Appendix — Bowen v. United States
Supreme Court brief1975
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DATE
1973
FILINGS—PROCEEDINGS
‘April 19
April 26
1974
May 9
May 9
May 9
June 3
June 17
June 26
Oct. 25
Filed Order (C) granting leave to file aple’s add’l
authorities. cs
Filed aplt’s response to additional authority filed
by aple on 4/18/74. (to all active judges), cl
ORDERED (PER CURIAM) OPINION FILED
& PART I GOODWIN OPINION FILED &
JUDGE WALLACE DISSENTING PART I
OPINION & JUDGE WALLACE PART II OPIN-
ION & JUDGE GOODWIN PART II CONCUR-
RING AND DISSENTING OPINION FILED &
JUDG TO BE FINAL & ENTD etc
Filed opinion—Affirmed
Filed & Entered Judgment (jn)
ISSUED JUDGMENT TO CLERK OF DISTRICT
COURT
Filed SC notice re: filing cert 6/7/74 SC #78-6848
tj
Recvd aplt’s letter and notification of docketing
case with the Supreme Court.
Filed cert copy SC Order (10-15-74) granting peti-
tion for cert. sw
FOLD OUT IS TOO LARGE TO BE FILMED
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
November 1970 Grand Jury
No. 10576 Criminal
[Filed Jan. 27, 1971, Clerk, U.S. District Court, Southern
District of California, Cynthia M. Freeman]
UNITED STATES OF AMERICA, PLAINTIFF
v.
JOHN LEE BOWEN, DEFENDANT
INDICTMENT
Title 21, U.S.C., Sec. 176a—Smuggling and Transporting
Marihuana; Title 21, U.S.C., See. 381(q) (3) (B) —Pos-
session of Depressant and Stimulant Drugs
The Grand Jury charges:
COUNT ONE
On or about January 19, 1971, within the Southern
District of California, defendant JOHN LEE BOWEN,
with intent to defraud the United States, knowingly
smuggled and clandestinely introduced into the United
States from Mexico approximately 356 pounds of mari-
huana, which marihuana should have been declared; and
knowingly imported and brought into the United States
from Mexico said marihuana contrary to law, in that
said marihuana had not been presented for inspection,
entered and declared as provided by United States Code,
Title 19, Sections 1459 and 1461; in violation of Title
21, United States Code, Section 176a.
RPR:mr
1-26-71
24
COUNT TWO
Title 21, U.S.C., Sec. 176a
On or about January 19, 1971, within the Southern
District of California, defendant JOHN LEE BOWEN,
with intent to defraud the United States, knowingly re-
ceived, concealed, and facilitated the transportation and
concealment of, approximately 356 pounds of marihuana,
which marihuana, as the defendant then and there well
knew, had been imported and brought into the United
States contrary to law, in violation of Title 21, United
States Code, Section 176a.
¢ COUNT THREE
Title 21, U.S.C., Sec. 331 (q) (3) (b)
That on or about January 19, 1971, within the South-
ern District of California, defendant, JOHN LEE BOW-
EN, did willfully and knowingly possess 158 benzadrine
tablets in violation of Title 21, United States Code,
Section 331(q) (3) (B) and 360a(C) (2).
A TRUE BILL:
/s/ Carl White
Foreman
/s/ Harry D. Steward
HarrY D. STEWARD
United States Attorney
By /s/ [Illegible]
25
Law Offices
NASATIR, SHERMAN & HIRSCH
Suite 806
9720 Wilshire Boulevard
Beverly Hills, California 90212
Telephone (218) 278-4584
Attorneys. for Defendant
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
No. 10576
[Filed Jul. 28, 1971, Clerk, U.S. District Court, South-
ern District of California. By [Illegible], Deputy Clerk]
UNITED STATES OF AMERICA, PLAINTIFF
v8.
JOHN LEE BOWEN, DEFENDANT
NOTICE OF MOTION AND MOTION TO SUPPRESS EVIDENCE
PURSUANT TO RULE 41 OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE
To The Clerk Of The Above-Entitled Court And To The
United States Attorney For The Southern District Of
California:
PLEASE TAKE NOTICE that on August 9, 1971, at
the hour of 1:30 P.M., in the United States District
Court, Courtroom No. 1B, United States Courthouse,
325 West “F” Street, San Diego, California, defendant
JOHN LEE BOWEN will move to suppress all evidence
obtained by law enforcement officers in the above-entitled
case.
Said motion will be made on the ground that the search
and seizure of all evidence in the above-entitled case
violated defendant’s rights under the Fourth and Fifth
Amendments to the United States Constitution, as well
as his rights under Federal and State Law.
26
Said motion-will be based upon the files and records in
this case, this Notice of Motion and Motion, the Affidavit
of John Lee Bowen submitted herewith, and the Memo-
randum of Points and Authorities attached hereto.
DATED: July 26, 1971.
Respectfully submitted,
/3/ Michael D. Nasatir
MICHAEL D. NASATIR of
NASATIR, SHERMAN & HIRSCH
Attorneys for Defendant Bowen
~~ om ——
27 |
AFFIDAVIT OF JOHN LEE BOWEN
STATE OF CALIFORNIA )
8s.
CouUNTY OF LOS ANGELES )
JOHN LEE BOWEN, being first duly sworn, hereby
deposes and says:
1. That he is the defendant in the above entitled
action.
2. That on or about January 19, 1971, affiant had
been lawfully present in a 1970 Ford Pickup Camper on
highway 86 near Salton City. At approximately 10:00
P.M. agents of the Federal Government conducted a
search of this camper without a search warrant.
3. Affiant is informed and believes, and in reliance
thereon alleges that said search was without probable
cause; without lawful warrant as required by the Con-
stitution of the United States; and violated defendant’s
rights under the Fourth Amendment to the United States
Constitution.
DATED: June 8, 1971. |
. /8/ John Lee Bowen
JOHN LEE BOWEN
Affiant
SUBSCRIBED AND SWORN to before me this 8th day
of June, 1971.
/s/ Victor Sherman
Notary Public
[SEAL]
Official seal, Victor Sherman, Notary Public—California.
Principal office in Los Angeles County.
My Commission Expires May 10, 1974
28.
MEMORANDUM OF POINTS AND AUTHORITIES
I
THE SEARCH OF DEFENDANT'S VEHICLE
VIOLATED HIS RIGHTS UNDER THE CON-
STITUTION AND LAWS OF THE UNITED
STATES AND ALL EVIDENCE GAINED THERE-
FROM MUST BE SUPPRESSED.
In Carroll v. United States, 267 U.S. 132, 154, Chief
Justice Taft said:
“Travelers may be so stopped in crossing an in-
ternational boundary because of national self-pro-
tection reasonably requiring one entering the country
to identify himself as entitled to come, and his be-
longings and 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.”
Absent constant surveillance of the vehicle from the
time it crosses the border to the time of search, see
Castillo-Garcia v. United States, 424 F. 2d 482 (1970),
a search of a vehicle may not be upheld as a “border”
search which allows a vehicle to be entered without prob-
able cause. See Contreras v. United States, 291 F. 2d 68
(1961). Thus, without any history of suspicious be-
havior at the border followed by surveillance or pursuit,
the government must justify the search on the ground that
it was reasonable under the circumstances; that is, that |
the immigration inspector had probable cause to conduct |
the search. Cervantes v. United States, 263 F. 2d 800
(9th Cir. 1959).
The Court in Cervantes, supra, held that while the car
was legally stopped in order to determine the nationality
of its occupants, the subsequent search of that car could
not be justified under the rubric of “probable cause.”
29
In Valenzuela-Garcia v. United States, 425 F. 2d 1170
(1970), the Court held that although the driver of a
car appeared nervous and showed a temporary alien
pass to the inspector, there was not sufficient probable
cause to allow a search of the vehicle. The Court cited
Contreras, supra, and emphasized that where there was
no logical connection between the examination of the
vehicle and the determination of the driver’s citizenship
of any other occupant of the car, and absent probable
cause, the search must be found unlawful and the evi-
dence suppressed. In Roa-Rodriguez v. United States,
410 F. 2d (1969), immigration inspectors had arrested
@ non-resident alien about 90 miles north of the Mexican
border. Noting that this was not a border search by
customs officers at a point of entry or checkpoint, and
that there were no suspicious actions by the occupants
of the car at the border or otherwise, and no hot pursuit
from the border, the Court held that a subsequent search
violated the Fourth Amendment to the Constitution. The
Court emphasized that the immigration inspectors were
justified in stopping the car but not in conducting a
general search for law violations. Citing Plazola v.
United States, 291 F. 2d 56 (9th Cir. 1961), and Con-
treras V. United States, supra.
II
CONCLUSION
For the reasons cited above, the evidence obtained in
the warrantless search of defendant’s vehicle must be
Suppressed, and the indictment dismissed.
DATED: July 26, 1971.
Respectfully submitted,
/8/ Michael D. Nasatir
MICHAEL D. NASATIR of
NASATIR, SHERMAN & HIRSCH
Attorneys for Defendant
HArrY D. Stewarp
United States Attorney
ROBERT H. FILSINGER
Assistant U.S. Attorney
Chief, Criminal Division
SHELBY R. Gort
Assistant U.S. Attorney
U.S. Courthouse
825 West F Street
San Diego, Calif. 92101
Telephone: 293-5619
Attorneys for Plaintiff,
United States of America.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 10576 Criminal
[Filed Aug. 6, 1971,\Clerk, U.S. District Court, Southern
District of California. By Cynthia M. Freeman, Deputy]
UNITED STATES OF AMERICA, PLAINTIFF
Vv.
JOHN LEE BOWEN, DEFENDANT
OPPOSITION TO MOTION TO SUPPRESS
Comes now the Plaintiff, UNITED STATES OF
AMERICA, in opposition to the defendant’s motion to
suppress. Said opposition is based on the files and records
31
of this case as well as on the attached statement of
facts and points and authorities.
DATED: August 6, 1971.
/8/
SRG/lld
8-6-71
Respectfully submitted,
HARRY D. STEWARD
United States Attorney
ROBERT H. FILSINGER
Assistant U.S. Attorney
Chief, Criminal Division
Shelby R. Gott
SHELBY R. Gort
Assistant U.S. Attorney
i)
STATEMENT OF FACTS
At about 10:00 p.m. on January 19, 1971, the defend-
ant, John Lee Bowen, arrived at the regularly established
immigration checkpoint on Highway 86, near Salton.
City, California, as the driver and sole occupant of a
rented 1970 Ford pickup with a | camper.
While checking the interior (of the camper for illegal
aliens, the officers detected the odor of marihuana.
Further search of the camper revealed 162 kilogram
packages of marihuana under the mattress in the forward
portion of the camper. The marihuana was also covered
with burlap bags that were from Mexico.
Search of Bowen’s clothing incidental to the arrest
disclosed 158 benzedrine tablets in his jacket pocket.
POINTS AND AUTHORITIES
Immigration officers are empowered by statute to stop
and search vehicles for aliens without probable cause
' within 100 air miles from any external boundary of the
' United States.
_ Title 8, United States Code, Section 1357(a) (3);
Title 8, C.F.R., 287.1;
Fernandez v. United States (9th Cir. 1963), 321
F.2d 283; '
Miranda v. United States, 426 F.2d 283 (9th Cir.
1970); |
Fumigali v. United States, —— F.2d —— (9th Cir.
1970).
If while performing these duties they smell the odor
of marihuana, the officers then have probable cause to
search for the marihuana. A
Fernandez v. United States, swpra.
_ ' CONCLUSION
i
The motion to suppress should: be denied.
i
Toe TN eg eT oP e:
33
[5] SAN DIEGO, CALIFORNIA;
- MONDAY, AUGUST 23, 1971
AFTERNOON SESSION
THE CLERK: 21 on calendar, 10576, U.S. vs. John
Lee Bowen, for hearing motions.
MR. GOTT: Shelby Gott, in that matter.
(Discussion off the record.)
MR. NASATIR: Michael D. Nasatir for Mr. Bowen,
your Honor.
THE COURT: Let’s proceed.
MR. NASATIR: Your Honor, I believe it will be stipu-
lated between the Government and defense that there
was no warrant in this case, in which case it is the
vernment’s burden.
| THE COURT: All right. You may proceed, Mr.
Gott, with your evidence.
MR. GOTT: Yes.
May it please the Court, very briefly, this is a Border
‘Patrol check point case. I will call as my first witness
Frank Ortmeier.
MR. NASATIR: Your Honor, I believe there are
other witnesses in the courtroom. I would ask that they
be excluded.
THE COURT: They may be excluded. Would you
[6] please step outside before you are called.
FRANK R. ORTMEIER,
called as a witness by and on behalf of the Government,
having been first duly sworn, was examined and testified
as follows:
THE CLERK: Would you take the stand, state your
full name and spell your last name for the record, please.
THE WITNESS: Frank R. Ortmeier, O-r-t-m-e-i-e-r,
34
DIRECT EXAMINATION
BY MR. GOTT:
Q. Who do you work for?
A. Border Patrol in El Centro.
Q. How long have you been so employed?
A. Approximately four and a half years.
Have you ever had occasion to meet a person you
now know. as John Lee Bowen?
A. Yes, sir.
Q. What date and time did you first meet Mr. Bowen
if you recall?
A. About 10:05 p.m. on January 19 of this year.
Q. And what specifically were you doing when you
first met Mr. Bowen?
[7] A. We were—my partner and I were holding down
an Immigration check point at the junction of State
Highway 86 and 78, which is between Brawley and Indio
on Highway 86.
Q. Is that a regularly established check point?
A. Yes, sir. Most of the time, with the execption of
a few shifts, while we are short handed we don’t have
men there.
Q. Is there some kind of a building at that check
point?
A. Yes, sir, there is.
Q. Would you describe that very briefly.
A. A building which we call our office and we have
a detention room in there. We write up aliens. It is
approximately the size of this room here, this courtroom,
and we have a little shack, so to speak, that we stand
underneath to talk to in the vehicles who are coming
through the check point.
Q. When the check point is open, are all vehicles
required to atop?
A. Yes, sir, we have traffic cones on the highway
which f@llows the traffic off the highway through ,our
check point.
Q. What was the condition of traffic on this par-
ticular date, January 19, about 10:05 p.m.?
35
[8] A. The traffic was very slow at that point, hardly
—I would say maybe one or two cars every 10 minutes
or so.
Q. Would you estimate for us approximately how far
from the California-Mexican Border this check point is
as the crow flies?
A. As the crow flies, I would estimate about 45 miles.
Q. And do you know how far it is by highway?
A: 55 to 60 miles, I would guess.
Q. Where does this north-south road go that the check
point is maintained on?
A. We check northbound traffic. It goes—if they turn |
left on State 78, they can go to Julian, California, or else
up through Indio, Riverside, Los Angeles, and points
north.
Q. On what highway would that be?
A. Highway 86.
Q. Now when you met the defendant, was he in a .
vehicle or on foot?
A. He was in a vehicle, in a 1970 Ford pickup with a
camper.
