Border Patrol Violates Fourth Amendment of Military Officer

[gc70]

originally posted by VAPA
For you to think otherwise is to think BP agents can order a person out of their vehicle for any reason, or no reason at all, despite being limited by the Courts to only determine immigration status. As others have said on this forum, you and I can disagree on "reasonable" and "probable cause" and "suspicion" but the determiner will be the Courts

Martinez-Fuerte allows a person to be detained to determine immigration status.

Once a person has been detained, Mimms gives officers the option (with no reason required) to order the person to exit the vehicle.

"The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it."​

The Fourth Amendment violation begins early on when it's clear they are not interested in his immigration status (only question in primary, "is this your vehicle") which is outside the scope of the checkpoint's legal purview (to establish citizenship).

I have not (yet) found where the Supreme Court has directly addressed the precise scope of questioning at a border checkpoint. In the interim, the Tenth Circuit's decision in Rodolfo Rascon-Ortiz sheds light on the subject.

"After the district court ruled in this case, we made clear that the permissible scope of a routine border checkpoint stop extends beyond a mere inquiry into citizenship. Thus, the district court did not have the benefit of our observation that a few brief questions concerning such things as vehicle ownership, cargo, destination, and travel plans may be appropriate if reasonably related to the agent's duty to prevent the unauthorized entry of individuals into this country and to prevent the smuggling of contraband."​

Do you think a Judge is going to watch that video and come to the conclusion that the driver was secondaried and ordered out of his vehicle to determine immigration status?

I think a court will not care whether questioning is done in primary or secondary, as explained in the Tenth Circuit's decision in Juan Manuel Rascon-Ortiz (no kidding - two Fourth Amendment cases involving guys named Rascon-Ortiz, decided in the same circuit and in the same year).

"There are two statements of law in Martinez-Fuerte which are especially relevant to our discussion. First, the Supreme Court held that border patrol agents may direct motorists from the primary inspection area to secondary without individualized suspicion and "have wide discretion in selecting the motorists to be diverted.""​

 

[gc70]

originally posted by zukiphile
The problem here appears to be that the BP agent conducted no inquiry relevent to a leagl purpose before detaining the driver, so this stop doesn't appear to fall within the rule of Martinez-Fuerte.

Emphasis added.

You are 'detained' from the time you are stopped at a checkpoint until you are told that you are free to leave. It would be impossible to question you before you were stopped. Below from Martinez-Fuerte.

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

"The stop does intrude to a limited extent on motorists' right to "free passage without interruption," and arguably on their right to personal security. But it involves only a brief detention of travelers"​

 

[gc70]

VAPA,

Thank you for challenging me to reacquaint myself with the Fourth Amendment.

 

[VAPA]

Gc,

Glad to be of service and thanks for the great research. Your argument from above is good but requires clarification for this instance. You cited Fuertes accurately..."Martinez-Fuerte allows a person to be detained to determine immigration status." That is true. But in this video the agents clearly did not detain to determine immigration status. They detained for some other reason that we don't know (we only know the reasons they gave were false). We do know it wasn't for immigration status. So the detention was unlawful.

In Mimms you say that once a detention is done, they can order a driver out of the car. That presupposes probable cause. Again, it doesn't apply in this video. There was no probable cause of a crime being committed.

Your case law is good...it just doesn't support the agent's actions in this incident.

 

[gc70]

But in this video the agents clearly did not detain to determine immigration status.

You miss the point of what detain means.

To keep from proceeding; delay or retard. (thefreedictionary)
To keep from going on; hold back. (yourdictionary)
To hold back or delay. (Encarta)​

From the moment the driver first stopped at the immigration checkpoint, he was detained (kept from proceeding; delayed; kept from going on; held back). It is hard to argue that a large, permanent immigration checkpoint that spans the highway and prevents "free passage without interruption" is for some purpose other than determining immigration status. So, the driver was stopped (detained) to determine immigration status.

Your objection seems to be about how long the driver was detained and how long it took the BP agents to get around to asking immigration status questions.

 

[gc70]

In Mimms you say that once a detention is done, they can order a driver out of the car. That presupposes probable cause.

Probable cause is not needed.

