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NO. 13-51114
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
RICHARD RYNEARSON,Appellant,
v.
UNITED STATES OF AMERICA, et al,
Appellees.
On Appeal from No. 2:12-CV-24 in the United States District Court for
the Western District of Texas
UNOPPOSED MOTION BY AMICUS CURIAE
TEXAS CIVIL RIGHTS PROJECT
FOR LEAVE TO FILE AMICUS CURIAE BRIEF
IN SUPPORT OF APPELLANT AND URGING REVERSAL
Pursuant to Federal Rule of Civil Procedure 29(b) and Fifth Circuit
Rule 29.1, Amicus Curiae Texas Civil Rights Project (TCRP) files this
unopposed motion for leave to file an amicus curiae brief in this appeal in
support of the Appellant Richard Rynearson. The brief supports reversal of
the district courts order below. The proposed brief is being filed along with
this motion, electronically and in paper form.
Undersigned counsel communicated via email on March 5 and 6,
2014, with Javier Maldonado, counsel for appellant, and with Steve Frank
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and Harold Brown, counsel for appellees, and was informed that none of the
parties oppose the filing of TCRPs amicus curiae brief.
An amicus brief is desirable because this appeal concerns the legality
under the Fourth Amendment of the appellants 34-minute detention at an
immigration checkpoint. TCRP is a non-profit public interest law
organization with a strong interest in ensuring that individuals civil rights
and liberties under the Bill of Rights of the United States Constitution are
not abridged or modified, whether through legislation, improper
enforcement, or judicial action. TCRP has appeared as amicus curiae or
represented individuals in litigation involving privacy rights and Fourth
Amendment rights to be free from illegal search and seizure.
TCRPs amicus brief will outline well-established law relevant to the
disposition of this case, showing that a detainee at an immigration
checkpoint has a Fourth Amendment right to decline to cooperate with
Border Patrol agents or respond to their questions, and that the Fourth
Amendment does not permit a detainee to be penalized for any such
assertion of rights, nor does such assertion of rights justify the extension of a
checkpoint stop beyond the brief and nonintrusive detention contemplated
by United States v. Martinez-Fuerte, 428 U.S. 543, 557-58 (1976).
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Amicus Curiae Texas Civil Rights Project prays that this unopposed
motion for leave to file amicus curiae brief be granted.
March 7, 2014
Respectfully submitted,
s/ Amy C. Eikel_________
Amy C. EikelKING & SPALDING LLP
1100 Louisiana, Suite 4000Houston, Texas 77002
Telephone: 713- 751-3200
Fax: 713-751-3290Email: [email protected]
Attorney for Amicus Curiae
Texas Civil Rights Project
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CERTIFICATE OF INTERESTED PERSONS
No. 13-51114,Rynearson v. United States of America.
The following listed persons and entities, as described in the fourth
sentence of Rule 28.2.1, have an interest in this matter. These
representations are made in order that the judges of this Court may evaluate
possible disqualification or recusal.
Richard Rynearson, plaintiff-appellant
Javier Maldonado, counsel to plaintiff-appellant
Justin K. Lands, defendant-appellee
Raul Perez, defendant-appellee
Harold E. Brown, counsel to defendant-appellees
Steve Frank, counsel to defendant-appellees
Texas Civil Rights Project, amicus curiae (Texas Civil Rights Project is a
not-for-profit corporation with no parent corporation, and there is nopublicly held corporation that owns 10% or more of its stock).
Amy C. Eikel, counsel for amicus curiae Texas Civil Rights Project
s/ Amy C. Eikel_________
Amy C. Eikel, Attorney of Record
for Amicus CuriaeTexas Civil Rights Project
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CERTIFICATE OF SERVICE
I hereby certify that, on March 7, 2014, I served the foregoing motion
upon the following counsel of record by filing a copy of the document with
the Clerk through the Courts electronic docketing system, and by sending
hard copies of the motion via UPS to:
Harold Edwin Brown, Jr.
