*1 1351 Hannon, Hannon, Michael Ashman & Cal., Angeles, appellant. Los for America, of STATES UNITED Harry Steward, Atty., D. Thomas U. S. Appellee, Diego, Atty., Coffin, M. Asst. U. San S. v. Cal., appellee. for MORGAN, Appellant. Ann Yvonne No. 73-1669. MERRILL, CHAMBERS, Before BROWNING, DUNIWAY, KOELSCH, Appeals, Court of United States WRIGHT, ELY, HUFSTEDLER, Ninth Circuit. TRASK, CHOY, GOODWIN, WALLACE 14, June 1974. Judges. SNEED, and Circuit
OPINION PER CURIAM: Morgan appeals her Ann Yvonne con- pos- conspiring possess and viction for to sessing with distribute 389 intent to pounds marijuana. The of of evidence Sep- on violations was discovered these 1972, during of her 26, a search tember Immigration and at the automobile San Onofre Naturalization Service’s Clemente, checkpoint Cali- near San fornia. Bowen, 500 F.2d
In United v. States (9th 1974) (en banc)-, Cir., this court 960 by the held under announced that the rule Supreme in v. Court Almeida-Sanchez 266, States, 413 93 United U.S. S.Ct. by 2535, (1973), L.Ed.2d 596 searches 37 agents checkpoints patrol fixed border at equivalents were not the functional which of the Fourth border searches violated a search hold Amendment. We here that checkpoint, ap at located the Onofre San proximately Mexi north of the 65 miles can 5 between on Interstate San border Diego Angeles, is not the func and Los search, equivalent of border as tional a term used in Almeida-Sanchez that is Bowen. and However, in Bowen that also held we ruling the Almeida-Sanchez would not fixed-checkpoint applied be searches to prior 21, 1973, to the conducted June date of decision of Almeida-Sanchez. Morgan’s the search of automobile Since date, the evi- conducted before that was subject was not to the motion to dence suppress. judgment
The of conviction is affirm- ed.
1352 Judge (concurring
WALLACE, Circuit dissenting):
and with I concur I in the result. concur opinion part majority which
that of the not retroactive is
holds Almeida-Sanchez at fixed applied to searches conducted
as part
checkpoints. that of from I dissent applies a majority opinion which
the equivalent” to fixed test “functional
checkpoints in one involved such as the Bowen, v. this See United States case. 1974) (en (9th 960, Cir. 500 F.2d 979 dissenting).
banc) (Wallace, J., Fur us,
ther, limited record before from the finding the I that cannot make a factual Clemente) checkpoint (San is
San Onofre equivalent border.
not a functional of the point I hasten that the district to out However,
judge finding. made no such
one district court heard evidence on this
precise this issue and concluded check
point equivalent the was a functional of Baca, United v. 368 F.
border. States (S.D.Cal.1973). Supp. 398, 415 I be upon
lieve our decision should a be based factual record such that as
sufficient
in Baca.
CHAMBERS, Judge, Circuit concurs concurring dissenting opinion.
in this and America,
UNITED STATES of Plaintiff-Appellee,
v. FRIEDMAN, Defendant-Appellant.
Aron
No. 74-1143. Appeals,
United States Court of
Ninth Circuit. 14,
Aug. 1974. 9,
Certiorari Denied Dec. 1974.
See