border patrol vehicle

New Mexico-  A federal appeals court has unanimously ruled that acne scars and driving with a stiff upright posture are reasonable grounds for being pulled over.

The ruling was made after Cindy Lee Westhoven filed a motion to suppress evidence of marijuana possession resulting from her encounter with Border Patrol Agent Joshua Semmerling. Westhoven challenged the arrest: “She argued the initial stop, her subsequent detention, and her de facto arrest all violated her Fourth Amendment rights,” the ruling stated. Westhoven had been pulled over by Semmerling in April 2012. Preceding the incident, Semmerling and Westhoven passed one another driving in opposite directions on Highway 80 in southern New Mexico.

Semmerling noticed that Westhoven’s arms were “straight and locked out” at a “ten-and-two position on the steering wheel” as she was driving by. Semmerling decided that this was unusual behavior, and made a U-turn to stop Westhoven “for an immigration check to determine the citizenship of the driver and any passengers.” Upon stopping Westhoven he observed that her vehicle, a Ford F-150, had tinted windows and Arizona license plates. Semmerling was convinced that this was suspicious.

Semmerling found Westhoven’s facial complexion suspicious as well; noting acne scars on her face, he believed that she might be a methamphetamine user. He began questioning Westhoven about where she was coming from and where she was heading. Westhoven was visibly anxious during the stop; Semmerling stated that he had  “never seen somebody shaking like that before”.

Westhoven told Semmerling that she had been shopping in Douglas, Arizona and was heading to Tucson. Semmerling believed that her response was odd because “Tucson had better shopping opportunities than Douglas”, and driving on Highway 80 in New Mexico between Douglas and Tucson was an indirect route. During his questioning Semmerling saw that Westhoven had two cell phones in the truck, which he considered to be further evidence that she was smuggling illegal immigrants.

After Semmerling ran Westhoven’s Arizona driver’s license and found no warrants, he requested to search her truck, and she refused. He then called in a canine unit to check her vehicle, and marijuana was found inside the truck. Westhoven was arrested and charged with possession of marijuana with intent to distribute.

Westhoven argued that driving with a stiff posture was no justification for being pulled over. Having facial acne, two cell phones, and tinted windows were not in violation of any law. Judge Scott M. Matheson, Jr. of the United States Court of Appeals for the Tenth Circuit stated that none of these characteristics are suspicious on their own. “But when taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity.”  The three judges of the Tenth Circuit U.S. Court of Appeals upheld the search and threw out Westhoven’s motion to suppress the evidence of marijuana.

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  • dragonflash

    So, what’s next? Head bobbing to the radio or cd? Wonder if any of them would think this would be ok for it to happen to them or their families!

    • Matt Owens

      If it happened to a judge’s, cop’s or politician’s family it would never get within a thousand miles of a courtroom, let alone a charge.

      • MacTX

        Exactly. Laws do not get applied equally which is a real problem. When the law isn’t applied equally, we have corruption (which leads to even more corruption). Lawmakers and enforcers often time exempt themselves from the laws that they expect us (at basically the barrel of a gun) to follow. This deterioration has been going on for a very long time. The system doesn’t work like it should, at least not anymore.

      • James

        Even sitting US senator was detained at one of these “border patrol” checkpoints. The agent even threatened him with his sidearm if he didn’t cooperate.

        • Matt Owens

          I’d bet my life that the agent who did that is now working behind a desk in some obsure unit. If not then it only means the senator felt like it wasn’t worth the small risk of negative press.

  • GilbertoMartinez

    Absolutely believable considering the absence of constitutional law knowledge in this country. These justices need to be voted out of office. (Are you paying attention, New Mexico residents???) This ruling essentially makes all the nervous, teenage drivers on that portion of the highway potential victims of government abuse. I wonder what kind of relationship these judges have with the New Mexico prison system? Neighbors? Good friends? Other conflicts of interest, as usual?

    • Draken

      Federal Judges are appointed for life or good behavior, they are often called Article III Judges as their power comes from Article III of the US Constitution. In short you can’t “vote them out.”

      The three judge panel who heard this case was Circuit Justices Lucero, Gorsuch, and Matheson. Judge Lucero was appointed by President Clinton. Judge Gorsuch was appointed by President G.W. Bush. Judge Matheson was appointed by President Obama.

      • Law Abiding Citizen

        Sounds like all three are very good judges. We need more like them.

        • James

          I think you are one of those trolls that the government is hiring to stir the pot on things.

          • Law Abiding Citizen

            No, I hate that our own government has taken all our rights away. They have their hands in every sector of our lives. However, if they had pulled her over and she had been clean then it would be no big deal. Since she was hauling weed around, she got what she deserved. It was her fault by being stupid and doing a criminal act.

          • rogerrramjet

            As I stated, you completely, I mean COMPLETELY missed the point of this ruling didn’t you.

