Post details: Indefinite Detention By Border Patrol Agents Inside the Country?

2010-10-10

Permalink 16:00:00, Categories: Privacy, Right to Travel, Homeland Security?, Checkpoints, Immigration, 3487 words   English (EU)

Indefinite Detention By Border Patrol Agents Inside the Country?

In late September of this year, a California college student and a friend decided to go on a road trip to California's picturesque Anza-Borrego State Park. Little did they know before leaving on their trip that they would be subjected to arbitrary stops, seizures, interrogations and indefinite detentions under threat of lethal force from armed men whose primary job was to protect their rights, not violate them.

The highwaymen who seized them so during their travels wore the green uniform of federal Border Patrol agents even though the only border the students had crossed was that of the state park itself. A state park whose borders are located completely within the boundaries of the United States and North of a major interstate highway to boot:

[More:]

While armed homeland security agents seizing, detaining, interrogating and attempting to search individuals doing nothing more than minding their own business is a common occurrence these days in the land of the free & home of the brave, what's unique about this encounter is the length of time the students were detained absent reasonable suspicion or probable cause.

According to the forum account of the incident, the students were detained along the side of the road near the entrance to the park for upwards of two hours. The sole justification given by the armed men who brandished lethal weapons while surrounding their vehicle, was their choice to exercise their fundamental right to not answer investigatory questions while being seized by federal Border Patrol agents absent suspicion along a public road having no direct border nexus.

The standoff continued for upwards of two hours until a California Highway Patrolman arrived on-scene after being called out by the Border Patrol. With the driver's consent, the officer ran his license number. Finding nothing out of the ordinary, the officer informed the Border Patrol agents he would not be assisting the agents with the student's detention and left the scene. Shortly thereafter, the Border Patrol agents allowed the students to go on their way without having received any answers to the questions they were allegedly detaining the students for in the first place.

As readers of this blog know, I've had more than my share of encounters with armed Border Patrol agents operating no where near an international border. My encounters have always taken place in the course of traveling to and from work however. What this means is that I've never had the time (or inclination) to fully explore just how long a Border Patrol agent would in fact, be willing to extend the initial roadblock detention if I allowed myself to be directed to secondary inspection. I've chosen instead to stay in the lane of traffic where the initial seizure takes place.

Staying in the lane of traffic forces an agent to minimize the length of the detention in the absence of consent or probable cause. Agents have of course threatened me with indefinite detention on several occasions, even arrest. None however have followed through with their threats. Some have realized on their own they had no legal justification for a detention lasting longer than a few minutes while others have needed to be reminded of the limited scope of their authority by their supervisors.

Given my own experiences and those of others, the forum encounter reproduced below came somewhat of a surprise to me. It seems that federal Border Patrol agents operating no where near the border or its functional equivalent will indeed illegally seize & detain individuals for an indefinite period of time inside the country, even while admitting to having no reasonable basis to believe any law they have jurisdiction over has been violated.

To justify their actions, the federal agents lied to the college students during this encounter by telling them they were legally required to answer their questions even though no such legal requirement exists. Indeed, in this country it's a well established legal principle that individuals have no legal obligation to answer investigatory questions from government agents. Further, refusing to answer such questions cannot be used as a basis for reasonable suspicion or probable cause.

Over the past few years, several individual rights dissenters have pointed to U.S. V Martinez-Fuerte as a Supreme Court case that upheld the power of Border Patrol agents to indefinitely detain individuals at immigration checkpoints with little to no suspicion by directing them to secondary inspection. The favorite quote from the case used by such dissenters to justify their position is the following:

"With respect to the checkpoint involved in No. 74-1560, it is constitutional to refer motorists selectively to a secondary inspection area for limited inquiry on the basis of criteria that would not sustain a roving-patrol stop, since the intrusion is sufficiently minimal that no particularized reason need exist to justify it."

A further review of the case however shows the limited scope to which the court authorized such detentions:

"The defendants arrested at the San Clemente checkpoint suggest that its operation involves a significant extra element of intrusiveness in that only a small percentage of cars are referred to the secondary inspection area, thereby "stigmatizing" those diverted and reducing the assurances provided by equal treatment of all motorists. We think defendants overstate the consequences. Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal."

This clarifying paragraph places the previous citation in an entirely different light. Secondary referrals (in the absence of consent or probable cause), is only authorized in such cases where traffic at the primary stop location is too heavy to make routine immigration queries there.

