# Petition for Writ of Certiorari — Foerster v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 422 U.S. 1056

## Text

SEAR NE Ee Pee

Subject Index

Page
CN: CEE sc bc su Uh Suan cash eh knaa hae nes Ghawnecens k 1
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

II

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

II

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

IV

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
OOM Mem WEG Fi ooaw code chs tid ccavevinacsecce 3,13
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

3

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

5

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
I

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.

II

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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7

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

I

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

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11

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.

13

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

15

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:

16

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.

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17

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.

IV

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.

A

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

18

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

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19

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.
B

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 |

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20

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

;
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| 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.

4

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

5

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.

6

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-

7

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

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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).

a

24

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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26

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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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

33

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.

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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

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35

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

36

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

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37

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.

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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

i

38

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, ........

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39

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:

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40

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

41

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,

42

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

43

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-

44

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.

45

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

46

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

47

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-

48

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

50

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

—
51

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

52

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

53

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.)

o4

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

1

55

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

+

56

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.

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

57

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

58

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

59

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

60

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:

«“* © * []) join in the opinion of the Court, which sufficiently
establishes that none of our Fourth Amendment decisions supports
the search conducted in this ease * * *.” 413 U.S. at 275.

eee =~ pos

Fidei

61

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.

62

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

64

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

eee VP OP RL OOTP gars
wa ORE PY CEES EY -* OM OE TT EE FIREMAN AAO ER OE EM

65

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

66

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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67

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.

I

Even ignoring that a majority of the Supreme
Court may well believe that Almeida-Sanchez consti-

ele 5 SON ED ON a aE

68

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

69

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.

It

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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70

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0755%3A1. Public record. Not legal advice.