9th Circuit affirms Border Patrol acted appropriately, but questions the precedent binding its decision

The 9th U.S. Circuit Court of Appeals on Friday upheld a law enforcement stop near the U.S.-Mexico border that yielded a load of heroin and methamphetamine, but two panelists expressed concern about the controlling case law driving their decision.

A federal defender had argued U.S. border patrol agents did not have reasonable suspicion to stop the vehicle containing the drugs.

A three-judge panel of the 9th Circuit affirmed U.S. District Judge Virgina Phillips' denial of a Fourth Amendment violation claim brought by the defendant.

In a concurring opinion, two judges wrote skeptically of the circuit's precedent requiring them to defer to the judgments of border patrol agents. United States v. Raygoza-Garcia, 2018 DJDAR 8834 (9th Cir. Aug. 31, 2018).

"Given the particularity of certain relevant and probative factors the agents relied upon in this case, and in accordance with Valdes-Vega, we do concur," the special concurrence read. "However, officers' inferences must rationally explain how innocuous conduct and factors establish reasonable suspicion as to the particular person being stopped to avoid stops that might be interpreted as premised on race or ethnicity."

Agents involved in the case changed their reasoning for suspecting criminal behavior on multiple occasions.

The panel included Judges Ronald M. Gould and Mary H. Murguia of the 9th Circuit and Jack Zouhary, a district court judge from the Northern District of Ohio sitting by designation. Murguia wrote the opinion and co-authored the special concurring opinion with Zouhary.

In United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013), the en banc court decided, "in light of the totality of the circumstances, the two experienced border patrol agents, who observed a truck with foreign plates driving in a suspicious manner in an area frequented by smugglers, had a reasonable, particularized basis for suspecting that the defendant was smuggling contraband, justifying the stop."

Gould authored the opinion. The late Judge Harry Pregerson dissented, attracting votes from Stephen Reinhardt and Chief Judge Sidney R. Thomas.

In asking the panel to suppress the heroin and methamphetamine found in her client's vehicle at the time of his arrest, Federal Public Defender Gail Ivens argued the evidence was unlawfully collected. Ivens pointed to the a review of declarations and witness testimony she said demonstrated times when border agents "fit their 'recollections' and observations to what was needed to establish reasonable suspicion." At oral arguments, Ivens suggested the Murrieta Border Patrol Station agents routinely made stops not supported by reasonable suspicion. Ivens said she was unable to comment Friday for this story.

But, invoking the court's own precedent in Valdes-Vega, the panel said the district court could rely on the experience of Border Patrol agents and their ability to determine reasonable suspicion.

The concurring judges noted, "we have concerns about how we review reasonable suspicion determination near the border."

Thom Mrozek, a spokesperson for the U.S. attorney's office, said that while at the end of the day the court found the agents acted appropriately, the judges' concerns were noted.

"When the court issues an opinion and when concerns are raised, we certainly pay attention to that," Mrozek said. "We are constantly working with law enforcement officers, both at the federal and state level, to not only ensure that they are acting within the confines of the constitution, but also that their practices will satisfy the scrutiny of the courts."