Q. What direction was he traveling?
A. Northbound.
Q. Did you have some sort of signals or stop [9]
signs or something prior to him coming to the check
point that he would have passed?
A. There were about five signs warning the vehicles
to keep to the right and not pass, and prepare to stop
ahead at our check point. We have a very large stop
sign with the red blinking lights on it.
Q. Did you observe anyone else in the vehicle?
A. No, sir.
Q.. On arriving at your check point did you have a
conversation with the defendant?
A. Yes. I identified myself as an Immigration Officer
and asked him to state his’ citizenship, and he stated—
I believe it was an American citizenship. However, I
determined that he was an American citizen. I don’t
remember the actual words he told me.
Q. At least you became satisfied that he was legally
in the country?
36
A. Yes, sir.
Q. Now, what did you do then?
A. I asked him to open up the back of the camper
for a search for illegal aliens.
Q. Did he open the back of the camper?
A. Yes, he did.
Q. What did you observe, if anything, upon him [10]
opening the rear of the camper?
A. First of all, I noticed a strong odor of marijuana
coming from the back of the camper.
Q. What did you do at that time?
A. I got into the camper. There were no lights in the
camper but I had my flashlight. I saw what appeared
to be bedrolls or someone laying upon the mattress that
is over the cab of the pickup.
Q. Are you referring to the cab-over, a portion of
the camper?
A. Yes, sir.
Q. What did you do then?
A. I walked closer to it and shined the flashlight in
there and it turned out to be two back-packs, I believe
it was.
At the same time I notice what I observed to be kilo
bricks, dark-blue cellophane-wrapped packages, stacked
‘neatly underneath the mattress, and I could see about a
three-inch portion of it between the edge of the mattress
and the cardboard—not the cardboard, the plywood struc-
ture of the camper itself where the mattress lays on.
Q. Did you move the mattress prior to seeing those?
A. No, sir.
[11] Q. Was it in plain sight upon shining your light
in that direction?
A. Yes, sir.
Q. Did you recognize those packages as something you
had seen in the past? ~
Yes.
What did they appear to you to be?
They appeared to be packages—kilos of marijuana.
Did you perform any tests on those at that time?
Yes, sir, I took a key that I had hanging on my
PO PO Pp
ae 7 Te a ts eats a Ae EE,
FT Bh
37
belt and punched a hole in one of the packages and it
appeared to me to be marijuana.
Q. Then what did you do, if anything?
A. I got out of the camper and placed Mr. Bowen
under arrest and advised him of his rights to remain
silent.
Q. You put him in handcuffs?
A. Yes, sir.
Q. And what then happened, if anything?
A. I then had called for assistance from my partner
to come and help with the traffic and to take care of this
matter.
Q. Was that Mr. Carosco who was working with you?
[12] A. Yes, sir.
Q. Was anyone else working with you at that check
point at that time?
A. No, sir.
Q. Did Mr. Carosco come to the scene?
A. Yes, sir.
Q. What did you do then with the defendant, as far
as Mr. Carosco is concerned, at that point?
A. First of all, I drove the vehicle—as soon as Mr.
Caroseco got there I drove the vehicle off to the side,
while he observed Mr. Bowen and again, I think—as I
can recall at this time, I advised him of his rights, again,
to remain silent, and I proceeded to make a more thorough
search of the camper and searched for contraband—
Q. (Interposing) What else did you find?
A. I found approximately 158 to 160 kilos of mari-
juana.
—also underneath the cupboards below the sink and
the refrigerator and seats on both sides of the camper
and found two or more burlap bags, I believe with the
name “Product of Mexico” written on the burlap bags.
And also, as I can recall at this time, I believe there was
a jacket laying in the passenger compartment of the pick-
up with some pills in it, also [13] an aerosol tear gas can,
a Kleenex box in the driver’s compartment on the dash-
board, along with a slip, a sales slip for a nine-millimeter
pistol that had been purchased recently. I don’t remember
the exact date.
38
Q. Did you find any papers in there, about the vehicle,
to show ownership of it?
A. Yes, sir. I found a rental agreement paper show-
ing that that vehicle had been rented to Mr. Bowen.
Q. Did you find anything else of any consequence?
A. That I can recall at this time, no, sir.
MR. GOTT: Nothing further from this witness at this
time, your Honor.
THE COURT: Mr. Nasatir.
CROSS-EXAMINATION
BY MR. NASATIR:
Q. I take it from your testimony the check point is
shut down at certain times, is that right?
A. When we are short-handed, maybe once or twice
a week through an eight-hour shift. We don’t have
enough men to keep it open.
Q. So approximately 16 hours a week it is not open,
is that right, sir?
A. I can’t give you an exact date. It just depends
on how the schedule falls. I have no specific [14] knowl-
edge of when it is open and when it isn’t, only by
searching through past records.
Q. I am not asking you for exactly. The red light—
is that attached to a fixed piece of property, or is that
portable, sir?
A. It is attached to a little building that we stand
underneath for shade.
Q. So it is affixed to the building, is that right?
A. Yes. It is removed when we don’t have the check
point in operation.
Q. Do you remember what day of the week this
arrest was, Mr. Ortmeier?
A. I don’t remember what day of the week, no, sir.
It was the 18th or 19th, as far as I can recall.
Q. Is the traffic fast or slow on different days of
the week?
A. Yes, sir. -
Q. And sometimes it is fast and sometimes it is slow,
is that correct, sir?
39
A. Yes, sir.
Q. But you remember definitely of your own memory
at this point that the traffic was slow on this particular
day?
[15] A. Yes, sir, it was slow.
Q. But you don’t remember the particular day of
the week it was?
A. No, sir.
Q. Could it have been Sunday?
A. I don’t know, sir.
Q. If it was Sunday, the traffic would have been fast,
is that correct, sir?
A. Not necessarily so. It varies.
. Q. Would you say that the traffic was heavier on
Saturday or Sunday then other days of the week?
A. That again depends on if there is some activities
in the Valley or sports events or something of that
nature. It is rather hard to say, really.
Q. What highway is this check point on, sir?
A. Highway 86.
Q. Highway 86. Is there a connection into Highway
86 from San Diego?
A. Yes, sir. Interstate 8 intersects Highway 86.
Q. Interstate 8 leads directly to Highway 86, does
it not?
A. Yes, sir. It is a Border Interstate.
Q. Excuse me, sir?
A. It is the Border Interstate, Interstate 8 [16] from
San Diego through El] Centro and on east to Yuma.
Q. So that the highway also comes—or is there a
lead-in to Highway 86 from El Centro also?
A. Highway 86 goes right through El Centro.
Q. Right through El] Centro?
A. Yes, sir.
Q. What other American cities does Highway 86
pass through, sir?
A. It originates—it goes through Heber. It goes
through El] Centro, Brawley, Imperial—Brawley—West-
moreland, Indio.
Q. Is it possible to get to your check point directly
from San Diego, California, without passing through the
Mexican Border?
40
A. Yes, sir, it is possible.
Q. Does your check point stop every car, sir?
A. Yes, sir.
Q. Every single car that goes through when you are
open?
A. That again depends on the volume of traffic and
the manpower that we have. Some people who we ob-
viously know by sight who come through every day we
don’t stop, generally.
Q. There are people who you don’t know who you
don’t stop, depending on the circumstances, though, is
[17] that correct?
A. Depending upon the volume of traffic. Sometimes
it is bumper-to-bumper and we are rather busy on holi-
day weekends.
Q. You check Mr. Bowen’s citizenship when he ar-
rived, is that right, sir? \
A. Yes.
Q. You found nothing unusual, did you?
A. No, sir.
Q. And looking at the camper, there was nothing un-
usual about that, was there?
A. Not really, other than it appeared to be a rental
camper. \
Q. How did that appearance strike you, sir? >
A. Well, there was nothing inside the camper other
than a jacket and a—
Q. (Interposing) Prior to your looking inside the
camper.
A. No, I am talking about the compartment where
Mr. Bowen was sitting. N
Q. The driver’s seat, is that right, sir? \
A. Yes, sir.
Q. Nothing in there other than what?
A. A Kleenex—well, a Kleenex box and jacket, it Was
later determined, but generally when a privately [18]
owned car comes through they have all sorts of things
in there.
Q. That would depend on the person, wouldn’t it?
A. Right.
\
41
Q. <A person neat and clean might have less than a
person who was dirty, is that correct?
A. I guess.
Q. There is nothing really suspicious about there just
being a jacket there, is that right?
A. No, sir.
Q. Nothing on the outside of the camper in the way
of a sign of the source of that camper to identify it as
a rental camper, was there?
A. Sometimes there are, but I didn’t notice about this
particular camper. They have a little sticker on the
windshield.
Q. Other than the fact there was a jacket on the
front seat with Mr. Bowen, there was nothing unusual
about that camper, was there?
A. Not about the passenger compartment at that time,
no.
Q. And Mr. Bowen got out of the camper willingly,
did he not?
A. Yes, sir, I assume willingly.
Q. He cooperated with you in every way concerning
- [19] citizenship?
A. Yes, sir.
Q. He opened the door of the camper for you, did he
not?
A. Yes, sir. ;
Now as soon as he opened the door of the camper
was it then that you smelled the marijuana?
A. Yes, sir.
Q. Where were you standing, sir?
A. I was standing right alongside of him when he
opened it.
Q. You were outside the camper, were you no
A. Yes, sir.
Q. You have to step up quite a ways to inside
the camper, do you? ,
A. Yes, sir.
Q. Isn’t that correct? And you hadn’t taken any steps
up to the step up into the camper yet, had you?
A. No, sir.
42
Q. The door opens outside and preveuts you from do-
ing that, does it not?
A. Right.
Q. How far from the camper would you Say you
were when you smelled the marijuana, Mr. Ortmeier?
A. Less than three feet.
[20] Q Okay. Was it old marijuana or fresh mari-
juana?
A. That is hard to say. I cannot say it was old
marijuana. I can’t distinguish the odor between old
and new. I can distinguish what marijuana odor does
smell like, though.
Q. Was it smoked marijuana? Can you distinguish
between marijuana having been smoked and marijuana
that hasn’t been smoked?
A. Smoked and unsmoked marijuana, yes, I can dis-
tinguish those.
Q. Are they very distinguishable odors?
A. Yes.
Q. Was this wet marijuana or dry marijuana that
you smelled?
A. If you are asking before I looked into the pack-
a
Q. Before you looked into the camper, sir.
A. I did not give it a thought.
Q. You didn’t give it a thought?
A. No, sir. °
Q. Now, you stated your smelled marijuana in other
cases, Mr. Ortmeier. Have any of those cases gcne to
trial?
_A. Yes, sir.
[21] Q. Approximately how many, sir? How many
have resulted in convictions, let’s make it?
: rg I have several cases pending that are over a year
)
Q. Have any of your cases resulted in a coaviction?
A. Yes, sir. .
Q. How many of those, if you know?
A. I don’t—I can’t tell you for sure at this time.
There have been several.
43
Q. What training have you had in the smell of mari-
juana, Mr. Ortmeier?
A. We don’t have any specific training other than we
have a Customs Agent come every once in a while to
talk to new trainees and let them smell marijuana.
Q. Does he bring marijuana with him?
A. And teok-at other substances, yes.
Q. Does he bring marijuana with him?
A. Yes, sir.
Q. At these training sessions is it not a fact, sir,
the agent allows you to smell marijuana from up close,
is that correct?
A. Yes.
Q. He takes it up to you and you smell it [22] right
in front of your nose, just about?
A. You can if you wish. You don’t have to.
Q. Right. This agent does not go through a train-
ing period that allows you to smell marijuana from in-
side a vehicle and froin the outside, does he, sir?
A. No.
Q. Mr. Ortmeier, after you entered the vehicle, was
it then that you searched this drawer in the vehicle?
A. No, sir.
What is the first thing you did after you entered
the vehicle?
A. I walked to the forward points of the camper to
determine what was on the bunk, or the bed-type, that
is over the cab of the pickup.
Q. Were the lights on or off inside the vehicle?
They were off.
Did you have your flashlight?
Yes, sir.
Did you shine it up there, sir?
Yes, sir.
How were the backpacks placed?
They were just laying on the bed.
Were they alongside each other or on top [23] of
each other? How, sir?
A. They were not on top of each other, no. I can’t
recall for sure. I can’t tell you exactly how they were
laying at this time.
OPOPOoPoOp
44
Q. Did you really confuse those backpacks, Mr. Ort-
meier, with a human being?
A. At first sight when I first stepped in the camper
it could have been the body of a person laying there.
Q. Those backpacks
A. Yes.
Q. Were the backpacks full or empty, sir?
A. They were empty but they were of the design
that kind of held the canvas out, so to speak.
Q. They were in plain sight?
A. Yes, sir.
Q. Nothing covering them?
A. No, sir.
Q. Okay. When did you first realize they were back-
packs? How far inside the door were you when you
mens realized they were backpacks and not a human
ing?
A. I made about two steps. After I stepped up into
the camper about two steps toward the front of the
camper.
[24] Q Okay. And after you took those two steps
you realized that they were not a human being but a
backpack?
A. Right.
Q. After you stepped into the camper. were you look-
ing for human beings or were you looking for marijuana?
A. I was looking for human beings.
Q. Still looking for human beings?
A. Yes, sir. That is our primary purpose.
Q. After you took your two steps you determined
it was not a human being on top of that mattress, is that
right, sir?
A. Right.
Q. Now the mattress in that type of camper—could
you hold up your\hands and estimate approximately how
thick that mattress portion is from the inside of the
camper? Let me ask it this way. That mattress portion
of the cab-over portion, as Mr. Gott calls it, is less than
a foot wide, is that right, sir?
A. You mean the mattress itself?
Q. The mattress.
45
A. Where the mattress lays on the camper?
Q. Where the mattress lays on the camper, sir.
[25] A. How deep it, is or how wide? '
Q. How deep it is; less than a foot deep, is it not?
A. It is considerably less than a foot deep, I would
say the edge that holds the mattress from sliding back
is about that—was about that—
- THE COURT: Indicating three or four—
THE WITNESS: —three,or four inches deep. |
BY MR.’ NASATIR:
And that was the thickness, is that right, sir?
To hold the mattress, yes.
And the mattress fits into that holder, does it not? |
Yes.
It doesn’t extend over that holder, does it? '
It is higher when—I would say it might have
been an inch or two higher than that three or four-inch
holder when it is placed down in there without anything
underneath it.
Q. Now the mattress was placed down in there, is
that right, sir?
A. It was laying in that area. It was not all the way
down in.
[26] Q. Now how far above the holder is the mat-
tress, then, Mr. Ortmeier, in this case?
A. The mattress—about an inch or an inch and a
half of the mattress was actually below that three or
four-inch space. However, it was about that far pushed
ahead of that piece of the plywood that holds the mattress
from sliding back. -
Q. All right. Now the piece of plywood you are
talking about is the holder, is it not?
A. Yes. ' |
Q. So that what you are saying then—we are talking
just about the deepness—that the mattress stuck up above
the holder approximately two inches, is that right? Is
that fair to say?
