Post details: CBP Field Manual Shows Homeland Security Violations

2008-03-13

Permalink 20:48:25, Categories: Right to Travel, Homeland Security?, Checkpoints, 2029 words   English (EU)

CBP Field Manual Shows Homeland Security Violations

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.

[More:]

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.

    and finally:

    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.

Comments:

Comment from: nomore [Visitor]
I applaud your efforts sir!!! Being informed is key these days but even with that most people are afraid of big brother. Keep up the good work. I enjoy your website and will continue to view it.

www.inforwars.com
Permalink 2008-03-17 @ 19:01
Comment from: nomore [Visitor]
correction to website address. It's
www.infowars.com
Permalink 2008-03-17 @ 19:02
Comment from: Florida National [Visitor]
Hey, you border patrol agents reading this blog are perpetuating Communism in America.

Aren't you proud of yourself?



Permalink 2008-03-18 @ 22:13
Comment from: Jason [Visitor]
Does a person have a right to refuse to answer a challenge of their citizenship? If a person isn't a citizen, then do they enjoy protection from self incrimination, ala the 5th amendment? And further, does a person have a protection against compelled speech, ala the 1st amendment? Can these border agents place you under duress in order to compel you to speak?
Permalink 2008-03-20 @ 17:05
Comment from: Checkpoint USA [Member]
At internal suspicionless Homeland Security checkpoints, Border Patrol agents are conducting investigatory stops & specifically looking for criminal behavior. As such, any answers provided to questions posed by Border Patrol agents are testimonial in nature and can be used against you in a court of law.

I'm aware of no court ruling that compels an individual to answer questions posed to them under such circumstances. If an answer could be compelled it would be a direct violation of the 1st & 5th amendments.

Additionally, the Customs & Border Protection Inspector's Field Manual specifically states that reasonable suspicion is required in order to detain someone inside the country:
"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."
So given nothing more than the field manual that governs the actions of these agents, it would appear that they cannot compel you to answer their question(s). At most, they can stop you for a period long enough to make an immigration query (and the legality of this is questionable at temporary checkpoints). If they don't have reasonable suspicion to believe you're in the country illegally after making their query, they are obligated to let you go.

This is not true at the border where Homeland Security can detain you indefinitely until your citizenship is verified but inside the country, reasonable suspicion rules and no court has had the audacity to rule otherwise - yet.

Of course this is only my interpretation of the state of affairs but given my last ten checkpoint stops where I have not answered their immigration query and still been waved through the checkpoint without going to secondary, I'd say my interpretation is not far off the mark.

If anyone has evidence to the contrary, I'd be most interested in seeing it.
Permalink 2008-03-20 @ 22:30
Comment from: E. C. Hoague [Visitor]
I find your website immensely informative and helpful. And the tenacity you demonstrate in your videos is truly inspiring.

You might be interested in our local situation. I live part-time on Orcas Island in Washington State. Islanders arrive and depart from the continental US at Anacortes, Washington by state ferry which is legally a division of the Washington Dept. of Highways. Orcas is within 5 nautical miles of the Canadian border. Anacortes is approximately 40 to 50 miles as the crow flies from the Canadian border.

BP has always had an immigration check at Anacortes, FOR THOSE FERRIES WHICH ARE COMING FROM CANADA (which run 1 to 2 times a day ONLY DURING THE SUMMER; the other 12 or 13 ferries arriving into Anacortes are intrastate, not international). However, about 6 weeks ago before any ferry runs from Canada had even started, BP began running random immigration checks on all persons and cars arriving from the islands (each island is part of Washington State. Although the BP allege that they are looking for terrorists, they only ask the citizenship question and then depending on the answer let one through.

You can imagine the outcry from a bunch of older, liberal citizens who are going off island on their way to Costco or the like and are made to wait in this little holding pen until they are questioned by the BP. Unfortunately, several of the local undocumented workers have been nabbed this way. As they do not know that they have a right to remain silent and that it is the BP that must bear the burden of suspicion, they nervously admit to being undocumented and are whisked off to the Tacoma ICE facility.

The Orcas Island citizens are very upset and the local immigrant population is frightened to death. The caselaw on these intrusive stops is not favorable, but I would like to talk to you directly about the issues involved and what you think might be a good plan of action. Any chance?

Permalink 2008-04-17 @ 18:49
Comment from: Jay [Visitor] · http://www.leap.cc
It's sad that our government has chosen to use immigration laws to enforce drug laws. The checkpoint at Yuma uses dogs to catch U.S. citizens with small amounts of marijuana.

America now imprisons more of it's own citizens than any other country in the world, a sad statement for the land of the free. We now have private for-profit prisons that are publicly traded on the stock exchange.

I find it very sad when Americans make money on the imprisonment of other Americans.

