illegal aliens have more rights than american citizens
on friday, 04 june 2004 a couple of rent-a-cops (actually moonlighting
baton rouge police officers brett busbin and thompson) observed jeremy brown and a friend sitting in a car in the parking lot of the spanish arms apartment complex in baton rouge, louisiana [
map] [
satellite] after a few minutes the rent-a-cops approached supposedly to tell them that the apartment complex has a "no loitering" policy and upon their approach they noticed that mr. brown and friend "started going up under the [car] seats." so based on this flimsy excuse brown and friend were searched and marijuana and a gun were found.
Brown, who had a prior felony record, was indicted for possession of a firearm by a convicted felon and possession of marijuana. Brown moved to suppress evidence of the gun and marijuana, alleging that the officers lacked reasonable suspicion that criminal activity was afoot when they conducted the pat-down and that the subsequent car and residence search were thus not justified. The district court (judge
james j. brady - b. 1944, bill clinton appointee) granted Brown’s motion, finding that Brown’s slouching in his seat and apparent hiding or retrieving of something were insufficient facts to establish reasonable suspicion of criminal activity.
In granting Brown’s motion to suppress, the district court relied on a series of border patrol cases in which we have held that ducking or slouching behavior of the occupants of a car was insufficient, in itself, to create a reasonable suspicion that criminal activity was afoot.
In each of the cases relied upon by the district court, we found that, under the factors set forth in
United States v. Brigoni-Ponce, 422 U.S. 873, 884-85, 95 S. Ct. 2574, 2582 (1975), for determining whether a roving patrol stop is justified, the mere slouching or “hunkering down” of auto occupants did not warrant a stop. Orona-Sanchez, 648 F.2d at 1042; Pena-Cantu, 639 F.2d at 1229-30; Pacheco, 617 F.2d 86-87.
The test set forth in Brigoni-Ponce does not apply in non-border patrol cases because the slouching down of an occupant of a vehicle does not have the same import outside the border context.
advocate snip:
U.S. District Judge James Brady threw out the evidence in January, deciding that while it was OK for detectives to approach the men with the intent of advising them of the apartment complex’s loitering policy, they crossed the line during the search.
The judge cited five rulings by the 5th Circuit that found “slumping,” “slouching,” “ducking,” “sitting low” or “scrambling” to avoid detection does not justify a search.
But 5th Circuit Judges Thomas Reavley, Carl Stewart and Edith Brown Clement write that those decisions apply to border patrol cases only. click here to read more from the advocate.
about the only thing the fifth circuit did right in this case was prohibiting it from being cited:
*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.47.5.4.
but then again there is no need to make this opinion a precedent now is there since the judges, prosecutors and defense attorneys know exactly how the fifth circuit will rule in the future in similar cases.
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