dissenting.

I dissent. I believe that the evidence on which the Border Patrol relied in detaining Cervantes-Cuevas fails to meet the requirements of United States v. Brignoni-Ponce, 422 U.S. 873 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975), and that the statements obtained from him as a result of an illegal detention must be excluded because of egregious governmental conduct.

A. Absence of Articulable Facts and Reasonable Suspicion

In Brignoni-Ponce , the Supreme Court held that roving Border Patrol agents must point to “specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that the vehicle they stop contains undocumented aliens. 422 U.S. at 884 , 95 S.Ct. at 2582 . The Court also held that Hispanic appearance, without more, is insufficient to justify an investigatory stop. Id. at 887 , 95 S.Ct. at 2583 . In Nicacio v. INS, 768 F.2d 1133, 1137 (9th Cir.1985), we said that Brignoni-Ponce and its progeny hold that Hispanic appearance and presence in an area frequented by illegal aliens do not justify an investigative stop.

I agree with the majority that in light of Brignoni-Ponce and Nicacio , the Hispanic appearance of Cervantes-Cuevas, the slowing of his automobile while approaching the Border Patrol vehicle parked behind a pickup truck, and his resuming normal speed after passing the vehicles are insufficient by themselves to justify his detention.

I part company with the majority, however, when it concludes that three other significant factors justify Cervantes-Cuevas’s detention. The majority identifies these three “additional” factors as: (1) the agricultural area where the arrest took place was known through official channels to be “highly populated” by undocumented Mexican aliens; (2) the officers knew that some of these aliens would flee from their housing units in automobiles to avoid interrogation by agents investigating their status; and (3) Border Patrol agents had seized 500 undocumented aliens in the area that week. In my view, these additional factors provide little, if any, support for a finding of reasonable suspicion.

First, the presence of large numbers of undocumented aliens in the area is precisely the type of evidence that we found insufficient to justify a stop in Nicacio, 768 F.2d at 1137 . Second, knowledge of the aliens’ pattern of flight from housing units is irrelevant. Nothing in the record shows that any officer saw Cervantes-Cuevas flee from a housing unit. Indeed, Border'Patrol Officer Anderson, who testified at the suppression hearing, could not even recall *712 specifically stopping Cervantes-Cuevas. By declining to disapprove of the BIA’s reliance on this factor to justify the detention, the majority encourages INS stops of persons who appear to be Hispanic and who are found in an area populated by large numbers of undocumented aliens. This INS practice threatens the fourth amendment rights of countless persons of Hispanic ancestry who legally reside, work, and travel in many agricultural and urban communities throughout our circuit.

Third, by relying on the seizure of 500 undocumented aliens in the area that week, the Board of Immigration Appeals (BIA) and the majority apparently ignore the likelihood that a substantial number of those seizures were themselves illegal. Indeed, this court in Nicacio deemed illegal the 1982-83 arrests of a class of “[a]ll persons of Mexican, Latin, or Hispanic appearance who have been, are, or will be travelling by motor vehicle on Washington highways.” 768 F.2d at 1135 . Most of the arrests in Nicacio occurred around the town of Yakima, in the central part of Washington. See Nicacio v. INS, 595 F.Supp. 19, 21 (E.D. Wash.1984), aff'd, 768 F.2d at 1133 . Although Cervantes-Cuevas is not a member of the class certified in Nicacio, he was arrested in 1982 in Yakima County. When, as here, the arresting officer admits not remembering the specific arrest, it is anomalous for the BIA and this court to hold that mass arrests resembling those recently disapproved in Nicacio contributed to reasonable suspicion. In sum, I believe that the “additional” facts upon which Agent Anderson relied were either irrelevant to this case or are insufficient to support reasonable suspicion.

B. Applicability of Exclusionary Rule

As its author, I do not read Benitez-Mendez v. INS, 760 F.2d 907 (9th Cir.1985), modifying, 748 F.2d 539 (9th Cir.1984), modifying, 707 F.2d 1107 (9th Cir.1983), as requiring a ruling of admissibility of Cervantes-Cuevas’s statements. Benitez-Mendez did not argue that his arrest constituted an egregious violation of constitutional liberties. Moreover, the Border Patrol officer did not rely on Benitez-Mendez’s Hispanic appearance to support his reasonable suspicion.

