People v. LaRose

cause for the stop under People v Ingle (36 NY2d 413 [1975]), there was no observed violation of vehicle and traffic laws, the stop did not occur at a point-of-entry or border station, and that Border Patrol agents were not authorized simply to pull over anyone. The prosecution answered that the stop was in close proximity to the border, and that Germano had a level two right of inquiry under People v DeBour (40 NY2d 210 [1976]), based on a reasonable suspicion that criminal activity was afoot. This, said the prosecution, gave Agent Germano the right to pull the Dodge over; and, because of a presumption of shared possession of the things found in the vehicle, Morrow also had standing to challenge the stop and the search.

Defense counsel's reliance upon People v Ingle (36 NY2d 413 [1975]) is misplaced. Ingle involved a stop for a "routine traffic check," and the case holds that the police may not stop a motorist for such a check unless the officer reasonably suspects a violation of the Vehicle and Traffic Law. Here, the Federal Border Patrol agent was concerned with interdicting illegal aliens and preventing smuggling, and, by his own testimony, was not trained in or concerned with the enforcement of New York's vehicle and traffic laws. The law governing roving patrol stops grows out of the Fourth Amendment jurisprudence beginning with Terry v Ohio (392 US 1 [1968]). "The Fourth Amendment applies to seizures of the person, including brief investigatory [vehicle] stops." (United States v Cortez, 449 US 411, 417 [1981]; United States v Brignoni-Ponce, 422 US 873 [1975].) In Brignoni-Ponce the Court held that, where an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, the government interest at stake may justify the minimal intrusion of a brief investigatory stop. (422 US at 881, cited and discussed in United States v Sugrim, 732 F2d 25, 29-30 [2d Cir 1984].) Among the factors which an officer might reasonably articulate to warrant suspicion would be the proximity of the encounter to the border, the suspect's behavior, mode of dress and haircut, and the officer's experience in detecting illegal entry. (Sugrim, 732 F2d at 30.) Roving patrols encounter particular skepticism from the courts because the motorist has no warning of them; police use a greater show of authority than in a roadblock or checkpoint; and they often involve unlimited discretion on the part of the police officer without a systematic selection process for stopping vehicles. (Delaware v Prouse, 440 US 648 [1979]; United States v Brignoni-Ponce, 422 US 873 [1975]; United States v Martinez-Fuerte, 428 US 543 [1976]; United States v Johnson, 2001 WL 1313727, 2001 US Dist LEXIS 16973 [ND NY, Oct. 18, 2001]; Matter of Muhammad F., 94 NY2d 136 [1999], all discussed in Kamins, New York Search and Seizure, at 405 [Gould Publs 14th ed 2004].) A roving patrol stop must be reasonably related in scope to the justification for its initiation under Terry v Ohio (392 US 1 [1968] at 29). A roving patrol detention is permitted on less than probable cause because of the legitimate enforcement interests, but the trade-off is that the scope of the detention must be carefully tailored to its underlying justification. With respect to roving Border Patrols, the Brignoni-Ponce rule is that "the officer may question the [suspected aliens] about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause." (422 US at 881-882; see also Florida v Royer, 460 US 491 [1983].) This rule is followed in both the federal and state courts. (See discussion in United States v Bews, 715 F Supp 1206, 1210 [WD NY 1989], and in People v Carrillo, 257 AD2d 780 [3d Dept 1999].) In short, the Border Patrol agent must have a particularized and objective basis for suspecting legal wrongdoing — something more than a "mere `hunch.' "(United States v Arvizu, 534 US 266, 274 [2002]; Almeida-Sanchez v United States, 413 US 266 [1973]; United States v Sharpe, 470 US 675 [1985]; United States v Cormier, 77 Fed Appx 65 [2d Cir 2003].)

Border Patrol Agent Germano saw the Dodge and thought it was out of place. The Texas license plates near the northern New York border late on a midweek night were at odds with his observation of usual traffic in that area. His job was to watch for aliens, smuggling and contraband that he might encounter. When the Dodge made a series of improbable turns and appeared evasive to Germano, given the proximity to the border and the fact that something didn't seem right, he was justified in making an initial investigative stop to seek proof of citizenship and make a limited inquiry into his concerns. However, nothing in his testimony suggested any expressed concern about aliens or smuggling, and he did not assert such concerns as the the roving patrol stop. (See discussion in United States v Bews, 715 F Supp 1206, 1209-1210 [WD NY 1989].) Since the stop of the Dodge exceeded the permissible scope of a Border Patrol roving stop, the guns seized must be suppressed. In view of that decision, the court need not decide whether the consent to search given by LaRose was valid.