You are on page 1of 32

Case: 13-51114

Document: 00512553800

Page: 1

NO. 13-51114

Date Filed: 03/07/2014

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RICHARD RYNEARSON, Appellant,

v.

UNITED STATES OF AMERICA, et al, Appellees.

On Appeal from No. 2:12-CV-24 in the United States District Court for the Western District of Texas

UNOPPOSED MOTION BY AMICUS CURIAE TEXAS CIVIL RIGHTS PROJECT FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT AND URGING REVERSAL

Pursuant to Federal Rule of Civil Procedure 29(b) and Fifth Circuit

Rule 29.1, Amicus Curiae Texas Civil Rights Project (“TCRP”) files this

unopposed motion for leave to file an amicus curiae brief in this appeal in

support of the Appellant Richard Rynearson. The brief supports reversal of

the district court’s order below. The proposed brief is being filed along with

this motion, electronically and in paper form.

Undersigned counsel communicated via email on March 5 and 6,

2014, with Javier Maldonado, counsel for appellant, and with Steve Frank

1

Case: 13-51114

Document: 00512553800

Page: 2

Date Filed: 03/07/2014

and Harold Brown, counsel for appellees, and was informed that none of the

parties oppose the filing of TCRP’s amicus curiae brief.

An amicus brief is desirable because this appeal concerns the legality

under the Fourth Amendment of the appellant’s 34-minute detention at an

immigration

checkpoint.

TCRP

is

a

non-profit

public

interest

law

organization with a strong interest in ensuring that individuals’ civil rights

and liberties under the Bill of Rights of the United States Constitution are

not

abridged

or

modified,

whether

through

legislation,

improper

enforcement, or judicial action. TCRP has appeared as amicus curiae or

represented individuals in litigation involving privacy rights and Fourth

Amendment rights to be free from illegal search and seizure.

TCRP’s amicus brief will outline well-established law relevant to the

disposition

of

this

case,

showing

that

a

detainee

at

an

immigration

checkpoint has a Fourth Amendment right to decline to cooperate with

Border Patrol agents or respond to their questions, and that the Fourth

Amendment does not permit a detainee to be penalized for any such

assertion of rights, nor does such assertion of rights justify the extension of a

checkpoint stop beyond the brief and nonintrusive detention contemplated

by United States v. Martinez-Fuerte, 428 U.S. 543, 557-58 (1976).

2

Case: 13-51114

Document: 00512553800

Page: 3

Date Filed: 03/07/2014

Amicus Curiae Texas Civil Rights Project prays that this unopposed

motion for leave to file amicus curiae brief be granted.

March 7, 2014

Respectfully submitted,

s/ Amy C. Eikel

Amy C. Eikel KING & SPALDING LLP 1100 Louisiana, Suite 4000 Houston, Texas 77002 Telephone: 713- 751-3200 Fax: 713-751-3290 Email: aeikel@kslaw.com

Attorney for Amicus Curiae Texas Civil Rights Project

3

Case: 13-51114

Document: 00512553800

Page: 4

Date Filed: 03/07/2014

CERTIFICATE OF INTERESTED PERSONS

No. 13-51114, Rynearson v. United States of America.

The following listed persons and entities, as described in the fourth

sentence

of

Rule

28.2.1,

have

an

interest

in

this

matter.

These

representations are made in order that the judges of this Court may evaluate

possible disqualification or recusal.

Richard Rynearson, plaintiff-appellant

Javier Maldonado, counsel to plaintiff-appellant

Justin K. Lands, defendant-appellee

Raul Perez, defendant-appellee

Harold E. Brown, counsel to defendant-appellees

Steve Frank, counsel to defendant-appellees

Texas Civil Rights Project, amicus curiae (Texas Civil Rights Project is a not-for-profit corporation with no parent corporation, and there is no publicly held corporation that owns 10% or more of its stock).

Amy C. Eikel, counsel for amicus curiae Texas Civil Rights Project

s/ Amy C. Eikel

Amy C. Eikel, Attorney of Record for Amicus Curiae Texas Civil Rights Project

4

Case: 13-51114

Document: 00512553800

Page: 5

Date Filed: 03/07/2014

CERTIFICATE OF SERVICE

I hereby certify that, on March 7, 2014, I served the foregoing motion

upon the following counsel of record by filing a copy of the document with

the Clerk through the Court’s electronic docketing system, and by sending

hard copies of the motion via UPS to:

Harold Edwin Brown, Jr.

