UNITED STATES of America, Plaintiff-Appellee, v. John Lee BOWEN, Defendant-Appellant.
No. 72-1012.
United States Court of Appeals, Ninth Circuit.
May 9, 1974.
Wallace, Circuit Judge, dissented from that part of the decision dealing with the applicability of Almeida-San-chez to fixed-checkpoint searches and filed opinion in which Chambers, Koelsch, Eugene A. Wright, Choy and Sneed, Circuit Judges, concurred.
Alfred T. Goodwin, Circuit Judge, concurred in and dissented from that portion of the decision relating to retroactive application of Almeida-Sanchez and filed opinion in which Merrill, Browning and Duniway, Circuit Judges, joined.
Hufstedler, Circuit Judge, dissented from that part of the decision relating to retroactive application of Almeida-Sanchez and filed opinion in which Ely, Circuit Judge, joined.
Michael D. Nasatir (argued), Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellant.
James W. Meyers, Shelby R. Gott, Asst. U. S. Attys. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.
PER CURIAM:
This appeal is before the court upon the remand of the Supreme Court, Bowen v. United States, 413 U.S. 915, 93 S.Ct. 3069, 37 L.Ed.2d 1038 (1973), vacating, 462 F.2d 347 (9th Cir. 1972).
Bowen was convicted of smuggling and transporting marijuana and of possessing depressant and stimulant drugs. The evidence of the violations was discovered during a routine search for illegal aliens of a camper truck at a permanent border-patrol checkpoint on California State Highway 86 approximately 36 air miles and 49 highway miles north of the Mexican border. Highway 86 is a principal route from Mexicali to Los An-geles by way of Indio and Riverside.
On June 21, 1973, the Supreme Court held in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), rev’g, 452 F.2d 459 (9th Cir. 1971), that border-patrol agents on roving patrol cannot stop and search cars pursuant to 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1 without probable cause or warrant.
Two separate issues are presented here: (1) How does Almeida-Sanchez affect searches conducted at a fixed checkpoint? (2) If fixed-checkpoint searches, as well as roving-patrol searches, are included within the ambit of the Almeida-Sanchez ruling, should that ruling be applied to fixed-checkpoint searches conducted by border-patrol agents prior to June 21, 1973, in cases pending on appeal on that date ?
For the reasons set forth in Part I of the opinion of the majority of the court here, we hold that the rule announced by the Supreme Court in Almeida-Sanchez does apply to searches at fixed checkpoints. However, for the reasons set forth in Part II, we also hold that Almeida-Sanchez will not be applied to fixed-checkpoint searches conducted prior to June 21, 1973.
The judgment of conviction is affirmed.
PART I
ALFRED T. GOODWIN, Circuit Judge:
According to the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the government has been conducting three types of alien searches pursuant to 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1: (1) searches at “[permanent checkpoints * * * maintained at certain 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 reasonable distance from any external boundary,” 8 U.S.C. § 1357(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, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
The search condemned in Almeida-Sanchez was of the “roving patrol” type. It was conducted 25 miles north of the Mexican border, on a California east-west highway that lies at all points at least 20 miles north of the border. 413 U.S. at 267-268, 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 ***S.in Almeida-Sanchez, delivered by Mr. Justice Stewart, leaves 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 of these operations * * * the agents are acting within the Constitution when they stop and search automobiles without a warrant, without probable cause to believe the cars contain aliens, and even without probable cause to believe the cars have made a border crossing,” the Court stated that “ [t] he only asserted justification for this extravagant license to search is § 287 of the Immigration and Nationality Act, 66 Stat. 233, 8 U.S.C. § 1357(a) * * 413 U.S. at 268.
Moreover, the government in Almei-da-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 regulation could not exempt searches carried out pursuant to them from traditional Fourth Amendment scrutiny, see 413 U.S. at 272, the government’s statutory justification for fixed-checkpoint searches as well as for roving-patrol searches vanished.
Finally, at the very end of its opinion, 413 U.S. at 274-275, the Court quoted from Carroll v. United States as follows:
“* * It 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. Travelers may be stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise * * 267 U.S. at 153-154.
It would be strange indeed for the Court to quote this language if it meant to leave intact the government’s asserted right to establish fixed checkpoints anywhere within 100 miles of the border. Surely, searches at these checkpoints, like searches by roving patrols have the effect of violating the “right to free passage without interruption or search” of “those lawfully within the country * * Such searches, therefore, must meet constitutional standards regardless of their utility in carrying forward the 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 275-276, 288. Nonetheless, these disclaimers do not override clear indications in the opinion of the Court that any distinction between fixed and movable checkpoints will be meaningless unless the distinction can be based upon reasoned Fourth Amendment considerations.
