texas civil rights project amicus brief

8/12/2019 Texas Civil Rights Project Amicus Brief

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NO. 13-51114

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RICHARD RYNEARSON,Appellant,

v.

UNITED STATES OF AMERICA, et al,

Appellees.

On Appeal from No. 2:12-CV-24 in the United States District Court for

the Western District of Texas

UNOPPOSED MOTION BY AMICUS CURIAE

TEXAS CIVIL RIGHTS PROJECT

FOR LEAVE TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF APPELLANT AND URGING REVERSAL

Pursuant to Federal Rule of Civil Procedure 29(b) and Fifth Circuit

Rule 29.1, Amicus Curiae Texas Civil Rights Project (TCRP) files this

unopposed motion for leave to file an amicus curiae brief in this appeal in

support of the Appellant Richard Rynearson. The brief supports reversal of

the district courts order below. The proposed brief is being filed along with

this motion, electronically and in paper form.

Undersigned counsel communicated via email on March 5 and 6,

2014, with Javier Maldonado, counsel for appellant, and with Steve Frank

Case: 13-51114 Document: 00512553800 Page: 1 Date Filed: 03/07/2014


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and Harold Brown, counsel for appellees, and was informed that none of the

parties oppose the filing of TCRPs amicus curiae brief.

An amicus brief is desirable because this appeal concerns the legality

under the Fourth Amendment of the appellants 34-minute detention at an

immigration checkpoint. TCRP is a non-profit public interest law

organization with a strong interest in ensuring that individuals civil rights

and liberties under the Bill of Rights of the United States Constitution are

not abridged or modified, whether through legislation, improper

enforcement, or judicial action. TCRP has appeared as amicus curiae or

represented individuals in litigation involving privacy rights and Fourth

Amendment rights to be free from illegal search and seizure.

TCRPs amicus brief will outline well-established law relevant to the

disposition of this case, showing that a detainee at an immigration

checkpoint has a Fourth Amendment right to decline to cooperate with

Border Patrol agents or respond to their questions, and that the Fourth

Amendment does not permit a detainee to be penalized for any such

assertion of rights, nor does such assertion of rights justify the extension of a

checkpoint stop beyond the brief and nonintrusive detention contemplated

by United States v. Martinez-Fuerte, 428 U.S. 543, 557-58 (1976).



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Amicus Curiae Texas Civil Rights Project prays that this unopposed

motion for leave to file amicus curiae brief be granted.

March 7, 2014

Respectfully submitted,

s/ Amy C. Eikel_________

Amy C. EikelKING & SPALDING LLP

1100 Louisiana, Suite 4000Houston, Texas 77002

Telephone: 713- 751-3200

Fax: 713-751-3290Email: [email protected]

Attorney for Amicus Curiae

Texas Civil Rights Project



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CERTIFICATE OF INTERESTED PERSONS

No. 13-51114,Rynearson v. United States of America.

The following listed persons and entities, as described in the fourth

sentence of Rule 28.2.1, have an interest in this matter. These

representations are made in order that the judges of this Court may evaluate

possible disqualification or recusal.

Richard Rynearson, plaintiff-appellant

Javier Maldonado, counsel to plaintiff-appellant

Justin K. Lands, defendant-appellee

Raul Perez, defendant-appellee

Harold E. Brown, counsel to defendant-appellees

Steve Frank, counsel to defendant-appellees

Texas Civil Rights Project, amicus curiae (Texas Civil Rights Project is a

not-for-profit corporation with no parent corporation, and there is nopublicly held corporation that owns 10% or more of its stock).

Amy C. Eikel, counsel for amicus curiae Texas Civil Rights Project


Amy C. Eikel, Attorney of Record

for Amicus CuriaeTexas Civil Rights Project



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CERTIFICATE OF SERVICE

I hereby certify that, on March 7, 2014, I served the foregoing motion

upon the following counsel of record by filing a copy of the document with

the Clerk through the Courts electronic docketing system, and by sending

hard copies of the motion via UPS to:

Harold Edwin Brown, Jr.

