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Give Them An Inch and They'll Take A Mile

Written by Subject: Homeland Security

Over the past several months, I've been criticized by many who prefer the mere illusion of security over essential liberty.

Specifically, my alleged failure to cooperate with the suspicionless seizure of my person and effects at internal Homeland Security checkpoints has infuriated and befuddled those who believe in the omnipotent power of the state and that, by definition, federal agents can do no wrong.

Several who have criticized these videotaped encounters have erroneously stated that if I just cooperated in the violation of my rights by armed federal agents who claim to be protecting me, I'd be on my way in a matter of seconds instead of receiving extra special 'protection' for a prolonged period of time.

One example of such criticism that's fit for print appears below:
40 miles north is nothing. A human can walk 20 miles or more in a day. Most don't want to. That's why they get in cars and DRIVE. The checkpoint is there to look for the 20 illegals jammed into the back of the vehicle. Ok, I get your point about having to answer questions about your citizenship as a free American. You and I both know if you had said I am a US citizen you would have been throuh the checkpoint in a few seconds...

Unfortunately, the commenter makes several erroneous assumptions regarding the nature of these checkpoints. Specifically, he assumes they're limited in scope to checking immigration status.

Ignoring the fact that it's never 'reasonable' to seize individuals inside the country absent reasonable suspicion to begin with, the fact of the matter is Homeland Security agents routinely use immigration checkpoints as a pretext to conduct far more intrusive dragnet operations. A few of the other uses include an emphasis on illegal narcotics to prop up the failed war on some drugs as well as the general search for felons, weapons, and terrorists.

Case in point is a copy of a complaint, reprinted below, to Customs & Border Protection regarding the treatment two Americans recently received at the hands of armed federal thugs at just such an internal Homeland Security checkpoint. The incident took place on Monday September 27, 2008 East of Jamul, California along State Highway 94:

Given that the individuals seized, detained and searched cooperated with the initial stop by positively identifying themselves as U.S. citizens, one would think the seizure would have ended shortly thereafter. Instead, DHS agents used the opportunity as an excuse to illegally expand the scope of the seizure to search for drugs and other contraband in violation of several SCOTUS rulings. One such ruling was City of Indianapolis v. Edmond where, as here, drug dogs were used to sniff vehicles absent suspicion of wrongdoing.

The text of the complaint which was forwarded to me by the author appears below. Further commentary regarding the situation can be found following the account:

Dear Sirs,

The US Border Patrol, in my opinion, are Un-American agents of an emerging Police State who pull over and harass, not just Mexicans, but also native born US Citizens at your Totalitarian-style Checkpoints.

I should know as I was pulled over and illegally searched by your Border Patrol thugs on Saturday (9/27/08), at your checkpoint on San Diego freeway 94 east of Jamul.

What I experienced is that San Diego assigned Border Patrol Officers Villalobos, Ward, Kennedy, and a short blonde female officer are illegally (in my opinion), popping open people's car trunks on freeway 94 by scaring and bullying people into giving "Consent" to search the vehicles. These Officers gave me and other Motorists an offer we could not refuse at their checkpoint stop. Either give "consent" for them to search our cars and trunks or else we are pulled over to the side of the freeway where we have to sit on a bench and be stared at and humiliated in front of all of the other motorists passing by while your Agents verbally work us over.

In my case, as I approached your booth, I innocently gave the first officer who was manning the actual booth, my wife and my passports, cooperated with him more than he deserved by telling him I had been in Mexico that day buying floor tile; however, instead of then waving me on my way as I had established citizenship with the best of all documentation, a passport, he then asked me to "give consent" to him to search my trunk! I went "huh!!" and then the full impact of the stop hit me fast!

I quickly shot back at him that I already went through Immigration at Tecate and that I was not going to open anything for him. He repeated his question a few more times and then directed me to pull over to the side of the road; whereupon three other officers descended on my car, ordering us out of the car and to step away from the car and to sit on a bench. The other three officers each asked me to give consent to search my trunk and I repeatedly told them no, that I am a paid up member of the ACLU and that I am refusing to give consent to search my trunk voluntarily as a matter of principle.

Subsequently, the lead officer said that either I gave consent or he would bring out his "dogs' to smell my car, and I told him that he still did not have consent to open my trunk. By this point the officer's demeanor showed that he appeared "hellbent" on getting into my trunk one way or another.

