Abstract: The new law allows police officers to use the standard of reasonable suspicion in making stops of pedestrians and motorists whom they suspect may be illegal aliens. Supporters of the law tout it as a means of reducing illegal immigration which they claim has taken jobs, while detractors decry it as discriminatory against Hispanics. The law is clear that reasonable suspicion is a flexible and fluid concept, but it is nonetheless based on actionable standards establishing grounds for reasonable suspicion. Race/ethnicity alone is not enough, though it may be of interest in the presence of other factors. The department should enforce the law, though there is no practical way to discipline any officer who uses a higher standard than reasonable suspicion in making stops of suspected illegal aliens.
Summary of Facts: The new anti-illegal-immigration law signed by the governor empowers police officers to use the standard of reasonable suspicion in making stops of pedestrians and motorists whom the officer believes might be illegal immigrants. The law is extremely polarizing in the community of Saint Leo: ardent supporters believe that the law will help to curb what they see as a floodtide of illegal immigration that has resulted in loss of jobs in the area. Equally ardent detractors hold that the law will lead to police officers violating the Fourth Amendment rights of those they stop, and that racial profiling will proliferate. The Sheriff has a number of complex dilemmas regarding whether or not she should enforce the law. First, the law might easily be found unconstitutional by a state appellate court. Secondly, if she does decide that the law should be enforced, she needs to know how, and she needs to know what to do if an officer refuses to enforce the law.
Issues Presented: The law itself raises two main issues: the standard of reasonable suspicion that it establishes for police stops, and the concerns about the possible use of racial profiling in establishing this reasonable suspicion. Reasonable suspicion is an extremely fluid concept, one that allows an officer to detain and search an individual for a very limited period of time when they have reasons to believe that the individual may be engaged in illegal activity, and under circumstances wherein it would be impossible or impractical to obtain a warrant in time to apprehend the suspect. Whether or not reasonable suspicion is valid in a particular case where it is invoked by an arresting officer is determined by balancing the need for the officer’s swift action in stopping or preventing criminal activity against the intrusion on individual privacy that this entails. 
Whether or not reasonable suspicion is valid in a particular case where it is invoked by an arresting officer is determined by balancing the need for the officer’s swift action in stopping or preventing criminal activity against the intrusion on individual privacy that this entails. However, there is still a significant burden of proof for the officer to meet: they must be able to articulate the factual reasons for their suspicion (articulable suspicion); their articulable suspicions must then be weighed against an ostensibly objective standard of what a reasonable person would have concluded; the officer’s experience and expertise are actionable criteria in establishing reasonable suspicion; the contributions of any informants are taken into account, and the entire situation is interpreted in light of the totality of the circumstances.
Racial profiling in law enforcement, though by no means limited to issues pertaining to reasonable suspicion, is nevertheless a particularly important concern in this context. While police officers may not base a stop solely on race or ethnicity, nevertheless race or ethnicity may be taken into account along with other factors. This sort of profiling is extremely controversial, but a vital point is that race/ethnicity alone is insufficient: other factors pertaining to the conduct of the suspect must be present.
Police discretion regarding the enforcement of laws is another ramifying concern. The simple reality is that police discretion in the enforcement of laws, at both the individual officer level and the department level, is a necessary part of contemporary police work. Police discretion in law enforcement pertains to not enforcing laws to some extent (either not enforcing them at all or not enforcing them fully), in light of practical or special considerations; it does not apply to actively breaking the law. This discretion is shaped by a number of very important considerations, first and foremost being the impracticality of enforcing all laws at all times. Police officers have limited resources to work with, and as such they must prioritize the keeping of order and the protection of life and property at the expense of not enforcing every single law at all times. Political realities are another factor, in that some laws are not intended to be strictly enforced at all times, not even by the legislators responsible for passing them in the first place. Other laws are vague, ill-defined, and subject to a great deal of interpretation. Since, as seen, “reasonable suspicion” is a standard that is subject to a great deal of fluidity and particular factors, this is certainly relevant. Other ramifying factors that influence police discretion include minor violations of the law that may not require full enforcement, and concerns about alienating the public and overwhelming the courts and criminal justice systems.
Arguments Presented by Each Side: There are two effective sides on this issue: supporters of the new law, and detractors. In favor of the detractors’ position, racial profiling is very well documented in law enforcement, including but by no means limited to the context of illegal immigration. Statistics from the Department of Justice, for example, found that although police stops of motorists did not show evidence of racial bias, police use of certain kinds of bodily and vehicular searches did: 10.2% of blacks, 11.4% of Hispanics, and only 3.5% of whites were subject to such searches. Worse, there was also evidence that police were more likely to let whites off with just a warning (27.4%), compared with blacks (18.3%) and Hispanics (18.2%). Hispanics were especially singled out for the issuance of tickets (71.5%) compared with whites (56.5%) and blacks (58.4%).
