Appendix — Hendrix v. United States

_FOR THE NINTH CIRCUIT

“

UNITED STATES OF AMERICA,

Plaintif£-Appellee, :

Vv. Sire “Ho. 73-1523 gees

ROMERT LEE HENDRIX), © / FILED

i Defendant-Appellant. JUL 91873

Before: BARNES GOODWIN, Circuit Judges, and

eaLLEna, District Judge.

On June 13, 1973, we ordered that this appeal

await submission until the Supreme Court of the —

United States determined the case of Almeida- ve

United States, No. 71-6278.

We order that this case stand submitted as of

June 22, 1973, and now hold Almeida is not here

controlling. Almeida pertained to "a roving search."

"Te was not a border search, nor can it

be said to have been . search conducted at the "functional

equivalent’ of the betder. Nor does [it] involve

the constitutional propriety of searches at permanent

or temporary check points removed from the border or

its functional equivalent. Nor finally, was the search

based on cause in the ordinary sense of specific knowledge

concerning an automobile or its passengers."

(Concurring opinion of Mr. Justice Powell). C.C.H., p. 3731.

Cf. United States v. Barron, 472 F.2d 1215, 1217, Note 2.

(9th Cir. 1973). |

Here, the stop, search and arrest was at the permanent

check-point on Highway 86, south of Salton City, Imperial ~

Fe

. Honorable Robert J. Kelleher, District Judge for the —

Central District of —* sitting by designation.

ty, California .T. 18). ° E

The judgment of conviction is Affirmed.

ees en iene a dak Tee

FOR THE WINTH CIRCUIT MAY 2.0 1974

UNITED STATES OF AMERICA ENE

s U.S Coupr of 4. CLERK

Plaintiff-Appellee, > voge rt APP GLS

°° Oursaod = 12962

v. % No. 73-1523

RICHARD LEE HENDRIX, (T/N

ROBERT LEE HENDRIX), ssi ORDER

Defendant-Appellanct.

Before: BARNES and COODWIN, Circuit Judges, and

KELLEHER, District Judge.

The Petition for Rehearing in this case, filed

June 23, 1973, has been held in abeyance until this

Court en banc could determine the effect of United

States v. Almeida-Sanchez (1973) 413 U.S. 266. We

have held that Almeida-Sanchez invalidated certain

checkpoint stops and searches; we also have held that

the rule does not apply to stops and searches occurring

prior to the date of the Almeida decision, i.e., June 21,

1973. nited States v. Bowen (9th Cir. en banc 1974)

¥.2¢ __. The stop here was made on March 17, 1972.

The Petition for Rehearing is denied

The Order of th!s panel entered July 9, 1973 is

hereby withdrawn, and this order, again affirming the (

, conviction, is ordered filed and entered. ‘ (

£7

Honorable Robert J. Kelleher, District Judge for the

ia, sitting by designation.

Central District of Californ

ed 1974

UNITED STATES courRT oF aPPed

PeBLCOURT op ppg CUR

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

-vs- No. 72-1012

JOHN LEE BOWEN,

Defendant-Appellant.

et eet eet ee eet eet eet ee ee ee

Appeal From the United States District Court

For the Southern District of California .

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

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

WALLACE and S D, Circuit Judges

PER CURIAM:

Fl

This appeal is before the court upon the remand of

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

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

Bowen was convicted of smuggling and transporting

marijuana and of possessing depressant and stimulant drugs.

The evidence of the violations was discovered during a rou-

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

ent border-patrol checkpoint on California State Highway 86

approximately 36 air miles and 49 highway miles north of the

Mexican border. Highway 86 is a principal route from Mexicali

to Los Angeles by way of Indio and Riverside.

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

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

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

mM

{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 Almcida-Sanchez affect searches conducted at a fixed

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

roving-patrol searches, are included within the ambit of

the Almeida-Sanchez ruling, should that ruling be applied

to fixed-checkpoint searches conducted by 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 Almeida-Sanchez does

apply to searches at fixed checkpoints. However, for the

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

Sanchez will not be applied to fixed-checkpoint searches

conducted prior to June 21, 1973.

The judgment of conviction is affirmed. a

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PART I

GOODWIN, Circuit Judge:

According to the Supreme Court in Almeida-Sanchez v.

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

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

§ 1357(a) and 8 C.F.R. § 287.1: (1) searches at “(p]erma~

nent checkpoints * * * maintained at certain nodal inter-

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

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

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

The government argued in Almeida-Sanchez that all these

searches conducted “within a reasonable distance from any

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

sidered border searches, and thus be carried out with

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

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

The search condemned in Almeida-Sanchez was of the

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

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

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

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

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

reserved from the Almeida-Sanchez decision. The checkpoint,

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

lation centers of the Imperial valley and Indio.

1 ;

The opinion in Almeida-Sanchez, delivered by Mr.

Justice Stewart, leaves little doubt that traditional

Fourth Amendment prpnarten th apply to fixed-checkpoint

searches as well as to Lovide-patret 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 “(ijn all these

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

tion when they stop and search automobiles without a warrant,

without probable cause to believe the cars contain aliens,

and even without probable cause to believe the cars have

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

asserted justification for this extravagant license to

search is § 287 of the Immigration and Nationality Act,

66 Stat. 233, 8 U.S.C. § 1357(a) * * * .* 433 U.S. at 268.

Moreover, the government in Almeida~Sanchez sought to

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

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

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

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

Supreme Court held that this statute and regulation could

not exempt searches carried out pursuant to them from tra-

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

the government's statutory justification for fixed-checkpoint

searches as well as for roving-patrol searches vanished.

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

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

follows:

“ * * * It would be intolerable and unrea-

sonable if a prohibition agent were authorized

to stop every automobile on the chance of find-

ing liquor sud thus subject all persons law-

fully using the highways to the inconvenience

and indignity of such a search. Travellers may

be stopped in crossing an international boundary

because of national self-protection reasonably

requiring one entering the country to identify

himself as entitled to come in, and his belong-

ings as effects which may be lawfully brought

in. But those lawfully within the country,

entitled to use the public highways, have a

right to free passage without interruption or

search unless there is known to a competent

official authorized to search, probable cause

for believing that their vehicles are carrying

contraband or illegal merchandise * * * ," | |

267 U.S. at 153-54,

SALTER

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

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

right to establish fixed checkpoints anywhere within 100

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

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

ing the “right to free passage without interruption or

search" of “those lawfully within the country ** * ." Such

searches, therefore, must meet constitutional standards

regardless of their utility in carrying forward the diffi-

cult mission of the Border Patrol. .

To be sure, Mr. Justice Powell in his concurrence

and Mr. Justice White in his dissent both correctly pointed

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

fixed-checkpoint search. See 413 U.S. at 275-76, 268.

Nonetheless, these disclaimers do not override clear indi-

cations in the opinion of the Court that any distinction

between fixed and movable checkpoints will be meaningless,

unless the distinction can be based upon reasoned rourth*

Amendment considerations.

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

nificant constitutional differences between roving patrols

and fixed checkpoints. First, since fixed checkpoints

often involve a stop and inspection of every car passing

through them, they provide much less opportunity for the

unfettered discretion of the police officer that was con-

demned in Almeida-Sanchez. See 413 U.S. at 268. Second,

being stopped on a lonely road at night in a sparsely

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

burdensome to the traveler than a stop at an identified

and lighted checkpoint (Bowen). The government contends

once again that the Constitution does not forbid all

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

validity of arguably “reasonable” fixed-checkpoint searches,

the government cites a number of judicial decisions uphold-

ing roadblocks established for the purpose of checking

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

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

v. Washburn, 265 Cal. App. 2d 665, 71 Cal. Rptr. 577, 581

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

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

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

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

(1968) .”

We agree with the government that a fixed-checkpoint

search that does not entail significant delay is probably

less offensive than a roving-patrol search. Being asked

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

soned traveler. Being flagged over to the side of the ‘

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

cer on roving patrol probably has more discretion in decid-

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

point, although the difference might be less than the

government contends. Since not all vehicles passing through

a checkpoint are stopped, and since not all vehicles stopped

are searched, the officer at the checkpoint still retains

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

for stops or intrusive searches.

Nonetheless, even conceding that a fixed-checkpoint

search might be less of an imposition on domestic travelers

than a Yoving-patrol scarch.we able to find nothing in

the opinion of the Court in Almecida-Sanchez which suspends

ad amet

Fourth Amendment standards in dealing with immigration

Moreover, the government's reliance on judicial soake |

sions upholding automobile stops for the purpose of check-

ing drivers’ licenses is misplaced. Although the govern- |

ment has cited only roadblock stops, there is a parallel

line of decisions upholding BA tesa stops to check

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

united states, 348 F.2d 591 (9th Cir. 1965); State v. Ream,

19 Ariz. App. 131, 505 P. 24 569 (Div. 1, Dept. B, 1973);

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

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

stop may have been at a roadblock rather than incident to

a roving patrol significant enough to mention. See, £-9-

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

1972); Myricks v- United States, 370 F.24 901 (Sth Cir.),

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

since this line of vehicle-registration-check decisions

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

these decisions to be an appropriate means for seringeiar

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

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

decisions will not support the government's position here.

For example, in Lipton Vv. United States, Supra, in which

this court upheld a stop by 4 motorcycle police officer

of a youth driving an automobile, we reasoned that there

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

had a valid license permitting him to operate a motor’

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

duce his license. We noted:

" * * * A contrary holding would render

unenforceable the State statute requiring that

automobile drivers be licensed." 348 F.2d

at 593.

