"[M]ore and more, the U.S. Supreme Court has been granting law enforcement broad discretion in deciding what facts justify a stop.
In USA v. Arvizu in 2002, for example, the Supreme Court reversed a lower court’s decision to throw out a stop where a Border Patrol agent had relied on seemingly innocent factors to justify pulling over a car. (It turned out the driver was, in fact, smuggling marijuana.) Among the reasons the agent cited for making the stop was that the driver slowed down and didn’t make eye contact when he spotted the agent, and that the children in the backseat waved in an odd way. In its decision, the Supreme Court said that border agents could rely on factors–such as the children’s waving, for example–that wouldn’t be suspicious on their own, but that, taken together, could seem suspicious.
“Basically it gives [the agents] a green light to consider whatever they want to consider in making an immigration stop,” said Kevin Johnson of UC Davis School of Law. Because agents have so much room to decide when to make a stop, he said, it looks like agents aren’t using race as a reason to stop people. But really, he thinks it’s just harder to tell what is really motivating a stop.
“The court, by not creating any bright line rules, and by giving great discretion to the Border Patrol officers, has made it increasingly difficult to really make sure and eliminate racial bias from entering into immigration stops.”
All of which is little comfort to Latino citizens like Ismael Ramos, who is still puzzled about why–depending how the law is interpreted–Border Patrol agents can legally consider his ethnicity suspicious.
“I live in a border area, but it is the Canadian border, not the Mexican border,” Ramos said. “So don’t you think, you know, they should try to be looking for some Canadian illegal immigrants?”
Ramos was part of a lawsuit that the American Civil Liberties Union and the Northwest Immigrant Rights Project brought against Border Patrol, accusing them of making unfair stops in Washington’s Olympic Peninsula. Border Patrol denied they’d done anything wrong. But in 2013, as part of a settlement, the agency agreed to share data about its stops in the area. The agency also agreed to provide local agents with a refresher course on the Fourth Amendment.
Meanwhile, though, more and more local police forces across the country have begun doing immigration enforcement, which means more agencies need to figure out what’s legal patrolling and what’s illegal discrimination." - Jude Joffe-Block, Mar. 25, 2014.