U.S.

523 (1967), the Court upheld a non-objected-to’ search

of all structures in a certain area to enforce a building

code in spite of the nonexistence of probable cause or

a warrant. Once again, the balancing test of reason-

ableness 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 in-

stances, are necessary facets of our way of life. The

complexity of our society requires such limited intru-

sions in order to protect the rights of the majority.®

In these specific areas, as long as the stops and

searches are limited in their scope to a proper objec-

tive and are not unreasonable, they satisfy the Fourth

Amendment.

For example, all interstate motor carriers may be

stopped for safety or other regulatory inspections.

7Camara is partially distinguishable due to the non-objected-to search

but a similarity exists in that adequate warnings are given as one ap-

proaches 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 checkpoint stop. See United States v. Baca, F.Supp. at .......... .

8In balancing the interests of the majority against the interests of the

individual, it is necessary that before we uphold a warrantless search we

give major consideration to whether requiring a warrant would frustrate

the governmental purpose behind the search. Camara v. Municipal Court,

387 U.S. 523, 529 (1967). Since requiring a search warrant, in the tra-

ditional sense, would in effeet 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 possible in the checkpoint situation. See note 3, supra. That alternative

is not before us now.

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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 upheld as

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

2d 757 (Ky.App. 1938). Similarly, probable cause is

not necessary to stop a vehicle to check for a valid

driver’s license and contraband found incident to such

a stop is not the subject of an illegal search.® United

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

v. United States, 348 F.2d 591 (9th Cir. 1965). An-

other example is the routine searches of baggage and

other personal effects of persons entering the main-

land from Hawaii for infectious plants which has also

been upheld as reasonable within the Fourth Amend-

ment. United 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 sub-

jected to before they are even allowed in the boarding

areas. At least at one time, if the would-be passenger

met additional criteria (supposedly objective but

which were secretly held by officers and airline em-

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®The majority notes the cases upholding stops for inspection of drivers’

licenses and vehicle registration, but distinguishes 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 determine what effect our decision will

have on the enforcement of the immigration laws, but indications are that

the adverse effects will be substantial. See United States v. Baca, ......

F.Supp. at .........

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ployees), he could be subjected to an even more de-

tailed search. We have repeatedly held that evidence

of a crime found in the course of such a search may

not be suppressed on the theory that the search vio-

lates 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 high-

jacking were weighed against the intrusion, we con-

cluded that such searches were reasonable.’° As we

stated in United States v. Davis, 482 F.2d at 910:

To pass constitutional muster, an administra-

tive search must meet the Fourth Amendment’s

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

traband or apprehend criminals, but “to deter persons carrying [weapons

or explosives} from seeking to board at all.” 482 F.2d at 908. (3) The

seope 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 criteria

that would give the officer reasons to suspect that illegal aliens may be

within the vehicle. United States v. Baca, ..... F.Supp. at —... (2) The

primary purpose of the stop and the search was not to detect contraband

or criminals, but rather to deter illegal aliens from attempting to flee to

interior cities with large populations. Jd. at... The stop and the search

were conducted pursuant to a statute designed to regulate immigration

rather than general law enforcement. (3) The scope of the search was

limited to areas where a person may hide. Other areas were not searched

until the officer had probable cause to believe a crime had been com-

mitted. 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 ease, to turn around.

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standard of reasonableness. “Unfortunately,

there can be no ready test for determining rea-

sonableness other than by balancing the need to

search against the invasion which the search en-

tails.” Camara v. Municipal Court, supra, 387

U.S. at 536-537, 87 S.Ct. at 1735.

I would not restrict the constitutional test in this

fact situation as does the majority but would deter-

mine whether the search at this fixed checkpoint was

unreasonable under the Fourth Amendment. The ma-

jority holds that:

The opinion in Almeida-Sanchez, delivered by

Mr. Justice Stewart, leaves little doubt that tra-

ditional Fourth Amendment standards apply to

fixed-checkpoint searches as well as to roving-

patrol searches. (Footnote 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 lonely road and ap-

proaching a well-lighted, fixed checkpoint with warn-

ing signs and uniformed men plainly visible." The

majority’s assumption that five of the 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 deter-

mined 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 court

would balance the rights of the individual vehicle

11United States v. Baca, ..... F.Supp. at...

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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 directed to prevent illegal entries. Before 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 in-

dividual in being free from this limited intrusion.

12Many of the factors enumerated by Justice Powell as a prerequisite

for an area search warrant might also be considered in determining

whether there was an unreasonable interference with the individual’s

rights:

[T]}hey inelude (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 geographic 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 per-

sons, taking into account the seope of the proposed search, its dura-

tion, and the concentration of illegal alien traffic in relation to the

general trafiic of the road or area.

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

13 The Government has made a convincing showing that large num-

bers of aliens cross our borders illegally at places other than estab-

lished 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 im-

practicable 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 obtain 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.

1: The external boundaries 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 stretches of our borders. The fact is that

illegal crossings at other than the legal ports of entry are numerous

and recurring.

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

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While no one can give an accurate count, it has

been estimated that there are approximately 800,000

to over 1 million illegal aliens in our country; ap-

proximately 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 legaily during the

fiscal year 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, restricting them to a seventy-two hour

stay and to travel within twenty-five miles from the

border. Id. at ....; see 8 C.F.R. § 212.6. To enforce

these restrictions, some type of investigation away

from the border is required. The majority suggests

that this flow of illegal aliens can be sufficiently regu-

lated by alternative methods. But I suggest that we

do not have sufficient information in this record to

make that determination. Indications are that any-

thing short of an Iron Curtain type border patrol

would be ineffective in curtailing the number of illegal

entries. United States v. Baca, —... F.Supp. at

Further, even stopping the illegal flow across the bor-

der 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 alter-

native methods of enforcement of the law should be

included in the balancing approach, one district court

found:

The evidence presented before this court clearly

established that there is no reasonable or effective

alternative method of detection and apprehension

available to the Border Patrol, 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.

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

would be necessary to remand the matter for a factual

determination. The findings already made by one

district court pertaining to the checkpoint where

Bowen was stopped indicate that such would not be

a fruitless exercise."*> With an adequate factual rec-

15In 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

miles from the Mexican border. The checkpoint is bordered on the east

by farm land extending for about three miles to the Salton Sea. To the

west and south of this checkpoint lies desert.

At this location the Border Patrol has a building and traffic check

signs together with blinker lights. A power source is located at the fa-

cility. The signs are of the usual type and the floodlights at night cause

the area to be very well lit. As ean be seen from photographs introduced

by the government, the area is desolate country with virtually no inhabi-

tants between the checkpoint and the border.

The Border Patrol attempts to keep this checkpoint operating on a 24-

hour basis and in fiseal 1973 they operated around 6,000 hours which

is approximately 65 to 70 pereent of the time.

At this checkpoint the checking operations are of the usual type with

about 75 percent of the vehicles traveling through it being stopped for

inquiry with around 10 percent to 15 percent of all vehicles being de-

tained for further inspection. It is estimated that over half of the vehicles

PEGE LOL LE LEE LEIP SME ENCE IE ft

ord, we could proceed with the delicate constitutional

balancing necessary to determine whether the stop and

search were unreasonable.

Judges Chambers, Koelsch, Wright, Choy and Sneed

concur in this dismissing opinion to Part I.