;

;

i

‘

‘

}

We are not persuaded that laws prohibiting illegal immigra- |

tion will be rendered similarly unenforcoable should we

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

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

points. ;

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

roving-patrol searches, even though conducted within a

eee

“reasonable: distance" from the border, are not necessarily

exempt from the traditional Fourth Amendment requizement

of a warrant or probable cause. This holding, however,

merely shifts the focus of our inquiry. The opinion in

ida-Sanchez does not require that a border search, to

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

legitimate border search may also be conducted “in certain

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

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

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

"functional equivalent" of the border.

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

late border crossings. Thus, in attempting to clarify

what would constitute a “functional equivalent" of the

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

" * * * Por example, searches at an

established station near the border, at a

point marking the confluence of two or more

roads that extend from the border, might be

functional equivalents of border searches.

For another example, a search of the passen-

gers and cargo of an airplane arriving at a

St. Louis airport after a nonstop flight from

Mexico City would clea be the functional

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

at 272-73. (Emphasis added.)

These examples are then contrasted with the search con-

ducted in Almeida-Sanchez:

‘

** *# * (T}he search of * * * {an} auto-

mobile by a roving patrol, on @ California

road that lies at all points at least 20 miles

north of the Mexican border, was of a who ly

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

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

virtually everyone searched has just come from the other

side ofatha border, the search is a functional equivalent

of-e-border search. In contrast, if a search takes place

at a location where a significant number of those stopped

are domestic travelers going from one point to another

within the United States, the search is not the functional

equivalent of @ border search. One need oaly contemplate

the volume of domestic travel between Buffalo and Rochester,

| Mew York, to see why a checkpoint between those two cities

could not be the functional equivalent of a border check-

point even though the checkpoint could be less than twenty

miles from an international border.

In addition to the two examples of & functional

equivalent of a border search provided by the Court in

Almeida-Sanchez, other examples may be drawn from two

series of decisions of this court. Representative of the

first line of authority is Alexander Vs United States,

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

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

informer, placed the defendant's automobile under surveil-

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

continuous watch as it made suspicious movements through

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

quent search by customs officials was properly called a

border search, the court stated:

"where * * * a search. for contraband by

Customs officers is not made at or in the

immediate vicinity of the point of inter-

national border crossing, the legality of

the search must be tested by a determination

whether the totality of the surrounding cir-

cumstances, including the time and distance

elapsed as well as the manner and extent of

surveillance, are such as to convince the

fact finder with reasonable certainty that

any contraband which might be found in or on

the vehicle at the time of the search was

aboard the vehicle at the time of entry into

the jurisdiction, of the United States * * * ,*

362 F.2d at 382.

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

treated a search north of the border as the equivalent of

a border search, where it appeared with reasonable cer-

tainty that the vehicle searched contained either goods

which have just been smuggled or a person who had just

crossed the border illegally. See, €.9., United States v.

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

947 (1971), in which this court held: |.

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

ably certain that parcels have been (a)

smuggled across the border and (b) placed

in a vehicle, whether the vehicle has itself

crossed the border or not, they may stop and

search the vehicle. Similarly, if agents ¢

are reasonably certain that a person has .

crossed the border illegally, and has then

entered a vehicle on this side of the bor-

der, we think that they may stop and search

the vehicle and person. They can assume

that he may have brought something with him."

432 F.2d at 1323.5

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

Circuit authority, as well as in the two examples offered

by the Supreme Court in Almeida-Sanchez, although the

search was not conducted precisely at the border, it still

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

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

463 (dissenting opinion of Browning, J.), rev'd, 413 u.s,

266 (1973).

It is clear that the search conducted in the present

“a

case lacks the vital connection between the vehicle stopped

and a reasonable certainty, or even a probability, that it

og_its contents had recently crossed an internat tonal bor-

-—approximate 6 air miles and 49

ier. The checkpoint was /«& ghway

miles north of the Mexican border. Several significant

population centers and highways, including Interstate 8,

a major east-west freeway that connects the Southwest with

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

Under these circumstances, border-patrol agents had no

reason to believe that virtually all or even most of the

cars passing through their checkpoint had recently, or ever,

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

tinuing surveillance from the border nor the dependable

intelligence from other sources required ‘to fit this case

into the Alexander line of decisions; nor was there the

reasonable certainty that the vehicle eanvniuell either

recently smuggled goods or aliens required under the Weil

line. See United States v. Petersen, 473 F.26 874 (9th ,

. :

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

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

indicates that the search conducted was not the functional

equivalent of a border search. Were the record more

equivocal, we would not hesitate to remand the case to

the district court for a determination of functional equiv~-

alency. Where the record is as clear as it is here, howe

ever, we see no need for a remand.

As its last line of defense, the government argues

that fixed-checkpoint searches, even if not the functional

equivalent of border searches, should be upheld simply

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

culty in detecting and repatriating illegal aliens along

our southern boundary needs no new documentation here.

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

sity alone cannot override the Fourth Amendment's prohibi-

ae . . ——-

tion against unreasonable searches and seizures. A similar

argument was made and rejected in Almeida-Sanchez itself.

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

Justice Powell in his concurring opinion in Almeida-Sanchez

suggested that warrants based on area-wide conditions could

be employed to resolve the contending interests of law

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

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

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

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

an opinion on a hypothetical search conducted pursuant to

a judicial warrant authorizing searches for a limited time

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

opinion here merely to suggest to the government that pro-

cedures less offensive to the Fourth Amendment than judi-

cially unapproved checkpoint searches might be devised and

implemented to supplement its program for enforcing immi-

gration laws.

Our conclusion that Almeida-Sanchez is as applicable

to fixed-checkpoint searches as to roving-patrol searci.4s

is consistent with that reached by the Court of Appeals for

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

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

patrol search at a temporary checkpoint on a north-south

highway approximately 65 to 75 miles north of the Mexican

border was neither a border search nor a functional equiva- ,

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

The court commented, "The distinction between a checkpoint

489 F.2d at 480.

and a roving patrol is not important."

Likewise, the Court of Appeals for the Tenth Circuit

has held that a warrantless search, without probable cause,

of an automobile at the checkpoint at Truth or NS

New Mexico, violates the Fourth Amendment unless a search |

at that checkpoint could be deemed the functional equiva-

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

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

361 (10th Cir. 1973).

We hold here that under the rule announced by the

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

camper truck violated the Fourth Amendment because the

search was not the functional equivalent of a border search

and was authorized neither by warrant nor by probable cause.

ad

Judges Merrill, Browning, Duniway, Ely, Hufstedler

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

—_«———

FOOTNOTES:

dur. Justice Stewart's opinion is explicitly identi-

fied as “the opinion of the Court." re wee approved by a

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

stated, “ * * * J join the opinion of the Court * * * ,*

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

where that he understands the difference between concurring

in an opinion and concurring only in its result. Compare

Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609,

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

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

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

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

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

Richardscn, 411 U.S. 677, 691 (1973) (concurring only in_

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

in Almeida-Sanchez strongly suggests that his concurrence

was not limited to the result. Moreover, his concurring “

opinion was written primarily to elaborate his views on an

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

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

whether a roving search would be sustainable if it were

based on an area search warrant.

2 put see Commonwealth v. Swanger, 453 Pa. 107, 307

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

held that a routine check of a motor vehicle to determine

ee

whether it and its operator were properly licensed violates

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

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

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

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

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

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

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

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

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

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

probable cause, of an automobile at the checkpoint in Truth

or Consequences, New Mexico, violates the Fourth Amendment

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

tional equivalent of a border search. Soth cases were

remanded to the district court for determination of that

issue. However, beyond directing the district court to

interpret the phrase as it was used in Almeida-Sanchez, ..

the opinions offer no guidance in defining the functional

equivalent of a border search.

— |

United States v. Bowen

No. 72-1012

{Part I]

WALLACE, Circuit Judge, Dissenting:

I respectfully dissent to Part-I of the opinion

pertaining to the applicability of Almeida-Sanchez to searches

conducted at fixed checkpoints.

With one fell swoop, the majority in Part I hews

down a law enforcement procedure used for 44 years to curtail

the ever-increasing tidal wave of illegal aliens. The use of

fixed checkpoints has been neither secret nor clandestine.

The procedure has come before our court on numerous occasions

with no hint that the practice was constitutionally infirm.

For us to reverse ourselves at this late date requires clear

and convincing reasons. See Smith v. United States, 273 F.2d

462, 465 (10th Cir. 1959), cert. denied, 363 U.S. 846 (1960).

*

I fail to see them in the majority decision. The only ap-

parent change is the opinion, or better said opinions, in

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

careful analysis, therefore, is required to see if that case

dictates our reversal of a long-standing and accepted police

, practice.

The majority concedes that Almeida-Sanchez is a

case involving stops and searches by roving border patrol

officers. But by some mystic bridging, it holds-<hct ~~~

Almeida-Sanchez also requires that we outlaw searches at

fixed checkpoints. The Opinion of the Court was delivered

by Justice Stewart and concurred.ir-by Justices Douglas,

Brennan and Marshall. That opinion becomes the majority only

with the added vote of Justice Powell. Justice Powell wrote:

While I join the opinion of the Court, which

sufficiently establishes that none of our Fourth

Amendment decisions supports the search conducted

EI

€

United States v. Bowen

Dissent to Part I

~==—==- -y

in this case, I add this concurring opinion

to elaborate on my views as to the meaning of

the Fourth Amendment in this context."