U.S. ATTORNEYS OFFICE

Western District of Texas

601 N.W. Loop 410, Suite 600

San Antonio, TX 78216-5512

harold.brown@usdoj.gov

Steve I. Frank

U.S. DEPARTMENT OF JUSTICE

Civil Division, Appellate Staff Room 7245

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0001 steven.frank@usdoj.gov

Javier N. Maldonado

LAW OFFICE OF JAVIER N. MALDONADO, PC

8918 Tesoro Dr., Ste. 575 San Antonio, TX 78217 jmaldonado.law@gmail.com

s/ Amy C. Eikel

Amy C. Eikel

5

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 11

NO. 13-51114

DateDate Filed:Filed: 03/07/201403/07/2014

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RICHARD RYNEARSON,

Appellant,

v.

UNITED STATES OF AMERICA, et al,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS DISTRICT COURT NO. 2:12-CV-24

BRIEF FOR AMICUS CURIAE TEXAS CIVIL RIGHTS PROJECT

(filed in support of Appellant Richard Rynearson and urging reversal)

Amy C. Eikel (attorney in charge) Texas Bar No. 00787421 KING & SPALDING LLP 1100 Louisiana, Suite 4000 Houston, Texas 77002 Phone: (713) 751-3200 Fax: (713) 751-3290 Email: aeikel@kslaw.com

Attorney for Amicus Curiae Texas Civil Rights Project

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 22

DateDate Filed:Filed: 03/07/201403/07/2014

SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES

No. 13-51114, Rynearson v. United States of America.

In compliance with Rule 29.2, the undersigned counsel of record

certifies that, in addition to those persons listed in the parties’ certificates of

interested persons, the following listed persons and entities as described in

the fourth sentence of Rule 28.2.1 have an interest in this amicus brief.

These representations are made in order that the judges of this Court may

evaluate possible disqualification or recusal.

Amicus Curiae Texas Civil Rights Project

Amicus Curiae Texas Civil Rights Project certifies that it is a not-for-

profit corporation with no parent corporation and that there is no publicly

held corporation that owns 10% or more of its stock.

Counsel for Amicus Curiae Texas Civil Rights Project

Amy C. Eikel

KING & SPALDING LLP

1100 Louisiana, Suite 4000 Houston, Texas 77002

s/ Amy C. Eikel

Amy C. Eikel, Attorney of Record for Amicus Curiae Texas Civil Rights Project

i

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 33

TABLE OF CONTENTS

DateDate Filed:Filed: 03/07/201403/07/2014

SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES

i

TABLE OF CONTENTS

 

ii

TABLE OF

AUTHORITIES

iii

STATEMENT OF INTEREST

1

RULE 29(C)(5) STATEMENT

1

STATEMENT OF THE ISSUES ADDRESSED BY AMICUS CURIAE

2

SUMMARY OF THE ARGUMENT

2

ARGUMENT

4

I. A checkpoint detainee has a constitutional right to refuse to cooperate with police

4

II. A Border Patrol officer may not extend the duration of a suspicionless immigration stop solely because an individual stands on his

9

CONCLUSION

20

CERTIFICATE

OF

COMPLIANCE

21

CERTIFICATE OF FILING AND SERVICE

22

ii

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 44

DateDate Filed:Filed: 03/07/201403/07/2014

TABLE OF AUTHORITIES

Cases

Pages

Berkemer v. McCarty,

468

U.S. 420 (1984)

5-8

City of Houston v. Hill,

482

U.S. 451 (1987)

13

City of Indianapolis v. Edmond,

531

U.S. 32 (2000)

8

Curley v. Klem,

499

F.3d 199 (3d Cir. 2007)

13

Davis v. Mississippi,

394

U.S. 721(1969)

5

Florida v. Bostick,

501

U.S. 429 (1991)

10

Florida v. Royer,

460

U.S. 491(1983)

11

Illinois v. Wardlow,

528

U.S. 119 (2000)

4, 12, 17, 19

Johnson v. Campbell,

332

F.3d 199 (3d Cir. 2003)

14, 15, 16

Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995)

13, 14, 19

Kolender v. Lawson,

461

U.S. 352 (1983)

5, 15, 16

Miranda v. Arizona,

384

U.S. 436 (1966)

6, 7, 8

Terry v. Ohio,

392

U.S. 1 (1968)

passim

Tom v. Voida,

963

F.2d 952 (7th Cir. 1992)

12

United States v. Brignoni-Ponce,

422

U.S. 873 (1975)

9

iii

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

United States v. Charrington,

Page:Page: 55

DateDate Filed:Filed: 03/07/201403/07/2014

285

F. Supp. 2d 1063 (S.D. Ohio 2003)

10, 19

United States v. Everett,

601

F.3d 484 (6th Cir. 2010)

6

United States v. Garcia-Garcia,

319

F.3d 726 (5th Cir. 2003)

19

United States v. Hunnicutt,

135

F.3d 1345 (10th Cir. 1998)

10

United States v. Johnson,

620

F.3d 685 (6th Cir. 2010)

16

United States v. Machuca-Barrera,

261

F.3d 425 (5th Cir. 2001)

10

United States v. Martinez-Fuerte,

428

U.S. 543 (1976)

