SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

See also United States v. Berber-Tinoco (9 th Cir. 2007) 510 F.3 rd 1083,
adding:
Usual patterns of smuggling in the area;
Previous alien or drug smuggling in the area;
Behavior of the driver, including “obvious attempts to evade
officers;”
Appearance or behavior of passengers;
Model and appearance of the vehicle; and
Officer experience.
See United States v. Diaz-Juarez (9 th Cir. 2002) 299 F.3 rd 1138; Driving
late at night in a high crime area, near the International Border, apparently
looking for something, in a vehicle from another area and with a modified
suspension, held in this case sufficient to justify a stop and detention.
Also, state (including local) law enforcement officers have limited
statutory authority to detain and question individuals regarding their
immigration status if:
The person is illegally present in the United States;
The person has previously been convicted of a felony in the United
States and since left the country or was deported;
The state or local law enforcement official obtains “appropriate
confirmation” from the INS of the immigration status of the
individual;
The state or local law enforcement official only detains the
individual for as long as is reasonably required for the INS to
assume federal custody of the individual for the purposes of
deportation or removal.
(8 U.S.C. § 1252c(a); United States v. Vasquez-Alvarez (10 th Cir.
1999) 176 F.3 rd 1294, 1296.)
Note the Ninth Circuit’s unsupported conclusion that, absent “a
particularized reasonable suspicion that an individual is not a citizen,” it
is a Fourth Amendment violation to ask him or her about the subject’s
citizenship. (Mena v. City of Semi Valley (9 th Cir. 2003) 332 F.3 rd 1255,
1264-1265.)
The U.S. Supreme Court rejected this reasoning in the Mena case,
reversing Mena while holding that it is not an unconstitutional
© 2011 Robert C. Phillips. All rights reserved
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