In any business or profession, including law enforcement, people gain an intuition of certain conduct in the environment unknown to the average person. Border Patrol agents qualify in this role in detaining or arresting individuals based on patterns of conduct they observe or confront. Smuggling routes are identified, transportation of drug practices become familiar, and conduct seemingly innocent to the inexperienced becomes relevant. In Vega, exactly that scenario occurred.
Border Patrol officers observed a small truck driving on the freeeway inside the United States in excess of the normal traffic speed, weaving in and out of traffic, slowly approaching a closed checkpoint in a known smuggling corridor. The checkpoint was closed, and the driver resumed irregular driving and excessive speed. According to the agent, the truck resembled other vehicles shaped to conceal contraband and it displayed Baja California license plates. The officer stopped the truck and a subsequent search revealed drugs.
The average person reading this fact pattern would assume only a series of traffic violations (Border Patrol Agents lack authority to stop cars for traffic violations). Weaving in and out of traffic enables the driver to escape the view of any vehicle following it. The condition of the truck was comparable to other vehicles carrying drugs obscuring vision of the passengers or contents of the vehicle. Yet the officers, both veterans, could intuit from experience their conclusion the truck contained contraband. How? Intuition- that proved to be confirmed.
Of course the 9th Circuit in a 2-1 opinion saw it only as traffic violations and Vega will avoid trial. Officers who work in specialized areas cannot always articulate the reason for their suspicions but what is it about this case which confirmed their judgment? When an officer observes conduct he believes consistent with the commission of crime but superficially innocent to the untrained person what is he supposed to do? The requirement of the Fourth Amendment and its exclusionary rule is deterrence of police misconduct. What misconduct occurred in this case?
The Supreme Court has reversed the 9th Circuit so often in U.S. border cases that Vega should be added to the list.
Time for another rehearing en banc.