(dissenting) :
I respectfully dissent.
The majority does not attempt to justify retroactivity based upon the tests of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Rather it asserts that before the question of retroactivity even becomes relevant, we must decide whether the Court in Almei-da-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), articulated a “new” constitutional rule. In order to be new, the majority contends, the constitutional rule must overrule “clear past precedent” or disrupt “a practice long accepted and widely relied upon.” This threshold test comes from a footnote in Justice Stewart’s dissent in Milton v. Wainwright, 407 U.S. 371, 381-382 n. 2, 92 S.Ct. 2174, 2180, 33 L.Ed.2d 1 (1972). As we noted in United States v. Bowen, 500 F.2d 960, 975 n. 1 (9th Cir. 1974), it is unclear whether this abridged test should be applied in all cases. But even applying the test adopted by the majority, I disagree that the Almeida-Sanchez pronouncement is not new and, therefore, I believe the Stovall test is relevant.
The majority contends that the appropriate interpretation of the Supreme Court’s holding in Almeida-Sanchez demonstrates that the rule is not new *991and dictates retroactivity. But the majority, falling into the same error as the majority did in Part I of United States v. Bowen, 500 F.2d 962, 968 (9th Cir. 1974) (Wallace, J. dissenting), fails to distinguish between where a majority of Justices has made a pronouncement and where it has not. Justice White, writing for himself and three other Justices, reviewed decisions of each of the courts of appeals having jurisdiction over districts bordering Mexico and concluded:
[Tjhose courts and judges best positioned to make intelligent and sensible assessments of the requirements of reasonableness in the context of controlling illegal entries into this country have consistently and almost without dissent come to the same conclusion that is embodied in the judgment that is reversed today.
413 U.S. at 298 (footnote omitted). Justice Powell, although concurring in the Opinion of the Court, agreed with Justice White’s conclusion on this point:
Roving automobile searches in border regions for aliens, likewise, have been consistently approved by the judiciary. While the question is one of first impression in this Court, such searches uniformly have been sustained by the courts of appeals whose jurisdictions include those areas of the border between Mexico and the United States where the problem has been most severe.
413 U.S. at 278. The tenor of these statements, representing five of the nine Justices, seems more consistent with the conclusion that Almeida-Sanchez established a new constitutional rule.
I
Even ignoring that a majority of the Supreme Court may well believe that Al-meida-Sanchez constitutes a new rule, the test adopted by the majority, when properly applied, also demonstrates that the rule of Almeida-Sanchez is new. Under the first alternative of the majority’s test, a decision constitutes a new constitutional rule if it overrules “clear past precedent.” It cannot be contended that to meet this alternative, the Supreme Court must reverse one of its prior decisions. On the contrary, as we held in United States v. Bowen, 500 F.2d 960, 976 (9th Cir. 1974): “The test does not require . . . that the Supreme Court reverse itself in order for there to be an overruling of clear past precedent.”
Prior to Almeida-Sanchez, the courts of appeals gave no indication that roving stops and searches were unconstitutional. See, e.g., United States v. Miranda, 426 F.2d 283 (9th Cir. 1970); Roa-Rodriquez v. United States, 410 F.2d 1206 (10th Cir. 1969). See United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973). The majority contends that this stream of judicial pronouncements is a mere aberration. However, these consistent holdings can hardly be said to be a deviation from the law when 35 of 36 judges who have considered the question in the three circuits involved in enforcing the immigration laws along our Mexican border have upheld immigration stops and searches. Almeida-Sanchez v. United States, 413 U.S. at 298-299 n. 10 (White, J., dissenting). Almeida-Sanchez does overrule clear past precedent.
The majority’s treatment of the statute pursuant to which the Border Patrol acted also deserves attention. Since 1952, searches for aliens within a reasonable distance from the border have been authorized by Congress. 8 U.S.C. § 1357(a)(3). Merely stating, as does the majority, that statutes have to be measured by the Constitution only begs the question. As we held in United States v. Bowen, 500 F.2d at 977:
Although it is true that statutes have to be measured by the Constitution, a legally enacted statute becomes the law until it is vitiated by a court decision. Where the constitutionality of the statute has been repeatedly upheld by the lower courts, it becomes a clear precedent for law enforcement action. Prior statutory law should be treated no differently from prior case law.
*992The identical statute which we held to be clear past precedent in Bowen is involved in this case. There we held that in applying the first alternative of the threshold test, “[p]rior statutory law should be treated no differently from prior case law.” United States v. Bowen, 500 F.2d at 977 I, therefore, fail to see why Almeida-Sanchez does not overrule clear past precedent, both statutory and case law.