2, 4, 9, 20

United States v. Massenburg,

654

F.3d 480 (4th Cir. 2011)

10

United States v. Place,

462

U.S. 696 (1983)

8

United States v. Portillo-Aguirre,

311

F.3d 647 (5th Cir. 2002)

18

United States v. Santos,

403

F.3d 1120 (10th Cir. 2005)

10

United States v. Shabazz,

993

F.2d 431 (5th Cir. 1993)

6, 18

United States v. Sharpe,

470

U.S. 675 (1985)

11, 17

iv

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 66

DateDate Filed:Filed: 03/07/201403/07/2014

STATEMENT OF INTEREST The Texas Civil Rights Project (“TCRP”) is a non-profit public

interest law organization with a membership base of approximately 3,000

Texans. TCRP has always had a strong interest in ensuring that individuals’

civil rights and liberties under the Bill of Rights of the United States

Constitution are not abridged or modified, whether through legislation,

improper enforcement, or judicial action. TCRP has appeared as amicus

curiae or represented individuals in litigation involving privacy rights and

Fourth Amendment rights to be free from illegal search and seizure.

Counsel for all parties have consented to the filing of TCRP’s amicus

brief in this appeal.

RULE 29(C)(5) STATEMENT No counsel for a party authored this brief in whole or in part, and no

such counsel or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than the amicus

curiae, its members or its counsel, made a monetary contribution intended to

fund the preparation or submission of this brief.

1

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 77

DateDate Filed:Filed: 03/07/201403/07/2014

STATEMENT OF ISSUES ADDRESSED BY AMICUS CURIAE

1. Does a detainee at an immigration checkpoint have a Fourth

Amendment right to decline to cooperate with Border Patrol agents or

respond to their questions?

2. Does the Fourth Amendment permit the Border Patrol to extend

the duration of a suspicionless immigration stop solely because an individual

stands on his rights not to exit the vehicle, roll his window completely down,

produce identification, or answer every question asked? Does such lack of

cooperation, in itself, justify extension of a checkpoint stop beyond the brief

and nonintrusive detention contemplated by Martinez-Fuerte?

SUMMARY OF THE ARGUMENT The district court’s opinion below incorrectly assumed that a traveler

is required, and presumably may be compelled, to answer every question

asked by an officer at a suspicionless checkpoint. In this brief, Amicus

Curiae Texas Civil Rights Project will outline the clearly established law

showing that an individual is under no obligation to respond to law

enforcement officers’ questions during an investigative stop, and in fact has

a constitutional right to remain silent and decline to cooperate.

The

district

court

also

incorrectly

assumed

that

a

checkpoint

detainee’s exercise of his constitutional rights provides a valid reason to

2

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 88

DateDate Filed:Filed: 03/07/201403/07/2014

detain him for a longer period of time, either because his lack of cooperation

raises

some

kind

of

suspicion

of

criminal

activity

justifying

further

detention, or because the detainee’s exercise of his rights makes him, and

not the government agents, responsible for any increase in the length of the

detention. These conclusions are not supported by the law.

Although a traveler stopped at an immigration checkpoint must stop

when ordered to do so, he has no obligation to affirmatively cooperate with

and actively assist an officer’s immigration inspection. If a traveler chooses

not to answer some questions, or otherwise chooses to stand on his right not

to cooperate, that partial refusal or lesser level of cooperation does not

justify

longer

or

indefinite

detention.

Otherwise,

any

officer

at

an

immigration checkpoint could theoretically detain a traveler indefinitely

until the officer is subjectively satisfied that the traveler is not violating

immigration laws (or any other laws), and the immigration stop would be

converted into a de facto arrest. The Fourth Amendment’s tight limitations

on the conduct of government agents at suspicionless checkpoints are not

loosened by a citizen’s decision to stand on his rights.

3

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 99

DateDate Filed:Filed: 03/07/201403/07/2014

ARGUMENT

I. A CHECKPOINT DETAINEE HAS A CONSTITUTIONAL RIGHT TO REFUSE TO COOPERATE WITH POLICE INQUIRIES.

“[W]hen an officer, without reasonable suspicion or probable cause,

approaches an individual, the individual has the right to ignore the police

and go about his business. And any refusal to cooperate, without more, does

not furnish the minimal level of objective justification needed for a detention

or seizure.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (citations and

internal quotation marks omitted). An individual normally has the “right to

go about his business or to stay put and remain silent in the face of police

questioning.” Id.

