And I certainly do not write in criticism of the DEA, the Customs Service, or the Border Patrol in general or this case's individual agent in particular: Quite to the contrary, I am embarrassed that the federal courts have forced the dedicated, at-risk officers of these agencies to engage in the charade of "articulating facts" just so that we can point to something as the underpinnings of our retrospective findings of "reasonable suspicion" when we uphold vehicle stops that otherwise offend the Fourth Amendment. It is we, not law enforcement, who have constructed the straw man of articulatable facts and we who then accept as justifiable suspicion virtually anything and everything thus articulated:
The vehicle was suspiciously dirty and muddy, or the vehicle was suspiciously squeaky-clean;
The driver was suspiciously dirty, shabbily dressed and unkept, or the driver was too clean;
The vehicle was suspiciously traveling fast, or was traveling suspiciously slow (or even was traveling suspiciously at precisely the legal speed limit);
The [old car, new car, big car, station wagon, camper, oilfield service truck, SUV, van] is the kind of vehicle typically used for smuggling aliens or drugs;
The driver would not make eye contact with the agent, or the driver made eye contact too readily;
The driver appeared nervous (or the driver even appeared too cool, calm, and collected);
The time of day [early morning, mid-morning, late afternoon, early evening, late evening, middle of the night] is when "they" tend to smuggle contraband or aliens;
The vehicle was riding suspiciously low (overloaded), or suspiciously high (equipped with heavy duty shocks and springs);
The passengers were slumped suspiciously in their seats, presumably to avoid detection, or the passengers were sitting suspiciously ramrod-erect;
The vehicle suspiciously slowed when being overtaken by the patrol car traveling at a high rate of speed with its high-beam lights on, or the vehicle suspiciously maintained its same speed and direction despite being overtaken by a patrol car traveling at a high speed with its high-beam lights on;
and on and on ad nauseam.
223 F.3d 281
