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FEATURE ARTICLE |
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CBP Field Manual Shows Homeland Security Violations
Terry Bressi Website: Checkpoint USA Blog: Roadblock Revelations Date: 03-18-2008 Subject: Homeland Security With the recent publication of the Customs & Border Protection Inspector's Field Manual, these abuses have become abundantly clear. While the manual is geared towards Port of Entry inspections, it also discusses internal checkpoint operations such as those depicted in my videos & explains some of the legal differences between the two types of operations. The field manual was made public for the first time earlier this year on a website operated by Charles M. Miller, a California immigration attorney. Mr. Miller procured a copy of the manual from Customs & Border Protection after a lengthy FOIA (Freedom of Information Act)
battle which lasted close to two years. Not unexpectedly, the agency
initially refused to comply with the law. This forced Mr. Miller to
appeal the decision which resulted in the agency grudgingly handing
over a copy of the document. Since its posting, I've been able to compare the actions of CBP agents at internal suspicionless Homeland Security checkpoints
in Southern Arizona with guidance contained within their field manual.
This in turn has allowed me to document several discrepancies regarding
my experiences at these internal checkpoints. Several of these discrepancies are highlighted below: In the April 2005 video along with the January 8th and January 20th videos from 2008, federal agents attempted to divert me to secondary inspection or detain me based upon nothing more than mere suspicion. Further, various individuals who appear to be CBP Agents who have commented on my blog or YouTube channel, have insisted that federal agents need nothing more than mere suspicion to indefinitely detain individuals cherry picked off of public highways in the interior of the country. Such an interpretation of federal enforcement powers makes a mockery of the Constitution and Bill of Rights. Further, given the definition of mere suspicion, reasonable suspicion, and probable cause
contained in Section 18.7 of the CBP Field Manual, this interpretation
is clearly wrong as are attempts to detain me based upon nothing more
than mere suspicion: These definitions should make clear that mere suspicion is an enforcement tool that can only be used at a border crossing or its functional equivalent while reasonable suspicion is required to detain an individual away from the border. Functional equivalent in turn is defined in section 18.6 and only applies to non-border locations where no domestic traffic is present: (c) "Functional Equivalent:
The broad authority which exists at the international border also
extends to areas found to be the "functional equivalent". An airport
which is the destination of a nonstop flight from outside the United
States. If there is a mixture of domestic traffic with the
international traffic, then the location will not be considered a
functional equivalent. If there is any question of whether a particular
area is a functional equivalent, an officer should apply reasonable
suspicion and probable cause standards for searches and seizures that
are applicable to interior locations. The functional
equivalent of the border may be the mouth of a canyon, or the
confluence of trails or rivers. The key factor for consideration is
whether the person or item entered into the country from outside. Three
factors are used to determine whether a location other that the actual
border is a "functional equivalent": Given these definitions, it's clear that SR86, which is located more than 40 miles North of the border and used extensively by domestic traffic, is not the border or its functional equivalent.
Nonetheless this fact hasn't stopped overzealous DHS agents from
attempting to illegally detain individuals and direct them to secondary
inspection absent reasonable suspicion. In the January 23, 2008 video,
federal agents seized all traffic entering the checkpoint to run a drug
sniffing K-9 unit around the vehicles before allowing them to continue
on their way. The agent's field manual at 18.6 states that internal
checkpoints can only be used to stop vehicles to make brief immigration
queries and that such stops cannot be used as an opportunity to look
for other illegal activity: (e) "Checkpoints:
The Border Patrol conducts two types of inland traffic-checking
operations; checkpoints and roving patrols. Border Patrol agents can
make routine vehicle stops without any suspicion to inquire into
citizenship and immigration status at a reasonably located permanent or
temporary checkpoint provided the checkpoint is used for the purpose of determining citizenship of those who pass through it, and not for the general search for those persons or the vehicle. Inquiries must be brief and limited to the immigration status of the occupants of the vehicle. The only permissible search is a "plain view" inspection to ascertain whether there are any concealed illegal aliens. In
contrast, INS officers on roving patrol may stop a vehicle only if
aware of specific articulable facts, together with rational inferences
from those facts, that reasonably warrant suspicion (reasonable
suspicion) that the vehicle contains illegal aliens. Absent consent, a
more in-depth search requires probable cause for both types of inland
traffic-checking operations." Given the clear limitations contained within the field