U.S.ATTORNEYS OFFICE
Western District of Texas601 N.W. Loop 410, Suite 600
San Antonio, TX [email protected]
Steve I. Frank
U.S.DEPARTMENT OF JUSTICECivil Division, Appellate Staff
Room 7245950 Pennsylvania Avenue, N.W.Washington, DC 20530-0001
Javier N. MaldonadoLAW OFFICE OF JAVIERN.MALDONADO,PC
8918 Tesoro Dr., Ste. 575San Antonio, TX 78217
s/ Amy C. Eikel_________
Amy C. Eikel
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NO. 13-51114
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
RICHARD RYNEARSON,
Appellant,
v.
UNITED STATES OF AMERICA, et al,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
DISTRICT COURT NO. 2:12-CV-24
BRIEF FOR AMICUS CURIAETEXAS CIVIL RIGHTS PROJECT
(filed in support of Appellant Richard Rynearson and urging reversal)
Amy C. Eikel(attorney in charge)
Texas Bar No. 00787421KING & SPALDING LLP
1100 Louisiana, Suite 4000Houston, Texas 77002Phone: (713) 751-3200
Fax: (713) 751-3290Email: [email protected]
Attorney for Amicus Curiae Texas Civil Rights Project
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SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES
No. 13-51114,Rynearson v. United States of America.
In compliance with Rule 29.2, the undersigned counsel of record
certifies that, in addition to those persons listed in the parties certificates of
interested persons, the following listed persons and entities as described in
the fourth sentence of Rule 28.2.1 have an interest in this amicus brief.
These representations are made in order that the judges of this Court may
evaluate possible disqualification or recusal.
Amicus Curiae Texas Civil Rights Project
Amicus Curiae Texas Civil Rights Project certifies that it is a not-for-
profit corporation with no parent corporation and that there is no publicly
held corporation that owns 10% or more of its stock.
Counsel for Amicus Curiae Texas Civil Rights Project
Amy C. Eikel
KING &SPALDING LLP1100 Louisiana, Suite 4000
Houston, Texas 77002
s/ Amy C. Eikel_________Amy C. Eikel, Attorney of Recordfor Amicus Curiae
Texas Civil Rights Project
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TABLE OF CONTENTS
SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES ............................ iTABLE OF CONTENTS .......................................................................................... iiTABLE OF AUTHORITIES ................................................................................... iiiSTATEMENT OF INTEREST .................................................................................. 1RULE 29(C)(5) STATEMENT ................................................................................. 1STATEMENT OF THE ISSUES ADDRESSED BY AMICUS CURIAE .............. 2SUMMARY OF THE ARGUMENT ........................................................................ 2ARGUMENT ............................................................................................................. 4I. A checkpoint detainee has a constitutional right to refuse to cooperate
with police inquiries. ....................................................................................... 4II. A Border Patrol officer may not extend the duration of a suspicionless
immigration stop solely because an individual stands on his rights. .............. 9CONCLUSION ........................................................................................................ 20CERTIFICATE OF COMPLIANCE ....................................................................... 21CERTIFICATE OF FILING AND SERVICE ........................................................ 22
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TABLE OF AUTHORITIES
Cases Pages
Berkemer v. McCarty,468 U.S. 420(1984) ................................................................................. 5-8
City of Houston v. Hill,
482 U.S. 451(1987) .................................................................................. 13
City of Indianapolis v. Edmond,
531 U.S. 32(2000) ...................................................................................... 8
Curley v. Klem,499 F.3d 199(3d Cir. 2007) ..................................................................... 13
Davis v. Mississippi,394 U.S. 721(1969) ..................................................................................... 5
Florida v. Bostick,
501 U.S. 429(1991) .................................................................................. 10
Florida v. Royer,
460 U.S. 491(1983) ................................................................................... 11
Illinois v. Wardlow,
528 U.S. 119(2000) .................................................................. 4, 12, 17, 19
Johnson v. Campbell,332 F.3d 199(3d Cir. 2003) ......................................................... 14, 15, 16
Karnes v. Skrutski,62 F.3d 485(3d Cir. 1995) ........................................................... 13, 14, 19
Kolender v. Lawson,461 U.S. 352(1983) ........................................................................ 5, 15, 16
Miranda v. Arizona,
384 U.S. 436(1966) ............................................................................ 6, 7, 8
Terry v. Ohio,392 U.S. 1(1968) ............................................................................... passim
Tom v. Voida,
963 F.2d 952(7th Cir. 1992) .................................................................... 12
United States v. Brignoni-Ponce,422 U.S. 873(1975) .................................................................................... 9
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STATEMENT OF INTEREST
The Texas Civil Rights Project (TCRP) is a non-profit public
interest law organization with a membership base of approximately 3,000
Texans. TCRP has always had a strong interest in ensuring that individuals
civil rights and liberties under the Bill of Rights of the United States
Constitution are not abridged or modified, whether through legislation,
improper enforcement, or judicial action. TCRP has appeared as amicus
curiae or represented individuals in litigation involving privacy rights and
Fourth Amendment rights to be free from illegal search and seizure.
