United States v. Peltier

500 F.2d 985

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 9, 1974
• Docket: No. 73-2509
• Status: Published

Opinions

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 appeal¹ 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 Al-meida-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 Al-meida-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 Had-dad, “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 retroac-tivity 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) (citations omitted).

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 retro-activity 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)), permitting roving searches by the border patrol, enjoyed only brief acceptance and failed its first test before the Supreme Court.

The government fares no better in its alternate claim that it was relying not only on prior judicial approval of roving searches but also upon the literal command of Congress and a regulation authorizing such searches. Section 287(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a)(3), provides for warrantless searches of automobiles and other conveyances “within a reasonable distance from any external boundary of the United States * * This section, enacted in 1952, revised in a manner not relevant here a statute enacted in 1946. Act of Aug. 7, 1946, ch. 768, 60 Stat. 865. Soon after the 1952 revision, the Attorney General promulgated regulations, one of which defined “reasonable distance” as “within 100 air miles from any external boundary of the United States * * *.” 8 C.F.R. § 287.1(a)(2).

This statute and regulation must, however, be read in light of the Fourth Amendment; and when so understood, they merely delegate authority to be exercised by border-patrol agents in accordance with constitutional limitations. Without the statutory authorization conferred by § 287(a)(3), border-patrol agents would not have legal power to search private vehicles for aliens under any circumstances. Under the statute, they are permitted to conduct certain warrantless searches. But, unless the search qualifies as a border search, the statute should not be read, as this court has read it, to dispense with the requirement of probable cause as well as the requirement of a warrant.

When the Supreme Court reversed us in Almeida-Sanchez, it did not declare the statute unconstitutional; it merely read the Fourth Amendment require-ment of probable cause into the right of border-patrol agents to conduct war-rantless searches which were not the functional equivalents of border searches. Other sections of the same act had earlier been subjected to similar judicial constructions to avoid conflicts with constitutional standards. See United States v. Almeida-Sanchez, 452 F.2d 459, 465-467 (9th Cir. 1971) (dissenting opinion of Browning J.), rev’d, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Judicial interpretation of a statute and departmental regulation to eliminate conflict with the Fourth Amendment hardly qualifies as the kind of “new” constitutional rule sufficient to deny an appellant the fruits of his appeal.

Peltier is not claiming the benefit of any decision overruling or enlarging “then-applicable constitutional norms,” Williams v. United States, 401 U.S. at 654; rather, he seeks the application of principles enunciated by Chief Justice Taft in 1925 in Carroll and consistently adhered to by the Supreme Court thereafter. This is a case not so much of the retroactivity of Almeida-Sanchez as of the continued vitality of Carroll and its successors. The Supreme Court in Al-meida-Sanchez was not announcing a new legal doctrine, but correcting an aberration. Peltier is entitled to the benefit of the rule announced in Almeida-Sanchez, not because of retroactivity but because of Fourth Amendment principles never deviated from by the Supreme Court.

A Supreme Court decision overruling state or circuit court decisions does not necessarily mark a departure from prior decisions of the Supreme Court. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). The Supreme Court faced the question whether Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), which barred du- ' plicate prosecutions when a single act violated both state and municipal laws, was fully retroactive. The Court concluded :

“* * * [T]his Court had not earlier had occasion to squarely pass on the issue. But its decision in Waller cannot be said to have marked a departure from past decisions of this Court. Therefore, while Waller-type cases may involve a form of practical prejudice to the State over and above the refusal to permit the trial which the Constitution bars, the justifiability of the State’s reliance on lower court decisions supporting the dual sovereignty analogy was a good deal more dubious than the justification for reliance which has been given weight in our Linkletter [v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601] line of cases * * *.

“We hold, therefore, that our decision in Waller v. Florida [397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970)], is to be accorded full retroactive effect * * * ” Robinson v. Neil, 409 U.S. at 510-511.

The conclusion which we have reached here may or may not be consistent with the result in the other circuits that have before them the application of Almeida-Sanchez to searches conducted prior to June 21, 1973. The Fifth Circuit recently held that Almeida-Sanchez is not to be given retrospective effect. United States v. Miller, 492 F.2d 37 (5th Cir., 1974). However, its opinion does not mention three other cases in which the circuit applied Almeida-Sanchez retroactively without discussion. See United States v. Speed, 489 F.2d 478 (5th Cir. 1973); United States v. McKim, 487 F.2d 305 (5th Cir. 1973); United States v. Byrd, 483 F.2d 1196 (5th Cir. 1973). The Tenth Circuit also has applied AlmeidaSanchez to pending cases in which the search occurred prior to the decision in Almeida-Sanchez. See United States v. King, 485 F.2d 353, 359 (10th Cir. 1973); United States v. Maddox, 485 F.2d 361, 363 (10th Cir. 1973).

The judgment of conviction is reversed, and the matter remanded to the district court with instructions to suppress the evidence seized in the search of Peltier’s automobile.

Circuit Judges CHAMBERS, MERRILL, BROWNING, DUNIWAY, ELY and HUFSTEDLER concur in this majority opinion.

1 . We do not have before us the question of the effect of Almeiia-8 anches upon a eon-viction being tested in a collateral attack, and we express no opinion upon that.

2 . Mr. Justice Powell, in his concurring opinion, also noted:

“ * * * [I] join in the opinion of the Court, which sufficiently establishes that none of our Fourth Amendment decisions supports the search conducted in this case * * 413 U.S. at 275.

3 . We concede that a number of other opinions do contain some dicta from which the government might infer that this court would uphold a roving-patrol search so long as it was conducted within the 100-mile area defined in 8 C.F.R. § 287.1. See, e. g., Du-prez v. United States, 435 F.2d 1276, 1277 (9th Cir. 1970); Fumagalli v. United States, 429 F.2d 1011, 1013 (9th Cir. 1970); United States v. Elder, 425 F.2d 1002, 1004 (9th Cir. 1970); Barba-Reyes v. United States, 387 F.2d 91 (9th Cir. 1967); Fernandez v. United States, 321 F.2d 283 (9th Cir. 1963); Contreras v. United States, 291 F.2d 63 (9th Cir. 1961). Nonetheless, United States v. Miranda, supra, is the only ease which has been called to our attention in which this court held that a stop and search conducted by immigration agents on roving patrol was proper.