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Note: 

Constitutional Law—Retroactivity—Application of the “New Rule” Threshold Test Before Determining the Retroactivity of Almeida-Sanchez, 53 TEXAS L. REV. 586 (1975). 

In Almeida-Sanchez v. United States, 413 U.S. 266 (1973), the United States Supreme Court effectively read the traditional requirement of probable cause into section 287(a) of the Imigration and Nationality Act, which allows Border Service officers to conduct warrantless searches within a reasonable distance of boundaries of the United States.  Under the “new rule” test, a federal court will refuse to apply retroactively any decision that creates a “new” constitutional rule, in order to protect those who have relied on prior decisions or statutes.  Circuit courts later split on whether Almeida-Sanchez should be applied retroactively, with the Fifth Circuit finding that the decision created a “new rule” of fourth amendment law, and the Ninth Circuit concluding otherwise.  In this note, the author anticipates that the Supreme Court, having granted certiorari in 1974 to two Ninth Circuit cases applying the “new rule” test, will reconsider the test.  The author argues that the Court should rephrase the test thusly: a decision constitutes a new rule and therefore will be applied retroactively only if it meets criteria for retroactive application established in Linkletter v. Walker, 381 U.S. 618, (1965), and Stovall v. Denno, 388 U.S. 293 (1967), unless a reasonable litigant with knowledge of all relevant law existing prior to the decision would have expected the decision.