Federal Court: The Police Can Stop and Search You for Behaving Innocently

[JJChambers]

38. I think you're confused

You claim that acne, nervousness, tinted windows and two cell phones were the basis of the reasonable suspicion. The reasonable suspicion to justify the stop was, according to the court, none of those things. Here's what the court had to say:

2. Analysis
The district court concluded Agent Semmerling had objectively reasonable suspicion to justify stopping Ms. Westhoven. Based on the totality of the circumstances we agree. The reasonable suspicion factors here included: (1) the stop location’s characteristics, including proximity to the border; (2) traffic patterns on the road; (3) Ms.Westhoven’s travelling during the border patrol shift change; and (4) Ms. Westhoven’s driving behavior and vehicle characteristics.

First, Ms. Westhoven was driving in a relatively mountainous area 40-45 miles away from the U.S./Mexico border. Agent Semmerling, from his three years on the job, knew this stretch of road, because of its terrain, proximity to the border, and lack of border checkpoints, had high activity for drug and undocumented immigrant smuggling. Agent Semmerling testified this road is one of the only ones leading from Douglas, Arizona, a border town known for smuggling, that does not have a border checkpoint. Thus, smugglers attempting to avoid the Border Patrol’s detection frequent this road.

Second, Agent Semmerling knew out-of-state drivers rarely used the road. Ms. Westhoven’s license plates indicated her truck was registered in Tucson, Arizona. The agent also knew that travelling on this road was particularly unusual for a Tucson driver because it added approximately 100 miles to the drive. The more direct routes had border checkpoints. These facts indicated smuggling activity.

Third, Border Patrol agents changed shifts between 6:00 p.m. and 8:00 p.m., and Agent Semmerling stopped Ms. Westhoven at 7:45 p.m. Smugglers frequently exploited that two-hour window. See Arvizu, 534 U.S. at 277.

Fourth, Agent Semmerling noticed as Ms. Westhoven was driving past him that she appeared stiff with elbows locked and hands in the ten-and-two position on the steering wheel. After he turned around, he had to drive significantly faster to catch up, indicating she increased her speed by an estimated 10 or more miles per hour after passing him. As he approached her vehicle from behind but before he turned on his lights, she abruptly hit her brakes.

1 These circumstances can contribute to reasonable suspicion depending on context. See Arvizu, 534 U.S. at 275-76 (“We think it quite reasonable that a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona).”). The dark tinted windows on Ms. Westhoven’s truck raised Agent Semmerling’s suspicion that she might be concealing something or someone in the back of her truck. This case is similar to Arvizu. Driving stiffly, having tinted windows, slowing down when seeing law enforcement, and driving in an out-of-the-way area may be innocent conduct by themselves. But when taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity. “It was reasonable for [Agent Semmerling] to infer from his observations, his registration check, and his experience as a border patrol agent that 1 Agent Semmerling testified that when he caught up to Ms. Westhoven, he paced her at 70 miles per hour and the speed limit was 60 miles per hour. Although Ms. Westhoven’s driving behavior can factor into reasonable suspicion, because border patrol agents do not have jurisdiction over New Mexico traffic laws, a traffic violation such as speeding cannot form the sole basis of reasonable suspicion. See 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States.”); United States v. Barron- Cabrera, 119 F.3d 1454, 1456, 1461 (10th Cir. 1997) (finding that a defendant’s traffic violations only “partially satisf[ied] the ‘driver’s behavior’ prong of Brignoni-Ponce”). [Ms. Westhoven] had set out . . . [on a] route used by smugglers to avoid the [border] checkpoint[s]” for a criminal purpose. Arvizu, 534 U.S. at 277.

Beyond the reasonable suspicion based on Agent Semmerling’s stated reasons for stopping Ms. Westhoven, a traffic violation also supported reasonable suspicion for the stop. Agent Semmerling testified that after he turned around to follow Ms. Westhoven, he paced her at 70 miles per hour. The speed limit in the area was 60 miles per hour. “An observed traffic violation or a reasonable suspicion of such a violation under state law plainly justifies a stop.” United States v. Gregoire, 425 F.3d 872, 876 (10th Cir. 2005) (citing United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (enbanc)). “Once an officer observes a traffic or equipment violation, a Terry stop is objectively justified, regardless of the detaining officer’s subjective motives.” United States v. Winder, 557 F.3d 1129, 1135 (10th Cir. 2009) (holding that a stop was reasonable based on an observed speeding violation even though the officer justified the
stop on other grounds) (quotations omitted).