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Mexican native entitled to rights, Stewart rules

Protection is at odds with an earlier decision

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A federal judge in Utah has contradicted the ruling of a fellow jurist on the constitutional rights of undocumented immigrants.

U.S. District Judge Ted Stewart ruled this week that a man who has lived in the United States for most of his life is entitled to Fourth Amendment protection against illegal search and seizure, even though he is not a U.S. citizen.

In June, U.S. District Judge Paul Cassell denied Fourth Amendment protection to another undocumented immigrant, saying he is not one of "the people" that the constitutional amendment aims to protect.

The most recent ruling on the issue involves 32-year-old Mario Rubio-Cota, who moved to California with his family when he was 6 years old. He has lived in this country ever since, save for the three times he was deported to his native Mexico. He has filed income tax returns for the past 12 years, invested in the stock market and has two children enrolled in public school in Colorado.

All of that, Stewart determined, is enough to qualify Rubio-Cota for constitutional rights against illegal police stops.

"The court finds that (Rubio-Cota) has clearly established voluntary attachments and substantial connections with the United States," Stewart wrote. "(He) could easily be considered 'part of the national community.' "

However, Stewart also ruled that the Jan. 24 traffic stop that led to Rubio-Cota's identification and subsequent federal charge of re-entry of a deported alien was legal. Thus, the charge against him can go forward and he will likely be deported a fourth time.

Rubio-Cota was traveling through Utah on his way to the Super Bowl in California when he was stopped on I-70 near Green River for an inoperable license-plate light. Rubio-Cota's defense attorney argued at a June hearing that the vehicle was inspected just six hours earlier and no mention was made of a faulty light.

Stewart determined the stop was legal, saying there was "no credible evidence to suggest to the court that Officer Webster's encounter with (Rubio-Cota), from initial observation to arrest, was anything other than legitimate."

In the case before Cassell, the judge determined that the arrest of Jorge Esparza-Mendoza was in violation of the Fourth Amendment, but allowed charges against Esparza-Mendoza to go forward nonetheless. He was sentenced last week to 17 months in a federal prison, after which he will be deported.

Defense attorneys have vowed to appeal Cassell's decision, saying it sets bad precedent and opens the doors for police abuse.

E-mail: awelling@desnews.com