Thursday, April 29, 2010

A Reasonable Case for Reasonable Suspicion in Arizona

I must confess that I had some reservations about Arizona's new immigration law. But I wanted more information before I commented one way or the other.

My main concern revolved around "reasonable suspicion." Specifically, what "reasonable suspicion" would lead a state, county or local law enforcement official to believe a person was not in the United States legally and thus take the step of making a formal inquiry into said person's immigration status?

Kris Kobach answers that question in an op-ed in The New York Times titled, "Why Arizona Drew a Line?":

Over the past four decades, federal courts have issued hundreds of opinions defining those two words. The Arizona law didn’t invent the concept: Precedents list the factors that can contribute to reasonable suspicion; when several are combined, the “totality of circumstances” that results may create reasonable suspicion that a crime has been committed.

For example, the Arizona law is most likely to come into play after a traffic stop. A police officer pulls a minivan over for speeding. A dozen passengers are crammed in. None has identification. The highway is a known alien-smuggling corridor. The driver is acting evasively. Those factors combine to create reasonable suspicion that the occupants are not in the country legally.

That's what I needed. A real world example. The most salient point Kobach (who is running for Secretary of State in Kansas) makes is that Arizona didn't just suddenly invent the term reasonable suspicion. To be certain, reasonable suspicion is open to reasonable debate and reasonable doubt. But it's not as if we don't have any case law to draw upon.

In fact, Rich Lowry from The Corner at National Review Online draws our attention to a 2004 U.S. Supreme Court decision Muehler v. Mena in which the Court ruled the police did not require reasonable suspicion to ask a person in detention about their immigration status and thus did not violate the Fourth Amendment. Incidentally, the decision was unanimous.

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