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.""