BORDER CASE TESTS FOURTH AMENDMENT

Supreme Court To Hear Appeal On 'Reasonable'

A U.S. Border Patrol search that led to an arrest of a Douglas driver on
marijuana charges will go before the U.S. Supreme Court this week in what
could be a historic test of the Fourth Amendment.

Laurence Benner, a professor of criminal law at the California Western
School of Law's Institute for Criminal Defense Advocacy, said the case "is
going to be the bellwether of liberty in this changed society we now live
in after Sept 11."

Benner said the case asks the high court to determine what is "reasonable"
in determining "reasonable suspicion" when law enforcement officers stop
and question drivers. The high court's ruling could signal how far it is
willing to expand police powers in the wake of the Sept. 11 terrorist
attacks on America, Benner said.

"It will signal whether the Supreme Court will give a green light to law
enforcement that virtually anything can constitute reasonable suspicion, or
whether they're going to reaffirm that the Fourth Amendment's
reasonableness requirement still has some meaning," he said.

The Supreme Court is scheduled to hear arguments in the case Tuesday.

The case involves Ralph R. Arvizu, who was stopped Jan. 19, 1998, while
driving a minivan along Leslie Canyon Road, a dirt road about 30 miles
north of the border, with his sister and her three young children.

U.S. Border Patrol agent Clinton Stoddard, who was patrolling back roads
used to circumvent the agency's immigration checkpoint on Highway 191,
became suspicious of Arvizu, followed him and stopped him for questioning.

A subsequent search of the van, conducted allegedly with Arvizu's consent,
turned up 123 pounds of marijuana in a duffel bag on the van floor.

A first-time offender, Arvizu pleaded guilty to possession and
transportation of marijuana after a U.S. District Court judge in Tucson
rejected a motion to suppress the evidence.

Federal public defender Victoria Brambl of Tucson argued that Stoddard
violated Arvizu's Fourth Amendment right against unreasonable search and
seizure because he lacked reasonable suspicion to stop the minivan.

Arvizu served 10 months in a halfway house and nearly two years of a
three-year probation imposed by the judge.

In December, the 9th Circuit Court of Appeals reversed the lower court,
concluding that it relied on seven factors that were "neither relevant nor
appropriate to a reasonable suspicion analysis in the case."

Those factors included Arvizu's dramatic slowing of the minivan after
spotting the agent; his failure to acknowledge the agent; odd waving by the
children in the vehicle; past drug seizures involving minivans; the agent's
inability to recognize the driver and vehicle; the vehicle's registration
at an address in an area notorious for smuggling; and the agent's judgment
that it appeared there was cargo on the floor of the minivan.

Arizona State University law professor Ralph Spritzer said national
concerns about terrorism and security may factor into the court's decision.

But for more than 30 years, long before the war on terrorism, the Supreme
Court has consistently held that reasonableness is "a common- sense
judgment based on all the facts and circumstances. And that police officers
who are trained observers should be given latitude in making that
judgment," Spritzer said.

Brambl, who has represented Arvizu since his arrest, has acknowledged that
marijuana was found in the minivan Arvizu was driving. But she said the
case is about the principles embodied in the Fourth Amendment that ensure
the "right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures."

"Once those rights start being infringed, it affects all of us," she said. .

The Arizona District of the U.S. Attorney's Office requested the high
court's review of Arvizu's case. Mike Johns, spokesman for the U.S.
Attorney's Office in Phoenix, would not comment on the hearing.

In a brief filed with the Supreme Court in July, the federal government
asked for a reversal of the appeals court decision, arguing that reasonable
suspicion cannot be expressed in a "neat set of rules." The brief states
that even conduct that is ambiguous or seemingly innocent, when viewed in
isolation, "can nevertheless support reasonable suspicion."

The government goes on to argue that efforts to establish rules would
create a confusing jumble of circumstances, too many for an officer to
consider when making "a split-second decision whether to stop an individual
for questioning."