Academic journal article Houston Journal of International Law

Driving While Mexican: Why the Supreme Court Must Reexamine United States V. Brignoni-Ponce, 422 U.S. 873 (1975)

Academic journal article Houston Journal of International Law

Driving While Mexican: Why the Supreme Court Must Reexamine United States V. Brignoni-Ponce, 422 U.S. 873 (1975)

Article excerpt


In recent years, Congress and the Immigration and Naturalization Service of the Department of Justice have made prosecution of illegal aliens and immigration offenses in the southwestern United States a top priority.(1) Since 1994, there has been nearly a 100 percent increase in the number of Border Patrol agents manning the Mexican border.(2) Roving border patrols--Border Patrol agents in marked Border Patrol vehicles--roam the roadways of the Southwestern United States stopping vehicles that the agents suspect contain illegal aliens.(3)

However, the states along the Mexican border--Arizona, California, New Mexico, and Texas--also have a high percentage of law-abiding Hispanic citizens,(4) and roving border patrols routinely stop them for no other reason than the fact that they are Hispanic.(5) The problem affects all Hispanics, regardless of socio-economic status. There have been several incidents of federal and state judges, as well as elected officials, being stopped because of their race or ancestry.(6) Indeed, the Honorable Filemon Vela, a federal district judge from the Southern District of Texas, was stopped when he and three aides drove on a south Texas highway because of, according to the Border Patrol agent, the number of passengers in the car.(7) On August 13, 2000, the Border Patrol again stopped Judge Vela's vehicle on the same road because of the vehicle's tinted windows.(8) This time there was only one passenger--a federal prosecutor.(9) Civil rights groups and public officials complain that the Border Patrol stops law-abiding citizens without legal justification.(10) The problem is so pervasive that some call it "driving while Mexican."(11)

Part II of this article summarizes the Supreme Court precedent on roving border patrol stops. Part III reviews the facts and holding of United States v. Chavez-Chavez, a recent Fifth Circuit roving border patrol case.(12) Using Chavez-Chavez as an example, Parts IV, V, and VI explain how the circuits along the Mexican border--the Fifth and Ninth Circuits, and to a lesser extent, the Tenth Circuit(13)--have applied Supreme Court precedent, regarding distance from the border, race, and the type of vehicle. Finally, Part VII concludes that the Supreme Court should reevaluate its prior roving border patrol jurisprudence, given the changed demographics of the southwestern United States.


In 1975, the United States Supreme Court in United States v. Brignoni-Ponce held that a roving border patrol may stop vehicles "if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country."(14) However, the Border Patrol agents can only question the driver and passengers about their citizenship and immigration status, or any suspicious circumstances; anything else requires consent or probable cause.(15)

The Court recognized several factors that may support an agent's reasonable suspicion: (1) characteristics of the area; (2) proximity to the border; (3) usual traffic patterns; (4) the agent's previous experience with alien traffic; (5) information about recent illegal border crossings in the area; (6) driver's behavior, such as erratic driving or obvious attempts to evade the agent; (7) aspects of the vehicle, such as that it is heavily loaded, has an extraordinary number of passengers, or that the agent observes its occupants attempting to hide; and (8) characteristics of passengers that indicate that they do not live in the United States, such as dress mode and-haircut.(16) Each case must be evaluated on the "totality of the particular circumstances."(17) The Supreme Court held that the roving border patrol stop in Brignoni-Ponce violated the Fourth Amendment because the stop was based on nothing more than the apparent Mexican ancestry of the vehicle's occupants. …

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