A. : More or less.
Q. More or less two inches. So the total thickness,
then, was five inches, is that right, sir?
POPo PO
46
!
|
_ A. I cannot tell you for sure how many inches. I
mean I didn’t measure it. It was immaterial to me at
that time. ’
@. You estimated about five inches? '
A. More or leas, : 4 ;
Q. Okay. Now then you say the mattress was pushed
toward the front of the cab. Am I right, sir?
A. It was about two, three or four inches. [27] I
don’t recall at this time—further ahead from that thing
that holds the mattress from falling on the floor in the
camper. ,
. Q. Right. So there was as much as a four-inch space
between the mattress and 'the holder, is that correct?
A. More or legs.
Q. More or less. Now how many steps, after the
two steps that you took in and you discovered the back-
packs were not human beings, did you have to take in
order to reach that area, actually? ;
A. Like I say, the two steps that I took in there,
I could see the kilo bricks.
Q. After taking two steps inside the cabin? .
A. After taking two steps with the flashlight, and
the flashlight ‘just shined on them, before I determined
what the backpacks were.
Q. ‘Were not the kilo bricks in between the mattress |
and the mattress holder, ‘sir?
A. Right. |
-Q. Were not the kilo bricks underneath the thickness
of the plywood that comprisés ‘the mattress holder?
A. If you looked at the mattress’ at eye level you.
could not see the kilo bricks.
[28] Q Okay. How far away from the mattress were
you when you spotted these kilo bricks?
A. I would say one step, step and a half.
Q. A step and a half away?
A. Maybe. Maybe a step and a half at the most.
‘Q. These kilo bricks were not sitting on top of the
mattress, were they? f.
A. No. !
Q. Lying beside it, were they not? |
A. They were lying underneath the mattress.
47
Underneath the mattress?
Yes. ;
The mattress was partially covering the kilo bricks?
Yes.
What were the two kilo bricks wrapped in, sir?
In kind of a dark-blue cellophane plastic-type
POoPO
You couldn’t see through the dark blue cellophane?
No.
They were covering bricks and you couldn’t see into
3
OPez Pe
them?
A. Each individual brick was wrapped separately
[29] from all the others.
Q. Right. You couldn’t see inside the wrapping?
A. Inside the brick, no, without touching them.
Q. Right. How much of the bricks’ surface would you
say was showing?
A. Of each brick?
Q@ Yes, ar.
A. I would say three to four inches of maybe eight
or ten bricks. ‘
Q. Three to four inches of eight or ten bricks, is
that right‘
A. Yes, sir.
Q. Three to four inches apiece?
A. Yes, sir. The bricks in order like this, about three
inches or so of maybe eight or ten bricks. I didn’t count
how many I first saw.
Q. How wide is a brick of marijuana usually, sir?
A. Oh, I would say about four to five inches; six
inches, maybe.
Q. Okay. Now how many bricks were underneath the
mattress, Mr. Ortmeier?
A. Around 120, I believe it was.
Q. Was anything like burlap discovered with them?
[30] A. No, sir. The burlap bags and the rest of
the marijuana was found underneath the cupboards,
underneath the sink and refrigerator, and one of the
seats, I believe.
Q. Was there any writing on any of the packages of
these kilo packages?
48
A. The kilo packages?
Q. Yes.
A. Not to my knowledge.
Q. Okay. What did you do after you found these
kilo packages?
A. After the first encounter?
Q. Yes, sir.
A. . First of all, I called for my partner.
' Q. Second of all?
A. After he arrived and he got the traffic moving
again, we called Customs and told them we had an un-
determined amount of contraband so that they would
respond as fast as possible.
Q. Then what did you do? Did you discover the
other 160 kilos underneath the cupboard?
A. The total of 160 more or less.
Q. You discovered them yourself?
4. Tem
Q. Could you describe how they looked upon [81]
discovery?
A. Underneath the cupboard they were stacked in
there, as many as they could hold.
Q. Blue cellophane, is that right?
A. Yes, sir.
. And where was the burlap in relation to the blue
cellophane kilos?
A. The burlap bags were in, I believe, as you are
looking forward, the right-hand compartment in one of
the cupboards.
Q. In one of the cupboards? ‘
A. Yes.
Q. Those burlap bags were not physically present on
the kilos of marijuana, were they, sir?
A. Yes, sir.
Q. All right. And what relationship were they? Were
they wrapped in it?
A. No, the burlap bags were empty, laying on top
of the kilos, some of the kilos, in the lower right-hand
cupboard.
Q. Was there any other type of covering down there?
A. No, sir. There was a cupboard door.
49
Q. Were there any bags on anything else?
A. Not that I saw.
[32] Q. Did it look like these marijuana—excuse me.
Did it look like these burlap bags were being used
for anything in your opinion, or were they just laying
on top of the kilos?
A. Do you want my opinion of what I thought they
were?
Q. Were they laying just on top of the kilos?
A. Yes. iz
Q. Then you found some more underneath the seat,
is that correct?
A. Yes, on the left-hand side. The seat was on the
left-hand side, I believe.
Q. Were there any burlap bags underneath that seat?
A. No, sir. I don’t believe there was on the left-
hand side.
Q. What did the burlap bag say?
A. I believe it said—I believe one or possibly two of
the bags said, “Product of Mexico.” I can’t be too sure
about it. I believe that is as far as I can recall at this
time, that is what they said.
How many burlap bags were there, in all?
A. At least two. I am not sure whether there [33]
were more or not.
Q. There were no burlap bags with the kilos dis-
covered in the mattress?
A. Not underneath the mattress, no.
Q. bts there any burlap bags above the mattress?
A. 0. »
Q. Were there any burlap bags discovered underneath
the seat?
A. Not to my knowledge, ro
Q. The only burlap bags you found were those, that
were used to cover those in the cupboard; is that right?
A. I don’t know it they were used to cover the ones
in the cupboard. They were laying on top.
. They were laying on top? 9
A. Like they had just been thrown in there.
—
Q. Now how many times have you gone through this
course with the agent where he allows you to smell a
brick of marijuana?
A. I believe I have been present twice. We don’t
really call them training sessions.
Q. Just an informal meeting-type thing?
A. Right. They put a notice on the bulletin board.
Anyone wishing to come to this thing, they will have a
Customs Agent in our squad room at a [34] certain
date and time, and anyone who wants to partake in it
- can come. It is not compelled that we take it.
Q. Did you actually participate twice?
A. Yes, I believe it was twice.
Q. Actually smell marijuana twice?
A. Yes, sir.
Q. You had no training in Immigration Agents School,
did you, in the smelling of marijuana?
A. I don’t recall at this time whether—we had a few
pills shown to us but I don’t recall if we had marijuana
at the Academy or not.
Q. If you did, you have forgotten about it at this
time; is that right?
A. Yes, sir.
Q. And of course you are not a marijuana juser or
smoker yourself, are you, sir?
A. No, sir,-I never have.
Q. Approximately how many trials have you testified
in concerning marijuana, the smell of marijuana? Now
I am limiting you to the smell of marijuana.
A. I would say at least a half a dozen trials.
Q.. At least six trials?
A. Yes, sir.
[35] Q. Do you. now w ether dines trials have pro-
ceeded to conviction?
~ A. Yes, sir.
Q. Have they been finall - convicted?
A. Not all six of them, no. I can recall one case
that was a spare-tire case that was dismissed.
Q. Right. It was dismissed, so now five cases you
could testify to?
a “Fee
TM ee Se ee er tea tin neta lee a
; 61
Q. The rental contract was rented in Mr. Bowen’s own
name, was it not, sir?
A. Yes, sir.
Q. Did you check the address on the rental slip with
the address on his driver’s license? -
A. If I did I don’t recall at this time.
Q. You noticed nothing unusual then if you did?
A. This was after he had been placed under arrest.
I did not look at his driver’s license before he was
arrested?
Q. I just have one final question.
Approximately how far, in terms of feet, would you
say it is from the door of that camper to the place where
the mattress holder is, sir?
A. Eight or ten feet, from the back door to [86] the
front of the camper where the cab of the pickup fits
back against the camper.
oo ta Or
A. I would estimate eight or ten feet. I am not
sure. I couldn’t say for sure.
Q. Did you find anything else that would indicate
where this marijuana was from other than what you
have already told us? Mr. Bowen made no statement,
did he?
A. No, sir. He was even reluctant to give his name.
Q. But he gave you his name, did he not?
A. When Customs Agents arrived, yes.
Q. You didn’t find a pistol, did you?
A. No.
There was nothing other that would indicate that
Mr. Bowen had come from Mexico, was there, other than
what you have testified to so far?
A. No, sir, not to my knowledge.
MR. NASATIR: Nothing further, your Honor.
THE COURT: All right.
MR. NASATIR: With the Court’s indulgence, may
I have one more question?
THE COURT: Yes.
52
[87] BY MR. NASATIR:
Q. You discovered the pills in the coat, did you not,
sir? .
A. Yes, sir.
Q. You did yourself and you discovered all this mari-
juana yourself, did you? Is that right, sir? .
A. Yes, sir, initially.
Q. Right.
Now the pills were discovered after the marijuana
was discovered, is that correct? ‘
A. Yes, sir.
Q. And the pills were where?
A. I can’t be too sure at this time. :
I believe it was in the passenger compartment of the F
truck, laying on the seat, in the middle of the seat. ef |
Q. Are you absolutey sure about that?
A. I cannot be sure at this time. He was either wear-
ing the jacket or else it was laying on the front seat.
Q. The pills were in a jacket, is that right? ‘
A. Yes, sir, in a jacket pocket.
. Where was Mr. Bowen at the time that you found
the pills? He was in custody, was he not? }
A. Yes, sir.
~ [88] Q. He was immediately placed in custody upon
your finding the marijuana in the mattress, is that right?
A. Yes, sir. 4
Q. He was in handcuffs?
A. What time are you referring to?
Q. At the time you found the pills he was in hand-
cuffs?
A. Yes, sir. So it had to be in the compartment,
the passenger compartment of the pickup. —
Q. Lying on the seat?
A. Yes, sir.
Q. What were the pills contained in?
A. Customs Agents informed me that they were
bennies.
g Q No. What were they contained in, sir?
A. In a kind of a plastic bag or a sandwich bag-
type of deal, or something like that. I am not sure at
this time.
53
Q. Could you describe very briefly how big a package
the pills were in, in your best estimation?
A. About like a sandwich bag, something like it.
Q. How many pills were in there?
A. A medium-size handful of pills, about like [39]
this.
Q. Indicating it was approximately three inches
around?
A. Something similar to that.
Q. At most?
A. More or less.‘ I cannot say for sure.
Q. Was it basically a round shape, is that correct?
A. As you hold the bag up, kind of an oblong shape,
maybe.
. When you found it, had Mr. Bowen already been
taken to the building?
A Ye ee.
Q. And when you found the rental contract with Mr.
Bowen’s name on it, had he already been taken to the
building* .
A. Yes, sir. The building is only a few feet away
from where the camper was sitting. However, there is a
window there so we can look out and observe our partner,
our respective partners, checking the traffic coming
through the check point.
. He was with your partner, was he not, Mr. Bowen?
A. When I found the pills?
. Yes. He was in your partner’s custody?
[40] A. Yes.
Q. And the only thing that you discovered before Mr.
Bowen was taken into custody was the marijuana in the
mattress, am I right, sir? ‘
A. Yes, sir.
MR. NASATIR: Nothing further, your Honor.
THE COURT: Anything further, Mr. Gott?
MR. GOTT: No, your Honor.
Government rests.
THE COURT: You may step down, sir.
Mr. Nasatir, do you have any evidence to produce
at this time?
54
MR. NASATIR: Call the defendant for purposes of
this motion.
THE COURT: All right.
JOHN LEE BOWEN,
the defendant herein, called as a witness in his own be-
half, having been first duly swern, was examined and
testified as follows:
THE CLERK: Take the stand. State your full name
and spell your last name for the record, please.
THE WITNESS: My name is John Bowen.
[41] DIRECT EXAMINATION
BY MR. NASATIR: - g
. Mr. Bowen, were you present on January 19 of
this year at 10:00 p.m. at the Customs—excuse me, at
the Immigration Station on Highway 86?
A. Yes, I was.
_ Q. Did you see Mr. Ortmeier at that time?
A. Yes, I did.
Q. Mr. Ortmeier is an Immigration Agent, is that
right, sir?.
A. Yes.
Now on that day, Mr. Bowen, had you been to
Mexico at all?
A. No.
Q.. And, Mr. Bowen, can you tell me what happened
from the time—you met Mr. Ortmeier, is that correct,
sir?
& Yes.
Q. And what did he tell you?
A. He asked me what my citizenship was. I told him.
¢
He asked me if I would open up the back of the camper.
Q. Did you do so?
A. Which I did.
Q. Okay. Now prior to entering the camper—
2] Did you open the door for Mr. Ortmeier?
A. Yes.
55
Q. Did he indicate to you that anything was unsuaul
at that time?
A. No.
_ And what then happened, sir, in your own words?
A. Well, then he got into the camper, and the first
thing he did was open up—it was a chemical toilet, as
you go right in on the righthand side. He opened that
up. Then he went and opened up a few drawers. There
is a seat on each side of the camper. There are some
drawers above there. He opened those up.
Q. Did he ever indicate to you prior to that time that
there was anything unusual about the camper?
A. No.
Q. Could you proceed, please?
A. Then he went through several drawers. There was
a blanket on top of the mattress. He lifted that off.
Q. Was there anything else on top of the mattress?
A. No.
. Did you have a couple of knapsacks in [43] the
back of the camper?
_ Yes. They were back under the seat by the table.
Q. How far is the seat and the table from the bed?
A. About seven feet.
~ Q. Were these knapsacks full or empty?
A. Empty. They were just laying there on the seat.
Q. And what was on top of that mattress?
A. Just a blanket, maroon blanket.
Q
A.
d
>
-Q. What then happened, sir?
a Well, he shined the light up on top of the blanket
and then he lifted up the mattress.
Q. He lifted up the mattress?
A. Yes. He lifted up the blanket, then the mattress.
Q> What was under the mattress?
A, He said there were packages of marijuana.
Q. They were under—
A. He just turned around and said, “You are under
arrest.”
Q. After he lifted up the mattress?
A. Right.
MR. NASATIR: I have nothing further, your Honor.
[44] THE COURT: All right.
~
~
56
Which direction were you traveling in?
THE WITNESS: North.
THE COURT: Is this a side-entrance camper or a
rear-entrance camper?
THE WITNESS: Rear entrance.
THE COURT: Mr. Gott, do you have anything?
MR. GOTT: Yes.
CROSS-EXAMINATION
BY MR. GOTT:
Where had you been if you hadn’t been to Mexico?
I was in Winterhaven.
Did you smell any marijuana?
A. Did I smell any marijuana? No, I didn’t.
MR. GOTT: Nothing further, your Honor.
MR. NASATIR: Nothing further, your Honor.
