updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 595
generality of suspicious appearance.” 174 Thus, where a majority or
substantial number of people share a specific characteristic, then that
characteristic has little or no probative value in contributing toward
the particularized and objective basis necessary to support reasonable
suspicion. 175
In 2000, the Ninth Circuit applied this reasoning in Montero-Camargo
to racial appearance when it held that the traffic stop in question
was justified under the reasonable suspicion standard but that the
officers should not have considered the plaintiff’s Hispanic appearance.
176 This decision in effect rejects, under certain circumstances,
the holding of Brignoni-Ponce that Hispanic appearance is a permissible
factor to consider. The court justified this rejection in part by noting
that Brignoni-Ponce relied on outdated statistics and that the
Hispanic population of the four states referred to by the Court had
increased by at least five-fold during the intervening twenty-five
years. 177 The stop in question occurred in El Centro, an area where
Hispanics are heavily in the majority. 178 The court found that “Hispanic
appearance is of little or no use in determining which particular
individuals among the vast Hispanic populace should be stopped by
law enforcement officials on the lookout for illegal aliens.” 179 The
use of race for these purposes does not meet the narrow tailoring requirements
that are necessitated by Supreme Court cases invalidating
the use of racial classifications. 180
174. United States v. Rodriguez, 976 F.2d 592, 595–96 (9th Cir. 1992) (noting that
the profile of “a Hispanic man cautiously and attentively driving a 16 year-old Ford
[Ranchero] with a worn suspension, who glanced in his rear view mirror while being
followed by agents in a marked Border Patrol car” could fit thousands of law abiding
daily users of Southern California highways); see also United States v. Montero-Camargo,
208 F.3d 1122, 1129–30 (9th Cir. 2000); United States v. Franco-Munoz, 952
F.2d 1055, 1057 (9th Cir. 1991) (providing similar profile).
175. Montero-Camargo, 208 F.3d at 1131.
176. Id. at 1139. The factors used by the Border Patrol that were considered by the
district court were (1) a tip that two cars with Mexican license plates made a U-turn in
the middle of the highway just before the checkpoint, (2) alleged driving in tandem
and Mexicali license plates of plaintiffs’ cars, (3) the area in question was a “notorious
spot where smugglers turn around” according to officers’ experience, (4) Hispanic
appearance of occupants of both cars, and (5) the fact that a passenger picked up a
newspaper as the Border Patrol car approached. Id. at 1128. The court rejected the
last two factors. Id. at 1139–40.
177. Id. at 1133.
178. Id. Seventy-three percent of the population of Imperial County, in which El
Centro is located, is Hispanic. Id.
179. Id. at 1134.
180. See id.; see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493
(1989).