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DPS trooper used 'smell' to detect undocumented immigrants during traffic stop

Posted at 12:43 PM, Jun 19, 2021
and last updated 2021-06-19 15:43:28-04

AHWATUKEE, AZ — The Arizona Department of Public Safety has released the report from the traffic stop on April 16, when a trooper reported finding 17 alleged undocumented immigrants inside a van traveling on Interstate 10.

In a press release on April 16, DPS said the trooper made contact with the driver, a U.S. citizen, and "observed" 17 undocumented immigrants inside the vehicle. The statement didn’t include the new details we now know from the trooper’s report.

Sergeant T. Smith’s report says, in part:

“I noticed the driver had slowed down while in the number one lane and was now traveling at 60mph in the posted 65mph zone. Other traffic was passing the van and my patrol car to the left and right. Traffic had been traveling at about 70mph before the driver slowed down in the high-speed number one lane…”

Smith says he pulled over the vehicle due to the traffic violation of impeding traffic.

“Impeding traffic? Going 60 on a 65 mile per hour? That’s a lie, he stopped them because he believed they were undocumented,” stated Daniel Ortega.

Ortega is a civil rights lawyer and co-counsel in a lawsuit against SB 1070.

Not all traffic stops make headlines and not all traffic stops get tweeted by DPS and the governor, but this one did.

A state trooper finding 17 alleged undocumented immigrants during a traffic stop may sound simple, but Ortega says it’s more complicated than that because of a law called SB 1070. This law allows police officers, when they have the suspicion that someone may be in the country undocumented, to call ICE.

RELATED: PUENTE & ACLU pushing for more data about Phoenix PD Immigration procedures

Ortega says despite the law, law enforcement still can’t stop someone simply because they believe a person is undocumented. He argues that’s what happened along the I-10 when the truck was pulled over for doing 60 mph in a 65 mph zone.

“..Smelled an odor consistent with the smuggling of illegal aliens..”

According to the DPS report, after the trooper made the traffic stop, he noticed the front-seat passenger was wearing camo-style clothing and he “smelled an odor consistent with the smuggling of illegal aliens.”

Can “smell” and type of clothing be used as reasonable suspicion to inquire about someone’s immigration status?

Ortega says no.

“That's preposterous, that he would put in the report that the smell coming from the vehicle was what led him to believe that the folks in the vehicle were undocumented. If this would have been white people in camouflage, he never would have stopped them, there wouldn’t be a reason for that.”

A spokesperson for DPS responded to the criticism saying, "The Department acknowledges that the information in Sergeant Smith’s report should have been better articulated.”

DPS statement also says,

“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.

Sergeant Smith’s report includes several factors that were used to establish reasonable suspicion, based on his 20 years of experience, training and hundreds of investigations involving drug and human smuggling:

  • The front seat passenger was wearing camo-style clothing, which is clothing commonly worn by individuals illegally entering Arizona through the desert
  • The driver did not know the registered owner of the vehicle
  • There were more passengers inside the vehicle than the vehicle was designed to carry
  • The driver did not have a valid driver license
  • The driver admitted to being paid cash to transport individuals to Phoenix
  • The driver gave conflicting statements regarding where he picked up the passengers
  • He initially stated he picked up the passengers from a Home Depot in Tucson
  • He later admitted he drove to the desert near Douglas to pick up the individuals
  • He further stated he would receive a call once he arrived in Phoenix with instructions on where to take the individuals

Lawyers like Ortega say the stop along I-10 is problematic because Maricopa County has a long history of racial profiling by law enforcement.

From 2006 to 2015, Latinos in Maricopa County were targeted during traffic stops under former sheriff Joe Arpaio's leadership.

RELATED: Sheriff Penzone will face contempt hearing, judge says

We interviewed Arpaio recently about his book titled “Sheriff Joe Arpaio, an American Legend,” and about whether he regrets any of the immigration tactics he directed as a sheriff.

“We didn’t go around stopping people’s skin color, I've always said in my career I'm an equal opportunity incarcerator. I lock everybody up,” stated Arpaio.

In 2017, Arpaio was convicted of criminal contempt for violating a federal judge’s order from 2011 to stop racially profiling Latinos; he was then pardoned by former president Donald Trump in 2017.

Still, Arpaio says he committed no wrongdoing and was only enforcing criminal law.

Immigration lawyers say being undocumented is a civil offense -- entering the U.S. without documents only violates immigration laws, not criminal law.

Ortega says not knowing the law is the problem with SB 1070.

“They’re the kind of problems that we anticipated from the beginning when they passed SB 1070 and that is that law enforcement was going to use it to profile people in our community.”

As far as the DPS traffic stop, the U.S. citizen driver allegedly admitted to being a human smuggler. The 17 individuals were released. Border Patrol said they couldn’t make it, ICE said when they got to the freeway, the individuals were gone. DPS said federal law enforcement refused to show up.