updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 607
entered legally, less than 500,000 were border crossing card violators.
250 Since the public is interested in seeing immigration laws enforced
despite undocumented immigrants’ mode of entry, these
corrected statistics may not change the Fourth Amendment analysis.
C. Individuals’ Right to Personal Security Free from Arbitrary
Interference by Law Enforcement Officers
The Court in Brignoni-Ponce described the intrusion of the investigatory
immigration stop in people’s individual liberty as “modest.”
251 The stop typically lasts for less than a minute, and officers
can only inspect those parts of the vehicle that can be seen by anyone
standing alongside the vehicle. 252 The Court did not consider whether
the fact that the Border Patrol could consider race as a factor in making
this decision would cause any additional harm. The Court has
made Fourth Amendment balancing decisions in the past either by dismissing
any of the indirect and stigmatic harm caused to the individual
or to the public as insignificant or by not referring to such harm at
all. 253 However, scholarship and advocacy organizations, as will be
seen, have argued that the effect of these one-minute stops is actually
quite significant. This section will consider the impact of race-based
stops with regard to stigma, tension between the targeted community
and law enforcement officers, and private discrimination.
1. Stigmatic Harm
Under Brignoni-Ponce, persons appearing to be of Latin American
ancestry are more likely than other persons to be stopped and
questioned about their immigration status. 254 Considering that only
approximately 10% of Latinos are undocumented, this racial profiling
has a high probability of error. 255 Injuries from dignitary harms can
250. Id. at 1.
251. Brignoni-Ponce, 422 U.S. at 879–80.
252. Id. at 880.
253. See United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976) (accusing defendants
of overstating the stigma and consequences associated with a secondary referral
at a standing checkpoint); Brignoni-Ponce, 422 U.S. 873, 880 (referring only to
the minimal intrusion caused by a stop that lasts less than a minute); Terry v. Ohio,
392 U.S. 1 (1968) (omitting any mention of defendants’ race and possible stigmatic
harm).
254. Johnson, Against Racial Profiling in Immigration Enforcement, supra note 108, R
at 707.
255. Johnson, Challenging Racial Profiling, supra note 29, at 345; Motomura, supra R
note 230, at 415 (discussing Professor Lund’s position that racial profiling is “often R
inaccurate and irrational”); see Johnson, Against Racial Profiling in Immigration Enforcement,
supra note 108, at 709. R