C. Egregious Conduct

Further, the majority incorrectly concludes that: (1) Cervantes-Cuevas failed to show egregious conduct on the part of the Border Patrol; and (2) the Border Patrol’s conduct must undermine the probative value of evidence illegally obtained before its exclusion is appropriate.

In Adamson v. Commissioner, 745 F.2d 541, 544-45 (9th Cir.1984), we applied Lopez-Mendoza’s “egregious violation” language. 1 We recognized there that a police officer’s bad faith violation of a person’s fourth amendment rights could amount to an egregious violation, warranting exclusion of evidence in a civil tax proceeding. Adamson, 745 F.2d at 546 . Although in Adamson we found no bad faith, we did suggest that bad faith would be found if a reasonably competent officer would have believed the search to be illegal. Id. In this case, Cervantes-Cuevas essentially argues that a reasonably competent officer would have known that under BrignoniPonce, decided in 1975, Hispanic appearance alone does not justify a stop. Because I believe that the Border Patrol agent articulated no significant facts apart from those that are insufficient to justify detention under existing law, I would conclude that he did not act in good faith.

I further believe that we are not required to limit exclusion of evidence illegally obtained to instances where the government’s egregious conduct in obtaining the evidence undermined its probative value. I thus disagree with the majority’s reading of Lopez-Mendoza that undermined probative value *713 is a second requirement for the exclusion of evidence in civil proceedings.

In Adamson we implictly rejected the requirement that for the exclusionary rule to apply, the probative value of illegally obtained evidence must be undermined. There, we also suggested that an officer’s bad faith violation of fourth amendment rights alone would constitute an egregious violation requiring exclusion of evidence illegally obtained. 745 F.2d at 546 . We did not mention any requirement that an officer’s bad faith must undermine the probative value of the illegally obtained evidence for the exclusionary rule to apply. The approach we took in Adamson is correct because requiring that the probative value of the illegally obtained statement be undermined would render admissible evidence obtained by even the most egregious means. For example, in Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), officers directed a doctor to induce Rochin to vomit in order to extract drug capsules from his stomach. The capsules, once extracted from Rochins’s stomach, were highly probative evidence of his possession of contraband. Id. at 166 , 72 S.Ct. at 206 . Yet this is the very case the Supreme Court cited as support for the proposition that evidence obtained by an egregious violation of individual liberties may be excluded from civil proceedings. Lopez-Mendoza, 104 S.Ct. at 3490. 2

It is hard to understand how requiring undermined probative value is consistent with the primary purpose of the exclusionary rule. The Supreme Court has noted that the rule’s “prime purpose, if not the sole one,” is to deter official misconduct. Lopez-Mendoza, 104 S.Ct. at 3486 (quoting United States v. Calandra, 414 U.S. 338, 347 , 94 S.Ct. 613, 619 , 38 L.Ed.2d 561 (1974)). If, in cases of bad faith violations of fourth amendment rights, courts exclude only illegally obtained evidence whose probative value is somehow undermined, then application of the rule would be narrowly limited and its deterrent effect on official misconduct would be minimal.

D. Conclusion

For the foregoing reasons, I would conclude that insufficient articulable facts justified Cervantes-Cuevas’s detention and that the Border Patrol’s bad faith conduct in stopping and detaining Cervantes-Cuevas primarily because of his Hispanic appearance requires exclusion of his statements. The case should be remanded to the BIA to give the INS the opportunity to prove, without relying on Cervantes-Cuevas’s statements, his deportability by clear and convincing evidence. See Woodby v. INS, 385 U.S. 276, 285-86 , 87 S.Ct. 483, 487-88 , 17 L.Ed.2d 362 (1966).

. As the majority notes, the Supreme Court left open the question whether the exclusionary rule applies to "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” INS v. Lopez-Mendoza, 104 S.Ct. 3479, 3490 (1984).

. In Adamson , we also noted: "[a]lthough Rochin involved physical brutality that ‘shocks the conscience,’ we do not believe the Lopez-Mendoza Court’s citation to Rochin was meant to limit ‘egregious violations’ to those of physical brutality.” 745 F.2d at 545 n. 1.