Counsel for all parties have consented to the filing of TCRPs amicus
brief in this appeal.
RULE 29(C)(5) STATEMENT
No counsel for a party authored this brief in whole or in part, and no
such counsel or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than the amicus
curiae, its members or its counsel, made a monetary contribution intended to
fund the preparation or submission of this brief.
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STATEMENT OF ISSUES ADDRESSED BY AMICUS CURIAE
1. Does a detainee at an immigration checkpoint have a FourthAmendment right to decline to cooperate with Border Patrol agents or
respond to their questions?
2. Does the Fourth Amendment permit the Border Patrol to extendthe duration of a suspicionless immigration stop solely because an individual
stands on his rights not to exit the vehicle, roll his window completely down,
produce identification, or answer every question asked? Does such lack of
cooperation, in itself, justify extension of a checkpoint stop beyond the brief
and nonintrusive detention contemplated byMartinez-Fuerte?
SUMMARY OF THE ARGUMENT
The district courts opinion below incorrectly assumed that a traveler
is required, and presumably may be compelled, to answer every question
asked by an officer at a suspicionless checkpoint. In this brief, Amicus
Curiae Texas Civil Rights Project will outline the clearly established law
showing that an individual is under no obligation to respond to law
enforcement officers questions during an investigative stop, and in fact has
a constitutional right to remain silent and decline to cooperate.
The district court also incorrectly assumed that a checkpoint
detainees exercise of his constitutional rights provides a valid reason to
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detain him for a longer period of time, either because his lack of cooperation
raises some kind of suspicion of criminal activity justifying further
detention, or because the detainees exercise of his rights makes him, and
not the government agents, responsible for any increase in the length of the
detention. These conclusions are not supported by the law.
Although a traveler stopped at an immigration checkpoint must stop
when ordered to do so, he has no obligation to affirmatively cooperate with
and actively assist an officers immigration inspection. If a traveler chooses
not to answer some questions, or otherwise chooses to stand on his right not
to cooperate, that partial refusal or lesser level of cooperation does not
justify longer or indefinite detention. Otherwise, any officer at an
immigration checkpoint could theoretically detain a traveler indefinitely
until the officer is subjectively satisfied that the traveler is not violating
immigration laws (or any other laws), and the immigration stop would be
converted into a de facto arrest. The Fourth Amendments tight limitations
on the conduct of government agents at suspicionless checkpoints are not
loosened by a citizens decision to stand on his rights.
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ARGUMENT
I. ACHECKPOINT DETAINEE HAS A CONSTITUTIONAL RIGHT TO REFUSETO COOPERATE WITH POLICE INQUIRIES.
[W]hen an officer, without reasonable suspicion or probable cause,
approaches an individual, the individual has the right to ignore the police
and go about his business. And any refusal to cooperate, without more, does
not furnish the minimal level of objective justification needed for a detention
or seizure. Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (citations and
internal quotation marks omitted). An individual normally has the right to
go about his business or to stay put and remain silent in the face of police
questioning.Id.
During an investigatory detention governed by Terry v. Ohio, 392
U.S. 1 (1968) and its progeny,1 a law enforcement officer may ask the
detainee a moderate number of questions to determine his identity and to try
to obtain information confirming or dispelling the officers suspicions. But
1Although an immigration checkpoint stop does not require reasonable suspicion
at its inception, Terry and its progeny have been used to evaluate whether
checkpoint stops are lawful in scope and duration. See United States v. Ellis, 330
F.3d 677, 679-80 (5th Cir. 2003) (noting that the Fifth Circuit delineated thebounds of immigration stops by applying our long-standing jurisprudence
regarding stops based on reasonable suspicionso-called Terry stopsto
programmatic immigration stops.); see also United States v. Martinez-Fuerte,
428 U.S. 543, 557-62(1976) (relying on Terry to set appropriate limitations on
the scope of the stop, limitations that provide the principal protection of Fourth
Amendment rights at checkpoints).
