updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 589
ing patrols. 133 At permanent and temporary checkpoints, a vehicle
must stop, a Border Patrol officer may ask questions about the occupants’
citizenship and immigration status, and the officer will then either
wave them through or pull them over to a secondary checkpoint
for more thorough questioning. 134 Up to that point, the officer need
not justify his or her actions. To search a vehicle, the officer must
establish probable cause to believe that someone in the vehicle is violating
a federal law. 135 A roving patrol consists of a Border Patrol
officer pulling a vehicle over because he or she has a reasonable suspicion
that someone in the vehicle is an undocumented immigrant. 136
The officer can ask questions and conduct a visual search, but to do
more, the officer must establish probable cause. Often, officers will
conduct roving patrols when they have been tipped off that some immigrants
may be illegally crossing the border in a certain area, but
they can patrol an area, as opposed to actually stopping individuals,
for any reason at all. 137
B. Attempting to Overrule Brignoni-Ponce: The Thrice-Introduced
But Never-Passed “End Racial Profiling Act”
By the end of the 1990s, racial profiling had been largely discredited
for criminal law enforcement purposes. 138 Prior to the terrorist
attacks on September 11, 2001, President Bill Clinton called racial
133. United States v. Martinez-Fuerte, 428 U.S. 543, 552 (1976).
134. Id. at 552, 558–60. See generally U.S. GEN. ACCOUNTING OFFICE, GAO-05-
435, BORDER PATROL: AVAILABLE DATA ON INTERIOR CHECKPOINTS SUGGEST DIF-
FERENCES IN SECTOR PERFORMANCE 10–14 (2005) [hereinafter GAO, INTERIOR
CHECKPOINT DATA] (referring to temporary checkpoints as “tactical checkpoints”).
135. Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973). Probable cause
requires that “facts available to the officer would warrant a man of reasonable caution
in the belief that certain items may be contraband or stolen property or useful as
evidence of a crime; it does not demand any showing that such a belief be correct or
more likely true than false.” United States v. Dunn, 946 F.2d 615, 619 (9th Cir. 1991)
(internal quotations and citations omitted). For example, probable cause was established
when an officer noticed a balloon in a car stopped at a routine driver’s license
checkpoint that was tied to conceal drugs, vials, and loose white. Texas v. Brown,
460 U.S. 730, 742–43 (1983).
136. See United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975).
137. See generally GAO, INTERIOR CHECKPOINT DATA, supra note 134, at 14 n.15 R
(defining roving patrol as “a stop by an agent who patrols in a vehicle but who is not
assigned to a particular location”); Eleanor Barbour, Consensual Encounter: The Border
Patrol Resumes an Old Policy of Random Sweeps in Search of Illegal Immigrants
Far from the Border, L.A. CITY BEAT, July 8, 2004, available at http://69.94.104.186/
article.php?IssueNum=57&id=1042. Since deciding where to conduct roving patrols
is a matter of discretion, it would be very difficult to maintain an equal protection
claim against Border Patrol officers for targeting certain neighborhoods.
138. See Bali, supra note 64, at 164; Albert W. Alschuler, Racial Profiling and the R
Constitution, 2002 U. CHI. LEGAL F. 163, 163 (2002).