“Driving stiffly, having tinted windows, slowing down when seeing law enforcement, and driving in an out-of-the-way area may be innocent conduct by themselves,” Judge Scott M. Matheson, Jr wrote for the appellate panel. “But when taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity.”
Today’s “Hero of Democracy” Award goes to Federal Judge Scott M. Matheson, Jr., whose written decision on behalf of the Tenth Circuit Court of Appeals represents what might be the first move down the slippery slope leading to nullification of the 4th Amendment. The court’s decision represents a vindication of the expansion of police powers and recognition that a police officer should be allowed wide latitude when it comes to justifying a traffic stop and subsequent search.
In today’s America, driving stiffly and being in possession of a case of acne while in close proximity to the Mexican border is sufficient reason for a Border Patrol officer to pull a driver over. That sound you hear is the 4th Amendment being dismantled brick by brick.
Let that sink in for a moment. Taken to its logical extreme, every 16-year-old male with a back injury driving a truck should be on notice- a Border Patrol officer might suspect you of carrying drugs or illegal aliens. As absurd as that might sound, it’s not far from the truth when you consider what happened in this case. After being stopped by the Border Patrol officer, the driver was detained for 20 minutes for…well, who knows what? It’s the Border Patrol, which means that the rights one might believe they have- against unreasonable search and seizure, f’rinstance- need not be afforded them.
In the end, the drug dog used by the Border Patrol found marijuana, so the officer could claim the stop was justified. Yes, the driver had broken the law, but did the means employed by the Border Patrol officer justify the ends? Did the driver have a reasonable expectation of privacy and the right to protection from arbitrary invasion? For those unfamiliar with the 4th Amendment, let me refresh your memory:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Did the posture of the driver and their complexion provide probable cause to pull her over and ask to search her vehicle? When she refused, which she had the right to do, was the Border Patrol officer justified in detaining her and forcing her to wait until the drug dog arrived?
Rather than devoting time, energy, and column inches debating that question, let’s consider an alternate scenario. What if the driver had been sitting upright due to a back injury and driving caused her pain and discomfort? What if her acne was a reaction to medication her doctor had prescribed? And what if she lacked documentation to prove her condition(s)? Better yet, should she even have to prove her condition(s)?
If we accept that an officer of the law can stop a driver based on the flimsy reasons used in this case, how long before anyone can be pulled over for any justification an officer may provide? Or none at all?
No problem, officer…I wasn’t using my civil rights anyway….