Officers Ward, Kennedy and Villalobos then brought out their Phony Scam "Sniffing Dogs" who ran around my car and then barked & sort of leapt up a few times while running around the car; whereupon the lead officer then declared that he now had the legal right to forcibly open my trunk, and demanded that I give him my car key, and so I involuntarily complied.

The officer then searched my car as well as my trunk and undercarriage for about 10 minutes and of course found nothing of interest, as I all I had in my trunk was a spare tire and a box of floor tile.

I don't know if the Border Patrol either got ripped off by whomever sold you the dog, or if the whole dog-sniffing thing is an actual scam where the dog barks at every car so the Border Patrol can pretend they have probable cause to search in every case, or lastly, and more likely, that the dog did not "signal" anything at all by his "bark", and the officer was probably lying.

In my case these agents also took my Passport, (which I had on me), and my California Drivers License and went inside and made photocopies of all of it to keep for their files. The officer in charge even sent the blond female officer back inside with loud orders to copy all of the pages in my Passport. (Was this to somehow scare or intimidate me?) They then returned our IDs and Passports and gave me my keys back and told us nonchalantly that we could now leave.

During the 20 to 30 minutes of our Detention I argued with the lead agent, I think he was Officer Ward, over what he was doing and we bantered back and forth about the 4th Amendment on Search and Seizure law, with him claiming that he took 7 classes in Criminal Law in College. Apparently he must have been forgotten to take a class in Civil Liberties and Constitutional Law.

Also, In the midst of this My wife then began taking pictures of the four Agents while we were sitting on the Bench and it totally freaked them out, with them running over yelling to stop taking pictures.

I found out later by searching the Internet that Citizens do not have to give ID to you and that I do not actually have to even talk to you, so I apparently went way overboard in giving the Border Patrol my passport and drivers license and chatting with them about where I had been and where I was going. From now on it will be your problem to figure out my nationality as I am only going to say, "Am I being Detained" and "Am I free to go", and I suggest all motorists stand up for freedom and do the same and not even roll down the window when stopped by your agents.

I demand that you conduct a full investigation of the details surrounding my stop at your checkpoint on September 27, 2008 and that you discipline the Officers involved. I also demand that you return to me any copies of my identification documents that were made by those officers.

I have already contacted the ACLU on your Civil Rights Violations. I plan to widely expose your UnAmerican tactics on the internet and I also plan to organize an educational campaign to inform people that they do not have to give consent for their cars to be searched or for their trunks to be opened and that the Border Patrol internal Checkpoints are an anathema to a free society.

The Border Patrol needs to get back to the Borders, where you belong, and stop ransacking American Citizens' cars!

------ ------

What has become obvious to me in discussions with various Homeland Security agents over the past eight months is that most presume they have the same authority at internal checkpoints that they have at the actual border. Namely, they presume the authority to detain whomever they please for further scrutiny based upon mere suspicion or no suspicion at all. That individuals can be diverted to secondary inspection, forced out of their vehicle, patted down & detained indefinitely while agents use drug sniffing dogs to try & establish probable cause to search or verbal intimidation to coerce consent for a search.

In other words, DHS agents presume the United States of America has devolved into a country little different from most third world dictatorships. A place where individuals can be arbitrarily plucked off public streets and indefinitely detained for the convenience and amusement of armed thugs with shiny badges but little in the way of accountability.

Such an interpretation of the legitimate powers of Homeland Security agents would be laughable if not for the serious nature of the violations being perpetrated against individual rights.

In a previous article, I discussed how such an expansive interpretation of unaccountable authority wasn't supported by Customs & Border Protection's own field manual. Below, I begin delving into why this interpretation is similarly not supported by U.S. Supreme Court jurisprudence on the subject. For simplicity's sake however, all one really needs to do is read and understand the 4th Amendment to know why such internal checkpoint operations represent a fundamental violation of the founding principles of our country.

