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In a recent court decision, the United States Court of Appeals for the Ninth Circuit ruled that a combination of non-suspicious driving characteristics can give rise to the suspicion of criminal activity sufficient to justify pulling over the motorist.

A border patrol agent in a marked border patrol vehicle observed motorist Rufino Ignacio Valdes-Vega driving a red Ford F-150 truck driving north on Interstate 15, about 70 miles north of the Mexican border.  Valdes-Vega was observed changing lanes without signaling and driving about ten miles per hour faster than other traffic that day.  When the border patrol agent pulled next to the red truck, which was clean and had Baja California license plates, Valdes-Vega, who was alone in the vehicle, kept his eyes on the road, something that the border patrol agent found suspicious.

The border patrol put on his lights and Valdes-Vega immediately pulled over.  The border patrol agent had not pulled Valdes-Vega over for any traffic violations (indeed, as Valdes-Vega’s attorney later pointed out to the court, border patrol agents do not enforce traffic laws), but because he wanted to search the truck.  And when he did (Valdes-Vega consented to the search), he found cocaine.  After being arrested and indicted, Valdes-Vega moved to suppress the drugs that were recovered from his vehicle on the basis that the vehicle stop violated his Fourth Amendment right to be free from unreasonable seizures, and therefore was illegal.  The trial court denied Valdes-Vega’s motion, and he entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress the cocaine.

After a three-judge panel of the Ninth Circuit reversed the trial court and suppressed the drugs, the Ninth Circuit decided to hear the case en banc.

A majority of the en banc court held that the vehicle stop was proper and affirmed the trial court’s decision denying suppression.  The majority explained that ”[t]he fact that Valdes-Vega’s truck had Mexican license plates made the possibility that it had recently crossed the border significantly more likely.”  The court majority further found the fact that Valdes-Vega was driving a truck to be “significant” because “trucks are suitable for carrying large amounts of contraband and make it difficult for agents to see into the vehicle.”  According to the majority, these otherwise innocuous factors taken together with the slightly fast driving gave the border patrol “an objective and particularized suspicion that Valdes-Vega was ‘engaged in wrongdoing’” as a smuggler.  The majority declared that

“Valdes-Vega urges us to resist this conclusion because he contends that innocuous factors remain so even when added together.  Zero plus zero equals zero, his argument runs. But … we decline to second-guess the agents’ decision to stop the truck for investigation. Even innocent, noncriminal acts can foster reasonable suspicion in the total context …. A series of innocent acts may be enough for reasonable suspicion justifying an investigatory stop, even though the circumstances amount to far less than probable cause.”

In a tersely worded three-judge dissent, Judge Harry Pregerson wrote that

“Border patrol agents stopped Valdes-Vega because of his Hispanic appearance

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“Driving a clean Ford F-150 pickup is not suspicious. Driving with Baja plates is not suspicious. Driving 70 miles north of the U.S.-Mexico border is not suspicious. Driving with eyes kept on the road ahead is not suspicious. Driving faster than the flow of traffic and not signaling before lane changes on a major, busy California interstate highway is not suspicious. Driving while having Hispanic appearance is not suspicious.

“Driving without signaling lane changes and faster than the flow of traffic on a major, busy California interstate highway — not uncommon in California — is referred to by the majority as ‘perhaps one of the most important factors in the total circumstances here.’ Such driving, plus defendant’s Hispanic appearance, plus his eyes on the road, plus his driving a clean Ford F-150, plus the Baja plates, did not create a reasonable suspicion that criminal activity was afoot.”

So the upshot here seems to be that being too non-suspicious can, in itself, give the cops an “objective and particularized suspicion” of wrongdoing sufficient to justify stopping you.  But if you act at all suspicious, game’s over too.  Under this rubric, when, pray tell, will a government seizure ever be unreasonable?

Looks like the erosion of the Fourth Amendment is alive and well in the Ninth Circuit.