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the detainee is not obliged to respond. And, unless the detainees answers
provide the officer with probable cause to arrest him, he must then be
released. Berkemer v. McCarty, 468 U.S. 420, 437-40 (1984) (emphasis
added); see also Terry v. Ohio, 392 U.S. 1, 34(1968) (White, J., concurring)
(observing that in an investigatory detention, the person stopped is not
obliged to answer, answers may not be compelled, and refusal to answer
furnishes no basis for an arrest) (emphasis added).
It is a settled principle that while police have the right to request
citizens to answer voluntarily questions concerning unsolved crimes they
have no right to compel them to answer. Kolender v. Lawson, 461 U.S.
352, 360& n.9 (1983) (quotingDavis w. Mississippi, 394 U.S. 721, 727n.6
(1969)) (emphasis added). The Supreme Court held in Kolender that to the
extent that state law criminalizes a suspects failure to answer . . . questions
put to him by police officers, Fifth Amendment concerns are implicated.
Kolender, 461 U.S. at 727n.6.2
2Hiibel v. Sixth Judicial District Court, 542 U.S. 177(2004), did not hold to the
contrary. Hiibel merely upheld a narrow state statute allowing arrest for asuspects failure to identify himself when validly stopped for reasonable
suspicion of a crime, and when the request for identification was reasonably
related to the circumstances justifying the stop.Hiibel, 542 U.S. at 187-88.Hiibel
acknowledged, but factually distinguished, language in the majority opinion in
Berkemer and the concurrence in Terry that a suspect detained during a Terry
stop is not obliged to respond to questions. Hiibel, 542 U.S. at 187. Because the
Nevada statute only required a suspect to identify himself, and expressly did not
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Although the Constitution does not forbid law enforcement officers
from asking questions during a traffic stop if the detention is not lengthened
thereby, detainees are under no obligation to answer the questions.
United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) (emphasis
added); see also United States v. Everett, 601 F.3d 484, 496(6th Cir. 2010)
(the rule that extraneous questions during a Terry stop are permissible, in
the absence of prolongation of the detention, is premised upon the
assumption that the motorists responses are voluntary and not coerced.).
Indeed, a detainees constitutional right not to answer police questions
is inherent in the nature of a Terry-type investigatory detention. The
Supreme Court relied on this idea in Berkemer, when it held that a vehicle
stop detainee is not in custody for the purposes ofMiranda v. Arizona, 384
U.S. 436 (1966), and that therefore an officer is not required to read the
suspect his Miranda rights during a traffic stop. The Courts holding was
explicitly based on the premise that traffic stops, like traditional Terry stops,
are nonthreatening and noncoercive because the detainee is not
required to respond to the officers questions:
require the suspect to answer any other inquiry, the Hiibel majority concluded
thatBerkemer and Terry were not controlling on the narrow issue of whether a
State can compel a suspect to disclose his name during a Terry stop. Id.at 187.
Because Mr. Rynearson did identify himself,Hiibel is not at issue here.
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Two features of an ordinary traffic stop mitigate the danger thata person questioned will be induced to speak where he would
not otherwise do so freely, [as contemplated by Miranda v.
Arizona]. First, detention of a motorist pursuant to a traffic stop
is presumptively temporary and brief. The vast majority ofroadside detentions last only a few minutes. . . . Second,
circumstances associated with the typical traffic stop are notsuch that the motorist feels completely at the mercy of the
police. To be sure, the aura of authority surrounding an armed,uniformed officer and the knowledge that the officer has some
discretion in deciding whether to issue a citation, incombination, exert some pressure on the detainee to respond toquestions. But other aspects of the situation substantially offset
these forces. . . . In both of these respects, the usual traffic stop
is more analogous to a so-called Terry stop, . . . than to aformal arrest. . . . Under the Fourth Amendment, we have held,a policeman who lacks probable cause but whose observations
lead him reasonably to suspect that a particular person hascommitted, is committing, or is about to commit a crime, may
detain that person briefly in order to investigate thecircumstances that provoke suspicion. . . . Typically, this means
that the officer may ask the detainee a moderate number ofquestions to determine his identity and to try to obtain
information confirming or dispelling the officers suspicions.
