updating brignoni-ponce - New York University School of Law

594 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
Fifth Circuit primarily focuses on whether the agent had reason to
believe that the vehicle came from the border, although a combination
of other factors can compensate for a lack of this showing. 169 Still,
the government argues that a person’s “Hispanic appearance” gives a
Border Patrol agent “reasonable suspicion that the driver was involved
in illegal activity” since most undocumented immigrants are
Hispanic. 170
The Tenth Circuit has reiterated the validity of Border Patrol officers’
consideration of a person’s racial appearance when determining
whether to make a stop. 171 But even when a Border Patrol agent testified
that the occupants of the vehicle appeared to be Hispanic, the
court responded that “many citizens of the United States ‘appear to be
Hispanic,’” that this is not unusual, and that it “certainly is not indicia
of criminal conduct.” 172 Thus, like the Fifth Circuit, the Tenth Circuit
seems to give little weight to an immigration officer’s consideration of
a person’s racial appearance in deciding whether to perform a roving
immigration stop. 173
The Ninth Circuit has explicitly rejected the consideration of
profiles that are “very likely to sweep many ordinary citizens into a
a “substantial Hispanic population”); United States v. Zertuche-Tobias, 953 F. Supp.
803, 821 n.54 (S.D. Tex. 1996); United States v. Rubio-Hernandez, 39 F. Supp. 2d
808, 836 (W.D. Tex. 1998). But see Renata Ann Gowie, Driving While Mexican:
Why the Supreme Court Must Reexamine United States v. Brignoni-Ponce, 422 U.S.
873 (1975), 23 HOUS. J. INTL. L. 233, 248 (2001) (arguing that “the Fifth Circuit’s
rulings encourage stops merely based on race”).
169. United States v. Garcia, 732 F.2d 1221, 1223 (5th Cir. 1984) (citing United
States v. Lamas, 608 F.2d 547, 549 (5th Cir. 1979)). These factors, based on the
Brignoni-Ponce, include “characteristics of the area in which the vehicle is encountered,
. . . type and appearance of the vehicle, . . . and number, appearance, and
behavior of the passengers.” Id.
170. United States v. Rubio-Hernandez, 39 F. Supp. 2d 808, 835–36 (W.D. Tex.
1998) (noting that the agent did not rely upon haircut or dress as permitted by
Brignoni-Ponce). Border Patrol agents have also testified that, in their experience, “a
lone Hispanic driver” on a certain highway early in the morning “was either smuggling
illegal aliens or drugs.” United States v. Samaguey, 180 F.3d 195, 196–97 (5th
Cir. 1999) (holding that agents had a reasonable suspicion for stopping the car under
totality of the circumstances because “Samaguey’s journey originated at the border,
. . . [he] was traveling alone, in an out-of-state car, registered to a female, at an
unusual hour, on a road known for illegal activity”).
171. See United States v. Abdon-Limas, 780 F. Supp. 773, 775 (D.N.M. 1991);
United States v. Pollack, 895 F.2d 686, 690 (10th Cir. 1990); United States v.
Sperow, 551 F.2d 808, 810 (10th Cir. 1977); United States v. Monsisvais, 907 F.2d
987, 990 (10th Cir. 1990).
172. Abdon-Limas, 780 F. Supp. at 778.
173. While race-based immigration stops have resulted in decisions by courts from
circuits other than the Fifth, Ninth, and Tenth, none of those decisions have addressed
the reliance on appearing to be a certain race or nationality.