*1 CHAMBERS, Before BROWNING, DUN- United States Court of Appeals, IWAY, ELY, HUFSTEDLER, WRIGHT, Ninth Circuit. TRASK, CHOY, GOODWIN, WALLACE, Nov. 1976. KENNEDY, SNEED and Judges. Circuit As Amended Jan.
CHOY, Judge: Circuit question presented to us on rehear
ing en banc is whether Almeida-Sanchez v. 93 S.Ct. (1973), requires L.Ed.2d 596 suppres sion of evidence obtained in searches of private permanent vehicles at traffic check points removed from the border or its func tional cause,
officers without consent or probable
after June
the date that Almeida-
decided,
9,May
Sanchez was
and before
1974, when this court announced its decision
in United States v.
121
to decide that
“reaching out
agents
The
appellant.
Bowen]
by
[in
driven
checkpoint
to
applied
found 244 Almeida-Sanehez
wagon and
the station
searched
not
deci-
require
in a case that did
well
searches
luggage
in the
pounds of marihuana
at
95
was error.
Id.
of the issue”
claim is made
sion
well. No
spare tire
and
that
the
agents
had a “founded
suspicion” S.Ct.
[2569]
at 2573.
vehicle
appellant’s
stopping
justify
to
day
it issued
that
On the same
search the
cause to
.
determination,
announced its own
the Court
.
...
vehicle
checkpoint vehicle
that
fixed
the mari-
suppress
to
moved
cause
Appellant
consent or
searches without
He then
denied.
His motion was
fourth amend
improper under the
huana.
were
motion,
that,
the
right
his
to renew
though
Appellant argues
reserved
ment.
trial,
to trial
proceeded
longer
no
jury
that effect Bowen
waived
statement
to
He was convicted
facts.
upon stipulated
makes it clear that Almeida-
applies,
intent
to
with
controlling authority
marihuana
for in
possessing
is the
Sanehez
U.S.C.
in violation
checkpoint searches.
validating
distribute
the fixed
omitted).
(1970) (citations
841(a)(1)
Thus even if the Ortiz rule does
extend
§
checkpoint
pre-Almeida-Sanchez
to
Juarez-Rodriguez, 498 F.2d
itself is not
since Almeida-Sanchez
1974).
Bowen, 422
retroactive — United States
surrounding this case are
precedents
2569,
is to deter police unlawful conduct then trols), were any guidelines there for arrest- evidence obtained from search should ing officers to follow. We are thus con- if suppressed only it can be said that question fronted with a retroactivity which the law enforcement officer had knowl- is similar the one which the edge, charged properly be with Court confronted in Peltier. Because the recently, 2. We note another filed on the Most in United States v. Martinez- day Fuerte, same as Ortiz and de- the Court L.Ed.2d (1976), clined to the same cause stan- stops the Court held that routine roving patrol dard to another questioning variation of the for brief could be made at reason- ably any searches In United States located fixed without in- Brignoni-Ponce, suspicion particular dividualized that the vehi- (1975), illegal the Court held cle contains aliens. roving Ortiz, could a motorist near the As was for Almeida-Sanchez was inquiry certainly a brief into his residential precedent a relevant for these deci- upon sions, status based the lesser standard of rea- but it serve to dictate the result. suspicion. sonable 374). All that Ortiz did here rea- the evidence seized Government explain why checkpoint searches of faith, was to and without knowl- good sonably, unconstitutional, been invalidated Almeida- this kind had was search edge that check- from fixed Sanchez. evidence hold that without consent only between the check- difference holding cause conducted argument that the Government made sup- not be need one it makes here and lost in and the pressed. justify seeks to present argument that its for a exception an from Almeida-Sanchez on this evenly divided the court is Since it sought of time than in Ortiz. judg- period lesser banc, the court’s district rehearing en except it tried to in- stands. of conviction ment Here it definitely from Almeida-Sanchez. IT SO ORDERED. IS *4 from the escape Almeida-Sanchez seeks to the date that we date of that decision to HUFSTEDLER, Judge, with Circuit Bowen, F.2d decided United States v. DUNIWAY, BROWNING, Judges whom 960, GOODWIN, dissenting: join, ELY and Supreme Court in Ortiz rebuffed the The by is presented issue retroactivity No attempt. We had earlier re- Government’s 891, (1975) 422 U.S. v. Ortiz States United jected Although the contention in Bowen. 2585, held that 45 L.Ed.2d 95 S.Ct. premature,2 dictum was our Bowen the (1973) United v. States Almeida-Sanchez rely sup- cannot Government 2535, 596, 266, 93 37 L.Ed.2d exception an that Bowen itself refused. port private searches of to invalidate applied rejected a contention in We similar our checkpoints removed traffic vehicles at in opinion the case at bar. As we prior equiva or its functional from the border prior stated in in this opinion case: lents, officers with patrol by cause, in and made the and search this case “Since out consent 1973, 21, 1973, place took the date 21, date that Almeida after June after June the on which the decided Al- majority down.1 The came Sanchez States, supra, startling and un meida-Sanchez v. United reaches the in this case non-retroactivity Almeida-San the of that decision as conclusion that precedented checkpoints . appli applied to fixed alien given prospective limited chez will be need not concern us by our court. omitted].” cation [citations (9th Juarez-Rodriguez (United States constitutional announced no new 1974) 7.) Cir. 498 F.2d existing an did not “broaden” doctrine. It rejected if we the (See firmly Even had rule. exclusionary attempts to earlier limit the 95 S.Ct. Government’s (1975) 422 U.S. Peltier prospective every squarely entitled to effect in court in- held that