The U.S. Court of Appeals for the Ninth Circuit has ruled that the Hispanic appearance of an individual making a U-turn to avoid a Border Patrol checkpoint is not a relevant or appropriate factor to be considered by law enforcement officers in determining whether they have reasonable suspicion of criminal activity sufficient to justify an investigatory stop.  The decision was issued by an en banc panel of the court, which reviewed an appeal of a federal district court’s denial of a motion to suppress evidence that resulted in criminal convictions for drug and firearms violations.

In this case, the defendants were driving two cars with Mexicali license plates heading towards a Border Patrol permanent stationary checkpoint in El Centro, California, when they made a U-turn shortly before the checkpoint.  The cars turned around at the point on the highway where motorists are first alerted to the checkpoint’s presence and active operations, and Border Patrol agents testified that the area is "a notorious spot where smugglers turn around to avoid inspection."  Border Patrol agents followed the cars and ultimately stopped, questioned, and arrested the occupants.  All were charged with drug and firearms offenses.

During their criminal proceedings, the defendants filed a suppression motion on the ground that the vehicle stops were not based on reasonable suspicion.  The district court denied the motion, and the defendants were subsequently convicted. Among the factors that the district court found properly justified the stop were:  (1) the U-turn made in the highway just before the checkpoint; (2) the Mexicali license plates; (3) the nature of the turn-around spot and its frequent use by smugglers; (4) the Hispanic appearance of the occupants of the cars; and (5) the fact that one of the passengers picked up a newspaper after seeing the Border Patrol vehicles approach.  On appeal, a panel of the Ninth Circuit affirmed this decision, but subsequently the court granted en banc rehearing.  In its decision, the en banc court agreed that the stop was supported by reasonable suspicion but expressly ruled that some of the factors listed by the district court were not proper.

The appeals court concluded that by relying in part on the Hispanic appearance of the defendants to find reasonable suspicion, the district court had erred.  "[I]n an area in which the majority—or even a substantial part—of the population is Hispanic," the Ninth Circuit observed, the likelihood that any given person of Hispanic ancestry is a noncitizen, much less undocumented, is not high enough to make Hispanic appearance relevant to assessing reasonable suspicion.

Indeed, the court noted that the population of Imperial County is now 73 percent Hispanic.  Moreover, the Ninth Circuit noted that in recent years the Supreme Court has restricted the use of race as a criterion in government decision-making.  Accordingly, the court in this case concluded that "at this point in our nation’s history, and given the continuing changes in our ethnic and racial composition, Hispanic appearance is, in general, of such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required."  The court also found that it is not an appropriate factor on which to base reasonable suspicion justifying an investigatory stop.

The court also rejected the assertion that a passenger’s picking up a newspaper on seeing the vehicles approach constituted a suspicious factor.  The court noted that "the most law-abiding of citizens" frequently adjust their behavior on seeing law enforcement officers, and picking up a newspaper is no more suspicious than any other action the individual might have taken.

However, the court concluded that even without considering these improper factors there was sufficient evidence to justify the stop, and it therefore affirmed the district court’s ruling.