United States v. Martinez

• Decision Date: 04 February 1976
• Docket Number: 75-2047 Summary Calendar.,No. 74-3611,74-3611
• Citation: 526 F.2d 954
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramon Dionico MARTINEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Homar Martinez PERALEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 954

UNITED STATES of America, Plaintiff-Appellee, v. Ramon Dionico MARTINEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Homar Martinez PERALEZ, Defendant-Appellant.

Nos. 74-3611, 75-2047 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit

February 4, 1976.

L. Aron Pena, Edinburg, Tex., for defendant-appellant in No. 74-3611.

Anthony J. P. Farris, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee in No. 74-3611.

Roberto J. Yzaguirre, McAllen, Tex., for defendant-appellant in No. 75-2047.

Edward B. McDonough, Jr., U.S. Atty., James R. Gough, Jr., Mary L. Sinderson, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee in No. 75-2047.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

ON PETITIONS FOR REHEARING and PETITIONS FOR REHEARING EN BANC

DYER, Circuit Judge:

Relying on United States v. Ortiz, 1975, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623, and United States v. Brignoni-Ponce, 1975, 422 U.S. 973, 95 S.Ct. 2574, 45 L.Ed.2d 607, the convictions in these cases were reversed.¹

Upon the government's petition for rehearing en banc the Court was polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service voted to deny it. Since a dissent has been filed from the Court's refusal to rehear en banc the panel's determination in each case it is appropriate to amplify our previous decisions.

On October 11, 1973, United States Border Patrol agents stopped Martinez at a traffic checkpoint near La Gloria, Texas. While inquiring about Martinez' citizenship they noticed a large metal box in the back of the pickup truck. Martinez was required to open the box although there was nothing to give rise to probable cause. Marijuana was found in the box. After his motion to suppress was denied he was convicted of possession with intent to distribute. On June 30, 1975, the Supreme Court in Ortiz held that probable cause or consent is required for vehicular searches at "traffic checkpoints removed from the border and its functional equivalents." We applied Ortiz to Martinez and reversed the conviction.²

Here then we have a search post Almeida-Sanchez and pre-Ortiz. The government argues that the extension of the rule announced in Almeida-Sanchez, applied to checkpoint searches for the first time in Ortiz, should not be given retrospective application. We disagree. Ortiz did not establish a new rule in an overruling decision. See United States v. Peltier, 1975, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374; United States v. Miller, 5 Cir. 1974, 492 F.2d 37, 40. On the contrary the Court took pains to point out that it was following Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, and Almeida-Sanchez.

". . . A search, even of an automobile, is a substantial invasion of privacy. To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search. Almeida-Sanchez, 413 U.S. 266, at 269-270, 93 S.Ct. 2535, at 2537-2538, 37 L.Ed.2d 596; Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). We are not persuaded that the differences between roving patrols and traffic checkpoints justify dispensing in this case with the safeguards we required in Almeida-Sanchez. We therefore follow that decision and hold that at traffic checkpoints removed from the border and its functional equivalents, officers may not search private vehicles without consent or probable cause.

We have had presented to us relatively few cases where the search was made at a checkpoint without probable cause between the time of Almeida-Sanchez, decided June 21, 1973, and the time of Ortiz, decided June 30, 1975. Thus there is no major law enforcement problem and such cases will not be recurring.

With respect to Peralez, on October 8, 1974, Border Patrol agents received a signal from the chekar device on Highway 1017 South of Hebbronville, Texas. The agents drove to that highway and saw a vehicle stop at a stop sign where 1017 intersects Highway 285. The two occupants of the car turned out the lights, alighted and relieved themselves, got back into the car, turned the lights on and turned east on 285 toward Fulfurrias. The officers stopped the vehicle and while questioning Peralez detected the odor of marijuana. Peralez was ordered to open the trunk and marijuana was discovered. Subsequently his motion to suppress was denied and he was convicted of possession with intent to distribute.

Hebbronville, by way of Laredo to the border is 55 miles, and by way of Zapata is 50 miles. Highway 1017 does not lead to the border. It begins approximately 30 miles north of the border at Highway 281. Highways 186, 281, 681, 2844, 2294, 755 and 2686 all intersect 1017. The officers had no previous information that Peralez was approaching from the south on 1017 — they simply received a signal of an approaching car. They had no reason to believe that the vehicle had come from the border, or that Peralez was violating any law. There were no suspicious circumstances to justify stopping the car.

The government contends that where a roving patrol is involved, as here, Almeida-Sanchez is inapposite because it held only that a search could not be conducted without probable cause, but did not touch upon a stop for investigation without cause or suspicion; and that Brignoni-Ponce, which held that a stop could only be justified upon the basis of reasonable suspicion should not be retrospectively applied to Peralez.

We are unwilling to accept the fine distinction drawn by the government between stops and searches in a roving patrol case. Brignoni-Ponce did not establish a new rule in an overruling decision, Miller, supra, or a new constitutional principle, Peltier, supra. As this Court succinctly stated in the United States v. Soria, 5 Cir. 1975, 519 F.2d 1060, 1062, "Ortiz and Brignoni-Ponce established standards of conduct for Border Patrol agents after the date of decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973)."

The Court therefore adheres to the panel decisions and the petitions for rehearing en banc in United States v. Martinez and United States v. Peralez are severally denied.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THRONBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

RONEY, Circuit Judge, with whom, BROWN, Chief Judge, AINSWORTH, CLARK and GEE, Circuit Judges, join, dissenting:

I respectfully dissent from the Court's refusal to rehear en banc the panel's determination that United States v. Ortiz, 422 U.S. 891 at 896-97, 95 S.Ct. 2585 at 2588-89, 45 L.Ed.2d 623 (1975), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), should be applied retroactively to searches occurring prior to the date of those decisions, insofar as the exclusionary rule of evidence is concerned.

In Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the Supreme Court held that a search could not lawfully be conducted by officers engaged in a roving patrol without probable cause or consent. That case did not, however, establish the circumstances under which a search at a permanent checkpoint could be made or the circumstances under which a stop could be made by a roving patrol for purposes of interrogation. These questions were not finally answered until Ortiz and Brignoni-Ponce were decided two years later.

In Ortiz the Supreme Court held that border patrol officers at fixed checkpoints, other than at the border or its functional equivalent, cannot search a vehicle in the absence of consent or probable cause. In Brignoni-Ponce the Supreme Court held that a stop of a vehicle by a roving patrol for purposes of interrogation, as distinguished from a search, could only be justified upon the basis of reasonable suspicion capable of being articulated.

The question of whether rulings in criminal cases should be given retroactive effect is one that has repeatedly troubled both the Supreme Court and this Court. Recently, in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the Supreme Court refused to apply Almeida-Sanchez to searches conducted prior to the date of that decision. Peltier establishes the guidelines by which we should evaluate the retroactivity vel non of Ortiz and Brignoni-Ponce, insofar as they trigger the exclusionary rule.

In Peltier, as in these cases, the Government contended "that the exclusionary rule should not be . . . applied . . . because the policies underlying the rule did not justify its retroactive application . . . ." United States v. Peltier, 422 U.S. at 534, 95 S.Ct. at 2316, 45 L.Ed.2d at 379. In agreeing with the Government, the Supreme Court noted

that in every case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the fact finding process, the Court has concluded that any such new constitutional principle would be accorded only prospective application. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969); Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971).

We think that these cases tell us a great deal about the nature of the

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