Court: Mistaking a Mexican for a Middle Eastern terrorist not profiling if he's doing other suspicious things

A federal appeals court ruled today that MBTA cops had the right to arrest a Mexican man at the Sullivan Square T stop after the Madrid bombings because he and other "Middle Eastern" men in his van seemed to be doing the same things terrorists might do before trying to blow up the station.

The man, a Mexican resident alien living in Texas, had argued the T cops had no probable cause to open and search his van without a warrant on the morning of May 28, 2004, because he turned out not to be Middle Eastern as they initially thought, and so they had no right to arrest and charge him with transporting the several illegal aliens from Brazil they found in the back of his van.

The U.S. Court of Appeals for the First Circuit in Boston, however, said Edgar Ramos might be right if that were the only reason they felt they had to search his van right away, but that there were several other legitimate reasons for them to think Ramos and his van full of illegal Brazilians might be doing something that needed to be stopped immediately.

In its ruling, the three-judge panel said a T inspector arriving at work shortly before 7 a.m. on May 28, 2004 - the day after she had gone to a training seminar on recognizing potential terrorists - noticed a van with several occupants, a paper license plate and tinted windows just sitting in the station parking lot. All were potential signs of terrorist activity, as were the way the men got out, with one pausing to write something on a piece of paper, and then got back in.

And the inspector, herself black, thought the men looked "Middle Eastern." The judges said that in the context of the Madrid train bombings just three months earlier, by Middle Eastern terrorists, that was another reason for the MBTA cops she summoned to be concerned enough to take immediate action.

While in other situations there may be merit to the argument that a description of ethnic appearance is irrelevant and nothing more than impermissible profiling, the argument fails on the facts here. The MBTA attempted to learn from the recent lessons of Madrid and had so trained its employees. Not just the recent history of Middle East-originated terrorism, but also the explicit warnings, issued some eleven weeks before, of future strikes by the same groups in the United States, meant it was material for the officers to consider, among other facts, the risk of terrorist attacks on transit stations in major urban centers and that the persons they were investigating had a Middle Eastern appearance. This is not a case about stereotyping or selective prosecution. ... This is not a case in which the only basis for suspicion was Ramos' appearance. Under the totality of circumstances, the officers had reasonable suspicion criminal activity was afoot.

• Complete ruling
• Why Ramos was driving Brazilians from Texas to Charlestown