          • law abiding citizen

            No, I know exactly what the problem is. I was only making the point that if you are pulled over for any reason or no reason, if you are guilty it is a big deal. If she was clean and not carrying drugs it would have been a 5 minute inconvenience. I agree that we are living in a Police State and we have lost almost all of our rights. That sucks and we have to find a way to change that. But in the short term you just have to live by the letter of the law as much as possible. Go vote and get everyone that thinks like you do to vote out these liberal left wingers and the “good ole boy Rinos” and restart with young people with new ideas and fresh blood.

          • Lee Laubscher

            Well then according to you there is no need for constitutional rights, if you’re not doing anything wrong! That is such a stupid ass logic as I’ve ever heard. With people like you, until you are the recipient of aggressive repression you’ll turn a blind eye to the obvious stripping of our rights. You sir are as much of the problem as the tyrants running our governments today.

  • Enzo

    It’s not safe to drive a car while cool.

  • bys55

    Thank God we have a constitutional authority as president. One day he’ll stop golfing and notice and we’ll all be saved!!! Probably should place a constitution behind him in those ‘selfies” he likes to take.

    • mjhoop

      Oh, get a life. Your president shrub vacationed at the texas ranch weeks on end while his henchmen ran the business. All Mr. Obama wants is a little golf. You must never have played golf, or you would know that the golf course is where a lot of business gets done. It’s sort of the guy version of girls’ night out. Bless Mr. O for at least staying in the vicinity of his office…..

  • HM8432

    Pulled over at a checkpoint on Hwy 90 outside Del Rio, TX. What made them search my truck? I told them I was going to Ft. Davis/Marfa on vacation, when they asked my business…the INS guys though that was suspicious, because EVERYONE (they claimed) goes to Big Bend or El Paso while vacationing in that part of Texas…

    • mjhoop

      Thanks be that I plan never to vacation in Texas……

  • Cybertonian

    I am one of the most libertarian people here, but imho, if you don’t want to get f’d over for carrying a load of weed, umm, don’t drive around with a load of weed in your car. It really can be as simple as that.

    • ClemXII

      Weed is their business and their business only. Are you going to get arrested for carrying Milk? Oh wait, you might if it’s unpasteurized. No government has authority to tell free people what they can smoke or eat. Nor whether they can have it in their property (car).

      Illegal, unconstitutional laws are void and null. The Constitution is the highest law of the land.

      • Law Abiding Citizen

        Weed is still illegal by federal law. If you are carrying weed in your vehicle and get busted, then you deserve going to jail.

        • James

          the laws against cannabis are unconstitutional to begin with. They violate the first amendment as, some religions use it in their ceremonies, and the fact that the federal government does not have the constitutional authority to ban anything. Especially a plant with medicinal properties which were suppressed to protect the corporate interests and profits of pharmaceutical companies. I am a fundamentalist Christian and I fully support legalizing medical MJ

          • mjhoop

            Well as I live and breathe!!!! A fundie in favor of MJ! Now I’ve heard everything……..maybe we are not so far apart at all…..but I shouldn’t gush…..!!!!

        • rogerrramjet

          No you don’t deserve to go to jail on bad skin and how you are driving. THAT is the real question here. She was pulled over for her looks alone. Bad skin is reasonable cause?

          Are you out of your mind? What next? He didn’t look at me when we passed each other therefore he is a criminal?

          She was driving the speed limit therefore she was breaking the law.

          The weed is NOT the problem here ron, it is how they arrested her. That means YOU can be pulled over at any time with any excuse day in and day out if they don’t like your looks.

          You ready to live like that with an idiotic name like yours?

          Please, the 4th Amendment is one of the most important Constitutional rights and the courts have pretty much claimed it is null and void in order to protect us from ourselves.

          You apparently have no problem with being pulled over for no reason.

          Sort of like Europe in the late 30’s and early 40’s, right.

          • law abiding citizen

            You are correct. We live in a Police state and it is only getting worse. More than 50% of the cops are corrupt to the core and think they are above the law. I would like to decrease the size of all government (local, county, state and federal) by 90%. I wish all drugs were legalized and taxed. With very small government and the extra drug taxes, we could get out of debt in a short time. Get the government out of our lives and leave us the hell alone. However, as it stands right now, if you break the law, even really stupid ones the you gotta pay if you are busted. Get rid of these stupid laws by getting all the old Rinos out and put in young blood. Democrats and left wing nut jobs are the very worst about restricting everything you do. The old Rino republicans are all about lining their pockets. So I say vote all of them out and start over. Limit terms for all politicians to one term of 2, 3 or 4 years.

        • Hugh Mann

          My body belongs to me and it is no ones God Damn business what I eat drink or smoke!

        • signalfire

          While you’re saying that certain people ‘deserve to go to jail’ please keep in mind that it costs TAXPAYERS $55K a year to keep people in jail. Do you really hate pot that much? Maybe the people that think it’s not okay and a jailable offense need to be taxed accordingly, to pay for the arrests and prison, not the rest of us. Then your taxes would double, and you’d be more likely to think twice before a knee jerk republican reaction. (You’re one of the damn fools that gave us George W Bush, the cocaine addled alcoholic, right?)

