U.S. v. Peltier

Decision Date09 May 1974
Docket NumberNo. 73-2509,73-2509
Citation500 F.2d 985
PartiesUNITED STATES of America, Appellee, v. James Robert PELTIER, Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Sandor W. Shapery (appeared), La Jolla, Cal., for appellant.

Thomas M. Coffin, Asst. U.S. Atty. (appeared), Harry D. Steward, U.S. Atty., San Diego, Cal., for appellee.

Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.

ALFRED T. GOODWIN, Circuit Judge:

James Robert Peltier's appeal has been taken en banc so the full court can consider whether the rule announced by the Supreme Court 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), should be applied to similar cases pending on appeal 1 on the date the Supreme Court's decision was announced. We hold that it should, reverse Peltier's conviction, and remand the matter to the district court.

Peltier was convicted of possessing marijuana, with intent to distribute, in violation of 21 U.S.C. 841(a)(1). The evidence was discovered during a search conducted on February 28, 1973, by border-patrol agents on roving patrol on Highway 395 near Temecula, California.

On June 21, 1973, the Supreme Court, in its opinion reversing this court's Almeida-Sanchez opinion, held that border-patrol agents on roving patrol cannot stop and search automobiles pursuant to 8 U.S.C. 1357(a) and 8 C.F.R. 287.1 without probable cause or warrant.

The search in question here was of the same type as that condemned in Almeida-Sanchez. There, the search 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. Here, the search was conducted approximately 70 air miles north of the Mexican border and well to the north of the San Diego metropolitan area. The government concedes that the evidence must be suppressed if the rule announced in Almeida-Sanchez applies to this case.

Until Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court traditionally applied new constitutional criminal-procedure standards retroactively in all cases. 381 U.S. at 628. See generally Haddad, 'Retroactivity Should Be Rethought': A Call for the End of the Linkletter Doctrine, 60 J.Crim.L., C. & P.S. 417, 425-26 (1969); Mishkin, The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56, 56-57 (1965). In Linkletter the Court was required to decide whether Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which overruled Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), should be given retroactive effect. After reviewing the history and theory of the problem of retroactivity, the Court concluded that the Constitution neither prohibits nor requires that the Court's decisions be applied retroactively. In each case the Court must determine whether retroactive or prospective application is appropriate. Linkletter v. Walker, 381 U.S. at 629.

In Linkletter's successors the Court devised a three-point test to determine whether or not to apply a new constitutional doctrine retroactively. The test looked to (a) the purpose to be served by the new standards, (b) the extent of reliance by law-enforcement officials on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. See Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

However, for the doctrine of retroactivity to be relevant at all, the Court must have articulated a new doctrine.

'An issue of the 'retroactivity' of a decision of this Court is not even presented unless the decision in question marks a sharp break in the web of the law. The issue is presented only when the decision overrules clear past precedent * * * or disrupts a practice long accepted and widely relied upon * * *.' Milton v. Wainwright, 407 U.S. 371, 381-382, n. 2, 92 S.Ct. 2174, 2180, 33 L.Ed.2d 1 (1972) (dissenting opinion of Mr. Justice Stewart).

See also Gosa v. Mayden, 413 U.S. 665, 672-673, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973); Michigan v. Payne, 412 U.S. 47, 50-51, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973); Chevron Oil Co. v. Huson, 404, U.S. 97, 106, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Williams v. United States, 401 U.S. 646, 659, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971).

Linkletter itself fits into the first category-- decisions overruling 'clear past precedent'-- since it involved the retroactivity of Mapp v. Ohio, supra, which overruled Wolf v. Colorado, supra. See also Williams v. United States, supra, involving the retroactivity of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which reversed United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), and Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968) (per curiam), involving the retroactivity of Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968), which overruled Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), involving the retroactivity of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which specifically rejected Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), and Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), involving the retroactivity of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which overruled Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908).

Representative of cases within the second category-- decisions disrupting 'a practice long accepted and widely relied upon'-- is Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), which held that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), would not apply retroactively. The Court in Johnson observed that prior to Miranda and Escobedo it had expressly declined to condemn an entire process of in-custody interrogation solely because police had failed to warn accused persons of their rights or had failed to grant them access to outside assistance, and that law-enforcement agencies had relied upon the Court's acquiescence. 384 U.S. at 731. See also Gosa v. Mayden, supra, involving the retroactivity of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969); Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972), involving the retroactivity of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969) (per curiam), involving the retroactivity of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Stovall v. Denno, supra, involving the retroactivity of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Almeida-Sanchez, by contrast, neither overruled past precedent of the Supreme Court nor disrupted long-accepted practice. Mr. Justice Stewart's opinion for the Court, after reviewing the Court's automobile-search decisions and its administrative-inspection decisions, concluded that neither line of authority 'provide(s) any support for the constitutionality of the stop and search in the present case * * *.' 413 U.S. at 272. 2 Clearly, then, Almeida-Sanchez overruled no earlier Supreme Court precedent; rather, it reaffirmed well-established Fourth Amendment standards dating back to Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Nor did Almeida-Sanchez disturb a long-accepted and relied-upon practice. Although the government claims that it has relied upon judicial approval of roving searches prior to June 21, 1973, it has cited only one of our opinions, prior to our overruled decision in Almeida-Sanchez, holding that government agents on roving patrol can stop and search automobiles without either probable cause or warrant. United States v. Miranda, 426 F.2d 283 (9th Cir. 1970). 3

All of our other pre-Almeida-Sanchez decisions upholding roving-patrol searches away from the border involved stops that were predicated upon: (a) probable cause to believe that the automobile stopped was carrying illegal aliens or contraband, see e.g., United States v. Ardle, 435 F.2d 861 (9th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1638, 29 L.Ed.2d 116 (1971); cf. United States v. Kandlis, 432 F.2d 132 (9th Cir. 1970); or (b) a 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 it entered the United States, see, e.g., 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); or (c) a reasonable certainty that the vehicle searched contained either goods which have just been smuggled or a person who has just crossed the border illegally. See, e.g., United States v. Weil, 432 F.2d 1320, 1323 (9th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971). See generally Note, In Search of the Border: Federal Customs and Immigration Officers, 5 N.Y.U.J. Int'l L. & Politics 93 (1972). Moreover, our line of decisions, and that of the Court of Appeals for the Tenth Circuit (see, e.g., Roa-Rodriguez v. United States, 410 F.2d 1206 (10th Cir. 1969)),...

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