Opinion
No. 73-2328.
July 5, 1974.
Michael J. McCabe, Deputy Federal Defender (argued), San Diego, Cal., for defendant-appellant.
James W. Meyers, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
Appeal from the District Court for the Southern District of California.
Before MERRILL, KOELSCH and CHOY, Circuit Judges.
OPINION
Defendant appeals from a conviction of violating 21 U.S.C. § 841(a)(1) (possession of marijuana with intent to distribute).
Defendant was stopped on February 26, 1973, at a border patrol checkpoint on Interstate 8, two miles west of Ocotillo so that agents could check the citizenship of the driver and check the vehicle for aliens. The parties have stipulated that this was a stationary checkpoint rather than a roving patrol. Pursuant to this stop the marijuana was discovered.
Three agents with a van or two sedans, aided by a "stop" sign, stopped all traffic and checked the citizenship of the person driving the car.
Defendant urges that the stop of his vehicle was unconstitutional under the logic of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In United States v. Bowen, 500 F.2d 960 (9th Cir. 1974), we held that stops at fixed checkpoints are unconstitutional if they do not occur at the functional equivalent of a border. However, as to such stops the rule was made to apply only to stops occurring after June 21, 1973.
We hold that for purposes of retroactivity a stationary checkpoint, even though temporary, is similar to a fixed checkpoint. United States v. Grijalva-Carrera, 500 F.2d 592 (9th Cir. 1974) (en banc). Thus the stop of defendant's car was, on the date of the stop, legal under the law of this circuit.
Since the border agent was entitled to open the trunk pursuant to his search for aliens under § 287(a) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a), as then in force we need not consider the probable cause issue.
Affirmed.