United States v. Camilo Juarez-Rodriguez

OPINION ON REHEARING EN BANC

Before CHAMBERS, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.

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 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), affirmed, 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 this case are stated in the opinion of a…

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…

(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…

568 F.2d 120 UNITED STATES of America, Plaintiff-Appellee, v. Camilo JUAREZ-RODRIGUEZ, Defendant-Appellant. No. 74-1118. United States Court of Appeals, Ninth Circuit. Nov. 16, 1976. As Amended Jan. 10, 1977. Lewis A. Wenzell, Federal Public Defender, San Diego, Cal., for defendant-appellant. James W. Meyers, Asst. U.S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee. OPINION ON REHEARING EN BANC Before CHAMBERS, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, 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 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), affirmed, 422 U.S. 916 , 95 S.Ct. 2569 , 45 L.Ed.2d…