Border Patrol Violates Fourth Amendment of Military Officer

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johnwilliamson062,

We probably share the same feeling that no free American citizen should have to undergo the indignities shown in the checkpoint video. However, before I get involved in such a situation and tell a LEO to pound sand, I want to know that I am legally in the right, rather than just feeling that I should be in the right.
 
Gc,

I'll read this Mimms case this weekend. If it is saying that LEO can order people out of their cars after pulling somebody over randomly...with no reasonable suspicion, with no probable cause, with no traffic infraction, in the name of "officer safety" for "legitimate" reasons then you will have greatly educated me and I'll be very appreciative. But I just can't believe it will say that (of course they've said several things I can't believe they said).

The reason I'm skeptical it says that from your quote:

"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."

He was pulled over for a traffic violation I am assuming just as the State says was the officer's practice. It doesn't say here that it was his practice to pull people over randomly and then order them out.

I suppose you will say that stopping at a checkpoint initially is a detention. That is correct. And pulling somebody over for a traffic violation is a detention. That is correct. But they are not the same. One does NOT have reasonable suspicion or probable cause...ie the checkpoint stop. It's a suspicionless checkpoint. As such, the agents at the checkpoint must act differently. They cannot just pull people who stop out of their vehicles at a whim. They must have RS or PC that a crime has been committed. They cannot say "officer safety" and pull somebody out. Concern for their safety is not legitimate no matter what, if there is no RS or PC for a crime.

You cite reasons you think there was a legitimate safety concern (absent any RS or PC for a crime) by the driver in this video. Windows tinted? Didn't appear to be the case when I watched the video but most cars have some tint factory installed. Hand position? No different than any other driver more than likely. Here are more...his glove compartment may not have been open, perhaps there was a gun there. He probably had pockets in his clothing, could have been a gun there. Under the seats, COULD have been grenades who knows. So what? He's driving his vehicle on a highway and has done nothing wrong. LEO are not allowed to SEARCH his vehicle other than looking in the windows without RC or PC. Face it, they just won't know everything. It's a big scary world out there and they must operate in it knowing they cannot unreasonably search or seize people...that means they can't do so unless there is RS or PC for a crime. Like a traffic violation in your Mimms case. But there wasn't at the checkpoint.

This is basic stuff. So please let me know if Mimms said it was ok for LEO to pull people over without any violation, any reasonable suspicion for a violation, any probable cause, no traffic or other violation...just pull them over randomly and then order them out of the vehicle. If that's what it says (I highly doubt it) then I'll thank you for pointing out another horrible SCOTUS ruling and I'll read it in detail this weekend and admit that you have made an excellent point.
 
VAPA said:
I suppose you will say that stopping at a checkpoint initially is a detention. That is correct. And pulling somebody over for a traffic violation is a detention. That is correct. But they are not the same.
Click to expand...
In fact, they are exactly the same.
Detention: The act of keeping back, restraining, or withholding, either accidentally or by design, a person or thing.

Detention occurs whenever a police officer accosts an individual and restrains his or her freedom to walk away, or approaches and questions an individual, or stops an individual suspected of being personally involved in criminal activity. Such a detention is not a formal arrest. Physical restraint is not an essential element of detention.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.​
The detention first occurs in the stop at the check-point.

Once detained, Mimms kicks in and the BP officer can lawfully ask the driver to exit the vehicle. Probable Cause is not needed. ARS is not necessary, as Mimms states that a mere believable expression of officer safety is all that is required.

This is a very low standard, but it doesn't matter whether we like it or not. Unless or until the Court sets another standard, it is the one by which we will all have to operate under.

The Court also allows such encounters, as long as they are brief. The Court has given a lot of latitude in what the word "brief" means. Each case is different. What may be brief in one case, may not be in another. And vice versa. It is the particulars of each case that the Court looks at.

The driver was an Officer of the US Military. His conduct was certainly unbecoming. Had the situation been reversed, you can be assured that the Officer would have placed the driver in irons for gross insubordination.
 
