Border Patrol Checkpoints and the 4th Amendment

I am concerned with the increasing levels of police surveillance and control in our society, as I outlined in The Sovietization of America (http://dangoldstein.blogspot.com/2008/09/sovietization-of-america.html) and Dick Cheney’s Bookshelf: 1984 (http://dangoldstein.blogspot.com/2007/11/dick-cheneys-bookshelf-1984.html). This is true on the borders with stepped up patrols and increased documentation required for getting into this country. Passports are now required on the Canadian border, which used to only require a drivers license. Visa requirements have been tightened up and visitors are routinely photographed and fingerprinted as they go through Customs. People have been added to "suspected terrorist lists" and no fly lists with no justification required or provided.. At the Republican Convention hundreds were rounded up in mass arrests that also targeted journalists who were trying to cover the demonstrations. The Bush Administration is working on making it easier for the police to conduct surveillance and infiltrate groups they don't like (http://www.aclu.org/safefree/general/36732prs20080912.html). That is why it is so disturbing to see this kind of increased police invasiveness right here in our neck of the woods.

I live in a quiet little corner of Washington State's Olympic Peninsula. We are not far from Canada; it’s just across the water. However, the border is 3-4 hours away by car, including a ferry ride. From the West End of the Peninsula, add another couple of hours to that drive. That is why I was surprised to find out that the US Border Patrol has been setting up highway checkpoints both on the western side of the Peninsula, on Highway 101 near the town of Forks, and on the eastern side, near the Hood Canal Bridge. Whatever its effectiveness or legality, it does slow traffic and inconvenience the vast majority of people who use the roads. It also gives this police agency an opportunity to detain and 'check up' on anybody. That is un-American.

Any other police agency is prohibited from stopping somebody or conducting a search without probable cause, or a reason to believe that that particular person is committing a crime. That is in the Constitution. The Fourth Amendment says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Now it doesn't say anything about automobiles, but I think it is safe to say that they would have intended cars to be included if they had existed at the time. The police can't just pull you over and search your car for no reason. The Border Patrol thinks that its mission makes it exempt from that in certain circumstances. Since their mission is to patrol thousands of miles of borders in between official crossing points they believe that they can check anybody they find near the border to make sure they are not sneaking in illegally. Mike Bermudez, public affairs officer for the U.S. Border Patrol is quoted in the Port Townsend Leader (http://www.ptleader.com/main.asp?SectionID=4&SubSectionID=4&ArticleID=21763&TM=83414.87) as saying that Federal law allows them to conduct checkpoints within a "reasonable distance" of the border, which he says has been established as 100 miles. I could point out that the distance from Forks to the border by car is almost 200 miles, but then they would point out that the border is actually in the middle of the Strait of Juan de Fuca and it is "only" 56 miles from Forks to the ferry to Vancouver Island. Of course they are supposed to be patrolling between official crossings, which leads us to the conclusion that they are worried about illegal aliens sneaking across the border from Canada by boat, getting into cars and driving down to the checkpoints. Now I do believe that rumrunners used that route during Prohibition but I don't think it has been a problem since.

It turns out that, as far as I can tell not one of the people arrested for suspected immigration violations are accused of crossing the border from Canada. They are accused of crossing the Mexican border illegally. In fact when asked about racial profiling at the checkpoint, according to the same article, "Bermudez said it's a matter of demographics and the reality is that "a larger percentage of people who are in the country illegally are Mexican."". But this raises a serious question. It seems that the Border Patrol is using the proximity of the Canadian border (and it is not even that close) to patrol the Mexican Border, which is, what? 1500 miles away? There is no way that is a "reasonable distance". It is a ridiculous assumption. What they are really doing is looking for people who are already in this country. That is a far cry from preventing people from slipping across the border.

The Peninsula Daily News reports that one of the raids caught a recent graduate, with honors, of Fork High School, who has been in this country since infancy, along with another local student (http://www.peninsuladailynews.com/article/20080831/NEWS/808310309), sparking a protest demonstration that attracted 60 people. Whether or not you believe that it serves the national interest to deport them, I don't understand how apprehending them in Washington state years after they came here has anything to do with patrolling the border.

And as a previous article in The Leader (http://www.ptleader.com/main.asp?Search=1&ArticleID=21662&SectionID=36&SubSectionID=55&S=1) points out, at least some of the people actually arrested were allegedly illegal immigrants illegally harvesting salal, which grows in the National Forest, is in much demand by florists but requires a permit. In order to protect the forests from over harvesting, permits are limited and only available by lottery. So, part of their motivation might be to protect the National Forest. If so, they are way off base. They can't just ignore the 4th Amendment in order to protect the environment. It is also a damned inefficient way to do it.

The checkpoints are also an opportunity to nab people who have outstanding warrants. In fact, some of the people stopped were arrested on warrants that were unrelated to the border or immigration or anything that the Border Patrol is supposed to be doing.

Well what is wrong with grabbing people that they come across if there is a warrant out on them? Here is the scenario. The Border Patrol sets up a checkpoint that forces every car that comes by to slow down to a crawl so they can peer into the car. If they see something "suspicious", like maybe brown skin, they make it stop for further questioning, asking who you are and what you are doing. They ask for identification. Then they take the opportunity to run a check for warrants. All of this is without any probable cause that anybody has done anything wrong. As I mentioned, nobody else is allowed to do this. The only reason the Border Control can get away with it is that they say they need to be able to nab people as they are sneaking across the border. But that is not what they are doing with these checkpoints.

One image we all have of a police state is that they can stop you anytime and demand to inspect “your papers”. These checkpoints are one more step in that direction.