Permalink 2008-04-28 @ 08:13
Comment from: confused [Visitor]
i dont feel in favour of the c.p usa member in the recent videos, i believe that under reasonable suspicion he was required to pull over to secondary inspection, with actions like that to a female law inforcement officer who was clearly doing her job, i too would be suspicious if my attempts of upholding my job were hit with a barrage of rude and obnoctious questions, the officer only wanted to know what citizen you were, how does that offend someone or take away their freedom,i would have told you your not being detained but your not free to go until you answer a question put to you by a govternment official who is upholding the law, i know you'd say this is againts 1 and 5 bla bla bla but under duress and reasonable suspicion i feel you could be comitting an illegal act as you are very stubborn and unwary about complying
Permalink 2008-05-12 @ 06:44
Comment from: kams912 [Visitor]
Hey asshole who made these videos! If you are reading this I just want you to know that you are a fucking douche bag, and if I was that American Border Patrol agent I would have shot you in the face. Do these border patrol agents come to fucking McDonald's where you work and break your balls? These people are tying to protect America you ungrateful sack of shit.
Permalink 2008-05-13 @ 12:41
Comment from: Checkpoint USA [Member]
"Hey asshole who made these videos! If you are reading this I just want you to know that you are a fucking douche bag, and if I was that American Border Patrol agent I would have shot you in the face."


The email address of the poster who left this threat of violence was:

kams912@yahoo.com

and the IP address was:

76.175.59.49

This IP address resolves to a service provider in Herndon, Virginia.

I'm always amazed at the viciousness associated with many of those in favor of the use of suspicionless checkpoints against the American people.
Permalink 2008-05-31 @ 21:32
Comment from: Justice Unlimited [Visitor] · http://groups.yahoo.com/group/justiceunlimited
"76.175.59.49

This IP address resolves to a service provider in Herndon, Virginia."

Funny, I'm showing the IP is basd out of the Netherlands.....

yet the person is listed as being in california.
Permalink 2008-06-27 @ 08:38
Comment from: an actual american in the military [Visitor]
wow. really? so if you post anything negative about the subjects on this blog... you get your IP address and email posted? thats weak. this is a blog. people should be able to post their opinions... if you think the guy/girl that posted the message about "i would have shot you in the face" was an actual threat... you are a scared little bitch. go cry yourself to sleep... hope ya dont wake up. oh no! was that a treat? ahhhhhh!
Permalink 2008-08-12 @ 23:12
Comment from: arrcher [Visitor]
can I be detained for not answering the questions asked by the boarder patrol???
Permalink 2008-09-14 @ 11:11
Comment from: Tara King [Visitor]
What is the law for CBP regarding exit searches in a 'Duty Free' exiting your fine country?

A family member was recently arrested by a USA Marshall exiting the USA for a curreny reporting violation

They were on a vaction in the USA and 30 seconds from the CAD border encountered a roadblock - It was there to search vehicles to stop cigarette and drug smugglng

Upon searching the car they found money over n above $10,000 - I assure you'all my family member is not a criminal (unitl that day had never been arrested) - they are a retail businessperson whom simply left a night deposit in their vehicle and mistankly crossed the border with it (they didn't even know it was still in the car unil the search)

The case is now being forwarded to federal court - my family member is looking a five year prison term for
currency smuggling violation

Can anyone comment if the search (at an exit border not entrance) itself is legal?

Thx
TKC



Permalink 2008-10-30 @ 11:20
Comment from: Alan [Visitor]
You guys are nothing but a scared bunch of rats. Trying to find anything to nit pick. What??? Are you trying to find something to make you feel important? Why don't you leave to agents/officers alone and let them do their job. They don't go to your work and harass you, do they? I don't know about you but I would rather have them their to stop people from coming in than leaving it open. The little inconvenience I say it worth it. I saw the video: http://toxicjunction.com/get.asp?i=V4427 That just made me so FUCKING irritated that people of this country are such... I don't even think there is a word that would be low enough that would describe how immature you people are. My father worked for the military (Air Force), my Father worked as an MP in Iraq and went into the reserves when he got home just to be sent over to New Orleans after the hurricane. My Brother is in the Reserves. I have to agree that I don't like a lot of the laws that are placed but they are there not to inhibit us but to inhibit the people that aren't suppose to be here. If you can't understand that, then I hope you live a miserable life, cold and alone. Oh, and my name is above. My IP is resolving in Arizona. I don't what the fuck you people think and can kiss my WHITE ASS.
Permalink 2008-12-14 @ 18:48
Comment from: Robert [Visitor]
Wow, seems there are a lot of sheep calling you names for your videos.
Clueless people, all.
Once the constitutional rights have started to be trampled on, we end up with a President who says "it's just a goddamn piece of paper". Oh wait, we already have that.
People, wake the hell up. Whether you like it or not, we must stand up for our rights now. Just because "they" say so, doesn't make it right, or legal. Your rights will fall like dominos if you don't take a stand somewhere.
Checkpoints on the highways now, checkpoints on every city block soon.
So stop your whining, or you'll wake up screaming "why I didn't I work to stop this earlier" as they drag your innocent ass off to camp.
Permalink 2008-12-27 @ 16:33
Comment from: Ed [Visitor]
Your blog is great.