U.S.ATTORNEYS OFFICE

Western District of Texas601 N.W. Loop 410, Suite 600

San Antonio, TX [email protected]

Steve I. Frank

U.S.DEPARTMENT OF JUSTICECivil Division, Appellate Staff

Room 7245950 Pennsylvania Avenue, N.W.Washington, DC 20530-0001

[email protected]

Javier N. MaldonadoLAW OFFICE OF JAVIERN.MALDONADO,PC

8918 Tesoro Dr., Ste. 575San Antonio, TX 78217

[email protected]


Amy C. Eikel



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NO. 13-51114

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RICHARD RYNEARSON,

Appellant,

v.

UNITED STATES OF AMERICA, et al,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

DISTRICT COURT NO. 2:12-CV-24

BRIEF FOR AMICUS CURIAETEXAS CIVIL RIGHTS PROJECT

(filed in support of Appellant Richard Rynearson and urging reversal)

Amy C. Eikel(attorney in charge)

Texas Bar No. 00787421KING & SPALDING LLP

1100 Louisiana, Suite 4000Houston, Texas 77002Phone: (713) 751-3200

Fax: (713) 751-3290Email: [email protected]

Attorney for Amicus Curiae Texas Civil Rights Project

Case: 13-51114 Document: 00512553813 Page: 1 Date Filed: 03/07/2014 Case: 13-51114 Document: 00512553955 Page: 1 Date Filed: 03/07/2014


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SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES

No. 13-51114,Rynearson v. United States of America.

In compliance with Rule 29.2, the undersigned counsel of record

certifies that, in addition to those persons listed in the parties certificates of

interested persons, the following listed persons and entities as described in

the fourth sentence of Rule 28.2.1 have an interest in this amicus brief.

These representations are made in order that the judges of this Court may

evaluate possible disqualification or recusal.

Amicus Curiae Texas Civil Rights Project

Amicus Curiae Texas Civil Rights Project certifies that it is a not-for-

profit corporation with no parent corporation and that there is no publicly

held corporation that owns 10% or more of its stock.

Counsel for Amicus Curiae Texas Civil Rights Project

Amy C. Eikel

KING &SPALDING LLP1100 Louisiana, Suite 4000

Houston, Texas 77002

s/ Amy C. Eikel_________Amy C. Eikel, Attorney of Recordfor Amicus Curiae




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TABLE OF CONTENTS

SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES ............................ iTABLE OF CONTENTS .......................................................................................... iiTABLE OF AUTHORITIES ................................................................................... iiiSTATEMENT OF INTEREST .................................................................................. 1RULE 29(C)(5) STATEMENT ................................................................................. 1STATEMENT OF THE ISSUES ADDRESSED BY AMICUS CURIAE .............. 2SUMMARY OF THE ARGUMENT ........................................................................ 2ARGUMENT ............................................................................................................. 4I. A checkpoint detainee has a constitutional right to refuse to cooperate

with police inquiries. ....................................................................................... 4II. A Border Patrol officer may not extend the duration of a suspicionless

immigration stop solely because an individual stands on his rights. .............. 9CONCLUSION ........................................................................................................ 20CERTIFICATE OF COMPLIANCE ....................................................................... 21CERTIFICATE OF FILING AND SERVICE ........................................................ 22



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TABLE OF AUTHORITIES

Cases Pages

Berkemer v. McCarty,468 U.S. 420(1984) ................................................................................. 5-8

City of Houston v. Hill,

482 U.S. 451(1987) .................................................................................. 13

City of Indianapolis v. Edmond,

531 U.S. 32(2000) ...................................................................................... 8

Curley v. Klem,499 F.3d 199(3d Cir. 2007) ..................................................................... 13

Davis v. Mississippi,394 U.S. 721(1969) ..................................................................................... 5

Florida v. Bostick,

501 U.S. 429(1991) .................................................................................. 10

Florida v. Royer,

460 U.S. 491(1983) ................................................................................... 11

Illinois v. Wardlow,

528 U.S. 119(2000) .................................................................. 4, 12, 17, 19

Johnson v. Campbell,332 F.3d 199(3d Cir. 2003) ......................................................... 14, 15, 16

Karnes v. Skrutski,62 F.3d 485(3d Cir. 1995) ........................................................... 13, 14, 19

Kolender v. Lawson,461 U.S. 352(1983) ........................................................................ 5, 15, 16

Miranda v. Arizona,

384 U.S. 436(1966) ............................................................................ 6, 7, 8

Terry v. Ohio,392 U.S. 1(1968) ............................................................................... passim

