Air Force pilot's unlawful detainment claim dismissed

[matmacwc]

Good points on this thread. Rhino has some good points as well, his methods are a bit too blunt.

[MD]

Also at the border and TSA gate agents are two things you voluntarily have to go through (by willingly buying a ticket) and I think everyone here agrees countries have the right to regulate their borders. These checkpoints are inside the country and in my opinion are pretty much the same as a cop stopping you on the street or pulling you over and asking you to prove your citizenship

The checkpoints are part of a defense in depth, within 100 miles of the border, namely because of how much gets past the border in remote areas as well as even urban areas.

Even so, there is no "prove your citizenship" at these checkpoints with any kind of yes answer. You are merely asked (one of any number of questions you can be asked) "are you a US citizen?" If you say yes, whether you are or aren't (you could lie), you're on your way "the brief detention", the SCOTUS refers to, barring some kind of RS to suspect that you aren't. It's only if you answer no, that you'll then be asked further questions of citizenship, etc. This is common with people who are, for example, LPRs, and are required to carry appropriate ID and present it when asked.

But regardless, the question doesn't even really matter, as the officer is looking for other indicators in the few seconds he has as you slowly pass the checkpoint, and often any conversation with you is merely brief enough to just say something so as not to just be a silent encounter. You can even get "hi! Have a good day," as you're waived through because you don't sport any indicators. It just varies.

Edited March 6, 2015 by MD

[MD]

From the Martinez-Fuerte opinion: "[O]ur 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."

At what point does a USBP stop go from standard, 4th amendment valid stop to a "further detention." How long do I need to be stopped before any further delay requires consent or probable cause?

"Sir, are you an American citizen?" -Yes

"Where are you heading tonight?" -Home

"Are you transporting any illegal immigrants or illegal drugs?" -Am I free to go?

The internal checkpoints themselves are useful to a point, but it's how they are utilized that should be the issue, not so much that they simply exist, as they do serve other basic LE purposes in some middle of nowhere areas where state/county/local LE isn't conveniently located..

There still needs to be PC for any kind of search, unless at the actual border, or unless it's an Extended border search or functional border equivilent (with requirements needing to met in order to be these). Search under the 4th Amendment has not changed.

But the refusal to answer a simple and legal stupid question that can't be verified anyway, isn't a battle worth fighting, when in the bigger picture, it just subjects you to more scrutiny that you don't want or need. You lose zero if you answer yes and are sent on your way, again pointless though the question may be.

Remember, being asked "are you a US citizen" and anything having to do with any kind of search, are two completely different things. The former is just a question....answer it however you like, as you'll be on your way shortly anyway if other indicators aren't there. U.S. vs Martinez-Fuerte already validates these checkpoints for their intended purpose of immigration as well as the brief detention they are and the small inconvenience they cause. Which is why the only ones causing an issue, are the ones creating more problems for themselves in these videos than just answering a dumb question (truth or lie), and moving on either way.

For the separate issue of an actual search, unless it's at the border, or considered extended border, or at the functional equivilent, then standard 4th Amendment protections/requirements still apply for any kind of search at these checkpoints or anywhere else.

Pointless battle is a pointless battle. Many of the nitwits in the videos are creating more of a problem for themselves than ever had initially even existed, if any problem even actually existed. Reminds me of a guy at work who was pissed the other day because he'd gotten lunch to go from a fast food place and found when he got to work that he'd been shorted two chicken nuggets from his 20 piece order. He wanted to drive all the way back to the fast food place......13 miles, wasting the time, effort, fuel....all over "the principle of the matter!! they're ripping us off!!!" of his having been shorted two chicken nuggets. He doesn't realize he's creating far more work fighting a pointless micro battle, that has no bearing of victory in any kind of macro sense: even if he wins, he still loses overall. And I'm willing to bet it wasn't some grand secret plan of that company or it's franchise, to short him and every other customer one chicken nugget at a time, in some slippery-slope evil scheme to erode his rights as a consumer and eventually work towards shorting people 3 and 4 chicken nuggets or even more down the road and for people to feel its somehow normal. Creating far more out of one immigration question than ever initially existed, and thus wasting your time and everyone else's in thinking in these videos that they're conquering some grand hilltop, is indeed a pointless battle. Being a d-bag just for the sake of being a d-bag, is still being a d-bag no matter how one tries to couch it as some political/Constitutional/Freedom fight.

