U.S. v. Mendoza

• Decision Date: 19 March 1984
• Docket Number: No. 83-3040,83-3040
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis Carlos MENDOZA and Oscar Tabares, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 448

727 F.2d 448

UNITED STATES of America, Plaintiff-Appellee, v. Luis Carlos MENDOZA and Oscar Tabares, Defendants-Appellants.

No. 83-3040.

United States Court of Appeals, Fifth Circuit.

March 19, 1984.

Michael J. Osman, Miami, Fla., for defendants-appellants.

John P. Volz, U.S. Atty., Harry W. McSherry, Marilyn Gainey Barnes, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

ON SUGGESTION FOR REHEARING EN BANC

(Opinion December 12, 1983, 5 Cir., 1983, 722 F.2d 96)

Before RUBIN, TATE and JOLLY, Circuit Judges.

PER CURIAM.

At the time the police searched the defendants' car and seized the cocaine that was admitted in evidence against them, the reliability of an informant's tip was determined by the two-pronged test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968). After defendants' convictions but before consideration of their appeal, the Supreme Court, in Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), adopted the totality-of-circumstances test, expressly overruling Aguilar and Spinelli. Petitioners seek rehearing, contending that, in deciding their appeal, we should have applied the Aguilar and Spinelli test.

In 1982 the Supreme Court reviewed a number of prior decisions dealing with whether a "new" constitutional rule should be applied only prospectively. United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). The Johnson Court adopted Justice Harlan's view, expressed in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248, 259 (1969) and his separate opinion in Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 1164, 28 L.Ed.2d 404, 410 (1971): all "new" rules of constitutional law must, at a minimum, be applied to all those cases that are still subject to direct review by the Court at the time the new decision is handed down. Johnson, supra, 457 U.S. at 549, 102 S.Ct. at 2586, 73 L.Ed.2d at 213. The court reserved exceptions to this rule, but none is applicable here.

As the Court did in Johnson, we examine the "circumstances of this case to determine whether it presents a retroactivity question clearly controlled by past precedents," and, if not, "whether the application of the Harlan approach would resolve the retroactivity issue" in an equitable manner. In determining whether past precedent was controlling, the Court distinguished the criteria that apply when the new decision invalidates governmental action that had previously been constitutional from those applicable when the change is unfavorable to the defendant. When a decision invalidates previously constitutional governmental action by announcing an entirely new and unanticipated principle of law, it is applied only prospectively. This is the proper course because law enforcement authorities had relied on the old standard, and retroactive application of the new decision would have an adverse effect on the administration of justice.

On the other hand, the court noted that to protect a defendant from an unfavorable ruling, full retroactivity had been recognized "as a necessary adjunct to a ruling that a trial court lacked authority to convict or punish a criminal defendant in the first place." Id., 457 U.S. at 550, 102 S.Ct. at 2587, 73 L.Ed.2d at 214. "In such cases, the Court has relied less on the technique of retroactive application than on the notion that the prior inconsistent judgments or sentences were void ab initio," id., 457 U.S. at 550, 102 S.Ct. at 2588, 73 L.Ed.2d at 214, hence not revivable by the new decision.

Like the decision in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), whose retroactivity was considered in Johnson, Gates "neatly fits none," United States v. Johnson, supra, 457 U.S. at 551, 102 S.Ct. at 2588, 73 L.Ed.2d at 214, of the categories created by prior decisions. Gates did not announce an entirely new and...