I am not a lawyer.

The 4th gets weird around borders, and this is nothing new. You can't just look at precedent from the rest of the US and think it applies, even SC cases and their stated rules and tests and whatnot if those cases were not dealing with a border area. You have to look at border cases, the SC has picked up a few, and they are unusual.
 
VAPA,

It is not quite as bad as you think. And the answer is in two parts - Martinez-Fuerte for the stop/detention and Mimms for exiting the car.

Part One: A stop/detention has to be legal. The general rule is that PC or RS is required for a stop/detention, but Martinez-Fuerte provides a special rule for immigration checkpoints. The Court allows stops/detention at immigration checkpoints, without PC or RS, simply to help achieve the public policy goal of preventing illegal immigration. The only limit on a checkpoint stop/detention is that it must be "brief" (more later).

Part Two: Once a legal stop/detention has occurred, Mimms kicks in. Mimms is a general rule that a driver can be ordered out of a car, totally at the police officer's discretion. There is no special provision in Mimms, or any other case, about exiting a car at immigration checkpoints, so the general rule always applies.

Put the two parts together and you have the whole picture. A normal stop/detention requires PC or RS, so there is already a logical officer safety basis for making the driver exit the car. An immigration checkpoint stop/detention does not require PC or RS, so the officer safety basis for making the driver exit the car may not seem as strong. But Mimms does not recognize any difference between the two types of stops and simply says: legal stop = exit the car.

Regarding "brief detention" at immigration checkpoints, Martinez-Fuerte gives a bit of time for normal questioning, but requires PC, RS, or some other suspicion to detain someone for an extended time. At the checkpoint in Martinez-Fuerte, the BP reported that the average time for a secondary stop was three to five minutes. The Court did not object to that amount of time, so "brief" must be at least three to five minutes. How much more time would exceed "brief" and possibly cause a detention to become illegal? The Supreme Court will tell us when they see it in a future case.
 
Anti-[America],

You're simply wrong but I love your advocacy for a police state.

By your view, any detention is a detention. We can agree on that. But in your view once that box is checked (it's a detention-no qualifiers needed) then Mimms "kicks in" and the officer is then able to order people out of the vehicle lawfully (though you don't mention the "legitimate" standard which is convenient to your argument). So an UNLAWFUL detention is a detention still, right? Yes it most certainly is. So by your standard the officer can legally order somebody out of a vehicle once they are detained...doesn't matter how, why, what, where...as long as it's a "detention." Nothing says it has to be a lawful detention in your view...just pronounce it a detention. You completely ignore the qualifiers in Mimms and, most importantly, common sense.

But, again, this will be decided in the Courts and if you're interested let me know and we can put a wager on the outcome. I'm always interested in easy money.

But your claim that the officer's conduct was unbecoming really blows me away...wow! What a scoundrel he was, right! I certainly feel less safe knowing that man is out there making war against our enemies on foreign soil. I mean, by God, he rolled his window down only enough to communicate with agents who were charged with determining his immigration status and in accordance with the expectations set by the agents themselves when they finally released him! It's absolutely scandalous! We can't allow people of that caliber to serve this nation, I agree. Who cares if he took an oath to defend the Constitution and who cares if everybody and their mother, including the agents (except you) admit his actions were completely legal... he did not bow down to you and your ilk. Completely unacceptable and, as you correctly state, conduct unbecoming a complete cowardly servile traitor to his uniform. Oh, is that not what you said? I'm sure that's what you meant though. His conduct was unbecoming a sheeple, no doubt.

The weather is nice in China this time of year... Ever thought about visiting? I think you would love it there.
 
VAPA,

Ok this is what I want you to do before you respond any further...

1. Close your eyes
2. Grab both your earlobes
3. Start massaging
4. Take a deep breath in, exhale out
5. Say "WooSaaa" a couple of times.

Calm now? BP down? Ok good, now continue, love the sarcasm!

