COURT BACKS BORDER PATROL TRAFFIC STOP

Ethnicity Can Be Used As Factor, Divided Panel Rules

SAN FRANCISCO (AP) -- Border Patrol agents can consider ethnicity among
other factors when they make traffic stops, a federal appeals court ruled in
a case involving two Latino men who turned their cars around to avoid a
highway checkpoint.

The ruling comes at a time when the use of a subject's ethnic background as
the basis for traffic stops is receiving increasing attention across the
country.

In a 2-1 ruling, the 9th U.S. Circuit Court of Appeals on Thursday upheld
the detention of two Latino men stopped 50 miles inside the U.S. after they
tried to avoid a highway checkpoint.

The court said it was appropriate that among the things the officers
considered in making the stop was the fact the men turned around and that
they were Hispanic.

Writing for the majority, visiting U.S. District Court Judge Frank C.
Damrell of Fresno pointed out a U.S. Supreme Court decision in a 1975 case,
in which the court listed a number of things the police could consider in
such an instance.

Among them were the character of the area, nearness to the border, traffic
patterns, previous smuggling problems in the area, the officer's experience
and the behavior of the passengers.

In the current case, a motorist advised authorities at a checkpoint that two
cars with Mexican plates had turned around about a mile from the checkpoint.

Officers spotted the cars; they noted the occupants were Latino, that the
cars appeared to be traveling together and that the passenger in one of the
cars began reading a newspaper as they were being followed.

The men, German Espinoza Montero-Camargo and Lorenzo Sanchez-Gillen, were
stopped and asked about their citizenship and why they turned around.

Agents searched both cars and found two large bags of marijuana and a
.32-caliber pistol.

The men were charged; the ruling upheld Montero-Camargo's conditional guilty
plea to conspiracy to possess marijuana with intent to distribute and
Sanchez-Guillen's conviction on the same charge and for being an illegal
alien possessing ammunition.

In the ruling, Damrell, joined by Judge Dairmuid O'Scannlain, said avoiding
the checkpoint wasn't in itself enough to justify the stop. But he said
there were several other reasons, including the two cars traveling together,
the ethnic origin of the men, the agents' prior experience and the past use
of the area as a drug drop-off zone.

In his dissent, Judge Alex Kozinski wrote, "None of the `numerous other
factors' cited by the majority justify the stop in our case." He also cited
a 1994 case in which the same court ruled that reasonable suspicion can't be
based on broad profiles that cast suspicion on entire categories of people.