UNITED STATES v. MARTINEZ

[12] RONEY, Circuit Judge, with whom, BROWN, Chief Judge, AINSWORTH, CLARK and GEE, Circuit Judges, join, dissenting:

I respectfully dissent from the Court's refusal to rehear en banc the panel's determination that United States v. Ortiz, 422 U.S. 891 at 896-97, 95 S.Ct. 2585 at 2588-89, 45 L.Ed.2d 623 (1975), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), should be applied retroactively to searches occurring prior to the date of those decisions, insofar as the exclusionary rule of evidence is concerned.

In Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the Supreme Court held that a search could not lawfully be conducted by officers engaged in a roving patrol without probable cause or consent. That case did not, however, establish the circumstances under which a search at a permanent checkpoint could be made or the circumstances under which a stop could be made by a roving patrol for purposes of interrogation. These questions were not finally answered until Ortiz and Brignoni-Ponce were decided two years later.

In Ortiz the Supreme Court held that border patrol officers at fixed checkpoints, other than at the border or its functional equivalent, cannot search a vehicle in the absence of consent or probable cause. In Brignoni-Ponce the Supreme Court held that a stop of a vehicle by a roving patrol for purposes of interrogation, as distinguished from a search, could only be justified upon the basis of reasonable suspicion capable of being articulated.

The question of whether rulings in criminal cases should be given retroactive effect is one that has repeatedly troubled both the Supreme Court and this Court. Recently, in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the Supreme Court refused to apply Almeida-Sanchez to searches conducted prior to the date of that decision. Peltier establishes the guidelines by which we should evaluate the retroactivity vel non of Ortiz and Brignoni-Ponce, insofar as they trigger the exclusionary rule.

In Peltier, as in these cases, the Government contended "that the exclusionary rule should not be . . . applied . . . because the policies underlying the rule did not justify its retroactive application . . .." United States v. Peltier, 422 U.S. at 534, 95 S.Ct. at 2316, 45 L.Ed.2d at 379. In agreeing with the Government, the Supreme Court noted

that in every case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the fact finding process, the Court has concluded that any such new constitutional principle would be accorded only prospective application. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, [ 388 U.S. 293 [ 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)]; Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212] (1968); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969); Williams v. United States, [ 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971)]; Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971).

We think that these cases tell us a great deal about the nature of the exclusionary rule, as well as something about the nature of retroactivity analysis.

The teaching of these retroactivity cases is that if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the "imperative of judicial integrity" is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner. It would seem to follow a fortiori . . . that the "imperative of judicial integrity" is also not offended if law enforcement officials reasonably believed in good faith that their conduct was in accordance with the law even if decisions subsequent to the search or seizure have held that conduct of the type engaged in by the law enforcement officials is not permitted by the Constitution.

This approach to the "imperative of judicial integrity" does not differ markedly from the analysis the Court has utilized in determining whether the deterrence rationale undergirding the exclusionary rule would be furthered by retroactive application of new constitutional doctrines.

If the purpose of the exclusionary rule is to deter unlawful police conduct, then 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 (footnotes omitted).

United States v. Peltier, 422 U.S. at 535-538, 95 S.Ct. at 2316-2317, 45 L.Ed. 2d at 380-381.

I doubt it can be fairly said that, prior to Ortiz, border patrol officials had knowledge, or could properly be charged with knowledge, that probable cause was required for permanent checkpoint searches. Almeida-Sanchez certainly did not put them on notice of the unconstitutionality of these practices since it dealt only with roving patrol searches, a much clearer case of a constitutional violation in my opinion.

Illustrative of the uncertainty of the applicability of the principles laid down in Almeida-Sanchez to the permanent checkpoint situation is the fact that the two circuit courts which considered the question reached opposite conclusions. In United States v. Bowen, 500 F.2d 960 (9th Cir. 1974) (en banc), aff'd on other grounds, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975), the Ninth Circuit in a seven to six multiple opinion case held that Almeida-Sanchez required probable cause for all vehicle searches in the border area, whether conducted by roving patrols or at fixed traffic checkpoints. This Court, however, in United States v. Hart, 506 F.2d 887 (5th Cir.), vacated and remanded, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706 (June 30, 1975) (for reconsideration in light of Ortiz and Brignoni-Ponce), held that, at least as to searches conducted at the permanent checkpoint involved in that case, the principles announced in Almeida-Sanchez did not require that border patrol officers have probable cause to support the vehicle searches. These two circuit court cases, differing in result and analysis, clearly support the argument that border patrol officials should not be charged with knowledge prior to Ortiz that probable cause was required to conduct permanent checkpoint searches. Cf. Wood v. Strickland, 420 U.S. 329, 95 S.Ct. 1003, 43 L.Ed.2d 214 (1975) (opinion of Powell, J.).

While the retroactivity of Brignoni-Ponce presents a closer question, since it deals with roving patrols as did Almeida-Sanchez, it seems to me that the Government should at least be afforded oral argument, and probably en banc consideration, on the retroactivity issue, in the exclusionary rule context, of this extension in the continually developing field of border search law. The real reason for the exclusionary rule is lost where good faith efforts of border patrol officers to protect the borders of this country are nullified because they did not properly guess how the courts would rule on the nuances of border search law. Courts should be mindful of the responsibility imposed on the border patrol in this very difficult area and should allow the officers the full reach of the law as it is at the time of enforcement activities, and not limit them by what the law may eventually be.

Both cases should be reheard by the Court en banc.

[23] GEE, Circuit Judge (dissenting):

I respectfully dissent from the denial of en banc hearing in these matters. My reasons for doing so on the matter of retroactivity are well set out in Judge Roney's dissenting opinion.

I think as well that the validity of the Chekar-activated citizenship checks conducted at the La Gloria and Hebbronville checkpoints deserves careful consideration. Had these checks been conducted at a permanent checkpoint, they would have been clearly permissible. United States v. Santibanez, 517 F.2d 922 (5th Cir. 1975). It seems to me that these Chekar stations equate to such a checkpoint; certainly, as the description of the Hebbronville installation in United States v. Thompson, 390 F. Supp. 337, 340 (S.D.Tex. 1974) makes clear, they are a far cry from Almeida-Sanchez' roving patrol. Briefly, metal-sensing devices embedded in the several highways which converge on Hebbronville are activated during the hours of darkness. When a radio signal is received from one by the patrol on duty, it takes up an intercept position on the highway indicated. To the extent that these intercept positions are fixed, but opened only at need, they may analogize sufficiently to a permanent checkpoint to pass muster. Certainly the Chekars conserve scarce manpower along the lower border, recognized to be in a state of hemorrhage. In these circumstances, to dismiss their use (if we have) without so much as a suggestion as to how they might be properly employed seems to me rash.