In a great opinion that has the courage to bring a dispassionate analysis to gang issues, the Ninth rejects gang affiliation as a basis to expand interrogation beyond the scope of an traffic stop. See United States v. Mendez, __ F.3d __, 06 Cal. Daily Op. Serv. 18019 (9th Cir. Oct. 30, 2006), opinion available here.
Players: Impressive win by AFPD Michael Gordon of Jon Sand’s Phoenix office.
Facts: Mendez’s car was stopped by Phoenix gang cops for a tag violation. Id. at 18023. While they ran his California I.D., the cops patted Mendez down and noticed a gang tattoo on his hand. Id. at 18025. When they asked where he was from, he responded, “Latin Kings” – a Chicago gang – but that he’d left the gang and came to Arizona to turn his life around. A cop followed up and asked about his priors: Mendez had done eight years in an Illinois prison. Id. at 18026. They then asked him if there was a gun in the car. Mendez admitted there was one in the door handle. Id. The defendant entered a conditional plea to § 922(g), and then appealed the district court’s refusal to suppress.
Issue(s): “Mendez does not contest the legality of the initial traffic stop. Instead, he argues that the officers’ unrelated questioning and extended detention violated his Fourth Amendment rights because (1) the officers did not observe additional particularized, objective factors sufficient to create reasonable suspicion to justify interrogating him about matters beyond the purpose of the stop . . . .” Id. at18027.
Held: “We hold that, because the fact of gang membership is not sufficient to generate a particularized, reasonable suspicion of criminal activity, Det. Jaensson was not justified in expanding his questioning of Mendez to topics beyond the scope of the traffic stop. Even if the officers could also have considered that Mendez had once served a prison sentence, this information, either alone or in combination with the information regarding gang membership, does not give rise to the requisite type of particularized suspicion necessary to expand the scope of the interrogation.” Id. at 18045.
Of Note: The new law – or new language – in Mendez is Reinhardt’s and Paez’s flat rejection of gang affiliation as a factor that justifies interrogation beyond the scope of the traffic stop. It is one of the rare cases of late that acknowledges that gang affiliation does not destroy Fourth Amendment protections: “[t]he fact that an individual is or was a gang member does not by itself generate the sort of particularized and legally relevant suspicion that the Fourth Amendment requires.” Id. at 18032.
The real issue, however, is whether the majority engaged in “divide and conquer” – dinging each factor supporting the search in turn, rather than looking at the totality of the circumstances (as dissenting Judge Tallman grumbles). Reinhardt, however, carefully rejects the two factors supporting the search – gang affiliation and prior convictions – together, hopefully staving off any further review of the case. Id. at 18039.
How to Use: This is a good Fourth Amendment case, and a great gang case. Too many Fourth Amendment decisions use gang affiliation as an (unstated) proxy for probable cause. Judge Reinhardt explains that gang affiliation may raise a “generalized or unspecific suspicion that he is associated with criminal types and perhaps he has engaged in criminal activity himself . . . .” Id. at 18031-32. That does not, however, generate particularized suspicion required by the Fourth Amendment. Id. Moreover, gang affiliation does not create a reasonable inference that criminal activity is “afoot” – that is, that a crime is underway at the time of the search. Id. at 10833. This dispassionate – and persuasive – reasoning about the significance of gang affiliation bears quotation in any Fourth Amendment challenge involving gang members.
For Further Reading: Latino gangs hold an equal fascination for law enforcement and academics. A not terribly sympathetic – but well-documented – analysis of Southern California Latino gangs can be found here. By contrast, a more . . . “sympathetic” web site gives a comprehensive overview of Hispanic gangs in Los Angeles County, along with pictures of many of the graffiti symbols. See "streetgangs" webpage here.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org