with whom Circuit Judge ELY concurs, concurring in part I and dissenting from part II, of.the opinion of the Court:
I cannot concur in the opinions confining the Almeida-Sanchez rule to searches occurring after June 21, 1973, with or without an exception for Bowen himself, when the locale of the search was a fixed checkpoint that was not the functional equivalent of an international border.
My brothers and I agree that no retroactivity issue arises unless AlmeidaSanchez stated a new rule marking “a sharp break in the web of the law.”1 We are also in agreement that AlmeidaSanchez announced no new Supreme Court rule and that it signaled no break at all in the constitutional principles stated by the Court.2 *****8 Injection of the retroactivity issue in the opinions of my brothers Wallace and Goodwin rests on two assumptions: (1) Congress, the Ninth Circuit, and the Immigration and Naturalization Service, prior to Almeida-Sanchez, had long agreed that automobile searches conducted by personnel of the Service at fixed checkpoints that were not functional equivalents of international boundaries should be treated as if they were such “border searches,” thus eliminating the Fourth Amendment’s requirements of a warrant and probable cause, and (2) for retroactivity purposes, the weavers of the constitutional law web are not limited to the members of the Supreme Court, but also include Congress, the lower federal courts, and the personnel of the Immigration and Naturalization Service. The first assumption is inaccurate as a matter of fact; the second is wrong as a matter of law.
My brothers correctly state that the Immigration and Naturalization Service began establishing fixed checkpoints some distance from international boundaries in 1929. The information before us about those checkpoints is fragmentary. We do not know how many there were, where they were located, or which, if any of them, qualified as functionally equivalent to international boundaries. We also lack information about the kinds of searches, if any, that were conducted at them. However, we do know that any vehicle searches that were undertaken at points other than in*983ternational boundaries were without col- or of statutory authority until 1946 when Congress enacted the precursor of 8 U.S.C. § 1357. (See Act of Aug. 7, 1946, ch. 768, 60 Stat. 865).3 Although Congress thus eventually authorized checkpoint searches by Immigration and Naturalization personnel, congressional attention never focused on the constitutional difficulties engendered by the movable border concept that was included in section 1357. (See, e. g., H.R.Rep.No.186, 79th Cong., 2d Sess., supra note 3.)
Fourth Amendment challenges to “alien” searches conducted by immigration and customs officials at places other than international boundaries were raised in the lower federal courts. The judicial response, however, did not rest on a comprehensive, critical analysis of the differences between searches at international boundaries and those conducted some distance from the border;4 rather, the law concerning checkpoint and roving patrol searches developed on a case-by-ease basis, following the practice so familiar in other Fourth Amend*984ment contexts. The end product of the evolution in this circuit was that section 1357 became a justification for the initial stop of a vehicle and the preliminary interrogation of the occupants at either a fixed checkpoint or elsewhere within a reasonable distance of the border; but probable cause was still required to validate a warrantless search of the vehicle, at least if the search went beyond that reasonably related to the discovery of aliens.5 Although these “alien” non-international boundary vehicle search eases were sometimes labeled “border searches,” they were always a breed apart from searches actually conducted at international boundaries. The latter were treated as they always had been: no warrant and no probable cause were required to validate a thorough, full-scale search of the vehicle and its contents. The validity of warrantless, non-boundary “border searches” conducted without probable cause, on the other hand, was limited both in scope and in object.
Of perhaps greater moment for our retroactivity analysis, an examination of Ninth Circuit cases reveals that fixed checkpoint searches fared neither better nor worse than searches conducted at temporary checkpoints or by roving patrols away from the border. In all of these cases we approved initial stops pursuant to section 1357 and limited the scope of subsequent search activity. (See note 5 supra.) The assumption of my brothers that full-scale international boundary-type vehicle searches conducted at fixed checkpoints located away from the border had received long-continued judicial approval is not supported by the facts; my brothers’ conclusion that Almeida-Sanchez sharply broke with prior law from the lower federal courts concerning fixed checkpoint searches cannot be sustained.
Even if the Ninth Circuit for many years had consistently upheld these alien searches at fixed checkpoints, however, that fact would not be' pertinent to deciding whether retroactivity is in issue.6 For this purpose, the only “old” and “new” law that is relevant is the constitutional law enunciated by the Supreme Court. (See Robinson v. Neil (1973), 409 U.S. 505, 510, 93 S.Ct. 876, 35 L.Ed.2d 29.) A contrary rule would impair or destroy the uniform application of constitutional law in the several *985circuits, increase manifold the certiorari burdens of the Supreme Court, and erode the power of the Supreme Court as the ultimate arbiter of constitutional law.