As a US citizen who has been abused by CBP many times and continues to be bullied by DHS, whether it be CBP, TSA or USCIS, I am glad someone is at least posting these items.
Permalink 2009-03-30 @ 15:27
Comment from: Bob Simoneau [Visitor]
Keep up the good fight! Semper Fi. Here's what one patriot had to say...

"The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without struggle, or to be cheated out of them by the artifices of false and designing men."
SAMUEL ADAMS
Permalink 2009-04-08 @ 10:50
Comment from: Roberto [Visitor]
I was returning from Mexico at Laredo, Texas and arrived at 11:00 pm. where I was directed to the secondary inspection station whereupon I showed my US Passport. The truck had been in accidents in the past 4 years plus a Tommy Lift had recently been installed so I was told that the vehicle had been altered! I was directed to take all items from my vehicle. I was then asked what I had to declare and stated I had zero to declare! I was then told my vehicle was to be XRayed and to give them my keys! I asked 1 of 8 inspectors around the vehicle how long the xray would take and who was responsible if it was in an accident? At that time 5 more inspectors appeared told me to listen and not speak anymore. 3 Inspectors were demanding answers at the same time and I told them that I needed to to take my medicine for anxiety and heart problems then I dropped to the ground and fainted. I awoke and found myself seated beside the car, apparently they saw the VA ethical prescribed drugs and then handed the keys back and asked if I wanted an ambulance! The principal culprits were two alpha females demanding why I would not address them or their questions which had already been answered previously 3 times! When they saw my purple heart I carry in my wallet they didn't even apologize for the ill treatment. This is par for these Nazis. The adventure does not end here the hood was not locked down and the gas tank was not locked either so the hood flies upon at 1 am in the morning and the truck is spilling gas! Apparently their power is unlimitless and without accountability.
Permalink 2009-04-28 @ 20:47
Comment from: Steve [Visitor]
The legal authority of Border Patrol Agents comes from the Immigration and Naturalization Act, Section 287 and 235 (INA 287 and INA 235). Just Google any of these two and you’ll find your answers. There is no need to file FOIA to obtain this information. The field manual that Mr. Charles M. Miller obtained doesn't deal with Border Patrol but for Office of Field Operations (CBP) and Citizenship and Immigrations Service. Mr. Miller requested it to try to make it easier for foreigners to immigrate to the US, in other words exploit the system. I would like to applaud Terrence on his fight, but he doing it all wrong. The problem is that these checkpoints for immigration purpose have been upheld by Supreme Court in their decision of United States v. Ortiz, 422 U.S. 891 (1975) that the Court's opinion about the 4th amendment is confined to full searches, and does not extend to fixed checkpoint stops for the purpose of inquiring about citizenship. “Such stops involve only a modest intrusion, are not likely to be frightening or significantly annoying, are regularized by the fixed situs, and effectively serve the important national interest in controlling illegal entry. I do not regard such stops as unreasonable under the Fourth Amendment, whether or not accompanied by "reasonable suspicion" that a particular vehicle is involved in immigration violations, cf. United States v. Brignoni-Ponce, ante p. 422 U. S. 873, and I do not understand today's opinion to cast doubt upon their constitutionality” Stated by MR. JUSTICE REHNQUIST. This case still stated the USBP need PC to search the vehicle. Now I will point out the flaw in the tactics used by checkpoint protesters:
First they fail to role down the windows (a normal person will role a window down to talk to another individual) this tactic gives USBP one articulable fact that a person maybe hiding something.
Second problem is that they do not answer the citizenship question. That just gave the agent their second articulable fact; a reasonable person would answer the question if they were not hiding anything. This is not a criminal check so you can’t say, “I have the right to remain silent…” The agent has the authority to send you to secondary inspection; failure to follow the agent direction gives the agent the power to arrest you.
Now the agents knows you…so they make you sit for 30 min and then they allow you to continue down the road. Who won this fight….The agents did. You wasted 30 min of your life while they laughed at you and were being paid in the process. I think you need a new tactic because your current one is flawed and pathetic. If you do not challenge the government, they will just role right over your rights. Keep up the fight but change the tactics.
Permalink 2009-07-01 @ 07:07
Comment from: New Orleans Best Criminal Lawyer [Visitor] · http://www.neworleansbestcriminallawyer.com/
Good job narrowing down all the information.
Permalink 2009-08-17 @ 17:31

Comments are closed for this post.

Roadblock Revelations

Welcome to Checkpoint USA's blog. Here you'll find general information and discussions regarding growing threats to our right to privacy & travel.

While I refer to court cases along with state and federal law frequently in this blog, nothing written here should be construed as legal advice. I am not an attorney. Rather, I'm someone concerned about the growing disregard for individual rights present at all levels of government.

My conclusions are my own based upon personal experience and research. The law is made purposely complex however and varies significantly from place to place and circumstance to circumstance.

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