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570 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
cluding background information on how U.S. immigration policy and
enforcement subordinates noncitizens, a description of the neverpassed
End Racial Profiling Act, and an analysis of courts’ recent attempts
to modify Brignoni-Ponce. Part III assesses the applicability
of the Court’s reasoning in Brignoni-Ponce to the modern environment,
taking into consideration current demographic trends, a nuanced
understanding of immigration, and the harm resulting from the permissible
use of race. Part IV considers the practical impact of disallowing
the consideration of race and concludes that permitting the
consideration of race as a factor in deciding whether to make a stop is
better than encouraging immigration law enforcement to mask their
reliance on racial appearance.
I.
CURRENT LAW ON THE PERMISSIBLE USE OF RACE IN
IMMIGRATION ENFORCEMENT
Investigatory stops allow law enforcement officers to stop a pedestrian
or motorist and ask that person questions to determine
whether or not criminal activity is about to occur. 8 These stops cannot
be conducted arbitrarily, thanks to the Fourth Amendment. However,
the Court has construed the constitutional right to be free from governmental
search and seizure as requiring only a reasonable suspicion to
justify an investigatory stop. 9 As such, a Border Patrol officer can
stop a vehicle if the officer has reasonable suspicion to believe that at
least one of the occupants is an undocumented immigrant. 10 In
Brignoni-Ponce, the Supreme Court held that the officer can consider
the occupant’s apparent ancestry in making this assessment. 11 In order
to understand how this came to be the rule, this Part presents cases
leading to Brignoni-Ponce and analyzes the decision itself.
A. Search and Seizure Standard for Police Stops
The Fourth Amendment provides that people have a right “to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” 12 This right is not to be violated except
upon probable cause; 13 however, the Court has held that certain
searches and seizures are reasonable and therefore need only be justi-
8. See Terry v. Ohio, 392 U.S. 1, 9–10, 30–31 (1968).
9. Id.
10. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975).
11. Id. at 885–86.
12. U.S. CONST. amend. IV.
13. Id.