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DPS: State trooper wrong to say he 'smelled' undocumented migrants

When the Arizona Department of Public Safety said it an April 16 press release that a trooper “observed 17 undocumented aliens” in a white van he had stopped on a highway, what was most notable to the state trooper was the stench of the men, according to a report of the incident obtained by Arizona Mirror.

“I exited my patrol car and approached the side of the van,” wrote Sergeant Travis Smith in the incident report. “The passenger window was rolled down and I immediately smelled an odor that was consistent with smuggling of illegal aliens from past experiences. Once I was at the passenger window, I noticed numerous persons in the van and the driver looked scared.”

Moments earlier, Smith had been driving next to the van traveling west on Interstate 10 near Chandler Boulevard. He noticed the front seat passenger, who wore camo-style clothing, and the driver were avoiding making eye contact with him. Smith pulled over the van for driving 60 miles per hour on the 65 mph highway.

What ensued was an exchange with the driver that led Smith to believe the 17 men in the van had just crossed the U.S.-Mexico border, and a declined request for immediate assistance by federal border and immigration agents that incensed Republicans in the state, including Gov. Doug Ducey.

While Arizona law requires police to try to determine someone’s immigration status, the notable “odor” of people is not an acceptable factor law enforcement can use to establish reasonable suspicion that someone is a noncitizen and living and working in the country without authorization, according to DPS. Civil rights lawyers said the use of odor in this incident is considered a race-based factor.

“You can’t smell someone’s immigration status,” said Billy Peard, an immigrant rights advocate and former attorney with the American Civil Liberties Union of Arizona.

Yvette Borja, a border litigation attorney for the ACLU of Arizona, agrees.

“That sounds racist to me. I don’t know how somebody smells like an immigrant,” she said.

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As part of a 2016 settlement on a lawsuit challenging the provision of Senate Bill 1070 that requires police to determine someone’s immigration status, the Arizona Attorney General’s Office issued guidance on how to apply the section. It says officers can’t use race or ethinicity to establish reasonable suspicion that someone is undocumented.

DPS spokesman Bart Graves said in a statement to the Mirror that Smith, the sergeant who initiated the stop, has 20 years of experience and has participated in “hundreds of investigations involving drug and human trafficking.”

“The Department does not consider the ‘odor that’s consistent with smuggling of illegal aliens’ as an acceptable factor to establish reasonable suspicion that a person is a noncitizen and unlawfully present in the United States,” Graves said in an email. “The Department acknowledges that the information in Sergeant Smith’s report should have been better articulated.”

Graves said Smith observed several things that amounted to reasonable suspicion that the passengers in the traffic stop were in the country without lawful authorization: There were more passengers inside the vehicle than the vehicle was designed to carry; the driver gave conflicting statements; and the front seat passenger was wearing camo-style clothing, which is commonly worn by people who enter the U.S. between ports of entry to blend in with the desert landscape.

When Smith initially spoke with the driver, a U.S. citizen named Pedro Joshua Bustos, he said he was driving the men to an unidentified farm, and that they were coming from Tucson. Bustos said he didn’t know who owned the van and “is paid under the table cash” to drive the men.

Smith walked back to his patrol car. The DPS sergeant then used the only standing provision of SB1070, which requires law enforcement officers to determine the immigration status of a person when there’s reasonable suspicion that “the person is an alien and is unlawfully present in the United States.” Smith asked DPS dispatch to contact the Border Patrol and U.S. Immigration and Customs Enforcement.

ICE declined to immediately respond to the call, according to Smith’s statement, “due to the President’s orders/policies.”

Smith warned the federal agent about the optics of declining to arrive at the scene.

“I told the (ICE) Agent that the illegal aliens would be released at the scene to walk off the highway and how that would look,” Smith wrote. “The agent said if we found any of the persons were aggravated felons they would come out and get them.”

Another DPS trooper fingerprinted the 17 men in the van, but no records came up, Smith wrote. They were told to walk away from the highway towards an off-ramp on Ray Road, according to the report.

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Republicans criticize immigration enforcement

In February, the Biden administration changed its immigration enforcement priorities, guiding ICE staff to focus arrests and deportations on people who are suspected of terrorism, espionage or pose other national security threats; migrants arrested at the border after Nov. 1 or those who arrived to the U.S. after Nov. 1; and those convicted of certain felonies.

An ICE spokeswoman did not comment on why the agency declined to immediately respond to Smith’s call.

The DPS stop, which the agency tweeted about, quickly triggered responses from numerous Republicans, including GOP Chair Kelli Ward and Ducey, who took aim at the Biden Administration.

Ducey said lack of immediate response from federal border and immigration agents is an example of a federal policy that “does nothing but empower those that pose a serious threat to public safety, including drug cartels and human traffickers.”

“If the federal government isn’t going to do its job, then Arizona will take matters into our own hands and provide support to sheriffs and local law enforcement,” Ducey said in a statement.

The governor’s office did not respond to requests for comment on why Ducey believed it was appropriate for ICE to immediately detain the passengers of the van.

SB1070 is applied by police in Arizona

Ultimately, DPS impounded the van and ticketed Bustos for driving with no insurance and having a suspended drivers license. Bustos later told Smith he picked up the men in the desert 220 miles south near the border town of Douglas, the trooper’s report said.

The ACLU of Arizona worked with several police departments across the state to develop policies to apply SB1070 that would comply with the 2016 settlement.

Officers in the Tucson Police Department, for example, can use factors like an overcrowded vehicle, possession of foreign identification, and inconsistent information to establish reasonable suspicion that someone is undocumented. Phoenix Police Department’s policy on immigration is less detailed.

From Smith’s report, there are several facts that serve as a valid basis for reasonable suspicion, said Borja and Peard.

Still, Peard said it was troubling that DPS fingerprinted all the passengers in the van.

“You are not supposed to be fingerprinting people because of a civil infraction, there’s no reason for that,” he said. “You are only supposed to fingerprint people as an incident to arrest. The troopers could not arrest them because they had no probable cause that a crime was committed.”  

Peard said this incident is a reminder that SB1070, which is now 11 years old, is still implemented regularly by local, county and state law enforcement.

“This is a reminder that SB1070 is very much alive and well. It’s not harmless. It’s still very much followed on a day-to-day basis,” Peard said.

This report was first published by the Arizona Mirror.

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Department of Public Safety

DPS Sergeant Travis Smith stopped a van on I-10 near Chandler around 6:20 a.m. on April 16, 2021, that he believed was carrying migrants who were smuggled into Arizona. DPS fingerprinted the men, who had no criminal records, and called on U.S. Immigration Customs Enforcement to respond. The federal agency didn’t, drawing criticism from Republican Gov. Doug Ducey.


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