413 U.S. at 275 (emphasis added). Justice Powell's concur-

rence, therefore, adds a fifth Justice, and thus a majority,

only to that part of the Justice Stewart opinion which invali-

<==:

dates the type of search “conducted in [that] case"--a roving

patrol search.

This critical distinction is brought into even

closer focus by Justice Powell's demarcation of the four areas

where searches typically occur:

[The search of Almeida-Sanchez' automobile] was

not a boxder search, nor can it fairly be said

to have been a search conducted at the “func-

tional equivalent" of the border. Nor does.

this case involve the constitutional propriety

of Searches at permanent or temporary check-

points removed from the border or its func-

onal equivalent.

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

from his statement that searches can constitutionally occur

at (1) the border, (2) functional equivalents of the border,

(3) permanent checkpoints and (4) temporary checkpoints. He

emphasized that the search in question did not occur in any

of the four categories. His concurrence, therefore, cannot

be said to give any weight to projecting Almeida-Sanchez to

cover searches for aliens at fixed checkpoints. He spe-

cifically and emphatically limited his concurrence to answer-

ing the guestion of “whether and under what circumstances the

Border Patrol may lawfully conduct roving searches of auto-

mobiles in areas not far removed from the border for the

Purpose of apprehending aliens illegally entering or in the

country." 413 U.S. at 276.

Our brothers of the Tenth Circuit were faced with

a question similar to that presented in this case in United

a

we

SO SS a OE eee

38 3

States v. Bowman, F.2d (10th Cir. Nov. 29, 1973).

which involved a stop at a fixed checkpoint located a few

miles north of Truth or Consequences, New Mexico. Although

they arrived at their conclusion by an alternative route, they

discussed the effect of Almeida-Sanchez on the validity of

the initial stopping of the defendant's vehicle and held:

“We therefore do not read the [Almeida-Sanchez] decision as

challenging the right of immigration officials to make routine

inquiries as to an individual's Oe The Tenth

Circuit apparently has recognized that Almeida-Sanchez does

not resolve the validity of immigration stops and searches

at fixed checkpoints.

Ignoring the significance of Justice Powell's

limited concurrence, the majority relies basically upon the

language quoted by Justice Stewart from Carroll v. United

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

demonstrates that Almeida-Sanchez also controls the question

of searches at fixed checkpoints. However, here the majority

falls into the trap of failing to realize that Justice Powell's

concurrence does not necessarily make the language in the

Justice Stewart opinion a pronouncement by a majority of the

Court.

Because of the close fragmented vote and because

Justice Stewart's opinion must be limited in application to

roving patrols, great insight can be secured from the dissent-

ing opinion of Justice White in which the Chief Justice and

‘sustices Blackmun and Rehnquist concurred. Justice White,

after noting that the Court in Carroll v. United States, 267

U.S. at 154, recognized that neither a warrant nor probable

cause is required to stop and search at the borders, stated

this right was undisputed in Almeida-Sanchez. He also, with

* et

United States v. Bowen

; Dissent to Part I

the concurrence of the three other Justices, concluded:

“Neither, apparently, is it disputed that warrantless searches

for aliens without probable cause may be made at fixed check-

points away from the border." 413 U.S. at 288. Thus, four

Justices have specifically taken a position diametrically

opposed to that adopted by the majority in this case. As.

Justice Powell has limited his Opinion to the facts of the

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

the fixed checkpoint PES Suffice it to say that based on

the Almeida-Sanchez opinions, four Justices have concluded

that searches for aliens at fixed checkpoints are not consti-

tutionally infirm and that there is no majority consensus to

the contrary. I, therefore, fail to see how the majority in

this case can draw comfort from the Almeida-Sanchez decision.

After concluding that the search of Bowen's vehicle

could be justified if it were conducted at a "functional

equivalent” of the border, the majority holds that as a matter

of fact, this checkpoint is not a functional equivalent. }

Justice Stewart acknowledges in Almeids-Sanches that border

searches may be conducted at the functional equivalents of

the border and gives us two examples. 413 U.S. at 272-73.

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

The majority attempts to expand that definition by referring

to border extension cases where the vehicle involved has been

under surveillance since it crossed the border, or where it

is reasonably certain that persons had just illegally entered,

or goods were just illegally smuggled into the United States.

These cases are far different from checkpoint cases. They

compare like apples and oranges. The only real assistance

comes from the two examples in Justice Stewart's opinion.

Yet, with this little guidance, the majority makes a factual

se

SS eeess

United States v. Bowen

Dissent to Part I

finding that the checkpoint in this case was not a functional

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

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

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

from the border, that several highways intersect Highway 86

before the checkpoint, that there are several cities along the

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

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

contraband was discovered. There is no evidence as to the

amount of traffic that comes through the checkpoint from the

border area, the number of illegal aliens arrested at the

checkpoint, or other information that would seem to bear on

this question. The imprudence of deciding this issue on an

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

district court, after taking extensive deevtnnnd; concluded

that the Route 86 checkpoint was a functional equivalent of

the border. United States v. Baca, _. F-Supp- ____ (sp.

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

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

veloped in Baca rather than to make factual assumptions which

may or may not be correct.”

This leads to the real question: What test does the

| asta apply to determine whether a fixed checkpoint meets

ithe strictures of the Fourth Amendment?

It says that the government cannot justify searches

ay de at fixed checkpoints without a warrant or probable cause

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

because the statute and regulation 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 checkpoints.

But even if one ignores the significance of Justice Powell's

United States v. Bowen

Dissent to Part I

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

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

stitutional on their face, but merely that the statute could

not vindicate a search that is otherwise in violation of the

Fourth Amendment. Consequently, when the majority invalidates

searches at fixed checkpoints simply because they too are

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.

After finding as a fact that the checkpoint on

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

being no record upon which such a conclusion could be based)

and after holding that the statutory power has been dissolved

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

Court so holding), the majority concludes that the Fourth

Amendment was violated because (1) "the search was not the’

functional equivalent of a border search" and (2) it “was au-

thorized neither by warrant nor by probable an The

majority's test is incomplete. Four Supreme Court Justices

have concluded that warrantless searches for aliens without

probable cause may be made at fixed checkpoints. Their test

was one of balancing the appropriate interests to determine

whether the search was reasonable. Such an approach does not

| preclude Fourth Amcndment analysis, but applies it without re-

| quiring that the search satisfy artificial criteria. It

focuses upon the balancing protections afforded by the Fourth .

Amendment, as reiterated by Justice White, dissenting in

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

+++ against ‘unreasonable’ searches and seizures ...." 413 ;

U.S. at 287-88. Sec Cady v. Dombrowski, 413 U.S. 433, 439

SS

United States v. Bowen

Dissent to Part I

(1973). Whether or not 6 search is xscascnable “depends upon

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

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

without a warrant a reasonable one although the results might

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

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

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

tn addition, we should not’ overlook the fact that

the. law enforcement personnel were operating pursuant to a

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

the broad test of reasor.ableness. See United States v.

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

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

Certain types of searches wep been constitutionally

approved as reasonable although they have been made without

probable cause or a warrant. A careful analysis of areas

where such searches have been upheld as reasonable within the

meaning of the Fourth Amendment demonstrates persuasive rea-

‘sons 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 suc*.

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 circumstances 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

7

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

tain area to efforce a building code in spite of the nonexis-

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

United States v. Bowen

Dissent to Part I

balancing test of reasonableness was applied to measure “the

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

Id. at 537.

Stops and searches similar to the one objected to

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

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

society requires such limited isteveions in order to protect

the rights of the identi.” In these specific areas, as long

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

proper objective and are not unreasonable, they satisfy the

Fourth Amendment.

For example, all interstate motor carriers may be

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

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

discovered during such a search it could be used as evidence

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

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

they enter a state. Such stops and searches have been upheld

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

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

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

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

ject of an illegal eS, United States v. Croft, 429 F.2d

1884 (10th Cir. 1970)$ Lipton v. United States, 348 F.2d 591

|

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

baggage and other personal effects of persons entering the

mainland from Hawaii for infectious plants which has also

been upheld as reasonable within the Forrth Amendment. Unitec

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

Perhaps the most obvious example is the limited

i

search that all passengers on airline flights are subjected to

United States v. Bowen

Dissent to Part I

before they are cven allowed in the boarding areas. At least

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

teria (supposedly objective but which were secretly held by

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

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

dence of a crime found in the course of such 4 search may not

4 be suppressed on the theory that the search violates the

2 pourth Amendment. E.G.» United States v. Doran, 482 F.24 929

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

Ks the interest of the public in being protected against the

: dangers of a highjacking were weighed against the intrusion,

| we concluded that such searches were ‘dicwguialian © As we

" stated in United States V- Davis, 482 F.2d at 910:

15 To pass constitutional muste?, an admin-

istrative search must meet the Fourth Amend-

ment's standard of reasonableness. "unfor-

tunately, there can be no ready-.test for

determining reasonableness other than by

balancing the need to search against the

invasion which the search entails.” Camara

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

537, 87 S.Ct. at 1735.

ss

s &

‘of

I would not restrict the constitutional test in this

fact situation as does the majority but would determine

whether the search at this fixed checkpoint was unreasonable

under the Fourth Amendment. The majority holds that:

The opinion in Almeida-Sanchez, delivered

by Mr. Justice Stewart, leaves little doubt

that traditional Fourth Amendment standards

apply to fixed-checkpoint searches as well

as to roving-patrol searches. (Foonote

omitted.)

