# Appendix — Bowen v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0453%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 422 U.S. 916 ## Text 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. -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. 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 aA 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 checkpoints located away from the border had received long-continued judicial approval is not sup- ported by the facts; my brothers’ conclusion that Almeida- Sanchez sharply broke with prior law from the lower federal courts concerning fixed checkpoint searches cannot be sustained. Even if the Ninth Circuit for many years had consist- ently upheld these alien searches at fixed checkpoints, how- ever, that fact would not be pertinent to deciding whether retroactivity is in issue.* For this purpose, the only “old” and “new” law that.is relevant is the constitutional law enunciated by the Supreme Court. (See Robinson v. Neil (1973) 409 U.S. 505, 510.) A contrary rule would im- pair or destroy the uniform application of constitutional law in the several circuits, increase manifo!d the certiorari burdens of the Supreme Court, and erode the power of the Supreme Court as the ultimate arbiter of constitutional law. These disturbing consequences might not occur if all circuits simultaneously decided constitutional questions and always decided them the same way. But they do not. The question of the constitutionality of fixed checkpoint *I fully recognize that if the retroactivity doctrine were properly in issue, lower court decisions and law enforcement officers’ reliance upon them would be relevant considerations in deciding whether to apply a particular Supreme Court decision retroactively. (E£.g., Stovall v. Denno (1967) 388 U.S. 293.) =, 117 searches at issue in the case at bench provides an excel- lent illustration of the problems that can arise under my brothers’ views. The issue arose at different times with different frequency in some circuits and in others did ngt arise at all. In the circuits where the issue was never decided, did Almeida-Sanchez state a “new” rule? Is a single decision in one circuit upholding the search enough to create “old” law withewhich Almeida-Sanchez broke? If one circuit had upheld such searches and another had struck them down, would Almeida-Sanchez be retroactive in the latter circuit and nonretroactive in the former?’ To prevent restrictions on the retroactivity of its decisions, must the Supreme Court take every new search and seizure issue to prevent “old” law from accumulating? If the Court is in any respect bound by the constitutional law developed in the lower federal courts, how can it continue to be the final arbiter of constitutional issues?* Even when the retroactivity concept is confined exclu- sively to law stated by the Supreme Court, difficult juris- prudential problems are generated. (See, e.g., Desist v. United States (1969) 394 U.S. 244, 256-69 (Harlan, J., ™ Even a clarifying Supreme Court decision would not necessarily prevent retroactivity problems from arisitig. For example, in light of Almeida-Sanchez, the Fifth Circuit has invalidated a search con- ducted at a checkpoint located 65 to 75 miles north of the Mexican border. (United States v. Speed, 5th Cir. 1973) 489 F.2d 478.) If the views expressed in my brother Wallace’s dissenting opinion concerning the applicability of Almeida-Sanchez to fixed check- points had gained the adherence of a majority of our court, would a subsequent decision by the Supreme Court affirming the Fifth Cir- cuit decision create new law for the Ninth Circuit, while merely confirming old law in the Fifth? 8 The difficulties created by the view that circuit decisions can establish “old” law are multiplied greatly if unappealed district court decisions also produce old law. Yet the rationale of my brothers’ opinion is not in any way limitable to circuit decisions. Moreover, deciding issues of federal constitutional law is not solely the prerogative of federal courts. Can the judiciaries of 50 states also create old law from which the Supreme Court departs when it reaffirms established constitutional principles and refuses to - countenance a deviation sanctioned by the decisions of one or more state courts? 118 dissenting). To extend the cgncept to embrace the law of the circuits would turn confusion into chaos. _ CHAMBERS, Circuit Judge, concurring and dissenting: I concur and dissent as indicated ‘above. I adhere to my original position that these Almeida- Sanchez cases should riot have been taken en banc. See United States v. Bowen, F.2d ——. 119 > SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1974 No. 74-6848 JOHN LEE BOWEN, PETITIONER Vv. UNITED STATES On petition for writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. On consideration of the motion for leave to proceed here in forma pauperis and of the petition for writ of certiorari, it is ordered by this Court that the motion to proceed in forma pauperis be, and the same is hereby, granted; and that the petition for writ of certiorari be, and the same is hereby, granted; and the case is set for oral argument in tandem with No. 73-2050 and No. 74-114. October 15, 1974 wv U.S. GOVERNMENT PRINTING OFFICE; 1974 564851 81 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0453%3A1. Public record. Not legal advice.