Video: Border Patrol tasers pastor at traffic stop

Here’s a better description of the law as it pertains to the “functional border.” It comes from a 2004 FBI bulletin.

Money section for those too lazy to follow the link:

FUNCTIONAL EQUIVALENT

“Under the ‘functional equivalent’ doctrine, routine border searches are constitutionally permissible at places other than actual borders where travelers frequently enter or exit the country.” Examples of functional equivalent borders include airports within the United States where international flights depart or first land and at an “established station near the border, at a point marking the confluence of two or more roads that extend from the border.” Of course, this means that those traveling by vehicle “may be stopped at fixed checkpoints near the border without individualized suspicion even if the stop is based largely on ethnicity.” Additionally, “boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatever.” The first point inside the United States where a ship arriving from outside the country docks is another example of a border functional equivalent. The key feature of a border functional equivalent, then, is that it is “the first point at which an entrant may practically be detained.”

EXTENDED BORDER

“The extended border doctrine provides that non-routine border searches that occur near the border are deemed constitutionally permissible if reasonable under the Fourth Amendment,” something which is determined by a three-part test, “whether 1) there is a reasonable certainty [or a high degree of probability] that a border crossing has occurred; 2) there is a reasonable certainty that no change in the condition of the luggage [i.e., the item or person to be examined] has occurred since the border crossing; and 3) there is a reasonable suspicion that criminal activity has occurred.” This three-part test becomes necessary in an extended border search context because it “entails greater intrusion on an entrant’s legitimate expectation of privacy than does a search conducted at the border or its functional equivalent[.]” What, however, is reasonable certainty? This is a proof threshold that lies between probable cause and beyond a reasonable doubt. Regarding the second prong of the test, key to concluding whether or not there has been any change in the luggage, conveyance, or any other item, because it crossed the border are factors including “the time and distance from the original entry and the manner and extent of surveillance.” The signal characteristic that differentiates the extended border search from one conducted at the border’s functional equivalent is that the first “takes place after the first point in time when the entity might have been stopped within the country.” Significantly, a proper extended border like a functional equivalent search may take place without either a warrant or probable cause.

ROVING PATROLS

By statute, the Immigration and Naturalization Service (INS)55 has the power to search any vehicle located “within a reasonable distance from any external boundary of the United States” without a warrant. A reasonable distance is defined as “within 100 air miles from any external boundary of the United States.” However, such a yardstick is not necessarily determinative. “It is clear, of course, that no Act of Congress can authorize a violation of the Constitution.” Despite the statute and regulation, the Supreme Court refused to condone a suspicionless Border Patrol vehicle search 25 air miles north of the border with Mexico that resulted from a roving patrol. Note that a roving patrol does not keep the suspect or suspect conveyance under nearly continuous surveillance from the point where the actual border was crossed. “In the absence of probable cause or consent, the search violated the…Fourth Amendment right to be free of ‘unreasonable searches and seizures.’” The Court continued, quoting from one of its earlier opinions, that “those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”

Not only may searches away from the border or its functional/extended equivalent not be conducted absent probable cause or consent, neither may brief stops be effected absent reasonable suspicion. In 1973, the Border Patrol stopped a car below San Clemente, Califor-nia, and away from the U.S.-Mexican border solely because all three of its occupants “appeared” to be of “Mexican descent.” The government relied on the INS statutory and regulatory to support its position that it had the authority to stop vehicles in the border area solely for the purpose of determining whether the occupants were legally in the United States. As before, the Border Patrol was disappointed before the Supreme Court. Al-though recognizing the serious illegal immigrant problem along the southwest border, the Court nevertheless concluded that “[t]he Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” The Court went on to expand its remarks, noting

[e]xcept 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.

In sum, away from the actual, functional equivalent, or extended border, traditional Fourth Amendment concepts apply to both searches and seizures. Put differently, so-called roving patrols enjoy no special Fourth Amendment treatment, nor do they fall under any special exception to the reasonableness requirement.

Dukeboy01 on May 18, 2009 at 11:11 AM