During an investigatory detention governed by Terry v. Ohio, 392

U.S. 1 (1968) and its progeny, 1 a law enforcement officer “may ask the

detainee a moderate number of questions to determine his identity and to try

to obtain information confirming or dispelling the officer’s suspicions. But

1 Although an immigration checkpoint stop does not require reasonable suspicion at its inception, Terry and its progeny have been used to evaluate whether checkpoint stops are lawful in scope and duration. See United States v. Ellis, 330 F.3d 677, 679-80 (5th Cir. 2003) (noting that the Fifth Circuit “delineated the bounds of immigration stops by applying our long-standing jurisprudence regarding stops based on reasonable suspicion—so-called Terry stops—to programmatic immigration stops.”); see also United States v. Martinez-Fuerte, 428 U.S. 543, 557-62 (1976) (relying on Terry to set “appropriate limitations on the scope of the stop,” limitations that provide the “principal protection of Fourth Amendment rights at checkpoints”).

4

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 1010

DateDate Filed:Filed: 03/07/201403/07/2014

the detainee is not obliged to respond. And, unless the detainee’s answers

provide the officer with probable cause to arrest him, he must then be

released.” Berkemer v. McCarty, 468 U.S. 420, 437-40 (1984) (emphasis

added); see also Terry v. Ohio, 392 U.S. 1, 34 (1968) (White, J., concurring)

(observing that in an investigatory detention, “the person stopped is not

obliged to answer, answers may not be compelled, and refusal to answer

furnishes no basis for an arrest”) (emphasis added).

It is a ‘settled principle that while police have the right to request

citizens to answer voluntarily questions concerning unsolved crimes they

have no right to compel them to answer.’” Kolender v. Lawson, 461 U.S.

352, 360 & n.9 (1983) (quoting Davis w. Mississippi, 394 U.S. 721, 727 n.6

(1969)) (emphasis added). The Supreme Court held in Kolender that to the

extent that state law “criminalizes a suspect’s failure to answer

questions

put to him by police officers, Fifth Amendment concerns are implicated.”

Kolender, 461 U.S. at 727 n.6. 2

2 Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004), did not hold to the contrary. Hiibel merely upheld a “narrow” state statute allowing arrest for a suspect’s failure to “identify himself” when validly stopped for reasonable suspicion of a crime, and when the request for identification was “reasonably related to the circumstances justifying the stop.” Hiibel, 542 U.S. at 187-88. Hiibel acknowledged, but factually distinguished, language in the majority opinion in Berkemer and the concurrence in Terry that “a suspect detained during a Terry stop’ is not obliged to respond’ to questions.” Hiibel, 542 U.S. at 187. Because the Nevada statute only required a suspect to “identify himself,” and expressly did not

5

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 1111

DateDate Filed:Filed: 03/07/201403/07/2014

Although “the Constitution does not forbid law enforcement officers

from asking” questions during a traffic stop if the detention is not lengthened

thereby, detainees are “under no obligation to answer the questions.”

United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) (emphasis

added); see also United States v. Everett, 601 F.3d 484, 496 (6th Cir. 2010)

(the rule that “extraneous questions” during a Terry stop are permissible, “in

the absence of prolongation” of the detention, “is premised upon the

assumption that the motorist’s responses are voluntary and not coerced.”).

Indeed, a detainee’s constitutional right not to answer police questions

is inherent in the nature of a Terry-type investigatory detention. The

Supreme Court relied on this idea in Berkemer, when it held that a vehicle

stop detainee is not “in custody” for the purposes of Miranda v. Arizona, 384

U.S. 436 (1966), and that therefore an officer is not required to read the

suspect his Miranda rights during a traffic stop. The Court’s holding was

explicitly based on the premise that traffic stops, like traditional Terry stops,

are

“nonthreatening”

and

“noncoercive”

because

the

detainee

“is

not

required to respond” to the officer’s questions:

require the suspect “to answer any other inquiry,” the Hiibel majority concluded that Berkemer and Terry were not “controlling” on the narrow issue of “whether a State can compel a suspect to disclose his name during a Terry stop.” Id. at 187. Because Mr. Rynearson did identify himself, Hiibel is not at issue here.

6

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 1212

DateDate Filed:Filed: 03/07/201403/07/2014

Two features of an ordinary traffic stop mitigate the danger that

a person questioned will be induced to speak where he would

not otherwise do so freely, [as contemplated by Miranda v. Arizona]. First, detention of a motorist pursuant to a traffic stop

is presumptively temporary and brief. The vast majority of

Second,

circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some

roadside detentions last only a few

discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to

questions. But other aspects of the situation substantially offset

these

is more analogous to a so-called “Terry stop,”

formal

than to a

Under the Fourth Amendment, we have held,

In both of these respects, the usual traffic stop

a policeman who lacks probable cause but whose observations

lead him reasonably to suspect that a particular person has

committed, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the

circumstances that provoke

that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not “in custody” for the purposes of Miranda.