THE COURT: You may step down.
Mr. Nasatir, do you have anything to state to the
Court in the way of any statements you desire to make?
MR. NASATIR: No, your Honor; only that I am
sure this Court is well aware that an alien search must
be for aliens.
OPo.
57
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 10576—Criminal
[Filed Aug. 31, 1971, Clerk, U.S. District Court, South-
ern District of California. By V. C. Mahler, Deputy]
UNITED STATES OF AMERICA, PLAINTIFF
v8.
JOHN LEE BOWEN, DEFENDANT
VERDICT
We, the jury in the above-entitled cause, find the de-
fendant, JOHN LEE BOWEN, guilty of smuggling
marihuana as charged in count one of the indictment and
guilty of transporting marihuana as charged in count
two of the indictment and guilty of possession of depres-
sant or stimulant drugs as charged in count three of the
indictment.
/s/ [Illegible]
Foreman of the Jury
Dated: August 31, 1971
San Diego, California
i
58
UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF CALIFORNIA
No. 10576—Criminal
[Oct. 7, 1971, Clerk, U.S. District Court, Southern District
of California, By V. C. Mohler, Deputy]
UNITED STATES OF AMERICA
Vv.
JOHN LEE BOWEN
On this 6th day of October, 1971 came the attorney
for the government and the defendant appeared in per-
son and? by counsel, Michael D. Nasatir.
It Is ADJUDGED that the defendant upon his plea of *
not guilty and a verdict of guilty has been convicted of
the offense of smuggling marihuana in violation of 21
USC 176a as charged in count one of the indictment,
transporting marihuana in violation of 21 USC 176a
as charged in count two of the indictment, and possession
of depressant or stimulant drugs in violation of 21 USC
331 (q) (3) (B) and 360a(c) (2) as charged in count three
of the indictment in three counts, and the court having.
asked the defendant whether he has anything to say why
judgment should not be pronounced, and no sufficient
cause to the contrary being shown or appearing to the
Court,
It Is ADJUDGED that on counts one, two and three the
defendant is guilty as charged and convicted.
IT Is ADJUDGED that on each of counts one and two
the defendant is hereby committed to the custody of the
Attorney General or his authorized representative for im-
prisonment for a period of * seven (7) years, said sen-
tence as to counts one and two to run concurrently.
1Insert “by [name of counsel], counsel” or without counsel; the
court advised the defendant of his rights to counsel and asked him
rs:
IT Is ADJUDGED that on count three the imposition of
sentence is suspended and defendant placed on: probation
for a period of five (5) years on condition that he obey
all laws, Federal, State and Municipal, that he comply
with al] lawful rules and regulations of the Probation |
department, that he not possess or use narcotics, mari-
huana, LSD, or dangerous drugs in any form, that he
not associate with known users of or dealers in narcotics,
marihuana, LSD, or dangerous drugs in any form, that.
he not enter Mexico nor approach the Mexican border,
and that he submit to search of his person or property
at any time when requested by a law-enforcement officer,
said ‘probationary order, as to count three to run con-
' secutively and not concurrently with the, sentence —
as to counts one and two.
IT Is ORDERED that the Clerk deliver a certified copy
of this judgment and commitment to the United States
Marshal or other qualified officer and that the copy serve
as the commitment of the defendant.
/s/ Gordon Thompson, J r.
GORDON THOMPSON, JR.
United States District Judge
WILLIAM W. Luppy
By: /s/ V.C. Mohler
V. C. MOHLER
Deputy Clerk
Filed: October 6, 1971
whether he desired, to have counsel appointed by the court, and the
‘defendant thereupon stated that he waived the right to the as-
sistance of counsel.” 2 Insert (1) “guilty and the court being satis-
fied there is a factual basis for the plea,” (2) “not guilty, and a
verdict of guilty,” (3) “not guilty, and a finding of guilty,” or (4)
“nolo contendere,” as the case may be. * Insert “in count(s) num-
{ ber ” if required. * Enter (1) sentence [illegible]
a i
60 f
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Trial Judge Hon. Gordon Thompson, Jr.
No. 10576 Crim.
[Filed Oct. 6, 1971, Clerk, U.S. District Court, Southern
District of California. By [Illegible], Deputy]
UNITED STATES OF AMERICA, PLAINTIFF
v8. :
JOHN LEE BOWEN
NOTICE OF APPEAL
Notice is hereby given that J ohn Lee Bowen defendant
above named, hereby appeals to the United States Court
of Appeals for the Ninth Circuit from the (check one)
(*) Final Judgment
( ) Order (describe)
- entered in this proceeding on the 6 day of October 1971
Dated: 11-6-71 ~~
/3/ J ohn L. Bowen
Notes: NOTICE oF APPEAL MAY BE SIGNED By:
(1): the defendant, or
(2) defendant’s attorney, or
(3) the Clerk on instructions from the Court.
NAME AND ADDRESS OF ATTORNEY
61
NoTE: Designation of Record must be filed within 5 days
after the filing of the Notice of Appeal or coun-
sel must appear for a conference with the Clerk
on the 6th day. (Mimeographed forms are avail-
able)
Counsel must comply with the Federal Rules of
Appellate Procedure. Particular attention is
ealled to Rules 10, 11 & 12. -
—
62
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
\
M \ No. 105-76
[Filed Oct. 6, 1971, Clerk, U.S. District Court, Southern
District of California. By [Tllegible], Deputy]
UNITED STATES OF AMERICA, PETITIONER
vs
JOHN LEE BOWEN, DEFENDANT
In Pro Per
Attorney for Defendant
Howard B. Frank
Assistant U.S. Attorney
DESIGNATION OF RECORD ON APPEAL
The following documents indicated by a check (*) mark ;
are hereby designated to constitute the Record on Appeal i
in the above case.
— Commissioner’s/Magistrate’s Record of proceedings in-
cluding — Complaint — Warrant — Search Warrant —
Other:
* Indictment or Information
* All Minutes of Court — O/H Action Taken From
* Government’s Requested Instructions
* Defendant’s Requested Instructions
* Court's instructions (if filed)
* Verdict
* Judgment and Commitment
* Motions, Affidavits, etc. and Orders (if other than
Minute Order) granting or denying.
* Suppress
— Production
* Dismiss
— Severance
— Other:
* Notice of Appeal
* Designation of Record on Appeal
— Other:
* All exhibits (except contraband)
REPORTER’S TRANSCRIPT
PLEASE CHECK ALL PROCEEDINGS TO BE INCLUDED IN
TRANSCRIPT
}
— Arraignment and Plea
— Omibus Hearing ;
— Continuance
* Proceedings on Motions
* Voir dire interrogation of prospective jurors
* Opening statements
* Closing statements
* Instructions
* Sentencing
---DATED: 10/4/71
/s/ Michael D. Nasatir
For John Bowen, In Pro Per
Attorney for Defendant
/s/ Howard B. Frank —_/—
Assistant U.S. Attorney
64
(6/24/71)
. UNITED STATES DISTRICT COURT
‘SOUTHERN DISTRICT OF CALIFORNIA
No. 10576
[Filed Oct. 6, 1971, Clerk, U.S. District Court, Southern
District of California. By [Illegible], Deputy]
Plaintiff or Petitioner
Vs
JOHN LEE BOWEN
Defendant or Respondent
AFFIDAVIT TO PROCEED WITH APPEAL
IN FORMA PAUPERIS
I, John Lee Bowen being first duly sworn, depose and
say that I am the Defendant-Appellant in the above-en-
titled case; that in support of my motion to proceed on
appeal without being required to prepay fees, costs or
give security therefor, I state that because of my poverty
I am unable to pay the costs of said proceeding or to
give security therefor; that I believe I am entitled to
redress; and that the issues which I desire to present on
appeal are the following:
i. Whether denial of Judgment of Acquittal was erroneous
Absent evidence of Smuggling.
ii. Whether evidence was sufficient as to knowledge of
importation.
iii. Whether evidence should have been suppressed.
I further swear that the responses which I have made to
the questions and instructions below relating to my ability
to pay the cost of prosecuting the appeal are true.
1. Are you presently employed? No.
a. If the answer is yes, state the amount of your
salary or wages per month and give the may and
address of your employer. ——
65
b. If the answer is no, state the date of your last
employment and the amount of the salary and
wages per month which you received. October 1970,
655,/mo.
2. Have you received within the past twelve months and
income from a business, profession or other form of
self-employment, or in the form of rent payments,
interest, dividends, or other source? No.
a. If the answer is yes, describe each source of in-
come, and state the amount received from each
during the past twelve months.
ii.
3. Do you own any cash or checking or savings account?
Yes.
a. If the answer is yes, state the total value of the ©
items owned.
$65—bank.
4. Do you own any real estate, stocks, bonds, notes, auto-
mobiles, or other valuable property (excluding ordi-
nary household furnishings and clothing) ?
a. If the answer is yes, describe the property and
state its approximate value.
i. No.
ii.
5. List the persons who are dependent upon you for
support and state your relationship to those persons.
WHEREFORE affiant prays that he may proceed in
forma pauperis pursuant to Title 28, USCA, Sec. 1915,
and that counsel be appointed to prosecute his appeal.
(Strike if inappropriate)
I understand that a false statement or answer to any
questions in this affidavit will subject me to penalties for
perjury.
66
Subscribed and sworn to before me this 6 day of Oct.,
1971.
William W. Luddy, Clerk, U.S. District Court, Southern
District of California.
Presented by:
/s/ John L. Bowen
Affiant
/8/ Michael D. Nasatir
Attorney for Petitioner
67
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
No. 10576 Crim.
[Filed Oct. 11, 1971, Clerk, U.S. District Court, Southern
District of California. By [Illegible], Deputy]
UNITED STATES OF AMERICA, PLAINTIFF
Vv.
JOHN LEE BOWEN, DEFENDANT
ORDER PERMITTING APPEAL IN FoRMA PAUPERIS AND
ORDER DIRECTING THAT EXPENSE OF RECORD ON APPEAL
BE PAID BY THE UNITED STATES
IT IS ORDERED that the said JOHN LE® BOWEN
be and he is hereby permitted to prosecute his appeal as
@ poor person without being required to prepay fees and
costs of this court or the Court of Appeals, or give se-
curity therefor.
IT IS FURTHER ORDERED that the expense of
printing the record on appeal, if such printing is re-
quired by the Appellate Court, be paid by the United ©
States, pursuant to Title 28, U.S.C.A. § 1915.
IT IS FURTHER ORDERED that an original and
two copies of the stenographic transcript be prepared for
use of the defendant at the initial expense of the United
States, pursuant to Title 28, U.S.C.A. § 753(f), to be
paid from the appropriation of the Judiciary, Administra-
tive Office U.S. Courts; and if the United States pre-
-vails on appeal, the costs of the appeal shall be taxed
against the defendant.
IT IS FURTHER ORDERED that MICHAEL D.
NASATIR, 9720 Wilshire Boulevard, Beverly Hills, Cali-
fornia 90212, Telephone No. (218) 278-4584, is appointed
counsel to prosecute said appeal; and counsel heretofore
appointed for the trial is hereby relieved.
68
IT IS FURTHER ORDERED that bail pending appeal
is set in the amount of $20,000 cash or corporate surety. -
DATED: October 14, 1971.
/s/ Gordon Thompson, Jr.
GORDON THOMPSON, JR. :
United States District Judge
Copies to:
Petitioner—John Lee Bowen L a
Michael D. Nasatir, Esq. \
9720 Wilshire Blvd., Suite 806
Beverly Hills, California 90212
U.S. Attorney
69
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
‘
x No. 72-1012
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
™~ v.
JOHN LEE Rowan, DEFENDANT-APPELLANT
June 16, 1972
REHEARING DENIED JULY 24, 1972
The United States District Court for the Southern
District of California, Charles M. Merrill, J., found de-
fendant guilty of smuggling and transporting smuggled
marijuana and of possessing depressant and stimulant
drugs, and defendant appealed. The Court of Appeals
held, inter alia, that question of the sufficiency of the
evidence to support smuggling charge on count 1 did not
have to be reached since the sentences on counts 1 and
2 were identical and concurrent.
Judgment affirmed.
Michael D. Nasatir (argued), of Nasatir, Sherman &
Hirsch, Beverly Hills, Cal., for defendant-appellant.
Shelby R. Gott (argued), Asst. U.S. Atty., Stephen
G. Nelson, Asst. U.S. Atty., Harry D. Steward, U.S. Atty.,
San Diego, Cal., for plaintiff-appellee.
Before MERRILL and GOODWIN, Circuit Judges, a
LYDICK,”* District Judge.
PER CURIAM:
John Lee Bowen appeals his conviction, following a
jury trial, for violation of 21 U.S.C. 176(a) and 21
*The Honorable Lawrence T. Lydick, United States District
Judge for the Central District of California, sitting by designation.
70
U.S.C. 381 (q) (3) (B) (smuggling and transporting smug-
gled marijuana and possession of depressant and stimulant
' drugs).
~_ While searching Bowen’s rented camper for aliens,
Immigration Officer Ortmeier first smelled and then found
in the camper nearly 856 pounds of marijuana bricks
of the type and packaged in the manner that usually
comes frum Mexico, along with backpacking equipment
and burlap bags marked Product of Mexico. One hundved
fifty-eight benzedrine tablets were found in the pocket
of a jacket in the cab of the camper.
Questions raised on appeal are whether the search
and seizure were lawful, whether there was sufficient
evidence for the jury to conclude that the marijuana
had been unlawfully imported by appellant and whether
appellant knew it had been unlawfully imported when he
transported it:
[1-3] The search and seizure were plainly lawful.
The circumstantial evidence of knowledge of unlawful
importation on Count 2 of the Indictment, though not
overwhelming, was clearly sufficient to support the jury
verdict. The questions of the sufficiency of the evidence to
support the smuggling charge of Count 1 need not be
reached since the sentences of Count 1 and 2 were identical
and concurrent. United States v. Aranda, 9th Cir., 1972,
457 F.2d 761.
The judgment is affirmed.
71
No. 72-5329
JoHN LEE BoWEN, PETITIONER
Vv.
UNITED STATES
Facts and opinion, 462 F.2d 347.
. June 25, 1973. On petition for writ of certiorari to the
United States Court of Appeals for the Ninth Circuit.
Motion for leave to proceed in forma pauperis and pe-
tition for writ of certiorari granted. Judgment vacated
and case remanded to the Court of Appeals for further
consideration in light of Almeida-Sanchez v. U.S., ——
U.S. ——,, 93 S.Ct. 2535, 36 L.Ed. 2d —— (1978).
72
UNITED STATES DISTRICT COURT
FOR THE NINTH CIRCUIT
No. 72-1012
[Filed Oct. 23, 1978, U.S. Court of Appeals, —————,
Clerk]
UNITED STATES OF AMERICA, APPELLEE
v8.
JOHN LEE BOWEN, APPELLANT
ORDER
Before: CHAMBERS, MERRILL, KOELSCH, BROWN-
ING, DUNIWAY, ELY, HUFSTEDLER,
WRIGHT, TRASK, CHOY, GOODWIN, WAL-
LACE and SNEED, Circuit Judges.
