There’s a lot of talk about border security recently. Rather strangely, it involves CBP officers going without paychecks for an indefinite amount of time as government funding is held hostage in exchange for border wall/fence money.
Not that the CBP needs to remain near the wall/fence. It’s able to hassle people within 100 miles of the border, which also includes international airports and has the capability to sweep up most of America’s population. And that’s just CBP officers. The CBP’s drones are being lent out to anyone who wants to use one as far inland as they want to use it.
The CBP performs a whole lot of searches. Over the past couple of years, the CBP has vastly increased the number of electronic searches it performs, needing little more than “because it’s there” to perform at least a surface scan of a device’s contents. Deeper digging requires extra paperwork, but a staggering amount of exceptions to the Fourth Amendment apply at the borders which, as we noted earlier, covers far more than points of entry.
The ACLU’s FOIA lawsuit has resulted in the production of a couple of lengthy documents from the CBP. These documents detail search procedures and the CBP’s long list of justifications for performing these searches. There are 1,200 pages in the newly-released stash. 1,100 of them are the CBP’s “Enforcement Law Course” [PDF]. The other 100 are a Powerpoint [PDF] containing “legal update training.”
The CBP has studied every Fourth Amendment-related legal decision to compile a long list of things officers can use to predicate a warrantless search. This multi-jurisdictional paper chase results in the expected internal contradictions, resulting in the CBP being able to argue both sides of a flipped coin can give them permission to perform a search. Here’s a quick summation of some of the documents’ contents by Max Rivlin-Nadler of The Intercept.
[The CBP] can determine “whether the vehicle or its load looks unusual in some way,” or “whether the passengers appeared dirty.” If those descriptions don’t apply, they can assess “whether the persons inside the vehicle avoid looking at the agent,” or conversely, “whether the persons inside the vehicle are paying undue attention to the agent’s presence.” And if those don’t apply, they can simply determine that the car is in an area nearby the border and pull it over on that basis alone.
Being near a border is inherently suspicious, even if someone has only made the mistake of residing legally within 100 miles of a border or airport. That sucks for them since it means any trip out of town and onto a major highway could result in a fully “justified” search.
When Border Patrol officers aren’t claiming their dogs can detect smuggled humans in moving vehicles dozens of feet away, they’re saying whatever comes to mind to justify a search they’ve already performed. A much longer list of search predicates — culled from hundreds of legal decisions all over the nation — is contained in the documents.
(1) whether the vehicle is close to the border; (2) whether the vehicle is on a known smuggling route; (3) whether the vehicle’s presence is inconsistent with the local traffic patterns; (4) whether the vehicle could have been trying to avoid a checkpoint; (5) whether the vehicle appears to be heavily laden; (6) whether the vehicle is from out of the area; (7) whether the vehicle or its load looks unusual in some way; (8) whether the vehicle is of a sort often favored by smugglers; (9) whether the vehicle appears to have been altered or modified; (10) whether the cargo area in the vehicle is covered; (11) the time of day or night at which the vehicle is spotted, and whether it corresponds to a shift change; (12) whether the vehicle is being driven in an erratic or unsafe manner; (13) whether the vehicle appears to be traveling in tandem with another vehicle; (14) whether the vehicle looks as if it has recently been driven off road; (15) whether the persons inside the vehicle avoid looking at the agent; (16) whether the persons inside the vehicle are paying undue attention to the agent’s presence; (17) whether the persons in the vehicle tried to avoid being seen or exhibited other unusual behavior; (18) whether the driver slowed down after seeing the agent; (19) whether the passengers appeared dirty; (20) whether there is intelligence available that suggests that smuggling will occur in the area or by a specific vehicle; and (21) whether the vehicle is coming from an area of a sensor alert.
Heads, the CBP wins. Tails, citizens and visitors lose.
As this chart shows, a whole lot of searching can be performed under the “Border Exception.” Things and people that have crossed a border tend not to require probable cause or warrants to be searched.
The CBP is going to perform a search. That’s pretty much all there is to it. The only thing limiting it is hours in the day. The courts aren’t helping either. They’ve been lulled to sleep with statements about “border integrity” and “national security,” becoming complicit in a unilateral removal of rights for anyone in the areas the CBP is allowed to roam.
There’s no upside here. The steady deterioration of rights near the border will continue. There hasn’t been a presidential administration yet willing to put an end to the DHS’s mission creep. And it really doesn’t matter how well the CBP knows its Fourth Amendment caselaw. It will still be granted good faith exceptions for searches that somehow manage to implicate what’s left of the Fourth Amendment because protecting the nation is somehow more important than protecting the rights of its citizens.
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