NEW MEXICO — A federal appeals court has ruled that driving with one’s hands at the “ten-and-two position” is reason enough to pull someone over for further investigation. No traffic laws have to actually be broken. Additionally, the court ruled that facial acne is reason enough to suspect a driver is a drug smuggler.
The ruling stems from an incident that took place on April 18, 2012, at roughly 7:45 p.m. A border patrol agent driving down Highway 80 saw a white Ford F-150 heading the opposite direction. This took place roughly 40 miles north of the U.S./Mexico border — well inside the United States.
Although the truck was witnessed breaking no traffic laws, Border Patrol Agent Joshua Semmerling claimed he noticed several things that drew his suspicions, while passing the truck at 60 miles per hour.
First, was the driver’s upright posture. The female driver was sitting up straight with her hands located on the upper part of the steering wheel. This was viewed as suspicious activity.
Secondly, the agent claimed that the truck’s tinted windows were suspicious. It remains unclear how the agent saw driver’s posture through the “suspicious” tint.
Lastly was the truck’s rear license plate — which the agent claims to have observed in his rear-view mirror while traveling at a high rate of speed in the opposite direction. He claimed that he noticed it was from out-of-state; another suspicious characteristic.
The agent decided to make a U-turn and stop the truck.
The driver identified herself as Cindy Lee Westhoven of Tucson, Arizona. Agent Semmerling then used his keen crime-detecting skills to justify a search of her truck. He saw that Mrs. Westhoven had “acne” on her face and claimed that it was grounds for suspecting her to be a methamphetamine user.
Mrs. Westhoven had already proven she was a U.S. citizen. She had no warrants and had broken no laws, yet Agent Semmerling claimed that he believed she might be smuggling illegal aliens and/or drugs. When she refused to consent to a search, the agent used a drug K9 to sniff her truck. The dog turned up a small amount of cannabis. Westhoven was arrested.
Later in court, Westhoven’s defense tried to overturn the arrest due to the shaky ground upon which the stop was performed. Her attorney argued that the evidence was obtained illegally. The effort was unsuccessful; the court accepted all of the agent’s dubious tactics.
“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 3-judge panel on the Tenth Circuit U.S. Court of Appeals unanimously upheld the search, and rejected Westhoven’s motion to suppress the evidence.
The acceptance of such flimsy suspicions in court is the practical acceptance of zero need for any real indication of a crime occurring before any American can be stopped and searched by federal agents.
Source: US v. Westhoven (US Court of Appeals, Tenth Circuit, 4/24/2014)