Fifth Circuit Tells Cops ‘Hispanic On A Bike’ Isn’t Enough Suspicion To Justify Stops Of Hispanics On Bikes

The Fifth Circuit Court of Appeals tends to be the cop-friendliest jurisdiction. Unexpected outbursts by recently appointed Judge Don Willett aside, the Fifth Circuit tends to maintain the law enforcement status quo. It has held this line so frequently even the Supreme Court - which made qualified immunity the mess it is today - has had to send horrendous decisions back down the judicial pipe for the Appeals Court to fix.

The Fifth Circuit has awarded qualified immunity to jailers who pepper sprayed an inmate in the eyes for no apparent reason and to officers who tased a person soaked in gasoline, setting them on fire and ending their life. It has also declared ten seconds of sitting in a car in a convenience store parking lot to be suspicion reasonable enough to justify the stop and search of the car's occupants.

Given this history, it's somewhat surprising the Fifth Circuit Appeals Court has come down on the side of the appellant in this case - another one involving very dubious claims about the reasonableness of suspicion.

The decision [PDF] opens with a description of the not-really-a-description these Texas police officers were working with when they decided to violate someone's rights.

During a roundup of gang members with outstanding warrants, Corpus Christi police were given information describing one suspect only as a Hispanic male" who had run from officers" on a bicycle with large handlebars" in the area of Leopard and Up River" at some unspecified time in the past. The officers had nothing else-not the suspect's photo, his age, his build, his clothing, or any other identifying features. Nor were they told when the suspect had last been seen in the area. Nor were they told anything about the bicycle other than it had large handlebars."

Maybe some officers sought more details on the suspect (who had only run" from officers, which isn't automatically illegal). But those who approached the person they decided matched the not-really-a-description-is-it did not appear to have any more info on hand when they made the stop.

Armed with this meager description, the police soon found a person who fit it: Andres Alvarez, who was riding a bicycle with large handlebars in the noted area. Alvarez at first ignored the officers, but he was soon stopped and a frisk revealed he had a revolver and ammo. The officers later determined Alvarez was not the Hispanic male on a bicycle they were looking for.

Being wrong was close enough for government work. The officers arrested the non-suspect and charged him with being a felon in possession. Alvarez moved to suppress the search and the recovered evidence. The district court shrugged away his motion, claiming there was nothing unreasonable about this form of suspicion."

Not so, says the Appeals Court in a very direct sentence:

Reasonable suspicion to stop someone suspected of criminal activity is a low threshold, but not this low.

There's a very slim chance this dearth of descriptive detail could pass for reasonable suspicion, but it definitely can't vault this low threshold" in the place it occurred.

Our cases require officers to have information more specific than a Hispanic male who once rode away from police on a bicycle with large handlebars in a particular area," especially in Corpus Christi, Texas. That open-ended description would effectively authorize random police stops, something the Fourth Amendment abhors.

Everything about this is bad, says the Fifth Circuit. The call-out was for an outstanding warrant - completed criminal activity. As such, it demanded more specificity than, say, a BOLO (be on the look out) for someone only suspected of committing a crime. The physical description (Hispanic male") was far too vague for any officer to reasonably act on. In Texas, where Hispanics can hardly be considered a minority, descriptions need to be far more specific.

And the bike description was equally deficient. Large handlebars" just doesn't cut it. This leaves it entirely to officer discretion to determine whether observed handlebars are regular size or something larger. No other details accompanied this description.

The same goes for the government's claim that Alvarez being in the area they were targeting made his stop reasonable. Simply being in an area known for gang activity (the officers were part of a gang task force) isn't enough on its own. And its addition to the meager descriptive information handed out by the task force leader doesn't change anything. The stop was unconstitutional and the evidence obtained during the stop is no longer admissible in court.

Since the criminal charges were limited to felon in possession," the suppression of the recovered weapon turns Alvarez into someone guilty of nothing more than having a felony conviction on his record. The cops may have stumbled onto a bust, but the Constitution is there to prevent general searches and unreasonable stops. And that's what it has done here, albeit after the fact. The evidence is suppressed and the conviction vacated.

Now, if you really want to hear what the cops would really like to be able to do, you can read Judge Edith Jones' dissent, which argues cops really shouldn't need reasonable reasons to stop and search people. If someone is Hispanic and male (and refuses to engage in a stop that is, at the point, obviously consensual) and a readout says look out for a Hispanic male, cops should be free to stop any and all Hispanic males until they find the person they're actually looking for.

[T]he totality of circumstances strongly supports the Terry stop of Alvarez. Obviously, Alvarez matched the description of a Hispanic male riding a bicycle with large handlebars. And his conduct in continuing to ride his bike while ignoring the officers until they blocked his path was consistent with the gang member's evasive behavior as described in the officers' briefing.

This is really disturbing stuff for a federal judge to be saying. But this is the sort of stuff Judge Jones apparently believes: Hispanics are probably criminals so the reasonable suspicion bar should be lowered when minorities are targeted by cops. Furthermore, she apparently believes citizens are obliged to stop just because officers have asked them to stop - something completely contradicted by precedent, case law, and, oh yeah, that Constitution she seems to believe should only protect certain people.

Go ahead and read the whole thing. It's terrible. And it explains why the Fifth Circuit is so protective of cops and so cavalier about enshrined constitutional rights. Rights can be respected, but only up until a cop is involved, and then whatever's best for the cop is probably whatever's best for American citizens. And if they don't like it, they're welcome to sue and have their complaints tossed by the Fifth Circuit.