P.S. Is China actually nice this time of year or are you just saying that?:p

And I must say, just because you are in the military, does not mean you are not an American citizen. So unbecoming of an officer I think is total BS. He did nothing illegal, although being a pain in the @$$, but playing dumb is not illegal and never will be. It should have never gotten to his CO, if he did get in trouble, it was because this was made public.

I do not believe it says he actually got in trouble but rather the BP attempted to get him in trouble by the 3 page letter and emails.
 
VAPA,

Best of luck with your Fourth Amendment efforts related to the OP video. While I think your efforts have little prospect of success, I can't fault a person's motives for genuinely trying to broaden personal liberties. However, when insulting personal innuendo is introduced into a discussion, that is my cue to depart.
 
This is the second time you have said you will depart Gc. Thanks for the conversation.

As far as "insulting personal innuendo," I'm not sure I'm the first or the only to introduce it.

You said previously of me, "You have already drank the kool-aid and there is no room for debate or disagreement in your mind." You further called me an "agenda-driven posters who [denies] the obvious and claim their position to be absolutely, incontestably right." You then accused me of "propaganda" rather than discussion and debate and implied I was not "open to rationale debate."

I'm not the only person who has been insulting. But I'm not complaining as I will gladly take your insults combined with the great info and viewpoints you have brought into this discussion (though I disagree with your interpretation of that info and think it's done in a "how can I support my view fashion").

I appreciate your viewpoint and your disagreeing with me....disagreement, even insult, is a very American characteristic.
 
We need to fire all border patrol and bring in the US military to patrol.Set up guard towers 20 feet high,with bullet proof glass,1,000 yards apart.Then station 3 snipers in the tower.
 
I'm rooting for the driver. I hope he sues.

The agents that hassled him are a domestic threat to american citizens, and they dont deserve to live in this country.
 
In Mimms the word legitimate is used several times. I quoted one and you misunderstood me as quoting the other or believe the term is repeated to indicate the latter "legitimate" refers to the first, which I admit it may, although I did not originally read it as such.

In Mimms the officer does it to EVERY person he stops. At the BP station it is obviously selective. Since there is a selection, does this require a reason for the discrimination? I don't really buy the reasons why the BP officer would ask him out of the vehicle. His windows did not appear very darkly tinted and once you throw that out the other things aren't really believable. Do you REALLY believe the BP officer was concerned for his safety? I am not watching the video again right now, but I seem to remember the BP at the window turning his back to the vehicle to confer with other BP repeatedly. If he turns his back to the vehicle I don't think he is very concerned with the the .mil officer as a threat to his safety.

They bleep when the officer says his name. In many of the instances the bleeps are very long. I can only imagine he is giving his name and rank, possibly along with other info such as his station. At the very least he gives his .mil ID first when his passport or drivers license is available. If/When he introduces his rank and the fact that he is a military officer into the equation as a ?character defense? he is then VERY responsible for representing that rank as he is presenting himself as an officer of that rank not as a US citizen.
He remains relatively calm throughout the exchange. He isn't screaming or pounding on the glass or anything like that. I don't remember him using any insults. He seems very frustrated at times and some of his answers are "short." I have witnessed officers behaving worse without consequence.

The driver was an Officer of the US Military. His conduct was certainly unbecoming. Had the situation been reversed, you can be assured that the Officer would have placed the driver in irons for gross insubordination.
Click to expand...
This is not an interaction between a military officer and his subordinate. Your post seems to indicate that a military officer should expect to be subordinate to any civilian LEO they come across. If you were to roughly translate the ranks of those initially involved across their organizations, what would they be? Should they be subordinate? Is that a good idea at all, especially if they believe they are being issued illegal and unconstitutional orders? Respectful is one thing, subordinate another. What if it was a female officer asked to submit to a cavity search by a male BP? Should she submit anyways simply b/c she is a military officer?
 
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OK, enough.

This has been thoroughly debated, and some of you have been getting far snarkier than is good for your own good. Much more and some people could be getting vacations.

Closed.
 
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