MEMORANDUM ON REHEARING
Before MERRILL and TRASK, Circuit Judges, and FERGUSON,* District Judge.On October 24, 1973, during the early morning hours, Arthur Barela was stopped at the Border Patrol checkpoint located at San Clemente, California. He was coming from the south. There was no probable cause and no consent for the search of his car trunk that uncovered about 53 pounds of marijuana.
The search was after the date of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), decided by the Supreme Court on June 21,1973, but occurred at an established checkpoint and therefore was thought to be legal because Aimeida-Sanchez applied to searches made by roving patrols only.
Barela was indicted for violation of 21 U.S.C. § 841(a)(1) and convicted at a court trial on March 8, 1974. He filed a timely appeal and on September 5, 1974, this court reversed his conviction.
Following the reversal, the government petitioned for rehearing. Initially, this was denied, but due to pending Supreme Court decisions, the government was granted extensions of time in which to file further petitions for rehearing. Such a petition for rehearing was granted on August 9, 1977.
In the meantime, the Supreme Court had decided United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 46 L.Ed.2d 623 (1975), holding that the Fourth Amendment forbids searches at highway traffic checkpoints in the absence of consent or probable cause.
This court has now decided in United States v. Escalante, 554 F.2d 970 (1977) (en banc), cert. denied, -U.S. -, 98 S.Ct. 192, 54 L.Ed.2d 136 (1977), that prior to the Supreme Court decision in United States v. Bowen, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975), and United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 46 L.Ed.2d 623 (1975), there was no decision which gave to law enforcement agencies adequate notice of the unconstitutionality of fixed checkpoint searches conducted without probable cause or consent. The seizure by officers at San Clemente on October 24, 1973, was without knowledge by the officers that checkpoint searches were constitutionally impermissible because those decisions had not yet been announced and checkpoint searches were routinely made by law enforcement agencies. United States v. Escalante, supra. They were therefore legal on October 24, 1973, under our then existing decisions, and our later decisions pursuant to Bowen, supra, and Ortiz, supra, in 1975, did not have retroactive effect. The conviction of Barela must therefore be affirmed.
Judgment AFFIRMED.