          • law abiding citizen

            You MJ backers seem to have missed the point. I have never smoked a joint and never will because I hate smoke of any kind. I really don’t care if you smoke or not, but the point I was making is that if you break the law then you pay the consequences. I wish they would legalize all drugs and tax the hell out of it. That would be a money making racket for sure. I think about 90% of all laws are bull crap. However, my point was if you break the law, no matter how unjust or stupid that it is, and get caught then you go to jail or pay fines or whatever. Vote all the long term politicians out and put in a younger crowd that will repeal the laws that you hate. Just because you don’t like a law doesn’t give you the right to break it. Change it through legal means. Our government sucks and almost all our freedoms are gone because of politicians trying to line their pockets. Limit the bastards to one term and that would stop most of the corruption.

  • robert hastings

    yea and don’t have meth sores all over

  • Chum Lee Jr


    Bullshit fishing expedition, ended up getting “lucky” – not a reasonable search, but it’s NOT like courts give a rats patootie about that anymore.


  • Tom B

    People need to understand there is no law in America nor any country in the world because men created it not God.

  • Legatus legionis

    I find it incredulous that our Government grants police powers to Border Patrol Agents to make traffic stops on US lands! America has an out of control General Government that uses its power to wage war on our citizens. I consider this an example of abuse of power. How is a citizen to achieve redress of wrongs today. Suppose your neighbor sues you. You counter sue. Then, you go to court to present your case. As you rise for the Judge who enters the courtroom, you are shocked to learn that the Judge is the party who brought suit in the first place. Now, how is a citizen to receive justice? He can not. Our system is so broken that it will take more than elections to resolve the problems. History has shown how tyrants and criminal governments are removed from power. Our time is not different than the time of yesteryear when people broke the yoke of oppression.

    • FreedomForAll

      More Americans need to prepare and wake the hell up. I think we’re long past playing nice against an abusive government.

      • Lee Laubscher

        Don’t you think that this is what they want you to do? It is a typical police tactic to do what ever they can to illicit a physical response from you, no matter how minor, so they have a reason to arrest you and to use force to take you down. It is exactly what our federal government is doing also, push people beyond reasonable limits and when the people push back, they say see these people are violet and need to be taken into custody for the general populations safety. And our media then spin the true about the events and then the bleeding heart liberals take it all as gospel.

        • This is one bleeding heart liberal who’s been agitating against the police state for years.

    • JSebastian

      It would be different if the Federal govt actually used interior enforcement to achieve a law enforcement purpose with a clear nexus to Federal immigration law. But they don’t. In fact, they have all but declared hands off when it comes to the interdiction of violators of federal immigration law except at the border (and even then, the follow up enforcement is generally withheld)

  • rogerrramjet

    Once again, judges are destroying the 4th Amendment one of the most important pieces of our Constitution. This is very bad for American citizens.

  • Lee Laubscher

    Justice is dead in America!

    • stupidamerkin

      Justus is alive and well

  • SO DUMB.

  • stupidamerkin

    We need to “understand” who we really are and not the presumed 14th amendment US citizen the dens of corruption, (courts) run with. Make no mistake about it, the Gestapo is alive and well and here right now.

  • DasKinderparty

    To be honest she doesn’t sound like the least-shady person, and law enforcement officials are often trained to put seemingly unrelated pieces together, particularly based on their past experience. From the cop’s perspective, she seemed really, really sketchy.

    Regardless, to not throw out the marijuana charge is just obnoxious. Why can’t they ever be ok with not charging someone with anything? It becomes harassment, and lends to emitting fear to the rest of the population.

    • There was no reason to stop her. Anything after that is irrelevant.

  • Askhole

    OUT OF CONTROL……their essentially making everything humans do as reason for harrassment

  • Hugh Mann

    You’ll not find justice with a crooked court. How can the justice system claim to be fair and impartial when ALL the actors are paid by the government? The government pays the cops, prosecutor, judge and the jury. Is this not a major conflict of interest?

  • Police State USA.

  • Laughing Stock

    Bottomline…the cop’s suspicions were correct. She had pot in the car…case closed.

    • JSebastian

      That wasn’t the cops’ suspicion though, it was supposedly methamphetamine, or was it smuggling illegals? I mean, you can’t just have these blanket theories of probable cause that cover every major avenue of criminal offense and use that as the pretext for stops. There has to be a specific and articulable concrete reason that you suspect the person has committed or is preparing to engage in a criminal act.

    • The intent of the 4th amendment was specifically intended to prevent the authorities from arbitrarily stopping you and searching you. ,That during this search evidence of a secondary violation of the law is irrelevant. The judges error lay in giving credence to the “preponderance” of suspicious activity. Driving upright with arms straight out is no reason to be pulled over. Anything after that is poisoned tree evidence.

    • Nunya

      I suspect you are talking out of your ass. Bend over so I can search for a tongue. There is a very good chance at this point I am correct. If I find one, case closed.