Sunday, December 29, 2013

Case o' The Week: Greater than the Sum of Its Parts -- Valdes-Vega and Arvizu "Totality" Analysis for Fourth Searches

Zero plus zero = ?

A: Reasonable suspicion for a stop.

United States v. Valdes-Vega, 2013 WL 67688095 (9th Cir. Dec. 24, 2013) (en banc), decision available here.

Players: Decision by Judge Gould, dissents by Judges Pregerson and Reinhardt (both) joined by Judge Thomas.

Facts: Seventy miles north of the Mexican border, near Temecula, California, agents saw Valdes-Vega driving faster than the flow of traffic, and change lanes without signaling. Id. at *1. Valdes-Vega slowed to seventy as he went through the checkpoint. Id. He didn’t make eye contact with the border patrol officer, and the agent noticed the truck had Baja plates, was older, and clean. Id. The agent turned on his lights, and thought that Valdes-Vega took longer than normal to stop. Id. A consent search produced eight kilos of cocaine. Id. 
  The district court denied a suppression motion, and a three-judge panel reversed. See blog post here. 
  The case went en banc.

Issue(s): “We must decide whether border patrol agents permissibly stopped a vehicle on a highway linked to the border . . .  . The United States Supreme Court has held that a roving border patrol can stop a vehicle for a brief investigatory stop based on an articulable reasonable suspicion of criminal activity. We must here decide whether border patrol officers' stated reasons for stopping a vehicle were sufficient to permit the stop without offending the Fourth Amendment's prohibition on unreasonable seizures. ” Id. at *1.

Held: “We hold that the facts and inferences articulated by the border patrol agents established reasonable suspicion that criminal activity was afoot, justifying the stop. We affirm the district court's denial of the motion to suppress the evidence of cocaine found as a result of the stop.” Id.

Of Note: The fight in this decision is the scope of Arvizu: a Supreme Court decision that allows a combination of innocent facts to – in their totality – rise to reasonable suspicion for a search. Id. at *3. Judge Gould writes that this Supreme Court precedent overrules previous Ninth authority holding that some facts are not per se probative, or per se minimally probative. Id. at *3. This amorphous “totality of circumstances” approach is then “filtered through the lens of the agents’ training and experience.” Id. 
  Isn’t this “zero plus zero equals more than zero?” – a bunch of innocent facts, crammed together, somehow creating cause for a stop? Yep: “Even innocent, noncriminal acts can foster reasonable suspicion in the total context.” Id. at *4.

How to Use: “Let’s cut to the chase.” Id. at *5 (Pregerson, J., dissenting). In a brief but potent dissent, Judge Pregerson lists the facts supporting the search here – facts that describe thousands of Southern California drivers every day. Those facts, explain the Judge, “did not create a reasonable suspicion that criminal activity was ‘afoot.’” Id. Judge Reinhardt agrees, and explains in his dissent that not all innocent facts are equal under Arvizu. Id. at *6 (Reinhardt, J., dissenting). The dissenters don’t carry the day here, id. at *4 & n.2, but Judge Reinhardt’s careful distinction of the Arvizu “innocent” facts is the analysis we’ll have to adopt in future “totality” fights.
For Further Reading: In an interesting article last year, a legal reporter analyzed the potential impact of the Obama appointees on the Ninth Circuit. See Howard Mintz, President Barak Obama has heavily influenced federal courts in Bay Area, available here.   The article describes the Obama appointees as, “moderates.” Id. Note that in the Valdes-Vega en banc decision, all three of the Obama jurists on the en banc court -- Judges Christen, Watford, and Hurtwitz – joined Judge Gould’s majority decision. 
   Is the Ninth really a “liberal” court, and if it is, will it remain so? For a thoughtful New York Times piece discussing the perceptions – and realities – of the nation’s largest appellate court, see John Schwartz, ‘Liberal’ Reputation Precedes Ninth Circuit Court, available here.  

Steven Kalar, Federal Public Defender N.D. Cal . Website at


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