(dissenting):

I believe the Supreme Court has had ample opportunities to indicate that United States v. Ortiz, 422 U.S. 891 , 95 S.Ct. 2585 , 45 L.Ed.2d 623 (1976) was not to be applied retroactively to searches at fixed check points not based on probable cause occurring subsequent to June 21, 1973 but prior to June 30, 1975, the date Ortiz was decided. Notwithstanding these opportunities the Supreme Court has failed to so indicate.

One of these opportunities presented itself in Bowen v. United States, 422 U.S. 916 , 95 S.Ct. 2569 , 45 L.Ed.2d 641 (1975) decided the same day as Ortiz . Involved in Bowen was a fixed check point search not based on probable cause. The Supreme Court held that we, the Ninth Circuit, correctly had decided “that Almeida-Sanchez did not apply to a 1971 search.” No suggestion appears in the Bowen opinion that would validate check point searches not based on probable cause made subsequent to June 21, 1973, but prior to June 30,1975, the date both Ortiz and Bowen were decided. Any such suggestion would have required reconciliation with Ortiz because the search in that case occurred on November 12, 1973.

Another opportunity to suggest that searches occurring between the dates of Almeida-Sanchez and Ortiz were valid arose in United States v. Martinez-Fuerte, 428 U.S. 543 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976). In holding that check point stops were valid the Supreme Court adhered to Ortiz and gave no indication that it was inapplicable to searches subsequent to June 21, 1973.

Thus, I cannot avoid the firm belief that the Supreme Court has selected June 21, 1973 as its critical date. This being the case, I view the date on which this court decided United States v. Bowen, 500 F.2d 960 (9th Cir. 1974), viz. May 9, 1974, as irrelevant. This does not mean that issues presented by our Bowen could not be distinguished from those of Almeida-Sanchez. I thought they could then and remain of the same mind. The Supreme Court, however, in deciding Ortiz as it did, thought otherwise. Their view controls. If the date of May 9, 1974 is to be made memorable the Supreme Court should do it.