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The Supreme Court's interpretation of border search questions-- Continued
The article continues with six more "litmus-factors"
which may be cited. The point of the list now is obvious; nearly
any combination of factors may uphold reasonable suspicion. As
a result of Adams, the article concludes, that this list of reasonableness
is so open, it demonstrates what Justice Brennan wrote in his
dissent to U.S. v. Leon, (that) "the evisceration of the
exclusionary rule is now complete.ä(468
U.S. 897 928)
An example of the application of the "suspicion test"
and the related "polarity and litmus factors" comes
in a May, 1999 ruling Ninth Circuit Court of Appeals case of USA
v Motereo Camargo (9750643). In the case Border Patrol Johnson
observed,
ã...vehicles pulling onto the highway, Agent Johnson pulled behind the Blazer and observed that both the driver and the passenger appeared to be Hispanic. After the driver and the passenger saw Agent Johnson pull up behind their vehicle, the passenger picked up a newspaper and began reading, an act which Agent Johnson found odd under the circumstances.ä (ibid.)
Another Border Patrol officer followed a second car and could, "clearly see that the driver was Hispanic.ä In both stops the "Hispanic" look of the driver was the first act of determination of suspicion. A suspicion which can be applied to nearly all border residents. The Ninth Circuit Court of Appeals cited Brignoni-Ponce idea of wide-open list, one of which is appearance, to stop a vehicle. the 9th Circuit held that,
The Supreme Court has set forth a nonexclusive list of factors upon which border patrol agents may rely in finding reasonable suspicion: "(1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including `obvious attempts to evade officers'; (6) appearance or behavior of the passengers; (7) model and appearance of the vehicle; and, (8) officer experience." United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975)). (ibid)
In another May, 1999 ruling from the 9th Circuit Court of Appeals, USA v Jimenez Medina (9710055) seems to contradict the of USA v Motereo Camargo (9750643) ruling described above.
" Agent Cole began to follow the pickup in his marked sedan and performed a registration check. While waiting for this information, he observed the pickup weave within its lane, leading the agent to believe that the driver was preoccupied with the agent's presence. No traffic laws were broken. The registration check showed that the pickup was registered to Mr. Jimenez of Agua Prieta, Sonora, Mexico, where there had been a recent increase in alien smuggling. This information led Agent Cole to conclude the pickup had 'recent border access.Up to the point of the stop, Agent Cole had observed no illegal activity and knew in fact from physical observation of the open back that there were no persons in the back of the pickup."
At issue, the Ninth Circuit said, is whether "reasonable
suspicion existed for an investigatory stop." The court held
that the situation did not fit reasonable suspicion and reasonable
cause standards set in previous court rulings in spite of the
non-exclusive list of suspicions set in Brignoni-Ponce.
"This Circuit has held that reasonable suspicion must not be based on "broad profiles which cast suspicion on entire categories of people.â Rodriguez-Sanchez, 23 F.3d at 1492. The rationale upon which the "reasonable suspicion Î doctrine is based, a doctrine that thwarts the notion of liberty and freedom from state intrusion in a mobile society, must be founded on an objective basis for suspecting that a particular person is engaged in criminal activity, lest we "sweep many ordinary citizens into a generality of suspicious appearance merely on hunch." Rodriguez, 976 F.2d at 596. Reasonable suspicion can not rest upon the hunch of an experienced officer, even if the hunch turns out right. The requirement of objective fact to support an inference of wrongdoing eliminates the need to deal with a police stop that rests on constitutional intuition. "(9710055)
This a rare case of a successful motion to suppress. Few times if any has the 9th Circuit or the Supreme Court denied the police an investigative stop. The facts of the Jiminez Medina case was so close to many other court rulings in which the application of reasonable suspicion doctrine is used, it is surprising the court suppressed the evidence. The warning of the Court about casting suspicion on entire categories of people,ä is exactly what is happening at the border. In light of the Terry standard and other rulings, it is interesting that the 9th circuit found in this case an incorrect application of the reasonable suspicion doctrine.
The legal foundation that exempts searches at the border is based
in the "Terry Standard.ä Terry first established the
reasonable suspicion standard. In Terry, the court upheld a warrantless
seizure conducted by an officer who had only a reasonable suspicion
that the petitioner was armed and dangerous. Using this standard
at the border, customs officials are required to have more than
a "hunch" and must have specific and articulable facts
to support the suspicion that the individual is engaged in criminal
activity. (Fine 855). As pointed out by Justice Douglas in the
Brignoni-Ponce case, the suspicion test has led to the vast expansion
of police power at the border. The expansive suspicion test leads
to the question, if the Fourth Amendment does not apply at the
border as it does inland, what about beyond the border? Are the
protections of the Fourth a contract made with the American people
or a natural right possessed by every person, regardless of territory,
which they have in protection form authority.