Metropolitan News-Enterprise


Tuesday, May 7, 2019


Page 1


Ninth Circuit:

Stop Near Border Based on More Than ‘Hunch’ In Light of Time, Locality, Tinted Windows


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed a man’s conviction for transporting illegal aliens in the United States, rejecting the contention that the District Court erred in not suppressing the fruits of an allegedly unlawful vehicle stop near the Mexican border.

A three-judge panel found no error in the ruling by District Court Judge Michael M. Anello of Southern District of California in denying the motion by Juan Carlos Banderas-Gonzalez, who was stopped in San Diego County by border patrol agents.

The issue, Banderas-Gonzalez’s lawyer, Jeremy Warren of San Diego, told the judges at oral argument in Pasadena on April 12, was whether the officers were “acting on a hunch or whether they had reasonable suspicion that criminal activity was afoot.”

Reasonable suspicion, he recited, requires “particularized, rather than generalized, information that supports the stop,” adding:

“Here, there was none.

The United States Supreme Court in the 1968 case of Terry v. Ohio that the Fourth Amendment is not violated where an investigatory stop—something more than a consensual encounter and less than probable cause—is supported by reasonable suspicion.

Relevant Factors

The judges disagreed, explaining in yesterday’s memorandum opinion:

“To evaluate reasonable suspicion near the border, courts look to factors including characteristics of the area; proximity to the border; usual patterns of traffic on the particular road; previous experience with alien traffic, including information about recent illegal border crossings in the area; the driver’s behavior; and vehicle characteristics.…”

The opinion goes on to say:

“Here, experienced and well-trained Border Patrol agents who had reason to be on alert at the time for potential vehicle alien pickups in the particular area they patrolled paid close attention to factors that collectively led them to stop Banderas-Gonzales. Those factors included, but were not limited to, the early morning hour, their perception that the car was not well suited for the area and was not recognized as belonging to someone who lived in the area; the vehicle’s out-of-area registration; the level of tinting in the car’s back windows; and the movement down a road leading directly to a vulnerable portion of the border, returning back five to ten minutes later, then proceeding directly to the interstate highway that led to San Diego.”

More Than Hunch

The opinion adds:

“The evidence may not have been enough to establish probable cause, but it was sufficient to establish reasonable suspicion. The officers acted on more than a hunch in picking out this particular vehicle among the others that passed.”

The panel was comprised of Senior Circuit Judge Richard R. Clifton and Circuit Judge Richard Paez, along with District Court Judge Morrison C. England Jr. of the Eastern District of California, sitting by designation.

The case is United States v. Banderas-Gonzalez, 18-50016.


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