100-mile Fourth-Amendment Free Zone

Perhaps you have seen this video floating on Twitter or Facebook:

The video records US Border Patrol agents boarding a bus and demanding each passenger to produce their “papers.” (Apparently, one lady and her belongings are taken into custody.) The video has generated a good bit of social media outrage. However, this practice isn’t new. What really should outrage every citizen is the continuing assault on the Fourth Amendment. I only wish we had 1/10th of the zeal and jealousness for the Fourth as we do for the Second Amendment.

UPDATE:

Though immigration inspections on Greyhound buses are not widely publicized, they are not new. Border Patrol agents routinely conduct such inspections at transportation centers across Florida, the Customs and Border Protection’s Miami sector said in a statement Tuesday. . . The Border Patrol’s Miami sector said Tuesday that agents arrested a Jamaican woman at the Fort Lauderdale bus station. Officials said the woman had overstayed her visa and was transported to the Dania Beach Border Patrol station and then turned over to Immigration and Customs Enforcement for deportation proceedings.

The video is proof of the the legal position of the US government. Did your know that federal officials claim authority, without any suspicion or probable cause, to stop and conduct searches on any vessels, trains, aircraft, or other vehicles anywhere within “a reasonable distance from any external boundary of the United States?” 8 U.S.C. § 1357(a)(3) And they define the term “reasonable distance”, to mean within 100 air miles from any external boundary of the United States. 8 C.F.R. § 287.1(a)2 and (b). And they don’t stop there; they also claim authority to enter, access, and search any private lands or property (but not dwellings) within 25 air miles of the border. (The regulation actually authorizes this zone to extend beyond 100 miles if a federal agent “determines that such action is justified, [and] declare such distance to be reasonable.”)

There is no Fourth Amendment rights to be secure in our persons and property from unreasonable searches and seizures within 100 miles of the border and maybe further if the agent declare such is reasonable.

Accordingly, based upon the federal government’s position, here is a map of the United States wherein the Fourth Amendment of the Constitution does not apply:

Dothan, Alabama? No Fourth Amendment. The entire state of Florida? No Fourth Amendment. The entire states of Maine, Connecticut, Rhode Island, Maryland, Hawaii, Vermont, New Hampshire, Massachusetts and Michigan? No Fourth Amendment.

Consider this “border” definition and border search power in relation with this: Cellphone and Computer Searches at U.S. Border Rise Under Trump:

Customs officers stationed at the American border and at airports searched an estimated 30,200 cellphones, computers and other electronic devices of people entering and leaving the United States last year — an almost 60 percent increase from 2016, according to Homeland Security Department data released on Friday. . .

“In this digital age, border searches of electronic devices are essential to enforcing the law at the U.S. border and to protecting the American people,” said John Wagner, the deputy executive assistant commissioner at Customs and Border Protection. . .

A 2014 Supreme Court ruling did say, however, that law enforcement needed to have a warrant to search electronic devices when a person was being arrested.

But since that case did not involve a search at the border, Homeland Security officials said the ruling did not apply to Customs officers, who argue that the examination of electronic devices is akin to searching the luggage of travelers entering or exiting the United States. Customs officials also say the search of electronic devices has led to the arrests of individuals caught with illegal material, such as child pornography.

Accordingly. the federal government claims the power to search your phone and computer within 100 miles of the border.

As I have written before, the courts have further gutted the Fourth Amendment and the state of Alabama has statutorily empowered this assault on the Constitution. The law in the United States and particularly Alabama allows law enforcement to make pretextual stops any where in the United States regardless of proximity to the border. Law enforcement are allowed to employ “the use of some minor offense, typically a traffic violation, as a tool for obtaining evidence or statements relating to a greater offense for which the police lack the required probable cause or reasonable suspicion otherwise to obtain.” Scarborough vs. State of Alabama, 621 So.2d 996.

According to federal case law (and bolstered by Alabama statutory law) police do not even need a pretextual traffic office anymore. Here are some “valid reasons” to stop suspected illegals (or you) expressed by SCOTUS. The Supreme Court of United States stated in US v. Brignoni-Ponce (1975):

. . . officers on roving patrol may stop vehicles . . . if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.

So no crime is needed if they can state specific reasons that support their suspicion. The court went onto details some “valid” explanations.

Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider:

(1) the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant.

(2) They also may consider information about recent illegal border crossings in the area.

(3) The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.

(4) Aspects of the vehicle itself may justify suspicion. For instance, officers say that certain station wagons, with large compartments for fold-down seats or spare tires, are frequently used for transporting concealed aliens. The vehicle may appear to be heavily loaded, it may have an extraordinary number of passengers, or the officers may observe persons trying to hide.

(5) Trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.

Here are the new Rules of the Road for all “Mexican-looking” residents and citizens:

(1) Do not drive a vehicle; inevitably, everybody violates some traffic offense.

(2) If you must drive,  drive only Mazda Miatas or other two passenger vehicles; otherwise, vehicles like station wagons, vans, or SUVs may raise suspicion that you are trafficking in illegal aliens.

(3) Drive by yourself; otherwise, your vehicle may appear to be heavily loaded.

(4) Do not allow passengers to recline or sleep in your car because it may look like they are hiding.

(4) And most important, do not dress like those in Mexico and particularly avoid the infamous “Mexican” haircut.

To the contrary, to quote Justice Jackson in Brinegar v. United States:

These, I protest, are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court.

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