Appeals Court Says A Person Driving A Registered Vehicle On A Public Road Is Not 'Reasonably Suspicious'

from the nothing-more-inherently-criminal-than-driving-a-car dept

Well, let's see what government agents are claiming is reasonably suspicious these days. Ah, here it is: driving a registered vehicle on a public road. The streets are clogged with scofflaws, apparently. Thanks to the skill set of one Carlos Perez of the US Border Patrol, we can finally start putting these people away.

This ultra-ridiculous assertion comes courtesy of an appealed motion to suppress that has made its way to the Fifth Circuit Court of Appeals. The government is the party doing the appealing, having come out of the losing end of Jeffrey Freeman's request to have evidence obtained during two stops by the Border Patrol tossed out.

The suppression of the first stop isn't at issue as the government isn't challenging that particular suppression. But it wants to keep the evidence obtained in the second stop. The problem is Agent Perez's definition of "reasonable suspicion" isn't anywhere in the neighborhood of "reasonable." According to Perez, he stopped Freeman because he turned onto a public road that happened to bypass a Border Patrol checkpoint near Freer, Texas. Freer is 50 miles inland from the border, but the government has declared anything within 100 miles is under the control of the Border Patrol.

But the road Freeman turned onto (FM 2050) is more than a detour around BP checkpoints. According to Perez's own testimony, a dozen homes and a handful of businesses can be accessed via FM 2050, making it far more than a way to avoid being hassled by the Border Patrol. Still, Perez insisted the road was only used by those transporting illegal immigrants or contraband, turning residents and business owners (along with their employees) into criminals that just haven't been caught yet.

According to Perez, the BP stops almost every vehicle that turns onto FM 2050, reasoning that the very act of driving a public road is suspicious enough to justify a stop. Even Perez's own experience contradicts the narrative he's pushing. From the opinion [PDF]:

Agent Perez estimated the Border Patrol made approximately ten to twenty roving stops per week on FM 2050. He estimated that he had only conducted approximately twenty to thirty stops throughout his eight years there, and only two or three of those stops resulted in seizures.

During the stop, Agent Perez discovered Freeman's passenger was not a legal resident of the US. Freeman moved to suppress. The lower court found Perez's assertions about suspicious behavior ridiculous and stated his stop of Freeman was nothing more than a "fishing expedition."

The Appeals Court is no more impressed with Perez's claims, even when the Wild West aspects of the "Constitution-Free Zone" are taken into account.

At this point, we are left with the following facts to be viewed from Agent Perez’s limited experience in detecting illegal activity: Freeman’s truck, a type commonly found in the area, was seen less than 50 miles from the border, it turned right onto a road known for smuggling, and his truck was registered to an individual. We conclude that these facts, without more, are not enough to support reasonable suspicion, especially when viewed through the eyes of an agent with minimal experience detecting illegal activity. Courts that have found reasonable suspicion, even in cases in close proximity to the border, have generally required more.

Suspicion isn't "reasonable" when it has the ability to sweep up almost every driver on the road.

If the facts of this case constituted reasonable suspicion, virtually anyone who drove a car registered to an individual and turned right onto FM 2050, a public road, would be subject to being stopped by Border Patrol agents. As the district court pointed out, had Agent Perez waited a little longer, he may have been able to develop reasonable suspicion; he did not.

Agent Perez said his extensive experience led to him drawing these unreasonable suspicion conclusions. The Appeals Court points out the opposite is true: Perez may have eight years experience as a Border Patrol officer, but he only participated in 20-30 stops on the road where he stopped Freeman. And he was only successful about 10% of the time. The only thing Perez can sufficiently claim expertise in is fishing expeditions. Even with all the leeway granted to border enforcement, he still only managed to rack up three wins. This isn't someone who knows the ins and outs of observing human behavior to spot immigration violations. This is someone hopping from traffic stop to traffic stop hoping to get lucky.

Filed Under: border search, carlos perez, cbp, jeffrey freeman, public road, reasonable suspicion


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  • icon
    Stephen T. Stone (profile), 31 Jan 2019 @ 4:09pm

    This isn't someone who knows the ins and outs of observing human behavior to spot immigration violations. This is someone hopping from traffic stop to traffic stop hoping to get lucky.