A majority of the judges of this court in active service
have voted to hear the above case en banc on December
11, 1973, at 1:30 P.M. If counsel desire to submit ad-
ditional briefs, such briefs must be filed in the Clerk’s
Office of this Court no later than November 15, 1973.
Argument will be in Courtroom No. 1 in the United
States Court of Appeals and Post Office Building, Seventh
and Mission Streets, San Francisco.
Circuit Judge Chambers will file a dissent to the
foregoing order.
73
No. 72-1012
[Filed Oct. 30, 1978, U.S. Court of Appeals, —_—_——___,
Clerk] ;
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
JOHN LEE BOWEN, DEFENDANT-APPELLANT
CHAMBERS, Circuit J udge, dissenting:
I dissent from the order for en banc. At issue is the
retroactivity of Almeida-Sanchez v. United States, 411
U.S. 903 (1973). Also involved in Bowen under Almeida-
Sanchez is the status of an intermittent but fixed check-
point.
I would let the panel decide the case. None of the
earmarks of the normal case for en banc are here.
It is inescapable that the’ Supreme Court will decide
the questions here. They are too big and too far reach-
ing for that Court to ignore them.
This en banc hearing results in about a threé-months’
delay in the case getting to the Supreme Court. Mean-
while, two or three district courts are almost choked
with the retroactive question. Thus, knowing our de-
cision means little in this instance, I was prepared’ to
live with, any decision the panel might render.
Taking this case en banc is simply flying off into the
air without a payload. :
/s/ Richard H. Chambers
United States Circuit Judge
14
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
= ee
_ No. 72-1012
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v8.
JOHN LEE BOWEN, DEFENDANT-APPELLANT
[May 9, 1974]
Appeal From the United States District Court
For the Southern District of California
, Before: CHAMBERS, MERRILL, KOELSCH, BROWN-
ING, DUNIWAY, ELY, HUFSTEDLER,
WRIGHT, TRASK, CHOY, GOODWIN, WAL-
LACE and SNEED, Circuit Judges
| PER CURIAM:
- This appeal is oe the court upon the remand of the
Supreme Court, en Vv. United States, 413 U.S. 915
(1973), vacating 462 F.2d 347 (9th Cir. 1972).
Bowen was convicted of smuggling and transporting
marijuang and of possessing depressant and stimulant
drugs. ‘The evidence of the violations was discovered _
during a routine search for illegal aliens of a per
truck at a permanent border-patrol checkpoint ‘Cali.
fornia State Highway 86 approximately 36 air ‘miles and
49 highway miles north of the Mexican border. Highway
86 is a principal route. from Mexacali 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
a ace
—~
——_
75
roving patrol cannot stop and search cars pursuant to
8 U.S.C. § 1857(a) and 8 C.F.R. § 287.1 without probable
cause or warrant.
Two separate issues are presented here: (1) How
does Almeida-Sancheéz 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 ap-
plied to fixed-checkpoint searches conducted by border-
patrol agents prior to June 21, 1978, 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 Al-
meida-Sanchez will not be applied to fixed-checkpoint
searches conducted prior to June 21, 1973.
The judgment of conviction is affirmed.
PARTI
GOODWIN, Circuit Judge:
According to the Supreme Court in Almeida-Sanchez
v. United States, 418 U.S. 266 (1973), the government
has been conducting three types of alien searches pursuant
to 8 U.S.C. § 1857(a) and 8 C.F.R. § 287.1: (1) searches
at “[plermanent checkpoints * * * maintained at cer-
tain nodal intersections”; (2) searches at “temporary
checkpoints * * * established from time to time at various
places”; and (3) searches carried out by “roving patrols.”
413 U.S. at 268. The government argued in Almeida-
Sanchez that all these searches conducted “within a rea-
sonable distance from any external boundary,” 8 U.S.C.
§ 1857(a) (3), could be considered 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
76
of the Mexican border, on a California east-west high-
way 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 population centers of the Imperial
Valley and Indio.
The opinion’ in Almeida-Sanchez, delivered by Mr.
Justice Stewart, leases little doubt that traditional Fourth
Amendment standards apply to fixed-checkpoint searches
as well as to roving-patrol searches. Early in the opinion,
after listing the three types of surveillance conducted by
the Border Patrol along inland roadways and noting that
the government argues that “[i]n all these operations
* * * the agents are acting within the Constitution when
they stop and search tomobiles without a warrant,
without probable cauge 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]jhe
only asserted justification for this extravagant license to
search is § 287 of the Immigration and Nationality Act,
66 Stat. 288, 8 U.S.C. § 1857(a) * * *.” 413° U.S. at 268.
1Mr. Justice Stewart’s opinion is explicitly identified as “the
opinion of the Court.” It was approved by a majority of five jus-
tices, including Mr. Justice Powell, who stated, “* * * I join the
opinion of the Court * * *.” 413 U.S. at 275. Mr. Justice Powell
has demonstrated elsewhere that he understands the difference be-
tween concurring in an opinion and concurring only in its results.
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 in the result * * *.”) with
Cleveland Bd. of Educ. v. LeFleur, 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. Richardson, 411 U.S. 677, 691
(1973), (concurring only in judgment). The language of Mr. Jus-
tice 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 Almieda-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.
77
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.F.R. § 287.1(a) (2). Here, the
government seeks to justify the fixed-checkpoint search
by reference to the same statute and regulation. But,
when the Supreme Court held that this statute and reg-
ulation could not exempt searches carried out pursuant
to them from traditional Fourth Amendment scrutiny, .
see 413 U.S. at 272, the government’s statutory justifica-
tion 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: | i
«* * * Tt would be intolerable‘and unreasonable if
a prohibition agent were authorized to stop every
automobile on the chance of finding liquor and thus
subject all persons lawfully using the highways to
the inconvenience and indignity of such a search.
Travellers may be stopped in crossing an interna-
tional boundary because of national self-protection
reasonably requiring one entering the country to
identify himself as entitled to come in, and his be-
longings 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 pas-
sage 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.
It would be strange indeed for the Court to quote this
language if it meant to leave intact the government’s
asserted right to established fixed checkpoints anywhere
within 100 miles of the border. Surely, searches at these
checkpoints, like searches by roving patrols have the effect
of violating the “right to free passage without inter-
ruption or search” of “those lawfully within the country
* *'*» Such searches, therefore, must meet constitutional
ssaienihiniaieehint iat iiabidtienindb asians ecineinemnie neat nite
78
standards regardless of their utility in carrying forward
the difficult 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, 288.
Nonetheless, these disclaimers do not override clear in-
dications in the opinion of the Court that any distinction
between fixed and movable checkpoints will be meaning-
less unless the distinction can be based upon reasoned
Fourth Amendment considerations.
The government argues that there are, in fact, signifi-
cant constitutional differences between roving patrols and
fixed checkpoints. First, since fixed checkpoints often in-
volve a stop and inspection of every car passing through
them, they provide much less opportunity for the un-
fettered 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 con-
tends 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 de-
cisions upholding 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.
1070); People v. Washburn, 265 Cal. App. 2d 665, 71
Cal. Rptr. 577, 581 (2d Dist. 1968); State v. Smolen,
4 Conn. Cir. 385, 2382 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).’
2 But see Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875
(1978), in which the Supreme Court of Pennsylvania held that a
routine check of a motor vehicle to determine whether it and its
operator were properly licénsed violates the Fourth Amendment.
See also State v. Cloman, 254 Or. 1, 6 n. 2, 456 P.2d 67, 69 n. 2
(1969), in which the Supreme Court of Oregon expressly reserved
79
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
seasoned traveler. Being flagged over to the side of the
road by a roving patrol might be traumatic. Also, an
officer on roving patrol probably has more discretion in
deciding which cars to stop than one stationed at a fixed
checkpoint, although the difference might be less than the
government contends. Since not all. vehicles passing
through a checkpoint are stopped, and since not all ve-
hicles 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 roving-patrol search, we are able to find nothing
in the opinion of the Court in Almeida-Sanchez which
suspends Fourth Amendment standards in dealing with
immigration searches at fixed checkpoints.
Moreover, the government’s reliance on judicial de-
cisions upholding automobile stops for the purpose of
checking drivers’ licenses is misplaced. Although the
government has cited only roadblock stops, there is a
parallel line of decisions upholding roving-patrol stops to
check for valid license and registration. See, e.g., Lipton
v. United States, 348 F.2d 591 (9th Cir. 1955); State
v. Ream, 19 Ariz. App. 131, 505 P.2d 569 (Div. 1, Dept.
B, 1973) ; Leonard v. State, 496 S.W.2d 576 (Tex. Crim.
1973). In other cases, courts did not even find the fact
that the stop may have been at a roadblock rather than
incident to a roving patrol significant enough to men-
tion. See, e.g., United States v. Lepinski, 460 F.2d 234,
237 (10th Cir. 1972); Myricks v. United States, 370
F.2d 901 (5th Cir.), pet. for cert. dismissed, 386. U.S.
1015 (1967). Hence, since this line of vehicle-registra-
tion-check decisions was as relevant in Almeida-Sanchez
ruling upon “the right to stop and examine the driver’s operating
license or the right to stop at a general roadblock.” See generally
Note, Nonarrest Automobile Stops: Unconstitutional Seizures of
the Person, 25 Stan. L. Rev. 865 (1973).
80
as here, we do not find these decisions to be an ap-
propriate means for distinguishing Bowen’s search from
that of Almeida-Sanchez.
What is more, the rationale for the drivers’-license
decisions will not support the government’s position here.
For example, in Lipton v. United States, supra, in which
this court upheld a stop by a 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 produce his license. We noted:
«* * * A contrary holding would render unen-
forceable the State statute requiring that automobile
drivers be licensed.” 348 F.2d at 593.
We are not persuaded that laws prohibiting illegal im-
migration will be rendered similarly unenforceable should
we deny to the government the power to stop and search
automobiles, without probable cause or warrant, at fixed
checkpoints.
We hold, then, that fixed-checkpoint searches, like rov-
ing-patrol searches, even though conducted within a “rea-
sonable dis ” from the border, are not necessarily
exempt from the traditional Fourth Amendment require-
ment of a warrant or probable cause. This holding, how-
ever, merely shifts the focus of our inquiry. The opinion
in Almeida-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 cer-
tain circumstances” at the border’s “functional equiva-
lents.” 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 the border checkpoint is to regulate
_ border crossings. Thus,‘in attempting to clarify what
would constitute a “functional equivalent” of the border,
the Court in Almeida-Sanchez offered two examples:
«“* * * For example, searches at an established
station near the border, at a point marking the
81
confluence of two or more roads that extend from
the border, might be functional equivalents of bor-
ders searches. For another example, a search of the
passengers and cargo of an airplane arriving at a St.
Louis airport after a nonstop flight from Mexico
City would clearly be the functional equivalent of a
border search.” 413 U.S. at 272-73. (Emphasis
, added. )
These examples are then contrasted with the search con-
ducted in Almeida-Sanchez:
_ “* * * [The search of * * * [an] automobile by a
roving patrol, on a California road that lies at all
points at least 20 miles north of the Mexican border,
was of a wholly different sort * * *” 413 U.S. at
273.5
In other words, if a search takes place at a location
where virtually everyone searched has just come from
the other side of the border, the search is a functional
equivalent of a border search. In contrast, if a search
takes place at a location where a significant number of
those stopped are domestic travelers going from one point
to another within the United States, the search is not
the functional equivalent of a border search. One
need only contemplate the volume of domestic travel be-
‘tween Buffalo and Rochester, New York, to see why a
checkpoint between those two cities could not be the func-
tional equivalent of a border checkpoint even though the
checkpoint could be less than twenty miles from an in-
ternational border.
In addition to the two examples of a functional equiva-
lent 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 v. United States, 362 F.2d
379 (9th Cir.), cert. denied, 385 U.S. 977 (1966). In that
8 Mr. Justice Powell in his concurrence also noted: “The search
here involved * * * was not a border search, nor can it fairly be
said to have been a search conducted at the ‘functional equivalent‘
of the border.” 413 U.S. at 275-76.
82
case customs officials, acting upon a tip from an informer,
placed the defendant’s automobile under surveillance 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 subsequent search
by customs officials was properly called a border search,
the court stated:
“Where * * * a search for contraband by Cus-
toms officers is not made at or in the immediate
_ Vicinity of the point of international border crossing,
the legality of the search must be tested by a de-
termination whether the totality of the surrounding
circumstances, including the-time and _ distance
elapsed as well as the manner and extent of surveil-
lance, 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 certainty that
the vehicle searched contained either goods which have
just been smuggled or a person who had just crossed the
border illegally. See, e.g., United States v. Weil, 432
F.2d 1320 (9th Cir. 1970), cert. denied, 401 U.S. 947
(1971), in which this court held:
* See also United States v. Mejias, 452 F.2d 1190, 1192-93 (9th
Cir. 1971); United States v. Terry, 446 F.2d 579 (9th Cir.), cert.
denied, 404 U.S. 946 (1971) ; Castillo-Garcia v. United States, 424
F.2d 482, 484-485 (9th Cir. 1970); Bloomer v. United States, 409
F.2d 869, 870-71 (9th Cir. 1969); Gonzales-Alonso y. United
States, 379 F.2d 347, 379-50 (9th Cir. 1967); Rodriquez-Gonzales
v. United States, 378 F.2d 256, 258 (9th Cir. 1967); Leeks v.
United States, 356 F.2d 470, 471 (9th Cir. 1966); King v. United
States, 348 F.2d 814, 816 (9th Cir.), cert. denied, 382 U.S. 926
(1965) ; Murgia v. United States, 285 F.2d 14 (9th Cir. 1960),
cert. denied, 366 U.S. 977 (1961), cert. denied, 376 U.S. 946 (1964).
83 P
“* * * [I]f customs agents are reasonably 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 reason-
abiy certain that a person has crossed the border
illegally, and has then entered a vehicle on this side
of the border, we think that they may stop and search
the vehicle and person. They can assume that he
may have brought something with him.” 482 F.2d
at 1323.° :
In both of these pre-Almeida-Sanchez lines of Ninth
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
border. See United States v. Almeida-Sanchez, 452 F.2d
at 463 (dissenting opinion of Browning, J.), rev’d, 413
U.S. 266 | (1978).
It is clear that the search conducted in the present case
lacks the vital connection between the vehicle stopped
and a reasonable certainty, or even a probability, that
it or its contents had recently crossed an international
border. The checkpoint was approximately 36 air miles
and 49 highway miles north of the Mexican border. Sev-
eral significant population centers and highways, includ-
ing Interstate 8, a major east-west freeway that con-
nects the Southwest with the West Coast, lie between
the checkpoint and the border. Under these circumstan :
border-patrol agents had no reason to believe that virtually
all or even most of the cars passing through their check-
point had recently, or ever, crossed the border. More-
over, there was neither the continuing surveillance from
the border nor the dependable intelligence from other
5 See also United States v. Vigil, 448 F.2d 1250 (9th Cir. 1971);
United States v. Markham, 440 F.2d 1119, 1121-23 (9th Cir. 1971).