PART II

Wa t.ace, Circuit Judge:

The first step in deciding whether a case is to have

retroactive effect is to apply a threshold test to deter-

mine whether the decision establishes a new rule. If

it does, we proceed to test whether the new rule is

retroactive, If it does not, no such testing is neces-

sary as, by definition, without a new rule, there is no

change in the law and the question of retroactivity is

L3 immaterial. For purposes of this case, we hold that

| to constitute a new rule, the decision must either (1)

at this checkpoint have come directly from Mexicali or have occupants

who walked across the border at Calexico.

During the first ten months of calendar year 1973 approximately 690

deportable aliens were apprehended at this checkpoint according to the

detailed traffic logs maintained by the Border Patrol.

This checkpoint is located on a point with oue of the lowest volumes

of traffie along Route 86 north of the population centers of Calexico,

3rawley 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 cireum-

vent 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.

MOPS ST, ae Soe oe ao

overrule clear past precedent or (2) disrupt a prac-

tice long accepted and widely relied upon.’

1This threshold test comes from a footnote in Justice Stewart's dis-

sent in Milton v. Wainwright, 407 U.S. 371, 381-82 n.2. (1972). Whether

this abridged test should be applied in all cases is unclear.

Justice Stewart enunciated a similar test a year earlier in Chevron

Oil Co. v. Huson, 404 U.S. 97, 106 (1971), as follows: _

[T]he decision to be applied nonretroactively must establish a new

principle of law, either by overruling clear past precedent on which

litigants may have relied, . . . or by deciding an issue of first im-

pression whose resolution was not clearly foreshadowed .. . . (Cita-

tions omitted.) :

The fact that Chevron Oil was a civil rather than a criminal case should

not make any difference. Linkletter v. Walker, 381 U.S. at 627. It is

not clear, however, whether the Court will require that one of the

Justice Stewart threshold tests always be satisfied before it will apply

the Stovall test. For example, in Robinson v. Neil, 409 U.S. 505 (1973),

the Court declined to apply Linkletter (the Stovall test) to determine

whether Waller v. Florida, 397 U.S. 387 (1970), should be applied

retroactively because the issue in question was directed to the funda-

mental fairness of double jeopardy rather than directed “to collateral

P such as the deterrence of unlawful police conduct... .” 409

U.S. at 509. Although one could argue that Waller was a “new” con-

stitutional pronouncement, the Court did not discuss this consideration

in deciding not to apply the Stovall test.

In Michigan v. Payne, 412 U.S. 47 (1973), the Court was faced with

the question of whether North Carolina v. Pearce, 395 U.S. 711 (1969),

should be retroactive and applied the Stovall test to only part of the

Pearce rule. The Court stated, without applying the Stovall test, that

no new constitutional rule was established by requiring that resentencing

not be retaliatory and, thus, that rule would be available equally to all

defendants regardless of the date of their sentencing. However, the

Court applied the Stovall test to the “prophylactic” limitations estab-

lished in Pearce requiring the judge to give reasons, concluding that

they should be applied only prospectively. One could infer from Payne

that the Stovall test should be applied only to “new” rules, but Robin-

son indicates that other factors may also be relevant.

Perhaps the clearest example indicating that the Court may appl? a

threshold test is Justice Blackmun’s opinion in Gosa v. Mayden, 413

U.S. 665 (1973), in which the Court declined to apply the rule an-

nounced in O’Callahan v. Parker, 395 U.S. 258 (1969), retroactively.

Before applying the Stovall test, Justice Blackmun found it necessary

to determine whether Gosa was an appropriate case to even consider

the question of retroactivity. Although noting that the O’Callahan case

was a “clear break with the past,” the primary consideration influenc-

ing Justice Blackmun to apply the Stovall test was the fact that the

convictions under the prior rule were not “so unfair as to be void ab

initio” 413 U.S. at 675. Rather, O’Callahan created a prophylactic rule

so iad Basten Rompe nee) AAS Na

SAAR

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, how-

ever, 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 matter of

necessity, the Court must leave the day-to-day appli-

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

enforcement procedures must be based to a great

extent upon circuit court decisions. Because of this

necessity, a law enforcement practice may develop and

be sanctioned by court approval for many years be-

fore 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

basis have not previously understood the new state-

ment to be the proper rule. Justice Blackmun recog-

nized this principle, noting specifically that the new

pronouncement need not overrule 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 ex-

pressly overrule any prior decision, it did an-

designed to enhance “a newly recognized constitutional principle.” 413

U.S. at 675. Even though he noted that the rule was new, Justice

Blackmun, like the Court in Robinson, appeared to be more concerned

with whether the rule affected the integrity of the judicial process than

with whether or not it was new.

From these cases, it appears that the Court has not yet formulated

a single threshold test to be applied in all cases.

sale ED LOLOL I IO IEE LILLE YD he

nounce a new constitutional principle, and it

effected a decisional change in attitude that had

prevailed for many decades.

n TY eee

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 judges who had considered the question

in the three circuits involved in enforcing the immi-

gration laws along our Mexican border had upheld

immigration stops and searches, Almeida-Sanchez v.

United States, 413 U.S. at 298-99 n.10 (White, J. dis-

senting).

In addition to the numerous court pronouncements,

the statute pursuant to which the Border Patrol acted

also constitutes clear past precedent. Since 1952,

searches for aliens 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 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 re-

mained unassailed by tiie Supreme Court or cireuit

courts for twenty years, It was then limited by

te er Pe ee ee ee es Ne Seer

0? iil

ELAS OAD ila IOP IN ATS IN LAID RIM LEE RN EGET LTTE Netty PE

;

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. Where the constitutionality of the

statute has been repeatedly vpheld by the lower courts,

——--it becomes a clear precedent for law enforcement ac-

tion. Prior statutory law should be treated no differ-

ently from prior case law. Thus, Almeida-Sanchez,

as applied to searches at fixed checkpoints, overrules

clear past precedent, both stautory and case law.

Under the second alternative of the threshold test,

a decision constitutes a new constitutional rule if it

disrupts a practice long accepted and widely relied

upon. Here too, Almeida-Sanchez measures up as a

new pronouncement. For over a decade we have con-

sistently and repeatedly upheld convictions based upon

evidence seized during searches made at fixed check-

points; in none of these cases has the constitutionality

of such searches been questioned.* A law enforcement

: practice authorized by our court for such an extensive

period easily satisfies the second alternative of the

test. Under either alternative, Almeida-Sanchez is

; a new pronouncement.

} SNe Ware Abt atic ines RRSnciagr Ripka aap:

H °

a tn hi

Mi 2United States v. Barron, 472 F.2d 1215 (9th Cir.), cert. denied, ......

1 U.S. ...... (1973); United States v. Campos, 471 F.2d 296 (9th Cir.

3 1972); United States v. Aranda, 457 F.2d 761 (9th Cir. 1972); Mienke

7 v. United States, 452 F.2d 1076 (9th Cir. 1971); Duprez v. United

States, 435 F.2d 1276 (9th Cir. 1970); Fumagalli v. United States,

; 429 F.2d 1011 (9th Cir. 1970); United States v. Avey, 428 F.2d 1159

; (9th Cir.), cert. denied, 400 U.S. 903 (1970); United States v. Miranda,

426 F.2d 283 (9th Cir. 1970); Valenzuela-Garcia v. United States, 425

F.2d 1170 (9th Cir. 1970); Barba-Reyes v. United States, 387 F.2d 91

(9th Cir. 1967); Renteria-Medina, 346 F.2d 853 (9th Cir. 1965); Fer-

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

United States, 291 F.2d 63 (9th Cir. 1961); Cervantes v. United States,

278 F.2d 350 (9th Cir. 1960).

OAR OF SEPAAWA

We, therefore, must determine whether this new

rule should be applied retroactively to fixed check-

points. As the Constitution does not mandate retro-

active 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 US.

