Can Federal Border Patrol Agents Pull Over Cars Based Only on State Traffic Law Violations?

Imagine a police officer sees a car speeding over 90 miles an hour. The car makes several erratic lane changes as it rushes through traffic. Can the officer legally pull over the car? The usual Fourth Amendment rule is absolutely yes: The officer can pull over the car if he has probable cause to believe a traffic violation has occurred, see Whren v. United States, 517 U.S. 806, 813 (1996). But let’s add a wrinkle. What if the officer is a federal border patrol agent, and the traffic law is a state law rather than a federal law? Can the federal officer make the stop even though the law violated is a state law rather than a federal one? In a decision last week on the “reasonable suspicion” standard of Fourth Amendment law, United States v. Valdes-Vega, Judge Pregerson dropped a footnote concluding that the federal officer can’t make the traffic stop based on the traffic violation but has to wait for reasonable suspicion of a federal law violation:

Ordinarily, an officer’s observance of a traffic violation, by itself, is sufficient for a vehicle stop. See Whren v. United States, 517 U.S. 806, 813 (1996); United States v. Willis, 431 F.3d 709, 715 (9th Cir. 2005). But Border Patrol Agents, unlike state and local law enforcement agents, do not have authority to arrest or cite individuals for traffic violations. See 8 U.S.C. § 1357 (detailing authority of immigration officers to arrest and detain); 8 C.F.R. § 287.5 (detailing authority of immigration officers to arrest and detain); Cal. Penal Code § 830.8 (limiting authority of federal agents in California to arrest persons for violations of state and local laws). Because the Border Patrol Agents who stopped Valdes-Vega did not have the authority to enforce California traffic laws, Valdes-Vega’s violation of California traffic laws cannot form the sole basis for the vehicle stop. See Palos-Marquez, 591 F.3d at 1278.

This issue wasn’t the focus of the Valdes-Vega case, but it raises a really interesting Fourth Amendment question: To what extent can officers working for one sovereignty make stops, arrests, and searches based on cause to believe laws from another sovereignty have been broken?

The issue came up obliquely in Arizona v. United States, the Supreme Court’s recent decision on the preemption of Arizona’s law on immigration enforcement. In that case, one of the issues was whether state officials can make stops and arrests based on federal law violations. Justice Alito’s solo opinion had the following to say about that:

It is well established that state and local officers generally have authority to make stops and arrests for violations of federal criminal laws. See, e.g., Miller v. United States, 357 U. S. 301, 305 (1958); United States v. Di Re, 332 U. S. 581, 589 (1948). I see no reason why this principle should not apply to immigration crimes as well. Lower courts have so held. See, e.g., Estrada v. Rhode Island, 594 F. 3d 56, 65 (CA1 2010) (upholding the lawfulness of a detention because the officer had an objectively reasonable belief that the arrestees “had committed immigration violations”); United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296 (CA10 1999) (noting that “state lawenforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws”); Gonzales v. Peoria, 722 F. 2d 468, 475 (CA9 1983), overruled on other grounds, Hodgers-Durgin v. de la Vina, 199 F. 3d 1037 (1999) (en banc) (holding that “federal law does not preclude local enforcement of the criminal provisions” of federal immigration law). And the United States, consistent with the position long taken by the Office of Legal Counsel (OLC) in the Department of Justice, does not contend otherwise. See Brief for United States 55, n. 33; see also Memorandum from OLC to the Attorney General (Apr. 3, 2002), App. 268–273; Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26 (1996).

I’m not sure the cases go quite as far as Justice Alito suggests, as most or all of them involve contexts in which the state and local officials were working with or assisting federal officials or else the federal statute expressly contemplated state enforcement. Plus, Virginia v. Moore, 553 U.S. 164 (2008), characterized United States v. Di Re (albeit quite incorrectly) as a case on the supervisory power, not the Fourth Amendment. Still, let’s assume Alito is right that state officials can make stops and arrests based on federal law violations. Does it necessarily follow that federal officials can make stops and arrests based on state law violations?

Not necessarily, for a few reasons. First, as the 2002 OLC Memo that Alito cites suggests, the states and the federal government are not exactly co-equals in the criminal law sphere. The states have general police powers while the federal government has limited powers; the states inherited the common law while the federal government must enact statutory offenses. So there is at least some analytical room for saying that state officials ordinarily can enforce federal law while federal officials ordinarily can’t enforce state law. I’m not sure the argument is right, but it’s a possibility.

A second reason is that perhaps Whren is appropriately limited to officers who work for the authority that enforces the traffic laws. Unfortunately, Justice Scalia’s opinion in Whren never says where Scalia comes up with the rule that an officer can stop a car based on probable cause to believe that a mere civil traffic violation has occurred. Sure, probable cause to believe a crime has occurred plainly justifies a stop. But why does a civil violation justify one? If the Court had to articulate it, I think Whren is probably best rooted in some sort of special needs or balancing inquiry relating to the need to enforce the traffic laws. Cf. Michigan v. Sitz. If I’m right about that, then it makes sense that only officers who share jurisdiction over enforcement of the traffic laws would have the right to make a traffic stop on that ground. A federal officer doesn’t share the special need to maintain highway safety, so he can’t take advantage of the lower standard to make stops for civil violations. Or that’s the argument, at least.

Finally, for the Burkeans out there, there is also existing practice to back up such a rule: The cases on traffic stops by federal border patrol agents appear to have tacitly assumed that the immigration official can’t just pull over cars based on traffic violations. That’s why they spend so much effort looking for reasonable suspicion rather than just focusing on traffic violations. The Palos-Marquez case Pregerson cites is an example, although I don’t think it goes nearly as far as Pregerson’s cite suggests.

With all of this said, I don’t think the rationale that Judge Pregerson offers is particularly helpful. Pregerson focuses on the statutory and regulatory arrest limitations. But it seems to me that they are irrelevant under Virginia v. Moore, 553 U.S. 164 (2008), which held that the limitations on the arrest power provided by state law are irrelevant to the constitutional reasonableness of the arrest. So if it’s right that federal officials violate the constitution if they pull over cars based only on probable cause of state civil traffic law violations, I think the better reason is that the federal officers cannot take advantage of the relaxed special needs standard that justifies the Whren rule rather than because federal regulations or statutes say that they cannot.

Either way, it’s a really interesting issue. And given the possibility that the Supreme Court will review Valdes-Vega because it’s pretty plainly contrary to United States v. Arvizu, 534 U.S. 266 (2002), it may be an issue that the Supreme Court gets to ponder sometime next Term.

Thanks to Brooks Holland for the link.