You may want to read Mimms more carefully. The Pennsylvania court thought probable cause or reasonable suspicion was needed, but the US Supreme Court disagreed.

"The Pennsylvania court did not doubt that the officers acted reasonably in stopping the car. But the court nonetheless thought the search constitutionally infirm because the officer's order to respondent to get out of the car was an impermissible "seizure." This was so because the officer could not point to "objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety.""

"We do not agree with this conclusion."​

 

[kodiakbeer]

Once that "poor fool" illegally crosses the boarder into the United States, he is just as much a criminal as Jerry is. They both are in violation of the law.

I don't want the thread shut down for going off topic, so this will be my last post on this related matter. I'll just say that "Jerry" (of Jerry's landscaping services) is the ringleader and the real criminal. As it is now, when Jerry gets caught, he pays a small fine or faces no charges at all, and then rehires new workers and goes on as before. The taxpayer picks up the tab for the deportation and all the indirect social costs that Jerry's slavery ring creates. The obvious solution is to throw Jerry in prison for a year - a year for each illegal he employs. Then Jerry will stop luring illegals across the border.

And yes, we'll all have to pay more for a variety of services, but they'll be a direct cost where we have an option to buy or not. As it is now, we pay indirectly (with no choice in the matter) for everything from medical and social services to crime to decreased wages and poverty, unemployment, welfare, etc, created by illegal workers. I'll pay an extra five bucks for my restaurant meal and be happy to do so.

We have 10% unemployment in this country and if a living wage was paid, those people would take the jobs. Some jobs - seasonal agricultural jobs - will still require imported workers (and we'd need to create a workable system for that), but if there's no off-season jobs for them, they'll have to go home at the end of the summer. They'll have no choice since anyone else hiring them will go to prison.

'nuff said - back to the original topic.

 

[cannonfire]

OK i'm back but I want to ask how unreasonable this is and I'm not fighting either way, because no offense (I said no offense so I can say what I want, its in the Geneva Convention (Sorry, Will Ferrell quote)) but VAPA, your posts are getting way too long and too many big words for me to understand all at once ... But what do you think about each of those check points having a copy of the U.S. Constitution (With court ruling, etc) somewhere at the check point and if someone feels their rights are violated, then they can refer to the U.S. Constitution instead of having a "he said, she said"

 

[Buzzcook]

Just thought I'd post this vis a vis photographing police.

http://www.prisonplanet.com/uk-terror-law-to-make-photographing-police-illegal.html

New laws set to be passed in England and Canada would make it illegal to use bad language or take photographs of police officers, moving us further away from the idea of police as public servants and more towards the notion of cops assuming God-like status.

Laws that keep us from filming police are meant to protect police from embarrassment or possible legal action.
They are marketed as protecting the police from having their likenesses falling in the "wrong" hands. That's not something that passes the smell test.

However, even before the passage of the legislation, police in Britain have already been harassing and arresting fully accredited press photographers merely for taking pictures of them at rallies and protests.

Now this is about a proposed law in the UK and Canada. But the same thing is happening in the US.

http://rawstory.com/rs/2010/0506/de...lice-secret-service-violent-rnc-2008-arrests/

Over 800 arrests were made during the convention. The New York Times noted that an estimated 50 of those detained were journalists.

While I realize most of the posters here have little sympathy for journalists, I just want to point out the similarity between the two instances. Government doesn't want to be recorded when it is acting improperly. Whether it is by private citizens or the media.

Those folks who are saying the man in the video "baited" or "trapped" the government agents are missing the point. If these officers were behaving properly the bait wouldn't have worked and the trap would not have been sprung.

One of the reasons we have a first amendment to so that government abuses of our other rights don't go unexposed.

 

[VAPA]

"You miss the point of what detain means."

Gc, I don't miss the point of what detain means. I said he was not detained FOR immigration status. Just because it's labeled as an immigration checkpoint does not mean that every detention is done to determine immigration status. This is obvious.

As for PC being needed with the PA law...that is an interesting finding. But what I know is that LEO cannot order a driver out of their vehicle for no good reason. Well they can, but the driver doesn't have to get out. And then on and on it goes until it ends up in court and the courts will decide if the LEO was justified for the order (whatever standard they choose to determine the "reasonable" factor needed for the 4th Amendment, be it probable cause, reasonable suspicion, or whatever). But there will be a standard. The Fourth Amendment protects us from unreasonable seizure. LEO cannot just order people out of their vehicles because they feel like it.