But there is a majority holding only on ‘he issue of roving

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

midnight stop on @ lonely road and approaching 2 well-lighted,

fixed checkpoint with warning signs and uniformed men plainly

eessses 8 BF Beresss&

11

visible. The majority's assumption that five of the

United States v. Bowen

Dissent to Part I .

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

I cannot accept.

Under the correct test, whether the search at this

fixed checkpoint was unreasonable should be determined in the

first instance by the trial court after hearing all of the

evidence. Such a determination is primarily factual. In

applying this test the trial court would balance the rights

of the individual vehicle driver against the interests of all

the people of the country in stemming an avalanche of persons

illegally crossing our hectiine. Both Justices Souala and

White refer to the Herculean challenges faced by those di-

rected to prevent illegal entries. Before we direct the Dutch

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

American people at least to balance theix interests against

the interests of the individual in being free from this

limited intrusion.

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

estimated that there are approximately 800,000to over 1 millior.

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

citizens of Mexico. United States v. Baca, F.Supp. at

+ The major problem is the abortive attempt to guard

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

the Pacific coast. ,

In addition to aliens entering illegally, 91 million

} aliens entered the United States legally during the fiscal

Y

year 1972, with over 39 million of these entering directly

into Southern California. Id. at - A large percentage

of these visitors enter with temporary border passes, re-

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

twenty-five miles from the border. Id. at ¢ see 8 C.F.R.

§ 212.6. To enforce these restrictions, some type of

_—— -

Dissent to Part I

investigation away from,.the border is required. The majority

suggests that this flow of illegal aliens can be sufficiently

regulated by alternative methods. But I suggest that we do

not have sufficient information in this record to make that

determination. Indications are that anything short of an

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

tailing the number of illegal entries. United States v. Baca,

F.Supp. at . Purther, even stopping the illegal

flow across the border would not halt those legally entering

but illegally travelling more than twenty-five miles from

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

alternative methods of enforcement of the law should be in-

cluded in the balancing approach, one district court found:

The evidence presented before this court

clearly established that there is ‘no reasonable

or effective alternative method of detection

and apprehension available to the Border Pa-

trol, in the absence of the checkpoints, for

even a geometric increase in its personnel or ‘.

line watch would not leave any control over :

those admitted as temporary visitors from

Mexico.

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

make a contrary conclusion.

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

| whether it is unreasonable under the Fourth Amendment, it

would be necessary to remand the matter for a factual deter-

mination. The findings already made by one district court

:pertaining to the checkpoint where Bowen was stopped indicate

lenat such would not be a fruitless asenadebc With an ade-

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

stitutional balancing necessary to determine whether the stop

and search were unreasonable. EXUBMULAXLAMANE XUNSXSARS XESS

KANKXMUNAKAX

Judges Chambers, Koelsch, Wright, Choy and Snecd

concur in this dissenting opinion to Part I.

*100id -040;

— = ss a See AAR RRA ST RERKRKKRKRKZS B

United States v. Bowen - Dissent to Part I

No. 72-1012

FOOTNOTES

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

opinion, supra.

2. In footnote 1 of Part I of the majority opinion, it is con-

tended that Justice Powell's concurring opinion joins in the

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

ture of the sentence qualifies his statement. The majority

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

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

add this concurring opinion ...." If he had joined without

any qualifications, his concurring opinion would have been

for naught. -

3. F.2d at ___s ~- but see United States v. King, 485

F.2d 353 (10th Cir. 1973), which invalidated a search at a

fixed checkpoint unless it is a functional equivalent of a

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

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

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

stop at the checkpoint and inquiry as to citizenship may be

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

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

at a functional equivalent of the border or have probable

cause.

4. It is noted that the four dissenters agree with Justice

Powell that an area search warrant would satisfy the Fourth

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

five Justices would also approve such a practice for fixed

checkpoints.

United States v. Bowcn

Dissent to Part I

Footnotcs

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

a limited Fourth Amendment test to a fixed checkpoint but did

remand for a factual determination on the question of whether

the checkpoint was a functional equivalent. United States v.

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

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

6. The majority would apparently require that an officer

have probable cause to believe that a crime has been committed

before a warrantless search would be allowed. Such a belief

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

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

no vehicle could be searched at fixed checkpoints for illegal

aliens unless the officer first had probable cause to arrest

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

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

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

point, and since requiring the driver to wait for the officer

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

;

United States v. Bowen

Dissent to Part I

Footnotcs

be limited in their deterrent effect on illegal aliens. It

is not clear whether the majority opinion would allow immigra-

tion 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.

7. Camara is partially distinguishable due to the non-

objected-to search but a similarity exists in that adequate

warnings are given as one approaches a fixed checkpoint and

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

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

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

8. In balancing the interests of the majority against the

interests of the individual, it is necessary, fhat 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 traditional sense, would in effect preclude the search

‘of 111 automobiles at the checkpoints, this requirement has

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

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

sible in the checkpoint situation. See note 3, supra. That

alternative is not before us now.

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

tion of drivers' licenses and vehicle registration, but dis-

ctneehaiege them from stops at fixed checkpoints on the basis

that if such stops were not allowed the éciver%s license and

vehicle statutes would be rendered unenforceable, whereas the

majority is “not persuaded" that the immigration laws would

similarly be rendered unenforceable by this decision. The

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

United States v. Bowen

Dissent to Part I

Pootnotcs

determine what effect our decision will have on the enforce-

ment of the immigration laws, but indications are that the

adverse effects will be substantial. See United States v.

Baca, __ F.Supp. at .

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

we toave set forth the criteria necessary for such a search

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

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

therance of an administrative purpose, rather than as part

of a criminal investigation to secure evidence of a crime

eoee” 482 F.2d at 908. (a) The essential purpose of the

search must be not to detect contraband or apprehend crimi-

nals, but “to deter persons shige {weapons or explosives]

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

scope of the search must be limited to meet reasonably the

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

to submit to the search or to not board the flight. 482 F.24

at 913. Q

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

Bowen was stopped as part of a routine check for illegal

aliens proceeding to the interior of this country. Either

all vehicles passing through the checkpoint were stopped

or a limited number were stopped based upon objective cri-

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

; legal aliens may be within the vehicle. United States v.

Baca, F.Supp. at s , The primary purpose of th<

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

but rather to deter iilegal aliens from attempting to flce to

interior cities with large populations. Id. at . The

stop and the search were conducted pursuant to a statute

designed to regulate immigration rather than general law

—

United States v. Bowen

Dissent to Part I

Footnotcs

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

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

until the officer had probable cause to believe a crime had

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

lighted and clearly identified. All persons proceeding

through the checkpoint had reason to know that they would be

questioned as to their citizenship ‘and subjected to a limited

search for illegal aliens. They had the alternative to stop

or, in this case, to turn around.

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

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

prerequisite for an area search warrant might also be con-

sidered in determining whether there was an unreasonable in-

terference with the individual's rights: -

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

illegally in the country are known or reasonably

believed to be transported within a particular

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

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

graphic characteristics of the area, including et

the roads therein and the‘extent of their use;

and (iv) the probable degree of interference

f with the rights of innocent persons, taking into

account the scope of the proposed search, its

duration, and the concentration of illegal alien

traffic in relation to the general traffic of

the road or area.

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

"

'13. The Government has made a convincing showing

that large numbers of aliens cross our borders

ilkgally at places other than established crossing

points, that they are often assisted by smugglers,

} that even those who cross on foot are met and ~

f transported to their destinations by automobiles

[ «++. It would, of course, be wholly impracticable

} to maintain a constant patrol along thousands

miles of border. Morcover, because many of these

aliens cross the border on foot, or at places other

than established checkpoints, it is simply not

possible in most cases for the Government to ob-

tain specific knowledge that a person riding or

stowed in an automobile is an alien illegally '

in the country. Thus the magnitude of the problem

is clear. :

413 U.S. at 265-66.

United States v. Bowen

Dissent to Part I

Footnotes

14. The external boundaries of the United States

are extensive. The Canadian border is almost

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

Surveillance is maintained over the established

channels and routes of communication. But not

only is inspection at regular points of entry not

infallible, but it is also physically impossible

to maintain continuous patrol over vast stretches

of our borders. The fact is that illegal cross-

ings at other than the legal ports of entry are

numerous and recurring.

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

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

trial judge made the following findings of fact:

The Border Patrol has established a checkpoint

on Route 86 west of the Salton Sea National Wildlife

Refuge just north of the intersection of State Route 78.

This location is approximately 36 air miles and 49 road

miles from the Mexican border. The checkpoint is bordered

on the cast by farm land extending for about three miles

to the Salton Sea. To the west and south of this checkpoint

lies desert. ; ite

At this location the Border Patrol has a building

md traffie check signs together with blinker lights.

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

of the usual type and the floodlights at night cause the

arca to be very weil lit. As can be seen froia photographs

introduced by the government, the area is desolate

country with virtually no inhabitants between the checkpoin:

and the border. , BES, Sige

The Border Patrol attempts to.kecep this checkpoint

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

operated around 6,000 hours which is approximately 65 to

70 percent of the time.

