United States v. Lucero Alberto Escalante

The question presented to us on rehearing en banc is whether Almeida-Sanchez v. United States, 413 U.S. 266 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973), requires the suppression of evidence obtained in searches of private vehicles at permanent traffic checkpoints removed from the border or its functional equivalents, made by Border Patrol officers without consent or probable cause, after June 21, 1973, the date that AlmeidaSanchez was decided, and before May 9, 1974, when this court announced its decision in United States v. Bowen, 500 F.2d 960 (9th Cir. 1974), aff'd, 422 U.S. 916 , 95 S.Ct. 2569 , 45 L.Ed.2d 641 (1975). That such searches are unconstitutional is not at issue, for they were specifically so declared in United States v. Ortiz, 422 U.S. 891 , 95 S.Ct. 2585 , 45 L.Ed.2d 623 (1975), and previously had been so held by us in Bowen . 1 The issue is essentially to what extent Ortiz should be applied retroactively to searches prior to our announcement in Bowen .

The facts of the case are not in dispute. At approximately 1:05 on the morning of June 22, 1973, Border Patrol agents at the San Clemente immigration checkpoint on Interstate Route 5, approximately 66 miles from the…

(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…

554 F.2d 970 UNITED STATES of America, Plaintiff-Appellee, v. Lucero Alberto ESCALANTE, Defendant-Appellant. No. 74-1075. United States Court of Appeals, Ninth Circuit. May 31, 1977. Lucero Alberto Escalante, pro se. John P. Knoll, Frank J. Ragen, Federal Defenders, Inc., San Diego, Cal., submitted on briefs for defendant-appellant. Terry J. Knoepp, U.S. Atty., James W. Meyers, Asst. U.S. Atty., San Diego, Cal., on petition for rehearing, for plaintiff-appellee; Stephen W. Peterson, Asst. U.S. Atty., San Diego, Cal., on the brief. Appeal from the United States District Court for the Southern District of California. Before BROWNING, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY, and ANDERSON, Circuit Judges. CHOY, Circuit Judge: 1 The question presented to us on rehearing en banc is whether Almeida-Sanchez v. United States, 413 U.S. 266 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973), requires the suppression of evidence obtained in searches of private vehicles at permanent traffic checkpoints removed from the border or its functional equivalents, made by Border Patrol officers without consent or probable cause, after June 21, 1973, the date that Almeida-Sanchez…