Thursday, December 26, 2013

United States v. Valdez-Vega, No. 10-50249 (12-24-13) (en banc) (Gould for majority with dissents by Pregerson and Reinhardt, joined by Thomas).

This is an en banc decision that concerns whether border patrol agents, making a brief investigatory stop, had sufficient articulable suspicious reasons. The 9th held that the officers did. The search was of a truck that was: (1) In an area frequented by smugglers (70 miles north of border in Southern California); (2) going faster than the flow of traffic on I-15 where the flow of traffic was between 70 and 80, and the truck was going over 90; (3) the truck was changing lanes numerous times; (4) the driver failed to make eye contact with the agent, but stared straight ahead; (4) the truck had Baja license plates, was older, and clean (?!); (5), oh yes, when the officer's lights went on, the truck took longer than normal to pull over to the side of the highway; and (6) Hispanic appearance. Once stopped, a consensual search followed, and cocaine was found. The analysis is with a "totality of circumstances" under Arvizu, 534 US at 273, where all factors are looked at and considered. In considering the stop, the possibility of innocent conduct need not be ruled out; nor is each factor parsed out and considered separately. The whole sum of the factors here support articulable suspicion. Pregerson and Reinhardt, each joined by Thomas, dissent. Each dissent argues that the factors don't rise to articulable suspicion. Pregerson concentrates on the factors present and that they do not justify a stop given the circumstances. Reinhardt focuses on the innocent reasons, and that Arvizu does not preclude such consideration.


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