Tom v. Voida,

963 F.2d 952(7th Cir. 1992) .................................................................... 12

United States v. Brignoni-Ponce,422 U.S. 873(1975) .................................................................................... 9

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STATEMENT OF INTEREST

The Texas Civil Rights Project (TCRP) is a non-profit public

interest law organization with a membership base of approximately 3,000

Texans. TCRP has always had a strong interest in ensuring that individuals

civil rights and liberties under the Bill of Rights of the United States

Constitution are not abridged or modified, whether through legislation,

improper enforcement, or judicial action. TCRP has appeared as amicus

curiae or represented individuals in litigation involving privacy rights and

Fourth Amendment rights to be free from illegal search and seizure.

Counsel for all parties have consented to the filing of TCRPs amicus

brief in this appeal.

RULE 29(C)(5) STATEMENT

No counsel for a party authored this brief in whole or in part, and no

such counsel or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than the amicus

curiae, its members or its counsel, made a monetary contribution intended to

fund the preparation or submission of this brief.



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STATEMENT OF ISSUES ADDRESSED BY AMICUS CURIAE

1. Does a detainee at an immigration checkpoint have a FourthAmendment right to decline to cooperate with Border Patrol agents or

respond to their questions?

2. Does the Fourth Amendment permit the Border Patrol to extendthe duration of a suspicionless immigration stop solely because an individual

stands on his rights not to exit the vehicle, roll his window completely down,

produce identification, or answer every question asked? Does such lack of

cooperation, in itself, justify extension of a checkpoint stop beyond the brief

and nonintrusive detention contemplated byMartinez-Fuerte?

SUMMARY OF THE ARGUMENT

The district courts opinion below incorrectly assumed that a traveler

is required, and presumably may be compelled, to answer every question

asked by an officer at a suspicionless checkpoint. In this brief, Amicus

Curiae Texas Civil Rights Project will outline the clearly established law

showing that an individual is under no obligation to respond to law

enforcement officers questions during an investigative stop, and in fact has

a constitutional right to remain silent and decline to cooperate.

The district court also incorrectly assumed that a checkpoint

detainees exercise of his constitutional rights provides a valid reason to



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detain him for a longer period of time, either because his lack of cooperation

raises some kind of suspicion of criminal activity justifying further

detention, or because the detainees exercise of his rights makes him, and

not the government agents, responsible for any increase in the length of the

detention. These conclusions are not supported by the law.

Although a traveler stopped at an immigration checkpoint must stop

when ordered to do so, he has no obligation to affirmatively cooperate with

and actively assist an officers immigration inspection. If a traveler chooses

not to answer some questions, or otherwise chooses to stand on his right not

to cooperate, that partial refusal or lesser level of cooperation does not

justify longer or indefinite detention. Otherwise, any officer at an

immigration checkpoint could theoretically detain a traveler indefinitely

until the officer is subjectively satisfied that the traveler is not violating

immigration laws (or any other laws), and the immigration stop would be

converted into a de facto arrest. The Fourth Amendments tight limitations

on the conduct of government agents at suspicionless checkpoints are not

loosened by a citizens decision to stand on his rights.



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ARGUMENT

I. ACHECKPOINT DETAINEE HAS A CONSTITUTIONAL RIGHT TO REFUSETO COOPERATE WITH POLICE INQUIRIES.

[W]hen an officer, without reasonable suspicion or probable cause,

approaches an individual, the individual has the right to ignore the police

and go about his business. And any refusal to cooperate, without more, does

not furnish the minimal level of objective justification needed for a detention

or seizure. Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (citations and

internal quotation marks omitted). An individual normally has the right to

go about his business or to stay put and remain silent in the face of police

questioning.Id.

During an investigatory detention governed by Terry v. Ohio, 392

U.S. 1 (1968) and its progeny,1 a law enforcement officer may ask the

detainee a moderate number of questions to determine his identity and to try

to obtain information confirming or dispelling the officers suspicions. But

1Although an immigration checkpoint stop does not require reasonable suspicion

at its inception, Terry and its progeny have been used to evaluate whether

checkpoint stops are lawful in scope and duration. See United States v. Ellis, 330

F.3d 677, 679-80 (5th Cir. 2003) (noting that the Fifth Circuit delineated thebounds of immigration stops by applying our long-standing jurisprudence

regarding stops based on reasonable suspicionso-called Terry stopsto

programmatic immigration stops.); see also United States v. Martinez-Fuerte,

428 U.S. 543, 557-62(1976) (relying on Terry to set appropriate limitations on

the scope of the stop, limitations that provide the principal protection of Fourth

Amendment rights at checkpoints).