In this incident, it's clear the BP had no reason to order the guy out of the vehicle. The driver knew it, the agents knew it, and that's why they eventually sent him on his way.

 

[VAPA]

Cannon,

I suppose that might be somewhat useful but I doubt much. I think rather, lawyers should talk to LEO and they should come up with policies for the BP agents to follow and the BP agents should be well trained and follow those policies. Like many if not most do right now. The problem as I see it (having watched the full Pastor Anderson trial video), is that policy is not clear and the BP agents seem to operate in the realm of "make stuff up" a bit too much. While many do the right thing, some do not. Like the agents in this video. Had they done what most BP agents do, all would have been fine. But they messed up and they knew it and then they all huddled and tried to cover it up with some story (he didn't answer the question in primary). Ah! Yes, most agents ask for citizenship in primary (their purpose) just as the BP agent in the Anderson trial said they do in primary. But the BP agents in this video did not...in fact they wanted to push off the immigration status query because they wanted to mess with the driver.

I think there should be policy (there may be already), the agents should be trained, they should follow the policy and when they fail to, they should be disciplined. If they violate civil rights, in my opinion, they should be fired.

 

[gc70]

And then on and on it goes until it ends up in court and the courts will decide if the LEO was justified for the order (whatever standard they choose to determine the "reasonable" factor needed for the 4th Amendment, be it probable cause, reasonable suspicion, or whatever). But there will be a standard.

Mimms has already set the standard you think you are waiting for - and that standard is officer safety.

Your comments make it clear you have not read Mimms, or do not want to acknowledge its findings because they are contrary to your position.

 

[VAPA]

Gc,

Is your position then that because of "officer safety," in any interaction with the public whatsoever an LEO can order people out of the vehicle? Do you think the law states that?

How about handcuffing all individuals too for "officer safety?" A cop who pulls somebody over (no matter the reason, no matter if it's lawful or not, or if they have PC or reasonable suspicion) can just handcuff people because, after all, that makes the officer safer. Right?

You're simply wrong. Mimms, and all other case law, requires that an LEO have some reason before they can stop, order out, or do anything to the public. Your view seems to be that LEO can do whatever they want for officer safety. That's not how it works nor should it.

 

[cannonfire]

I think there should be policy (there may be already), the agents should be trained, they should follow the policy and when they fail to, they should be disciplined. If they violate civil rights, in my opinion, they should be fired.

I absolutely agree with you 100% on that... But don't you think that they are trained to up hold the policy? After all they aren't just handed a uniform and told to go mess with the public (at least I hope not). Personally I think that if you violate someone's civil rights, you should be arrested... But what is needed, I think, is more of checks and balance system since the courts can not be out at the check point.

Lets say every year there is an updated manual of the Constitution with all the case laws, etc. in there. Have it available to the public as well. This way, if someone has an arguement the BP can say 'well sir according to section blah blah on page blah, this temporary stop is not a violation of your 4th amendment.' or something to that effect.

I have no doubt that the BP were properly trained to conduct these checkpoints, but who is there to check them? I think that is the problem, but it takes a very strong person to not abuse power over people without being constantly checked

 

[gc70]

Your view seems to be that LEO can do whatever they want for officer safety.

A LEO can't do whatever he wants, but he can order a detained driver out of a car. That is not my opinion, but the Supreme Court's.

"The order to get out of the car, issued after the respondent was lawfully detained, was reasonable and thus permissible under the Fourth Amendment. The State's proffered justification for such order - the officer's safety - is both legitimate and weighty, and the intrusion into respondent's personal liberty occasioned by the order, being at most a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer's safety."​

 

[VAPA]

Cannon,

In a perfect world I think your suggestion would be good. I just don't think most people (myself included) are informed enough to interpret case law at a BP checkpoint. There are disagreements even in the judiciary. That's why I think it boiled down to simple policy is the best bet.

You say, "But don't you think that they are trained to up hold the policy?"

