Look at the map provided by the American Civil Liberties Union and you’ll see that almost all of California resides in a “Constitution-Free” zone the ACLU maintains is being created and policed by the U.S. Border Patrol.
Never mind that the Immigration and Nationality Act of 1952 gives the patrol authority to set up checkpoints and stop traffic anywhere within 100 miles of any U.S. border, including California’s coastline – and has been held constitutional many times by the highest courts in the land. Never mind, also, that immigration officers have maintained checkpoints at strategic locations many miles from the Mexican border for more than 55 years, and consistently acted in a judicious manner.
But the ACLU claims that a 68 percent increase in Border Patrol manpower over the last five years has caused operations to go far beyond mere checkpoints where traffic is slowed and agents wave most cars through. While the patrol had 10,717 agents five years ago, it will have 18,000 by year’s end, and more than 7,000 new enforcement officers translates into a lot more enforcement actions targeting U.S. citizens who somehow attract Border Patrol attention.
“We’re starting to see the tactics they use right on the border bleed out,” says Jay Stanley, the ACLU’s national spokesman. “The unmanned surveillance drones used on the border are creeping inland. There’s a new prevalence of car and person searches and checking license plates. We’re seeing agents asking people what they are doing and demanding proof of citizenship far from the border.
“People expect these checks at the border and at entry points into the country like airports. But we hope they are not as comfortable with this stuff when it’s inside the United States.”
The Border Patrol’s parent agency, U.S. Customs and Border Protection (part of the Department of Homeland Security) maintains this was all expectable when Congress authorized large-scale expansion of the patrol.
“None of it is new,” said Jason Ciliberti, a top USCBP official. “Our national strategy is defense in depth, not just at the borders. We also want to find illegal immigrants or potential terrorists at dispersal points like airports and bus stations within 100 miles of the border.”
That 100-mile zone, as mapped by the ACLU and not disputed by USCBP, includes not just San Diego, but the entire California coast and areas inland as far as Bakersfield, Sacramento, Redding and Fresno.
And the 1976 U.S. Supreme Court ruling in the case of U.S. vs. Martinez-Fuerte allows the patrol to do almost anything it wants within that zone, so long as it’s “consistent with the Fourth Amendment” (which prohibits unreasonable searches and seizures) and lasts only for a “reasonable” amount of time – generally interpreted as no more than 30 minutes. The decision, written by the late Justice Lewis Powell and joined by Justice John Paul Stevens, one of the leading liberals on today’s court, also says car searches “may be made… in the absence of an individualized suspicion that the particular vehicle contains illegal aliens.”
The Border Patrol ever since has used that decision in detaining anyone it believes looks even slightly suspicious when driving up to a checkpoint.
“The complaints we are hearing are that the stops are extending longer,” says the ACLU’s Stanley. “We understand the concern about preventing another 9-11, but there’s always a problem that can be solved by giving up some of our rights, isn’t there?”
USCBP, however, says nothing has changed except its manpower and abilities. “Sure, we’re able to do more since we have more people,” says Ciliberti. “But our methods are no different than before. The Fourth Amendment still applies. We still need to have probable cause to conduct detailed searches of persons or cars, but not for brief traffic stops. It’s not like at the border itself, where the Fourth Amendment does not apply as much. At the border and other entry points we are allowed to reasonably check all baggage and persons.
“But we’re very careful to stay within the bounds of the Fourth Amendment anywhere else, because we know that to go beyond those bounds would lead to problems that could compromise our operations aimed at excluding terrorists.”
Which means the Border Patrol essentially contends that even individuals the ACLU has named as victims of unreasonable stops and searches were doing something to attract suspicion when stopped 15 or more miles from the border.
“It could have been one of our drug-sniffing dogs barking, or a gesture or any of a host of reasons,” said Ciliberti. “We don’t reveal our list of criteria. But all our agents know they have to have probable cause to do a serious search away from the border.”
The bottom line: The Border Patrol’s increased manpower means almost anyone can be stopped and searched almost anywhere in California. And any agent doing this would most likely be operating entirely within both the law and the patrol’s rules.