Post details: CBP Officer Searches For Legitimacy

2009-12-03

Permalink 22:42:47, Categories: Privacy, Homeland Security?, Checkpoints, Immigration, 581 words   English (EU)

CBP Officer Searches For Legitimacy


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.

[More:]

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?

Comments:

Comment from: IBMMuseum [Visitor]
The Border Patrol Mustang chase vehicle is interesting too. I can only suppose that the CBP officers are more familiar with Port of Entry rules, and need to be retrained when not at those locations. CBP looks like they are being put in the lead here, to take over operations at this checkpoint at least.
Permalink 2009-12-05 @ 17:03
Comment from: Makes Me Laugh [Visitor]
No human is perfect. Every human will make mistakes. Since CBP Officers, and Border Patrol Agents are human, it is safe to assume that from time to time they will make mistakes. At a POE, Officers and Agents are allowed to search any vehicle or container entering or leaving the country. That Officer was used to searching anything he pleased at the POE, and it carried over with him to the checkpoint. However, you are correct that in this case he did need consent or probable cause to do what he did. But like I said, he is human, and prone to make mistakes, just like you or I.

As for the 30/70 rule, you, I believe, are twisting the facts. They don't want to only catch 30%. They want to catch 100%, but since the flow of traffic is so great they are unable to do so. And even with as much as they do stop and catch, I bet the actual number is a lot lower then 30% anyways. I believe they were saying that 30% is a minimum goal not the maximum goal.
Permalink 2010-02-02 @ 04:23
Comment from: Pafoofnik1 [Visitor]
"Makes Me Laugh" said: "Since CBP Officers, and Border Patrol Agents are human, it is safe to assume that from time to time they will make mistakes."
And what happens if I make a mistake and break the law in front of a law enforcement officer? May I decide to make a do-over?

Perhaps it would be better if the agents are aware of the laws before they are tasked to enforce them.
Permalink 2010-02-02 @ 05:49
Comment from: Makes Me Laugh [Visitor]
Pafoofnik1 said,

And what happens if I make a mistake and break the law in front of a law enforcement officer? May I decide to make a do-over?

e you ever been pulled over for speeding by the police or been stopped by law enforcement where you know you did something wrong, and got let off with a verbal or written warning? That's where discretion comes into play.

I guarantee you that officer knows the law, but simply made a mistake. Have you never broken ANY laws intentionally or by accident? Speeding, or not using a blinker? Yes those are small time traffic violations, but I bet if we dug deeper we could find some more serious things. To quote a great person, "Let he who is without sin cast the first stone."
Permalink 2010-02-02 @ 21:57
Comment from: Makes Me Laugh [Visitor]
Ok, only the first blockquote above is a quote. I got carried away with the html text by accident. Sorry. And the "e" at the begining of the second is supposed to be "Have".
Permalink 2010-02-02 @ 21:59
Comment from: Pafoofnik1 [Visitor]
"(Hav)e you ever been pulled over for speeding by the police or been stopped by law enforcement where you know you did something wrong, and got let off with a verbal or written warning? That's where discretion comes into play."

Inverse logic. I said "May I decide...?" Your answer leaves it up to the officer to decide, not me.
Permalink 2010-02-03 @ 05:11

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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