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the detainee is not obliged to respond. And, unless the detainees answers

provide the officer with probable cause to arrest him, he must then be

released. Berkemer v. McCarty, 468 U.S. 420, 437-40 (1984) (emphasis

added); see also Terry v. Ohio, 392 U.S. 1, 34(1968) (White, J., concurring)

(observing that in an investigatory detention, the person stopped is not

obliged to answer, answers may not be compelled, and refusal to answer

furnishes no basis for an arrest) (emphasis added).

It is a settled principle that while police have the right to request

citizens to answer voluntarily questions concerning unsolved crimes they

have no right to compel them to answer. Kolender v. Lawson, 461 U.S.

352, 360& n.9 (1983) (quotingDavis w. Mississippi, 394 U.S. 721, 727n.6

(1969)) (emphasis added). The Supreme Court held in Kolender that to the

extent that state law criminalizes a suspects failure to answer . . . questions

put to him by police officers, Fifth Amendment concerns are implicated.

Kolender, 461 U.S. at 727n.6.2

2Hiibel v. Sixth Judicial District Court, 542 U.S. 177(2004), did not hold to the

contrary. Hiibel merely upheld a narrow state statute allowing arrest for asuspects failure to identify himself when validly stopped for reasonable

suspicion of a crime, and when the request for identification was reasonably

related to the circumstances justifying the stop.Hiibel, 542 U.S. at 187-88.Hiibel

acknowledged, but factually distinguished, language in the majority opinion in

Berkemer and the concurrence in Terry that a suspect detained during a Terry

stop is not obliged to respond to questions. Hiibel, 542 U.S. at 187. Because the

Nevada statute only required a suspect to identify himself, and expressly did not

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Although the Constitution does not forbid law enforcement officers

from asking questions during a traffic stop if the detention is not lengthened

thereby, detainees are under no obligation to answer the questions.

United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) (emphasis

added); see also United States v. Everett, 601 F.3d 484, 496(6th Cir. 2010)

(the rule that extraneous questions during a Terry stop are permissible, in

the absence of prolongation of the detention, is premised upon the

assumption that the motorists responses are voluntary and not coerced.).

Indeed, a detainees constitutional right not to answer police questions

is inherent in the nature of a Terry-type investigatory detention. The

Supreme Court relied on this idea in Berkemer, when it held that a vehicle

stop detainee is not in custody for the purposes ofMiranda v. Arizona, 384

U.S. 436 (1966), and that therefore an officer is not required to read the

suspect his Miranda rights during a traffic stop. The Courts holding was

explicitly based on the premise that traffic stops, like traditional Terry stops,

are nonthreatening and noncoercive because the detainee is not

required to respond to the officers questions:

require the suspect to answer any other inquiry, the Hiibel majority concluded

thatBerkemer and Terry were not controlling on the narrow issue of whether a

State can compel a suspect to disclose his name during a Terry stop. Id.at 187.

Because Mr. Rynearson did identify himself,Hiibel is not at issue here.

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Two features of an ordinary traffic stop mitigate the danger thata person questioned will be induced to speak where he would

not otherwise do so freely, [as contemplated by Miranda v.

Arizona]. First, detention of a motorist pursuant to a traffic stop

is presumptively temporary and brief. The vast majority ofroadside detentions last only a few minutes. . . . Second,

circumstances associated with the typical traffic stop are notsuch that the motorist feels completely at the mercy of the

police. To be sure, the aura of authority surrounding an armed,uniformed officer and the knowledge that the officer has some

discretion in deciding whether to issue a citation, incombination, exert some pressure on the detainee to respond toquestions. But other aspects of the situation substantially offset

these forces. . . . In both of these respects, the usual traffic stop

is more analogous to a so-called Terry stop, . . . than to aformal arrest. . . . Under the Fourth Amendment, we have held,a policeman who lacks probable cause but whose observations

lead him reasonably to suspect that a particular person hascommitted, is committing, or is about to commit a crime, may

detain that person briefly in order to investigate thecircumstances that provoke suspicion. . . . Typically, this means

that the officer may ask the detainee a moderate number ofquestions to determine his identity and to try to obtain

information confirming or dispelling the officers suspicions.

