CBP Officer Searches For Legitimacy

11SEP2009Roadblock from Checkpoint USA on Vimeo.

On September 11, 2009 in a significant departure from standard operating procedures, Customs and Border Protection officers normally assigned to Ports of Entry are observed working the primary stop location of an internal checkpoint over 40 miles North of the border along a highway never intersecting the border at any point. This is the continuation of a shift in Homeland Security tactics first observed on August 21, 2009. Whether or not this is a temporary experiment in cross-training personnel from different units within the agency or a permanent shift in DHS tactics remains to be seen.

What doesn’t remain to be seen however is the ineffectiveness of both Port’s of Entry and internal Border Patrol checkpoints. As recently detailed in my coverage of a town hall meeting on internal checkpoints hosted by Congresswoman Giffords, CBP officers at Ports of Entry only attempt to interdict 30% of major illegal traffic crossing through them. According to the GAO, this policy has been put in place so as to not overly burden border commerce. Internal checkpoints on the other hand interdict far fewer illegal border crossers and narcotics than their border counterparts. On average, internal checkpoint agents interdict six illegal aliens per agent per year while agents operating along the actual border interdict 118 per year in the Tucson sector.

Officer Ballentine, the CBP officer who stopped me during this checkpoint encounter, was also present in the August 21st video referenced earlier. Under the login name ‘Border Bob’, he left several comments on the video. I’ll have more to report on ‘Border Bob’ in a future post.

The last issue I wanted to bring to your attention is that of a CBP officer I observed laying hands on personal property in the back of a pickup truck at the checkpoint. At the time, the truck was directly in front of me at the primary stop location. The officer, who had no prior contact with the driver, attempted to open and search a container in the back of the pickup absent consent or probable cause. The action violated limitations imposed on internal checkpoint operations by the U.S. Supreme Court in U.S. v Ortiz (1975) and U.S. v Martinez-Fuerte (1976). It also violates the agent’s own field manual.

Specifically:

“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 (1976)

“The Fourth Amendment held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents, and for this purpose there is no difference between a checkpoint and a roving patrol. Almeida-Sanchez v. United States” – U.S. v Ortiz (1975)

“…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)” – U.S. v Martinez-Fuerte (1976)

Given these very real limitations imposed by the U.S. Supreme Court decades ago, why did this armed federal agent feel free to ignore them and how many times has he done so before?

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