Borderline Abuse

 

For those of used to Border Patrol vehicle checkpoints in the northward highway from San Diego to Los Angeles, it’s just part of the drive. We don’t normally give it second thought, but when you stop and actually look at the law, the power of the Border Patrol is staggeringly excessive. Effectively, on the slightest pretext, far below the normal “probable cause” standard, the Border Patrol can stop two-thirds of the US population without a warrant. Why, well if you look at the above map and examine at the border and coastal cities within that orange zone, you can see a 100-mile area near our shores and borders where such searches are perfectly legal.

There are 113 interior such checkpoints across the country. Border Patrol officers can also search just about anyone in New York City, Los Angeles, Chicago, Seattle, Boston, Miami, San Francisco, etc. without a warrant. They just need some basis to suspect an undocumented alien. The farther from the border, however, the more “intrusive” searches do require probable cause and possibly a warrant. Huh?

Reece Jones, writing for the July 17th Associated Press, addresses the history of that 100-mile zone: “A recent Supreme Court decision, Egbert vs. Boule, underlined those powers. A Border Patrol agent approached a Turkish guest at an inn in Washington state. When the inn’s owner, an American citizen, asked the agent to leave, the agent shoved him against a car and then threw him on the ground. The man filed suit, but the court ruled that even when the constitutional rights of an American citizen are violated by a federal agent, there is no right to sue if the violation occurred in the course of the agent’s official duties.

“With that decision, the Supreme Court added to decades of precedents that have allowed the Border Patrol to barely abide by the Constitution, especially its 4th Amendment protections against unreasonable searches and seizures… The Border Patrol isn’t stationed at ports of entry and airports, which are manned by Customs and Border Protection’s field operations officers. Instead, the Border Patrol polices immigration between crossing points. In the 100-mile border zone, its agents stop cars if they have a ‘reasonable suspicion’ about their occupants. When they set up interior checkpoints, everyone must stop for questioning and inspection. And they use racial profiling to boot.

“This is not what Congress envisioned when it established the Border Patrol in 1924. The original authorization said an agent could ‘arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law.’

“Sen. David A. Reed, a Pennsylvania Republican, explained in the 1925 Senate debates about the legislation that Border Patrol agents could only operate close to the border itself: ‘They have no right to go into the interior city and pick up aliens on the street and arrest them.’ He continued, ‘We are all on alert against granting too much power to these officials to act without a warrant.’... Nevertheless, a second clause in the Border Patrol’s authorization did allow agents to extend their authority away from the border line. They could ‘board and search’ any ‘conveyance’ in which they believed ‘aliens’ were being brought into the United States.

“The agents’ wide jurisdiction was unpopular with border residents and in Congress. In 1946, the Border Patrol’s authorization was revised: It could operate inside the United States, but only ‘within a reasonable distance from any external boundary.’… Unfortunately, the next year, a routine policy interpretation in the Federal Register set ‘a reasonable distance’ at 100 miles from borders and coastlines. Border Patrol agents were free to ‘board and search’ any vehicle deep into the interior of the country.

“At the time, there were so few Border Patrol agents, the agency’s seemingly unconstitutional authority went unscrutinized for decades. Finally, in the 1970s the conflict between the 4th Amendment and the Border Patrol’s congressional authorization reached the Supreme Court… In Almeida-Sanchez vs. United States (1973), the court reined in the agents, at least when it came to formal searches. In a 5-4 decision, the justices said the Border Patrol needed consent, a warrant or probable cause to conduct a search, just like other police officers.

“Two years later, in United States vs. Brignoni-Ponce, the justices considered Border Patrol stops. Could they be based only on the race of the occupants?... In a unanimous decision, the justices said no, but they didn’t rule out race as a criterion. To meet a standard of ‘reasonable suspicion,’ the court required two factors, and one could be race. The list they provided of other acceptable factors was so broad it in effect has allowed agents to stop almost any vehicle under any circumstances in the border zone.

“In 1976, United States vs. Martinez-Fuerte tested the constitutionality of the Border Patrol’s fixed or temporary checkpoints, set up 25 to 100 miles from the border. The ruling? At a checkpoint, agents can stop every ‘conveyance’ to question people about their immigration status and inspect the exterior of vehicles. On the basis of a single factor of suspicion they can pull someone over for more thorough questioning. Race alone meets that standard.

“Today there are more than 19,000 Border Patrol agents, and terrorism prevention and drug enforcement, in addition to immigration, have become top priorities.” Those Border Patrol searches still require probable cause for more thorough searches. Nevertheless, when this minimal threshold right to stop someone who might be an undocumented alien extends to population centers where the vast majority of Americans live, perhaps it’s time to change the rule to reflect reality… and the Constitutional protection we expect to apply.

I’m Peter Dekom, and while Customs and Border Protection is properly charged with stopping illicit border traffic (people, money, guns, fake brands, dangerous goods and narcotics), wouldn’t it be nice if the funding we allocate to those Border Patrol agents were actually directed at a much bigger threat: domestic terrorists.