Because our offices are in Atlanta, our firm primarily handles federal criminal cases in Georgia. However, we also have experience in Florida, as well as Alabama. Two of us have lived and worked in Florida and spent a lot of time driving on I-95, where the events relevant to this case occurred. The majority supports heads-I-win, tails-you-lose government evidence and justifies its decision with facts that, viewed by anyone who has spent any time in Florida, demonstrate racial profiling.
The case is United States v. Bautista-Silva. In March 2008, a Border Patrol agent was parked in a marked car at a rest stop along I-95 in Orlando, Florida, watching the southbound traffic. He saw a Chevy Suburban with California plates with two Hispanic men in the front seat and four more passengers in the back. As it drove past the rest area, it passed a pickup truck pulling a flat trailer. At this point the agent decided that this was an alien smuggling case and took off to catch the SUV. He had to drive 90 miles per hour to catch up. When he finally caught up, the driver slowed down to let him pass. None of the passengers made eye contact, even when the agent waved at them. That is when he pulled them over.
The United States District Court for the Middle District of Florida held that the agent lacked reasonable suspicion to stop the vehicle and granted the defendant’s motion to suppress all statements and evidence obtained as a result of the stop. The Eleventh Circuit Court of Appeals reversed that decision, holding that the agent had acted based upon specific and articulable facts that, under the totality of the circumstances, created a reasonable suspicion of illegal activity. Judge Pryor wrote the majority opinion, joined by Judge Farris from the Ninth Circuit, and Judge Barkett dissented.
The “specific and articulable” facts were:
1. The vehicle was an SUV;
2. The six passengers were Hispanic males;
3. The vehicle was registered in California;
4. They traveled south on I-95;
5. They passed by a pick-up truck pulling a flat trailer;
6. The defendant may have accelerated, then slowed down when the marked car caught up; and 7. The passengers refused to look at the agent.
Judge Pryor ignored the usual rule that appellate courts construe the facts in the light most favorable to the party who prevailed in the court below (in this case, the defendant.) Instead, he focused on the agent’s testimony that smugglers often use large vehicles to transport illegal aliens, California is a known staging area for human smuggling, and the passengers were nervously avoiding his attention. The judge also said that southbound I-95 is a route known to be used by smugglers to transport aliens to South Florida and characterized the defendant’s driving as an attempt to hide behind the flat trailer, then evade the agent by driving erratically.
The district court judge in Florida and Judge Barkett, who has spent most of her life living in Florida, viewed most of the facts as neutral and too commonplace to lend any meaningful weight in a totality of the circumstances analysis. Our firm’s former Florida residents agree. SUVs are too popular, I-95 is too crowded, and tourism is too large a sector of Florida’s economy for those facts to support reasonable suspicion, even when added together. In addition, the District Court found no evidence that smugglers use I-95 disproportionately and there was no evidence that the defendant had even seen the agent’s car when passing the trailer.
And, of course, the occupants were Hispanic. Did I mention this case took place in Florida? According to the U.S. Census Bureau, 20 percent of Florida’s population was of Hispanic or Latino origin in 2007. They were headed toward Miami-Dade County, where 62 percent of the population was of Hispanic or Latino origin in 2007.
In weighing the occupants’ “suspicious” behavior, the Court majority supported the common heads-I-win, tails-you-lose government approach to evidence. The defendant “hid” behind the flat trailer, which, by the way, was not an eighteen-wheeler or other object that could actually hide a Suburban from view. He also “evaded” the agent, staying on the road despite an available exit and driving with the flow of traffic. He drove “erratically” by slowing down when approached by a marked car. The passengers were “nervous” because they didn’t look at the agent (although, in our experience, agents tend to claim that looking at them is suspicious behavior, too.)
The Border Patrol agent saw Hispanic men in an SUV and had a hunch they may be illegal immigrants. Because a hunch isn’t legally sufficient, he had to come up with specific, articulable facts to support his decision to pull them over. We are disappointed that the majority’s zeal for helping the police seems to have led to a ruling that allows law enforcement officials to engage in racial profiling.