updating brignoni-ponce - New York University School of Law

572 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
The Court’s opinion in Terry neglected to mention that both codefendants
were black and that the officer was white. 22 It created a
fictional world in which police officers form suspicions about individuals
without considering that person’s race. 23 Nearly thirty years
later, the Court created a similar fiction in Whren v. United States. 24
The issue in Whren was whether the officer’s consideration of race
tainted a traffic violation stop based on probable cause. 25 The Court
held that even if the officer’s decision was influenced by race, the stop
did not violate the Fourth Amendment as long as the officers had
probable cause to believe the driver violated the law. 26 In short, the
Court refused to inquire about the officer’s subjective motivation for
making the stop; 27 it preferred instead to present the “officer’s actions
as resting upon neutral facts untainted by racial bias.” 28 As long as
officers had probable cause to believe the driver had committed some
traffic violation, they could decide to stop someone for “driving while
Black” or “driving while Brown.” 29 While Terry and Whren ignore
the use of race in police officers’ decisions, Brignoni-Ponce, discussed
below, explicitly allows it to be a factor that creates reasonable
suspicion in the context of immigration law enforcement.
B. Brignoni-Ponce: Reasonable Suspicion and Permissibility of
Race as One of Many Factors
Decided in 1975, Brignoni-Ponce continues to be cited for the
proposition that it is permissible to use race in immigration enforcement.
30 The case concerned a roving traffic stop by Border Patrol
22. Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth
Amendment, 74 N.Y.U. L. REV. 956, 957, 964 (1999); see Terry, 392 U.S. at 5.
23. Thompson, supra note 22, at 971. R
24. Whren v. United States, 517 U.S. 806 (1996).
25. See id. at 810.
26. Id. at 813.
27. Id. (“Subjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.”).
28. Thompson, supra note 22, at 981–82. R
29. Kevin R. Johnson, The Case for African American and Latina/o Cooperation in
Challenging Racial Profiling in Law Enforcement, 55 Fla. L. Rev. 341, 343–44
(2003) [hereinafter Johnson, Challenging Racial Profiling].
30. See United States v. Montero-Camargo, 208 F.3d 1122, 1132 (9th Cir. 2000);
United States v. Franco-Munoz, 952 F.2d 1055, 1058 n.2 (9th Cir. 1991) (Norris, J.,
dissenting); United States v. Amaya-Ramos, No. CR-07-024-N-BLW, 2007 U.S. Dist.
LEXIS 32465, at *6 (D. Idaho May 2, 2007); U.S. DEP’T OF JUSTICE, CIVIL RIGHTS
DIV., GUIDANCE REGARDING THE USE OF RACE BY FEDERAL LAW ENFORCEMENT
AGENCIES 9 (2003), available at http://www.usdoj.gov/crt/split/documents/guidance_on_race.pdf
[hereinafter DOJ RACE GUIDANCE]. However, the Ninth Circuit
has questioned its application in certain racial contexts. See infra Part II.C. Brignoni-
Ponce could be read as either supporting the express use of race, in opposition to the