But the detainee is not obliged to respond. And, unless the
detainees answers provide the officer with probable causeto arrest him, he must then be released. The comparativelynonthreatening character of detentions of this sort explains theabsence of any suggestion in our opinions that Terrystops are
subject to the dictates of Miranda. The similarly noncoerciveaspect of ordinary traffic stops prompts us to hold that persons
temporarily detained pursuant to such stops are not in custodyfor the purposes ofMiranda.
Berkemer v. McCarty, 468 U.S. 420, 437-40(1984) (citations and internal
quotation marks omitted; emphasis added). Under this reasoning, if a Terry
detainee were able to be compelled to respond to questions, he should not be
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interrogated without being read hisMiranda rights. See Berkemer, 468 U.S.
at 434(as opposed to a traffic stop detainee, a person subjected to custodial
interrogation is entitled to the benefit of the procedural safeguards
enunciated inMiranda).
Justice Brennan similarly explained the nature of a Terry stop in his
concurring opinion in United States v. Place, noting that Terrys relaxation
of the probable cause standard is justified only by the requirements that an
investigatory stop be brief, minimally intrusive, and not coercive.
It is clear that Terry, and the cases that followed it, permit only
brief investigative stops and extremely limited searches based
on reasonable suspicion. They do not provide the police with acommission to employ whatever investigative techniques they
deem appropriate. . . . Anything more than a brief stop must bebased on consent or probable cause. During the course of thisstop, the suspect must not be moved or asked to move more
than a short distance; physical searches are permitted only tothe extent necessary to protect the police officers involved
during the encounter; and, most importantly, the suspect
must be free to leave after a short time and to decline toanswer the questions put to him.
United States v. Place, 462 U.S. 696, 714-15 (1983) (Brennan, J.,
concurring) (internal citations and quotation marks omitted).
Immigration checkpoint stops are arguably even more limited than
Terry stops, given that they are made with no suspicion at all. See City of
Indianapolis v. Edmond, 531 U.S. 32, 39 (2000) (noting that
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constitutionality of suspicionless immigration checkpoints is justified by
the relatively modest degree of intrusion entailed by the stops).
The principal protection of Fourth Amendment rights at checkpoints
lies in appropriate limitations on the scope of the stop. United States v.
Martinez-Fuerte, 428 U.S. 543, 557-58(1976) (citing Terry, 392 U.S. at 24-
27; United States v. Brignoni-Ponce, 422 U.S. 873, 881-82(1975)).
Therefore, given the established law to the contrary, the district court
erred in assuming (ROA.486) that a checkpoint detainee is required or
expected to respond to all questions from a Border Patrol officer. Instead,
the checkpoint detainee, like any person stopped under Terry, has a well-
established constitutional right not to respond or cooperate.
II. ABORDER PATROL OFFICER MAY NOT EXTEND THE DURATION OF ASUSPICIONLESS IMMIGRATION STOP SOLELY BECAUSE AN INDIVIDUAL
STANDS ON HIS RIGHTS.
As stated above, a traveler stopped at an immigration checkpoint may
not be required or compelled to cooperate or respond to all of the officers
questions, either by being arrested for failing to respond, or by having his
detention extended until he does respond.
We have consistently held that a refusal to cooperate, without more,
does not furnish the minimal level of objective justification needed for a
detention or seizure, and an individual may decline an officer's request
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without fearing prosecution. Florida v. Bostick, 501 U.S. 429, 435-37
(1991). It would make a mockery of the reasonable suspicion and probable
cause requirements . . . if citizens insistence that searches and seizures be
conducted in conformity with constitutional norms could create the
suspicion or cause that renders their consent unnecessary. United States v.
Machuca-Barrera 261 F.3d 425, 435n.32 (5th Cir. 2001) (quoting United
States v. Hunnicutt, 135 F.3d 1345, 135051 (10th Cir. 1998)).
If ones refusal to cooperate with law enforcement were enough to
justify prolonged detention . . . the strictures of the Fourth Amendment,
would mean little to nothing. United States v. Charrington, 285 F. Supp. 2d
1063, 1069(S.D. Ohio 2003) (holding that prolonged detention of defendant
at military checkpoint violated the Fourth Amendment and that failure to
cooperate did not justify further detention absent probable cause of a
crime); see also United States v. Massenburg, 654 F.3d 480, 491 (4th Cir.
