Wednesday, March 21, 2007

U.S. v. Al Nassar (9th Cir. - March 20, 2007)

You'd think that this was a law school exam hypothetical if you didn't read it in the Federal Reporter. There's so many strange facts that make the proper resolution difficult that you'd think the professor had deliberately made them up:

"A Border Patrol agent was patrolling a stretch of highway running north from the Mexican border in Arizona through an Indian reservation, the Tohono O’odham Nation. He spotted a pickup truck around nine at night that he suspected was carrying illegal aliens, and stopped it. It turned out that there were no illegal aliens in the truck, but there was alcohol, which was illegal on that part of the reservation. The Border Patrol agent called a tribal officer to come over and take charge of the violators. The other Border Patrol agent on the
stretch of highway came over too.

Meanwhile, a sedan drove toward the area where the pickup truck and two Border Patrol vehicles were stopped. When the Border Patrol agent shined his flashlight at it so he would be seen, despite the darkness and his dark clothing, he saw people hiding in the back seat (he is six feet nine inches tall, and has a good view down toward the floor when a small sedan passes him and he shines his flashlight in). So the Border Patrol agent told the driver to stop the sedan and directed the driver to pull over with hand gestures. After the sedan
stopped, the agent took the keys, and determined that this second stop did indeed produce illegal aliens.

While the three law enforcement vehicles, with two light bars flashing, and the two stopped vehicles were still there, Al Nasser drove up. The tall Border Patrol agent again shined his flashlight so he would be seen and not hit, and again saw people hiding on the floor behind the front seat. He thought this car probably had illegal aliens in it, and said so to his colleague, but chose not to stop it because they already had their hands full. The Border Patrol agents were still busy processing the illegal aliens in the sedan, and the tribal officer was still processing the people with alcohol in the pickup truck.

But Al Nasser stopped anyway. It is understandable that he did, since there were now five vehicles pulled to the side of the road, two or three with flashing lights, more or less blocking the northbound lane. But no one told him or signaled him to stop. . . . The Border Patrol agents were just too busy for another carful of illegal aliens and were going to let this one go to avoid the safety problem of having to control so many people.

The Border Patrol agent spoke to Al Nasser in Spanish, assuming he was Mexican, but it turned out that Al Nasser was Iraqi and could not understand Spanish."

Some neat Fourth Amendment issues. That Judge Kleinfeld (over Judge Ferguson's dissent) resolves against Al Nasser.