Sunday, November 17, 2019

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C. The Browning of America and the Brignoni-Ponce Danger to Constitutional Rights

In 1975, the Justice Department contended in Brignoni-Ponce that the public interest in enforcing conditions on legal alien entry justified stopping persons who may be aliens for questioning about their citizenship and immigration status. This same effort is being made today across the United States in an effort to protect our border from criminals who are damaging our nation's economic and national security. In carrying out this effort, local and federal agents are engaging in practices that result in unreasonable seizures. Our nation has never compromised the United States Constitution and it should not begin to do so against groups that have been historically subjected to discriminatory treatment, particularly the Latino population.

Terry introduced the public to the concept of reasonable suspicion. Under this law enforcement investigative tactic, an officer may stop a vehicle or confront a pedestrian if the officer has sufficient information, based on specific and articulable facts, to suspect that the driver or the pedestrian is engaged in a possible crime or violation of law. This minimal knowledge is required before the officer can detain a person for more than a temporary period of time and/or conduct a frisk or pat down of the suspect.

Brignoni-Ponce extends this standard to the immigration enforcement agent. Today, with the advent of federal-state cooperative agreements under Section 287(g), the same standard is available for thousands of police officers across the nation in their collaborative effort with the federal government. Referred to as the Driving While Mexican case, Brignoni-Ponce not only allows ethnic appearance but also other factors, which could collectively lead agents to find reasonable suspicion based upon specific articulable facts. For instance, agents can consider the characteristics of the area where they encounter a vehicle, its proximity to the border, and their knowledge of alien traffic in the area. According to the Court, law enforcement can also take into account any of the following criteria: (1) the behavior of the driver (e.g. erratic driving or attempts to evade officers); (2) the type of vehicle and its transportation use (e.g. station wagons with large compartments for fold-down seats or spare tires); or (3) a vehicle's outward appearance (e.g. one heavily loaded or carrying an extraordinary number of passengers). In a not-too-convincing comment, the Court mentioned the Government's claim that some officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut!

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

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