2011) (no reasonable suspicion was raised from defendants refusal to
consent to a search and avoidance of eye contact, which is simply a mild
reaction to repeated requests to relinquish ones constitutional right to be
free from unreasonable searches). If refusal of consent were a basis for
reasonable suspicion, nothing would be left of Fourth Amendment
protections. United States v. Santos, 403 F.3d 1120, 1126(10th Cir. 2005).
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Thus, although a traveler stopped at an immigration checkpoint must
stop when ordered to do so, he has no obligation to affirmatively cooperate
with and actively assist an officers immigration inspection. If a traveler
chooses not to answer some questions (or otherwise chooses to stand on his
rights by verbally challenging the officers legal authority to detain him, or
declines, for example, to get out of the car, roll his window fully down, or
volunteer information or documents he has not yet been asked for), that
partial refusal or lesser level of cooperation does not justify indefinite
detention until all questions (whether related to immigration or not) are
answered to the officers satisfaction. If that were true, an officer at an
immigration checkpoint could theoretically detain a traveler indefinitely
until the officer is subjectively satisfied that the traveler is not violating
immigration laws (or any other laws), and the immigration stop would be
converted into a de facto arrest. See United States v. Sharpe, 470 U.S. 675,
685 (1985) (Obviously, if an investigative stop continues indefinitely, at
some point it can no longer be justified as an investigative stop.); Florida v.
Royer, 460 U.S. 491, 499 (1983) (In the name of investigating a person
who is no more than suspected of criminal activity, the police may not . . .
seek to verify their suspicions by means that approach the conditions of
arrest). The Terry stop is a far more minimal intrusion [than an arrest on
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standard for searches and seizures. (ROA.471, 485-86). When Mr.
Rynearson declined to step out of the car or roll down his window, and other
agents pointed out the video cameras attached to the car, the agent stated that
they would do this the hard way. (ROA.471). But Mr. Rynearsons
exercise of his constitutional rights is an invalid reason to extend his
detention or otherwise penalize him. See City of Houston v. Hill, 482 U.S.
451, 462-63 (1987) (The freedom of individuals verbally to oppose or
challenge police action without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a police state.);
cf. Brigoni-Ponce, 422 U.S. at 889(Douglas, J., concurring) (criticizing the
potential abusive use of reasonable suspicion against a multitude of law-
abiding citizens, whose only transgression may be a nonconformist
appearance or attitude).
The Third Circuit held that a traffic detainees refusal to cooperate,
refusal to consent to a search, being argumentative and difficult, and
challenging the officers authority, did not justify prolonging the traffic stop
to an excessive length. See Karnes v. Skrutski, 62 F.3d 485, 495-97(3d Cir.
1995), overruled in part on other grounds by Curley v. Klem, 499 F.3d 199,
209-11(3d Cir. 2007). Karnes right to refuse to consent falls within the
Fourth Amendments core protection against unreasonable searches and
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seizures. Karnes exercise of that right cannot be penalized . . . even if . . .
Karnes became argumentative and difficult. Karnes, 62 F.3d at 495-96. The
officers argued that any additional delay was attributable to Karnes because
he asked the troopers questions, argued with them, challenged their
procedures, and insisted on explanations as to their actions.Id. at 497. But
the court held that the delayed detention was the result primarily of the
defendants dilatory investigation, not the plaintiffs questioning, and that
the officers argument about delay shows a misunderstanding about the
purposes of the Fourth Amendment.Id.
Karnes does not bear the burden of justifying his refusal toallow police to invade his privacy; it is rather the government
official who must meet the constitutional requirements beforehe can encroach upon an individuals privacy. The district
courts grant of qualified immunity to defendants on the length
of detention issue was improper.
Karnes, 62 F.3d at 497.
The district court also faults Mr. Rynearson for refusing at one point
to lower his car window. (ROA.485-86). This behavior was labeled
abnormal, evasive, and atypical of a United States citizen. (ROA.471,
487). But a refusal to cooperate by rolling down a car window, even an ill-
mannered refusal, is within the rights of a Terry detainee and does not
constitute reasonable suspicion of criminal activity. See Johnson v.
