updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 599
stops. 200 In the following analysis, I incorporate the race-based aspect
of the stop into the Fourth Amendment balancing test.
Given the Court’s decision in Brignoni-Ponce and the application
of its holding in subsequent cases, this Part explores how subsequent
arguments outlined by the courts and various scholars might change
how Brignoni-Ponce would be decided today. Additional factors to
consider include current demographic statistics and factors on both the
public interest and individual interest sides of the test. I conclude that,
while the efficiency gained by relying in part on race imposes a racial
tax upon people appearing to belong to any of the targeted groups,
permitting the consideration of race as a factor in deciding whether to
make a stop is better than encouraging immigration law enforcement
to mask any reliance they place on racial appearance. Nationality and
often race are intrinsic parts of being an immigrant, and permitting
them to be considered along with other factors at least acknowledges
how officers may make their decisions and brings discussion of racial
profiling in immigration enforcement out into the open.
A. Race as a Relevant Factor: Battling Statistics
Brignoni-Ponce used statistics to justify the Court’s decision to
permit the consideration of race but disallow the sole reliance on race.
The Court reasoned that there were too many persons of Mexican descent
to allow the Border Patrol to stop all of them randomly, but that
enough persons appearing to be of Mexican descent were undocumented
immigrants to make appearance a relevant factor. 201 The
Court ignored the impact of this practice on Latinos who are documented
immigrants or citizens and, as of 1996, account for 90% of
Latinos in the United States. 202
A preliminary question is whether the Court was correct in reasoning
that race should be considered at all, independent of racial statistics
about the undocumented population or the surrounding
community. In criminal law enforcement, the use of race for generic
stops is largely discredited if officers are not operating on a specific
description of a suspect. 203 Race is not an element of any crime, thus
200. See id. at 879–80 (conducting a balancing analysis without considering harms
of racially-based stops); infra note 253 and accompanying text. R
201. United States v. Brignoni-Ponce, 422 U.S. 873, 886–87 (1975).
202. Johnson, Against Racial Profiling in Immigration Enforcement, supra note 108, R
at 709.
203. Johnson, Challenging Racial Profiling, supra note 29, at 344–47 (explaining R
that racial profiling in criminal law enforcement is based on supposed propensities of
certain groups to commit crimes). See generally Alschuler, supra note 138 (evaluat- R
ing the constitutionality of using racial classifications in police investigations).