These disturbing consequences might not occur if all circuits simultaneously decided constitutional questions and always decided them the same way. But they do not. The question of the constitutionality of fixed checkpoint searches at issue in the case at bench provides an excellent illustration of the problems that can arise under my brothers’ views. The issue arose at different times with different frequency in some circuits and in others did not arise at all. In the circuits where the issue was never decided, did Almeida-Sanchez state a “new” rule? Is a single decision in one circuit upholding the search enough to create “old” law with which Almeida-San-chez broke? If one circuit had upheld such searches and another had struck them down, would Almeida-Sanchez be retroactive in the latter circuit and non-retroactive in the former ? 7 To prevent restrictions on the retroactivity of its decisions, must the Supreme Court take every new search and seizure issue to prevent “old” law from accumulating? If the Court is in any respect bound by the constitutional law developed in the lower federal courts, how can it continue to be the final arbiter of constitutional issues ? 8
Even when the retroactivity concept is confined exclusively to law stated by the Supreme Court, difficult jurisprudential problems are generated. (See, e. g., Desist v. United States (1969) 394 U.S. 244, 256-269, 89 S.Ct. 1030, 22 L.Ed.2d 248 (Harlan, J., dissenting).) To extend the concept to embrace the law of the circuits would turn confusion into chaos.
. The phrase is taken from Mr. Justice Stewart’s dissenting opinion in Milton v. Wainwright (1972), 407 U.S. 371, 381-382 n. 2, 92 S.Ct. 2174, 2180 n. 2, 33 L.Ed.2d 1. See Desist v. United States (1969), 394 U.S. 244, 248, 89 S.Ct. 1030, 22 L.Ed.2d 248 (“clear break with the past”).
. “No claim is made, nor could one be, that the search of the petitioner’s car was constitutional under any previous decision of this Court involving the search of an automobile.” (Almeida-Sanchez v. United States (1973), 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596.)
The Court has recognized, however, at least since Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 that automobile travellers could be stopped and tlieir vehicles searched “in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.” (Id. at 154.) But nothing in Carroll, or in any other Supreme Court decision even implied that, for Fourth Amendment purposes, the Government could create portable boundaries or affix artificial borders wherever it chose.
. Congressional objectives in enacting the statute were stated in a letter from Attorney General Francis Biddle to the Chairman of the House Committee on Immigration and Naturalization that -was incorporated in the Committee’s -Report and adopted by its Chairman as “Quite completely” explaining the purposes of the bill. The letter clearly indicated that the Attorney General and the Committee believed that the Immigration and Naturalization Service lacked statutory authority to conduct searches away from the boundaries of the United States :
“HON. SAMUEL DICKSTEIN,
Chairman, Committee on Immigration and Naturalization, Souse of Representatives, Washington, D.C.
MY DEAR MR. CHAIRMAN. This is in response to your request for my views relative to a bill (H.R. 386) to amend the law relating to the authority of certain employees of the Immigration and Naturalization Service to make arrests without warrant in certain cases and to search vehicles.
Under existing law arrests of aliens may be made without warrant only if the alien is entering or attempting to enter the United States in the presence or view of the arresting officer (43 Stat. 1049 ; 8 U.S.C. 110). Aliens illegally in the United States may be arrested only pursuant to a warrant issued by the Immigration and Naturalization Service. This limitation is cumbersome and at times results in frustrating the ends of justice. The power to make arrests in such cases without a warrant should be conferred on personnel of the Immigration and Naturalization Service with a restriction that an alien so taken into custody should be accorded a hearing without unnecessary delay.
It is also desirable to confer upon personnel of the Immigration and Naturalization Service the power of arrest in cases of violations of immigration laws, subject to the same limitations as those generally imposed on the right of an officer to make an arrest.
Existing law (43 Stat. 1049 ; 8 U.S.C. 110) confers on personnel of the Service the right to search vessels and vehicles for aliens being brought into the United States. This authority should be extended to cover aircraft, in the light of recent developments in aircraft transportation.
In the enforcement of the immigration laws it is at times desirable to stop and search vehicles within a reasonable distance from the boundaries of the United States and the legal right to do so should be conferred by law.
