Bad Border Patrol Stop Results in Suppression Victory
Case law concerning traffic stops—and roving Border Patrol stops, in particular—breaks so heavily in favor of law enforcement that successful suppression motions are rare, although not unheard of. Even rarer are appellate decisions reversing the erroneous denial of a suppression motion, but that's just what we have in Rangel-Portillo.
There's no new law here, just application of established principles to a fact pattern. As the court describes it, "[t]his case concerns the constitutionality of a Border Patrol stop near the Rio Grande City Wal-Mart store, just 500 yards from the Texas/Mexico border in Starr County, Texas." According to the Border Patrol agent who performed the stop, "the area around the Rio Grande City Wal-Mart store in Starr County is well-known for drug smuggling due to its close proximity to the border[,]" and "that the Wal-Mart parking lot was well-known as an area where illegal aliens were often smuggled into the United States from the Rio Grande River."
One November morning, two vehicles leaving the Wal Mart parking lot aroused the agent's suspicion: a white pickup, followed by a Ford Explorer. As the Explorer passed by, and then while following the Explorer, the agent observed the following:
- the driver initially looked straight ahead, but then made eye contact when the agent's vehicle approached;
- the three back-seat passengers were all wearing seatbelts, and were "stone-faced";
- "the passengers didn’t look at [the agent] enough and the driver looked at [him] too much";
- the passengers did not talk to each other, and were sweating "pretty bad";
- there were no Wal Mart shopping bags on the Explorer's floorboard.
(1) the proximity of the stop to the border; (2) the fact that Wal-Mart is frequently used as a staging area for alien smuggling and there had been numerous apprehensions of aliens in the area over previous months; (3) the fact that [the agent] observed two vehicles driving in tandem; (4) the fact that the passengers of the Explorer failed to converse with one another and sat rigidly; (5) the absence of shopping bags in the Explorer; (6) the fact that the passengers were sweaty; (7) the fact that the rear passengers wore seat belts; and (8) the fact that the backseat passengers made no eye contact with [the agent], while the driver made repeated eye contact.Following a conditional guilty plea to a single count of alien transportation, Rangel appealed the denial of his suppression motion.
The court of appeals reversed, holding that nothing other than the proximity to the border supported a finding of reasonable suspicion, and that isn't enough by itself. Several factors cited by the district court—passengers wore seatbelts, didn't talk, sat "rigidly," and had no shopping bags—carried no weight in the totality-of-circumstances analysis, as law-abiding folks are as likely to engage in such behavior as folks engaged in illegal activity. "And while this Court certainly recognizes the deference due to an agent’s expertise in patrolling the border, the Fourth Amendment requires that this Court draw the line at reasonableness." As for the allegedly suspicious too-much/not-enough eye contact, "since the driver’s eye contact with the officer bears little to no weight on this Court’s reasonable suspicion determination, it naturally follows that the passengers’ failure to make direct eye contact with the agent should likewise be afforded little weight." What about the agent's belief that the Explorer was traveling in tandem with the pickup? "Reasonable suspicion cannot result from the simple fact that two cars are traveling on a roadway or exiting a parking lot, one in front of the other, unless there are other 'connecting factors' to establish that their simultaneous travel could rationally be considered suspicious." Finally, the passengers' sweating wasn't enough to justify the stop absent anything other than proximity to the border: "This Court cannot conclude that an agent has reasonable suspicion to conduct a stop anytime an individual is sweating while riding in a vehicle in close proximity to this nation’s southern border."
The Court also noted the "overwhelming absence" of factors that typically contribute to a finding of reasonable suspicion: "there is no evidence that the officer observed the defendant driving erratically in response to observing his presence; the vehicle itself did not display any of the usual characteristics of a vehicle transporting illegal aliens; the time of the stop was not suspicious; and there is no evidence to indicate that the officer received a tip from an anonymous informant."
All in all, a nice opinion, save for a couple of nits that need picking. First, in setting out the factual background the court noted that the agent "was a six-year veteran of the United States Border Patrol in Starr County, Texas[,]" who in that time "has arrested over thirty individuals charged with illegally transporting undocumented workers." But isn't it also important to know the number of times that the agent stopped people who turned out not to be doing anything illegal? You can't evaluate whether an agent's suspicionometer is calibrated reasonbly by looking only at the number of hits; you've got to know the number of false positives, too.
Second, there's this odd proviso at the outset of the court's analysis:
We begin our analysis here by noting our appreciation of the difficult task our U.S. Border Patrol agents face along our nation’s southern border. Our decision herein and the reasoning to follow does nothing to detract from the Court’s respect for the challenges our agents face in attempting to secure our nation’s borders.Nothing in the rest of the opinion suggests a lack of respect, so it's hard to see why the court found this statement necessary.