293 (1967), and recently reiterated in Michigan v.

Payne, 412 U.S. 47, 51 (1973). The Stovall- test re-

quires that, before we apply new constitutional pro-

tections retroactively, we consider the following three

criteria:

(a) the purpose to be served by the new stand-

ards, (b) the extent of the reliance by law en-

forcement authorities on the old standards, and

(ce) the effect on the administration 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 pronouncement affects the “fairness of the

trial—the very integrity of the fact-finding process.”

Linkletter v. Walker, 381 U.S. at 639. Since the le-

gality of the search in no way affects the court’s abil-

ity to determine whether or not the deefndant is

actually guilty of committing the crime, a pronounce-

ment requiring the suppression of such evidence serves

only as a, procedural device to deter future improper

police conduct. See United States v. Calandra, ........

attinenniatl POOL LEONG PLEO IE “a

USS. ....... (Jan. 8, 1974). Such pronouncements gen-

erally should not be applied retroactively. As we held

in Williams v. United States, 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 a search, the new exclusion-

ary rule will not be given retrospective effect be-

cause that purpose is not advanced by penalizing

conduct that has already occurred. The exciusion-

ary rule in such cases, the Court observed, was a

procedural device to curb illegal police action and

not a rule affecting the integrity of the process

for finding the innocence or guilt of an accused.

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

justifiedly 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-San-

chez 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 check-

point. Appellant Fernandez expressly specified as

error:

— = On a Ae

My ee, eee

1. Regulations sanctioning check points 70 miles

within the United States are unconstitutional and

illegal per se, and are unconstitutional and illegal

as applied in this case.

2. The stopping of cars 70 miles within the con-

fines of the United States constitutes unconstitu-

tional and illegal search and is unlawful without

probable cause.

3. Evidence discovered during a search following

such illegal stopping of a car is “fruit of a poisoned

tree”, and must be suppressed.

321 F.2d at 285. We found that the statute and regu-

lations, pursuant to which the checkpoints were op-

erated, were “clearly constitutional.” After reviewing

extensive findings of fact by the district court con-

cerning the necessity of such checkpoints, we con-

cluded that the statute and regulations as applied 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 prob-

able cause sufficient to justify a search of the car.

We have repeatedly reaffirmed Fernandez, not only

upholding the validity of the initial stopping of the

car, but also upholding reasonable searches for aliens

made without probable cause. In Fumagalli v. United

States, 429 F.2d 1011 (9th Cir. 1970), after reviewing

Fernandez and a number of our other earlier cases, we

concluded :

What all of these cases make clear is that prob-

able 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 num-

ber and the explicitness of our prior pronouncements,’

it would be hard to find a clearer case justifying re-

liance on an old standard. Immigration stops and

searches at fixed checkpoints, a practice that has ex-

tended over a 44 year period, has enjoyed ten years of

continued and uninterrupted judicial approval. If the

border patrol agents cannot rely upon a statute sup-

ported by clear regulations which have repeatedly been

upheld by a Court of Appeals with no Supreme Court

disapproval, it is difficult to conceive what degree of

official 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 US.

719, 731 (1966).

What was said in Stovall v. Denno, 388 U.S. 293, 299-

300 (1967), is equally applicable here:

Today’s rulings were not foreshadowed in our

cases ; no ecurt announced such a requirement. .

Law enforcement authorities fairly relied on this

virtually unanimous weight of authority, now no

longer valid, in conducting pretrial confrontation

in the absence of counsel.

Criterion (c) of the Stovall test requires that we

consider the effect the retroactive application of the

new pronouncement would have on the administration

of justice. The record before us is inadequate to indi-

cate what the effect would be in requiring probable

3See cases cited in note 2, supra,

cause or a warrant for all prior stops and searches

made at fixed checkpoints. For example, it is impos-

sible to tell how many illegal aliens, as well as alien

smugglers and other criminals, were captured red-

handed at fixed checkpoints since their inception in

1929. Nonetheless, we are aware that fiscal year 1973

alone, there were approximately 55,300 deportable

aliens apprehended at traffic checkpoints. United

States v. Baca, F.Supp. i (S.D. Cal.

Jan. 3, 1974). There can be no doubt that a rule

requiring the suppression of all evidence obtained by

searches made at fixed checkpoints without a warrant

or probable cause, applied retroactively, would create

immense problems hindering the administration of

justice. It is not inconceivable that thousands of con-

victed criminals might have to be retried of set free.

Nor do we believe, as has been contended, that Rob-

inson v. Neil, 409 U.S. 505 (1973), should lead us to a

different conclusion. There, retroactivity was applied

to a non-fact-finding aspect (double jeopardy). But

the Court clearly noted that it was creating an excep-

tion to the Linkletter-Stovall approach similar to

that which made the death penalty cases retroactive.

The Court explained that prospective application has

generally been applied under Linkleter when the rule

was directed “to collateral purposes such as the deter-

rence of unlawful police conduct... .” Id. at 509.

They then specifically distinguished rules with col-

lateral, purposes from the double jeopardy situation

where a defendant could possibly be punished twice

for the same crime. The obvious import of Robinson

in reference to the case before us is that where the

purpose of the rule is the deterrence of unlawful police

conduct, the rule will be prospective only.

The only remaining question is the date upon which

Almeida-Sanchez would become applicable to searches

at fixed checkpoints. Some would argue that there

should be at least a limited retroactivity, requiring us

to apply the new rule to those cases involving searches

at fixed checkpoints that are now on direct appeal.

These are the so-called “pipeline” cases. We reject

this approach and hold that Almeida-Sanchez applies

only to searches at fixed checkpoints after June 21,

1973, the date of the Almeida-Sanchez decision. The

Supreme Court’s recent decisions indicate that the

pipeline theory does not enjoy majority approval. See

Stovall v. Denno, 388 U.S. 293 (1967). The Court

had precisely that issue before it in Williams v. United

States, 401 U.S. 646 (1971), and a majority declined to

apply the new rule either to the cases in the pipeline

(on direct appeal) or to the cases that were before

the Court on collateral attack. Only Justice Brennan

and Marshall supported the pipeline theory.

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

again adopted limited prospectivity, t.e., only the

challenging appellant would benefit from the new

rule’ In Payne, the Court held that the prophylactic

limitations established in North Carolina v. Pearce, .

395 U.S. 711, 723-26 (1969), would not be applicable

to resentencing proceedings that occurred prior to

4Apparently, the Court has adopted a position of limited prospec-

tivity, rather than pure prospectivity, on the rationale that in order

for the Court’s pronouncement to avoid being classified as dictum, it

must be applied to the parties before the Court. See Stovall v. Denno,

388 U.S. 293, 301 (1967). There has been some criticism of this ration-

the date of the Pearce decision, even though Payne’s

appeal was in the pipeline when Pearce was decided.

Justice Marshall, dissenting, concluded that “consid-

erations of fairness rooted in the Constitution [re-

quire] that cases in the pipeline when a new constitu-

tional rule is announced must be given the benefit of

that rule.” 412 U.S. at 60. None of the other Justices

joined in this part of his dissent and Justice Marshall

himself admitted that, other than exceptions not ap-

plicable in this case, all “constitutional rules of crimi-

nal procedure have been given prospective effect only.”

