This is the fourth time we have been search, and it is the second unconstitutional search. The first unconstitutional search was at a checkpoint between New Mexico and Texas. The van was searched without my permission and without a warrant. The Sheriff told me that he had the right to search the vehicle because I was acting suspicious. When I inquired as to what in my behavior had been suspicious, the Sheriff replied, “you were asking questions.” I don’t believe asking questions counts as probable cause. The next search was when I crossed the border from Mexico to the United States. This search was legal, as I was crossing a national border and, agreeing with the reasoning behind it, consented to the search. The third search was also legal. It happened right before we crossed the Hoover Dam. I had no problem allowing the officers to look in the van, as it makes sense to have security for the dam. This fourth search was the worst and the most blatantly unconstitutional.
After I pulled the van over, a higher ranking agent came over and asked me to open the van doors. I told him that I would not because he did not have a warrant to search the vehicle. He called over another agent, the handler of the drug-dog. This agent told me that the drug-dog got a “hit” on the van. This was suspicious since the dog just came over and had not even circled the van yet. We were told to step out of the vehicle and hand over our identification. I got out and they put my hands above my head to search me. When I turned around to question the agent, he grabbed my arms and told me I would be in the dirt if I didn’t keep my hands up. They frisked me down, unconstitutionally searching my person. Then they commenced to unconstitutionally search the vehicle.
The 4th Amendment to the Constitution of the United States of America:
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.
They kept us on the side of the road for over an hour while the dog and agents went through every inch of the van. The agent in charge told me that I was ignorant and foolish. I told him that he was violating my 4th Amendment rights. We argued about the balance between security and civil liberties for the entire time we were detained. One of the agents told me that if I loved my country and the Constitution so much, I should join the military. I told him that I am gay and not allowed to serve my country. The agent in charge did not believe that it is illegal for gays to serve. I told him that it was also legal to fire someone for being gay in most of the country. He told me that I was wrong and that I didn’t know what I was talking about. He was ignorant about his own ignorance…and that is the exact same phrase that he used on me.
The fact is that they wanted to search the van, I did not give permission, and they did not have a warrant. So the agents lied and said that the drug-dog could smell drugs in the van. This lie then gave them the authority to search the vehicle. They were hoping that, because I refused a search, they would find something in the van. But alas, after over an hour of searching, they found no drugs, not even a trace of drugs. The agents then told me that the dog must have picked up on the scent of drugs that had been in the van at one time, perhaps from the previous owner. This is ridiculous. I bought the van two months ago from a dealership. The van is a cargo van; all plastic and metal. When I purchased the vehicle, it had been cleaned out and was covered in Amoral. I then cleaned the van again, with soap and water to wash out the slippery Amoral coating. After all of this cleaning, there is no way there could be a scent of drugs, especially a scent that a dog could smell from outside the van. The nail in the coffin though is that I was searched by a drug dog less than a month ago in Texas, and that dog smelled nothing.
The problem is that there is no way to record or print out a finding from the dog. The agents were able to lie about the dog picking up a scent in order to search the van and violate the 4th Amendment. It was interesting to watch them try to cover up the lie by telling me that I must have picked up a passenger who had drugs on them at one point or that the previous owner must have had drugs in the vehicle. It was ridiculous.
When they finally let us go, after keeping us in the 120 degree heat for over an hour, I started driving away, reached down to grab my atlas to look at the map, and see that the page had been halfway ripped out of the book. This would not be such a big deal, except that I just bought the atlas a week before, and that it was an expensive edition that I got because I love maps. I turned the van around and headed back to the checkpoint. I told the agents that they had damaged a piece of my property during the search. The agent in charge said that there was nothing they could do about that. I told him that was not acceptable. Another agent stepped up and said there was a form we could file to get reimbursed for the damaged property. We waited another 20 minutes to get the form and for the agent to take down our information. Then we were off to L.A.
I felt dejected and powerless after this encounter with law enforcement. I always refuse searches as a matter of principal. Sure it would be easier to let them search the vehicle, but I have the right to refuse. These agents trampled on my rights and trampled on the Constitution. It takes courage and strength to stand up for freedom and civil liberties. It is tough, but I will continue to do the right thing. I will not allow the terrorists to win by letting our civil liberties be trounced on by overzealous law enforcement.
Before leaving the checkpoint, I gave the agents a Driving Equality pamphlet with the website address on it. I told them to check the site tonight because we’d be talking about them on the blog. The agents were not bad people, in fact, they were nice guys. They were just brainwashed into believing that safety is more important than freedom. If we give up our civil liberties, our freedom, then the terrorist win. If we are not free, then what are we fighting to protect?
