Trump Fifth Circuit judge James Ho cast the deciding vote to affirm a lower court decision to reject a motion to suppress the results of a search that resulted from the extended detention and search of a woman’s car after a simple traffic stop. The June 2020 case is U.S. v. Reyes.

 Mayra Reyes was driving her ex-husband’s truck along a Texas highway when Officer Will Windham stopped her for speeding. Rather than simply giving her a ticket, he extended the stop and asked her to come to his patrol car while he “looked up her information.” He contended that he became suspicious because she was reluctant to leave her vehicle, locked it after she left, was inconsistent in explaining where she was going, stated she was unemployed, changed her facial expression “dramatically” when he asked if there was anything illegal in the truck, and declined to consent to a search of the truck because it did not belong to her. At that point, slightly less than ten minutes “into the stop,” Windham told her he was going to call for a canine unit to sniff the rea near the truck, which could give him probable cause to search the vehicle. Although she was initially evasive, she later admitted that she had been arrested for a meth offense.

Based on the sniff, the police dog alerted Windham that there was a controlled substance in the truck. Windham searched and found meth in the truck, and arrested Reyes. After she was charged in federal court, she moved to suppress the evidence from the stop, but the district court rejected her motion. After her conviction, she appealed the denial of the motion to the Fifth Circuit.

In a ruling in which Judge Ho was the deciding vote, the Fifth Circuit affirmed the lower court and upheld the extended stop and search of Reyes. The majority held that the “totality of the circumstances” supported Windham’s “reasonable suspicion” and his decision to extend the detention and call for the canine unit that led to the search. Among those circumstances was Reyes’ “protectiveness of the vehicle” and the fact that she was unemployed which, the majority noted, “Windham figured provided her with a motive to participate in illegal activity.”

Judge James Graves firmly dissented. He specifically took issue with several factors relied on by the majority, which in his view meant that the extended detention was based on a little more than a “mere hunch.” He pointed out that Reyes’ “protectiveness of the vehicle” – her reluctance to leave it and her decision to lock it – was little more than an “automatic, instinctual choice” that no prior case law suggested could support reasonable suspicion. Previous precedent made clear that the refusal to consent to a voluntary search was similarly not grounds for reasonable suspicion, he noted, and Reyes’ understandable “visible reaction to being accused of illegal activity” by police should not either. He was particularly critical of the majority’s decision to give “analytic weight” to Reyes’ employment status, which he stated was supported by “no case law” and set a disturbing precedent.

Once those improper factors were eliminated, Graves went on, the situation was very similar to a previous Fifth Circuit case where the court found there was “not reasonable suspicion to extend a traffic stop.”  As the court concluded in that case, reasonable suspicion “must be based on more than an officer’s hunches and doubts” about a driver. As a result of Ho’s deciding vote, however, such “hunches and doubts” led to Ms. Reyes’ conviction, as well as a disturbing precedent about a person’s unemployment as a basis for police action.