In yet another example of illegal Homeland Security enforcement activity inside the country, 18 year old Iris Cooper is one of the latest victims of Border Patrol aggression against the traveling public.
Last month, Mz. Cooper was on her way to class at the Pima Medical Institute in Tucson, AZ when she realized she had left her school books at home. Northbound on I-19 in Southern Arizona, she turned around to retrieve them only to be stopped, seized, detained and searched by Border Patrol agents shortly after conducting a perfectly legal about-face. In addition to seizing and searching her, the federal agents added insult to injury by handcuffing her and forcing her to wait thirty minutes for the arrival of a K-9 unit that proceeded to search her vehicle upon its arrival absent consent.
The u-turn took place several miles before an internal Border Patrol checkpoint located along I-19. This is undoubtedly one of the reasons why the Border Patrol was in a position to observe the u-turn in the first place (Homeland Security also has cameras located up and down the I-19 corridor). Regardless of the proximity to the checkpoint however (which is more than twenty-five miles North of the border), to conduct a lawful traffic stop, agents need reasonable suspicion to believe the vehicle is carrying individuals illegally inside the country. This is especially true given the existence of several communities in Southern Arizona located between the I-19 checkpoint and the border. This means there is a lot of domestic traffic along the road at any given time engaging in perfectly lawful and domestic activities.
Assuming that Congress has the power to admit aliens on condition that they submit to reasonable questioning about their right to be in the country, such power cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens. The Fourth Amendment therefore forbids stopping persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens. – U.S. v Brignoni-Ponce
To conduct a search, as was done in this case, agents need probable cause or consent:
Because of the important governmental interest in preventing the illegal entry of aliens at the border, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, an officer, whose observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, may stop the car briefly, question the driver and passengers about their citizenship and immigration status, and ask them to explain suspicious circumstances; but any further detention or search must be based on consent or probable cause. Pp. 878-882. – U.S. v Brignoni-Ponce
Since agents had neither probable cause nor consent in this case, the search of Mz. Cooper and her vehicle were illegal. Additionally, its unlikely the stop itself was legal since conducting a lawful u-turn along a public highway does not constitute reasonable suspicion to believe a vehicle contains individuals illegally inside the country.
The newspaper article highlighting Mz. Cooper’s experience at the hands of overzealous Border Patrol agents appears below:
By JB Miller
Published Friday, November 20, 2009 9:34 AM MST
When Patagonia resident Iris Cooper, 18, turned her car around two miles before a Border Patrol checkpoint because she had forgotten her schoolbooks, she knew there was a chance that agents might stop her. What she didnt foresee was being allegedly forced from her vehicle and handcuffed for a half an hour while agents waited for a K-9 unit and then searched her car without consent.
I was very polite and explained that I had forgotten my backpack for school, said Cooper of the incident that occurred just west of Sonoita on the morning of Nov. 4. She was going to class at Pima Medical Institute in Tucson.
Cooper said that before she knew it, an agent had pulled her from the vehicle and handcuffed her. When I asked the agent why I needed to be in handcuffs he said, It is part of procedure.
Cooper said she waited in cuffs for 15 minutes while a K-9 unit was brought to the scene in order to search her vehicle even though she had not given agents permission to do so. The K-9 unit went through my car, and there was nothing, she added.
Agent David Jimarez, a spokesperson for the Border Patrol, said agents more than likely thought they had pulled over a smuggler and that Cooper was cuffed for both their safety as well as her safety. He said that often smugglers will try to run away if they think their vehicle is going to be searched. The handcuffing doesnt necessarily mean that she is being placed under arrest, said Jimarez, referring to Cooper.
However, Dan Pochado, legal director for the American Civil Liberties Union (ACLU) of Arizona told the Weekly Bulletin/Nogales International that 99.9 percent of the time such an act would indeed be considered an arrest.
When you are handcuffed that is effectively an arrest because you are unable to leave voluntarily, Pochado said. From the information given, it appears that the level of force here would arise to an unreasonable seizure and a violation, therefore, of the Fourth Amendment of the U.S. Constitution.
Pochado said that Fourth Amendment rights protect citizens from unreasonable searches and seizures no matter where they are. He said that while it appears the vehicle had enough suspicion to warrant an investigative stop, agents did not have probable cause for an arrest.
I hope that the agents explained themselves as to why they did what they did, said Jimarez. He added that an apology is usually in order under such circumstances.
Cooper said agents did not apologize, but did tell her to, Have a nice day.