The government argues that there are, in fact, significant constitutional differences between roving patrols and fixed checkpoints. First, since fixed checkpoints often involve a stop and inspection of every car passing through them, they provide much less opportunity for the unfettered discretion of the police officer that was condemned in Almeida-Sanchez. See 413 U.S. at 268. Second, being stopped on a lonely road at night in a sparsely populated part of the country (Almeida-Sanchez) is more burdensome to the traveler than a stop at an identified and lighted checkpoint (Bowen). The government contends once again that the Constitution does not forbid all searches, but only “unreasonable” ones. In support of the validity of arguably “reasonable” fixed-checkpoint searches, the government cites a number of judicial decisions 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. 1970); People v. Washburn, 265 Cal.App.2d 665, 71 Cal.Rptr. 577, 581 (2d Dist. 1968); State v. Smolen, 4 Conn.Cir. 385, 232 A.2d 339 (App.Div.), pet. for certification for appeal denied, 231 A.2d 283 (Conn.1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 787, 19 L.Ed.2d 835 (1968); State v. Severance, 108 N.H. 404, 237 A.2d 683 (1968).
We agree with the government that a fixed-checkpoint search that does not entail significant delay is probably less offensive than a roving-patrol search. Being asked to stop at a fixed checkpoint is not frightening to a 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 vehicles stopped are searched, the officer at the checkpoint still retains a good deal of discretion to “single out” some travelers for stops or intrusive searches.
Nonetheless, even conceding that a fixed-checkpoint search might be less of an imposition on domestic travelers than a 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 decisions 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. 1965); 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.Cr.App.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 mention. 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, 87 S.Ct. 1366, 18 L.Ed.2d 474 (1967). Hence, since this line of vehicle-registration-check decisions was as relevant in Almeida-Sanchez as here, we do not find these decisions to be an appropriate means for 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 unenforceable the State statute requiring that automobile drivers be licensed.” 348 F.2d at 593.
We are not persuaded that laws prohibiting illegal immigration 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 roving-patrol searches, even though conducted within a “reasonable distance” from the border, are not necessarily exempt from the traditional Fourth Amendment requirement of a warrant or probable cause. This holding, however, merely shifts the focus of our inquiry. The opinion in Al-meida-Sanchez does not require that a border search, to be constitutional, be at the border itself; rather, a legitimate border search may also be conducted “in certain circumstances” at the border’s “functional equivalents.” 413 U.S. at 272. The search conducted in the present ease was obviously not at the border itself; nor was it at a “functional equivalent” of the border.
The “function” of a border checkpoint is to 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 confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passen- ■ gers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.” 413 U.S. at 272-273. (Emphasis added.)
These examples are then contrasted with the search conducted in Almeida-San-chez:
“* * * [T]he 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.
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 between Buffalo and Rochester, New York, to see why a checkpoint between those two cities could not be the functional equivalent of a border checkpoint even though the checkpoint could be less than twenty miles from an international border.
In addition to the two examples of a functional equivalent of a border search provided by the Court in Almeida-Sanchez, other examples may be drawn from two series of decisions of this court. Representative of the first line of authority is Alexander v. United States, 362 F.2d 379 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966). In that 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 Customs 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 determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of the search was aboard the vehicle at the time of entry into the jurisdiction of the United States * * *.” 362 F.2d at 382.
In a second line of our own cases, this court has treated a search north of the border as the equivalent of a border search, where it appeared with reasonable 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, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971), in which this court held:
“* * * [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 reasonably 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.” 432 F.2d at 1323.
In both of these gre-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, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).
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. Several significant population centers and highways, including Interstate 8, a major east-west freeway that connects the Southwest with the West Coast, lie between the checkpoint and the border. Under these circumstances, border-patrol agents had no reason to believe that virtually all or even most of the cars passing through their checkpoint had recently, or ever, crossed the border. Moreover, there was neither the continuing surveillance from the border nor the dependable intelligence from other sources required to fit this case into the Alexander line of decisions ; nor was there the reasonable certainty that the vehicle 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.
