United States v. Al Nasser
Opinion
Opinion
Kleinfeld, J.
ORDER AND AMENDED OPINION
ORDER
The opinion filed on March 20, 2007, and appearing at 479 F.3d 1166 is amended and the dissent is withdrawn. The superseding opinion -will be filed concurrently with this order.
The parties may file an additional petition for rehearing or rehearing en banc. All other pending motions are denied as moot.
OPINION
In this amended opinion, we address the applicability of the Fourth Amendment when the police intend not to stop someone, but that person nevertheless stops. We affirm.
FACTS
A Border Patrol agent was patrolling a stretch of highway running north from the Mexican border in Arizona through the Tohono O’odham Nation Indian reservation. He stopped a pickup truck (not the car driven by the defendant, Al Nasser) around nine at night which he suspected was carrying illegal aliens. It turned out that there were no illegal aliens in the truck, but there was alcohol, which was illegal on that part of the reservation. The Border Patrol agent called the Tohono O’odham Nation Police Department, which sent a tribal police officer to take charge of the alcohol violators. The other Border Patrol agent working on that stretch of highway came…