Campbell, 332 F.3d 199, 208-10 (3d Cir. 2003) (holding that defendants
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initial hostile response to [the officers] request to roll down the window,
questioning of the officers motives, and demand to know why he was
stopped did not justify detention or arrest). [T]he only evasive action
Johnson took was his initial refusal to roll down his window. . . . [T]his kind
of refusal to comply . . . was perfectly within Johnsons rights; it cannot
provide cause for a reasonable suspicion of wrongdoing.Id. at 210.
Absent probable cause to arrest, a detainees refusal to cooperate or
answer questions cannot be a basis for extending the duration of a Terry stop
or other investigative detention. Justice Brennan explained that law
enforcement officers may not prolong a Terrystop to compel a detainee to
answer questions; rather, the suspect must be free to leave after a short time
and to decline to answer the questions put to him. Kolender, 461 U.S. at
364-65 (Brennan, J., concurring). Failure to observe these limitations
converts a Terry encounter into the sort of detention that can be justified
only by probable cause to believe that a crime has been committed.
The power to arrestor otherwise to prolong a seizure until a
suspect had responded to the satisfaction of the policeofficerswould undoubtedly elicit cooperation from a high
percentage of even those very few individuals not sufficientlycoerced by a show of authority, brief physical detention, and a
frisk. . . . But the balance struck by the Fourth Amendment . . .
forbids such expansion. . . . [P]robable cause, and nothing
less, represents the point at which the interests of lawenforcement justify subjecting an individual to any
significant intrusion beyond that sanctioned in Terry, including
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either arrest or the need to answer questions that the
individual does not want to answer in order to avoid arrestor end a detention.
Kolender, 461 U.S. at 365, 369 n.7 (Brennan, J., concurring) (emphasis
added). The Kolender majority was also troubled by the constitutional
implications of the identification statute in that case, which could require a
Terrydetainee, under threat of arrest, to answer a series of questions until
the officer is satisfied that the identification is reliable. Kolender, 461 U.S.
at 359 (invalidating statute as unconstitutionally vague; noting Fifth
Amendment concerns but declining to reach Fourth Amendment issue).
Thus, any of a detainees constitutionally protected behavior that
could be considered lack of cooperation, in itself, cannot justify extending
the duration of a checkpoint detention, because such an assertion of rights
does not raise reasonable suspicion of criminal activity that would justify
further detention. See United States v. Johnson, 620 F.3d 685, 694(6th Cir.
2010) (We seriously doubt the wisdom of labeling reasonably suspicious
the proper exercise of ones constitutional rights.).
In addition, a travelers exercise of his rights does not justify a
determination that any delay or lengthening of the duration of the detention
is the travelers fault regardless of the officers diligence in conducting
their immigration inspection. The district courts reliance on United States v.
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Sharpe, 470 U.S. 675(1985), on this point is misplaced, and does not justify
blaming the extended detention on Mr. Rynearson. (ROA.486). The
Supreme Court in Sharpe held that an extended Terry detention was justified
because there was no evidence that the officers were dilatory in their
investigation and any delay in the case was attributable almost entirely to
the evasive actions of Savage, who sought to elude the police as Sharpe
moved his Pontiac to the side of the road. Id. at 687-88.
Sharpe thus did not present a case of a detainee who asserted his
constitutional rights not to cooperate or answer questions, but involved a
suspect who fled recklessly when signaled to pull over, which in itself
provides reasonable suspicion of criminal activity.3See Sharpe, 470 U.S. at
678, 688n.6 (after police officers signaled both vehicles to stop, the pickup
truck cut between the Pontiac and Thrashers patrol car, nearly hitting the
patrol car, and continued down the highway, requiring the officers to split
up and lose contact with each other).
Thus Sharpe does not control here. If any level of lack of
cooperation or verbal opposition could justify an extended detention, only
3 See, e.g., United States v. Brigoni-Ponce, 422 U.S. 873, 885 (1975) (erratic
driving or obvious attempts to evade officers can support a reasonable suspicion
to stop a vehicle); Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (Headlong
flight is the consummate act of evasion and can be the basis of reasonable
suspicion).