But the detainee is not obliged to respond. And, unless the

detainees answers provide the officer with probable causeto arrest him, he must then be released. The comparativelynonthreatening character of detentions of this sort explains theabsence of any suggestion in our opinions that Terrystops are

subject to the dictates of Miranda. The similarly noncoerciveaspect of ordinary traffic stops prompts us to hold that persons

temporarily detained pursuant to such stops are not in custodyfor the purposes ofMiranda.

Berkemer v. McCarty, 468 U.S. 420, 437-40(1984) (citations and internal

quotation marks omitted; emphasis added). Under this reasoning, if a Terry

detainee were able to be compelled to respond to questions, he should not be

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interrogated without being read hisMiranda rights. See Berkemer, 468 U.S.

at 434(as opposed to a traffic stop detainee, a person subjected to custodial

interrogation is entitled to the benefit of the procedural safeguards

enunciated inMiranda).

Justice Brennan similarly explained the nature of a Terry stop in his

concurring opinion in United States v. Place, noting that Terrys relaxation

of the probable cause standard is justified only by the requirements that an

investigatory stop be brief, minimally intrusive, and not coercive.

It is clear that Terry, and the cases that followed it, permit only

brief investigative stops and extremely limited searches based

on reasonable suspicion. They do not provide the police with acommission to employ whatever investigative techniques they

deem appropriate. . . . Anything more than a brief stop must bebased on consent or probable cause. During the course of thisstop, the suspect must not be moved or asked to move more

than a short distance; physical searches are permitted only tothe extent necessary to protect the police officers involved

during the encounter; and, most importantly, the suspect

must be free to leave after a short time and to decline toanswer the questions put to him.

United States v. Place, 462 U.S. 696, 714-15 (1983) (Brennan, J.,

concurring) (internal citations and quotation marks omitted).

Immigration checkpoint stops are arguably even more limited than

Terry stops, given that they are made with no suspicion at all. See City of

Indianapolis v. Edmond, 531 U.S. 32, 39 (2000) (noting that

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constitutionality of suspicionless immigration checkpoints is justified by

the relatively modest degree of intrusion entailed by the stops).

The principal protection of Fourth Amendment rights at checkpoints

lies in appropriate limitations on the scope of the stop. United States v.

Martinez-Fuerte, 428 U.S. 543, 557-58(1976) (citing Terry, 392 U.S. at 24-

27; United States v. Brignoni-Ponce, 422 U.S. 873, 881-82(1975)).

Therefore, given the established law to the contrary, the district court

erred in assuming (ROA.486) that a checkpoint detainee is required or

expected to respond to all questions from a Border Patrol officer. Instead,

the checkpoint detainee, like any person stopped under Terry, has a well-

established constitutional right not to respond or cooperate.

II. ABORDER PATROL OFFICER MAY NOT EXTEND THE DURATION OF ASUSPICIONLESS IMMIGRATION STOP SOLELY BECAUSE AN INDIVIDUAL

STANDS ON HIS RIGHTS.

As stated above, a traveler stopped at an immigration checkpoint may

not be required or compelled to cooperate or respond to all of the officers

questions, either by being arrested for failing to respond, or by having his

detention extended until he does respond.

We have consistently held that a refusal to cooperate, without more,

does not furnish the minimal level of objective justification needed for a

detention or seizure, and an individual may decline an officer's request

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without fearing prosecution. Florida v. Bostick, 501 U.S. 429, 435-37

(1991). It would make a mockery of the reasonable suspicion and probable

cause requirements . . . if citizens insistence that searches and seizures be

conducted in conformity with constitutional norms could create the

suspicion or cause that renders their consent unnecessary. United States v.

Machuca-Barrera 261 F.3d 425, 435n.32 (5th Cir. 2001) (quoting United

States v. Hunnicutt, 135 F.3d 1345, 135051 (10th Cir. 1998)).