I will be filing a report against the unconstitutional search. I don’t expect it to go anywhere, but I will do my duty as an American, and fight for freedom and our Constitution.
Here is the relevant Supreme Court decision (Almeida-Sanchez v. United States) that states:
Held: The warrantless search of petitioner’s automobile, made without probable cause or consent, violated the Fourth Amendment
Justice Stewart, in delivering the majority opinion of the court writes:
It is not enough to argue, as does the Government, that the problem of deterring unlawful entry by aliens across long expanses of national boundaries is a serious one. The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards. It is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials:
“These [Fourth Amendment rights], I protest, are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.”
Even in Carroll v. United States, the Supreme Court decision which gave police the right to search automobiles without a warrant, Justice Taft wrote:
It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But 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.
It is clear that my 4th Amendment rights were violated when the Border Patrol searched my vehicle without a warrant, consent, or probably cause.
Hey folks –
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p>I would love to hear from you on this one. David? Was the search legal? What to do about the fake “hit” from the drug-dog. I have been researching and it appears that the Border Patrol often uses the drug-dog as an excuse to search vehicles, but yet finds nothing in the cars. It seems to me the agents are lying about the dog’s alert in order to search the vehicle. What should I do here?
That’s what I always do after being harassed by the man.
Honestly, I don’t know. This area of law has gotten very complicated in recent years, riddled with exceptions and exceptions to the exceptions. It’s not my area of expertise, so I really can’t say.
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p>As for what to do, it seems like you could sue for a violation of your constitutional rights under 42 USC s. 1983. But even assuming that you can overcome the qualified immunity problem Ted notes below and win on the merits, you have the problem of proving damages. Not sure a torn map will get you all that much….
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p>That said, prevailing parties in civil rights cases often get attorney’s fees. But there’s even an exception to that rule in cases in which damages are minimal — if you only get nominal damages, you generally don’t get attorney’s fees.
then why not keep doing it? It’s odd that these searches are only a problem if the person is guilty, that is, actually posseses drugs or child pornography or illegal firearms or what have you, and the evidence thus seized can’t be used at trial. Innocent people subject to inconvenience, aggravation, and/or humiliation at the whim of overzealous law enforcement officers have little recourse besides an expensive, time-consuming, and potentially futile lawsuit.
Looks like the 4th Amendment is heading for expiration, one “exception” at a time. If you ask me, you should be able to physically restrain and/or assault anybody conducting an unconstitutional search of your house, car, or person. That kind of self-defense should be just as legal as shooting an armed intruder. Now that would be an interesting test case.
“Acting suspiciously”, my ass.
Here is the ACLU fact sheet on these Border Patrol searches.
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p>I have had to stop for one of these, too, in the desert about 50 miles from Tucson. My father-in-law, a Canadian, was in the car and wasn’t carrying his passport. But the agent saw that we were white and waived us through. Not that I’m sorry we weren’t stopped, but…
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p>You can sue the officers who stopped you, but my totally back-of-the envelope prediction is that even if you prove that they violated your Fourth Amendment rights, you won’t be able to recover any damages, because the court will hold that the officers are protected under the doctrine of qualified immunity. On the other hand, you’re in the Ninth Circuit, so who knows?
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p>TedF
If the search was obviously illegal under clearly-established law, the officers would not be protected by qualified immunity. As I said above, though, I don’t know enough about this area of law to have any opinion as to whether that was the case.
Yeah, I know. But the ACLU factsheet suggests to me that there isn’t much law out there condemning these searches, so the odds have got to be pretty steep.
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p>TedF
A lot of the folks over there are pretty activist and may take up your cause in some productive fashion, or, short of that, help you expose the abuse of your rights. Geez. What a shame.
We promised change but the public was short-changed. As we discuss this our fearless leader now proposes to sign a Executive Order for unlimited dentention and with this coming to pass, next time, Chrissmason might be stopped and never seen again.
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p>We’ve been hemmoraging our rights for years. The Border Patrol is settled into this. (The map shows you’ve got no rights in New England) So, just don’t drive while gay, black, brown, female, straight, male, white, progressive, libertarian, veteran… (Wait a minute!)