As its last line of defense, the government argues that fixed-checkpoint searches, even if not the functional equivalent of border searches, should be upheld simply because they are urgently needed. The government’s difficulty in detecting and repatriating illegal aliens along our southern boundary needs no new documentation here. The short answer to this argument, however, is that necessity alone cannot override the Fourth Amendment’s prohibition against unreasonable searches and seizures. A similar argument was made and rejected in Almeida-Sanchez itself. See 413 U.S. at 293 (dissenting opinion of White, J.). Mr. Justice Powell in his concurring opinion in Almeida-Sanchez suggested that warrants based on area-wide conditions could be employed to resolve the contending interests of law enforcement and Fourth Amendment safeguards. 413 U.S. at 275-285; see generally The Supreme Court — 1972 Term, 87 Harv.L. Rev. 55, 200-04 (1973). Since the government did not seek such a warrant in this ease, we need not now express an opinion on a hypothetical search conducted pursuant to a judicial warrant authorizing searches for a limited time at a specific checkpoint. We refer to Mr. Justice Powell’s opinion here merely to suggest to the government that procedures less offensive to the Fourth Amendment than judicially unapproved checkpoint searches might be devised and implemented to supplement its program for enforcing immigration 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 Cir. 1973). There, the court held that a border-patrol search at temporary checkpoint on a north-south highway approximately 65 to 75 miles north of the Mexican border was neither a border search nor a functional equivalent of a border search and, hence, was unconstitutional. The court commented, “The distinction between a checkpoint and a roving patrol is not important.” 489 F.2d at 480.
Likewise, the Court of Appeals for the Tenth Circuit has held that a warrant-less search, without probable cause, of an automobile at the checkpoint at Truth or Consequences, New Mexico, violates the Fourth Amendment unless a search at that checkpoint could be deemed the functional equivalent of a border search. United States v. King, 485 F.2d 353 (10th Cir. 1973); United States v. Maddox, 485 F.2d 361 (10th Cir. 1973).
We hold here that under the rule announced by the Supreme Court in Almei-da-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.
Circuit Judges MERRILL, BROWNING, DUNIWAY, ELY, HUFSTEDLER and TRASK concur in this majority opinion (Part I).
[Part I]
. Mr. Justice Stewart’s opinion is explicitly identified as “the opinion of the Court.” It was approved by a majority of five justices, 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 between concurring in an opinion and concurring only in its result. Compare Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 637, 93 S.Ct. 2469, 2487, 37 L.Ed.2d 207 (1973) (“I concur in Part II of the Court’s opinion * * *. As to Part 1***1 concur only in the result * * *.”) with Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 651, 94 S.Ct. 791, 802, 39 L.Ed.2d 52, 42 U.S.L.W. 4186, 4192 (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, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (concurring only in judgment). The language of Mr. Justice Powell’s concurrence in Almeida-Sanchez strongly suggests that his concurrence was not limited to the result. Moreover, his concurring opinion was written primarily to elaborate his views on an issue not presented by the facts of Almeida-Sanchez and not reached by the other justices (but, see 413 U.S. at 270 n. 3) : whether a roving search would be sustainable if it were based on an area search warrant.
. But see Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), in which the Supreme Court of Pennsylvania held that a routine check of a motor vehicle to determine whether it and its operator were properly licensed 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 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, Xonarrest Automobile Stops: Unconstitutional Seizures of the Person, 25 Stan.L.llev. 865 (1973).
. 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 275-276.
. See also United States v. Mejias, 452 F.2d 1190, 1192-1193 (9th Cir. 1971); United States v. Terry, 446 F.2d 579 (9th Cir.), cert. denied, 404 U.S. 946, 92 S.Ct. 301, 30 L.Ed.2d 261 (1971); Castillo-Garcia v. United States, 424 F.2d 482, 484-485 (9th Cir. 1970); Bloomer v. United States, 409 F.2d 869, 870-871 (9th Cir. 1969); GonzalezAlonso v. United States, 379 F.2d 347, 349-350 (9th Cir. 1967); Rodriquez-Gonzalez 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, 86 S.Ct. 314, 15 L.Ed.2d 339 (1965); Murgia v. United States, 285 F.2d 14 (9th Cir. 1960), cert. denied, 366 U.S. 977, 81 S.Ct. 1946, 6 L.Ed.2d 1265 (1961), cert. denied, 376 U.S. 946, 84 S.Ct. 803, 11 L.Ed.2d 769 (1964).
. See also United States v. Vigil, 448 F.2d 1250 (9th Cir. 1971); United States v. Markham, 440 F.2d 1119, 1121-1123 (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).
. 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 Mexico, violates the Fourth Amendment unless a search at that checkpoint 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.