If ones refusal to cooperate with law enforcement were enough to

justify prolonged detention . . . the strictures of the Fourth Amendment,

would mean little to nothing. United States v. Charrington, 285 F. Supp. 2d

1063, 1069(S.D. Ohio 2003) (holding that prolonged detention of defendant

at military checkpoint violated the Fourth Amendment and that failure to

cooperate did not justify further detention absent probable cause of a

crime); see also United States v. Massenburg, 654 F.3d 480, 491 (4th Cir.

2011) (no reasonable suspicion was raised from defendants refusal to

consent to a search and avoidance of eye contact, which is simply a mild

reaction to repeated requests to relinquish ones constitutional right to be

free from unreasonable searches). If refusal of consent were a basis for

reasonable suspicion, nothing would be left of Fourth Amendment

protections. United States v. Santos, 403 F.3d 1120, 1126(10th Cir. 2005).

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Thus, although a traveler stopped at an immigration checkpoint must

stop when ordered to do so, he has no obligation to affirmatively cooperate

with and actively assist an officers immigration inspection. If a traveler

chooses not to answer some questions (or otherwise chooses to stand on his

rights by verbally challenging the officers legal authority to detain him, or

declines, for example, to get out of the car, roll his window fully down, or

volunteer information or documents he has not yet been asked for), that

partial refusal or lesser level of cooperation does not justify indefinite

detention until all questions (whether related to immigration or not) are

answered to the officers satisfaction. If that were true, an officer at an

immigration checkpoint could theoretically detain a traveler indefinitely

until the officer is subjectively satisfied that the traveler is not violating

immigration laws (or any other laws), and the immigration stop would be

converted into a de facto arrest. See United States v. Sharpe, 470 U.S. 675,

685 (1985) (Obviously, if an investigative stop continues indefinitely, at

some point it can no longer be justified as an investigative stop.); Florida v.

Royer, 460 U.S. 491, 499 (1983) (In the name of investigating a person

who is no more than suspected of criminal activity, the police may not . . .

seek to verify their suspicions by means that approach the conditions of

arrest). The Terry stop is a far more minimal intrusion [than an arrest on

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standard for searches and seizures. (ROA.471, 485-86). When Mr.

Rynearson declined to step out of the car or roll down his window, and other

agents pointed out the video cameras attached to the car, the agent stated that

they would do this the hard way. (ROA.471). But Mr. Rynearsons

exercise of his constitutional rights is an invalid reason to extend his

detention or otherwise penalize him. See City of Houston v. Hill, 482 U.S.

451, 462-63 (1987) (The freedom of individuals verbally to oppose or

challenge police action without thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation from a police state.);

cf. Brigoni-Ponce, 422 U.S. at 889(Douglas, J., concurring) (criticizing the

potential abusive use of reasonable suspicion against a multitude of law-

abiding citizens, whose only transgression may be a nonconformist

appearance or attitude).

The Third Circuit held that a traffic detainees refusal to cooperate,

refusal to consent to a search, being argumentative and difficult, and

challenging the officers authority, did not justify prolonging the traffic stop

to an excessive length. See Karnes v. Skrutski, 62 F.3d 485, 495-97(3d Cir.

1995), overruled in part on other grounds by Curley v. Klem, 499 F.3d 199,

209-11(3d Cir. 2007). Karnes right to refuse to consent falls within the

Fourth Amendments core protection against unreasonable searches and

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seizures. Karnes exercise of that right cannot be penalized . . . even if . . .

Karnes became argumentative and difficult. Karnes, 62 F.3d at 495-96. The

officers argued that any additional delay was attributable to Karnes because

he asked the troopers questions, argued with them, challenged their

procedures, and insisted on explanations as to their actions.Id. at 497. But

the court held that the delayed detention was the result primarily of the

defendants dilatory investigation, not the plaintiffs questioning, and that

the officers argument about delay shows a misunderstanding about the

purposes of the Fourth Amendment.Id.

Karnes does not bear the burden of justifying his refusal toallow police to invade his privacy; it is rather the government

official who must meet the constitutional requirements beforehe can encroach upon an individuals privacy. The district

courts grant of qualified immunity to defendants on the length

of detention issue was improper.

Karnes, 62 F.3d at 497.

The district court also faults Mr. Rynearson for refusing at one point

to lower his car window. (ROA.485-86). This behavior was labeled

abnormal, evasive, and atypical of a United States citizen. (ROA.471,

487). But a refusal to cooperate by rolling down a car window, even an ill-

mannered refusal, is within the rights of a Terry detainee and does not

constitute reasonable suspicion of criminal activity. See Johnson v.