See generally Note, From Bags to Body Cavities: The Law of Border
Search, 74 Colum. L. Rev. 53 (1974) ; Note, In Search of the Border:
Searches Conducted by Federal Customs and Immigration Officers,
5 N.Y.U.J. Int'l L. & Politics 93 (1972).
84
sources required to fit this case into the Alexander line
of decisions; nor was there the reasonable certainty that
the vehicle contained either recently smuggled goods or
aliens required under the Weil line. See United States
v. Petersen, 473 F.2d 874 (9th Cir. 1973) ; United States
v. Mitchell, 472 F.2d 67, 68 n.1 (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 equivalency. Where the record
is as clear as it is here, however, we see no need for a
remand.°
At 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
difficulty in detecting and repatriating illegal aliens
along our southern boundary needs no new documenta-
tion here. The short answer to this argument, however,
is that necessity alone cannot override the Fourth Amend-
ment’s prohibition against unreasonable searches and seiz-
ures. 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 con-
curring opinion in Almeida-Sanchez suggested that war-
rants 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
*Cf. United States v.: King, 485 F.2d 353 (10th Cir. 1973);
United States v. Maddox, 485 F.2d 361 (10th Cir. 1973). Both
cases held that a warrantless search, without probable cause, of an
automobile at the checkpoint in Truth or Consequences, New Mex-
ico, violates the Fourth Amendment unless a search at that check-
point could be deemed the functional equivalent of a border search.
Both cases were remanded to the district court for determination
of that issue. However, beyond directing the 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.
lh Gaines
85
seek such a warrant in this case, we need not now ex-
press an opinion on a hypothetical search conducted pur-
suant 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 procedures less offensive to the Fourth
Amendment than judicially unapproved checkpoint
searches might be devised and implemented to supple-
ment its program for enforcing immigation laws.
. Our conclusion that Almeida-Sanchez is as applicable
to fixed-checkpoint searches as to roving-patrol searches
is consistent with that reached by the Court of Appeals
for the Fifth Circuit in United States v. Speed, 489 F.2d
478 (5th Cif 1973). There, the court held that a border-
patrol search at a temporary checkpoirt on a north-south
highway approximately 65 to 75 miles north of the Mexi-
_can border was neither a border search nor a functional
equivalent of a border search and, hence, was uncon-
stitutional. The court commented, “The distinction be-
tween a checkpoint and a roving patrol is not important.”
489 F.2d at 480.
Likewise, the Court of Appeals for the Tenth Circuit
has heid that a warrantless search, without probable
cause, of an autgmobile at the checkpoint at Truth or
Consequences, N ey Mex, violates the Fourth Amend-
ment unless a search at that eheckpoint could be deemed
the functional equivalent of a border search. United
States v. King, 485. F.2d 353 (10th Cir. 1973); United ©
States v. Maddow, 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.
Judges Merrill, Browning, Duniway, Ely, Hufstelder
and Trask concur in this majority opinion (Part I).
86-
[Part I}
)
WALLACE, Circuit Judge, Dissenting:
I respectfully dissent to Part. I of the opinion pertain-
ing to the applicability of Almeida-Sanchez to searches con-
ducted 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 clandes-
tine. The procedure has come before our court on nu-
merous 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 apparent 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 re-
versal 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 that
Almeida-Sanchez also requires that we outlaw searches
at fixed checkpoints. The Opinion of the Court was de-
livered by Justice Stewart and concurred in by Justice
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 suf-
ficiently establishes that none of our Fourth Amend-
ment decisions supports the search conducted in this
case, I add this concurring opinion to elaborate on
my views as to the meaning of the Fourth Amend-
ment in this context.”
413 U.S. at 275 (emphasis added). Justice Powell’s
concurrence, therefore, adds a fifth Justice, and thus a
1 See cases cited in note 1 of Part II of majority opinion, supra.
87
mafority, only to that part of the J ustice Stewart opinion
which invalidates 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 border search, nor can it fairly be said’ to have
been a search conducted at the “functional equiva-
lent” of the border. Nor does this case'involve the
constitutional propriety of searches at permanent or
temporary checkpoints removed from the border or
its functional equivalent.
413 U.S. at 275-76 (cmphasis’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) tem-
porary 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 specifically and em-
phatically limited his concurrence to answering the ques-
tion of “whether and under what circumstances the Bor-
der Patrol may lawfully conduct roving searches of
automobiles in areas not far removed from thé 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
States v. Bowman, —— F.2d —— (10th Cir. Nov. 29,
1973), which involved a stop at a fixed checkpoint located
2In footnote 1 of Part I of the majority opinion, it is contended
that Justice Powell’s concurring opinion joins in the entirety of
Justice Stewart’s opinion. The grammatical structure of the sen-
tence qualifies his statement. The majority quotes him, “. . . I
join in the opinion of the Court ....” But he stated, “While I
join in 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.
88
_a few miles north of Truth or Consequences, New fies
co. Although they arrived at their conclusion by an al-
ternate 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 immigra-
tion officials to make routine inquiries as co an indivi-
dual’s nationality.”* The Tenth Circuit apparently has
recognized that Almeida-Sanchez does not resolve the
validity of immigration stops and searches at fixed check-
points.
_ Ignoring the significance of Justice Powell’s limited
concurrence, the majority | relies basically upon the lan-
guage quoted by Justice Stewart from Carroll v. United
States, 267 U.S. 182 (1925), and contends that that lan-
guage 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 pro-
nouncement by a majority of the Court.
Because of the close fragmented vote and because Jus-
tice Stewart’s opinion must be limited in application’ to.
roving patrols, great insight can be secured from the dis-
senting opinion of Justice White’ in which the Chief
Justice and Justices Blackmun and Rehnquist concurred.
Stistice White, after noting that the Court in Carroll v.
United States, 267 U.S. at 154, recognized that neither
rrant nor probable cause is required to stop and
search at the borders, stated this right was undisputed
in Almeida-Sanchez. He also, with the concurrence of the
three other Justices, concluded: “Neither, apparently, is it.
| § F.2d at ——; but see United States v. King, 485 F.2d 353,
(10th Cir. 1973), which invalidated a search at a fixed checkpoint
unless it is a functional equivalent of:a border.’ Bowman, King
‘ and United States v. Maddox, 485 F.2d 361 (10th Cir. 1973), sug- |
gest 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. ;
/
/
89
disputed that warrantless searches for aliens without prob-
able cause may be made at fixed checkpoints away from
the border.” 413 U.S. at 288. Thus, four Justices have
" ‘specifically taken a position diametricaty 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 issue.‘: Suffice it to say that based on the
Almeida-Sanchez opinion, four Justices have concluded
that searches for aliens at fixed checkpoints are not con-
stitutionally infirm and that there is no majority con-
sensus 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 equiva-
lent. Justice Stewart acknowledges in Almeida-Sanchez
that border searches may be conducted at the functional
equivalents of the border and gives us two examples.
413 U.S. at 272-73. But the examples give us precious
little by way of definition. The majority attempts to
expand that definition by referring to border extension
cases where the vehicle involved has been under surveil-
lance since it crossed the border, or where ‘t 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 com-
pare like apples and oranges. The only real assistance
comes from the two examples in Justice Stewart’s opinion.
Yet, with this little guidance, the majority makes a
factual finding that the checkpoint in this case was not
a functional equivalent. How is this done? The majority
merely states, based on “the record.” The record in this
case, however, only tells us where the fixed checkpoint
is, how far it is from the border, that several highways
‘It is noted that the four dissenters agree with Justice Powell
that an area search warrifit 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.
90
intersect Highway 86 before the checkpoint, that there
are several cities along the Highway before the check-
point, 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 even larger in view of the
fact that a district court, after taking extensive testi-
mony, concluded that the Route 86 checkpoint was a func-
tional equivalent of the border. United States v. Baca,
—— F.Supp. (S.D. Cal. Jan. 3, 1974). We would
be far better advised to test the majority’s theories on a
factual record such as that developed 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
majority apply to determine whether a fixed checkpoint
meets the strictures of the Fourth Amendment?
It says that the government cannot justify searches
made at fixed checkpoints without a warrant or probable
cause on the basis of 8 U.S.C. § 1857(a) (3) and 8 C.F.R.
§ 287.1(a) (2) because the statute and regulation were
vitiated in Almeida-Sanchez. But, once again, the ma-
jority 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 J sy Powell’s concurrence,
Justice Stewart did not state! that 8 U.S.C. $1857(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
5 The Tenth Circuit, erroneously, I think, has also-applied a lim-
ited Fourth Amendment test to a fixed checkpoint but did remand
for a factual determination on the question of whether the check-
point 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).
+ ence
91
invalidates searches at fixed checkpoints simply because
they too are conducted pursuant to 8 U.S.C. § 1857(a)
without independent consideration of whether such
searches are reasonable under the Fourth Amendment,
they bridge a gap overnight rather than sound legal
reasoning.
After finding as a fact that the checkpoint on High-
way 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 be-
cause (1) “the search was not the functional equivalent
of a border search” and (2) it “was authorized neither
by warrant nor by probable cause.” * The majority’s test
is_incomplete.. Four Supreme Court Justices have con-
cluded that warrantless searches for aliens without prob-
able cause may be made at fixed checkpoints. Their test
was one of balancing the appropriate interests to de
termine whether the search was reasonable. Such an
approach does not preclude Fourth Amendment analysis,
but applies it without requiring that the search satisfy
artificial criteria. It focuses upon the balancing protec-
tions afforded by the Fourth Amendment, as reiterated
by Justice White, dissenting in. Almeida-Sanchez: “The
Amendment’s overriding prohibition is. . . against ‘un-
*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 incident to that ar-
rest. 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 ob-
tained a search warrant. Since a search warrant, in the traditional
sense, could not be obtained prior to the time when ‘the vehicle
reached the checkpoint, andisince requiring the driver to wait for
the officer to obtain a warrant would be an arrest, the checkpoints
would be limited in their deterrent effect on illegal aliens. It is
not clear whether the majority opinion would allow immigration
officials to stop vehicles as they come through the checkpoints to
ask the citizenship of the occupants. If so,~the checkpoints could
still have some deterrent effect. ,
;
i
92
reasonable’ searches and seizures... .” 413 U.S. at 287-
88. See Cady v. Dombrowski, 413 U.S. 488, 489 (1978).
Whether or not a search is reasonable “depends upon the
facts and circumstances of each case and . . . searches of
cars that are constantly movable may make the search
of a car without a warrant 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. Dom-
browski, 413 U.S. at 440, quoting Copper v. —
386 U.S. 58, 59 (1967).
In addition, we should not overolook 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 reasonableness. See United States v.
Biswell, 406 U.S. 311 (1972); Colonnade Catering Corp.
v. United States, 397 U.S. 72 (1970).
Certain types of searches have been constitutionally
approved as reasonable although they have been made
without probable cause or a warrant. A careful analysis
of areas where such searches have been upheld as reason-
able within the meaning of the Fourth Amendment demon-
strates persuasive reasons. for the same approach in test-
ing the constitutionality of stops and searches at fixed
checkpoints. For example, in Terry v. Ohio, 392 U.S.
1 (1968), the Court concluded that such a search was
reasonable after applying a test that balanced the in-
terests 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 war-
rant or “probable cause” was not considered unreason-
able. Similarly in Camera v. Municipal Court, 387 U.S.
523 (1967), the Court upheld a non-objected-to’ search
to all structures in a certain area to enforce a building
code in spite of the nonexistence of probable cause or a
7 Camare 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 checkpoint stop. See United States v.
Baca, —— F.Supp. at ——.
Ta ne Ce
YS Se
93
warrant. Once again, the balancing test of reasonableness
was applied to measure “the need to search against the
invasion which the search entails.” Jd. at 587.
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 intrusions in order
to protect the rights of the majority.* In these specific
areas, as long as the stops and searches are limited in
their scope to a proper 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 con-
traband 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 con-
sidered a limited search, as they enter a state. Such stops
and searches have becn upheld as legal. Commonwealth
v. Abell, 275 Ky. 802, 122 S.W.2d 757 (Ky.App. 1988).
Similarly, probable cause is not necessary to stop a ve-
hicle to check for a valid driver’s license and contraband
found incident to such a stop is not the subject of an
illegal search.® United States v. Croft, 429 F.2d 884 (10th
8In balancing the interests of the majority against the interests
of the individual, it is necessary that before we uphold a warrant-
less search we give major consideration to whether requiring a
warrant would frustrate the govermmental 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 all automobiles at the checkpoints, this
requirement has been satisfied in this case. However, some type of
area search warrant, as suggested by Justice Powell, may be pos-
sible in the checkpoint situation. See note 3, supra. That alterna-
tive is not before us now.
® The majority notes the cases upholding stops for inspection of
drivers’ licenses and vehicle registration, but distinguishes them
from stops at fixed checkpoints on the basis that if such stops were
not allowed the driver’s license and vehicle statutes would be ren-~
dered unenforceable, whereas the majority is “not persuaded” that
the immigration laws would similarly be rendered unenforceable
by this decision. The record in this case is not complete enough
to allow us to determine what effect our decision will have on the
94
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 Fourth
Amendment. United States v. Schafer, 461 F.2d 856
(9th Cir. 1972).
Perhaps the most obvious example is the limited search
that all passengers on airline flights are subjected to
before they are even allowed in the boarding areas. At
least at one time, if the would-be passenger met addi-
tional criteria (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 evidence of a crime found in the
course of such a search may not be suppressed on the
theory that the search violates the Fourth Amendment.
E.g., United States v. Doran, 482 F.2d 929 (1978) ; United
States v. Davis, 482 F.2d 893 (1973). When 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 reasonable.” As we
stated in United States v. Davis, 482 F.2d at 910:
enforcement of the immigration laws, but indications are that
the adverse effects will be substantial. See United States v. Baca,
F.Supp. at ——.
10In United States v. Davis, 482 F.2d 893 (9th Cir. 1973), we set
forth the criteria necessary for such a search to be reasonable. We
stated that (1) the search must be “conducted as part of a general
regulatory scheme in furtherance of an administrative purpose,
rather than as part of a criminal investigation to secure evidence
of acrime....” 482 F.2d at 908. (2) The essential purpose of the
search must be not .to detect contraband or apprehend criminals,
but “to deter persons carrying [weapons or explosives] from seek-
ing to board at all.” 482 F.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.2d at 913.
The search in this case satisfie: these criteria. (1) Bowen was
stopped as part of a routine check for illegal aliens proceeding to
the interior of this country. Either all vehicles passing through
the checkpoint were stopped or a limited number were stopped based
upon objective criteria that would give the officer reasons to sus-
95
To pass constitutional muster, an administrative
search must meet the Fourth Amendment’s standard
of ‘reasonableness. “Unfortunately, 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 536-587, 87 S.Ct. at 1735.