And racial profiling has been used to dismiss cases against illegal immigrants. For example, in one case a border patrol agent on the U.S.-Mexico border made a stop of a vehicle on the basis of the Mexican appearance of all three occupants. He learned that in fact, all three were in the country illegally, and duly arrested them. However, the Court ruled in favor of the defendants, because the officer’s sole grounds for stopping them had been the fact that they looked Mexican.
This is the strongest case against the new law: it is very likely that enforcing it will mean the racial profiling of Hispanics. On the other hand, however, supporters of the law are right to point out the undeniable reality that Hispanics constitute the single largest demographic group of illegal immigrants, something that is especially of relevance in border states. Although supporters of the new law do not necessarily have to favor racial profiling, nonetheless this is a key point for their case: even if the new law does entail some racial profiling, it is not necessarily unreasonable. The law is actually very clear on this point: the race/ethnicity of an individual may be taken into account only in the presence of other factors indicating a likelihood of criminal activity. Thus, under certain circumstances, race or ethnicity may actually be relevant in establishing reasonable suspicion. For example, other mitigating factors might well include proximity to the border, especially in areas known to be frequented by smugglers of illegal migrants; vehicle type, since certain kinds of SUVs with tinted windows are favored; evidence that the vehicle may be heavily loaded with passengers, and observations of people attempting to hide from the officer. Under such circumstances, reasonable suspicion may be established, and has been successfully defended in cases involving illegal immigration.
Applicable Law: The seminal case here is Terry v. Ohio (1968), which established the legality of the standard of reasonable suspicion with regards to Fourth Amendment protections against unreasonable searches and seizures. In this case, a plainclothes detective observed two men, defendants Chilton and Terry, engaged in suspicious behavior that indicated they were “casing” stores preparatory to robbing them. They met up with a third defendant, Katz, parted ways, and then met up again. As a veteran with thirty-nine years of service, McFadden determined the men’s likely intentions, confronted them, and upon patting them down discovered weapons on Terry and Chilton. All three were duly arrested, and the legality of the arrest was upheld by the Warren Court.
In Adams v. Williams (1972), the Court determined that the reasonable suspicion doctrine was not limited to violent crimes, and could be applied to crimes such as drug possession. In this case, the defendant, Williams, was detained on the basis of an informant’s tip, the time (2:00 AM), and the fact that he was in a high-crime neighborhood, all factors which worked to establish reasonable suspicion. And in Alabama v. White, an anonymous tip was held to be sufficient to detain the defendant, Vanessa White, on the grounds that the officer’s observations of White’s movements fit the informant’s highly specific predictions exactly. White went to the location that the informant had specified at the time that the informant had specified, and proved to be in possession of about an ounce of cocaine, again as the informant had specified. The reason that this stop was ruled legal was that the informant’s highly detailed information revealed inside knowledge about the defendant. On the other hand, in Florida v. J. L. (2000), the Court ruled unanimously against the legality of reasonable suspicion on the basis of the anonymous tip that “a ‘young Black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun’.”
Specifically in the context of immigration, there is ample case law to work from. A key case here is United States v. Brignoni-Ponce, previously discussed. Although the officer was correct in his suspicion that the three suspects were in the country illegally, the stop was nevertheless held to be in violation of the Fourth Amendment on the grounds that ethnicity was not sufficient by itself to establish reasonable suspicion. However, in this case the Court did establish some important criteria for reasonable suspicion in illegal immigration cases: firstly, the area itself may have characteristics that make it relevant, such as “’proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic.’” Other factors may include “’information about recent illegal border crossings in the area’”; the behavior of the driver; the type of the vehicle; any indication that the vehicle is heavily loaded with passengers, and any observation on the part of the officer of persons attempting to hide.
It was United States v. Cortez (1981) that established the totality of the circumstances test. The issue in this case pertained to whether or not Border Patrol can use the reasonable suspicion doctrine to stop a car, in this case a car driven by Jesus Cortez, a coyote who smuggled illegals across the border. And in United States v. Arvizu (2002), the Court ruled that another Border Patrol stop, of a minivan that proved to contain over 128 pounds of marijuana, was legal on grounds of reasonable suspicion, which included the vehicle’s route, the behavior of its occupants, and where it had been registered.
Recommendation: The department should enforce the law. As seen, the doctrine of reasonable suspicion does not violate the Fourth Amendment rights of pedestrians and motorists who are stopped. The standard of reasonable suspicion is, by necessity, a very fluid one, and it is subject to a great deal of particular factors pertaining to the situation and even the officer’s experience. Importantly, the standard has been consistently upheld by the Court, and the key cases, notably the ones presented above, have established very clear standards for what does and does not constitute grounds for reasonable suspicion.
The issue of racial profiling is the most contentious for detractors of the law. To be fair to this side of the argument, they do have a very good point: Hispanic residents of the community are more likely to feel profiled when stopped, and the reality is that they are more likely to be profiled in fact. That said, this is scarcely grounds for refusing to enforce the law. Fisher, Deason, Borgida, and Oyamot (2011) found that officers called upon to enforce Arizona’s highly contentious and polarizing Senate Bill 1070 are likely to hold negative views of illegal immigrants, views which may prejudice their enforcement in ways that will display racial bias against Hispanics. They argue that training interventions should focus on changing officers’ perceptions of social norms regarding attitudes about immigrants: instead of viewing public perceptions of immigrants as ambiguous or negative, officers should be taught to see them in a more ambiguous to positive light. They should also be encouraged to adhere to the American tradition of egalitarianism, which will help them to see immigrants as fellow human beings, even if they are in the country illegally.