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travelers who are fully compliant and cooperative and answer all questions
would be allowed to have the benefit of the constitutional requirement that
immigration checkpoint stops consist of only a brief question or two. See
United States v. Portillo-Aguirre, 311 F.3d 647, 652(5th Cir. 2002) (holding
that because the principal protection of Fourth Amendment interests at
checkpoints lies in appropriate limitations on the scope of the stop . . . any
further detention beyond a brief question or two or a request for documents
evidencing a right to be in the United States must be based on consent or
probable cause.). But the Fourth Amendment does not protect only meek
and compliant citizens.
This Circuit has recognized that a detention may be of excessively
long duration even though the officers have not completed and continue to
pursue investigation of the matters justifying its initiation. United States v.
Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) A prolonged investigative
detention may be tantamount to a de facto arrest, a more intrusive custodial
state which must be based on probable cause rather than mere reasonable
suspicion.Id.
In sum, the Fourth Amendments tight limitations on the conduct of
government agents at suspicionless checkpoints are not loosened by a
citizens decision to stand on his rights. The permissible duration of an
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immigration checkpoint stop is the time reasonably necessary to determine
the citizenship status of the persons stopped. This duration is brief. United
States v. Garcia-Garcia, 319 F.3d 726, 729 (5th Cir. 2003) (citations
omitted). Any further detention beyond a brief question or two or a request
for documents evidencing a right to be in the United States must be based on
consent or probable cause.Id. During the brief permissible duration of an
investigatory stop, [i]f the officer does not learn facts rising to the level of
probable cause, the individual must be allowed to go on his way. Wardlow,
528 U.S. at 126.
Delay and the extension of the length of a detention due to the officers
pushing back against a detainees exercise of his constitutional rights are to
be laid at the feet of the government, not the detainee. See Charrington, 285
F. Supp. 2d at 1069 (If ones refusal to cooperate with law enforcement
were enough to justify prolonged detention . . . the strictures of the Fourth
Amendment, would mean little to nothing.). Mr. Rynearson does not bear
the burden of justifying his refusal to allow police to invade his privacy; it is
rather the government official who must meet the constitutional
requirements before he can encroach upon an individuals privacy. Karnes,
62 F.3d at 497.
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CONCLUSION
For the reasons stated above, Amicus Curiae Texas Civil Rights
Project urges this Court to recognize the well-established law that a detainee
at an immigration checkpoint has a Fourth Amendment right to decline to
cooperate with Border Patrol agents or respond to their questions, and that
the Fourth Amendment does not permit a detainee to be penalized for any
such assertion of rights, nor does such assertion of rights justify the
extension of a checkpoint stop beyond the brief and nonintrusive detention
contemplated byMartinez-Fuerte. Amicus Curiae Texas Civil Rights Project
prays that the judgment of the district court be reversed.
March 7, 2014
Respectfully submitted,
s/ Amy C. Eikel_________
Amy C. EikelKING & SPALDING LLP
1100 Louisiana, Suite 4000
Houston, Texas 77002
Telephone: 713- 751-3200Fax: 713-751-3290
Email: [email protected]
Attorney for Amicus Curiae
Texas Civil Rights Project
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CERTIFICATE OF COMPLIANCE
The foregoing brief is in 14-point Times New Roman proportional
font with footnotes in 13-point Times New Roman proportional font, and
contains fewer than 7,000 words, and thus complies with the type-volume
limitation of Rules 32(a)(7)(B) and 29(d).
s/ Amy C. Eikel_________Amy C. Eikel
March 7, 2014
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CERTIFICATE OF SERVICE
I hereby certify that, on March 7, 2014, I served the foregoing brief
upon the following counsel of record by filing a copy of the document with
the Clerk through the Courts electronic docketing system, and by sending
hard copies of the brief via UPS to:
Harold Edwin Brown, Jr.
U.S.ATTORNEYS OFFICE
Western District of Texas601 N.W. Loop 410, Suite 600
San Antonio, TX [email protected]
Steve I. Frank
U.S.DEPARTMENT OF JUSTICECivil Division, Appellate Staff
Room 7245950 Pennsylvania Avenue, N.W.Washington, DC 20530-0001
Javier N. MaldonadoLAW OFFICE OF JAVIERN.MALDONADO,PC
8918 Tesoro Dr., Ste. 575San Antonio, TX 78217
s/ Amy C. Eikel_________Amy C. Eikel
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