Secondary referrals were never contemplated by the Supreme Court as a tool to compel testimonial statements by intimidation, harassment and indefinite detention. In fact, the court explicitly points out that such referrals are minimally intrusive when they are used for limited inquiries that can't be made at the primary stop location due to heavy traffic. If secondary referrals are used for other purposes, such as indefinite detention in the student's case, the objective level of intrusion increases requiring justification that isn't required otherwise.

So what level of justification is required to extend the detention past brief immigration queries? The Supreme Court answered that question in Martinez-Fuerte as well. Specifically, the court stated consent or probable cause are required to either extend the detention or to search:

"In summary, we hold that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant. The principal protection of Fourth [428 U.S. 543, 567] Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop." Terry v. Ohio, 392 U.S., at 24-27; United States v. Brignoni-Ponce, 422 U.S., at 881-882. We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search. United States v. Ortiz, 422 U.S. 891 (1975). 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." United States v. Brignoni-Ponce, supra, at 882. None of the defendants in these cases argues that the stopping officers exceeded these limitations."

There you have it. The court made it clear that while agents may briefly stop and question individuals at appropriately located (permanent) checkpoints inside the country, any further detention or any searching requires consent or probable cause. You'll notice that the court explicitly referred to U.S. V Brignoni-Ponce & Terry V Ohio to clarify this ruling. These rulings in turn make it clear that when the Supreme Court said brief questioning, it really meant brief questioning and not indefinite detention such as what the student's endured during this encounter:

U.S. v Brignoni-Ponce:

“...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 & passengers about their citizenship & immigration status, & ask them to explain suspicious circumstances; but any further detention or search must be based on consent or probable cause.

Terry V Ohio has been clarified over the years by additional Supreme Court cases that explicitly address how long an individual can be held for questioning. Keep in mind that these cases deal with circumstances where reasonable suspicion actually exists whereas no such suspicion exists during the majority of checkpoint encounters:

Kolender v. Lawson, 461 U.S. 352 (1983):

The price of that effectiveness, however, is intrusion on individual interests protected by the Fourth Amendment. We have held that the intrusiveness of even these brief stops for purposes of questioning is sufficient to render them "seizures" under the Fourth Amendment. See Terry v. Ohio, 392 U.S., at 16 . For precisely that reason, the scope of seizures of the person on less than probable cause that Terry [461 U.S. 352, 365] permits is strictly circumscribed to limit the degree of intrusion they cause. Terry encounters must be brief; the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him"

Davis v. Mississippi, 394 U.S. 721, 727 , n. 6 (1969):

"It is a settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer."

I also point out a case decided by the U.S. Supreme Court in 2000 that further limited the scope of police checkpoints. It should be noted that Border Patrol agents are cross-certified by the DEA and routinely use suspicionless immigration checkpoints as a pretext to look for narcotics and other illegal activity:

"We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, Martinez-Fuerte, supra, and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz...In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing."

- City of Indianapolis v Edmond

Given these cases, along with the 5th Amendment to the United States of America that explicitly recognizes our right to not be compelled to self-incriminate, there's no rational basis to believe that Border Patrol agents who have seized you at a suspicionless checkpoint removed from the border or its functional equivalent have any legal authority to compel answers to their questions or to indefinitely detain individuals who choose to not voluntarily discard the individual rights enumerated within the 4th and 5th amendments. Rights that all government agents are required to acknowledge and defend.

When relying upon Martinez-Fuerte to engage in patently illegal behavior under color of law against individuals exercising their rights at suspicionless immigration checkpoints, Border Patrol agents would do well to remember the Supreme Court's warning in the court decision:

"[A]ny further detention . . . must be based on consent or probable cause." United States v. Brignoni-Ponce, supra, at 882. "None of the defendants in these cases argues that the stopping officers exceeded these limitations..."

As the federal Border Patrol continues expanding operations away from the actual border and continues to interfere with the traveling rights of an increasing percentage of the population inside the country, Border Patrol agents predisposed to abuse their authority will be able to rely upon the ignorance of the general public less and less to get away with their illegal acts.

Details regarding the encounter discussed above appears below along with links back to the forum discussion. My thanks go out to the students involved for caring enough to put themselves in harms way to exercise their rights and document the experience so the rest of us can learn from it:

Today I put my life on the line for liberty...

"Today my g/f and I decided to take a day off from college and go on a trip out to the local desert.