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 Almzida-Sanchez, delivered by Mr.
Justice Stewart, leaves little doubt that traditional
Fourth Amendment standards apply to fixed-check-
point searches as well as to the roving-patrol searches.
(Footnote omitted. ) =
But there is a majority holding on the issue of roving
patrols. There is a vast difference between a red-light,
midnight stop on a lonely road and approaching a well-
lighted, fixed checkpoint with warning signs and uni-
formed men plainly visible." The majority’s assumption
that five of the Justices have or would apply the same
standard in both is one I cannot accept.
Under the correct test, whether the search at this fixed
checkpoint was unreasonable should be determined in the
pect that illegal aliens may be within the vehicle. United States v.
Baca, —— F.Supp. at ——. (2) The primary purpose of the stop
and the search was not to detect contraband or criminals, but rather
to deter illegal aliens from attempting to flee to interior cities with
large populations. Id. at ——. The stop and the search were con-
ducted pursuant to a statute designed to regulate immigration
rather than general law enforcement. (3) The scope of the search
was limited to areas where a person may hide. Other areas were
not searched until the officer had probable cause to believe a crime
had beer: 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.
"1 United States v. Baca, —— F.Supp. at ——.
96
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 borders.’? Both Justices
Powell ** and White refer to the Herculean challenges
22 Many of the factors enumerated by Justice Powell as a pre-
requisite for an area search warrant might also be considered in
determining whether there was an unreasonable interference 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 trans-
ported within a particular area; (ii) the proximity of the
area in question to the border; (iii) the extensiveness and geo-
graphic characteristics of the area, including the roads therein
and the extent of their use, and (iv) the probable degree of
interference with the rights of innocent persons, taking into
account the scope of the proposed search, its duration, and the
» concentration of illegal alien traffic in relation to the weneral
traffic of the road or area.
413 U.S. at 283-84 (footnote omitted).
18 The Government has made a convincing showing that large
numbers of aliens cross our borders illegally at places other
than established crossing points, that they are often assisted by
smugglers, that even those who cross on foot are met and trans-
ported to. their destinations by automobiles ... . It would, of
course, be wholly impracticable to maintain a constant patrol
along thousands miles of border. Moreover, because many of
these aliens cross the border on foot, or at places other than
established checkpcints, it is simply not possible in most cases
for the Government to obtain specific knowledge that a person
riding or stowed in an automobile is an alien illegally in the
country. Thus the magnitude of the problem is clear.
413 U.S. at 265-66. <
14 The external boundaries of the United States are extensive.
The Canadian border is almost 4,000 miles in length; the Mexi-
can, almost 2,000. Surveillance is maintained over the estab-
lished channels and routes of communication. But not only is
inspection at regular points of entry not infallible, but it is
also physically impossible to maintain continuous patrol over
_ vast stretches. of our borders. The fact is that illegal crossings
at other than the legal ports of entry are numerous and re-
curring.
413 U.S. at 293 (emphasis added).
97
faced by those directed to prevent illegal entries. Before
we direct the Dutch boy to remove his finger from the
dike, we owe it to the American people at least to balance
their interests against the interests of the individual in
being free from this limited intrusion.
While no one can give an accurate count, it has been
estimated that there are approximately 800,000 to over
1 million 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 year
1972, with over 39 million of these entering directly
into Southern California. Jd. at ——. A large percent-
age of these visitors enter with temporary border passes,
restricting them to a seventy-two hour stay and to trave!
within twenty-five miles from the border. Jd. at ; see
8 C.F.R. § 212.6. To enforce these restrictions, some type
of investigation away from the border is required. The
majority suggests that this flow of illegal aliens can be
sufficiently regulated by alternative methods. But I sug-
gest 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 curtailing the number of illegal
entries. United States v. Baca, —— F.Supp. at ——.
Further, even stopping the illegal flow’ across the border
would not halt those legally entering but illegally travel-
ling more than twenty-five miles from the border. There-
fore, while I agree with ‘the majority that alternative
methods of enforcement of the law should be included
in the balancing approach, one district court found:
The evidence presented before this court clearly
established that there is no reasonable or effective
alternative method of detection and apprehension
available to the Border Patrol, in the absence of the
checkpoints, for even a geometric increase in its per-
sonnel or line watch would not leave any control
over those admitted as temporary visitors from
Mexico.
98
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 de-
termination. The findings already made by one district
court pertaining to the checkpoint where Bowen was
stopped indicate that such would not he~a-fruitless ex-
ercise.* With an adequate factual record, we could
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 inter-
section of State Route 78. This location is approximately -36 air
miles and 49 road miles from the Mexican border.~The checkpoint
is bordered on the east by farm land extending for ut three
miles to the Salton Sea. To the west and south of this checkpoint
lies desert.
At this location the Border Patrol has a building and traffic
_ check signs together with blinker lights. A power source is located
at the facility. The signs are of the usual type and the floodlights
at night cause the area to be very well lit. As can be seen from
photographs introduced by the government, the area is desolate
country with virtually no inhabitants between the checkpoint and
the border.
The Border Patrol attempts to keep 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.
At this checkpoint the checking operations are of the usual type
with about 75 percent of the vehicles traveling through it being
stopped for inquiry with around 10 percent to 15 percent of all
vehicles being detained for further inspection. It 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.
During the first ten months of calendar year 1973 approximately
690 deportable aliens were apprehended at this checkpoint according
to the detailed traffic log maintained by the Border Patrol.
This checkpoint is located on a point with one of the lowest vol-
umes 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 of the
lowest volumes of traffic on that highway, thus tending to cause lit-
99
proceed with the delicate constitutional balancing neces-
sary to determine whether the stop and search were
unreasonable.
Judges Chambers, Koelsch, Wright, Choy and Sneed
concur in this dismissing opinion to Part I.
—— ; ~~
tle intrusion and inconvenience to travelers, as well as scarcely
impeding the goal of safe driving. This checkpoint is not easy to
intentionally circumvent without’ being steered into another check-
point 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 Mexi-
cali, B.C., Mexico.
100
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 retroactive.
If it does not, no such testing is necessary as, by defini-
tion, without a new rule, there 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 upon.*
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.
Justice Stewart enunciated a similar test a year earlier in Chev-
ron Oil Co. v. Huson, 404 U.S. 97, 106 (1971), as follows:
[T]he decision to be applied nonretroactively must establish a
new principal of law, either by overruling clear past precedent
on which litigatnts may have relied, . . . or by deciding an is-
sue of first impression whose resolution was not clearly fore-
shadowed .... (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. Fot\example, in Robinson v. Neil, 409
U.S. 505 (1973), the Court declined to apply Linkletter (the Sto-
vall test) to determine whether 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 pronouncement,
the Court did not discuss this consideration in deciding not to apply
the Stovall test.
In Michigan v. Payne, 412 U.S. 47 (1973), the Court was faced
.With the question of whether North Carolina v. Pearce, 395 U.S.
711 (1969), should be retroactive and applied the Stovall test
to only part of the Pearce rule. The Court stated, without apply-
ing the Stovall test, that no new constitutional rule was established
'
101
Under the first alternative of the test, a decision con-
stitutes 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 require-
ment would not only be illogical but would also be
violative of the reason for the rule. Only a small num-
ber 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 application of the law to the
lower courts. Therefore, law enforcement procedures
must be based to a great extent upon circuit court de-
cisions. Because of this necessity, a law enforcement
practice may develop and be sanctioned by court ap-
proval for many years before it is reviewed by the Su-
preme Court. Where such a rule is ultimately reversed
by the Court, the pronouncement is “new” simply by
on
by requiring that resentencing not be retalitory and, thus, that rule
would be available equally to all defendants regardless of the date
of their sentencing. However, the Court applied the Stovall test to
the “prophylactic” limitations established in Pearce requiring the
judge to give reasons, concluding that they should be applied only
prospectively. One could infer from Payne that the Stovall test
should be applied only to “new” rules, but Robinson indicates that
other factors may also be relevant.
Perhaps the clearest example indicating that the Court may ap-
ply a threshold test is Justice Blackmun’s opinion in Gosa v. May-
den, 413 U.S. 665 (1973), in which the Court declined to apply the
rule announced in O’Callahan v. Parker, 395 U.S. 258 (1969), retro-
actively. Before applying the Stovall test, Justice Blackmun found
it necessary to determine whether Gosa was an appropriate case to
even consider the question of retroactivity. Although noting that
the O'Callahan case was,a “clear break with the past,” the pri-
mary consideration influencing Justice Blackmun to apply the
Stovall test was the fact that the convictions under the prior rule
were not “so unfair as to void ah initio.” 413 U.S. at 675. Rather,
O'Callahan created a prophylactic rule designed to enhance “a
newly recognized constitutional principle.” 413 U.S. at 675. Even
though he noted that the rule was new, Justice Blackmun, like the
Court in Robinson, appeared to be more concerned with whether
the rule affected the integrity of the judicial process than with
whether or not it was new.
From these casese, it appears that the Court has not yet formu-
lated a single threshold test to be applied in all cases.
102
/
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 overrule a prior Supreme Court
case, when he wrote in Gosa v. Mayden, ‘413 U.S. 665,
673 (1973) :
Although the Court in O’Callahan did not expressly
overrule any prior degision, it did announce a new
constitutional principle, and it effected a decisional
change in attitude that had ne for many
decades.
Prior to Almeida-Sanchez, there was no indication from
any of the courts of appeals that searches at fixed check-
points were unconstitutional. Rather, the indication was
that such searches were constitutional, for 35 of 36
judges who had considered the question in the three
circuits involved in enforcing the immigration laws along
our Mexican border had upheld immigration stops and
searches. Almeida-Sanchez v. United States, 413 U.S.
at 298-99 n.10 (White, J., dissenting).
In addition to the numerous court pronouncements, the
statute pursuant to which the Border Patrol acted also
constitutes clear past precedent. Since 1952, searches for
aliens within a reasonable distance from the border have
been authorized by Congress. 8 U.S.C. § 1857(a) (3).
Obviously, such a statute establishes a legal rule until
repealed or declared unconstitutional. Although the Su-
preme Court did hold that, under the facts of Almeida-
Sanchez, that statute cannot make a search conducted
by a roving patrol reasonable within the Fourth Amend-
ment, it was the prior law just as much 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 per-
sonnel 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,
103
a legally enacted statute becomes the law until it is vitiated
by a court decision. Where the constitutionality of the
statute has been repeatedly upheld by the lower courts,
it becomes a clear precedent for law 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 clear past pre-
cedent, 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 pro-
nouncement. For over a decade we have consistently and
repeatedly upheld convictions based upon evidence seized
during searches made at fixed checkpoints; in none of
these cases has the constitutionality of such searches
been questioned.* A law enforcement practice authorized
by our court for such an extensive period easily satisfies
the second alternative of the test. Under either alterna-
tive, Almeida-Sanchez is a new pronouncement.
We, therefore, must determine whether this new rule
should be applied retroactively to fixed checkpoints. As
the Constitution does not mandate retroactive applica- .
tion, 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 recently reiterated in Michigan v. Payne, 412 U.S.
? United States v. Barron, 472 F.2d 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 1911 (9th Cir. 1970); United States v. Avey, 428
F.2d 1159 (9th Cir.), cert. denied, 400 U.S. 903 (1970); United
States v. Miranda, 426 F.2d 283 (9th Cir. 1970) ; Valenzuela-Garcia
v. United States, 425 F.2d 1170 (9th Cir. 1970) ; Barba-Reyes vy.
United States, 387 F.2d 91 (9th Cir. 1967); Renteria-Medina, 346
F.2d 853 (9th Cir. 1965); Fernandez v. United States, 321 F.2d
283 (9th Cir. 1963); Contreras v. United States, 291 F.2d 63 (9th
Cir. 1961); Cervantes v. United States, 278 F.2d 350 (Sth Cir.
1960). ‘
é 104
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 administration of justice of a retroactive ap-
plication of the new standards.
Stovall v. Denno, 388 U.S. at 297.
Criterion (a) of the Stowall test, the purpose to be
served by the new standard, generally dictates that the
new pronouncement be applied retroactively only when
the pronouncement affects the “fairness of the trial—
the very integrity of the fact-finding process.” Linkletter
v. Walker, 381 U.S. at 689. 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 co-
mitting the crime, a pronouncement requiring the sup-
pression 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
applied retroactively. As we held in Williams v. United
States, 418 F.2d 159, 162 (9th Cir. 1969), aff’d,. 401
U.S. 646 (1971):
The Court in Desist [394 U.S. 244 (1969)] said the
foremost of the three criteria was the first. If the
purpose is to deter misconduct of police officers in
conducting a search, the new exclusionary rule will
not be given retrospective effect because that pur-
pose is not advanced by penalizing conduct that has
already occurred. The exclusionary rule in such
cases, the Court observed, was a procedural device
to curb illegal police action and not a rule affecting
the integrity of the process for finding the innocence
or guilt of an accused.
Criterion (b) of the Stovall test, the reliance of law en-
enforcement officers on the old standards, is similar to the
second alternative of our threshold test. A careful analysis
105
demonstrates that law enforcement personnel justifiedly
relied on the prior rule. Since Almeida-Sanchez did not
determine the constitutionality of searches at a fixed
checkpoint, let alone establish a new rule as to such
searches, applying Almeida-Sanchez to fixed checkpoints
would overturn our own Ninth Circuit precedents. which
stretch back over a decade.
In Fernandez v. United States, 321 F.2d 288 (9th Cir.
1963), we were specifically faced with the issue of the
constitutionality of the statute and regulations authoriz-
ing 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 unconstitutional and
illegal per se, and are unconstitutional and illegal as
applied in this case. '
2. The stopping of cars 70 miles within the confines
of the United States constitutes unconstitutional and
illegal search and is unlawful without probable cause.
3. Evidence discovered during a search following
such illegal stopping of a car is “fruit of a poisoned
tree”, and must be suppressed.
321 F.2d at, 285. We found that the statute and regula-
tions, 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 checkpoiats, we ecncluded that the
statute and regulations as applied were “neither arbitrary
nor capricious.” We further held that after the officers
had legally stopped the ear. their detection of the odor
of marijana constituted probable cause sufficient to justify
a search of the car. We have repeatedly reaffirmed
Fernandez, not only upholding the validity of the initial
stopping of the car, but also upholding reasonable searches
for aliens made without probable cause. In Fumagalli
Vv. United States, 429 F.2d 1011 (9th Cir. 1970), after
reviewing Fernandez and a number of our other earlier
cases, we concluded:
What all of these cases makes clear is that prob-
able cause is not required for an immigration search
. 106
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 in-
ternational 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. Ammigration stops and searches at
fixed checkpoints, a practice that has extered over a
44 year period, has enjoyed ten years of continued and
uninterrupted judicial approval. If the border patrol
agents cannot rely upon a statute supported by clear
regulations which have repeatedly been upheld by a
Court of Appeals with no Supreme Court disapproval,
it is difficult to conceive what degree of official pronounce-
ments 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:
Today’s rulings were not foreshadowed in our cases;
no court announced such a requirement . . . . Law en-
forcement authorities fairly relied on this virtually
unanimous weight of authority,.now no longer valid,
in conducting pretrial confrontation in the absence
~of counsel. -
Criterion (c) of the Stovall test requires that we con-
sider 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 war-
rant for all prior stops and searches made at fixed check-
points. For example, it is impossible to tell how many
illegal aliens, as well as alien smugglers and other crimi-
nals, 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 de-
portable aliens apprehended at traffic checkpoints. United
’ 8 See cases cited in note 2, supra.