Be delayed a few seconds at a legally upheld checkpoint and be on your way, or cause large delays for yourself and others by being a nitwit over one dumb question. Which is all it is, as anything search-related is not even part of the equation here.

Edited March 6, 2015 by MD

[dvlax40]

Figures MD puts together the best argument and then i look down and see hes a fellow Arizonan, and one down south to boot...

[ThreeHoler]

But, but, but...his point is to NOT pick his battles!

[pawnman]

The checkpoints are part of a defense in depth, within 100 miles of the border, namely because of how much gets past the border in remote areas as well as even urban areas.

Even so, there is no "prove your citizenship" at these checkpoints with any kind of yes answer. You are merely asked (one of any number of questions you can be asked) "are you a US citizen?" If you say yes, whether you are or aren't (you could lie), you're on your way "the brief detention", the SCOTUS refers to, barring some kind of RS to suspect that you aren't. It's only if you answer no, that you'll then be asked further questions of citizenship, etc. This is common with people who are, for example, LPRs, and are required to carry appropriate ID and present it when asked.

But regardless, the question doesn't even really matter, as the officer is looking for other indicators in the few seconds he has as you slowly pass the checkpoint, and often any conversation with you is merely brief enough to just say something so as not to just be a silent encounter. You can even get "hi! Have a good day," as you're waived through because you don't sport any indicators. It just varies.

In the mean time, Hispanic American citizens show "indicators" and are then subject to more in-depth searches and processing, all without a warrant or reasonable suspicion of wrong-doing. It's all OK though...anything for security, right?

[MD]

In the mean time, Hispanic American citizens show "indicators" and are then subject to more in-depth searches and processing, all without a warrant or reasonable suspicion of wrong-doing. It's all OK though...anything for security, right?

Not so, but nice try. The indicators have nothing to do with race or ethnicity, no matter how you desire to spin that. Plus, USCs aren't what are being looked for, Hispanic or otherwise. The indicators really have little to do with the human being themself, but moreso the mobile conveyance.

Regardless, Suspicionless search is only at an actual border, extended border, or functional equivalent. At these checkpoints, unless the requirements for extended border can be met (not possible with a regular vehicle), then standard PC or warrant requirements of the 4th Amendment apply. No suspicionless search allowed.

On any questions asked, The question was "are you a US citizen", one that takes no more than a second to answer (pointless as the question is), and isn't a kind of incriminating question or one that should necessarily cause anyone to be startled over. Why? Because your answer is taken at face value. You aren't asked for any identification, unless you answer no, which then it would be reasonable to ask for identification. On the one question of immigration, people are creating a problem where there isn't one, and wasting their own time (and everyone else's) when they could be gone and on their way in 2 seconds.

Selected conclusions from U.S. vs Martinez-Fuerte:

"It is agreed that checkpoint stops are "seizures" within the meaning of the Fourth Amendment......

In Brignoni-Ponce, we recognized that Fourth Amendment analysis in this context also must take into account the overall degree of interference with legitimate traffic. 422 U.S. at 422 U. S. 882-883. We concluded there that random roving patrol stops could not be tolerated, because they

"would subject the residents of . . . [border] areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. . . . [They] could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road. . . ."

Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise, as they know, or may obtain knowledge of, the location of the checkpoints, and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review.

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. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive, because of their public and relatively routine nature. Moreover, selective referrals -- rather than questioning the occupants of every car -- tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public.

As we have noted earlier, one's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence. And the reasonableness of the procedures followed in making these checkpoint stops makes the resulting intrusion on the interests of motorists minimal. On the other hand, the purpose of the stops is legitimate and in the public interest, and the need for this enforcement technique is demonstrated by the records in the cases before us.

Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints...."

Figures MD puts together the best argument and then i look down and see hes a fellow Arizonan, and one down south to boot...

What really needs to happen is people need to push their Congressman/Senator to actually fight for control of the actual border. Because the only reason for any kind defense in depth, which is what these checkpoints are, is due to the fact that we don't have the stones as a country or as either political party, to actually practice controlling our border at the border. The internal checkpoints then become a legally accepted workaround that LE comes up with to try and get their mission accomplished, because our own idiots in D.C. won't do their own jobs, not to mention not letting BP do theirs.

That's where people need to focus their efforts......making change from the top of the funnel down, so to speak with government, rather than fighting from the bottom of the funnel up.

With regards to the general checkpoints themselves and separate from the actual questioning issue above, as an unrelated benefit the checkpoints do at least offer a law enforcement presence in areas where there generally isn't one, or where response times from state/county/local agencies to calls would be extended due to their own limited resources or distant locations. USBP agents routinely respond to motor vehicle accidents, do motorist assists, and also respond to state crime felonies such as domestic violence / robbery/ home invasion/ shootings/ murders etc at the request of local agencies to handle the scene until the local agency can take over.

This particular one was just down the road, a few miles north of the I-19 checkpoint, where the fire department response was about 15 minutes:

http://tucson.com/news/blogs/police-beat/border-patrol-agents-rescue-man-from-burning-car/article_1d0f279a-f82f-11e3-9277-0019bb2963f4.html

This one was the month prior, 1.5 miles south of the Sarita, TX highway checkpoint on Hwy 77:

http://www.kveo.com/news/border-patrol-agents-rescue-man-burning-truck

This one in California, in the El Centro sector:

http://www.ivpressonline.com/quicknews/two-men-agent-help-unconscious-woman-from-submerged-vehicle/article_3c704e6e-d4b4-11e3-aa80-001a4bcf6878.html

Edited March 6, 2015 by MD

[Masshole]

You are the problem.

How so? Because I do not drive up to a border patrol or stroll up to a TSA gate loooking to fight? What is the problem when I answer their questions? Maybe the problem is I just assume I am going to have to identify myself when I travel, instead of believing I can freely move about this world without ever having to answer to anyone. That's not how it works, and if you would like to see an example of how porous borders negatively impact safety, please go to my native country.

And this is why:

"Those who surrender freedom for security will not have, nor do they deserve, either one."

Benjamin Franklin

I am sure showing your passport/driver's liscence at TSA is exactly what Benjamin Franklin had in mind.

Also at the border and TSA gate agents are two things you voluntarily have to go through (by willingly buying a ticket) and I think everyone here agrees countries have the right to regulate their borders. These checkpoints are inside the country and in my opinion are pretty much the same as a cop stopping you on the street or pulling you over and asking you to prove your citizenship

I do not think it is quite the same. If a police officer pulls you over for no reason and asks for your proof of citizenship, I would be a little concerned. Then I would question the reason for his inquiries.

[Hacker]

Regardless of what you think of Rick, I don't see how anyone who says they've sworn to "support and defend the Constitution" can possibly read this ruling and not find its logic and conclusions completely contrary to both the word and spirit of the 4th Amendment as well as the previous caselaw mentioned by MD.

IMHO the dissent hit it on the nose.

[Homestar]

I do not think it is quite the same. If a police officer pulls you over for no reason and asks for your proof of citizenship, I would be a little concerned. Then I would question the reason for his inquiries.

At these checkpoints you have indeed been pulled over for no reason--did you run a stop light or were you speeding to warrant being stopped? The supreme court says these stops are legal--fine, but as an American who is not committing a crime I have certain rights. I just want to know what those rights are before I'm stopped. Right now I'm reading a book about the Norfolk Four a delightful tale on how the cops got up to seven men to confess to a crime they didn't commit. Each and every one of them could have stopped the questioning and demanded a lawyer, but because they were idiots they continued to "chat" with police in interrogations that lasted over 9 hours at times. You have rights. And the authorities are more than happy to allow you to waive them.

