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In a ruling that shocked even veteran observers, the United States Court of Appeals for the 10th Circuit ruled that having tinted windows on your vehicle, owning more than one cell phone and even having acne scars on your skin are all sufficient grounds for a warrantless search.
The court made the determination when it denied a motion to suppress evidence of marijuana possession that US Border Patrol Agent Joshua Semmerling had found in Cindy Lee Westhoven ’s truck. Westhoven believes her Fourth Amendment rights were violated.
Semmerling said he pulled her over and searched her vehicle for reasons that would make many if not most drivers guilty.
As she drove on Route 80 in southern New Mexico she was observed holding the steering wheel in what Semmerling considered a suspicious manner – a 10-2 position, the same driving method students all across the country are taught.
The stop occurred 45 miles from the border.
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“Agent Semmerling noticed as Ms. Westhoven was driving past him that she appeared stiff with elbows locked and hands in the ten-and-two position on the steering wheel,” Judge Scott M. Mattheson Jr. listed as one of the justifications for the stop in his opinion on the case.
After pulling her over, Semmerling noticed other suspicious factors, such as acne scars on Westhoven’s arms, tinted windows on her truck and two mobile phones on her seat. He requested to search her vehicle, and she refused. He used all this as a pretext to call in backup and a drug-sniffing dog that found marijuana in her truck.
She told the agent that she had been shopping in Douglas, Arizona, but the agent thought this was suspicious because “Tucson had better shopping opportunities.”
“In other words, the police can now stop you for no reason at all,” attorney and Huffington Post contributor Larry Bodine wrote of this case. “Law enforcement just needs to add a sinister context to your behavior, and off you go to jail.”
Nervousness now Sinister Behavior
The sinister behavior in Westhoven’s case included the fact she became nervous when stopped by the police, Mattheson noted.
“Because Agent Semmerling testified he had never seen someone shake that much, indicating extreme nervousness, we afford her nervousness some weight,” Mattheson wrote in his opinion. “Additionally, Agent Semmerling noticed Ms. Westhoven’s appearance was consistent with that of a drug user, including acne and facial scars, indicating to him that she might be willing to engage in drug smuggling. Agent Semmerling also noticed she had two cell phones, which was, in his experience, common practice for drug smugglers.”
Sadly, the opinion supports the US Supreme Court’s contention that the Fourth Amendment’s protection against unreasonable searches and seizures does not extend to vehicles and traffic stops. It also lends credence to the idea that the US Border Patrol has effectively turned the regions near the US Mexico border into a Constitution Free Zone.
All together, it may change how and where Americans drive.
The case is called USA vs. Cindy Lee Westhoven.
Do you believe Semmerling should have been stopped? Let us know in the comments section below.
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