Sunday, November 17, 2019

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A. A Dissent from the Abuse of the Reasonable Suspicion Concept

Ten years ago, a federal appellate judge expressed his views in a quite passionate fashion. In a case emanating from the Texas border area with Mexico, Judge Jacques Wiener of the Fifth Circuit expressed his intent to write a dissenting opinion at a later time. The appeal involved another of countless cases involving the reasonable suspicion concept. The judge filed his comments a few months later, and it became quite apparent that he was perturbed by the haphazard method in which federal courts were upholding allegations of reasonable suspicion and essentially converting them into probable cause findings.

Judge Wiener lamented about the most recent opinion in which the court had added to the burgeoning body of jurisprudence-that at least figuratively-has engrafted onto the Fourth Amendment's proscription of unreasonable searches and seizures the caveat except in proximity to our border with Mexico. He further complained how the government's so-called War on Drugs and its efforts to interdict illegal immigration hadled to a public hysteria that has in turn impeded rational judgment and logic.

While one might conclude that the judge probably had calmed a bit after this catharsis, it seems he was just getting started. He complained of the judiciary's evisceration of the Fourth Amendment in the vicinity of the Mexican border as yet another jurisprudential nadir and classified immigration stop cases in the same company with the Japanese internment case, the African descent person is a noncitizen case, and the separate-but-equal case as among the judiciary's most shameful failures to discharge our duty of defending constitutional civil liberties against the popular hue and cry that would have us abridge them.

Judge Wiener then expressed how the federal courts had contributed to efforts by officers to engage in the charade of articulating facts' just so that we can point to something as the underpinnings of our retrospective findings of reasonable suspicion when judges uphold vehicle stops that otherwise offend the Fourth Amendment. In support of accusations, the jurist described how prior decisions inconsistently justified stops:

The vehicle was suspiciously dirty and muddy, or the vehicle was suspiciously squeaky-clean; the driver was suspiciously dirty, shabbily dressed and unkept, or the driver was too clean; the vehicle was suspiciously traveling fast, or was traveling suspiciously slow . . . ; the [old car, new car, big car, station wagon, camper, oilfield service truck, SUV, van] is the kind of vehicle typically used for smuggling aliens or drugs; the driver would not make eye contact with the agent, or the driver made eye contact too readily; the driver appeared nervous (or the driver even appeared too cool, calm, and collected); the time of day [early morning, mid-morning, late afternoon, early evening, late evening, middle of the night] is when they tend to smuggle contraband or aliens; the vehicle was riding suspiciously low (overloaded), or suspiciously high (equipped with heavy duty shocks and springs); the passengers were slumped suspiciously in their seats, presumably to avoid detection, or the passengers were sitting suspiciously ramrod-erect; the vehicle suspiciously slowed when being overtaken by the patrol car traveling at a high rate of speed with its high-beam lights on, or the vehicle suspiciously maintained its same speed and direction despite being overtaken by a patrol car traveling at a high speed with its high-beam lights on; and on and on ad nauseam.

Judge Wiener explained how, in a prosecutorial effort to justify the temporary detention and then permanent seizure in the case, the agent provided statistics, which established approximately 200 detentions on the rural road in question, which stops had resulted in thirty apprehensions. The judge sarcastically then exclaimed: Bragging about netting 30 apprehensions out of 200 stops is analogous to a major league baseball player's bragging about a .150 batting average hardly an all-star performance. . . . These statistics really prove that 85% of the stops were mistakes!

In closing remarks, Judge Weiner stated, Shame on us. At least the war that prompted the Supreme Court to condone the internment of Japanese Americans was a full-fledged, Congressionally-declared, shooting war. He proceeded to compare the effort to capture and remove undocumented persons in the United States to the days of the thirteenth century crusades by the Catholic Church against a group of alleged heretics known as Cathars. After Catholic propaganda proved only partly successful in defeating the Cathars, the Pope saw only one option, a crusade known as the Albigensian Crusade, which led to the indiscriminate deaths of 20,000 suspected heretics.

Unfortunately, much of our political rhetoric has hit rock bottom with the suggestion that the border between Mexico and the United States be wired with electricity sufficient to kill any intruders. Ten years have passed since Judge Wiener expressed his frustrations. Unfortunately, innocent Latino residents of the United States-and this includes not only noncitizen and citizen residents but also undocumented workers-are still being subjected to the rigors of war and to harassing violations of civil rights.

Many years ago, historian Rodolfo F. Acuna wrote a book about the history of Mexican Americans and Chicanos from the days of the war with Mexico to modern times. He documented how Chicanos faced abuses at the hands of the police, immigration agents, school officials, and court personnel. Unfortunately, even Latinos whose families have resided in the United States for generations are subjected to disparate treatment in official circles. One only has to remember the two humiliating stops that United States District Court Judge Filemon Vela endured as he travelled to his court assignment along the Texas-Mexico border. First and second generation Latinos experience even more problems than individuals like Judge Vela. Linguistic limitations at times cause an officer to suspect that a person is not an authorized person. On the other hand, Latinos object to an officer relying exclusively on the speaking of Spanish as the basis for reasonable suspicion of undocumented status since many American Latinos speak Spanish on a regular basis.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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