412 U.S. at 62 (footnote omitted). He noted that lim-

ited retroactivity, as applied in Linkletter [381 U.S.

at 622], was an “anomaly.”® It would be unwise for

us to adopt the pipeline theory when the Court has

declined to apply it.

Limited prospectivity is not a new idea in the line of

cases dealing with the retroactivity of new rules of

ale, [see, e.g., 1B J. Moore, Federal Practice {0.402 [3.—2-3] (1965) ]

and the Court has not hesitated to apply a pronouncement with full

prospectivity when such a result was appropriate. E.g., England v.

Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964);

James v. United States, 366 U.S. 213 (1961). See Johnson v. New

Jersey, 384 U.S. 719, 733 (1966). The primary reason for the Court’s

adoption of limited prospectivity in cases involving new rules of crim-

inal procedure may be that if the new rule is not applied to the defend-

ant before the Court, defense counsel may lack incentive to proceed with

an appeal in cases where they believe there may be an unconstitutional

practice. See Stovall v. Denno, 388 U.S. at 301; Note, Retroactivity Of

Criminal Procedure Decisions, 55 Iowa L. Rev. 1309, 1317 (1970).

5Justice Marshall stated:

412 U.S. at 62 n.5.

criminal procedure. In Johnson v. New Jersey, 384

U.S. 719 (1966), decided only one year after Link-

letter, the Court held that Escobedo and Miranda

would apply only to cases in which the trial began

after the dates of the decisions. One could argue that

Johnson does not really deal with the pipeline theory

because the ease was before the Court on collateral

attack. But such an argument would ignore the fact

that the Court expressly announced that:

[W]e do not find any persuasive reason to extend

Escobedo and Mirténda to cases tried before those

decisions were announced, even though the cases

may still be on direct appeal.

384 U.S. at 733. Limited prospectivity, as the Court

discussed it in Johnson, is particularly suited for ap-

plication in this case. A majority of our court has

agreed that Almeida-Sanchez as applied to fixed check-

points enunciates a new rule of criminal procedure.

The sole purpose for the new rule is to deter future

police misconduct. United States v. Calandra, ..........

U.S. ..... (Jan. 8, 1974). Given this conclusion, the

new rule can reasonably be applied only to convictions

based upon searches conducted after the date of the

Almeida-Sanchez decision. Freeing Bowen from his

conviction will not deter future police misconduct.

If the new constitutional rule is designed to correct

a defect that involves the court’s ability to determine

whether a defendant is guilty or not, it obviously has

to be fully retroactive. But here, the new rule has no

such effect. Bowen, like Almeida-Sanchez, is a con-

victed felon—caught red-handed. The question is not

whether they violated the law, but rather whether they

should be freed because the police detected their vio-

lations through unconstitutional procedures. We are

applying the Almeida-Sanchez rule to searches con-

ducted at fixed checkpoints only to deter these un-

constitutional procedures in the future. Our reason for

applying the rule demonstrates that it should be ap-

plied prospectively only. Almeida-Sanchez receives

the benefit of the new rule because of the Court’s

apparent belief that to do otherwise would put the

Court in the position of providing advisory opinions.*

That policy is not enhanced or furthered by applying

the rule to other cases on appeal. There is no com-

pelling reason which requires that we overturn many

convictions merely because the Supreme Court man-

dates that one must be overturned.

We conclude that any application of Almeida-

Sanchez to fixed checkpoints would be a new rule and

under the Stovall test, it would have to be applied

prospectively to searches subsequent to June 21, 1973.

Therefore, Almeida-Sanchez can be of no assistance to

Bowen. et

AFFIRMED. r

Judges Chambers, Koelsch, Wright, Trask, Choy

and Sneed concur in this majority opinion (Part IT).

[Part IT]

Goopwin, Circuit Judge, concurring and dissenting:

Believing that the legal history of roving patrols is

fundamentally different from the legal history of

®See note 4, supra.

Beat sekds Pie 7 ae eS

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 be-

fore 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 ap-

parent statutory 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) (dissenting opinion of

Stewart, J.), sufficient to deny retroactive applica-

tion.

My concurrence is qualified 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 conviction and remanded the case for

reconsideration in light of Almetda-Sanchez. Now, we

tell Bowen that he was right, that searclies at fixed

checkpoints, supported by neither a warrant nor prob-

able cause, are unconstitutional. Yet, we also tell him

that because of a judicially created rule of nonretro-

activity, he cannot take advantage of a ruling which

he has fought for two years to obtain. However, re-

gardless of the nonretroactivity of our newly an-

nounced 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.

To prevent having our determination in Part I stand

as mere dictum, as well as to comply with the “case

or controversy” requirement of Article III of the Con-

stitution, we must allow Bowen to benefit from our

\- eonstitutional 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.

Hourstepier, Circuit Judge, with whom July Ely con-

curs, 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 equiva-

lent of an international border.

My brothers and I agree that no restroactivity issue

arises unless Almeida-Sanchez stated a new rule mark-

ing “a sharp break in the web of the law.”" We are

also in agreement that Almeida-Sanchez announced no

new Supreme Court rule and that it signaled no break

at all in the constitutional principles stated by the

1The phrase is taken from Mr. Justice Stewart’s dissenting opinion

in Milton v. Wainwright (1972) 407 U.S. 371, 381-82 n2. See Desist

v. United States (1969) 394 U.S. 244, 248 (“clear break with the

past”).

‘ 49

‘Court.? Injection of the retroactivity issue in the

opinions of my brothers Wallace and Goodwin rests

on two assumptions: (1) Congress, the Ninth Circuit,

and the Immigration and Naturalization Service,

prior to Almeida-Sanchez, had long agreed that auto-

mobile searches conducted by personnel of the Service

at fixed checkpoints that were not functional equiva-

lents of international boundaries should be treated as

if they were such “border searches,” thus eliminating

the Fourth Amendment’s requirements of a warrant

and probable cause, and (2) for retroactivity pur-

poses, 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 Naturaliza-

tion Service. The first assumption is innaccurate 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 bounda-

ries in 1929. The information before us about those

checkpoints is fragmentary. We do not know how

2“No claim is made, nor could one be, that the search of the peti-

tioner’s car was constitutional under any previous decision of this Court

involving the search of an automobile.” (Almeida-Sanchez v. United

States (1973) 413 U.S. 266, 269.)

The Court has recognized, however, at least since Carroll v. United

States (1925) 267 U.S. 132, that automobile travellers could be

and their vehicles searched “in crossing an international boundary be-

eause of national self protection reasonably requiring one entering the

country to identify himself as entitled to come in, and his belongings as

effects which may be lawfully brought in.” (Id. at 154.) But nothing

in Carroll, or in any other Supreme Court decision even implied that,

for Fourth Amendment purposes, the Government could create portable

boundaries or affix artificial borders wherever it chose.

Pi tink

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, iv any, that were con-

ducted at them. However, we do know that any ve-

hicle searches that were undertaken at points other

than international boundaries were without 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.)* Although Congress thus

eventually authorized checkpoint searches by Immi-

gration and Naturalization personnel, congressional '

attention never focused on the constitutional difficulties

engendered by the movable berder concept that was

8Congressional 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 Navuralization that was incor-

porated 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

Immigration and Naturalization Service lacked statutory authority to

conduct searches away from the boundaries of the United States:

“Hon. Samvet DICKSTEIN,

Chairman, Committee on Immigration and Naturalization,

House of Representatives, Washington, D.C.