    I wonder how many other Border Patrol agents fall under this description.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2019 @ 4:32pm

    Two out of three judges agree

    Appeals Court Says A Person Driving A Registered Vehicle On A Public Road Is Not 'Reasonably Suspicious'

    Two out of three judges agree.

    But Fifth Circuit Court of Appeals Judge Jerry E. Smith doesn't agree. He dissents.

    reply to this | link to this | view in chronology ]

  • icon
    hij (profile), 31 Jan 2019 @ 4:36pm

    They appealed this?

    The fact that the prosecutors appealed this thinking they could still get away with it just further demonstrates how bad the system is.

    reply to this | link to this | view in chronology ]

    • icon
      Bamboo Harvester (profile), 1 Feb 2019 @ 5:11am

      Re: They appealed this?

      Why not? It doesn't cost them anything to appeal, unlike a defendant.

      Unlimited resources.

      If I had to guess, the DA is running for office and wants his conviction rate higher. So he'll make the people of the State keep paying until the courts "get it right".

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 1 Feb 2019 @ 10:15am

        Re: Re: They appealed this?

        Or possibly the DA is hoping the defendant runs out of money and either gets punished through bankruptcy, or has to give up on the appeal and plead guilty.

        reply to this | link to this | view in chronology ]

  • identicon
    Tsar Chasm, 31 Jan 2019 @ 4:38pm

    Carlos Perez, Carlos Perez. Where have I heard that name before?

    Ah, here it is: Google Translate Spanish to English

    - Benedict Arnold

    Jeffrey Freeman, Jeffrey Freeman. Now let me see.

    Ah, here it is: Google Translate English to Spanish

    - Pablo Escobar

    Such irony that someone named Perez is working for US Border Patrol.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2019 @ 5:05pm

    All law enforcement is working from a single tiny mindset. Apparently, they think that all drugs are bad whethher they are legal or not. Millions upon millions of people who are in chronic pain daily and who have had pain relief cut back are suffering at the hands of that tiny mindset. And the medical industry if they had any stock at all would not so easily be taking the guidelines of the dea and who should also be lobbying congress for latitude so doctors can care for their patients and ease their suffering, but who have been made afraid by these ballbusters so they cut back on the medicine that could ease chronic pain. Get some balls of your own and fight this injustice.

    reply to this | link to this | view in chronology ]

    • icon
      Chris-Mouse (profile), 1 Feb 2019 @ 5:01am

      Re:

      But a legal drug that anyone can grow in their backyard won't make money for the Pharma Bros.

      reply to this | link to this | view in chronology ]

      • identicon
        PainRelief, 1 Feb 2019 @ 8:28am

        Don't read this Monsanto!

        However, if some company that loves to do genetic manipulation on plants were to remove all traces of the mind/state altering effects of the THC so that it only has the CBD, they could then license the proprietary/patented technology to pharmaceutical companies to make prescription drugs from said GMO plants...

        reply to this | link to this | view in chronology ]

        • identicon
          damien, 8 Feb 2019 @ 12:56pm

          Re: Don't read this Monsanto!

          THC and CBD are not the same thing... one does not alter THC or remove THC to produce CBD. Please stop having strong marijuana opinions until you understand it further.

          reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 1 Feb 2019 @ 11:03am

      "All drugs are bad"

      I'm pretty sure that law enforcement doesn't get that far, rather, how can I utilize my repertoire of permissible actions to exploit this target. It doesn't matter what the shape of the contraband is, or the justification for it, so long as it leads to the seizure of lucre and assets.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2019 @ 8:11pm

    This ruling wasn't made to protect our constitutional rights

    >Police may also set up roadblocks and stop drivers without particularized reasonable suspicion that the stopped individual is engaged in criminal activity, so long as the plan for the stop is applied neutrally

    From the ruling:
    Q. Are you stopping – actually stopping every single vehicle?
    A. Yes, sir.
    Q. Okay. And so you’re doing this to every single vehicle that turns down that road?
    A. That’s correct.

