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NO. 13-51114 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

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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).

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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

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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

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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. ATTORNEY’S 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

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NO. 13-51114

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

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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-forprofit 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

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TABLE OF CONTENTS 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. II. A checkpoint detainee has a constitutional right to refuse to cooperate with police inquiries. .......................................................................................4 A Border Patrol officer may not extend the duration of a suspicionless immigration stop solely because an individual stands on his rights. .............. 9

CONCLUSION ........................................................................................................20 CERTIFICATE OF COMPLIANCE.......................................................................21 CERTIFICATE OF FILING AND SERVICE ........................................................22

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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

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United States v. Charrington, 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

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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.

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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

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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.

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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

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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”).

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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

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

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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.

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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 roadside detentions last only a few minutes. . . . 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 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 forces. . . . In both of these respects, the usual traffic stop is more analogous to a so-called “Terry stop,” . . . than to a formal arrest. . . . Under the Fourth Amendment, we have held, 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 suspicion. . . . Typically, this means 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 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

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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 the benefit of the procedural safeguards enunciated in Miranda”). 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 appropriate. . . . Anything more than a brief stop must be 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 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. 32, 39 (2000) (noting that

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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 2427; 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 wellestablished 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

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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).

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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

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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

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standard for searches and seizures.” (ROA.471, 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 lawabiding citizens, whose only transgression may be a nonconformist appearance or attitude”). 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

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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. (ROA.485-86). 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 illmannered 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

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“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 window. . . . [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 officers—would 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 frisk. . . . But the balance struck by the Fourth Amendment . . . forbids such expansion. . . . [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

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either arrest or the need to answer questions that the 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 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.

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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
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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).

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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

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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.

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CONCLUSION 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

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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).

s/ Amy C. Eikel_________ Amy C. Eikel

March 7, 2014

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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. ATTORNEY’S 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

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