case law update

Second Circuit: Avoiding a Checkpoint Is Not Itself Sufficient to Find Reasonable Suspicion but Can Be When Paired with Other Factors

The Second Circuit recently found that while the avoidance of a checkpoint may be considered when determining whether law enforcement had reasonable suspicion, it cannot itself establish reasonable suspicion.

On August 22, 2013, Border Patrol agents set up an immigration checkpoint near the Canadian border. Half a mile from this checkpoint stood a vegetable stand at the crest of a hill where eastbound drivers could first view the checkpoint. Border Patrol Agent David Gottschall parked his marked vehicle between the checkpoint and vegetable stand to monitor traffic.

That morning, Gottschall observed Peter Compton and his brother drive eastbound over the hill, abruptly slow down, and veer into the driveway of the vegetable stand. Gottschall drove to the vegetable stand and parked behind Compton’s vehicle. When Gottschall arrived, Compton and his brother were walking away from the vegetable stand with a pint of peppers.

Gottschall ordered Compton and his brother back into their vehicle, where he began to question them and asked them for identification. As Gottschall went to run checks on the brothers’ identities and license plate, he noticed a blanket in the back of their car that appeared to conceal something. Gottschall then contacted the other Board Patrol agents to bring a canine over. It took less than a minute for the agents to bring over Tiko, a drug sniffing canine.

Tiko alerted the agents to the rear door of Compton’s vehicle. After the agents opened the door, Tiko once again alerted to four duffle bags in the car. The duffle bags contained approximately 145 pounds of marijuana. On October 23, 2013, a grand jury indicted Compton and his brother for conspiracy to possess marijuana with intent to distribute it and possession of marijuana with intent to distribute it.

Compton moved to suppress all evidence obtained during the stop and seizure. Compton contended that the agents lacked reasonable suspicion to detain him and had extended the detention unreasonably. Following an evidentiary hearing, the district court rejected Compton’s arguments. Thereafter, Compton and the government entered into a conditional plea agreement to the possession with intent to distribute charge, reserving his right to appeal. Compton appealed the district court’s decision to the U.S. Court of Appeals for the Second Circuit.

The court of appeals determined that the agents had reasonable suspicion to detain Compton at the vegetable stand because he avoided the checkpoint, the checkpoint was proximately located to the border, and he attempted to conceal that he was avoiding the checkpoint. Under the Fourth Amendment, an officer may conduct a brief investigatory detention so long as he or she has reasonable suspicion “that the person to be detained is committing or has committed a criminal offense.” The suspicion must derive from facts creating rational inferences that provide officers with an objective basis for the suspected wrongdoing. The court determines the reasonableness of the suspicion by considering the totality of the circumstances.

The court of appeals first determined that the district court did not commit clear error in finding that Compton’s vehicle avoided the checkpoint. Gottschall testified that he observed Compton’s vehicle immediately slow down at the crest of the hill – the point where an eastbound driver could first see the checkpoint – and veer abruptly into the vegetable stand. The court of appeals found this evidence sufficient to support the district court’s finding that Compton intentionally evaded the checkpoint when it came into view.

According to the court of appeals, “[a]voidance of a checkpoint alone is probably insufficient to establish reasonable suspicion.” The court explained that motorists could avoid checkpoints for numerous reasons that are unrelated to criminal activity such as inconvenience, delay, stress, or to avoid interacting with officers. Still, the court of appeals, in agreement with its sister circuits, held that evasion remains a factor that can support a finding of reasonable suspicion when combined with “other relevant circumstances.” Therefore, Compton’s avoidance of law enforcement may not have been enough to indicate wrongdoing, but “it is certainly suggestive of such.”

In addition to avoiding the checkpoint, the court of appeals also determined that Compton’s attempt to conceal his avoidance of the checkpoint and the checkpoint’s proximity to the border supported Gottschall’s reasonable suspicion. Gottschall witnessed Compton and his brother abruptly turn into the vegetable stand. The court found that the improbability of a “pepper emergency” occurring immediately upon the appearance of a border checkpoint rendered the ruse more suspicious. Likewise, the checkpoint’s proximity to the border also supported Gottschall’s reasonable suspicion. Because national borders are uniquely involved with criminal activity, including contraband smuggling, the checkpoint’s proximity to the Canadian border was properly considered.

Though the court of appeals determined that Gottschall had reasonable suspicion to justify the stop of Compton at the vegetable stand, it still needed to determine whether Gottschall’s actual conduct stopping Compton was unreasonably extended. After ordering the brothers back into their vehicle, Gottschall saw a blanket that appeared to conceal objects in the back of the bar. It was appropriate for Gottschall to extend the investigation and carry out a dog sniff. Thus, the court of appeals did not find the stop to be an unreasonable extension of time.

Read the full case: United States v. Compton

This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: CBP, reasonable suspicion, Border Patrol, case law update, michael j sgarlat


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