Border Patrol Stop Based Solely on Ethnic Appearance Is Illegal, Court Rules

A federal appeals panel has found that the U.S. Border Patrol committed a “bad-faith, egregious constitutional violation” in stopping a car along a San Diego freeway solely because its occupants looked Latino.

The U.S. 9th Circuit Court of Appeals affirmed a longstanding law holding that a car cannot be stopped merely because of its occupants’ ethnic appearance.

In a 2-1 ruling, the court Thursday also took the unusual step of barring evidence the officers discovered, which showed that a passenger was an illegal immigrant. “We should not allow our courts to be used to sanction racism in any form,” wrote Judge Thomas Tang.

Dissenting Judge Herbert Choy said the officers’ actions, although improper, were not violent or shocking and did not justify excluding the evidence.


Illegally seized evidence is generally barred in criminal cases, but deportations are considered civil cases. The U.S. Supreme Court ruled in a 1984 immigration case that illegally obtained evidence should generally be allowed, but might be excluded in cases of egregious violations.

The recent case involved Mario Gonzalez Rivera, then 22, who was a passenger in a car driven by his father when Border Patrol officers stopped the vehicle in January, 1988, on a San Diego freeway. The father was a legal resident, but the son was not.

Immigration authorities moved to deport the son, but he has been allowed to stay in the United States while appealing his case.

Agent Salvador Wilson testified that agents stopped the car for a number of reasons: The two men appeared Latino; both looked away from the officers; the son’s mouth appeared to be dry, he was blinking more than normal, and both men looked nervous.


An immigration judge--noting a 1975 Supreme Court ruling that ethnic appearance alone did not justify a stop--called the officers’ action unjustified after discounting all the explanations except the men’s appearance. But the Board of Immigration Appeals overruled the judge and accepted Wilson’s explanation.

Thursday’s appeals court decision overrules the Board of Immigration Appeals ruling.

Judge Dorothy Nelson, in her lead opinion, questioned whether anyone in a passing car could tell whether a passenger’s mouth was dry, how often he was blinking or whether those were symptoms of unusual nervousness.