We all know that border patrols are there to ensure safety and enforce the law, however these checks need to be done lawfully otherwise someone’s civil liberties are at risk of being violated at the whim of an officer. The 4th amendment to the United States Constitution prohibits unreasonable searches and seizures for various reasons amongst them the right to privacy, freedom and for the protection of the public from possible police brutality ( the more searches and seizures are regulated the less they provide rogue officers with an excuse to harass citizens). Also when a detention requires reasonable suspicion a citizen can resist surrendering her rights to a potentially dangerous officer.When there is regulation officers may feel more inclined to follow them in fear of losing their jobs. It has been ruled in various decisions that due to the rising number of immigration violations that is getting out of hand, that the unreasonableness threshold regarding seizures and searches by legal border patrols varies under various certain circumstances as follows:
BORDER CROSSINGS
1) when someone is crossing the borders or its functional equivalents, border patrols may legally stop someone without reasonable suspicion and search him and his belongings without probable cause or without a warrant. if they have reasonable suspicion of an immigration violation or a crime they can conduct a strip an intrusive search such as a strip search.
- At fixed or temporary checkpoints within 100 miles from the border.
It is common for temporary or fixed checkpoints to operate at a reasonable distance from within the border and because they are designed to address immigration related crimes and there is less room for abuse of power compare to roving patrols, they are less intrusive and therefore they can stop the car or even order a driver to stop at a secondary inspection area ( United States v. Martinez-Fuerte ( see We further believe that it is constitutional to refer motorists selectively to the secondary inspection area at the San Clemente checkpoint on the basis of criteria that would not sustain a roving-patrol stop. ).Nevertheless they still need probable cause or a warrant for a search ( see United States v. Martinez-Fuerte
428 U.S. 543 (1976)
” And the reasonableness of the procedures followed in making these checkpoint stops makes the resulting intrusion on the interests of motorists minimal. On the other hand, the purpose of the stops is legitimate and in the public interest, and the need for this enforcement technique is demonstrated by the records in the cases before us. Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints.”).
Roving patrols within 100 miles from the border.
A lot of you may wonder whether a roving patrol officer can legally stop someone within 100 miles of the border without reasonable suspicion, since due to the nature of the seizure ( a stop is defined as a seizure see UNITED STATES v. MARTINEZ-FUERTE, 428 U.S. 543 (1976) border checks) simillarly to p immigration checkpoints no reasonable suspicion for a stop is required because there is a lower level of privacy within these areas. Nevertheless it has been ruled that the reasonable suspicion rule will not apply to roving patrols. The U.S. Supreme Court distinguished roving patrols from checkpoints on following basis “[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” So it is clear that it was more concerned with abuse of authority see United States v. Martinez-Fuerte
428 U.S. 543 (1976)
meaning, the Court was more concerned with there was a higher risk that they would use their powers for ulterior purposes under the guise of authority compared to a traffic stop which was conducted in a more official manner).
So even if the roving patrols were within the general area of the border they must have reasonable suspicion before they stop someone ( see United States v. Martinez-Fuerte
428 U.S. 543 (1976) ” In United States v. Brignoni-Ponce, supra, however, we recognized that other traffic-checking practices involve a different balance of public and private interests, and appropriately are subject to less stringent constitutional safeguards. The question was under what circumstances a roving patrol could stop motorists in the general area of the border for brief inquiry into their residence status. We found that the interference with Fourth Amendment interests involved in such a stop was “modest,” 422 U.S. at 422 U. S. 880, while the inquiry served significant law enforcement needs. We therefore held that a roving patrol stop need not be justified by probablecause and may be undertaken if the stopping officer is “aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that a vehicle contains illegal aliens. Id. at 422 U. S. 884.”)
The effect of our decision is to limit exercise of the authority granted by both 287 (a) (1) and 287 (a) (3). Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country. 9 – See more at: http://caselaw.findlaw.com/us-supreme-court/422/873.html#t9
The Court that decided Carroll v. United States, supra, sat during a period in our history when the Nation was confronted with a law enforcement problem of no small magnitude—the enforcement of the Prohibition laws. But that Court resisted the pressure of official expedience against the guarantee of the Fourth Amendment. Mr. Chief Justice Taft’s opinion for the Court distinguished between searches at the border and in the interior, and clearly controls the case at bar:
WHY A HUNDRED MILES?
Because the code of federal regulations which regulates agencies operations states that:
8 CFR 287.1 states that:
(2) Reasonable distance. The term reasonable distance, as used in section 287(a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the chief patrol agent for CBP, or the special agent in charge for ICE, or, so far as the power to board and search aircraft is concerned any distance fixed pursuant to paragraph (b) of this section.
This regualtion is deemed to be constitutional and therefore it does not contravene the fourth amendment purposes. see United States v. Martinez-Fuerte .
