(dissenting):
I respectfully dissent. The essence of the majority opinion, it seems to me, is that Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d *364596 (1973), dictates: (a), vacation of the judgment and remand to the trial court with direction, following notice and hearing, that a determination be made as to whether the permanent Immigration and Naturalization Service check point near Truth or Consequences, New Mexico, is the “functional equivalent” of a border search, and (b) if the determination is that the check point is not the “functional equivalent” of a border search that the rule of Almeida-Sanchez shall apply retroactively to the end that Maddox and those similarly situated shall benefit by it. I do not agree with either conclusion.
Almeida-Sanchez was a 5-4 decision. The majority, with Mr. Justice Powell specially concurring, simply ruled that “roving patrols” of Immigration and .Naturalization Service vehicles on a variety of roadways away from the Mexican-United States border within a 100 mile limit without the benefit of search warrants were violative of the commands of the Fourth Amendment. Mr. Justice Powell indicated that the “roving patrols” would be constitutionally permissible under a broad search warrant which he opined would be justified and feasible as “. . . incidental to the protection of the border and draw a large measure of justification from the Government’s extraordinary responsibilities and powers with respect to the border.” He pointedly observed that the case did not involve the constitutional propriety of searches at permanent or temporary check points removed from the border or its functional equivalent.. This language leads me to conclude that Mr. Justice Powell would align with the four dissenters in Almeida-Sanchez in upholding the reasonableness of the permanent check point warrantless searches within the 100 mile regulatory limit from the border. This, I feel, is buttressed by the dissenting opinion authored by Mr. Justice White who observed: (a) “The judgment of Congress obviously was that there are circumstances in which it is reasonably necessary, in the enforcement of the immigration laws, to search vehicles and other private property for aliens, without warrant or probable cause, and at locations other than at the border.”; (b) United States v. Anderson, 468 F.2d 1280 (10th Cir. 1972) and United States v. McCormick, 468 F.2d 68 (10th Cir. 1972), cert. denied 410 U.S. 927, 93 S.Ct. 1361, 35 L.Ed.2d 588 (1973), are correct in their rulings that conveyances may be stopped and examined for aliens without warrant or probable cause when in all of the circumstances it is reasonable to do so; (c) that the search for marihuana conducted upon “discovery”, i. e., the detection of the odor from within the vehicle by an officer at the check point, is not violative of the Fourth Amendment by reason of favorable reference to United States v. Anderson, supra, and United States v. McCormick, supra; and (d) that in the 20 Court of Appeals cases noted dealing with the subject, including Almeida-Sanchez, 35 different judges of three Courts of Appeals have found inspection of vehicles for illegal aliens without warrant or probable cause to be constitutional.
Nothing contained in Almeida-Sanchez justifies any reference to retroactive application of the rule there applied. Even should it be ultimately determined that the warrantless stops and searches conducted at temporary or permanent check points established by the Immigration and Naturalization Service (whose officers are also designated as U. S. Customs Inspectors) under and by authority of 8 U.S.C.A. § 1357(a)(3) and 8 CFR 287.1 are constitutionally defective by virtue of the Fourth Amendment, which I submit would impede the clear congressional intent to protect all persons legally residing in the United. States against the illegal entrance of aliens and the illegal importation of narcotics or other contraband, there is nothing whatsoever, in my opinion, justifying retroactive application of the Almeida-Sanchez rule under the guidelines and standards set forth in Halliday v. United *365States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969):
In deciding whether to apply newly adopted constitutional rulings retroactively, we have considered three criteria: (1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice. E. g., Desist v. United States, ante [394 U.S.] p. 244 [89 S.Ct. 1030, 22 L.Ed.2d 248]; Stovall v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967); Johnson v. New Jersey, 384 U.S. 719 [86 S.Ct. 1772, 16 L.Ed.2d 882] (1966). 394 U.S. at 832, 89 S.Ct. at 1499.