United States v. Camilo Juarez-Rodriguez

568 F.2d 120

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 10, 1977
• Docket: 74-1118
• Status: Published

Opinions

HUFSTEDLER, Circuit Judge,

with whom Judges BROWNING, DUNIWAY, ELY and GOODWIN, join, dissenting:

No retroactivity issue is presented by United States v. Ortiz (1975) 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 Ortiz held that Almeida-Sanchez v. United States (1973) 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, applied to invalidate searches of private vehicles at traffic checkpoints removed from the border or its functional equivalents, made by border patrol officers without consent or probable cause, and made after June 21, 1973, the date that AlmeidaSanchez came down.¹ The majority opinion in this case reaches the startling and unprecedented conclusion that Almeida-Sanchez will be given limited prospective application by our court.

Ortiz announced no new constitutional doctrine. It did not “broaden” an existing exclusionary rule. (See United States v. Peltier (1975) 422 U.S. 531, 537, 95 S.Ct. 2313, 45 L.Ed.2d 374). All that Ortiz did was to explain why checkpoint searches of this kind had been invalidated by Almeida-Sanchez.

The only difference between the checkpoint argument that the Government made and lost in Ortiz and the one it makes here is that its present argument seeks to justify an exception from Almeida-Sanchez for a lesser period of time than it sought in Ortiz. In Ortiz, it tried to except checkpoints indefinitely from Almeida-Sanchez. Here it seeks to escape Almeida-Sanchez from the date of that decision to the date that we decided United States v. Bowen, 500 F.2d 960, May 9, 1974.

The Supreme Court in Ortiz rebuffed the Government’s attempt. We had earlier rejected the contention in Bowen. Although our Bowen dictum was premature,² the Government cannot rely on Bowen to support an exception that Bowen itself refused. We rejected a similar contention in our prior opinion in the case at bar. As we stated in our prior opinion in this case:

“Since the stop and search in this case took place after June 21, 1973, the date on which the Supreme Court decided Almeida-Sanchez v. United States, supra, the non-retroactivity of that decision as applied to fixed alien checkpoints . need not concern us [citations omitted].” (United States v. Juarez-Rodriguez (9th Cir. 1974) 498 F.2d 7.)

Even if we had not firmly rejected the Government’s earlier attempts to limit the future impact of Almeida-Sanchez, the majority opinion’s conclusion is unacceptable. A court of appeals cannot limit the prospective application of a constitutional rule laid down by the Supreme court. If the majority’s view were accepted, the Supreme court’s authority as the final arbiter of constitutional issues would be seriously eroded, if not destroyed. Almeida-Sanchez invalidated searches that were conducted under the very statute and the same administrative regulations upon which the Government now relies, and, to the extent that there was “continuous judicial approval” of searches thus conducted, the continuity was snapped when Almeida-Sanchez came down.

The meaning of the Court’s language in Peltier, “evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment” (United States v. Peltier, supra, 422 U.S. at 542, 95 S.Ct. at 2320 is not clear. But it is very difficult to believe that it means that the retrospectivity of a Supreme Court decision can turn upon the subjective state of a particular searching officer’s mind or upon the degree to which he may be sophisticated in reading Supreme Court opinions. If it did, the applicability of Supreme Court decisions in cases involving searches would be hopelessly conflicting and unpredictable. They are troublesome enough when we are obliged to deal only with the differing states of judges’ minds on this complex subject.

To the extent that knowledge of a law enforcement officer conducting a search has any bearing on a retrospectivity problem, the knowledge is that knowledge imputable to a hypothetical law enforcement officer within the system of which he is a part. A federal law enforcement officer must at least be “properly chargeable” with the knowledge of federal law enforcement agencies, including the Department of Justice. (Cf. Giglio v. United States (1972) 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104; Barbee v. Warden, Maryland Penitentiary (4th Cir. 1964) 331 F.2d 842, 846.) The Department of Justice was very much aware, after Almeida-Sanchez, if not before, that checkpoint searches were probably going the way of roving searches. The Government was a party to dozens of cases in which the point was made. Under these circumstances, the Government, acting through these border patrol agents, is in no position to claim any good faith reliance on the validity of these checkpoint searches.

I would reaffirm our prior decision reversing the conviction.

1 . Ortiz squarely held that Almeida-Sanchez invalidated these checkpoint searches that occurred after June 21, 1973: “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.” (Emphasis added. 422 U.S. at 896, 95 S.Ct. at 2589.)

The majority’s interpretation of Ortiz drains the meaning from the case. Moreover, the Supreme Court does not have to decide every application of a former decision on a constitutional principle before an earlier decision is entitled to prospective effect in every court in the land.

2 . In Bowen, the majority of our court held that Almeida-Sanchez did not apply to searches that occurred before June 21, 1973, and, by dictum, stated that Almeida-Sanchez invalidated checkpoint searches, conducted without consent or probable cause after June 21, 1973. The Supreme Court affirmed the nonretroactivity of Almeida-Sanchez in Bowen v. United States (1975) 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641. The Court also reminded us that we should not have reached the question whether Almeida-Sanchez applied to fixed checkpoint searches because the search involved had occurred before June 21, 1973, and our majority had concluded that Almeida-Sanchez was not retroactive.