In United States v. Ramos (1st Cir. Dec. 17), plaintiff Edgar Ramos was arrested for and pled guilty to illegally transporting aliens in Charlestown, Massachusetts.  Ramos alleged that the search that led to his arrest was illegal because of impermissible profiling, and therefore moved to suppress the evidence obtained from the search.  After District Judge Mark Wolf denied his motion to suppress, a three-judge panel of the First Circuit (consisting of Chief Judge Lynch and Judges Selya and Howard) affirmed.

Facts.  On May 28, 2004, MBTA Inspector Patricia Pitts observed a white passenger van with two occupants parked in the Sullivan Station parking lot.  On that day, the MBTA was on high alert for a possible terrorist attack.  Less than three months earlier, the coordinated terrorist strikes in Madrid had claimed 191 lives and injured another 1,400 people.  Al Qaeda both took credit for the attack and warned that it planned to strike next in the U.S.  In response to the attacks, the MBTA put some of its officers through training to identify potential terrorist threats.  The day before encountering the van, Inspector Pitts had gone through this training.  She immediately found the van to be “worthy of concern” because people usually parked to ride the subway or bus rather than remain in their vehicles.  As she continued to observe the van, she noticed the following things that heightened her suspicion.: There were more than two occupants, they passed notes back and forth outside of the van, the van had a paper license plate over its regular plate, and it had tinted windows.

Inspector Pitts also noticed that the two men in the driver’s and passenger’s seat appeared to be Middle Eastern.  When asked why during the trial at the District Court, Pitts observed: “Their skin was darker.”  She turned out to be incorrect – the driver (Ramos) and front passenger were of Mexican descent.  Pitts, not herself a member of the MBTA police, relayed her suspicions to the dispatcher, who put out a dispatch to the MBTA police.  The dispatcher explained Pitts’ suspicions, and then stated, “[a] couple of guys got out of them, believe it or not, of Middle Eastern descent.”  Pitts was not alone in her mistake.  After the occupants got out of the van, one of the officers radioed in stating, “we’re suspicious, Middle Eastern male.”

Two MBTA officers responded to the radio call within five minutes.  One of these officers had received the same terrorism training as Pitts.  When they reached the van, the officers ordered the driver and passenger out, opened the back doors, and ordered the remainder of the van’s occupants out as well.  These rear passengers all turned out to be illegal immigrants.  Ramos, the driver of the van, was thereafter prosecuted for his role in illegally transporting the aliens.

The First Circuit’s Decision.  Writing for a unanimous panel, Chief Judge Lynch affirmed District Judge Wolf’s denial of Ramos’ motion to suppress.

Ramos argued that the police violated his Fourth Amendment rights by opening the rear door of the van, and that therefore all evidence that followed this initial ordered must be suppressed because it constituted fruit of the original poisonous search.  Although the panel agreed that the opening of the van door constituted a “seizure” for the purposes of constitutional analysis (based upon the prosecution’s concession), it found the seizure reasonable under the circumstances.

For the officers to justify their seizure, they must have had reasonable suspicion supported by articulable facts that “criminal activity may be afoot” allowing them to open the van’s doors under Terry v. Ohio (the Supreme Court “stop and frisk” decision).  C.J. Lynch first noted that, given that the officers had merely opened the van doors, the intrusion into the occupants’ privacy was relatively slight.  This smaller intrusion, under the Terry logic, justifies the necessity of only reasonable suspicion and not probable cause to support the invasion of privacy.

According to the panel, Ramos had argued that only the particular circumstances directly related to the seizure were relevant.  C.J. Lynch disagreed and expanded the universe to what she termed the “totality” of the circumstances: the facts of the Madrid train bombings, a threatening audiotape from Osama bin Laden, 9/11, and the training that MBTA officers had received in response to the prospect of public transit terrorist attacks.  Because officers may consider the location of suspicious conduct (“[w]hat is not suspicious in one location may be highly suspicious in another”) as well as current events when evaluating risks, the true “totality of the circumstances” was well beyond what transpired on May 28, 2004.

C.J. Lynch next considered the officers’ ability to generate reasonable suspicion by relying upon Ramos’ incorrectly-reported Middle Eastern ethnicity:

Not just the recent history of Middle East-originated terrorism, but also the explicit warnings, issued some eleven weeks before, of future strikes by the same groups in the United States, meant it was material for the officers to consider, among other facts, the risk of terrorist attacks on transit stations in major urban centers and that the persons they were investigating had a Middle Eastern appearance. This is not a case about stereotyping or selective prosecution.

Given the “broad context” of the Madrid bombings, as well as all of the other factors contributing to the officers’ suspicions, the panel concluded that this reasonable suspicion did not result from illegal stereotyping or profiling.

Analysis. I had mainly two questions after reading this decision:

(1) What kind of training did these officers go through? There was very little description of the training that the officers had gone through.  What struck me was the fact that Inspector Pitts had actually undergone her training the day before her encounter with Ramos.  Had there been an instruction to be on the look out for suspicious Middle-Easterners?  If not, after this decision, there certainly could be.  Although C.J. Lynch cabined her decision at the end by ensuring that reliance upon ethnicity in generating reasonable suspicion is a context-dependent exercise, she unequivocally stated that among the contexts in which it is permissible is public transit.  It seems to me that, next time, the seminar will (or at least could) include instruction on which ethnic groups to be on the look out for.

(2) How far does C.J. Lynch’s “broad context” extend? In her decision, C.J. Lynch not only cited the Madrid bombings multiple times, but also made reference to the 9/11 attacks.  Those attacks took place three years before Ramos was apprehended.  Exactly where do we draw the line between illegal profiling and appropriately-generated suspicion?  The decision offers very little guidance on this point.  C.J. Lynch refers to both temporal and geographic limitations, but says nothing about how far such limitations might extend.  Even if I agreed that being Middle Eastern in a Charlestown subway station parking lot can contribute to reasonable suspicion three months after terrorist attacks in Madrid, I would like to see the panel make some attempt to demarcate the zone in which ethnicity plays a role in Fourth Amendment analysis.

Under the Supreme Court’s analysis in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), Mexican ancestry may be a relevant factor to generate reasonable suspicion that someone is an illegal alien because “[t]he likelihood that any given person of Mexican ancestry is an alien is high enough” to make it relevant to the constitutional analysis.  Does the chance that a person of Middle Eastern descent is a terrorist increase when they’re near a subway station?  Within a few months of a terrorist attack?  Under Brignoni-Ponce, I have to ask: How high a likelihood is high enough?

Furthermore, Inspector Pitts and the MBTA officers were wrong.  Ramos was not and is not of Middle Eastern descent.  So we must take the analysis one step further: How high a likelihood that someone looks Middle Eastern, which could include people of many dark-skinned ethnic backgrounds, is high enough to contribute to reasonable suspicion that the person is a terrorist?