I want to bring your attention to one of the most troubling 4th Amendment decisions that I have ever run into. Keep in mind that I have been practicing law for over 20 years so I have seen it all. But this case might be the most outrageous violation of the 4th Amendment’s protection from unreasonable searches and seizures. The case is United States of America v. Cindy Lee Westhoven, No. 13-2065. The case is out of the 10th Circuit. On April 18, 2012, a Border Patrol Agent was patrolling Highway 80 in New Mexico, which is about 45 miles from the Mexico border. He observed Westhoven drive her Ford F-150 in the opposite direction of the highway he was travelling on. The agent testified that this highway is frequently used to transport illegal aliens. As Westhoven drove past him, the agent testified that Westhoven had a “stiff posture” and her arms were “straight and locked out” at a “ten-and-two position on the steering wheel.” The truck had tinted windows and an Arizona license plate. The agent turned his vehicle around and started following her vehicle. At some point Westhoven hit her brakes to slow down when she noticed the agent was following her. The agent checked the registration of the vehicle, which was from Arizona, became suspicious that the vehicle was transporting illegal aliens, turned on his lights and pulled over the vehicle. When he first approached Westhoven he noticed that she had scarring and acne on her right cheek and became suspicious that she was a methamphetamine user. The officer asked her where she was going and noticed that she appeared nervous by stuttering and taking long pauses. He became suspicious of her claims to be shopping in the area and noticed that she had 2 cell phones, which is common, in his opinion, of people engaged in illegal activity. He ran her license, found no warrants, but a prior conviction for retail theft. When the agent returned to Westhoven’s vehicle she asked him if she would be allowed to leave and if the officer suspected she was “hauling illegal aliens.” The officer asked her to roll down her window so she could see and Westhoven refused. The officer then asked to search the vehicle and Westhoven refused once again. At that point the agent asked Westhoven to exit the vehicle and called for a canine unit to arrive to sniff the vehicle for drugs. Five to ten minutes later, the canine unit arrived, and less than 20 minutes after the vehicle was pulled over, the canine smelled the truck, and detected the presence of marijuana. Westhoven was charged with one count of Possession with Intent to Distribute Marijuana. She filed a Motion to Suppress the stop and search of her vehicle and the trial court denied her petition. Westhoven then entered a conditional guilty plea allowing her to withdraw her guilty plea if she was successful in her appeal.
The Court of Appeals affirmed the decision of the trial court and found that the police had probable cause to stop Westhoven’s vehicle and to conduct the search of her vehicle. I have a direct link to the opinion below so you can read it yourself. I fail to see “specific, articulable facts” which would convince a judge that the officer had probable cause to believe that Westhoven was up to no good. I refuse to believe acne or scarring on her cheek, or the way she was holding her steering wheel, or the fact that she was nervous could ever have been considered by the framers of our Constitution as justification for the police to stop a citizen, detain them and then search their vehicle. This case is an absolute outrage and should be reviewed by the United States Supreme Court. To allow a ruling like this to stand would be an insult to our Constitution.
James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients facing drug charges. If you have a drug case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.