Almeida-Sanchez 1. Ortiz the that oc- land. validated these per- 1973: “We are curred after June majority the of our court held that 2. roving pa- the differences between suaded that Almeida-Sanchez did not to searches that justify dispensing and traffic trols 1973, and, dictum, occurred before June required safeguards in this case with the invalidated check- stated Almeida-Sanchez We therefore follow conducted without consent n hold that at traffic decision and 1973. The Su- cause after its from the border and functional removed nonretroactivity preme of affirmed the Court private officers not search in Bowen v. United States Almeida-Sanchez cause.” consent vehicles without (1975) (Emphasis 95 S.Ct. added. The also reminded us that we 2589.) question the whether should not have reached interpretation majority’s applied of Ortiz drains to fixed The Moreover, had meaning the the search involved oc- the case. searches because the from majority every and our have to decide curred before June does not was not that Almeida-Sanchez application on a constitu- had concluded a former decision of principle retroactive. an earlier decision before tional Almeida-Sanchez, 1964) impact future of ma- 846.) F.2d unacceptable. conclusion is jority opinion’s Department of Justice very was much cannot limit the appeals prospec- A court of aware, Almeida-Sanchez, after if not be- of application tive a constitutional rule laid fore, proba- searches were majori- down court. If the bly going way of roving searches. The ty’s accepted, view were Government was party dozens cases authority court’s as the final arbiter of con- which the was made. Under these eroded, seriously stitutional issues would be circumstances, Government, acting destroyed. if not Almeida-Sanchez invali- through these border agents, is in no searches that dated were conducted under position to claim any good faith reliance on very statute and same administra- the validity of these checkpoint searches. regulations upon tive which the Govern- I would reaffirm our decision re- relies, and, ment now to the extent versing the conviction. judicial approval” there was “continuous conducted, continuity searches thus was SNEED,
snapped when Almeida-Sanchez Circuit Judge (dissenting): came down. I believe the Supreme Court has had am- meaning the Court’s ple opportunities to indicate that United Peltier, “evidence obtained from a search suppressed only should be if be it can said (1976) was not to *5 that the law enforcement officer had retroactively to searches at fixed check knowledge, or may properly charged points not based on cause occur- knowledge, with that the search was uncon- ring subsequent 21, 1973, to June prior stitutional under the Fourth Amendment” to June the date Ortiz was decid- (United Peltier, supra, 422 U.S. ed. Notwithstanding opportunities these 542, 95 is 2320 not clear. But it is Supreme Court has failed to so indicate. very difficult to believe that it means that One of opportunities presented these it- retrospectivity a Supreme Court deci- self in Bowen v. United subjective can turn upon sion state of 916, 2569, (1975) particular searching officer’s mind upon decided the same day as Ortiz. Involved degree sophisticated which he bemay Bowen awas fixed point check search not reading Supreme opinions. Court it If based on Supreme cause. The did, the applicability Court de- we, Circuit, held that the Ninth cor- cisions in cases involving searches would be rectly had decided “that hopelessly conflicting unpredictable. to a 1971 search.” sugges- No They enough are troublesome when we are appears tion in the that obliged to only deal with differing - would validate check searches not of judges’ states on complex minds this based on cause subsequent subject. to June to June To the extent knowledge of law the date both Ortiz and Bowen were decid- enforcement officer conducting a search has ed. Any such suggestion would have re- any bearing a retrospectivity problem, quired reconciliation with Ortiz because the the knowledge knowledge is that imputable search in that case occurred on November hypothetical to a law enforcement officer 12, 1973. system within the of which he a part. A Another opportunity suggest federal law enforcement officer must at searches occurring least be “properly chargeable” between dates of with the knowledge of Almeida-Sanchez and Ortiz federal law were valid enforcement arose agencies, including Martinez-Fuerte, in United States Department of v. Jus- (Cf. Giglio tice. (1972) United States 104; (1976). In holding that check stops Warden,
Barbee v. Maryland Penitentiary were valid the Court adhered to it was no indication gave subsequent to June to searches inapplicable belief that firm
Thus, avoid the I cannot has selected being the This its critical date. 1973 as this court on which case, the date I view Bowen, 500 F.2d United States decided viz. 1974), May as (9th Cir. issues not mean This does irrelevant. Bowen could not be distin- presented I of from those guished of the then and remain they could thought however, Court, The Supreme mind. same did, thought other- as deciding If the date of controls. Their view wise. memorable the is to be made do it. should LABOR RELATIONS NATIONAL *6 BOARD, Petitioner, THEATERS, TRANSCONTINENTAL INC., Respondent.
No. 75-2505. Appeals, States Court Ninth Circuit. Sept. Amended Jan. As Stein, B., L. R. Wash-
Michael D. N. C., argued, petitioner. D. for ington, Boornazian, King, King & George Cal., Schulze, Oakland, respon- argued, dent. VanBourg & Roger, Levy,
Michael B. Francisco, Cal., Hackler, argued, for San Assoc, Theatri- intervenor International Stage Employees. cal &