This is 48 minutes long, but it is a great lecture by a law professor on why you should never talk to the police without a lawyer. Especially if you're innocent.

[Learjetter]

Regardless of what you think of Rick, I don't see how anyone who says they've sworn to "support and defend the Constitution" can possibly read this ruling and not find its logic and conclusions completely contrary to both the word and spirit of the 4th Amendment as well as the previous caselaw mentioned by MD.

IMHO the dissent hit it on the nose.

Concur. Am not a fan of "Rick's Rants" but he's NOT wrong and I was hoping he'd triumph in court.

....you should never talk to the police without a lawyer. Especially if you're innocent.

Quoted for emphasis and truth.

[MD]

At these checkpoints you have indeed been pulled over for no reason--did you run a stop light or were you speeding to warrant being stopped? The supreme court says these stops are legal--fine, but as an American who is not committing a crime I have certain rights. I just want to know what those rights are before I'm stopped. Right now I'm reading a book about the Norfolk Four a delightful tale on how the cops got up to seven men to confess to a crime they didn't commit. Each and every one of them could have stopped the questioning and demanded a lawyer, but because they were idiots they continued to "chat" with police in interrogations that lasted over 9 hours at times. You have rights. And the authorities are more than happy to allow you to waive them.

This is 48 minutes long, but it is a great lecture by a law professor on why you should never talk to the police without a lawyer. Especially if you're innocent.

The previously mentioned case law covers it regarding these checkpoints. They're legal, the very brief detention and/or a question is legit; and no search can be done without standard 4th Amendment protections (unless the 4th Amendment exceptions exist, which 9.9 times out of 10, won't exist at a fixed checkpoint). People need to not confuse being asked a question, to making the giant leap of logic to it being free-reign for the government to automatically search you without PC or a warrant. Nothing changed with the 4th Amendment here.

As I mentioned before, unless at an extended border, FEB, or actually on the border itself, PC or warrant is required.

Edited March 6, 2015 by MD

[MD]

It was never a comfortable feeling having CBP agents treat you as if you're a potential perp just for driving down a highway. I'm not defending PYB because as rumor has it, he has a reputation for being just a little assholish.

But again, it never felt right handing them my CAC card with my two toddler boys in the back coming from a Big Bend camping trip being quizzed why I was driving from that area and why I had camping gear in back.

I really, really wanted to be smart and say "you DO realize there's a National Park not far from here, yes?"

And this is where judgement as an LE officer comes in, along with experience and being able to read a situation as being something, or being nothing, in very brief time you have to do so in order to comply with the "reasonable brief detention" that these checkpoints are.

Sadly many national parks located on the borders of the USA are known smuggling areas for human/dope/weapons, many of them highly dangerous (Big Bend not as much so as Organ Pipe, where a NPS Ranger was killed in a shootout a few years back). However people......USCs.....still use these National Parks for their intended purpose that their tax dollars go for: for public enjoyment. So an officer has to be able to balance these facts, and instantly apply them in the brief time he encounters someone, along with noting any anomalies that would appear out of place warranting further questioning (RS), or even something articulable which could generate PC. Thats the challenge of interacting with the public at these points: while illegals are the prime target, there are many instances of USCs committing crimes such as smuggling, etc, and passing through these checkpoints (why they don't just avoid the fixed and known checkpoint locations, I have no idea). A person or family coming through with what appears to be normal camping gear, nothing odd about their vehicle, normal brief interaction when you say hi to them? Chances are there's nothing at all there going on (unless some elaborate family-based smuggling scheme). That's where the good judgement, knowledge of surroundings and normal goings-on in the area, and quick decisionmaking are key: so you can catch things that are wrong or out of place or blatent......legitimate ones, yet not unreasonably restrict someone who is doing nothing illegal or wrong.

Curiously, why were you handing your CAC card over? Voluntarily or requested? Because at these points, ID is only asked for (and then required to be presented) if it's determined, whether voluntarily or otherwise, that you are not a USC.

[Karl Hungus]

Words

So in conclusion, you're a statist.