Once over the mountains and into the desert floor I headed north to show my g/f some awesome mud caverns that I had been to as a little kid many years ago.

We are now in the middle of nowhere. I think we passed maybe 3 cars during the entire 5 hours we spent in the desert.

We are driving along enjoying the sights looking for the cross road we need to find when all of a sudden there is a sudden homeland security (border patrol) check point in the middle of the 2 lane road.

There are cones and official vehicles directing any passing drivers into the shoulder where there is a movable STOP sign.

I slow and drive up...

Agent: "Are you a US citizen?"

Me: "I'm not going to be answering any questions"

Agent: "Where are you coming from?"

Me: "I'm not going to be answering any questions"

Agent: "Where are you traveling to?"

Me: "I'm not going to be answering any questions"

Agent: "You have to answer my questions!"

Me: "I'm not going to be answering any questions under the protection granted via the 5th amendment of the constitution of the United States."

Agent: "Pull over to the side here and turn off your vehicle"

Me: "Am I being detained?"

Agent: "Yes".

*I pull to the side and turn off the vehicle and lock the doors and leave the window down apx 4 inches*

Agent: "You're going to sit here until you answer my questions"

Me : "I would like to speak to your supervisor"

Agent: "Oh, a supervisor huh... (nodding head and gesturing in a confrontational manner) *he then walks over and gets the supervisor*

Supervisor: "Why won't you answer the questions? It's not a big deal..."

Me: "I understand that you're just trying to do your job, however under the 5th amendment of the constitution I will not be answering any questions"

Supervisor: "You have to state citizenship status at checkpoints like these under immigration law"

Me: "I understand that there might be a law that states that, however I feel that the constitution is the supreme law of this country and I believe that my ability to remain silent trumps this immigration law you are citing".

Supervisor: "Well that's nice but you're not free to leave until you answer our questions"

Me: "How long can you detain me?"

Supervisor: "We will detain you here until you answer our questions".

Me: "At what phone number can I reach your supervisor?"

*He gave me the phone number and I called*

Dispatch transferred me to a supervisor and I explained the situation, the phone supervisor told me that I was required by law to state my citizenship status and then told me that I needed to deal with the supervisor that was at the checkpoint and then got off the phone with me.

~~

We proceeded to sit in the car discussing our options for apx 30 mins, I was figuring that there was a legal amount of time in which they could "detain" me before making the decision to either arrest me or let me go.

During this time, my g/f and I listened to their conversations from a distance.

We heard them mocking us and saying things like "what a douchebag" "what does this guy think he is accomplishing?" laughing, also saying to my face that quote "we don't care, we are getting paid to stand here anyway".

I overheard one agent say that "well if we decide to arrest him and he resists we can LIGHT HIM UP"

Another thing we overheard was a younger agent saw my bumper sticker

and using his personal cell phone he called someone and asked them to look up what prop 19 was...

I also have a Gadsden flag "don't tread on me" sticker on the back as well.

~~

The agent then asked me for my ID which I of course refused.

I asked if I was suspected of committing any crimes and was told "no".

Eventually after about an hour of sitting in the sun I called the dispatch back again and asked to speak to that supervisor again and when I got her I asked to speak to her supervisor.

This guy was actually polite and sounded like he knew what he was talking about... I told him that there was no way they could detain me indefinitely and that I would be calling 911 and telling the state police and local sheriff dept. that I was being held against my will.

He responded by stating that the CHP (CA state police) was already en route.

He also clarified that I was not being "detained indefinitely" and that I was being detained until the CHP officer arrived.

I asked how long can I legally be detained? and the response was that there is no set amount of time and that it is defined as a "reasonable amount of time".

After about another 45 mins - an hour goes by, the CHP officer arrives...

I greet him warmly and shake his hand through the window and ask if I can speak to him away from the gaggle of 4-6 agents that were surrounding my vehicle with hands on their pistols and one clutching a shotgun.

He agrees and I exit the vehicle and we walk about 35 feet just out of earshot of the agents and I explain to him that I am not trying to cause problems and I apologize that he had to be called way out here to deal with this but that these agents were demanding that I answer their questions and that I was declining to do so under the 5th amendment.

He seemed agreeable from the start and asked if he could run my license to make sure it was valid, now.... at this point I realized that if I had wanted to take this even further I likely could have argued that he had to legal reason to run my license since I had not done anything wrong... However... we had now been sitting in the sun roasting for 2 full hours...