PRINS Lt DEINE LIL ATT APRIL

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

United States v. Bowen

Dissent to Part I

Footnotcs

4 At this checkpoint the checking operations are of

ing through it being stopped for inquiry with around 10 _

percent to 15 percent of all vehicles being detained for

furthér inspection. Ie. is. estimated that. over half of

the vehicles at this checkpoint have come directly from

Mexicali or have occupants who walked across the border at

Calexico. aoe a ;

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 one of

the lowest volumes of traffic along Route 86 north of the

population centers of Calexico, Brawley and El Centro.

From these facts, the district court concluded in part:

The checkpoint on Route 86 is situated at a point

with one vf 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

nn Sir without being steere,’ 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.

Fee ee er a a aa RR a a ae a ee

United States v. Bowen

No. 72-1012

PART II

WALLACE, Circuit Judge:

The first step in deciding whether a case is to

have retroactive effect is’ to apply a threshold test to

determine whether the decision establishes a new rule. If

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

tive. If it does not, no such testing is necessary as, pyr

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

law and the question of retroactivity is immaterial. For

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

the decision must either (1) overrule clear past precedent

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

ges | : sagt :

Under the first alternative of the test, a decision

constitutes a new constitutional rule if it overrules clear

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

Supreme Court reverse itself in order for there to be an .

overruling of clear past precedent. Such a requirement would

“not only be illogical but would also be violative of the

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

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

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

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

—————

ee

ae

-—<—<——=—

-————=—

a

Sie

*-

enforcement proccdurcs must be based to a great extent upon

circuit court decisions. Because of this necessity, a law

enforcement practice may develop and ‘ot amelie by court

approval for many years before it is reviewed by the Supreme

Court. Where such a rule is ultimately reversed by the

Court, the pronouncement is "new" simply by virtue of the

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

have not previously understood the new statement to be the

proper rule. Justice Blackmun recognized this principle,

noting specifically that the new pronouncement need not over-

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

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

Although’ the Court in O'Callahan did not

expressly overrule any prior decision, it

did announce a new constitutional princi-

ple, and it effected a decisicnal change

in attitude that had prevailed for many

decades.

Prior to Almeida-Sanchez, there was no indication

from any of the courts of appeals that searches at. fixed —

checkpoints were unconstitutional. Rather, the indication

was that such searches were constitutional, for 35 of 36 judges

who had considered the guestion in the three circuits involved

in enforcing the immigraticn laws eiong our Mexican border hac

upheld immigration stops and searches. Almeida-Sanchez v.

i

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

In addition to the numerous court pronouncements,

the statute pursuant to which the Border Patrol acted also

aonett eebbe 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 Almcida-Sanchez, that statute

cannot make a search conducted by a roving patrol reasonable

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

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

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

be it statutory or case law, guides law enforcement personnel

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

statutory and remained unassailed by the Supreme Court or :

circuit courts for twenty years. It was then limited by

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

be measured by the Constitution, a legally enacted statute

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

Where the constitutiocality of the statute has been repeatedly

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

law enforcement action. Prior statutory law should be treated

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

as applied to searches at fixed checkpoints, overrules ee

past precedent, both statutory and case law.

Under the second alternative of the threshold test,

a decision constitutes a new constitutional rule if it dis-

rupts a practice long accepted and widely relied upon. Here

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

sover a decade we have consistently and repeatedly upheld con-

4.

i victions based upon evidence seized during searches made at

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

ttionality of such searches been witetiandé” A law enforcemen:

practice authorized by our court for such an exten~-ive period

Se natiy satisfies the second alternative of the test. Under

.

seither alternative, Almeida-Sanchez is a new pronouncement.

We, therefore, must determine whether this new rule

should be applied retroactively to fixed checkpoints. As the

Constitution docs not mandate retroactive application,

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

judicially conceived guidelines to resolve the issue. The

tripartite test developed by the Supreme Court in numerous

decisions over the last decade was enunciated in Stovall v.

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

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

The Stovall test

requires that, before we apply new constitutional protections

retroactively, we consider the following three criteria:

(a) the purpose to be served by the new

standards, (b) the extent of the reliance

by law enforcement authorities on the old

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

ministration of justice of a retroactive

application of the new standards.

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

Criterion (a) of the Stovall test, the purpose

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

new pronouncement be applied retroactively only when the pro~

nouncement affects the "fairness of the trial--the very ios

tegrity of the fact-finding process."

381 U.S. at 639.

Linkletter v. Walker,

Since the legality of the search in no way

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

defendant is actually guilty of committing the crime, a pro-

nouncement requiring the suppression of such evidence serves

only as a procedural device to deter future improper police

conduct. See United States v. Calandra, U.S.

» (Jan. 8, 1974).

Such pronouncements generally should not be

i 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

i onal >

tts

We AN RA SE ERA OM PHTLE INEST:

RIE I RIM Ty IESG GN PRI NET RE TN

Ca, Oem we

a search, the new exclusionary rule will

not be given retrospective effect because

that purpose is not advanced by penalizing

conduct that has already occurred. The ex~-

clusionary rule in such cases, the Court

observed, was a procedural device to curb

illegal police action and not a rule af-

fecting the integrity of the process for

finding the innocence or guilt of an ac~

cused.

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

law enforcement officers on the old standards, is similar to

the second alternative of our threshold test. A careful

analysis demonstrates that law enforcement personnel justi-

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

not determine the constitutionality of searches at a fixed

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

applying Almeida-Sanchez to fixed checkpoints would overturn

Fad

our own Ninth Circuit precedents which stretch back over a

decade.

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

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

‘constitutionality of the statute and regulations authorizing

stops and limited searches at a fixed checkpoint. Appellant

Fernandez expressly specified as error:

1. Regulations sanctioning check points 70

miles within the United States are unconstitu-

tional and illegal per se, and are unconstitu-

tional and illegal as applied in this case.

2. The stopping of cars 70 miles within the

confines of the United States constitutes un-

constitutional and illegal search and is un-

lawful without probable cause.

3. Evidence discovered during a search fol-

lowing such illegal stopping of a car is

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

pressed.

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

pursuant to which the checkpoints were operated, were “clearly

constitutional." After reviewing extensive findings of fact

by the district court concerning the necessity of such check-

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

plied were “neither arbitrary nor capricious." We further

held that after the officers had legally stopped the car,

their detection of the odor of marijuana constituted probable

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

peatedly reaffirmed Fernandez, not only upholding the validity

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

sonable searches for aliens made without probable cause. In

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

ter reviewing Fernandez and a number of our other earlier

cases, we concluded:

What all of these cases make clear is

that probable cause is not required for an

immigration search within approved limits

but is generally required to sustain the

legality of a search for contraband in a

person's automobile conducted away from the

international borders.

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

the explicitness of our prior pronouncements, it would be

hard to find a clearer case justifying reliance on an old

standard. Immigration stops and searches at fixed checkpoints.

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

joyed ten years of continued and uninterrupted judicial ap-

proval. If the border patrol agents cannot rely upon a

statute supported by clear regulations which have repeatedly

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

approval, 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 U.S. 719, 731 (1966).

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

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

ol Vl UCU

Today's rulings were not foreshadowed in

our cases; no court announced such a re~

quirement .... Law enforcement authori-

ties 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 jus-

tice. The record before us is inadequate to indicate what

the effect would be in requiring probable cause or a warrant

for all prior stops and searches made at fixed checkpoints.

For example, it is impossible 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 in fiscal year 1973

alone, there were approximately 55,300 deportable aliens

apprehended at traffic checkpoints. United States v. Baca,

F.Supp. ’ (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 with-

out a warrant or probable cause, applied retroactively, would

create immense problems hindering the administration of jus-

tice. It is not inconceivable that thousands of convicted

criminals might have to be retried or set free. -

Nor do we believe, as has been contended, that

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

a@ifferent conclusion. There, retroactivity was applied to a

non-fact-finding aspect (double jeopardy). But the Court

clearly noted that it was creating an exception 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

. mow on direct appeal. These are the so-called “pipeline”

seer etme tt ts

F

Linkletter when the rule was directed “to collateral purposes

such as the deterrence of unlawful police conduct ...." Id.

at 509. They then specifically distinguished rules with

collateral purposes from the double jeopardy situation where

a defendant could possibly be punished twice for the same

crime. The obvious import of Robinson in reference to the

case before us is that where the purpose of the rule is the

deterrence of unlawful police conduct, the rule will be

prospective only.

The only remaining question is the date upon which

Almeida-Sanchez would become applicable to searches at fixed

checkpoints. Some would argue that there should be at least

a limited retroactivity, requiring us to apply the new rule

to those cases involving searches at fixed checkpoints that are

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 ma-

jority declined to apply the new rule either to the cases in

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

fore the Court on collateral attack. Only Justices Brennan

and Marshall supported the pipeline theory.

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

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

7

ing 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),

__ a

; \

would not be applicable to \esentenciny proceedings that ocm

\

curred prior to the date of the Pearce decision, even though

Payne's appeal was in the pipeline when Pearce was decided.