My Dear Mr, CHAIRMAN. This is in response to your request for

my views relative to a bill (H.R. 386) to amend the iaw 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 aliea 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 pur-

suant to a warrant issued by tie 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 restriction that an alien so taken into

_eustody 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

sila SO Sra ATS RRS NE

—

included in section 1357. (See, ¢.g., H.R. Rep. No.

186, 79th Cong., 2d Sess., supra note 3.)

Fourth, Amendment challenges to “alien” searches

conducted 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 inter-

national boundaries and those conducted some distance

from the border;* rather, the law concerning check

point and roving patrol searches developed on a case-

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 yehicles for aliens being

brought into the United States. This authority should be extended to

cover aircraft, in the light of recent developments in aircraft transpor-

tation. :

In the enforcement of the immigration laws it is at times desirable to

stop and search vehicles within a reasonable distance from the bound-

aries of the United States and the legal right to do s6 should be con-

ferred 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

BF reaugst_and was passed by the House of Representatives on Decem-

4, 1944. '

Accordingly, I recommend the enactment of the legislation.

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 Brwpie, Attorney General.”

ELR. Rep. No. 186, 79th Cong., 2d Sess. (1945), 1946 U.S. Code Cong.

Service 1414.

4When customs officers at a distance from the border conducted war-

rantless searches for narcotics, rather than for aliens, our cireuit re-

fused to uphold the searches in the absence of probabie cause. (E.g,,

Contreras v. United States (9th Cir. 1961) 291 F.2d 63.) The Govern-

ment’s argument that 26 U.S.C. § 7607 eliminated the traditional prob-

able cause requirement was rejected as contrary to the Fourth

Amendment. (¢.g., Plazola v. United States (9th Cir. 1961) 291 F.2d

56, 58-59.) These cases, of course, cannot be reconciled on constitutional

grounds with the alien search cases commencing with Fernandez v.

United States (9th Cir. 1963) 321 F.2d 253.

aes ee

by-case basis, following fhe practice so tamijiar in dtner

Fourth Amendment contexts. The end product of the

evolution in this cireuit 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 ve-

hicle, at least if the search went beyond that reason-

. ably related to the discovery of aliens.’ Although

these “alien” non-international boundary vehicle

: search cases were sometimes labeled “border searches,”

they were always a breed apart from searches actually

5We considered numerous cases involving alien searches conducted a

substantial distance from an international border. A few, however, are

illustrative of the development of the law in our circuit. In Fernandez

y. United States (9th Cir. 1963) 321 F.2d 283, appellant was stopped

at a fixed checkpoint by customs inspectors looking for aliens. Probable

cause to believe marihuana was concealed in the vehicle developed dur-

ing the stop. The constitutionality of 8 U.S.C. § 1357 was upheld, and

the statute was applied to justify the initial stop of a t's vehicle.

Barba-Reyes v. United States (9th Cir. 1967) 387 F.2d YI mvoived 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 contra-

band was hidden in the vehicle. Accord, United States v. Lujan-Romero

The development of ‘alien” searches followed a similar pattern in

the Tenth Circuit. (¢.g., United States v. Anderson (10th Cir. 1972)

468 F.2d 1280; United States v. MeCormick (10th Cir. 1972) 468 F.2d

68; see Roa-Rodriquez v. United States (10th Cir. 1969) 410 F.2d 1206.)

But the Fifth Cirenit ereated an expandible berder coneept that had

aaa ae - see

a! Aone ee ee ee en

couuudeu dt “uiverndtiondi ‘vourluaries. "Yue '1ateer

were treated as they always had been; no warrant and

no probable cause were required to validate a

thorough, full-seale search of the vehicle and its con-

tents. The validity of warrantless, non-boundary “bor-

der 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 Circuit cases re-

veals that fixed checkpoint searches fared neither

better nor worse than searches conducted at temporary

checkpoints or by roving patrols away from the bor-

der. In all of these cases we approved initial stops

pursuant to section 1357 and limited the scope of sub-

sequent search activity. (See note 5 supra.) The as-

sumption of my brothers that full-scale international

boundary-type vehicle searches conducted at fixed

checkpoints located away from the border had re-

ceiver tongconunued jadi? approvar iS Tot suyp-

ported by the facts; my brothers’ conclusion that

Almeida-Sanchez sharply broke with prior law from

the lower federal courts concerning fixed checkpoint

searches cannot be sustained.

Even if the Ninth Circuit for many years had con-

sistently upheld these alien searches at fixed check-

points, however, that fact would not be pertinent to

deciding whether retroactivity is in issue.’ For this

6] fully reeegnize that if the retroactivity doctrine were properly in

issue, lower court decisions and law enforeement officers’ reliance upon

them would be relevant considerations in deciding whether to apply a

particular Supreme Court decision retroactively. (E.g., Stovall v. Denno

(1967) 388 U.S. 293.)

purpose, the only “old” and “new” law that is rele-

vant is the constitutional law enunciated by the Su-

preme 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

several circuits, increase manifold the certiorari bur-

dens of the Supreme Court, and erode the power of

the Supreme Court as the ultimate arbiter of consti-

tutional law.

These disturbing consequences might not oceur

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 checkpoints searches at issue in the case at

bench provides an excellent illustration of the prob-

lems that can arise under my brothers’ views. The

issue arose at different times with different frequency

in some cireuits and in others did not arise at all. In

the circuits where the issue was never decided, did

Almeida-Sanchez state a “new” rule? Is a single deci-

sion in one circuit upholding the search enough to

create “old” law with which Almeida-Sanchez broke?

If one circuit had upheld such searches and another

had struck them down, would Almeida-Sanchez be

retroactive in the latter circuit and nonretroactive in

the former?’ To prevent restrictions on the retro-

7Even a clarifying Supreme Court decision would not necessarily pre-

vent retroactivity problems from arising. For example, in light of Ala-

meida-Sanchez, the Fifth Cireuit has invalidated a search conducted at a

checkpoint located 65 to 75 miles north of the Mexican border. (United

States v. Speed (5th Cir. 1973) 489 F.2d 478.) If the views expressed

in my brother Wallace's dissenting opinion concerning the applicability

baal a a a ee ee ae oe a a Se ee eee nnen to. te ne eee ail

activity of its decisions, must the Supreme Court_take

every new search and seizure issue to prevent “old”

law from accumulating? If the Court is in any

respect bound by the constitutional law developed in

the lower federal courts, how can it continue to be

the final arbiter of constitutiona] issues ?*

Even when the retroactivity concept is confined ex-

clusively to law stated by the Supreme Court, difficult

jurisprudential problems are generated. (See, e.g.,

Desist v. United States (1969) 394 U.S. 244, 256-69

(Harland, J. dissenting).) To extend the concept to

embrace the law of the circuits would turn confusion

into chaos,

CHAMBERS, Circuit Judge, concurring and dissenting.

1 concur and dissent as indicated above.

I adhere to my original position that these Almeida-

Saachez cases should not have been taken en bance.

See United States v. Bowen, ... F.2d —....

of Almeida-Sanchez to fixed checkpoints had gained the adherence of a

majority of our court, would a subsequent decision by the Supreme Court

affirming the Fifth Circuit decision create new law for the Ninth Cireuit,

while merely confirming old law in the Fifth?