I let him run my license under the condition that he was not to share my information with any of the agents under any circumstance. He agreed and over his radio had dispatch check the license number and there were no problems. He stated that he didn't see any problems or any reason for him to bother me any further. He walked over to the agents outside my vehicle and I got back into the drivers seat.

He explained to the agents that my license was valid and that he had no probable cause to suspect that I had done anything wrong in any way and that if I wanted to exercise my rights under the 5th amendment that that was my choice. He said to them that it was their call if they wanted to arrest me under any federal statues but that he would not be assisting or having anything to do with it.

The agents looked like someone had just told them their dog had died, it was disturbing... they all clamoured to ask if I had any warrants or any other "issues"... and the officer said no.

I then asked directly to the supervisor if I was free to go and he said yes.

I then started my engine and left...

As a very nice side note, when we got to where we were going I started chatting with the park ranger and ended up having a solid 45 min conversation with him about the incident, politics, etc and he was a vietnam vet that was now a libertarian and he shook my hand and told me that he was proud that there are young people still willing to fight for what's right.

~~

Things I think I did well...

Stayed calm.

Contacted superiors and made ultimatum to call sheriff and chp

Refused to answer any questions.

Did not give any personal information to any federal agents.

Held my ground in polite and non-image damaging fashion (ie: wasn't calling them nazi's etc...

Things I could do better...

Video tape instead of pictures (I will be buying a video camera to keep in the car tomorrow)

Have the local sheriff dept's phone number ready to go in my phone should it happen again.

Thoughts/comments?

I can honestly say that I was scared. They were trying their hardest to intimidate me, aggressive postures, guns at the ready, talking about looking forward to the possibility of tazering me, the fact that this checkpoint was mobile and likely had no cameras recording, there was almost no other traffic passing through either.

I was alone."

Comments:

Comment from: charley hardman [Visitor]
CUSA, it appears, sadly, that your legal research skills are now honed above that of the above-average career lawyer. but you had nothing better to do, right?
Permalink 2010-10-10 @ 18:14
Comment from: checkpoint charlie [Visitor]
High praise to the motorist. I'm familiar with that checkpoint and it is OUT THERE, which adds to my respect for what he did. And what he did was pretty nearly perfect. I've handled the BP a similar way a couple of times myself and more of us need to do it. The delay is the price we have to pay, apparently, for freedom.

The success of what he did is reflected in his patriotic attitude, which we should all take heart from and be inspired by.

The Supreme Court helped put us in this situation in their decisions that (1) The BP can question motorists but (2) We have the right to remain silent (Miranda).

The regular police understand Miranda and it's time the BP learned it too. They're obviously trying to entrap motorists with their questions and that's unconstitutional.

"You have the right to remain silent. Anything you say can and will be used against you in a court of law." It's basically a First Amendment right. The gov't can't force us to speak (which is why they dreamed up torture).

Where we need to go on this is to sue individual BP agents who violate the Constitution.

Federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)

When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign immunity. Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).
Permalink 2010-10-10 @ 20:48
Comment from: Checkpoint USA [Member]
"CUSA, it appears, sadly, that your legal research skills are now honed above that of the above-average career lawyer. but you had nothing better to do, right?"

Yes it is sad. If I had wanted to be an attorney, I would have gone to school for it. Unfortunately, this appears to be the minimum needed to function in such an environment these days. Government thugs like their victims to be as defenseless as possible. As such, I try to make sure my defenses can provide some level of meaningful defense while providing others with feedback on what works in different circumstances and what doesn't.

You also picked up on the other aspect of this situation - opportunity cost. Every second I spend on this issue is a second I'm not spending on some other aspect of my life. Given that suspicionless checkpoints shouldn't be an issue at all, my lost time is just one more item to add to the list of grievances I have against those responsible for their proliferation.
Permalink 2010-10-12 @ 23:11
Comment from: Doug [Visitor]
Thank you for going through the case law. It helps.
Permalink 2010-10-13 @ 20:54
Comment from: chasterus [Visitor]
I side with those who bravely defend their constitutional rights in the face of inappropriate (and sometimes unconstitutional) actions from DHC/BP agents. As one who lives very close to a permanent checkpoint, I have learned to strike a balance between the hard-line stance taken by some, and a more moderate, "apparently" cooperative tack. Remember that these agents are human and, though they may not always technically be in the right, it might be more sensible to offer some basic cooperation just to make their jobs easier and get you back on your way as soon as possible.

