The fourth amendment’s prohibition of unreasonable searches and seizures extends to seizures of the person, including the brief investigatory stop of a vehicle. U.S. v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79, 45 L.Ed.2d 607 (1975).
The record indicates that the agents relied upon these factors in deciding to stop Rodriguez:
–Interstate 8 is a “notorious route for alien smugglers;”
–Rodriguez, who was alone in his car, did not acknowledge the agents as he passed their marked car while all the other passing traffic honked, waived, or in some way acknowledged their presence;–Rodriguez’s car was a kind Agents thought could be used for alien smuggling;
–While being followed, Rodriguez looked at the Agents several times in his rear view mirror and swerved slightly within his lane;
–Although the Agents saw only Mr. Rodriguez in the car, it appeared to be “heavily loaded” and “kind of floated” over bumps in the road;
–Rodriguez is a Hispanic male.
We [9th Circuit] note, initially, that this is not the first time Border Patrol agents have tendered a similar profile to this court as evidence of the existence of reasonable suspicion. In fact, this profile is so familiar, down to the very verbiage chosen to describe the suspect, that an inquiring mind may wonder about the recurrence of such fortunate parallelism in the experiences of the arresting agents.
The alleged factual similarities in these cases are troubling. Coincidence is a fortuity; but it does not come so often to the aid even of the most deserving public law enforcement agents.
In the instant case, it seems rather unlikely that a 16 year-old Ford would handle more sluggishly or ride lower solely because it contained 168 pounds of marijuana (about the weight of a single adult passenger).
The agents tender to us the picture of innocent driving behavior but ask us to accept it as signifying criminal behavior to a trained and experienced eye.
We may confidently assert that all types of vehicles have been used in smuggling operations at some place. Many people walk across the border; many drive, glancing at a marked police or Border Patrol car; that such a shift of attention from the roadway to the police presence might cause a vehicle to veer off is hardly a whistle siren of misconduct.
In short, the agents in this case saw a Hispanic man cautiously and attentively driving a 16 year-old Ford with a worn suspension, who glanced in his rear view mirror while being followed by agents in a marked Border Patrol car. This profile could certainly fit hundreds or thousands of law abiding daily users of the highways of Southern California.
We are not prepared to approve the wholesale seizure of miscellaneous persons, citizens or non-citizens, who are seen driving any place near the Mexican border–driving with caution and circumspection–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.
Full Opinion at https://openjurist.org/976/f2d/592/united-states-v-rodriguez
Anton Vialtsin, Esq.
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