Saturday, July 28, 2012

Case o' The Week: Ninth "Totality" Underwhelmed -- Valdes-Vega and Fourth Amendment "Totality of Circumstances" Stops

The Honorable Harry Pregerson
Cram together enough innocent facts surrounding a stop and search, slap on a veneer of “totality of circumstances,” and what do you get?

   An illegal stop and search. United States v. Valdes-Vega, 2012 WL 3024188 (9th Cir. July 25, 2012), decision available here.

Players: Decision by Judge Pregerson (right), joined by Judge Murguia. Dissent by visiting DJ Conlon.

Facts: Seventy miles north of the border, Border Agent Lopez saw a red truck on I-15 making “erratic lane changes” and speeding. Id. at *2. The truck had Baja California plates. Id. Agent Lopez lost the truck; Agent Hays picked it up soon after. Id. The truck was going 90, then slowed to 70. When Agent Hays pulled alongside, the truck driver – Valdes-Vega – looked straight ahead. Id. Agent Hays thought the behavior was consistent with smuggling, pulled the truck over, searched it, and found roughly 8 kilos of cocaine. Id. Valdes-Vega’s motion to suppress was denied by the district court, with a finding of reasonable suspicion under the “totality of circumstances.” Id. at *2. Valdes-Vega entered a conditional plea.

Issue(s): “Valdes-Vega . . .  appeals the district court’s denial of his motion to suppress cocaine found in his truck.” Id. at *1.

Held: “Agent Hays's offered justification for the stop of Valdes-Vega’s vehicle was his belief that Valdes-Vega’s behavior was ‘consistent with the behavior of alien and drug smugglers in the area.’ We find that the totality of the circumstances fall short of providing reasonable suspicion to believe that Valdes-Vega was smuggling drugs or aliens. To the contrary, as discussed below, the totality of the circumstance[s] reveal a driver with Mexican license plates committing traffic infractions on an interstate 70 miles north of the U.S. – Mexico Border; a description that describes too broad a category of people to justify reasonable suspicion.” Id. at *3.

Of Note: Our Southern colleagues will love Valdes-Vega’s refusal to demote all of SoCal to a Fourth Amendment free zone. Id. at *4. The district court had found that a factor supporting the search was the fact that the stop took place seventy miles from the border. Id. Judge Pregerson correctly observes, however, that this radius from the border effectively sweeps in all cars in San Diego County: over three million souls in the fifth-largest county in the United States. Id.

   The Ninth, we hope, is becoming increasingly uncomfortable with the “border exception” swallowing all Fourth rights in the West. See United States v. Cotterman, order re: en banc here.

    Here’s hoping that Valdes-Vega marks the beginning of Cotterman’s end. See blog discussing Cotterman panel decision, here.

How to Use: Don’t stop at the good border holding of Valdes-Vega: its larger value is a terrific Fourth Amendment “totality of circumstances” analysis. Id. at *7. Judge Pregerson considers each of the facts of the totality analysis individually, and then weighs the probative value of each of the facts when considering them combined. Id. Makes much sense – but the analysis prompts a dissent that accuses the majority of dodging the Supreme’s “totality” dictates in Arvizu. Id. *8. 

  The opinion explains why its approach honors Arvizu, ending with the persuasive observation: “We think it uncontroversial to say that, when viewed in totality, a collection of facts that are each highly probative of criminal activity is more likely to support a finding of reasonable suspicion that a set of facts which are not.” Id. at *7. 

   In reality, that “totality” shtick is often a whitewash, salvaging a lousy search by blessing a jumble of innocent facts as "reasonable suspicion." Use Valdes-Vega when fighting a "totality" battle – it offers an intellectually honest method of untangling the mess of facts typically offered to support bad searches.  
For Further Reading: Arvizu and its ilk value law enforcement efficiency over our privacy interests. Why, and when, did that shift happen? For a thought-provoking view of the roots of the "totality of circumstances" test, see Frank Rudy Cooper, The Un-Balanced Fourth Amendment: A Cultural Study of the Drug War, Racial Profiling, and Arvizu, 47 Vill. L. Rev. 851 (2002).

Painting of the Honorable Harry Pregerson by David Rothman, from

Steve Kalar, Senior Litigator, N.D. Cal. Federal Public Defender. Website at

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Thursday, August 09, 2012 11:17:00 PM  

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