Justice Marshall, dissenting, concluded that “considerations

of fairness rooted in the Constitution {require] that cases

in the pipeline when a new constitutional 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 ¢x~

ceptions not applicable in this case, all "constitutional

rules of criminal procedure have been given prospective effect

only." 412 U.S. at 62 (footnote omitted). He noted that

limited retroactivity, as applicd in Linkletter (381 u.S. at

nt

4622], 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 crini-

nal procedure. In Johnson Vs New Jarsey- 384 U.S. 719 (1966),

decided only one year after Linkletter, 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

se NS ss.

that Johnson does not really deal with the pipeline theory be-

‘ee the case was before the Court on collateral attack.

But such an argument would ignore the fact that the Court ex-

'pressly announced that:

<a

{W]e do not find any persuasive reason to

extend Escobedo and Miranda to cases tried

r

4 before those decisions were announced, S

t even though the cases may still be on direct

t appeal.

IT

Sty U.S. at 733. Limited prospectivity, as the Court dis-

t cussed it in Johnson, is particularly suited for application

in this case. A majority of our court has agreed that

Almcida-Sanchcz as applicd to fixed checkpoints enunciatcs

a new rule of criminal procedure. The sole purpose for the

new rule is to detcr future police misconduct. United States

v. Calandra, U.S. (Jan. 8, 1974). Given this

ee me

conclusion, the new rule can reasonably be applied only to

convictions based upon searches conducted after the date of

the Almcida-Sanchez decision. Freeing Bowen from his con-

viction will not deter future police misconduct.

If the new constitutional ‘cide is designed to cor-

rect 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 convicted felon--caught

red-handed. The question is not whether they violated the

f

law, but rather whether they should be freed because the po-

= detected their violations through unconstitutional pro-

‘ cedures. We are applying the Almeida-Sanchez rule to searches

ahaa at fixed checkpoints only to deter these untonsti-

Fee procedures in the future. Our reason for applying

ee rule demonstrates that it should be applied prospectively

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

| because of the Court's apparent belief that to do otherwise

ee ee me ee) ee ee ree es +

would put the Court in the position of providing acvisory

BETO That policy is not enhanced or furthered by apply- .

, ing the rule to other cases on appeal. There is no compelling —

J -

* reason which requires that we overturn many convictions

smerely because the Supreme Court mandates that one must be

r overturned.

-

We conclude that any application of Almeida-Sanchez

aPrrwr =

to fixed checkpoints would be a new rule and under the Stovall '

test, it would have to be applied prospectively to searches

ee EN Re Wes ren Re

eepeesseepeeepesepeeBesseswbaus zs Ss & SBS

e ee ta ae ee

ol

ee

w

ae

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

————— TT

can be of no assistance to Bowen.

ee eee

AFFIRMED.

Judges Chambers, Koelsch, Wright, Trask, Choy and

Sneed concur in this majority opinion (Part II).

. eo?

WY

De a ek wart =a

tmited States v. Bowen = Part II

No. 72-1012

FOOTNOTES

1. 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). Whether this abridged test should be

applied in all cases. is unclear:

Ly?

United States v. Bowen - Part II

. —_ iz

Footnotes - 2

| 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 applica nonretroactively

must establish a new principle of law, cither

by overruling clear Past precedent on which

litigants may have relied, ... or by deciding

an issue of first impression whose resolution

was not clearly foreshadowed .... (Citations

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 de-

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

be applied retroactively because the issue in question was

directed to the fundamental fairness of double jeopardy rather

than directed “to collateral purposes such as the deterrence

of unlawful police conduct ...." 409 U.S. at 509. Although

one could argue that Waller was a "new" constitutional pro-

nouncement, 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 tqst to only part of the Pearce rule. The Court

Stated, without applying the Stovall test, that no new consti-

i

!

|

tutional rule was established by reguiring that resentencing

not be retaliatory and, thus, that rule would be available

United States v- Rowen - Part II

No. 72-1012 '

Footnotcs - 3

equally to ali defendants regardless of the date of their

sentencing. However, the Court applied the Stovall test to

the “prophylactic” limitations established in Pearce requir~

ing 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

Robinson indicates that other factors may also be relevant.

Perhaps the clearest example indicating that the Court

may apply a threshold test is Justice Blackmun's opinion in

Gosa v. Mayden, 413 U.S. 665 (1973), in which the Court de-

clined to apply the rule announced 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 cass to even consider the F

question of retroactivity. Although noting that the EIS,

case was a "clear break’ with the past,” the primary considera~

tion influencing Justice Blackmun to apply the Stovall test,

was the fact that the convictions under the prior rule ween:

not “so unfair as to be void ab initio.” 413 U.S. at 675.

Rather, O'Callahan created a prophylactic rule designed to —

'

enhance “a newly recognized constitutional principle." 413 i

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.

+ mmm

"if ~~ i 1

United States v. Bowen - racy Ir

DR CHEMMEE, (of c0s6s

Footnotes - 4

2. United States v. Barron, 472 F.24 1215 (9th Cir.), cert.

denied, U.S. (1973); United States v. Campos, 471

F.2d 296 (9th Cir. 1972); United States v. Aranda, 457 F.2d

761 (9th Cir. 1972); Mienke 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 7.24 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 _ — 1965); Pernandez v. United States, 321 F.2d

283_(1963); Contreras v. United States, 291 F.2d 63 (9th Cir.

1961); Cervantes v. United States, 278 F.2d 350 (9th Cir.

1960).

3. See cases cited in note 2, supra.

4. ‘Apparently, the Court has adopted a position of limited

prospectivity, rather’ than pure subabieveine; on the rational

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 v.8. 293, 301 (1967).

There has been some criticism of this rationale, [see, e.9-,

1B 3. 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 sane 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

esses & &

esexeeseeeses &

w

—

United Statcs v- Bowen ~“vart Ii .

Footnotcs ~ 5

reason for the Court's adoption of limited prospectivity in

cases involving new rules of criminal procedure may be that st

the new rule is not applied to the defendant 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).

5. Justice Marshall stated:

Linkletter v- Walker, 381 U.S. 616 ;

(1965), giving 4 ted retroactive effect.

to Ma vy. Ohio, 367 U.S- 643 (1961), is an

anounly at odds with the Court's subsequent

treatment of problems of retroactivity and

can be explained only by the Court's un-

familiarity with those problems when the

case was decided. See also Johnson V- ,

New Jersey, 384 U.S. 719 (1966) - BP

.

‘

412 U.S. at 62 n.5-

6. See note 4, supra.

{Part II}

GOODWIN, Circuit Judge, concurring and dissenting:

Believing that the legal history of roving patrols

is fundamentally different from the legal history of fixed-

checkpoint searches, I concur in that part of Judge Wallace’

opinion in Part II which limits the holding of Part I to

searches conducted after June 23, 1973. While a roving-

patrol search, supported by neither warrant nor probable

cause, was not upheld by this circuit until 1970 (United

States v. Miranda, 426 F.2d 283 (9th Cir. 1970)), a mere

two years before certiorari was granted in Almeida-Sanchez

(406 U.S. 944 (1972)), fixed-checkpoint searches enjoyed

judicial approval at least since 1963 (Fernandez v. United

States, 321 F.2d 283 (9th Cir. 1963)) and apparent statu~

tory authorization since 1946 (Act of Aug. 7, 1946, ch. 768,

60 Stat. 865). Our rejection of fixed-checkpoint searches

therefore “marks a sharp break in the web of the law,”

Milton v. Wainwright, 407 U.S. 371, 361-82 n.2 (1971) (dis-

senting opinion of Stewart, J.), sufficient to deny retro-

active application.

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 con-

viction and remanded the case for reconsideration in light

of Almeida-Sanchez. Now, we tell Bowen that he was right,

that searches at fixed checkpoints, supported by neither

a warrant nor probable Zine, are unconstitutional. Yet,

we also tell him that because of a judicially created rule

of nonretroactivity, he cannot take advantage of a ruling

Opinion of Goodwin, J., concurriny

in and dissenting to Part II -

)

}

which he has fought for two ycars to obtain. However,

regardless of the nonretroactivity of our newly announced

rule on fixed checkpoints, as the moving party in the case

in which this new rule has been announced, Bowen is fully

entitled to its protection. To prevent having our determina

tion in Part I stand as mere dictum, as well as to comply

with the “case or controversy” requirement of Article III

of the Constitution, we must allow Bowen to benefit from

our constitutional determination. See Stovall v. Denno,

388 U.S. 293, 301 (1967). See also Desist v. United States,

394 U.S. 244, 254-55 n.24 (1969).

Judges Merrill, Browning and Duniway concur in

this concurring and dissenting opinion. .

‘epee

“a

Opinion of Goodwin, J., concur-

No. 72-1012, Bowen

HUPSTEDLER, Circuit Judge, with whom Judge Ely concurs,

concurring in part I and dissenting from part ITI, of the

opinion of the Court:

I cannot concur in the opinions confining the

Almeida-Sanchez rule to searches occurring after June 21,

1973, with or without an exception for Bowen himself, when

the locale of the search was a fixed checkpoint that was not

the functional equivalent of an international border.

My brothers and I agree that no retroactivity issue

arises unless AlmeidarSanchez renee a new rule marking “a

sharp break in the web of the law." We are also in agree-

ment that Almeida-Sanchez announced no new Supreme Court

rule and that it signaled no break at all in the consti-

tutional principles stated by the ie Injection of the

retroactivity issue in the opinions of ay brothers Wallace

and Goodwin rests on two assumptions: 1) Congress, the Ninth

Circuit, and the Immigration and Naturalization Service, prio.

to Almeida-Sanchez, had long agreed that automobile searches

conducted by personnel of the Service at fixed checkpoints

1/ The phrase is taken from Mr. Justice Stewart's dissent~

ing opinion in Milton v. Wainwright (1972) 407 U.S. 371i,

381-82 n.2. See Desist v. United States (1969) 394 U.S.