(I know that's a slippery slope, and I *never* feel comfortable going through a checkpoint, even though I am not doing anything illegal.)

Here is how I approach the situation, and I encourage all travelers to consider this in addition to informing themselves about their constitutional rights and about the case law relevant to these checkpoints:

I decide before reaching the checkpoint that, out of courtesy, I will state my citizenship and, also as a courtesy, I will inform them that I am a local resident. Beyond this, I offer no further information. When asked where I am going, I either point ahead and say, "That way," with a smile, or politely state that my travel itinerary is private. When asked if I have anything in my trunk, I say yes. When asked what's in the trunk, I answer, "Personal items." When asked if I mind if they look in my trunk (or cooler, or anywhere else) I adopt a mildly apologetic tone and, very politely, clearly state, "Ummm, uh, well...I *never* consent to searches."

No agent has pressed me beyond these very reasonable boundaries. I have never been directed to secondary. I consider this a happy medium - I get to protect myself from meaningful invasions of privacy with no hostility nor penalty, and they get to wave me on promptly with the feeling that I was a nice, cooperative fellow, albeit one who's aware of his rights and chooses to respectfully defend them.

Of course, your mileage may vary. It's great to have the power of knowledge and to know that the law is on your side, but a little bit of friendliness and respect goes a long way.

FWIW, I drive a highly visible vehicle - an art car - which in some areas gets profiled as a drug user's rig. All artists do drugs, right?
Permalink 2010-10-17 @ 14:31
Comment from: Concerned [Visitor]
I live in Borrego Springs in the Anza Borrego State Park and I see the Homeland Security vehicles daily on my way to and from work. They are always dragging tires behind their vehicles to smooth the dirt shoulders of the road, I guess to check for foot prints. But that is public property, can I go out there and walk back and forth on the their smoothed track? Or would be likely to get shot?
It's a scary situation we are in.
I also have to drive through the Indio (Highway 86) checkpoint every day on my way back home.
It's horrible, the line is long, you are subject to illegal search by their dogs who have scratched my vehicles on numerous occasions.
Also now they have put up a series of several cameras on both sides of the highway coming and going. There is a bright light that shines in your face as they photograph you driving past. They use radar there because my radar detector always goes off while driving through it. Is it against our constitutional rights to be photographed like that without our consent?
I asked the Homeland Security agents at the checkpoint about the cameras and they said they belong to the DEA... I don;t know if that actually true or not, the guys working the checkpoints don't seem too honest... anyway our country and our rights are screwed nowadays
Permalink 2010-11-02 @ 16:39
Comment from: John [Visitor]
Yep, I'm very familiar with this checkpoint, as I spent a lot of time driving the trails out in Anza Borrego with my Jeep. 99% of the time they just wave me through this checkpoint without saying a single word to me.

When they ask where I'm going or where I've been I just point and say "that way." If I'm pressed for more information I say that as a citizen driving along a public road minding my own business, I have no intention of talking to a complete stranger standing along the side of the road. After that I always get a "Okay,have a nice day", and I leave.

Of course there are dirt roads and other routes around all the checkpoints in San Diego county. If I know how to completely avoid them, I'm sure the smugglers do too.
Permalink 2010-11-06 @ 16:57
Comment from: dragon_boy [Visitor]
Hey Checkpoint
wondering if you got wind of the Willie Nelson story. He was caught with a few ounces of marijuana at a Border patrol checkpoint, inside the country. Thought that story would interest you..
Permalink 2010-11-30 @ 08:10
Comment from: folkes insurance [Visitor] · http://insurances-one.info
Pete ROCKS.


Permalink 2010-12-12 @ 02:11
Comment from: Victim of Border Patrol [Visitor]
The border patrol in San Clemente, CA Seized my car. My son borrowed my car to help a classmate move some furniture last week. Two of the classmate's other friends were helping with the move and happened to be riding with my son in my car when they passed through the San Clemente check point. The car was stopped and they tell me one of the passengers was found to be carrying a small amount of medical marijuana along with a medical marijuana registration card. They released all three young men without charges, but seized my car.
They are using a law that is meant to deprive criminals of the means to conduct criminal activities. I am all for that, but there are no criminal charges here. How can they keep car?
Permalink 2011-04-19 @ 08:25

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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