8The difficulties created by the view that cireuit decisions can establish

“old” law are multiplied greatly if unappealed district court decisions also

produce old law. Yet the rationale of my brothers’ opinions is not in any

way limitable to circuit decisions. Moreover, deciding issues of federal

constitutional law is not solely the prerogative of federal courts. Can the

judiciaries of 50 states also create old law from which the Supreme Court

departs when it reaffirms established constitutional principles and refuses

to eountenance a deviation sanctioned by the decisions of one or more

state courts?

ea 1 ee, PCR 1h RES FVD

‘cilities te mere

Appendix C

United States Court of Appeals

for the Ninth Circuit

United States of America, ;

Appellee,

VB. No. 73-2509

James Robert Peltier,

Appellant. :

[May 9, 1974]

Appeal from the United States District Court

for the Southern District of California

Before: CHAMBERS, MERRILL, KOELSCH, BROWNING,

Duntway, Ey, HursTepLer, WRIGHT, TRASK,

Cuoy, Goopwinx, WALLACE, and SNEED, Cir-

cuit Judges.

Goopwin, Circuit Judge:

James Robert Peltier’s appeal has been taken en

bane so the full court can consider whether the rule

announced by the Supreme Court in Almeida-Sanchez

v. United States, 413 U.S. 266 (1973), rev’g 452 F.2d

459 (9th Cir. 1971), should be applied to similar cases

pending on appeal’ on the date the Supreme Court’s

1We do not have before us the question of the effect of Almeida-

Sanchez upon a conviction being tested in a collateral attack, and we

express no opinion upon that.

Se INE OO RE OPS PS tt we s OR, SNE dl EG FOE IE a, RIO s

decision was announced. We hold that it should,

reverse Peltier’s conviction, and remand the matter

to the district court.

Peltier was convicted of possessing marijuana, with

intent to distribute, in violation of 21 U.S.C. §841(a)

(1). The evidence was discovered during a search con-

ducted on February 28, 1973, by border-patrol agents

on roving patrol on Highway 395 near Temecula,

California.

On June 21, 1973, the Supreme Court, in its opinion

reversing this court’s Almetda-Sanchez opinion, held

that border-patrol agents on roving patrol cannot stop

and search automobiles pursuant to 8 U.S.C. § 1357

(a) and 8 C.F.R. § 287.1 without probable cause or

warrant.

The search im question here was of the same type

as that condemned in Almeida-Sanchez. There, the

search 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. Here, the search was conducted

approximately 70 air miles north of the Mexican

border and well to the north of the San Diego metro-

politan area. The government concedes that the evi-

dence must be suppressed if the rule announced in

Almeida-Sanchez applies to this case.

Until Linkletter v. Walker, 381 U.S. 618 (1965), the

Supreme Court traditionally applied new constitu-

tional criminal-procedure standards retroactively >in

all cases. 381 U.S. at 628. See generally Haddad,-

“Retroactivity Should Be Rethought”: A Call for the

End of the Linkletter Doctrine, 60 J. Crim. L., C. &

P.S. 417, 425-26 (1969); Mishkin, The High Court,

the Great Writ, and the Due Process of Time and

Law, 79 Harv. L. Rev. 56, 56-57 (1965). In Linkletter

the Court was required to decide whether Mapp v.

Ohio, 367 U.S. 643 (1961), which overruled Wolf v.

Colorado, 338 U.S. 25 (1949), should be given retroac-

tive effect. After reviewing the history and theory of

the problem of retroactivity, the Court concluded that

the Constitution neither prohibits nor requires that

the Court’s decisions be applied retroactively. In each

case the Court must determine whether retroactive or

prospective application is appropriate. Linkletter v.

Walker, 381 U.S. at 629.

In Linkletter’s successors the Court devised a three-

point test to determine whether or not to apply a new

constitutional doctrine retroactively. The test looked

to (a) the purpose to be served by the new standards,

(b) the extent of reliance by law-enforcement: officials

on the old standards, and (c) the effect on the admin-

istration of justice of a retroactive application of the

new standards. See Stovall v. Denno, 388 U.S. 293, 297

(1967).

However, for the doctrine of retroactivity to be rele-

vant at all, the Court must have articulated a new

doctrine.

“An issue of the ‘retroactivity’ of a decision of

this Court is not even presented unless the deci-

sion in question marks a sharp break in the web

of the law. The issue is presented only when the

decision overrules clear past precedent * * * or

disrupts a practice long accepted and widely

PO ar ee “Te

relied upon * * *.” Milton v. Wainwright, 407

U.S. 371, 381-82, n.2 (1972) (dissenting opinion

of Mr. Justice Stewart) (citations omitted).

See also Gosa v. Mayden, 413 U.S. 665, 672-73 (1973) ;

Michigan v. Payne, 412 U.S. 47, 50-51 (1973) ; Chev-

ron Oil Co. v. Huson, 404 U.S. 97, 106 (1971); Wil-

liams v. United States, 401 U.S. 97, 106 (1971).

Linkletter itself fits into the first category—deci-

sions overruling “clear past precedent”—since it

involved the retroactivity of Mapp v. Ohio, supra,

which overruled Wolf v. Colorado, supra. See qlso

Williams v. United States, supra, involving the ret-

roactivity of Chimel v. California, 395 U.S. 752

(1969), which reversed United States v. Rabinowitz,

339 U.S. 56 (1950), and Harris v. United States, 331

U.S. 145 (1947) ; Fuller v. Alaska, 393 U.S. 80 (1968)

(per curiam), involving the retroactivity of Lee v.

Florida, 392 U.S. 378 (1968), which overruled

Schwartz v. Texas, 344 U.S. 199 (1952); Desist v.

United States, 394 U.S. 244 (1969) involving the ret-

roactivity of Katz v. United States, 389 U.S. 347

(1967), which specifically rejected Goldman v. United

States, 316 U.S. 129 (1942), and Olmstead v. United

States, 277 U.S. 438 (1928); Tehan v. Shott, 382 U.S.

406 (1966), involving the retroactivity of Griffin v.

California, 380 U.S. 609 (1965), which overruled

Twining v. New Jersey, 211 U.S. 78 (1908).

Representative of cases within the second category

—decisions disrupting “a practice long accepted and

widely relied upon”—is Johnson v. New Jersey, 384

U.S. 719 (1966), which held that Miranda v. Arizona,

Stace: _

RINE RN ar RIE

384 U.S. 436 (1966), and Escobedo v. Iliinois, 378

U.S. 478 (1964), would not apply retroactively. The

Court in Johnson observed that prior to Miranda and

Escobedo it had expressly declined to condemn an

entire process of in-custody interrogation solely be-

cause police had failed to warn accused persons of

their rights or had failed to grant them access to out-

side assistance, and that law-enforcement agencies had

relied upon the Court’s acquiescence. 384 US. at 731.

See also Gosa v. Mayden, supra, involving the retroac-

‘tivity of O’Callahan v. Parker, 395 U.S. 258 (1969) ;

Adams v. Illinois, 405 U.S. 278 (1972), involving the

retroactivity of Coleman v. Alabama, 399 U.S. 1

(1970); Halliday v. United States, 394 U.S. 831

(1969) (per curiam), involving the retroactivity of

McCarthy v. United States, 394 U.S. 459 (1969) ;

Stovall v. Denno, supra, involving the retroactivity

of United States v. Wade, 388 U.S. 218 (1967), and

Gilbert v. California, 388 U.S. 218 (1967).