La
107
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 without a warrant or probable cause,
applied retroactively, would create immense problems hin-
dering the administration of justice. It is not inconceiv-
able 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 different
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 Linkletter when the rule was directed “to collateral
purposes such as the deterrence of unlawful police con-
duct ....” Jd. 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 pur-
pose of the rule is the deterrence of unlawful police con-
duct, 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
i the new rule to those cases involving searches at fixed
checkpoints that are now on direct appeal. These are the
so-called “pipeline” cases. We reject this approach and
hold that Almeida-Sanchez applies only to searches at
fixed’checkpoints after June 21, 1973, the date of the
Almeida-Sanchez decision. The Supreme Court’s recent
decisions indicate that the pipeline theory does not enjoy
majority approval. See Stovall v. Denno, 388 U.S. 293
(1967). The Court had precisely that issue before it in
Williams v. United States, 401 U.S. 646 (1971), and a
majority declined to apply the new rule either to the cases
in the pipeline (on direct appeal) or to the cases that
—~.
asiatts tenable tan uaineaee
108
were before 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-
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), wou'd not be applicable to resentencing
proceedings, that occurred prior to the date of the Pearce
decision, even though Payne’g 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 exceptions 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 applied in Linkletter [881 U.S. at 622],
was an “anomaly.” * It would be unwise for use to adopt
* Apparently, the Court has adopted a position of limited pros-
pectivity, rather than pure prospectivity, on the rationale that in
order for the Court’s pronouncement to avoid being classified as
dictum, it must be applied to the parties before the Court. See,
Stovall v. Denno, 388 U.S. 293, 301 (1967). There has been some
criticism of this rationale, [see, e.g., 1B J. Moore, Federal Practice
§ 0.402 [3.—2-3] (1965)] and the Court has not hesitated to apply
a pronouncement with full prospectivity when such a result was
appropriate. E.g., England v. Louisiana State Board of Medical
Examiners, 375 U.S. 411 (1964); James v. United States, 366 U.S.
213 (1961). See Johnson v. New Jersey, 384 U.S. 719, 733 (1966).
The primary reason for the Court’s adoption of limited prospec-
tivity in cases involving new rules of criminal procedure may be
that if the new rule is not applied to the defendant before the
Court, defense counsel may lack incentive to proceed with an ap-
peal in the cases where they believe there may be an unconstitu-
tional practice. See Stovall v. Denno, 388 U.S. at 301; Note, Retro-
activity Of Criminal Procedure Decisions, 55 Iowa L. Rev. 1309,
1317 (1970).
5 Justice: Marshall stated:
Linkletter v. Walker, 381 U.S. 618 (1965), giving a limited
retroactive effect to Mapp v. Ohio, 367 U.S. 643 (1961), is an
109
the pipeline theory when the Court has declined to ap-
ply it.
Limited prospectively is not a new idea in the line of
cases dealing with the retroactivity of new rules of crimi-
nal procedure. In Johnson v. New Jersey, 384 U.S. 719
(1966), decided only one year after Linkletter, the Court
held that Escobedo and Miranda would apply only to cases
in vuich the trial began after the dates of the decisions.
One could argue that Johnson does not really deal with
the pipeline theory because the case was before the Court
on collateral attack. But such an argument would ignore
the fact that the Court expressly announced that:
¥
[Wle do not find any persuasive reason to extend
Escobedo and Miranda to cases tried before those
decisions were announced, even though the cases may
still be on direct appeal.
384 U.S. at 733.. Limited prospectivity, as the Court dis-
cussed it in Johnson, is particularly suited for application
in this case. A majority of our court has agreed that
Almeida-Sanchez as applied to fixed checkpoints enunciates
a new rule of criminal procedure. The sole purpose for
the new ruie is to deter future police misconduct. United
States v. Calandra, US. (Jan. 8, 1974). Given
this conclusion, the new rule can reasonably be applied
only to convictions based upon searches conducted after
the date of the Almeida-Sanchez decision. Freeing Bowen
from his conviction will not deter future police misconduct.
If the new constitutional rule is designed to correct a
defect that involves the court’s ability to determine
whether a defendant is guilty or not, it obviously has to
be fully retroactive. But here, the new rule has no such
effect. Bowen, like Almeida-Sanchez, is a convicted felon
—caught red-handed. The question is not whether they
violated the law, but rather whether they should be freed
because the police detected their violations through un-
anomaly at odds with the Court’s subsequent treatment of prob-
lems of retroactivity and can be explained only by the Court’s
unfamiliarity with those problems when the case was decided.
See also Johnson v. New Jersey, 384 U.S. 719 (1966).
412 U.S. at 61 n.5.
ne ee
constitutional procedures. We are applying the Almeida-
Sanchez rule to searches conducted at fixed checkpoints
only to deter these unconstitutional procedures in the
future. Our reason for applying the 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 would
put the Court in the’ position of providing advisory opin-
ions.* That policy is Hot enhanced or furthered by apply-
ing the rule to other cases on appeal. There is no com-
pelling reason which requires that we overturn many con-
victions merely because the Supreme Court mandates that
one must be overturned.
We conclude that any application of Almeida-Sanchez to
fixed checkpoints would be a new rule and under the
Stovall test, it would have to be applied prospectively to
searches subsequent to June 21, 1973. Therefore, Almeida-
Sanchez can be of no assistance to Bowen. .
AFFIRMED.
Judges Chambers, Koelsch, Wright, Trask, Choy and
Sneed concur in this majority opinion (Part II).
[Part IT] ,
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’s opinion in Part II which limits the holding of
Part I to searches conducted after June 23, 1973. While
a roving-patrol search, supported by neither warrant nor
probable cause, was not upheld by this circuit until 1970
(United States v. Miranda, 426 F.2d 283 (9th Cir. 1970),
a mere two years 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 statutory authorization since 1946
*See note 4, supra.
See N eS PRO PLD PM Sap Le Te ee
111
(Act of Aug. 7, 1946, ch. 768, 60 Stat. 865.) Our rejec-
tion of fixed-checkpoint searches therefore “marks a sharp
break in the web of the law,” Milton v. Wainwright, 407
U.S. 371, 38182 n.2 (1971) (dissenting opinion of Stew-
art, J.), sufficient to deny retroactive application.
My concurrence is qualified, however, by the belief that
Bowen himself should be entitled to the fruits of his ap-
peal. 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 cénvic-
tion 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 cause, are unconstitu-
tional. Yet, we also tell him that because of a judically
created rule of nonretroactivity, he cannot take advantage
of a ruling which he has fought for two years 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 hav-
ing our determination in Part I stand as mere dictum,
as well as to comply with the “case or controversy” re-
quirement of Article III of the Constitution, we must allow
Bowen to benefit from our constitutional determination.
See Stovall v. Denno, 388 U.S. 298, 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.
HUFSTEDLER, Circuit Judge, with whom Judge Ely
concurs, concurring in part I and dissenting from part II,
of the opinion of the Court:
I cannot concur in the opinions confining the Almeida-
Sanchez rule to searches occurring after June 21, 1973,
with or without an exception for Bowen himself, when
the locale of the search was a fixed checkpoint that was
not the functional equivalent of an international border.
My brothers and I agree that no retroactivity issue
arises unless Almeida-Sanchez stated a new rule marking
112
“a sharp break in the web of the law.”* We are also in
agreement that Almeida-Sanchez announced no new Su-
preme Court rule and that it signaled no break at all in
the constitutional principles stated by the Court.’ Injec-
tion of the retroactivity issue in the opinions of my
brothers Wallace and Goodwin rests on two assumptions:
(1) Congress, the Ninth Circuit, and the Immigration and
Naturalization Service, prior to Almeida-Sanchez, had
long agreed that automobile searches conducted by per-
sonnel of the Service at fixed checkpoints that were not
functional equivalents of international boundaries should
be treated as if they were such “border searches,” thus
eliminating the Fourth Amendment’s requirements of a
warrant and probable cause, and (2) for retroactivity
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 per-
sonnel 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
Naturalization Service began establishing fixed check-
points some distance from international boundaries in
1929. The information before us about those iE amecints
1 The phrase is taken from Mr. Justice Stewart’s dissenting opin-
ion in Milton v. Wainwright (1972) 407 U.S. 371, 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 peti-
tioner’s car was constitutional under any previous decision of this
Court involving the of an automobile.” (Almeida-Sanchez v.
United States (1973) 413 U.S. 266, 269.)
The Court has recognized, however, at least since Carroll v.
United States (1925) 267 U.S. 132, that automobile travellers could
be 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 effects which may be lawfully brought in.” (Jd.
at 154.) But nothing in Carroll, or in any other Supreme Court
decision even implies that, for Fourth Amendment purposes, the
Government could create portable boundaries or affix artificial bor-
ders wherever it chose.
I
>
i ES Si al ee Ne
ee eres
113
is fragmentary. We do not know how many there were,
where they were located, or which, if any of them, quali-
fied 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 undertaken at points
other than international boundaries were without color of
statutory authority until 1946 when Congress enacted
the precursor of 8 U.S.C. § 1357. (See Act of Aug. 7,
1946, ch. 768, 60 Stat. 865.)* Although Congress thus
8 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 in-
corporated in the Committee’s Report and adopted by its Chairman
as “quite completely” explaining the purposes of the bill. The letter
clearly indicated that the Attorney General and the Committee be-
lieved that the Immigration and Naturalization Service lacked
statutory authority to conduct searches away from the boundaries
of the United States:
“Hon. SAMUEL DICKSTEIN,
Chairman, Committee on Immigration and Naturalization,
House of Representatives, Washington, D.C.
My Dear Mr. CHAIRMAN. This is in response to your request for
my views relative to a bill (H.R. 386) to amend the 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 war-
rant 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 frustrating the ends of justice. The power to
make arrests in such cases without a warrant should be, conferred
on personnel of the Immigration and Naturalization Service-wittr a
restriction 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 viola-
tions of immigration laws, subject to the same limitations as those
generally imposed on the right of an officer to make an arrest.
Existing law (43 Stat. 1049; 8 U.S.C. 110) confers on personnel
of the Service the right to search vessels and vehicles for aliens
being brought into the United States. This authority should be
114
eventually authorized checkpoint searches by Immigration
and Naturalization personnel, congressional attention
never focused on the constitutional difficulties engendered
by. the movable border concept that was included in sec-
tion 1357. (See, ¢g., H.R. Rep. No. 186, 79th Cong.,
2d Sess., supra note 3.)
Fourth Amendment challenges to “alien” searches con-
ducted by immigration and ‘customs officials at places
other than international boundaries were raised in the
lower federal courts The judicial response, however, did
not rest on a comprehensive, critical analysis of the dif-
ferences between searches'at international boundaries and
those conducted some distance from the border;* rather,
the law concerning check point and roving patrol searches .
extended to cover aircraft, in the light of recent developments in
aircraft transportation.
In the enforcement of the immigration laws it is at times de-
sirablé to stop and search vehicles within a reasonable 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 Sihbiltig suggestions
and is similar to a bill (H.R. 5464, 78th Cong.) which was intro-
duced at my request and was passed by the House of Representa-
tives on December 4, 1944.
Accordingly, I recommend the enactment of the legislation. .
‘I have been informed by the Director of the Bureau of the Budget
that there is no objection’ to the submission, of this report.
Sincerely yours,
‘ ' FRANCIS BIDDLE,
pe ‘| Attorney-General.”
H.R. Rep. No. 186, 79th Cong., 2d Sess. (1945), 1946 U.S. Code
Cong. Service 1414.
4 When customs oflcers at a distance from the border cntinchadt
warrantless searches for narcotics, rather than for aliens, our cir-
cuit refused to uphold the searches in the absence of probable cause.
(E.g., Contreras v. United States (9th Cir. 1961) 291 F.2d 63.)
The Government’s argument that 26 U.S.C. § 7607 eliminated the
traditional probable cause requirement was rejected as contrary
to the Fourth Amendment. (e.g., Plazola v. United States (9th Cir.
1961) 291 F.2d 56, 58-59.) These cases, of course, cannot be rec-
onciled on constitutional grounds with the alien search cases com-
mencing with Fernandez v. United States (9th Cir. 1963) 321 F.2d
283.
MTL
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Arve pawisenpomecinil bi bch Walia be
CAPS RRS
115
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 sec-
tion 1857 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 rea-
sonable distance of the border; but probable cause was
still required to validate a warrantless search of the
vehicie, at least if the search went beyond that reason-
ably related to the discovery of ‘aliens.* Although these
“alien” non-international boundary vehicle search cases
were sometimes labeled “border searches,’ they were al-
ways a breed apart from searches actually conducted at
international boundaries. The latter were treated as
they always had been: no warrant and no probable cause
5 We considered numerous cases involving alien searches con-
ducted a substantial distance from an international border. A few,
however, are illustrative of the development of the law in our cir-
cuit. In Fernandez v. United States (9th Cir. 1963) 321 F.2d 283,
appellant was stopped at a fixed checkpoint by customs inspectors
looking for aliens. Probable cause to believe marihuana was con-
cealed in the vehicle developed during the stop. The constitutional-
ity 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 simi-
lar to that in Fernandez. Again, the stop was justified under sec-
tion 1357, and probable cause to search was found, to exist following
the stop. In United States v. Marin (9th Cir. 1971) 444 F.2d 86, a
roving patrol stopped appellant’s vehicle three miles from the border,
The stop was upheld under section 1357; marihuana was discovered
in plain view. The search at a fixed checkpoint in Valenzuela-Gar-
cia v. United States (9th Cir. 1970) 425 F.2d 1170 was invali-
dated, 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, United States v.
Lujan-Romero (9th Cir. 1972) 469 F.2d 683.
The development of “alien” searches followed a similar pattern in
- the Tenth Circuit. (e.g., United States v. Anderson (10th Cir. 1972)
468 F.2d 1280; United States v. McCormick (10th 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 tangential relationship to the law emerging
from the Ninth and Tenth Circuits. (£.g., United States v. Mc-
Daniel (5th Cir. 1972) 463 F.2d 129; Marsh v. United States (5th
Cir. 1965) 344 F.2d 317).
116
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 proba-
ble cause, on the other hand, was limited both in scope
and in object. ~
Of perhaps greater moment for our retroactivity analy-
sis; an examination of Ninth Circuit cases reveals that
fixed checkpoint searches fared neither better nor worse
than searches conducted at temporary checkpoints or by
roving patrols away from the border. In 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 con-
ducted at fixed
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