Putting to rest the lie that internal Border Patrol checkpoints are primarily about stemming the flow of illegal border crossers (as if you could stop illegal border crossers 40 miles North of the border to begin with), the video below clearly shows that the Department of Homeland Security use so-called immigration checkpoints as a pretext to search for contraband.
As in previous videos, this August 21st checkpoint encounter took place near mile marker 146 on SR86 in Southern Arizona. SR86 is an East-West highway located over forty miles North of the border and never intersects the border at any point.
Consequently, there are no Ports of Entry located along this route. Why then would a ‘Port of Entry’ K9 team with Customs and Border Protection be operating a CBP detector dog at this internal immigration checkpoint?
The answer is obvious.
During the encounter, the stopping Border Patrol agent greets me by name. Further, the agent never asks my immigration status making it clear the scope of the stop had nothing to do with immigration. Additionally, other Border Patrol agents on the South side of the checkpoint yell out my name on several occasions (see the gray haired Border Patrol agent sitting down while enjoying the festivities below):
While I’m being detained at primary by a Border Patrol agent who knows who I am, a K9 team is going to work on the passenger side of my vehicle sniffing for illegal contraband. Unlike the stopping agent however, the K9 handler isn’t a Border Patrol agent. He’s a Customs (and Border Protection) agent normally assigned to a port of entry where dogs are trained to search for drugs, guns, currency, explosives and humans who are either entering the country at the actual border or leaving.
Just so you know I’m not exaggerating regarding the types of dogs employed by Customs & Border Protection agents, here is a quote from the CBP website:
“Over 1200 CBP canine teams expedite inspections along our borders. They work tirelessly to combat terrorist threats, stop the flow of illegal narcotics, detect unreported currency, firearms, concealed humans, smuggled agriculture products and explosives.”
You can tell which agents belong to which agency in the photos above (and video below) based upon the color of their uniforms. Border Patrol agents operating in the field wear green while CBP Customs agents wear blue.
Why was this U.S. Customs unit deployed at a so-called immigration checkpoint over 40 miles North of the border? Perhaps an expansion of the program discussed in this blog entry can shed some light on that question.
To make the legal issue clear, the U.S. Supreme Court has ruled Border Patrol checkpoints inside the country must be limited in scope to brief immigration queries with any further detention or searching requiring consent or probable cause. See U.S. v Martinez-Fuerte (1976):
“…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.’ (U.S. vs. Brignoni-Ponce)”
“The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.”
Since there was obviously no question regarding my immigration status, the sole purpose for my detention was clearly contraband interdiction:
It should be noted that the 5th Circuit Court of Appeals has ruled on several occasions that they have no problem with the use of drug sniffing dogs at internal immigration checkpoints as long as the primary purpose of the stop is immigration and the length of the detention isn’t extended outside the time frame necessary to make reasonable immigration queries. This checkpoint took place within the jurisdiction of the 9th circuit however and the distinction the 5th circuit has made between primary and secondary checkpoint purposes is a distinction without a difference.
Indeed, if the intent of the U.S. Supreme Court was for drug checks to be allowed at immigration checkpoints, the court never would have stated the following in Indianapolis v Edmond:
“We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, Martinez-Fuerte, supra, and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz…In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.“
Petitioners state that the Sitz and Martinez-Fuerte checkpoints had the same ultimate purpose of arresting those suspected of committing crimes. Securing the border and apprehending drunken drivers are law enforcement activities, and authorities employ arrests and criminal prosecutions to pursue these goals. But if this case were to rest at such a high level of generality, there would be little check on the authorities ability to construct roadblocks for almost any conceivable law enforcement purpose. The checkpoint program is also not justified by the severe and intractable nature of the drug problem. The gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, the Court must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue.
“Our prior cases have limited significantly the reach of this congressional authorization, requiring probable cause for any vehicle search in the interior and reasonable suspicion for inquiry stops by roving patrols. 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
I’ll be writing more about the current state of the law and why the Border Patrol has been getting away with using immigration checkpoints as a pretext for general law enforcement purposes in the near future but this should give you some idea of where I’ll be coming from.
In the meantime, folks may want to give the recent Supreme Court case Arizona v. Gant a read to see how lower courts have misinterpreted higher court decisions in the past to give enforcers far more leeway to act than is constitutional or legal.