    This ruling is not consistent with established law. Traffic stops need constitutional protections restored, but the determining factor in this ruling was not a desire by the courts to ban dragnet stops. This ruling is the result of the recent precedent of activist judges inventing new rights for foreign nationals to block the legal enforcement of existing immigration law. Enough legislating from the bench already, it's time to restore our democracy.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonycog, 31 Jan 2019 @ 10:24pm

    How long before the Roberts' kangaroo court gets this case? The U.S. is becoming a failed state at pace with the rate at which Chinese billionaires are born and slaughtered by the PRC.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 1 Feb 2019 @ 5:36am

    Well, at least these will put a stop to them hassling everyone who turns down that road, right?

    Nah, they'll keep doing it and just hope that the next person they nab isn't aware of the court decision. After all, it's not like they have anything better to do.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 1 Feb 2019 @ 6:30am

    Appeals court analysis flawed

    While a person driving a registered vehicle cannot be considered reasonably suspicious, did the court consider other important factors such as whether the driver has non-white skin?

    What about walking down the street peacefully minding ones own business? But having non-white skin?

    Some law enforcement authorities would want the court to consider whether all persons should be treated equally in police contacts, or in the determination of who the police should make un-requested contact with.

    Occasionally when the police stop someone, and that person turns out to be a part of law enforcement. In that case all other factors become irrelevant and they should be permitted to carry on about their business; regardless of any other suspicious factors such as an odor of alcohol, or obvious signs of violence, or other things that would ordinarily warrant further investigation.

    reply to this | link to this | view in chronology ]

  • identicon
    Shufflepants, 1 Feb 2019 @ 7:53am

    "Perez insisted the road was only used by those transporting illegal immigrants or contraband"

    If that were true, then why wasn't the checkpoint set up on that road?

    「(゚ペ)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2019 @ 10:05am

    ahh the good old guilty until you can prove your innocence routine . When are you going to wake up ? 100 miles inland of the perimeter of the USA is a fucken "we can search you for no reason area" But" hey it won't happen to me " so I don't care, till it does but by then it will to late . So much for we the people by the people . more like we the fucked by the fuckers

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2019 @ 10:18am

    This should be in the LawDirt blog.

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 1 Feb 2019 @ 10:20am

    Remedial Training Classes

    Perez doesn't just need remedial police procedure training so he'd know what reasonable suspicion and probable cause mean, he also needs remedial elementary school math -- after all, he believes that stopping 30 people over 8 years, catching 3 people with contraband (10%) means that it's more than 50% likely that everyone driving on that road over those years was carrying contraband.

    After all, to search a vehicle or make an arrest requires probable cause, which is 'more likely than not' -- aka more than 50%.

    reply to this | link to this | view in chronology ]

    • identicon
      damien, 8 Feb 2019 @ 12:53pm

      Re: Remedial Training Classes

      "30 people over 8 years, catching 3 people with contraband (10%)" 30 people ON THAT ROAD over 8 years. Maybe he only caught 10% with contraband because 50% of the others are avoiding the stops.... no?

      reply to this | link to this | view in chronology ]

  • identicon
    Yu Betcha, 1 Feb 2019 @ 10:25am

    There is no defense against insanity in the guise of officialdom

    See subject header.

    E.g., armed group of leagalized thugs aka Swat going to the wrong house and shooting man who opens his front door 49 times, without cause, warning, or remorse.

    Or, suing a man for damages for the crime of bleeding on the so-called officers’ uniforms while they are beating them.

    This judge says this. That judge says that.

    Meanwhile, the fibbers take a couple of years to “investigate” what in a civilized and sane world would take a couple of weeks, where trials do not take months or years.

    At least one can walk out of a bad cinema, or pinch self awake in bad dream).

    This must be some kind of a cosmic bad joke (lemme out of here).

    reply to this | link to this | view in chronology ]

  • identicon
    Damien, 8 Feb 2019 @ 12:50pm

    I dont get it... It's REASONABLE suspicion... not ABSOLUTELY CERTAIN suspicion. If its very unlikely that someone who turns down this road is doing something other than avoiding the stop, then that could be reasonably suspicious.

    I dont think the fact that not every single person who turns down that road is avoiding the stop makes the suspicion unreasonable... Suspicion where its possible that the officer is wrong does not automatically classify it as unreasonable...

    reply to this | link to this | view in chronology ]


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