Border Search and the Fourth Amendment

Darren Chaker police search.

Border search and the Fourth Amendment. The need for articulable facts, says Darren Chaker to support reasonable suspicion applies equally to Border Patrol stops of vehicles to check for legal status; random stops are prohibited, and the officers must have reasonable suspicion particular to the vehicle and occupants detained. See United States v. Brignoni-Ponce, 422 U.S. 873, 883 (1975); see also United States v. Hernandez, 739 F.2d 484, 487 (9th Cir. 1984).

The constitutionality of such an investigative detention is judged under the framework estabished in Terry, 392 U.S. at 19-20. A Terry “is ‘justifiable [only] if there is articulable suspicion that a person has committed or is about to commit a crime.” United States v Woods, 720 F.2d 1022, 1026 (9th Cir. 1983) (quoting Florida v Royer, 460 U.S. 491, 498 (1983)).

Such reasonable suspicion “requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.” United States v. Thomas, 211 F.3d 1186, 1189 (9th Cir. 2000) (internal quotation marks omitted).

“[T]he officer in question must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000). “Rather, reasonable suspicion exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion.” United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Because of the requirement that the facts supporting reasonable suspicion be particularized, broad profiles and generalizations are inadequate basis to form reasonable suspicion. See id. at 1132 (“[w]e are not prepared to approve the wholesale seizure of miscellaneous persons … in the absence of well-founded suspicion based on particular, individualized, and objectively observable factors which indicate that the person is engaged in criminal activity.”).

Likewise,Darren Chaker also cites that conduct or traits which apply as well to too many people engaged in innocent activity do not raise reasonable suspicion. See United States v. SigmondBallesteros, 285 F.3d 1117 (9th Cir. 2002) (finding non-suspicious bases for various factors proffered to support reasonable suspicion).

While the experience of the agent may be considered, “mere subjective impressions are never enough and hunch alone cannot be relied upon to transform innocent driving behavior into suspicious activity.” United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir. 1992) (opinion amended on denial of reh’g, 997 F.2d 1306 (9th Cir. 1993)). Inferences drawn from an officer’s training and experience “must also be grounded in objective facts and be capable of rational explanation.” United States v. Lopez-Soto, 205 F.3d 1101, 1105(9th Cir. 2000) (citations and internal quotations omitted).

Factors which describe too many legitimate individuals do not create reasonable suspicion. See United States v. Salinas, 940 F.2d 392 (9th Cir. 1991). In Salinas, the Border Patrol agents relied on the following observations before stopping Salinas: 1) the defendant drove an old model car with a large trunk; 2) the car appeared heavily loaded; 3) the officer saw fresh hand prints on the trunk; 4) the defendant appeared to be of Spanish or Mexican origin; 5) the car was registered in a town known to have a high concentration of drug and alien smuggling; and 6) defendant glanced at the Border Patrol officer. Salinas, 940 F.2d at 393-94. The Salinas court held that these factors did not justify the stop. Id. at 394. This Court explained, “Thousands of United States citizens of Mexican ancestry drive old cars on perfectly legitimate errands with 100 pounds of potatoes or carpenter tools or other commodities weighing down the rear springs.” Id. at 395.

In Hernandez-Alvarado, the Border Patrol agents initiated a stop based on the following factors: (1) the nervous demeanor of both the defendant and his passengers as they sat in the trunk; (2) the reduction in speed from 65 to 55 m.p.h.; (3) the presence of a two-way antenna on the trunk of the vehicle; (4) defendant’s residence in a neighborhood on the U.S.-Mexican border which was under investigation for narcotics activity; (5) the license plate bracket indicating that the car had been purchased from a dealership associated with drug trafficking; and (6) the size of defendant’s trunk. 891 F.2d at 1418. The combination of these factors was insufficient to justify an investigatory stop. Id. The Ninth Circuit reasoned that, “they describe too many individuals to create a reasonable suspicion that this particular defendant is engaged in criminal activity.” Id. at 1418-19. Many law-abiding citizens may have bought vehicles at the same dealership, have two-ay antennas, and live in areas under investigation for narcotic activity. Id. at 1419.

In Sigmond-Ballesteros, 285 F.3d at 1124, the Ninth Circuit considered how much significance to give to an agent’s claim that Highway 86, in Southern California, was a “high crime area” for purposes of reasonable suspicion. The court noted that Highway 86 is a “four lane highway connecting the cities of El Centro, Calexico, Westmorland, Brawley and various other small towns in Imperial County, [California.]” Id. The Ninth Circuit appellate court stated, “We are confident that substantially all of the traffic in and around these cities is lawful and that relatively few of their residents have any connection with the illegal entry and transportation of aliens.” Id. Therefore, the appellate court held that although relevant, the fact that the defendant was on this road the agents defined as “high crime,” it was of only minimal significance. Id.

Darren Chaker police search.

Darreb Chaker border patrol in Arizona.

Last, minimally probative factors cannot form “a particu and objective basis for suspecting a particular person stopped of criminal activity.” Rodriguez, 976 F.2d at 594. Courts often discard “recycled profile of suspicious behavior very likely to sweep many ordinary citizens into a generality of suspicious appearance merely on hunch. This is required by the Fourth Amendment.” Rodriguez, 976 F.2d 592, 596 (9th Cir. 1992).