Consequently, although the department should enforce the law, we should also do so in a way that minimizes interference and intrusion to the individual. This is entirely in keeping with the American tradition of egalitarianism, and with the best sentiments of racial and cultural acceptance. Again, as seen, the concept of reasonable suspicion is actually very fluid, and officers will have a tremendous amount of latitude in enforcing this law. This is also why officers refusing to enforce this law is essentially a non-issue: as long as they are performing their usual duties, including detaining persons they have determined (presumably by other means than reasonable suspicion) are in the country illegally, there is effectively nothing the department can or should do. How does one establish whether or not an officer “should have” had reasonable suspicion sufficient to stop someone? In other words, if they refuse to use this standard, it will be very difficult if not impossible to even prove this, since the illegal alien would have to be detained by some other officer under circumstances wherein it could be established that the noncompliant officer should have stopped them. There are so many uncertainties, vagaries and unknowns here that any suggestion of taking legal action against a noncompliant officer is almost ludicrous.
Reasons: Although police discretion is an essential part of contemporary police work, the precedents for this law are well-established as per the cases discussed. The doctrine of reasonable suspicion is not arbitrary, though it is highly fluid: the particular circumstances of any given stop may be highly contingent, but there are a number of very actionable criteria that have been delineated to establish whether such a stop is justified or not. Accordingly, the department does have to enforce this law, at least within the limits of police discretion. Refusal to comply with it at least to some degree would be very bad politics. Again, however, we must respect individual rights, we must take the utmost care to avoid or minimize charges of racial profiling, and we must enforce the law in a way that minimizes intrusion.
Core Values: The core values of supporters of the law would seem to involve taking care of their community and protecting their own livelihoods: in other words, for all that they might draw charges of xenophobia from some detractors, many of them are probably very civic-minded and value their conceptions of fairness. Fairness is certainly a concern with detractors, particularly with regards to their concern that the law will unfairly target Hispanics. This is an important area of common ground between both groups, and with the police department as well. This is what the department should emphasize, along with integrity, honesty, and a commitment to following the law in a transparent fashion. By so doing, we can make the very best of a difficult and loaded political situation.
Cretacci, M.A. (2007). Supreme Court case briefs in criminal procedure. Lanham, MD: Rowman & Littlefield.
Fisher, E.L., Deason, G., Borgida, E., & Oyamot, C.M. (2011). A model of authoritarianism, social norms, and personal values: Implications for Arizona law enforcement and immigration policy. Analyses of Social Issues and Public Policy, 11(1), pp. 285-299. Retrieved from http://search.ebscohost.com/
Hess, K.M. (2008). Introduction to law enforcement and criminal justice (9th ed.). Belmont, CA: Wadsworth.
Lippmann, M. (2010). Criminal procedures (2nd ed.). Thousand Oaks, CA: SAGE Publications, Inc.
McInnis, T.N. (2010). The evolution of the Fourth Amendment. Lanham, MD: Rowman & Littlefield.
Miller, S., & Blackler, J. (2005). Ethical issues in policing. Burlington, VT: Ashgate Publishing Company.
Pelic, J. (2003). United States v. Arvizu: Investigatory stops and the Fourth Amendment. Journal of Law & Criminology, 93(4), pp. 1033-1056. Retrieved from http://search.ebscohost.com/
Samaha, J. (2011). Criminal procedure (8th ed.). Belmont, CA: Wadsworth.
Starks, G.L. (2008). Profiling. In J. Pinkowski (Ed.), Homeland Security Handbook (pp. 239-250). Boca Raton, FL: Taylor & Francis Group.
 Lippman, 2013, pp. 94-95.
 Lippmann, 2013, pp. 95-96.
 Lippmann, 2013, p. 94; McInnis, 2010, p. 146.
 Hess, 2008, pp. 398-399; Miller & Blackler, 2005, p. 57.
 Hess, 2008, pp. 398-399.
 Starks, 2008, p. 242.
 P. 242.
 Pelic, 2003, p. 1036.
 Lippmann, 2013, p. 97; Pelic, 2003, pp. 1036-1037; Starks, 2008, pp. 243-244.
 Lippmann, 2010, pp. 95-96.
 Samaha, 2011, pp. 95, 100.
 P. 100.
 Pelic, 2003, p. 1036.
 Pp. 1036-1037.
 Cretacci, 2007, p. 131; Pelic, 2003, p. 1037.
 Pelic, 2003, pp. 1040-1045.
 Fisher et al., 2011, pp. 293-295.
 Hess, 2008, pp. 398-399; Miller & Blackler, 2005, p. 57.