Campbell, 332 F.3d 199, 208-10 (3d Cir. 2003) (holding that defendants

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initial hostile response to [the officers] request to roll down the window,

questioning of the officers motives, and demand to know why he was

stopped did not justify detention or arrest). [T]he only evasive action

Johnson took was his initial refusal to roll down his window. . . . [T]his kind

of refusal to comply . . . was perfectly within Johnsons rights; it cannot

provide cause for a reasonable suspicion of wrongdoing.Id. at 210.

Absent probable cause to arrest, a detainees refusal to cooperate or

answer questions cannot be a basis for extending the duration of a Terry stop

or other investigative detention. Justice Brennan explained that law

enforcement officers may not prolong a Terrystop to compel a detainee to

answer questions; rather, the suspect must be free to leave after a short time

and to decline to answer the questions put to him. Kolender, 461 U.S. at

364-65 (Brennan, J., concurring). Failure to observe these limitations

converts a Terry encounter into the sort of detention that can be justified

only by probable cause to believe that a crime has been committed.

The power to arrestor otherwise to prolong a seizure until a

suspect had responded to the satisfaction of the policeofficerswould undoubtedly elicit cooperation from a high

percentage of even those very few individuals not sufficientlycoerced by a show of authority, brief physical detention, and a

frisk. . . . But the balance struck by the Fourth Amendment . . .

forbids such expansion. . . . [P]robable cause, and nothing

less, represents the point at which the interests of lawenforcement justify subjecting an individual to any

significant intrusion beyond that sanctioned in Terry, including

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either arrest or the need to answer questions that the

individual does not want to answer in order to avoid arrestor end a detention.

Kolender, 461 U.S. at 365, 369 n.7 (Brennan, J., concurring) (emphasis

added). The Kolender majority was also troubled by the constitutional

implications of the identification statute in that case, which could require a

Terrydetainee, under threat of arrest, to answer a series of questions until

the officer is satisfied that the identification is reliable. Kolender, 461 U.S.

at 359 (invalidating statute as unconstitutionally vague; noting Fifth

Amendment concerns but declining to reach Fourth Amendment issue).

Thus, any of a detainees constitutionally protected behavior that

could be considered lack of cooperation, in itself, cannot justify extending

the duration of a checkpoint detention, because such an assertion of rights

does not raise reasonable suspicion of criminal activity that would justify

further detention. See United States v. Johnson, 620 F.3d 685, 694(6th Cir.

2010) (We seriously doubt the wisdom of labeling reasonably suspicious

the proper exercise of ones constitutional rights.).

In addition, a travelers exercise of his rights does not justify a

determination that any delay or lengthening of the duration of the detention

is the travelers fault regardless of the officers diligence in conducting

their immigration inspection. The district courts reliance on United States v.

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Sharpe, 470 U.S. 675(1985), on this point is misplaced, and does not justify

blaming the extended detention on Mr. Rynearson. (ROA.486). The

Supreme Court in Sharpe held that an extended Terry detention was justified

because there was no evidence that the officers were dilatory in their

investigation and any delay in the case was attributable almost entirely to

the evasive actions of Savage, who sought to elude the police as Sharpe

moved his Pontiac to the side of the road. Id. at 687-88.

Sharpe thus did not present a case of a detainee who asserted his

constitutional rights not to cooperate or answer questions, but involved a

suspect who fled recklessly when signaled to pull over, which in itself

provides reasonable suspicion of criminal activity.3See Sharpe, 470 U.S. at

678, 688n.6 (after police officers signaled both vehicles to stop, the pickup

truck cut between the Pontiac and Thrashers patrol car, nearly hitting the

patrol car, and continued down the highway, requiring the officers to split

up and lose contact with each other).

Thus Sharpe does not control here. If any level of lack of

cooperation or verbal opposition could justify an extended detention, only

3 See, e.g., United States v. Brigoni-Ponce, 422 U.S. 873, 885 (1975) (erratic

driving or obvious attempts to evade officers can support a reasonable suspicion

to stop a vehicle); Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (Headlong

flight is the consummate act of evasion and can be the basis of reasonable

suspicion).