Berkemer v. McCarty, 468 U.S. 420, 437-40 (1984) (citations and internal

Typically, this means

quotation marks omitted; emphasis added). Under this reasoning, if a Terry

detainee were able to be compelled to respond to questions, he should not be

7

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 1313

DateDate Filed:Filed: 03/07/201403/07/2014

interrogated without being read his Miranda rights. See Berkemer, 468 U.S.

at 434 (as opposed to a traffic stop detainee, “a person subjected to custodial

interrogation

is

entitled

to

enunciated in Miranda”).

the

benefit

of

the

procedural

safeguards

Justice Brennan similarly explained the nature of a Terry stop in his

concurring opinion in United States v. Place, noting that Terry’s relaxation

of the probable cause standard is justified only by the requirements that an

investigatory stop be brief, minimally intrusive, and not coercive.

It is clear that Terry, and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable suspicion. They do not provide the police with a commission to employ whatever investigative techniques they

deem

based on consent or probable cause. During the course of this stop, the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect

Anything more than a brief stop must be

must be free to leave after a short time and to decline to answer the questions put to him.

United

States

v.

Place,

462

U.S.

696,

714-15

(1983)

(Brennan,

J.,

concurring) (internal citations and quotation marks omitted).

Immigration checkpoint stops are arguably even more limited than

Terry stops, given that they are made with no suspicion at all. See City of

Indianapolis

v.

Edmond,

531

U.S.

8

32,

39

(2000)

(noting

that

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 1414

DateDate Filed:Filed: 03/07/201403/07/2014

constitutionality of suspicionless immigration checkpoints is justified by

“the relatively modest degree of intrusion entailed by the stops”).

“The principal protection of Fourth Amendment rights at checkpoints

lies in appropriate limitations on the scope of the stop.” United States v.

Martinez-Fuerte, 428 U.S. 543, 557-58 (1976) (citing Terry, 392 U.S. at 24-

27; United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975)).

Therefore, given the established law to the contrary, the district court

erred in assuming (ROA.486) that a checkpoint detainee is required or

“expected” to respond to all questions from a Border Patrol officer. Instead,

the checkpoint detainee, like any person stopped under Terry, has a well-

established constitutional right not to respond or cooperate.

II. A BORDER PATROL OFFICER MAY NOT EXTEND THE DURATION OF A SUSPICIONLESS IMMIGRATION STOP SOLELY BECAUSE AN INDIVIDUAL STANDS ON HIS RIGHTS.

As stated above, a traveler stopped at an immigration checkpoint may

not be required or compelled to cooperate or respond to all of the officer’s

questions, either by being arrested for failing to respond, or by having his

detention extended until he does respond.

“We have consistently held that a refusal to cooperate, without more,

does not furnish the minimal level of objective justification needed for a

detention or seizure,” and “an individual may decline an officer's request

9

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 1515

DateDate Filed:Filed: 03/07/201403/07/2014

without fearing prosecution.” Florida v. Bostick, 501 U.S. 429, 435-37

(1991). It “would make a mockery of the reasonable suspicion and probable

cause requirements

if citizens’ insistence that searches and seizures be

conducted

in

conformity

with

constitutional

norms

could

create

the

suspicion or cause that renders their consent unnecessary.” United States v.

Machuca-Barrera 261 F.3d 425, 435 n.32 (5th Cir. 2001) (quoting United

States v. Hunnicutt, 135 F.3d 1345, 1350–51 (10th Cir. 1998)).

“If one’s refusal to cooperate with law enforcement were enough to

justify prolonged detention

the strictures of the Fourth Amendment,

would mean little to nothing.” United States v. Charrington, 285 F. Supp. 2d

1063, 1069 (S.D. Ohio 2003) (holding that prolonged detention of defendant

at military checkpoint violated the Fourth Amendment and that “failure to

cooperate” did not justify further detention absent probable cause of a

crime); see also United States v. Massenburg, 654 F.3d 480, 491 (4th Cir.

2011) (no reasonable suspicion was raised from defendant’s refusal to

consent to a search and avoidance of eye contact, which “is simply a mild

reaction to repeated requests to relinquish one’s constitutional right to be

free from unreasonable searches”). “If refusal of consent were a basis for

reasonable

suspicion,

nothing

would

be

left

of

Fourth

Amendment

protections.” United States v. Santos, 403 F.3d 1120, 1126 (10th Cir. 2005).

10

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 1616

DateDate Filed:Filed: 03/07/201403/07/2014

Thus, although a traveler stopped at an immigration checkpoint must

stop when ordered to do so, he has no obligation to affirmatively cooperate

with and actively assist an officer’s immigration inspection. If a traveler

chooses not to answer some questions (or otherwise chooses to stand on his

rights by verbally challenging the officer’s legal authority to detain him, or

declines, for example, to get out of the car, roll his window fully down, or

volunteer information or documents he has not yet been asked for), that

partial refusal or lesser level of cooperation does not justify indefinite

detention until all questions (whether related to immigration or not) are

answered to the officer’s satisfaction. If that were true, an officer at an

immigration checkpoint could theoretically detain a traveler indefinitely

until the officer is subjectively satisfied that the traveler is not violating

immigration laws (or any other laws), and the immigration stop would be

converted into a de facto arrest. See United States v. Sharpe, 470 U.S. 675,

685 (1985) (“Obviously, if an investigative stop continues indefinitely, at

some point it can no longer be justified as an investigative stop.”); Florida v.