244, 248 (“clear break with the past").

2/ “No claim is made, nor could one be, that the search

of the petitioner'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 automobil<

travellers could be stopped and their vehicles searched “in

crossing an international boundary because of national self

protection reasonably requiring one entering the country to

identify himself as entitled to come in, and his belongings

as eff-cts which may be lawfully brought in." (Id. at 154.)

But nothing in Carroll, or in any other Supreme Tourt decisic

even implicd that, for Fourth Amendment purposes, the G»vern-

ment could create portable boundaries or affix artificial

borders wherever it chose.

that were not functional equivalents of international boundar-

ies should be treated as if they were such “border searches,"

thus climinating the Fourth Amendment's requirements of a

warrant and probable cause, and (2) for retroactivity purposes,

the weavers of the constitutional law web are not limited to

the members of the Supreme Court, but also include Congress,

the lower federal courts, and the personnel of the Immigration

and Naturalization Service. The first assumption is inaccurate¢

as a matter of fact; the second is wrong as a matter of law.

My brothers correctly state that the Immigration and

Waturalization Service began establishing fixed checkpoints

some distance from international boundaries in 1929. The

informati-n before us about those checkpoints is fragmentary.

We do not know how many there were, where they were located,

or which, if any of them, qualified as functionally equivalent

to international boundaries. We also lack information about

the kinds of searches, if any, that were conducted at them.

However, we do know that any vehicle. searches that were aadanks

taken at points other than inte national boundaries were with-

out color of statutory authority until 1946 when Congress

enacted the precursor of 8 U.S.C. § 1357. (See Act of Aug. 7,

1946, ch. 768, 60 Stet. 865.)2/ Aithough Congress thus

))

3/ Congressional objectives in enacting the statute

were stated in a letter from Attorney General Francis Biddle

to the Chairman of the House Committee on Immigration and

Naturalization that was incorporated in the Committee's Report

and adopted by its Chairman as “quite completely" explaining j

the purposes of the bill. The letter clearly indicated that j;

the Attorney General and the Committee believed that the Tumi- |

gration and Naturalization Service lacked statutory authority ~

to conduct searches away from the boundaries of the United

States:

“HOH. SAMUEL DICKSTEIN,

Chairman, Committee on Immigration and Naturalization

llouse 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

(FOOTHOTE 3/ CONTINUED ON FOLLOWING PACE)

il

4

Ss

seuss Ss kResesee sss

(FOOTHOTE 3/ CONTINUED)

the law relating to the authority of certain employees of

the Immigration and Naturalization Service to make arrests

without warrant in certain cases and to search vehicles.

Under existing law arrests of aliens may be made without

warrant only if the alien is entering or attempting to enter

the United States in the presence or view of the arresting

officer (43 Stat. 1049; 8 U.S.C. 110). Aliens illegally in

the United States may be arrested only pursuant to a warrant

issued by the Immigration and Naturalization Service. This

limitation is cumbersome and at times results in frustrat-

ing, the ends of justice. The power to make arrests in such

cases without a warrant should be conferred on personnel of

the Immigration and Haturalization Service with a restric-

tion that an alien so taken into custody should be accorded

a hearing without unnecessary delay.

It is also desirable to confer upon personnel of the

Immigration and Naturalization Service the power of arrest

in cases of violations of immigration laws, subject to the

same limitations as those generally imposed on the right

of an officer to make an arrest. a

Existing law (43 Stat. 1049; 8 U.S.C. 110) confers on

personnel of the Service the right to search vessels and

vehicles for aliens being brought into the United States.

This authority should be extended to cover aircraft, in

the light of recent developments in aircraft transportation.

In the enforcement of the immigration laws it is at

times desirable to stop and search vehicles within a reason~

able distance from the boundaries of the United States and .

the legal right to do so should be conferred by law. ‘

The bill under consideration embodies the foregoing

suggestions and is similar to a bill (H.R. 5464, 78th Cong.)

which was introduced at my request and was passed by the

House of Representatives on December 4, 1944.

: Accordingly, I recommend the enactment of the legisla-

tion.

I have been informed by the Director of the Bureau of

the Budget that there is no objection to the submission of

this report.

Sincerely yours,

FRANCIS BIDDLE, Attorney General.”

H.R. Rep. No. 186, 79th Cong., 24 Sess. (1945), 1946 U.S.

Code Cong. Service 1414, 5

eventually authorized checkpoint searches by Immigration and

Naturalization personnel, congressional attention never focuse<

on the constitutional difficulties engendered by the movable

border concept that was included in section 1357. (See, e.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 4

comprehensive, critical analysis of the differences between

searches at international boundaries and those conducted some

distance from the border; 4/ rather, the law concerning check-

point and roving patrol searches developed on a case-by-case

basis, following the practice so familiar in other Fourth

Amendment contexts. The end product of the evolution in this

circuit was that section 1357 became a justification for the

initial stop of a vehicle and the preliminary interrogation

of the occupants at either a fixed checkpoint or elsewhere .

within a reasonable distance of the border; but probable cause

was still required to validate a warrantless search of the

vehicle, at least if the search went beyond that reasonably

4/ When customs officers at a distance from the border

conducted warrantless searches for narcotics, rather than

for aliens, our circuit refused to uphold the searches in

the absence of probable cause. (E.f., Contreras v. United

States (9th Cir. 1961) 291 F.2d 63.) The Government's

arpument that 26 U.S.C. § 7607 eliminated the traditional

probable cause requirement was rejected as contrary to the '

Fourth Amendment. (E.f., Plazola v. United States (9th Cir.

1961) 291 F.2d 56, sa85") 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 233.

a

- os ww

seeseeRreesepesesesesesesses Sk KB KERB BO BlUhETCUCOrCrlUlUhrH FH

an examination of Ninth Circuit cases reveals that fixed

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 pert from

searches actually conducted at international boundaries. The

latter were treated as they always had been: no warrant and

no probable cause were required to validate a thorough, full-

scale search of the vehicle and its contents. The validity

of warrantless, non-boundary “border searches” conducted

without probable cause, on the other hand, was limited both

in scope and in object.

Of perhaps greater moment for our retroactivity analysis,

checkpoint searches fared neither better nor worse than

searches conducted at temporary checkpoints or by roving

”-

5/ We considered numerous cases involving alien searches

conducted a substantial distance from an international border.

A few, however, are illustrative of the development of the

law in our circuit. In Fernandez v. United States (9th Cir.

1963) 321 F.2d 283, appellant was stopped at a fixed check-.

point by customs inspectors looking for aliens. Probable

cause to believe marihuana was concealed in the vehicle

developed during the stop. The constitutionality of 8 U.S.C.

§ 1357 was upheld, and the statute was applied to justify

the initial stop of appellant's vehicle. Barba-Reyes v.

United States (9th Cir. 1967) 387 F.2d 91 involved a stop

and search similar to that in Fernandez. Again, the stop was

ustified under section 1357, and probable cause to search

jas found to exist following the stop. In United States v.

Marin (9th Cir. 1971) 444 F.2d 86, a roving patrol stopped

appellant's vehicle three miles from the border. The stop

was upheld under section 1357; marihuana was discovered in

plain view. The search at a fixed checkpoint in Valenzuela-

Garcia v. United States (9th Cir. 1970) 425 F.2d 1170 was

invalidated, however, because the search extended to an area

too small to hide aliens and there was no probable cause to

believe that contraband was hidden in the vehicle. Accord,

Uaited States v. Lujan-Romero (9th Cir. 1972) 469 F.2d 683.

The development of “alien” searches followed a similar

pattern in the Tenth Circuit. CBs United States v.

Anderson (10th Cir. 1972) 468 F. 1280; United States v.

McCormick (lOth Cir. 1972) 468 F.2d 68; see Roa-Rodriquez v.

United States (10th Cir. 1969) 410 F.2d 1206.) But the Fifth

Circuit created an expandible border concept that had only

tanpential relationship to the law emerging from the Ninth and

Tenth Circuits. (E.g., United States v. McDaniel (5th Cir.

1972) 463 F.2d 129; rsh v. United States (5th Cir. 1965)

3464 #.2d 317.)

patrols away from the border. Im all of, these cases we ©

approved initial stops pursuant to section 1357 and limited

the scope of subsequent search activity. (See note 5 supra.)

The assumption of my brothers that full-scale international

boundary-type vehicle searches conducted at fixed checkpoints

located away from the border had received long-continued

judicial approval is not supported by the facts; my brothers’

conclusion that Almcida-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 consistently

upheld these alien searches at fixed checkpoints, however,

that fact would not be pertinent to deciding whether retro-

activity is in issue.2/ For this purpose, the only “old”

and “new” law that is relevant is the constitutional law

enunciated by the Supreme Court. (See Robinson v. Weil (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 burdens of the

Supreme Court, and erode the power of the Supreme Court as

the ultimate arbiter of constitutional law.

These disturbing consequences might not occur if all

circuits simultaneously decided constitutional questions and

always decided them the same way. But they do not. The

question of the constitutionality of fixed checkpoint searches |

at issuc in the case at bench provides an excellent illustra-

tion of the problems that can arise under my brothers’ views.

