Border Patrol Agents Violate Fourth Amendment in Terry Stop But Conviction Upheld

United States v. Hernandez-Mandujano, (5th Circuit June 27, 2013)

Border PatrolBorder Patrol agents stopped Appellant as he was driving on Interstate 10, approximately 450 miles from the nearest United States-Mexico border crossing. The agents believed Appellant was transporting illegal aliens because he was driving an SUV; had both hands on the steering wheel, and he was not exhibiting the relaxed nature of most drivers. In addition, Appellant’s speed dropped from 70 miles per hour to 60 miles per hours as the agents followed him, and when the agents pulled alongside Appellant, he stopped talking to the person in the passenger’s seat.

The agents learned the car was registered to a woman; however, it had not been reported stolen, had no outstanding warrants or criminal activity associated with it, and had not recently crossed the border. During the stop, Appellant told the agents he was a Mexican national in the United States illegally. The government indicted Appellant for reentry without permission by an alien deported after conviction for an aggravated felony, in violation of 18 U.S.C. § 1326(a) and (b)(2).

At trial, Appellant moved to suppress his statements to the agents, arguing the stop could not be considered an extended border search and the agents lacked reasonable suspicion to conduct a Terry stop. The district court agreed the stop was not an extended border search, but held the agents had reasonable suspicion of illegal activity to support a Terry stop.

The 5th Circuit Court of Appeals held the agents did not have reasonable suspicion to stop Appellant. First, the stop occurred 450 miles from the nearest border crossing and there was no reason to believe Appellant had come from the border. Second, Appellant’s driving posture speed change and the fact the SUV was registered to a woman was not indicative of criminal activity. Third, the SUV had not been reported stolen, had no outstanding warrants or criminal activity associated with it, and had not recently been documented as crossing the border. Finally, the agents could not identify anything about the SUV that rendered it more likely than other SUVs to be transporting illegal aliens.

Even though the agents violated the Fourth Amendment in stopping Appellant, the court still denied Appellant’s motion to suppress. The court noted previous Fifth Circuit case law held an alien’s INS file and identity are not subject to suppression when law enforcement officers learn of a deported alien’s unlawful reentry after an allegedly unconstitutional stop.

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