manual, the use of drug sniffing dogs on all vehicles entering
suspicionless checkpoints unlawfully expands the scope of the seizure
from a mere immigration check to a search for illegal narcotics. While
some will claim the K-9 units are trained to sniff out humans in hidden
compartments, the fact of the matter is these dogs are cross-trained to
detect marijuana, cocaine, methamphetamine, heroin, and meth-related
drugs such as Ecstasy and don't differentiate between humans and drugs
when alerting. Additionally, a recent article in the Phoenix New Times
shows how Homeland Security agents operating checkpoints near Yuma,
Arizona have been working closely with the County Sheriff to use
suspicionless internal immigration checkpoints to interdict drugs. The
joint agreement, known as Operation Citation, has
resulted in federal agents being deputized by the County Sheriff to
make it easier for them to make drug busts using state powers. As
an aside note, I take exception to the manual's claim that CBP agents
can setup 'reasonably' located temporary checkpoints inside the
country. SCOTUS has never ruled on the Constitutionality of internal
suspicionless temporary federal checkpoints. The court has only ruled
in favor of permanent installations within a narrow range of
parameters. While several lower court rulings have treated temporary
checkpoints similar to the permanent checkpoints authorized by the
Supreme Court in U.S. vs. Martinez-Fuerte, the Constitutionality of
temporary (or tactical checkpoints) are ripe for legal challenge. In nearly every checkpoint video I've posted,
I've been detained absent reasonable suspicion longer than necessary
for agents to either realize I was a U.S. Citizen or to make their
immigration query. In the video
from February 1, 2008, federal agents called me out by name making it
clear they knew who I was. This fact is further bolstered by written
communications I've received from Border Patrol agents in the Tucson
Sector dated prior to the February 1st video. In the April 14th video,
Homeland Security agents repeatedly stated I wasn't being detained
while detaining me & attempting to break into my vehicle. In the January 8th video,
a Homeland Security agent continued to detain me while stating I wasn't
being detained and requesting that I move to secondary inspection. Why
are these actions problematic? Because Chapter 12 of the field manual
makes clear that any inspection is to be terminated as soon as the
inspecting agent has reason to believe the individual is a U.S. Citizen: "When you are convinced that an applicant for admission is a citizen of the United States, the examination is terminated." To clarify, the manual goes on to say: "Temporary
detention of a U.S. citizen for extensive questioning generally
requires reasonable suspicion that the person is involved in illegal
activity." and finally: "If probable cause to arrest the U.S. citizen cannot be developed within
a reasonable period of time, the person must be released." Chapter
12 of the manual primarily refers to U.S. Citizens being inspected at
Border Ports of Entry where federal agents have far more leeway to
conduct inquiries then they do away from the border. Such blanket
authority to hold an individual until citizenship is determined however
only exists at the border & does not extend away from the border or
its functional equivalent. Chapter 18 makes this
point clear by stating federal agents conducting operations inside the
country must have reasonable suspicion to detain. In other words, the
burden of proof rests with the federal agent to show an individual is
not a U.S. citizen as opposed to the individual having to prove he/she
is. This isn't true at the border, but it is for suspicionless checkpoint seizures located along SR86 in Southern Arizona. The February 1, 2008 video
provides clear evidence of general harassment and intimidation tactics
being directed against me. The DHS agents manning the checkpoint called
me out by name, pounded on the side of the vehicle I was driving,
refused to identify themselves, played hide & seek around the cab
of the vehicle and detained me even though they knew who I was. These
actions were blatantly illegal and show why recording equipment is
necessary for physical and legal protection against Border Patrol
aggression during internal suspicionless checkpoint seizures.
While the above shouldn't be construed as an
exhaustive list of possibly illegal, harassing, and intimidating
tactics I've experienced at internal suspicionless checkpoints, it's
certainly a good start. I've also been researching the
existence of more detailed field manuals that specifically address
internal Border Patrol operations but haven't run across any yet. While
such manuals may exist, the bottom line is Border Patrol Agents are acting as Customs and Border Protection
inspectors while operating suspicionless internal checkpoints instead
of patrolling the border. As such, Border Patrol agents are responsible
for not only obeying the law but also abiding by the rules,
regulations, and policies of their parent agency, Customs & Border Protection. While I will continue to research this issue, I hope this article provides some level of clarity regarding legitimate Homeland Security
authority inside the country. Given the obvious disdain for
accountability & the rule of law being expressed at every level of
the executive branch of the federal government, such clarity is sorely
needed in this day and age.
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