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That’s a tough call but my guess is that the Courts will address the issue sooner rather than later.

All of the political issues aside (this is a legal blawg — not a political blawg), one of the chief controversies over the bill is whether it would implicitly require an officer to racially profile potential illegal immigrants.

The author of the bill, Kris Kobach, a law professor from the University of Missouri- Kansas City, believes he has crafted the bill in such a way as to survive a constitutional challenge.  Mr. Kobach states the bill prohibits the use of race, color, or ethnicity from being factors in an officer’s determinations of reasonable suspicion.  This is not unlike Texas’ Code of Criminal Procedure 2.131 which simply reads, “A peace officer may not engage in racial profiling.”

As a specific example in a recent interview, Kobach said, “You might have a vehicle overloaded, no one in the vehicle has any identification whatsoever. The driver of the vehicle is acting evasively and trying not to answer the officer’s questions, perhaps one person in the vehicle concedes that he is unlawfully present [in the US],”

The U.S. Court of Appeals for the 5th Circuit (the Circuit governing Texas and Louisiana — and widely regarded as one of the more conservative appellate courts in the country) ruled to suppress an arrest on similar facts just this past October in United States v. Rangel-Portillo, 586 F.3d 376 (5th Cir. 2009).

In that case Cipriano Rangel-Portillo was charged with multiple counts of transporting illegal aliens.  The facts of the initial stop according to the Court were as follows:

A U.S. Border patrol officer passed a large retail store parking about 500 yards from the Texas – Mexico border.  Due to the close proximity to the Mexican border, the officer stated the area was known for drug smuggling.  He observed two vehicles exiting the parking lot onto the highway and decided to follow them because they looked suspicious.

The officer made several observations about the driver and the three passengers in the vehicle in question. The driver initially looked straight ahead, but when the patrol unit approached the vehicle, he noticed that the driver looked at him and made eye contact. In contrast to the driver, the three backseat passengers avoided eye contact, were “stone-faced,” and looked straight forward. According to the officer, “the passengers didn’t look at [him] enough and the driver looked at [him] too much.”

The passengers never conversed once for several miles and were sweating “pretty bad.” The windows were rolled up and the passengers appeared “very stiff.” The officers could see inside the windows of the vehicle and because they were higher than the suspects vehicle, they could see on the floorboards that there were no shopping bags from the store.

The officers detained the driver and passengers and discovered the three passengers were undocumented.  The Fifth Circuit concluded there was not enough reasonable suspicion to detain the vehicle and the arrest and detention of Mr. Rangel-Portillo was thrown out.

In a nutshell — the border patrol in attempting to establish reasonable suspicion was essentially multiplying zeros.  In other words — one, three, or five perfectly legal activities (albeit suspicious), are still perfectly legal activities and can’t be subject to detention.

Mr. Kobach’s hypothetical scenario, then, appears somewhat at odds with the 5th Circuit’s opinion.  Arizona’s promise to not utilize factors such as race and ethnicity, may be viewed as somewhat unrealistic or tone-deaf in light of how courts analyze situations such as Rangel-Portillo.  Then again, perhaps Mr. Kobach’s buffer language prohibiting racial profiling may be enough to save the statute.  The Court’s analysis will be interesting.

Currently several cities in Arizona as well as the U.S. Department of Justice are reviewing the law to see whether they wish to make legal challenges prior to it’s going into effect.  Stay tuned!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice you should always directly consult an attorney.