Royer, 460 U.S. 491, 499 (1983) (“In the name of investigating a person

who is no more than suspected of criminal activity, the police may not

seek to verify their suspicions by means that approach the conditions of

arrest”). “The Terry stop is a far more minimal intrusion [than an arrest on

11

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 1717

DateDate Filed:Filed: 03/07/201403/07/2014

probable cause], simply allowing the officer to briefly investigate further. If

the officer does not learn facts rising to the level of probable cause, the

individual must be allowed to go on his way.” Wardlow, 528 U.S. at 126.

The Seventh Circuit discussed the “problems” that could arise if

detainees are denied the right to refuse to respond to questions or requests

posed during Terry stops, although it ultimately did not reach the issue on

the facts of the particular case:

[I]f citizens do not have a right to refuse to answer, then the Terry stop becomes an extraordinarily powerful law enforcement device, for it permits law enforcement officers to bootstrap their reasonable suspicion of criminal activity justifying an investigative stop into probable cause justifying a search or an arrest based solely on the suspect’s refusal to respond to the investigative stop. Citizens are thus placed in a dilemma: individuals who chose to remain silent would be forced to relinquish their right not to be searched, while those who chose not to be searched would be forced to forgo their constitutional right to remain silent.

Tom v. Voida, 963 F.2d 952, 959 (7th Cir. 1992) (internal quotation marks

omitted) (not reaching refusal to answer issue because suspect created

probable cause for arrest by headlong flight from police and other suspicious

behavior).

The district court faults Mr. Rynearson for being “combative” and

“evasive,” making phone calls while in his car, and for “challenging the

agent’s authority” by “arguing with Agent Lands about the appropriate legal

12

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 1818

standard

for

searches

and

seizures.”

DateDate Filed:Filed: 03/07/201403/07/2014

485-86).

When

Mr.

Rynearson declined to step out of the car or roll down his window, and other

agents pointed out the video cameras attached to the car, the agent stated that

they would “do this the hard way.” (ROA.471). But Mr. Rynearson’s

exercise of his constitutional rights is an invalid reason to extend his

detention or otherwise penalize him. See City of Houston v. Hill, 482 U.S.

451, 462-63 (1987) (“The freedom of individuals verbally to oppose or

challenge police action without thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation from a police state.”);

cf. Brigoni-Ponce, 422 U.S. at 889 (Douglas, J., concurring) (criticizing the

potential abusive use of “reasonable suspicion” against “a multitude of law-

abiding

citizens,

whose

appearance or attitude”).

only

transgression

may

be

a

nonconformist

The Third Circuit held that a traffic detainee’s refusal to cooperate,

refusal to consent to a search, being “argumentative and difficult,” and

challenging the officers’ authority, did not justify prolonging the traffic stop

to an excessive length. See Karnes v. Skrutski, 62 F.3d 485, 495-97 (3d Cir.

1995), overruled in part on other grounds by Curley v. Klem, 499 F.3d 199,

209-11 (3d Cir. 2007). “Karnes’ right to refuse to consent falls within the

Fourth Amendment’s core protection against unreasonable searches and

13

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 1919

DateDate Filed:Filed: 03/07/201403/07/2014

seizures. Karnes’ exercise of that right cannot be penalized

even if

Karnes became argumentative and difficult.” Karnes, 62 F.3d at 495-96. The

officers argued that “any additional delay was attributable to Karnes because

he

asked

the

troopers

questions,

argued

with

them,

challenged

their

procedures, and insisted on explanations as to their actions.” Id. at 497. But

the court held that the delayed detention “was the result primarily of the

defendants’ dilatory investigation, not the plaintiff’s questioning,” and that

the officers’ argument about delay “shows a misunderstanding about the

purposes of the Fourth Amendment.” Id.

Karnes does not bear the burden of justifying his refusal to allow police to invade his privacy; it is rather the government official who must meet the constitutional requirements before he can encroach upon an individual’s privacy. The district court’s grant of qualified immunity to defendants on the length of detention issue was improper.

Karnes, 62 F.3d at 497.

The district court also faults Mr. Rynearson for refusing at one point

to

lower

his

car

window.

This

behavior

was

labeled

“abnormal,” “evasive,” and “atypical of a United States citizen.” (ROA.471,

487). But a refusal to cooperate by rolling down a car window, even an ill-

mannered refusal, is within the rights of a Terry detainee and does not

constitute

reasonable

suspicion

of

criminal

activity.

