Thursday, August 02, 2012
The Ninth Circuit issued an interesting Fourth Amendment decision last week on the subject of reasonable suspicion, in United States v. Valdes-Vega. The "reasonable suspicion" standard dates to Terry v. Ohio, where the Supreme Court upheld limited, investigative seizures on less than traditional probable cause. Instead, following Terry, reasonable suspicion justifies the police in stopping and detaining someone for investigation sufficient to confirm or dispel their suspicion of criminality. A reasonable suspicion, the Supreme Court has held, requires "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."
In Arvizu v. United States, however, the Supreme Court, reviewing another Ninth Circuit decision, made clear that lower courts must consider the "totality of the circumstances" when evaluating reasonable suspicion. Court should not "divide-and-conquer" each fact, however common or innocent each fact may prove in isolation, if reasonable suspicion is supported by the evidence in the aggregate. This understanding of reasonable suspicion has given the police a lot of discretion to stop and investigate individuals without proof of criminality, so long as prosecutors can compile a list of non-criminal factors that, considered as a whole, made the police reasonably suspect criminality. Critics have challenged this standard as giving the police too much discretion with too little judicial review.
In Valdes-Vega, the Ninth Circuit may have pushed back, perhaps fairly hard, against this reasonable suspicion standard. This case involved a vehicle stop and drug seizure in California, about 70 miles from the U.S.-Mexico border. Interestingly, the police observed Valdes-Vega speeding and driving erratically, but they could not stop him to cite or arrest him for traffic violations, because the police here were federal border agents. So, the agents needed to articulate a reasonable suspicion of criminality to stop the vehicle. In arguing that the agents reasonably suspected drug or alien smuggling, the Government highlighted Valdes-Vega's erratic driving, the proximity to the border, Valdes-Vega's decrease and increase in speed near a closed border checkpoint, Valdes-Vega's use of a large truck with Baja California plates, the history of smuggling in the area, and the agents' training and experience. The district court found reasonable suspicion for the stop. But the Ninth Circuit disagreed, concluding that reasonable suspicion on these innocuous facts would permit seizures based on "'broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped.'" The Ninth Circuit Blog recently commented on this opinion: "The Ninth, we hope, is becoming increasingly uncomfortable with the 'border exception' swallowing all Fourth rights in the West."
Truthfully, the dissent in Vades-Vega did make a good point on the law that the majority seemed to violate precisely Arvizu's no-divide-and-conquer approach to reasonable suspicion analysis. And maybe this case simply reflects "liberal" Ninth Circuit judges vying for yet another Supreme Court reversal. But on the other coast too, in cities like New York and Philadelphia, critics of the reasonable suspicion standard are challenging police "stop and frisk" programs as too discretionary, abusive, and inefficient. Courts in those jurisdictions also may be attempting to toughen the reasonable suspicion standard. Are these judicial decisions, backed by vocal criticism of police action in certain communities, just blips on the Fourth Amendment radar, or a sign of coming changes to the reasonable suspicion standard, such as an increased emphasis on arrest efficiency?
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Perhaps a peripheral point, but it trips me up. It seems that only the stop of the vehicle was at issue since the search of its interior was based on consent, and the validity of the consent seems to have been unchallenged. Nor does there seem to have been any dispute that the agents had probable cause to believe that the vehicle had violated traffic laws. In commenting on the traffic-law violations that the agents had observed, the court wrote, in footnote 6: "Ordinarily, an officer’s observance of a traffic violation, by itself, is sufficient for a vehicle stop . . . . But Border Patrol Agents, unlike state and local law enforcement agents, do not have authority to arrest or cite individuals for traffic violations." Yet, even if no statute authorized the agents to make an arrest under otherwise applicable traffic laws, in Virginia v. Moore, the Supreme Court held that an arrest made in excess of statutory authority but otherwise consistent with Fourth Amendment standards is perfectly valid for constitutional purposes. Isn't this point sufficient in itself to reject the Ninth Circuit's holding?
Chapman University School of Law
Posted by: Larry Rosenthal | Aug 2, 2012 6:34:29 PM
Good point regarding Moore, Larry, which I also wondered as I read that same footnote. I skimmed the Government's brief, and it does not argue Moore. Maybe therefore the court just buried the issue in that footnote so it could attack the reasonable suspicion issue? But the dissent did not raise Moore, either. So perhaps the court did not perceive the issue or saw some distinction from Moore--here, the *agents* weren't authorized to cite or arrest for the offenses, instead of the offense itself not being authorized for arrest?
Posted by: Brooks | Aug 2, 2012 7:13:35 PM