The issue arose at different times with different frequency

6/ 1 fully recopnize that if the retroactivity doctrine

were properly in issue, lower court decisions and law enforce-

ment officers’ reliance upon them would be relevant considera-

tions in deciding, whether to apply a particular Supreme Court

if “age retroactively. (E.g., Stovall v. Denno (1967) 388

” '

| in some circuits and in otners did not arisé at all. In the

FR Be BBR ee ee

circuits where the issuc was never decided, did Almcida-

Sanchez state a "new" rule? Is a single decision 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 nonretro-

active in the forner?_/ To prevent restrictions on the

retroactivity 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 constitutional

issues?2/ ;

Even when the retroactivity concept is confined exclu-

sively to law stated by the Supreme Court, difficult jurispru-

dential problems are generated. (See, @-f-, Desist v. United

States (1969) 394 U.S. 244, 256-69 (Marlen, J., dissenting) .)

To extend the concept to embrace the law of the circuits

would turn confusion into wines © / - Uy} Mi

7/ Even a clarifying Supreme Court decision would not

necessarily prevent retroactivity problems from arising. For

example, in light of Almeida-Sanchez, the Fifth Circuit has

invalidated a search conducted at a checkpoint located 65 to

75 miles north of the Mexican border. (United States v.

Speed (Sth Cir. 1973) 489 F.2d 478.) If the views expressed

in my brother Wallace's dissenting opinion concerning the

applicability of Almeida-Sanchez to fixed checkpoints had

pained the adherence of a majority of our court, would a sub-

sequent decision by the Supreme Court affirming the Fifth

Circuit decision create new law for the Hinth Circuit, while

merely confirming old law in the Fifth?

unappealed district court decisions also produce old law. Yet!

courts?

United States v. Bowen 72-1012

CHAMBERS, Circuit Judge, concurring and dissenting:

I concur and dissent as indicated above.

I adhere to ny original posttion that thes@—_

Almeida-Sanchez case: should not have béen taken en banc.

y,

See United States v. Bowen, F.2d °

-Lpiucd Wbleabe)

ates cuit Judge

—

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bv YO © e@ RB A em hk eh Pe

PE ce NEE ER Pe me

AMENDMENT IV - UNITED STATES CONSTITUTION

The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches and

seizures shall not be violated and no warrants shall issue but

upon probable cause supported by oath or affirmation, and par-

ticularly describing the place to be searched and the person or

things to be seized.

§ 1357. rowers of immigration officers and employees.

Powers without warrant

(a) Any officer or employee of the Service authorized under regy.

lations prescribed by the Attorney Gencral shall have power with

warrant— 4

(1) to interroga'< any alien or person believed to be an alicn

as to his righi to be or to remain in the United States;

(2) to arrest any alien who in his presence or view ia entering

or attempting to enter the United States in violation of any law

or regulation made in pursuance of law regulating the admi..

sion, exclusion, or expulsion of aliens, or to arrest any alien in

the United States, if he has reason to belicve that the alien »«

arrested is in the United States in violation of any such law or

regulation and is likely to escape before a warrant can be ob

tained for his arrest, but the alien arrested shall be taken with-

out unnecessary delay for examination before an officer of the

Service having authority to czamine uliens as to their right to

enter or remain in the United States;

(3) within a reasonable distance from any external boundary

of the United States, to board and search for aliens any vexart

within the territorial waters of the United States and any rail-

way car, aircraft, conveyance, or vehicle, and within a distance

of twenty-five miles from any such external boundary to have

access to private lands, but not dwellings, for the purpose of

patrolling the border to prevent the illegal entry of aliens inte

the United States; and

(4) to make arrests for felonies which have been committed

and which are cognizable under any law of the United States

regulating the admission, exclusion, or expulsion of aliens, if

he has reason to believe that the person so arrested is guilty of

such felony and if there is likelihood of the person escaping be-

fore a warrant can be obtained for his arrest, but the persoe

arrested shall be taken without unnecessary delay before thr

nearest available officer empowered to commit persons charred

with offenses against the laws of the United States. Any such

employee shall also have the power to execute any warrant or

other process issued by any officer under any lew regulatior

the admission, exclusion, or expulsion of aliens.

**

APPENDIX “D"

© onw owe w wD

ae . —_

Seore® whtbeut warrest

(ce) Any officer or employee of the Service authorized and dcsig-

ested under regulations prescribed by the Attorney General, whether

intividually or as one of a class, shall have power to conduct a

«arch, without warrant, of the person, and of the personal effects in

the possession of any person secking admission to the United States,

wncerning whom such officer or employee may have reasonable

reuse to suspect that grounds exist for exclusion from the United

Mates under this chapter which would be disclosed by such search.

8. C.F.R. §287.1(a) (2)

Reasonable Distance.

The term “reasonable distance” as used in Section 287

(a) (3) of the Act, means within 100 air miles from any external

boundary of the UnitedStates or any shorter distance which may

be fixed by the District Director, or so far as ‘the power to board

and search aircraft is concerned, any distance fixed pursuant to

paragraph (b) of this section.

APPENDIX "p" continued

oor oanarua wn 1

ab FS

eee

a on

17

ee ee ee cet OM Veh

Attorneys for__De fendent

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA,

(HON. GORDON THOMPSON, JR.)

UNITED STATES OF AMERICA, ] Criminal No. 12962

Plaintiff, POINTS AND AUTHORITIES IN

SUPPORT OF MOTION TO SUPPRESS

vs. . : tm

ROBERT LEE HENDRIX,

Defendant.

FACTS

On March 17, 1972 at approximately 12:45 A.M., the

defendant, who was driving a 1962 Buick, bearing California

license number 397 DJA stopped at the border patrol checkpoint on

Highway 86, seventeen (17) miles northwest of Westmoreland,

California. The rear of the vehicle appenre’ to be lower than

normal and a search of the trunk by border patrol agents revealed

295 kilos of marijuana in plain view.

: The defendant is a twenty-one (21) year old negro and

the vehicle contained no markings or other indications that it had

crossed the berder recer..iv or at any other time. There was no

evidence that the defendant was not an American citizen and he was

not even asked if he had crossed the border. There was no warrant

to search and no consent by the defendant.

///

APPENDIX * E"

Y D. STEWARD MAY 15 1972

Tog ete wt bine come

Assistant U. S. Attorney en

Chief, Criminal Division Seruty

CATHERINE A. CHANDLER .

{Assistant U. S. Attorney

U.S. Courthouse, Annex A

325 West F Street

San Diego, California 92101

Telephone: 293-5675

Attorneys for Plaintiff, |

United States of America.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

Criminal Case No. 12962-cT

OPPOSITION TO MOTION TO

SUPPRESS

Ve

ROBERT LEE HENDRIX,

Defendant.

ee et ee et eet eet ee ee ee

SEBBBNBRRRBBRBBERBH BBR ERBRE Be warananwn ne

Comes now the Plaintiff, UNITED STATES OF AMERICA, in resp

and opposition to defendant Robert Lee Hendrix's motion to suppre

evidence. Said opposition is based on the files and records of t

instant case together with the attached statement of facts and

memorandum of points and authorities. ;

Respectfully submitted,

HARRY D. STEWARD

~ United States Attorney

STEPHEN G.. NELSON

Assistant U. S. Attorney

Chief, Criminal Division

(ler (Wawdle,—

CATHERINE A. CHANDLER

Assistant U. S. Attorney

CAC:njd

5-15-72

APPENDIX “E“ continued

— 7 a rN

On March 17, 1972, at approximately 12:45 a.m., Robert Lee

oo

Hendrix approached. the U. 8. Border Patrol checkpoint on Highway 86

°

north of Westmoreland, California, driving a 1962 Buick Sedan. Border

1 [patrol Agent Steven West received a declaration of U. S. citizenship

12 | from Hendrix and requested him to open the trunk for a routine

3 immigration inspection. West had observed the vehicle to be riding

14 liow in back when it approached the checkpoint. Hendrix tried to

15 open the trunk with a single key he had taken from the ignition.

16 He then stated the car belonged to his cousin and the key would not

17 fit. Agent West ‘aiee Hendrix to pull the car to the side of the

road and remove the back seat in order to complete an inspection of

a

the trunk. After the seat was removed by Hendrix, Agent West was

in the trunk.

18

19

20 able to see cellophane and paper kilo packages of marihuana loose

yal ‘

==

APPENDIX “E" continued

le ge ta

*

é

el

}

<5

78

IN THE UNITED stars count or arnifisl LED

FOR THE NINTH CIRCUIT qn 131973

; . R. MATHEWS,

UNITED STATES OF AMERICA, PL, $& COURT OF APP

Plaintiff-Appellee,

ee ee en "No. 73-1523

RICHARD LEE HENDRIX, :

<. Defendant-Appellant.

Before: BARNES ang GOODWIN, Circuit Judges, and

KELLEHER, District Judge.

ORDER

This appeal will stand submitted when the \

Supreme Court determines the case of United States

v. Almeida-Sanchez, 452 F.2d 459 (9th.Cir. 1971) »

cert. granted, 406 U.S. 944 (May 22, 1972); or until

further order of this Court. eR ah

O° ‘ c ea ge

Honorable Robert J. Kelleher, United States District

Judge for the Central District of California, sitting

by designation, ae

. .

.