Almeida-Sanchez, by contrast, neither overruled

past precedent of the Supreme Court nor disrupted

long-accepted practice. Mr. Justice Stewart's opinion

for the Court, after reviewing the Court’s automobile-

search decisions and its administrative-inspection de--

cisions, concluded that neither line of authority “pro-

vide[s] any support for the constitutionality of the

stop and search in the present case oa 6” 413 US.

at 272.2 Clearly, then, Almeida-Sanchez overruled no

2Mr. Justice Powell, in his eoneurring opinion, also noted:

establishes that none of our Fourth Amendment decisions supports

the search conducted in this ease * * *.” 413 U.S. at 275.

eee =~ pos

Fidei

earlier Supreme Court precedent; rather, it reaffirmed

well-established Fourth Amendment standards dating

back to Weeks v. United States, 232 U.S. 383 (1914), .

and Carroll v. United States, 267 U.S. 132 (1925).

Nor did Almeida-Sanchez disturb a long-accepted

and relied-upon practice. Although the government

claims that it has relied upon judicial approval of

roving searches prior to June 21, 1973, it has cited

only one of cur opinions, prior to our overruled deci-

sion in Almeda-Sanchez, holding that government

agents on roving patrol can stop and search auto-

mobiles without either| probable cause or warrant.

United States v. Miranda, 426 F.2d 283 (9th Cir.

1970).* |

All of our other pre-Almeida-Sanchez decisions up-

holding roving-patrol searches away from the border

involved stops that were predicated upon: (a) probable

cause to believe that the automobile stopped was carTy-

ing illegal aliens or contraband, see, ¢.g., United States

vy. Ardle, 435 F.2d 861 (9th Cir. 1970), cert. denied,

402 U.S. 947 (1971) ; ef. United States v. Kandlis, 432

F.2d 132 (9th Cir. 1970); or (b) a reasonal » cer-

tainty that any contraband which might be found in

sWe concede that a number of other opinions do contain some dicts

from which the government might infer that this court would uphold s

1011, 1013 (9th Cir. 1970); United States v. Elder, 425 F.2d 1002,

1004 (9th Cir. 1970); Barba-Reyes v. United States, 387 F.2d 91 (9th

Cir. 1967); Fernandez v. United States, 321 F.2d 283 (9th Cir. 1963) ;

Contreras v. United States, 291 F.2d 63 (9th Cir. 1961). Nonetheless,

United States v. Miranda, supra, is the only case whieh

to our in which this held that a stop

ducted by immigration agents on roving patrol was Proper.

or on the vehicle at the time of the search was aboard

the vehicle at the time it entered the United States,

see, ¢.g., Alexander v. United States, 362 F.2d 379 (9th

Cir.), cert. denied, 385 U.S. 977 (1966); or (¢) a

reasonable certainty that the vehicle searched con-

tained either goods which have just been smuggled or

a person who has just crossed the border illegally.

See, e.g., United States v. Weil, 432 F.2d 1320, 1323

(9th Cir. 1970), cert. denied, 401 U.S. 947 (1971). See

generally Note, In Search of the Border: Federal

Customs and Immigration Officers, 5 N.Y.U.J. Int'l

L. & Politics 93 (1972). Moreover, our line of de-

cisions, and that of the Court of Appeals for the

Tenth Circuit (see, e.g., Roa-Rodrigues v. United

States, 410 F.2d 1206 (10th Cir. 1969)), permitting

roving searches by the border patrol, enjoyed only

brief acceptance and failed its first test before the

Supreme Court.

The government fares no better in its alternate

claim that it was relying not only on prior judicial

approval of roving searches but also upon the literal

command of Congress and a regulation authorizing

such searches. Section 287(a)(3) of the Immigration

and Nationality Act, 8 U.S.C. § 1357(a) (3), provides

for warrantless searches of automobiles and other

conveyances “within a reasonable distance from any

external border of the United States * * *.” This

section, enacted in 1952, revised in a manner not

relevant here a statute enacted in 1946. Act of Aug.

7, 1946, ch. 768, 60 Stat. 865. Soon after the 1952

revision, the Attorney General promulgated regula-

OER EN EL RL OER RTO A LN NIE IAD

ie etnies Oe dd cel ee

. 63

tions, one of which defined “reasonable distance” 28

“within 100 air miles from any external boundary of

the United States * * *.” 8 C.F.R. § 287.1(a) (2).

This statute and regulation must, however, be read

in light of the Fourth Amendment; and when so

understood, they merely delegate authority to be ex-

ercised by border-patrol agents in accordance with

constitutional limitations. Without the statutory

authorization conferred by § 287(a) (3), border-patrol

agents would not have legal power to search private

vehicles for aliens under any circumstances. Under

the statute, they are permitted to conduct certain

warrantless searches. But, unless the search qualifies

as a border search, the statute should, not be read,

as this court has read it, to dispense with the require-

ment of probable cause as well as the requirement of a

warrant. zs

When the Supreme Court reversed us in Almeida-

Sanchez, it did not declare -the statute unconstitu-

tional ; it merely read the Fourth Amendment require-

ment of probable cause into the right of border-patrol

agents to conduct warrantless. searches which were

‘ not the functional equivalents of border searches.

Other sections of the same act had earlier been sub-

jected to similar judicial constructions to avoid con-

flicts with constitutional standards. See United States

vy. Almeida-Sanchez, 452 F.2d 459, 465-67 (9th Cir.

1971) (dissenting opinion of Browning, J.), rev’d, 413

U.S. 266 (1973). Judicial interpretation of a statute

and departmental regulation to eliminate conflict with

the Fourth Amendment hardly qualifies as the kind

SE cB OO OAL ORS! LE EEE NILES TSR GS

5 ea Tt

of “new” constitutional rule sufficient to deny an ap-

pellant the fruits of his appeal.

Peltier is not claiming the benefit of any decision

overruling or enlarging “then-applicable constitutional

norms,” Williams v. United States, 401 U.S. at 654;

rather, he seeks the application of principles enun-

ciated by Chief Justice Taft in 1925 in Carroll and

consistently adhered to by the Supreme Court there-

after. This is a case not so much of the retroactivity

of Almeida-Sanchez as of the continued vitality of

Carroll and its successors. The Supreme Court in Al-

meida-Sanchez was not announcing a new legal doc-

trine, but correcting an aberration. Peltier is entitled

to the benefit of the rule announced in Almeida-San-

chez, not because of retroactivity but because of

Fourth Amendment principles never deviated from by

the Supreme Court.

A Supreme Court decision overruling state or circuit

court decisions does not necessarily mark a departure

from prior decisions of the Supreme Court. Robinson

v. Neil, 409 U.S. 505 (1973). The Supreme Court

faced the question whether Waller v. Florida, 397

U.S. 387 (1970), which barred duplicate prosecutions

when a single act violated both state and municipal

laws, was fully retroactive. The Court concluded:

«* * * (This Court had not earlier had oc-

casion to squarely pass on the issue, But its

decision in Waller cannot be said to have marked

a departure from past decisions of this Court.

Therefore, while Waller-type cases may involve

a form of practical prejudice to the State over

and above the refusal to permit the trial that the

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Constitution bars, the justifiability of the State’s

reliance on lower court decisions supporting the

dual sovereignty analogy was a good deal more

dubious than the justification for reliance that

has been given weight in our Linkletter line of

cases * * *,

“We hold, therefore, that our decision in Waller

v. Florida is to be accorded full retroactive effect —

** * Robinson v. Neil, 409 U.S. at 510-11.

The conclusion which we have reached here may or

may not be consistent with the result in the other

circuits that have before them the application-ef

Almeida-Sanchez to searches conducted prior to June

21, 1973. The Fifth Circuit recently held that Almetda-

Sanchez is not to be given retrospective effect. United

States v. Miller (5th Cir., No. 73-1083, April 8, 1974).

The decision does not mention three other cases in

which the circuit applied Almeida-Sanchez retro-__

actively without discussion. See United States v.

