U.S. v. Bowen

• Citation: 500 F.2d 960
• Decision Date: 09 May 1974
• Docket Number: No. 72-1012,72-1012
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Lee BOWEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 960

500 F.2d 960

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.

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 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, 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 eastwest 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 ¹ 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 'in 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 'the 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 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 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). ²

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 Ameida-Sanchez which suspends Fourth Amendment standards in dealing 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 paralled 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....