I would imagine this is the case but after watching the full Steve Anderson trial on YouTube I'm not so sure. After watching those BP agents testify...it seems like the just kind of make stuff up. I don't know that there is clear guidance or policy for them.

 

[VAPA]

Gc....

Let me bring your attention to a couple parts of the case law you quote:

"after the respondent was lawfully detained,"

He must be lawfully detained! As I have been saying this entire time, there must be a valid REASON for the detention... It's not just some random reason that allows LEO to do whatever they want. In this video, there was no valid reason that would support pulling the driver out of the vehicle. Yes, just stopping at a checkpoint is a detention...that is true...a detention the courts have said must be done briefly to determine immigration status only. When it's clear the detention is done not to do that....it is UNLAWFUL.

Another great part of your quote: "when balanced against legitimate concerns for the officer's safety." Legitimate concerns! It's another STANDARD applying to ordering people out of the vehicle...it doesn't say that LEO's can do it whenever they feel it's in their interest of safety, it uses the word LEGITIMATE just like the Fourth Amendment uses the word REASONABLE.

Come on now...your arguments are bordering on ridiculous. You seem so intent to establish this view that LEOs can do whatever they want, for any reason they want. Face it, the driver did nothing wrong, the agents were wrong, and it's perfectly clear. I'll be happy to cite the opinion of the Court when the driver takes this to Court for you.

 

[gc70]

Come on now...your arguments are bordering on ridiculous.

The vast majority of my statements are summaries of court cases, which I link to, and quotes from the court's decisions.

You only seem to provide opinion.

Again, read the court's decision. The law is a worthy topic of debate; opinions, not so much.

 

[johnwilliamson062]

The vast majority of my statements are summaries of court cases, which I link to, and quotes from the court's decisions.

I can take out of context quotes from the bible to support almost any position. Doesn't really mean much at all though. You ignore some key phrases in those quotes also.

legitimate concerns

What were their legitimate concerns? At what point did this guy do anything to threaten them? Was it the fact that he was on the phone with the FBI?
'THIS ONE ISN'T A SHEEPLE OMG OMG WHAT DO WE DO???? HE IS A THREAT!!! PRONE HIM OUT!!!'

 

[gc70]

I can take out of context quotes from the bible to support almost any position. Doesn't really mean much at all though. You ignore some key phrases in those quotes also.

legitimate concerns

What were their legitimate concerns?

You are absolutely correct about the potential to take words out of context - and prove it with your question.

Following are two full paragraphs from Mimms (so you won't think the quote too out of context).

"Placing the question in this narrowed frame, we look first to that side of the balance which bears the officer's interest in taking the action that he did. The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation. The State argues that this practice was adopted as a precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground. Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault."

"We think it too plain for argument that the State's proffered justification - the safety of the officer - is both legitimate and weighty. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Terry v. Ohio, supra, at 23. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. "According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings - A Tactical Evaluation, 54 J. Crim. L. C. & P. S. 93 (1963)." Adams v. Williams, n. 3 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, (1973). Indeed, it appears "that a significant percentage of murders of police officers occurs when the officers are making traffic stops." Id., at 234 n. 5."​

The Supreme Court discussed why concerns for officer safety outweighed "a mere inconvenience" to citizens. But you were not referring to the Supreme Court when you asked "What were their legitimate concerns?" (even though you lifted 'legitimate concerns' out of context from the Mimms quote).

Consider what safety concerns the BP agents might have had. Below are some things that can be observed on the video before the first BP agent tells the driver to go to secondary (Video #1 @ 0:37).

• the driver refuses to roll down his window more than an inch or two
• the window appears to be tinted, which would reduce the ability to easily see inside the car
• the driver's hands are low (right hand) or against the door (left hand) and probably out of sight from outside
• there are also 'things' in the front passenger seat that may not be readily identifiable from outside (laptop not visible in Video #1 but seen in Video #2 @ 4:08)

With a driver acting a bit unusual and possibly not being able to see what was going on in the car, the BP agent in secondary might have decided it was safer to ask the driver to get out of the car so that the driver's movements could be observed.

The four observations listed above probably meet the criteria of "objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety" which the Pennsylvania Court wanted to use but the Supreme Court said was not necessary in Mimms.