See

Johnson

v.

Campbell, 332 F.3d 199, 208-10 (3d Cir. 2003) (holding that defendant’s

14

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 2020

DateDate Filed:Filed: 03/07/201403/07/2014

“initial hostile response to [the officer’s] request to roll down the window,”

questioning of the officer’s motives, and “demand to know why he was

stopped” did not justify detention or arrest). “[T]he only evasive action

Johnson took was his initial refusal to roll down his

[T]his kind

of refusal to comply

was perfectly within Johnson’s rights; it cannot

provide cause for a reasonable suspicion of wrongdoing.” Id. at 210.

Absent probable cause to arrest, a detainee’s refusal to cooperate or

answer questions cannot be a basis for extending the duration of a Terry stop

or

other

investigative

detention.

Justice

Brennan

explained

that

law

enforcement officers may not prolong a Terry stop to compel a detainee to

answer questions; rather, “the suspect must be free to leave after a short time

and to decline to answer the questions put to him.” Kolender, 461 U.S. at

364-65 (Brennan, J., concurring). “Failure to observe these limitations

converts a Terry encounter into the sort of detention that can be justified

only by probable cause to believe that a crime has been committed.”

The power to arrest—or otherwise to prolong a seizure until a

suspect had responded to the satisfaction of the police officerswould undoubtedly elicit cooperation from a high percentage of even those very few individuals not sufficiently coerced by a show of authority, brief physical detention, and a But the balance struck by the Fourth Amendment

forbids such

[P]robable cause, and nothing

less, represents the point at which the interests of law enforcement justify subjecting an individual to any significant intrusion beyond that sanctioned in Terry, including

15

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 2121

DateDate Filed:Filed: 03/07/201403/07/2014

either

individual does not want to answer in order to avoid arrest or end a detention.

Kolender, 461 U.S. at 365, 369 n.7 (Brennan, J., concurring) (emphasis

arrest

or

the

need

to

answer

questions

that

the

added). The Kolender majority was also troubled by the constitutional

implications of the identification statute in that case, which could require a

Terry detainee, under threat of arrest, “to answer a series of questions” until

the officer is “satisfied that the identification is reliable.” Kolender, 461 U.S.

at 359 (invalidating statute as “unconstitutionally vague”; noting “Fifth

Amendment concerns” but declining to reach Fourth Amendment issue).

Thus, any of a detainee’s constitutionally protected behavior that

could be considered “lack of cooperation,” in itself, cannot justify extending

the duration of a checkpoint detention, because such an assertion of rights

does not raise reasonable suspicion of criminal activity that would justify

further detention. See United States v. Johnson, 620 F.3d 685, 694 (6th Cir.

2010) (“We seriously doubt the wisdom of labeling reasonably suspicious

the proper exercise of one’s constitutional rights.”).

In addition, a traveler’s exercise of his rights does not justify a

determination that any delay or lengthening of the duration of the detention

is the traveler’s “fault” regardless of the officers’ diligence in conducting

their immigration inspection. The district court’s reliance on United States v.

16

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 2222

DateDate Filed:Filed: 03/07/201403/07/2014

Sharpe, 470 U.S. 675 (1985), on this point is misplaced, and does not justify

blaming

the

extended

detention

on

Mr.

Rynearson.

(ROA.486).

The

Supreme Court in Sharpe held that an extended Terry detention was justified

because there was “no evidence that the officers were dilatory in their

investigation” and any “delay in the case was attributable almost entirely to

the evasive actions of Savage, who sought to elude the police as Sharpe

moved his Pontiac to the side of the road.” Id. at 687-88.

Sharpe thus did not present a case of a detainee who asserted his

constitutional rights not to cooperate or answer questions, but involved a

suspect who fled recklessly when signaled to pull over, which in itself

provides reasonable suspicion of criminal activity. 3 See Sharpe, 470 U.S. at

678, 688 n.6 (after police officers signaled both vehicles to stop, “the pickup

truck cut between the Pontiac and Thrasher’s patrol car, nearly hitting the

patrol car, and continued down the highway,” requiring the officers to split

up and lose contact with each other).

Thus

Sharpe

does

not

control

here.

If

any

level

of

“lack

of

cooperation” or verbal opposition could justify an extended detention, only

3 See, e.g., United States v. Brigoni-Ponce, 422 U.S. 873, 885 (1975) (“erratic driving or obvious attempts to evade officers can support a reasonable suspicion” to stop a vehicle); Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (“Headlong flight” is “the consummate act of evasion” and can be the basis of reasonable suspicion).