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travelers who are fully compliant and cooperative and answer all questions

would be allowed to have the benefit of the constitutional requirement that

immigration checkpoint stops consist of only a brief question or two. See

United States v. Portillo-Aguirre, 311 F.3d 647, 652(5th Cir. 2002) (holding

that because the principal protection of Fourth Amendment interests at

checkpoints lies in appropriate limitations on the scope of the stop . . . any

further detention beyond a brief question or two or a request for documents

evidencing a right to be in the United States must be based on consent or

probable cause.). But the Fourth Amendment does not protect only meek

and compliant citizens.

This Circuit has recognized that a detention may be of excessively

long duration even though the officers have not completed and continue to

pursue investigation of the matters justifying its initiation. United States v.

Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) A prolonged investigative

detention may be tantamount to a de facto arrest, a more intrusive custodial

state which must be based on probable cause rather than mere reasonable

suspicion.Id.

In sum, the Fourth Amendments tight limitations on the conduct of

government agents at suspicionless checkpoints are not loosened by a

citizens decision to stand on his rights. The permissible duration of an

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immigration checkpoint stop is the time reasonably necessary to determine

the citizenship status of the persons stopped. This duration is brief. United

States v. Garcia-Garcia, 319 F.3d 726, 729 (5th Cir. 2003) (citations

omitted). Any further detention beyond a brief question or two or a request

for documents evidencing a right to be in the United States must be based on

consent or probable cause.Id. During the brief permissible duration of an

investigatory stop, [i]f the officer does not learn facts rising to the level of

probable cause, the individual must be allowed to go on his way. Wardlow,

528 U.S. at 126.

Delay and the extension of the length of a detention due to the officers

pushing back against a detainees exercise of his constitutional rights are to

be laid at the feet of the government, not the detainee. See Charrington, 285

F. Supp. 2d at 1069 (If ones refusal to cooperate with law enforcement

were enough to justify prolonged detention . . . the strictures of the Fourth

Amendment, would mean little to nothing.). Mr. Rynearson does not bear

the burden of justifying his refusal to allow police to invade his privacy; it is

rather the government official who must meet the constitutional

requirements before he can encroach upon an individuals privacy. Karnes,

62 F.3d at 497.

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CONCLUSION

For the reasons stated above, Amicus Curiae Texas Civil Rights

Project urges this Court to recognize the well-established law that a detainee

at an immigration checkpoint has a Fourth Amendment right to decline to

cooperate with Border Patrol agents or respond to their questions, and that

the Fourth Amendment does not permit a detainee to be penalized for any

such assertion of rights, nor does such assertion of rights justify the

extension of a checkpoint stop beyond the brief and nonintrusive detention

contemplated byMartinez-Fuerte. Amicus Curiae Texas Civil Rights Project

prays that the judgment of the district court be reversed.

March 7, 2014

Respectfully submitted,


Amy C. EikelKING & SPALDING LLP

1100 Louisiana, Suite 4000

Houston, Texas 77002

Telephone: 713- 751-3200Fax: 713-751-3290

Email: [email protected]

Attorney for Amicus Curiae




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CERTIFICATE OF COMPLIANCE

The foregoing brief is in 14-point Times New Roman proportional

font with footnotes in 13-point Times New Roman proportional font, and

contains fewer than 7,000 words, and thus complies with the type-volume

limitation of Rules 32(a)(7)(B) and 29(d).

s/ Amy C. Eikel_________Amy C. Eikel

March 7, 2014



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CERTIFICATE OF SERVICE

I hereby certify that, on March 7, 2014, I served the foregoing brief

upon the following counsel of record by filing a copy of the document with

the Clerk through the Courts electronic docketing system, and by sending

hard copies of the brief via UPS to:

Harold Edwin Brown, Jr.

U.S.ATTORNEYS OFFICE

Western District of Texas601 N.W. Loop 410, Suite 600

San Antonio, TX [email protected]

Steve I. Frank

U.S.DEPARTMENT OF JUSTICECivil Division, Appellate Staff

Room 7245950 Pennsylvania Avenue, N.W.Washington, DC 20530-0001

[email protected]

Javier N. MaldonadoLAW OFFICE OF JAVIERN.MALDONADO,PC

8918 Tesoro Dr., Ste. 575San Antonio, TX 78217

[email protected]

s/ Amy C. Eikel_________Amy C. Eikel


texas civil rights project amicus brief

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