“I exited my patrol car and approached the side of the van,” Smith wrote in the incident report. “The passenger window was rolled down and I immediately smelled an odor that was consistent with smuggling of illegal aliens from past experiences. Once I was at the passenger window, I noticed numerous persons in the van and the driver looked scared.”
This caused Smith to assume they had all just crossed into the country from the Mexican border. Smith not only interrogated the driver and ticketed him for driving without insurance on a suspended license, but warned federal agents of the consequences he believed would occur should they not arrive at the scene, the Mirror reported.
“I told the (ICE) Agent that the illegal aliens would be released at the scene to walk off the highway and how that would look,” Smith wrote in the incident report. “The agent said if we found any of the persons were aggravated felons they would come out and get them.”
A second DPS officer then fingerprinted the 17 men in the van, but no records came up. They were then told to walk away from the highway toward an off-ramp on Ray Road, according to the report.
While under Arizona law, SB 1070, law enforcement officials are required to attempt to determine someone’s immigration status, the use of “odor” is not a factor appropriate or sensible to use and is considered a race-based factor according to DPS.
“You can’t smell someone’s immigration status,” Billy Peard, an immigrant rights advocate and former attorney with the American Civil Liberties Union (ACLU) of Arizona, told the Mirror. “You are not supposed to be fingerprinting people because of a civil infraction, there’s no reason for that,” he added. “You are only supposed to fingerprint people as an incident to arrest. The troopers could not arrest them because they had no probable cause that a crime was committed.”
Police officials are able to request information on a person’s immigration status under the law based on “reasonable suspicion” that they might be in the country illegally. The suspicious behavior that sparked Smith to pull the van over allegedly was the driver’s choice of camouflage clothing.
One cannot determine what someone’s immigration or living status is merely on the way they smell, additionally, civil rights advocates also raised flags on why the initial stop was made. Pulling over someone based on their choice of clothing is not only wrong but sounds like a guise to stop and check the immigration status of people of color. The law’s guidance on how to apply the section clearly notes that officers cannot use race or ethnicity to establish reasonable suspicion that someone is undocumented, Smith however did.
“This is a reminder that SB1070 is very much alive and well. It’s not harmless. It’s still very much followed on a day-to-day basis,” Peard said.
According to the incident report, other drivers were also disregarding the speed limit but Smith chose to pull over the van of Latino men. The Arizona Department of Public Safety has since apologized, for the incident clarifying that odor is not an appropriate factor to consider under SB 1070.
“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,” DPS spokesman Bart Graves said in a statement to the Mirror. “The Department acknowledges that the information in Sergeant Smith’s report should have been better articulated.” However, despite this apology, Graves still defended Smith noting his more than 20 years of experience, and claimed Smith observed several things that amounted to reasonable suspicion.
Reasonable suspicion is such a vague term and can be used by racists in any sense to target people of color. While SB 1070 may not include odor as a reasonable point of suspicion, the law itself is problematic. According to the Associated Press, studies on the rise of anti-immigrant laws in Arizona have found that Latino people in Phoenix are stopped for longer, and are more likely to be searched and arrested.
The stop gained widespread attention from Republicans who criticized immigration enforcement officials for failing to support the trooper. They claimed that due to the Biden administration’s change in policies focusing on terrorism and other threats undocumented immigrants who should be arrested and are “criminals” are walking free. Of the Republicans blaming the Biden administration was Arizona Gov. Doug Ducey, who said the lack of immediate support for the topper by immigration officers is an example of a federal policy that “does nothing but empower those that pose a serious threat to public safety, including drug cartels and human traffickers.”
“If the federal government isn’t going to do its job, then Arizona will take matters into our own hands and provide support to sheriffs and local law enforcement,” Ducey said in a statement.
According to police officials, the driver later admitted to picking up the men in a desert near the border town of Douglas and transporting them to an undisclosed location for a $10,000 payout. However, that does not justify Smith’s racist actions. You cannot pull over someone based on clothing that is commonly worn and claim you knew they were undocumented because of their smell. “I don’t know how somebody smells like an immigrant,” Yvette Borja, a border litigation attorney for the ACLU of Arizona told the Mirror.
Immigrants do not have a distinct smell that translates to their immigration status. This is a clear example of racial profiling. Smith should be held accountable for his actions and such racism cannot be tolerated. We need reform now.