II
Under the second alternative of the majority’s test, a decision constitutes a new constitutional rule if it “disrupts a practice long accepted and widely relied upon.” Justice Stewart, in Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), formulated the second alternative in language that adds an additional dimension. He stated that a decision may constitute a new rule either by overruling past precedent (the first alternative of the majority’s test) “or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . . .” Under the Chevron Oil formulation of the test, Almeida-Sanchez clearly constitutes a new rule. First, the majority concedes that this issue has not previously been presented to the Supreme Court, making it by definition “an issue of first impression” before that Court. Second, the resolution of an issue that would invalidate immigration stops and searches was not foreshadowed. As Justice White stated in Almeida-Sanchez:
.. I cannot but uphold the judgment of Congress that for purposes of enforcing the immigration laws it is reasonable to treat the exterior boundaries of the country as a zone, not a line, and that there are recurring circumstances in which the search of vehicular traffic without warrant and without probable cause may be reasonable under the Fourth Amendment although not carried out at the border itself.
This has also been the considered judgment of the three Courts of Appeals whose daily concern is the enforcement of the immigration laws along the Mexican-Ameriean border, and who, although as sensitive to constitutional commands as we are, perhaps have a better vantage point than we here on the Potomac to judge the practicalities of border-area law enforcement and the reasonableness of official searches of vehicles to enforce the immigration statutes.
413 U.S. at 294-295. Numerous appellate court cases have dealt with this issue and yet, the result prior to Almeida-San-chez was consistently to uphold the stop and search. There simply was no foreshadowing of the Almeida-Sanchez rule.
However, even under the majority’s formulation of the second alternative, Almeida-Sanchez still constitutes a new rule. The majority reaches an opposite conclusion by contending that there is only one prior decision in our circuit squarely upholding the roving patrol search. The majority observes in a footnote that, in cases dating back to 1961, we have approved similar immigration searches (500 F.2d at 978, n. 3), but discounts all of those cases on the basis that any approving language is dicta. The majority, however, fails to explain why this classification should make a difference. The cases, whether or not the language is dicta, are important because they demonstrate a long accepted practice that has been widely relied upon. Apparently four Justices of the Supreme Court did not make such a distinction, for Justice White stated in reference to our circuit:
[Ujnder § 1357(a)(3), automobiles may be stopped without warrant or probable cause and a limited search for aliens carried out in those portions of the conveyance capable of concealing any illegal immigrant. This has been the consistent view of that court.
Almeida-Sanchez, 413 U.S. at 295 (White, J., dissenting) (emphasis added).
Not only has the Border Patrol been following a practice sanctioned by our *993prior cases, it has also been complying with 8 U.S.C. § 1357(a)(3) in making roving patrol stops. The statute explicitly authorizes immigration officials, within a reasonable distance of the border, to search vehicles without a warrant for illegal aliens. The statute in its present form was adopted in 1952. Since 1963, we have upheld the constitutionality of the statute. Fernandez v. United States, 321 F.2d 283 (9th Cir. 1963). A law enforcement practice, authorized for over a decade, adequately meets the second requirement of the majority’s threshold test.
Ill
If either alternative of the majority’s threshold test is met, Almeida-Sanchez states a new rule. Here, both alternatives are met and, therefore, retroactivity should be judged by the Stovall test. Applying that test and for reasons similar to those stated in Part II of United States v. Bowen, 500 F.2d at 975, I would hold that the retroactivity test would require prospective application in this case.1 As the Court stated in Linkletter v. Walker, 381 U.S. at 637:
In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims.
Circuit Judges KOELSCH, EUGENE A. WRIGHT, TRASK, CHOY and SNEED concur in this dissenting opinion.
. The majority’s disclaimer in footnote 1, reserving the question of the application of Almeida-Sanchez to collateral attacks upon prior convictions, does not minimize the potential havoc tl le majority’s ruling could have on the administration of justice. Because of its retroactivity stance, any distinction between a defendant with a case on appeal at the time of the Almeida-Sanchez decision and the countless others whose convictions were final prior to that time would be artificial at best. It appears to me that if the Court in Almeida-Sanchez did not enunciate a new rule, all convictions based upon evidence obtained during a roving patrol search without warrant or probable cause must be reversed,, regardless of whether they are now final or on direct review. This conclusion is supported by the Court’s statement in Stovall v. Denno, 388 U.S. 293, 300, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967):
We also conclude that, for these purposes, no distinction is justified between convictions now final, as in the instant ease, and convictions at various stages of trial and direct review.
As Justice White said in Williams v. United States, 401 U.S. 646, 656, 91 S.Ct. 1148, 1154, 28 L.Ed.2d 388 (1971) :
[I] t should be clear that we find no constitutional difference between the applicability of Ghimel to those prior convictions that are here on direct appeal and those involving collateral proceedings.
Three other Justices joined in Justice White’s opinion and Justice Marshall’s dissent can be considered to be in harmony with the language quoted to the extent that he would apply the Stovall test in cases that are before the Court on collateral attack.