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Accusing the rest of the court of ignoring the Supreme Court’s reaction to a similar decision, six 9th U.S. Circuit Court of Appeals judges dissented Thursday from a failed vote to rehear a border search case. The two Democrat- and four Republican-appointed judges essentially accused the court of leaving in place an opinion that follows search and seizure guidelines unanimously overturned earlier this year by the nation’s highest court. “Here we go again,” began Judge Andrew Kleinfeld, writing for the dissenters. He was joined by Judges Alex Kozinski, Diarmuid O’Scannlain, Thomas Nelson, Ronald Gould and Richard Tallman. With a 9-0 vote in January, the Supreme Court overturned the 9th Circuit in United States v. Arvizu, 122 S.Ct. 744. In that case, the 9th Circuit overturned a border-related conviction by peeling away some of the factors that led to an agent’s decision to stop a driver who turned out to be smuggling more than 100 pounds of marijuana. The 9th Circuit examined each factor individually and rejected several, holding that, in isolation, they constituted neither illegal nor even suspicious behavior. The Supreme Court overturned, reinforcing a rule that the “totality of the circumstances” must be weighed. Kleinfeld said in United States v. Sigmond-Ballesteros, 02 C.D.O.S. 10603, that the panel is again second-guessing the individual factors contributing to law enforcement’s judgment calls. He also suggested that the case would weaken the government’s ability to keep a terrorist out of the country. “So long as he didn’t violate the law, he’d be fine,” Kleinfeld wrote. “I suppose he could have bumper stickers on his car proclaiming ‘Jihad!’ with a picture of the destruction of the World Trade Center, and since the bumper sticker would be constitutionally protected and perfectly lawful speech, it couldn’t be considered as adding significantly to the totality of the circumstances.” Furthermore, Kleinfeld and the five other judges defended the use of profiles by law enforcement agencies. “What’s the matter with a tried-and-true, reasonably reliable profile?” Kleinfeld wrote. “A profile is a checklist, nothing more. Pilots use checklists, people packing for a trip use checklists, people going to the grocery store use checklists, so why not Border Patrol Agents?” Ivan Sigmond-Ballesteros was arrested after an agent found “approximately” 18 illegal immigrants stuffed into the space where the backseat of his truck should have been. The agent testified that he was suspicious of Sigmond-Ballesteros due to a number of factors. It was 4:20 a.m., a time when a border checkpoint was likely to be closed. While driving, the defendant twice attempted to obscure his face with his hand, though the original panel noted that in both instances a light had been shined directly into his face. His truck swerved from the fast lane into the slow lane after the agent approached to within a few car lengths at a high rate of speed. The road was also well-known for smuggling. The agent also noticed that the backseat of the crew-cab truck was missing, and said Sigmond-Ballesteros eventually pulled over to the shoulder and then to a small dirt road when the agent came up alongside him. Writing for a unanimous panel before the Supreme Court overturned Arvizu, Judge A. Wallace Tashima examined the factors and rejected some of them as not being indicative of criminal activity. He noted, for example, that Sigmond-Ballesteros’ driving pattern followed California Department of Motor Vehicles recommendations. “Certainly, an agent cannot create a situation which amounts to a dangerous driving condition, observe the driver react appropriately, and then base reasonable suspicion on the reaction because it somewhat comports with ‘suspicious behavior.’ To do so would give police officers across this circuit carte blanche to harass any driver,” Tashima wrote. But Tashima did appear to peel away several of the factors the agent said contributed to the traffic stop. The opinion also cited the overturned Arvizu no less than a dozen times. “Here, taking all of the allowable factors into consideration — and excluding Defendant’s appropriate reactions to Agent [James] Wright’s provocative and unsafe driving behavior and use of his lights — we are left with the following picture: A man driving a large pick up truck northbound on Highway 86 at 4:20 in the morning,” Tashima wrote. After pasting the panel’s reasoning, Kleinfeld’s concluding mentions of jihads and terrorism may be bait for the Supreme Court. Despite the tongue-in-cheek hypothetical, the judge did soberly end his dissent by saying the case was “dangerous and contrary to established law.”

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