13 July 2014

Every morning at the checkpoint on Arivaca Road, about 25 miles from the Mexican border and about 20 miles from the center of this community, school buses full of children get stopped. A minibus that takes older residents on weekly shopping trips also gets stopped.

Unlike frequent border crossers, who carry cards granting them faster entry in the United States, there is no special designation for drivers who frequently pass through checkpoints. The thinking is that anyone could be a smuggler, so everyone must be stopped.

• Normally under the Fourth Amendment of the U.S. Constitution, the American people are not generally subject to random and arbitrary stops and searches.


• The border, however, has always been an exception. There, the longstanding view is that the normal rules do not apply. For example the authorities do not need a warrant or probable cause to conduct a “routine search.”


• But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary” of the United States.


• As a result of this claimed authority, individuals who are far away from the border, American citizens traveling from one place in America to another, are being stopped and harassed in ways that our Constitution does not permit.


• Border Patrol has been setting up checkpoints inland — on highways in states such as California, Texas and Arizona, and at ferry terminals in Washington State. Typically, the agents ask drivers and passengers about their citizenship. Unfortunately, our courts so far have permitted these kinds of checkpoints – legally speaking, they are “administrative” stops that are permitted only for the specific purpose of protecting the nation’s borders. They cannot become general drug-search or other law enforcement efforts. [Emphasis added.]


• However, these stops by Border Patrol agents are not remaining confined to that border security purpose. On the roads of California and elsewhere in the nation – places far removed from the actual border – agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing.

The checkpoints have been most successful at finding drugs, seizing 342,624 pounds of marijuana in fiscal 2013, or 14 percent of the 2.4 million pounds of marijuana confiscated by the agents along the northern and southern borders. They were also responsible for intercepting more than half of the heroin, cocaine and methamphetamine seized by the Border Patrol over the past four fiscal years, the statistics show.

But only 2 percent of the unauthorized immigrants captured by the Border Patrol in each of the past four fiscal years were apprehended at checkpoints, according to statistics provided by Customs and Border Protection. There were 9,510 such apprehensions in fiscal 2013, out of 420,789 apprehensions by the agency.

Under Supreme Court precedent, the Border Patrol is allowed to conduct random stops at checkpoints within 100 miles of the border, a power that the agency says is critical to its task of keeping drugs, guns and people from illegally entering the country.

The Border Patrol’s parent agency, Customs and Border Protection, said in a statement that existing laws give its agents broad powers to question and arrest people and to seize evidence, and that those powers are not bound by geographic restrictions. The agents, the statement said, “enforce the nation’s laws while preserving the civil rights and civil liberties of all people” with whom they interact.