Circuit Loosens ‘Reasonable’ Border Search

A speeding pickup truck, failure to pull to a stop quickly and Mexican license plates were all suspicious enough to justify a stop by border patrol agents 70 miles north of the U.S-Mexico border, a federal appeals court ruled Tuesday.

The 9th U.S. Circuit Court of Appeals in an 8-3 en banc vote held the agents’ stop of a vehicle driven by Rufino Valdes-Vega was based on “reasonable” suspicion under the Fourth Amendment protection against unreasonable searches.

Agents found eight kilos of cocaine in Valdes-Vega’s pickup after the investigatory stop.

“Officers on roving border patrols, like the one at issue here, may conduct ‘brief investigatory stops’ without violating the Fourth Amendment ‘if the officer’s action is supported by reasonable suspicion to believe that criminal activity may be afoot,’” wrote Judge Ronald Gould.

The 11-judge decision overturns an earlier three-judge panel that had found the search illegal.

The border agents considered Valdes-Vega was driving a clean Ford F-150 at 90 miles per hour in an area with a 70mph speed limit, changing lanes frequently, weaving in and out of traffic and cutting off drivers, but slowed as he approached the last border checkpoint at Temecula, 70 miles north of the border.

In addition, the truck had foreign plates and drove in a suspicious manner in an area frequented by smugglers.  “The stop was supported by reasonable suspicion,” Gould said.

“We do not endorse stopping cars based on mere whim.  But valdes-Vega’s behavior was not so innocuous as to suggest that he was merely plucked from a crowd at random,” he said.

In dissent, Judge Harry Pregerson wrote, “Let’s cut to the chase. Driving a clean Fort F-150 pickup is not suspicious.  Driving with Baja plates is not suspicious.  Driving 70 miles north of the U.S.-Mexico border is not suspicious. Driving with eyes kept on the road ahead is not suspicious.  Driving faster than the flow of traffic and not signaling before lane changes on a major, busy California interstate highway is not suspicious.  Driving while having Hispanic appearance is not suspicious.”

Judge Stephen Reinhardt wrote separately to say “not all innocent acts are suspicious.”

Joining Pregerson and Reinhard in dissent was Judge Sidney Thomas.

In the majority with Gould were Chief Judge Alex Kozinski and Judges Margaret McKeown, Jay Bybee, Sandra Ikuta, Morgan Christen, Paul Watford and Andrew Hurwitz.

Case:  U.S. v. Valdes-Vegas, No. 10-50249




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