Good posture while driving can contribute to reasonable suspicion that
a driver is smuggling illegal aliens, federal appeals court finds.
Law Offices of Tim Powers
Driving with good posture, with hands at the classic ten and two position
on the wheel, is sufficient reason to pull over a driver with a bad complexion,
according to a ruling handed down Thursday by the Tenth Circuit US Court
of Appeals. A unanimous three-judge panel approved the Border Patrol’s
April 18, 2012 stop and search of a motorist who happened to be nervous
when pulled over.
Border Patrol Agent Joshua Semmerling saw the white Ford F-150 pickup truck
being driven in the opposite direction on Highway 80 in New Mexico, about
40 miles from the border with Mexico. It was 7:45pm, a time the Border
Patrol agent found suspicious. The truck had an Arizona plate on the back
and tinted windows, but its driver, Cindy Lee Westhoven, violated no traffic
laws. Instead, Agent Semmerling noted she had "stiff posture"
and hands "at a ten-and-two position on the steering wheel"
so he decided to do a U-turn and pursue.
A registration check showed the truck was registered to a Lawrence Westhoven
in Tucson, which suggested to the officer that Westhoven was either smuggling
illegal aliens or drugs. He hit his emergency lights and forced her to
pull over. Agent Semmerling testified that he believed Westhoven must
have been a methamphetamine addict after he noticed she had acne. Agent
Semmerling ran Westhoven’s license, and it came back with no warrants,
but he continued the stop.
"I thought you were going to let me go," Westhoven told the Border
Patrol agent. "Do you think I’m hauling illegal aliens?"
The agent asked to search the vehicle, but she refused to give him permission.
Westhoven was ordered out of the truck so a drug dog could sniff it. She
was told she was not under arrest but that she was being detained. Twenty
minutes into the stop the drug dog arrived and alerted, revealing marijuana.
Westoven’s lawyer pointed out that the federal agent’s story
"Agent Semmerling contends that he noticed in passing the vehicle
that it had an Arizona license plate," attorney Bernadette Sedillo
told the district court. "The F-150 does not have a front license
plate so Agent Semmerling would have had to observe the rear license plate
in the rear view mirror traveling the speed limit of 60 miles per hour."
Sedillo added that there was no reason to continue the stop after Westhoven
provided her license, which proved she was a US citizen. The appellate
panel was not convinced, finding the totality of circumstances suggested
that Westhoven was transporting illegal aliens over the border.
"Driving stiffly, having tinted windows, slowing down when seeing
law enforcement, and driving in an out-of-the-way area may be innocent
conduct by themselves," Judge Scott M. Matheson, Jr wrote for the
appellate panel. "But when taken together along with driving a vehicle
with out-of-state plates in a mountainous smuggling corridor 40-45 miles
away from the border, we conclude Agent Semmerling had reasonable suspicion
Ms. Westhoven was involved in smuggling activity."
The appellate court rejected Westhoven’s motion to suppress the evidence.
A copy of the decision is available in a 150k PDF file at the source link below.
US v. Westhoven (US Court of Appeals, Tenth Circuit, 4/24/2014)