updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 575
danger. In doing so, the Court suggested that the presence of undocumented
immigrants itself constitutes a threat to public safety. This
reformulation of the public safety consideration helped the Court to
justify the application of the reasonable suspicion standard instead of
probable cause to roving immigration stops. 43
After deciding to use the reasonable suspicion standard, the Court
then addressed the extent to which officers could use a person’s apparent
ancestry to justify a stop. 44 Thus, the Court did not, at least explicitly,
take into consideration any intrusions into personal liberty caused
by a race-based stop. The Court recognized that many native-born
and naturalized citizens have physical characteristics identified with
Mexican ancestry and that, even in the border area, a relatively small
proportion of them are immigrants. 45 Therefore, officers would not be
justified in stopping all Mexican-Americans to ask about their immigration
status. 46 Yet, the Court still found that the “likelihood that any
given person of Mexican ancestry is an alien is high enough to make
Mexican appearance a relevant factor.” 47 The Court did not cite any
statistics about the proportion of immigrants among persons of Mexican
appearance to support this conclusion. Instead, the Court listed
other factors that Border Patrol officers could rely on in forming a
reasonable suspicion: (1) characteristics of the area where the vehicle
is stopped; (2) proximity of that area to the border; (3) “usual patterns
of traffic on that particular road”; (4) recent experience with immi-
43. See id. at 883. Justice Douglas concurred in the judgment but vigorously attacked
the standard of “reasonable suspicion” adopted by the majority. Id. at 888–90
(Douglas, J., concurring in the judgment). He repeated the concern he voiced in his
Terry v. Ohio dissent that a suspicion test, rather than a probable cause test, allows
officers to “stop citizens on the highway on the flimsiest justifications and does not
provide citizens sufficient protection from governmental intrusion.” Id. at 890. He
acknowledged that the extent to which the suspicion test restrains the police in practice
will depend on the future decisions of the Court. Id.
44. Id. at 885–87 (majority opinion).
45. Id. at 886. According to the 1970 census and the INS figures for alien registration
in 1970, persons registered as Mexican immigrants comprised 12.4% of the
1,619,064 persons of Mexican origin in Texas; 8.5% of the 111,049 persons of Mexican
origin in New Mexico; 14.2% of the 239,811 persons of Mexican origin in Arizona;
and 20.4% of the 1,857,267 persons of Mexican origin in California. Id. at 886
n.12. One commentator concludes from the Court’s statistics that in 1975 “almost
two of every three Mexicans in the four border states were undocumented.” Robert
Alan Culp, Note, The Immigration and Naturalization Service and Racially Motivated
Questioning: Does Equal Protection Pick Up Where the Fourth Amendment Left Off?,
86 COLUM. L. REV. 800, 816 & n.124 (1986). However, U.S. Census Bureau information
from 1980 suggests that really only one-eighth of the Latino population in
those border states was undocumented. Id. at 817 n.125.
46. Brignoni-Ponce, 422 U.S. at 886–87.
47. Id.