# Appendix — Hendrix v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0775%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 422 U.S. 1056 ## Text _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 mis = . vat = BS Be Bs & 5 8 & * % » -r oo 2? 2? * Be aoe BA OEE EE al ak 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- 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: ! 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 — _ < 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 . . . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0775%3A2. Public record. Not legal advice.