It’s been obvious for years that many of the enforcement techniques being wielded against individuals at suspicionless interior Homeland Security checkpoints have fundamentally violated the rights of the traveling public. Other than the clear language of the 4th Amendment however, the specifics of these violations haven’t been readily apparent – at least until now.
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:
- Misapplication of Border Enforcement Powers to Conduct Internal Enforcement Operations:
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:
- (a) Mere suspicion: At the border or its functional equivalent, an inspector needs only mere suspicion to justify a search and comply with the requirements of the Fourth Amendment. This is because the person is attempting to enter the United States from abroad and may reasonably be required to demonstrate that the person and his or her belongings are entitled to enter the United States.
- (b) Reasonable Suspicion: Before an inspector may constitutionally detain a person (non-entry related case), the inspector must have reasonable suspicion that the person is an alien and is illegally in the United States. This higher degree of suspicion arises generally in questioning persons encountered in and around the port who are awaiting persons referred to secondary. This suspicion is based on questioning of alienage alone and also involves specific articuable facts, such as particular characteristics or circumstances which the inspector can describe in words.
- (c) Probable Cause: Probable cause is the degree of suspicion which an inspector must have before constitutionally making an arrest under either civil or criminal law. An inspector has probable cause to arrest or search if evidence and circumstances which would lead a reasonable person to believe that an offense has been or is being committed are known by the inspector.
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”:
- reasonable certainty that a border crossing has occurred
- lack of time or opportunity for the object to have changed materially since the crossing;
- and execution of the search at the earliest practical point after the actual crossing
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.
- Use of Internal Temporary Immigration Checkpoint Stops as a Pretext to Search for Controlled Substances:
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.
- Detaining Individuals Inside the Country Absent Reasonable Suspicion:
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.
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.
- General Harassment and Intimidation of U.S. Citizen(s):
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 entry 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.