The Border Patrol routinely points to United States v. Martinez-Fuerte as the court case which first created the loophole allowing them to stop & seize individuals at suspicionless internal checkpoints. What the Border Patrol fails to acknowledge however is that the case dealt solely with permanent immigration checkpoints located near nexus points for border traffic - not temporary or tactical checkpoints such as the one located on SR86 in Southern Arizona:
"...Our holding today, approving routine stops for brief questioning is confined to permanent checkpoints. We understand, of course, that neither longstanding congressional authorization nor widely prevailing practice justifies a constitutional violation"
- U.S. v Martinez-Fuerte.
The court threw in the last sentence from the above quote based upon un-Constitutional activity the Border Patrol had engaged in for years prior to Martinez-Fuerte. Specifically the Border Patrol routinely searched vehicles at checkpoints absent reasonable suspicion and used roving patrols to similarly seize, interrogate & search individuals away from the border. Martinez-Fuerte was the last of four rulings in the 1970's regarding Border Patrol authority. In the first three, the court struck down several illegal Border Patrol practices. See:
ALMEIDA-SANCHEZ v. US (1973) - SCOTUS struck down the longstanding practice of using roving patrol stops as an opportunity to search vehicles absent consent or probable cause. US v. BRIGNONI-PONCE (1975) - SCOTUS struck down the longstanding practice of using roving patrols to stop vehicles absent reasonable suspicion. US v. ORTIZ (1975) - SCOTUS struck the longstanding practice of searching vehicles at checkpoints absent consent or probable cause.
Going back to Martinez-Fuerte, let's assume for the sake of argument that the ruling was expansive and included 'temporary' or 'tactical' checkpoints as well as permanent ones. What exactly can the Border Patrol do during such a suspicionless checkpoint stop:

"In summary, we hold that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant."
- U.S. v Martinez-Fuerte

Remember also that questioning must be related to immigration status and answers cannot be compelled during an investigatory stop. Additionally:
"...We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search....And our holding today is limited to the type of stops described in this opinion. -[A]ny further detention...must be based on consent or probable cause.'"

In other words, agents can briefly stop individuals at permanent checkpoints for the sole purpose of asking immigration questions. Any further detention must be based on consent or probable cause as opposed to detaining until consent or probable cause can be coerced as was the case above

Strangely enough, agents also point to Martinez-Fuerte as the case that allegedly authorized them to refer individuals to secondary inspection, force them out of their vehicles and indefinitely detain them while agents work them over for consent to search - all based on mere or no suspicion.

For those who bother to read the case however, it's obvious SCOTUS only authorized secondary referrals without probable cause or consent in situations where traffic is too heavy to ask everyone about their immigration status at the primary stop location.

SCOTUS never upheld secondary diversions as a coercive tool to be used to gain compliance after the initial immigration questions have been asked at primary - absent probable cause or consent that is:

"Referrals are made for the sole purpose of conducting a routine & limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop & inquiry thus remains minimal."
- U.S. v Martinez-Fuerte

Further, SCOTUS stated:

"Moreover, selective referrals - rather than questioning the occupants of every car - tend to advance some 4th Amendment interests by minimizing the intrusion on the general motoring public"
- U.S. v Martinez-Fuerte 

At the checkpoints described in this article, everyone is stopped & questioned at primary - a different set of circumstances than existed in Martinez-Fuerte where no one was questioned at primary. As such, the secondary referrals being made are far more intrusive in their scope then those considered by the Supreme Court. They represent an extended detention which the court ruled must be based on consent or probable cause.

In essence, the Border Patrol is chomping at the bit for a second bite of the apple. Secondary referrals were ruled reasonable in Martinez-Fuerte because it was the only place where limited citizenship inquiries were being made. Now Border Patrol agents claim they can ask the questions at primary and still refer individuals to secondary for indefinite detention absent consent or probable cause despite clear guidance from the Supreme Court to the contrary:

"Any further detention...must be based on consent or probable cause....None of the defendants in these cases argues that the stopping officers exceeded these limitations. Consequently, we affirm the judgment of the Court of Appeals...."
- U.S. v Martinez-Fuerte

Given this ruling & the complaint appearing above, there's little question that armed federal agents routinely ignore lawful limitations on their authority while conducting un-American suspicionless fishing expeditions against domestic traffic along public highways inside the country.

The Supreme Court gave the Border Patrol an inch in Martinez-Fuerte after ruling against them on three separate occasions in the 1970's. Not to be deterred however, 32 years later the Border Patrol has taken that inch and stretched it well over a mile and well past its breaking point.

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