Judge Wendell Griffen wrote a concurring opinion saying he believed the stop was based on profiling. He wrote:
There is certainly no legitimate reason for people with Spanish surnames from Arizona or anywhere else to be suspected of criminal activity merely because they operate automobiles on Arkansas highways, wherever the automobiles may be registered. Similarly, no law prohibits a motorist from becoming apprehensive when he is subjected to a roadside interrogation by an armed law-enforcement agent who stops his vehicle because it bears a license plate from another state. Nor is there any law that prohibits a motorist from becoming apprehensive when the armed law-enforcement agent interrogates the motorist about his arrest record without any apparent reason other than the fact that the motorist is from another state. It is not at all surprising that motorists with Spanish surnames who operate vehicles registered in other states become nervous when law-enforcement officials are permitted to engage in pretextual traffic stops such as the stop in this case.
Hinojosa, who has been in state custody, rather than being released or retried likely will be turned over to federal immigration authorities, who have a detainer on him, according to state prison records.
UPDATE: The State Police comments in a prepared statement:
Based on the Arkansas Court of Appeals decision to reverse and remand the case involving Mr. Hinojosa, the department will withhold any comment that relates directly to the evidence or facts of the case while it is pending in the courts. This decision is based on the department’s standing practice which prohibits public comments about cases that may directly or indirectly influence the adjudication of a criminal charge.
As to the accusation from Judge Griffen that, “…this case appears to present a classic case of racial profiling,” we believe it is important to note that at no time has Mr. Hinojosa or his legal counsel ever filed a complaint of racial profiling stemming from the January 2007 traffic stop.
Arkansas State Police Policy LE_SEC 9 states, “Arkansas State Police neither condones nor tolerates, and affirmatively prohibits the practice of bias-based policing by its officers.”