18 December 2006
illegal aliens have more rights than american citizens
C. The border patrol cases are inapplicable
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.
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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
judge thomas morrow reavley - b. 1921; jimmy carter appointee; judge carl e. stewart - b. 1950; bill clinton appointee; judge edith "joy" brown clement - b. 1948; george w. bush appointee.