Saturday, September 19, 2020


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B. A Need for Judicial and Legislative Protections of the Latino Community

The principle enunciated in Brignoni-Ponce-that Mexican appearance is a permissible factor in determining reasonable suspicion-must be denounced. An avenue by which this can occur emanated from a federal appellate court over a decade ago. In United States v. Montero-Camargo, the Ninth Circuit Court of Appeals concluded that, given the increased percentage of our nation's Latino population twenty-five years after Brignoni-Ponce, Latino appearance provides such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required. The court nevertheless recognized that appearance can be a relevant factor when a particular suspect has been identified as being of a specific racial or ethnic descent.

In denying the motion to suppress the marijuana, the district court found a sufficient basis for the investigatory stop. The three-judge panel affirmed. Among the factors used to confirm the police allegations of reasonable suspicion, these two courts included the police observation that the occupants of the two suspicious vehicles appeared to be Latino. The en banc appellate court then considered the panel's ruling and upheld the outcome, i.e., that the police had reasonable suspicion to stop the vehicles to investigate further. However, the full Ninth Circuit Court of Appeals eliminated the Latino ethnic appearance factor as a valid specific and articulable fact, which was permitted by Brignoni-Ponce, and then determined that the remaining factors sufficed to establish reasonable suspicion.

In arriving at the dictum suggesting that ethnic appearance could be relevant, the district court relied heavily on now-outdated demographic information. The Brignoni-Ponce Court discussed the 1970 population figures for the Mexican-American population in the states bordering Mexico. Montero-Camargo declares that the 2000 demographic data showing a population among Latinos of 34 million demonstrate that the statistical premises on which the Brignoni-Ponce dictum relies had become outdated. The concerns over racial profiling have obviously become more acute with the 2010 Latino population being reported at 50.5 million.

What can be done to overcome this discriminatory treatment of Latinos? First, as a nation, we must abide by the constitutional principles upon which our nation is founded. The Fourth Amendment is one of the most sacred of the Bill of Rights. It is the source of many protections of our everyday lives. Yes, those of us who follow the Supreme Court have witnessed decisions, which appear to undermine some of those principles. However, we also see the sincerity of the opinions in which the Justices on the High Court seek to justify an outcome on the basis of precedence and original meaning of the concepts. So long as we pledge our faith in the law and eliminate prejudices and stereotypes from our mental assessments, even in the difficult immigration enforcement effort, we can make the Fourth Amendment protection of freedom from unreasonable searches and seizures a reality.

. Judge Lupe S. Salinas is a Professor of Law at Thurgood Marshall School of Law, Texas Southern University, Houston, Texas where he teaches Criminal Procedure and Civil Rights.

. Fernando Colon-Navarro is Associate Dean & Professor of Law at Texas Southern University's Thurgood Marshall School of Law.

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