17

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 2323

DateDate Filed:Filed: 03/07/201403/07/2014

travelers who are fully compliant and cooperative and answer all questions

would be allowed to have the benefit of the constitutional requirement that

immigration checkpoint stops consist of “only a brief question or two.” See

United States v. Portillo-Aguirre, 311 F.3d 647, 652 (5th Cir. 2002) (holding

that because “the principal protection of Fourth Amendment interests at

checkpoints lies in appropriate limitations on the scope of the stop

any

further detention beyond a brief question or two or a request for documents

evidencing a right to be in the United States must be based on consent or

probable cause.”). But the Fourth Amendment does not protect only meek

and compliant citizens.

This Circuit has recognized that “a detention may be of excessively

long duration even though the officers have not completed and continue to

pursue investigation of the matters justifying its initiation.” United States v.

Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) “A prolonged investigative

detention may be tantamount to a de facto arrest, a more intrusive custodial

state which must be based on probable cause rather than mere reasonable

suspicion.” Id.

In sum, the Fourth Amendment’s tight limitations on the conduct of

government agents at suspicionless checkpoints are not loosened by a

citizen’s decision to stand on his rights. The “permissible duration” of an

18

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 2424

DateDate Filed:Filed: 03/07/201403/07/2014

immigration checkpoint stop is the time “reasonably necessary to determine

the citizenship status of the persons stopped. This duration is brief.” United

States v. Garcia-Garcia, 319 F.3d 726, 729 (5th Cir. 2003) (citations

omitted). Any “further detention beyond a brief question or two or a request

for documents evidencing a right to be in the United States must be based on

consent or probable cause.” Id. During the “brief” permissible duration of an

investigatory stop, “[i]f the officer does not learn facts rising to the level of

probable cause, the individual must be allowed to go on his way.” Wardlow,

528 U.S. at 126.

Delay and the extension of the length of a detention due to the officers

pushing back against a detainee’s exercise of his constitutional rights are to

be laid at the feet of the government, not the detainee. See Charrington, 285

F. Supp. 2d at 1069 (“If one’s refusal to cooperate with law enforcement

were enough to justify prolonged detention

the strictures of the Fourth

Amendment, would mean little to nothing.”). Mr. Rynearson “does not bear

the burden of justifying his refusal to allow police to invade his privacy; it is

rather

the

government

official

who

must

meet

the

constitutional

requirements before he can encroach upon an individual’s privacy.” Karnes,

62 F.3d at 497.

19

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 2525

CONCLUSION

DateDate Filed:Filed: 03/07/201403/07/2014

For the reasons stated above, Amicus Curiae Texas Civil Rights

Project urges this Court to recognize the well-established law that a detainee

at an immigration checkpoint has a Fourth Amendment right to decline to

cooperate with Border Patrol agents or respond to their questions, and that

the Fourth Amendment does not permit a detainee to be penalized for any

such assertion of rights, nor does such assertion of rights justify the

extension of a checkpoint stop beyond the brief and nonintrusive detention

contemplated by Martinez-Fuerte. Amicus Curiae Texas Civil Rights Project

prays that the judgment of the district court be reversed.

March 7, 2014

Respectfully submitted,

s/ Amy C. Eikel

Amy C. Eikel KING & SPALDING LLP 1100 Louisiana, Suite 4000 Houston, Texas 77002 Telephone: 713- 751-3200 Fax: 713-751-3290 Email: aeikel@kslaw.com

Attorney for Amicus Curiae Texas Civil Rights Project

20

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 2626

DateDate Filed:Filed: 03/07/201403/07/2014

CERTIFICATE OF COMPLIANCE The foregoing brief is in 14-point Times New Roman proportional

font with footnotes in 13-point Times New Roman proportional font, and

contains fewer than 7,000 words, and thus complies with the type-volume

limitation of Rules 32(a)(7)(B) and 29(d).

March 7, 2014

s/ Amy C. Eikel

Amy C. Eikel

21

Case:Case: 13-5111413-51114

Document:Document: 0051255381300512553955

Page:Page: 2727

DateDate Filed:Filed: 03/07/201403/07/2014

CERTIFICATE OF SERVICE

I hereby certify that, on March 7, 2014, I served the foregoing brief

upon the following counsel of record by filing a copy of the document with

the Clerk through the Court’s electronic docketing system, and by sending

hard copies of the brief via UPS to:

Harold Edwin Brown, Jr.

U.S. ATTORNEYS OFFICE

Western District of Texas

601 N.W. Loop 410, Suite 600

San Antonio, TX 78216-5512

harold.brown@usdoj.gov

Steve I. Frank

U.S. DEPARTMENT OF JUSTICE

Civil Division, Appellate Staff Room 7245

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0001 steven.frank@usdoj.gov

Javier N. Maldonado

LAW OFFICE OF JAVIER N. MALDONADO, PC

8918 Tesoro Dr., Ste. 575 San Antonio, TX 78217 jmaldonado.law@gmail.com

s/ Amy C. Eikel

Amy C. Eikel

22