The bill under consideration embodies the foregoing suggestions and is similar to a bill (H.R. 5464, 78th Cong.) which was introduced at my request and was passed by the House of Representatives on December 4, 1944.
Accordingly, I recommend the enactment of the legislation.
I have been informed by the Director of the Bureau of the Budget that there is no objection to the submission of this report.
Sincerely yours,
FRANCIS BIDDLE,
Attorney General.”
H.R.Rep.No.186, 79th Cong., 2d Sess. (1945), 1946 U.S.Code Cong.Service 1414.
. When customs officers at a distance from the border conducted warrantless searches for narcotics, rather than for aliens, our circuit refused to uphold the searches in the absence of probable cause. (E. g., Contreras v. United States (9th Cir. 1961), 291 F.2d 63.) The Government’s argument that 26 U.S.C. § 7607 eliminated the traditional probable cause requirement was rejected as contrary to the Fourth Amendment, (e. g., Plazola v. United States (9th Cir. 1961), 291 F.2d 56, 58-59.) These cases, of course, cannot be reconciled on constitutional grounds with the alien search cases commencing with Fernandez v. United States (9th Cir. 1963), 321 F.2d 283.
. We considered numerous cases involving alien searches conducted a substantial distance from an international border. A few, however, are illustrative of the development of the law in our circuit. In Fernandez v. United States (9th Cir. 1963), 321 F.2d 283, appellant was stopped at a fixed checkpoint by customs inspectors looking for aliens. Probable cause to believe marihuana was concealed in the vehicle developed during the stop. The constitutionality of 8 U.S.C. § 1357 was upheld, and the statute was applied to justify the initial stop of appellant’s vehicle. Barba-Reyes v. United States (9th Cir. 1967) 387 F.2d 91 involved a stop and search similar to that in Fernandez. Again, the stop was justified under section 1357, and probable cause to search was found to exist following the stop. In United States v. Marin (9th Cir. 1971), 444 F.2d 86, a roving patrol stopped appellant’s vehicle three miles from the border. The stop was upheld under section 1357; marihuana was discovered in plain view. The search at a fixed checkpoint in Valenzuela-Garcia v. United States (9th Cir. 1970), 425 F.2d 1170 was invalidated, however, because the search extended to an area too small to hide aliens and there was no probable cause to believe that contraband was hidden in the vehicle. Accord, United States v. Lujan-Romero (9th Cir. 1972), 469 F.2d 683.
The development of “alien” searches followed a similar pattern in the Tenth Circuit. (e. g., United States v. Anderson (10th Cir. 1972), 468 F.2d 1280; United States v. McCormick (10th Cir. 1972), 468 F.2d 68; see Roa-Rodriquez v. United States (10th Cir. 1969), 410 F.2d 1206.) But the Fifth Circuit created an expandible border concept that had only tangential relationship to the law emerging from the Ninth and Tenth Circuits. (E. g., United States v. McDaniel (5th Cir. 1972), 463 F.2d 129; Marsh v. United States (5th Cir. 1965), 344 F.2d 317.)
. I fully recognize that if the retroactivity doctrine were properly in issue, lower court decisions and law enforcement officers’ reliance upon them would be relevant considerations in deciding whether to apply a particular Supreme Court decision retroactively. (E. g., Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.)
. Even a clarifying Supreme Court decision would not necessarily prevent retroactivity problems from arising. For example, in light of Almeida-Sanchez, the Fifth Circuit has invalidated a search conducted at a checkpoint located 65 to 75 miles north of the Mexican border. (United States v. Speed (5th Cir. 1973), 489 F.2d 478.) If the views expressed in my brother Wallace’s dissenting opinion concerning the applicability of Almeida-Sanchez to fixed checkpoints had gained the adherence of a majority of our court, would a subsequent decision by the Supreme Court affirming the Fifth Circuit decision create new law for the Ninth Circuit, while merely confirming old law in the Fifth?
. The difficulties created by the view that circuit decisions can establish “old” law are multiplied greatly if unappealed district court decisions also produce old law. Yet the rationale of my brothers’ opinions is not in any way limitable to circuit decisions. Moreover, deciding issues of federal constitutional law is not solely the prerogative of federal courts. Can the judiciaries of 50 states also create old law from which the Supreme Court departs when it reaffirms established constitutional principles and refuses to countenance a deviation sanctioned by the decisions of one or more state courts?