Speed, 489 F.2d 478 (5th Cir. 1973); United States

v. McKim, 487 F.2d 305 (5th Cir. 1973); United

States v. Byrd, 483 F.2d 1196 (5th Cir. 1973). The

Tenth Circuit also has applied Almeida-Sanchez to

pending cases in which the search occurred prior to

the decision in Almeida-Sanchez. See United States v.

King, 485 F.2d 353, 359 (10th Cir. 1973); United

States v. Maddoz, 485 F.2d 361, 363 (10th Cir. 1973).

The judgment of conviction is reversed, and the

matter remanded to the district court with instruc-

tions to suppress the evidence seized in the search of

Peltier’s automobile.

0 OE OOTY PO ee ive EID Fare hy PN OP ee TE RO OE,

Qe a ee

Judges Chambers, Merrill, Browning, Duniway, Ely

and Hufstedler concur in this majority opinion.

Wa vace, Circuit Judge, Dissenting:

I respectfully. dissent.

The majority does not attempt to justify retro-

activity based upon the tests of Linkletter v. Walker,

381 U.S. 618 (1965), and Stovall v. Denno, 388 US.

293 (1967). Rather it asserts that before the question

of retroactivity even becomes relevant, we must decide

whether the Court in Almeida-Sanchez v. United

States, 413 U.S. 266 (1973), articulated a “new” con-

stitutional rule. In order to be new, the majority

contends, the constitutional rule must overrule “clear

past precedent” or disrupt “a practice long accepted

and widely relied upon.” This threshold test comes

from a footnote in Justice Stewart’s dissent in Milton

v. Wainwright, 407 U.S. 371, 381-82 n.2. (1972). As

we noted in United States v. Bowen, ... F.2d —,

n.1 (9th Cir. 1974), it is unclear whether this abridged

test should be applied in all cases. But even applying

the test adopted by the majority, I disagree that ihe

Almeida-Sanchez pronouncement is not new and, there-

fore, I believe the Stovall test is relevant.

The majority contends that the appropriate inter-

pretation of the Supreme Court’s holding in Almeida-

Sanchez demonstrates that the rule is not new and

dictates retroactivity. But the majority, falling into

the same error as the majority did in Part I of United

States v. Bowen, 2. F.2d ong 2um (9th Cir. 1974)

(Wallace, J. dissenting), fails to distinguish between

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where a majority of Justices has made a pronounce-

ment and where it has not. Justice White, writing

for himself and three other Justices, review decisions

of each of the courts of appeals having jurisdiction

over districts bordering Mexico and concluded :

[T }hose courts and judges best positioned to make

intelligent and sensible assessments of the require-

ments of reasonableness in the context of con-

trolling illegal entries into this country have

consistently and almost without dissent come to

the same conclusion that is embodied in the judg-

ment that is reversed today.

413 U.S. at 298 (footnote omitted). Justice Powell,

although concurring in the Opinion of the Court,

agreed with Justice White’s conclusion on this point:

Roving automobile searches in border regions

for aliens, likewise have been consistently ap-

proved by the judiciary. While the question is

one of first impression in this Court, such

searches uniformly have been sustained by the

courts of appeals whose jurisdictions include

those areas of the border between Mexico and the

United States where the problem has been most

severe.

413 U.S. at 278. The tenor of these statements, repre-

senting five of the nine Justices, seems more con-

sistent with the conclusion that Almeida-Sanchez

established a new constitutional rule.

Even ignoring that a majority of the Supreme

Court may well believe that Almeida-Sanchez consti-

ele 5 SON ED ON a aE

tutes a new rule, the test adopted by the majority,

when properly applied, also demonstrates that the

rule of Almeida-Sanchez is new. Under the first alter-

native of the majority’s test, a decision constitutes

a new constitutional rule if it overrules “clear past

precedent.” It cannot be contended that to meet this

alternative, the Supreme Court must reverse one of

its prior decisions. On the contrary, as we held in

United States v. Bowen, ....... Tae: ... Sd (9th Cir.

1974): “The test does not require . . . that the Su-

preme Court reverse itself in order for there to be

an overruling of clear past preceden "

Prior to Almeida-Sanchez, the courts of appeals

gave no indication that roving stops and searches were

unconstitutional. See, e.g., United States v. Miranda,

426 F.2d 283 (9th Cir. 1970); Roa-Rodriguez v.

United States, 410 F.2d 1206° (10th Cir. 1969). See

United States v. McDaniel, 463 F.2d 129 (5th Cir.

1972), cert. denied, 413 U.S. 919 (1973). The majority

contends that this stream of judicial pronouncements

is a mere aberration. However, these consistent hold-

ings can hardly be said to be a deviation from. the

law when 35 of 36 judges who have considered the

question in the three circuits involved in enforcing

the immigration laws along our Mexican border have

upheld immigration stops and searches. Almeida-

Sanchez v. United States, 413 U.S. at 298-99 n.10

(White, J. dissenting). Almeida-Sanchez does over-

rule clear past precedent.

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The majority’s treatment of the statute pursuant

to which the Border Patrol acted also deserves atten-

PE AL IIE LDR ET eS EN GN AONE) PRE ELL AMOR LEY OER LON ADF ee

tion. Since 1952, searches for aliens within a reason-

able distance from the border have been authorized

by Congress. 8 U.S.C. § 1357(a)(3). Merely stating,

as does the majority, that statutes have to be meas-

ured by the Constitution only begs the question. As

we held in United States v. Bowen, ......... _ :

Although it is true that statutes have to be meas-

ured by the Constitution, a legally enacted stat-

ute becomes the law until it is vitiated by a court

decision, Where the constitutionality of the

statute has been repeatedly upheld by the lower

courts, it becomes a clear precedent for law en-

forcement action. Prior statutory law should be

treated no differently from prior case law.

The identical statute which we held to be clear past

precedent in Bowen is involved in this case. There we

held that in applying the first alternative of the

threshold test, “[p]rior statutory law should be

treated no differently from prior case law.” United

States v. Bowen, ........ F.2d at ........ I, therefore, fail to

see why Almeida-Sanchez does not overrule clear

past precedent, both statutory and case law.

Under the second alternative of the majority’s test,

a decision constitutes a new constitutional rule if it

“disrupts a practice long accepted and widely relied

upon.” Justice Stewart, in Chevron Oil Co, v. Huson,

404 U.S. 97, 106 (1971), formulated the second alter-

native in language that adds an additional dimension.

He stated that a decision may constitute a new rule

either by overruling past precedent (the first alter-

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native of the majority’s test) “or by deciding an issue

of first impression whose resolution was not clearly

foreshadowed ... .”” Under the Chevron Oil formula-

tion of the test, Almeida-Sanchez clearly constitutes

a new rule. First, the majority concedes that this

issue has not previously been presented to the Supreme

Court, making it by definition “an issue of first im-

pression” before that Court. Second, the resolution of

an issue that would invalidate immigration stops and

searches was not foreshadowed. As Justice White

stated :

_.. I eannot but uphold the judgment of Con-

gress that for purposes of enforcing the immi-

gration laws it is reasonable to treat the exterior

boundaries of the country as a zone, not a line,

and that there are recurring circumstances in

which the search of vehicular traffic without war-

rant and without probable cause may be reason-

able under the Fourth Amendment although not

carried out at the border itself.

This has also been the considered judgment of

the three Courts of Appeals whose daily concern

is the enforcement of the immigration laws along

the Mexican-Amer

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