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p>What would happen if all the groups that seek their own civil rights were to join together and instead of being considered pesky nuisances became a force of freedom for all? Nah!, it won’t happen…
I completely agree with you
The Border Patrol Agents were building probable cause. The activity during the “pat” frisk was accomplishing the same thing. Just another hour in a boring day in a boring job, for the Border Patrol folks. This was likely the highlight of the day and allowed for hilarity over cold beer at the end of the day. Do you really think these people give a crap. They are just doing what they are ordered to do. It would just be far more sompler if they just opened the borders and allowed for a free flow of traffic. Sure would make for a day with a lot less hassles. Drink coffee—read the paper and watch traffic go by. Who wants to stand there in the hot sun and listen to someone whine about the 4th Amendment and Search & Seizure.
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p>BTW–read up on Federal law pursuant to US Customs and Border Patrol viz a vis search and seizure.
In other words, why would anyone ever encounter border patrol if they were not actually crossing the border?
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p>I get the whole “It’s the principle” argument, but if it were I, I probably would have just let them search and be done with it.
“Just stand beside your car and take your clothes off, or I’ll taser you again! I’ve got to put on these rubber gloves. Y’know, I just don’t like your kind…”
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p>He that would make his own liberty secure, must guard even his enemy from opposition; for if he violates this duty he establishes a precedent that will reach himself. ~Thomas Paine
I was talking about a vehicle search, not a strip search! Also, use of force or the threat thereof would also cause me to complain more loudly.
Maybe not today, but tomorrow? They keep expanding the “border” so that now it encompasses 2/3 of the population. You can be stopped and searched as you walk from your Beacon Hill townhouse or your Berkshire cottage.
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p>What are you going to do about it? Argue with the guy with the gun?
It seems to me the term “border” should mean exactly that – our land boundaries with Canada and Mexico, our ports of entry on the seacoasts, and our international terminals at airports. I’m not saying there’s not a concern; I’m just saying that in the particular instance described in the diary I personally would probably have just gone with it and let them discover for themselves that they were wasting their time.
If they have a goal to reach, they will reach that goal by hook or crook. Getting “bad” guys is just like giving out tickets. There are quotas.
Have you had a nasty run-in with law enforcement? Clearly I’m more willing to give them the benefit of the doubt than you are. Is there a way to avoid them? Even airport security basically says if you want to pass this way that constitutes consent to be searched. Do you object to routine baggage screening and metal detecting doorways too?
If you watch what passes for law enforcement and justice of the courts you could puke. While there are some police officers that would do Robert Peale proud, many are bullies and thugs. They all wear the same uniforms. Which is which? The DA’s and AG’s offices have some bright, honest people and then there are those that will manufacture a case and ruin their victim if they perceive it furthers their career. There are judges that find their reward in applying the principles of law – and those that are happy to wait for the bagman. Which are which? Any can destroy your life with little fear of justice for themselves.
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p>The Bill of Rights we had in the Constitution was a protection against government. Without it, the government is just Mafia.
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p>I avoid airport security all the time. I’ve flown once since 911 and saw the elderly being pushed around, the bureaucratic undie checkers barking orders. Won’t fly anymore. I don’t mind an administrative search, but draw the line at participating at the security theatre in the airports.
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I’m sure there are those who are a bit overzealous. It also seems like we can do better than reactive security (e.g. one guy figures out how to make a shoebomb, so now we all take off our shoes) Maybe there should be a civil liberties attorney posted at every security checkpoint whose job it is to monitor practices and come to the defense of anyone being overly harassed. Keep in mind, too that the Bill of Rights forbids “unreasonable” searches and seizures, but does not define unreasonable. One could certainly argue that it is completely reasonable to make sure dangerous items do not come on board the plane. Maybe the policies need to be tightened and better communicated, as well as the individual agents better scrutinized. I strongly suspect that the things you have witnessed are the function of individual inclination to be a bully on the part of the agents rather than reflective of official policy.
I’ve been searched quite a few times in my life, 3 times at the US-Mexico border, 2 times detained. None of these searches had any backing or reason.
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p>Being searched unconstitutionally is old news to many of us in this country. You’re lucky you had nothing to really hide. You’re lucky all they did was search your vehicle.
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p>No, it’s not fair. Welcome to America. You got searched like everyone else- isn’t that equality?
I didn’t read the entire post, but I saw that the author asserted several times that the search of the vehicle was unconstitutional because the search lacked consent and there was no warrant.
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p>A warrant is not necessary for a search of a vehicle. Any law school Criminal Procedure course devotes more time to constitutional searches without warrants than the standard constitutional search with a warrant. There is plenty online about the automobile exception to the search warrant requirement. So, if the basis of the unconstitutionality is that the search of the vehicle lacked a warrant, then you’re not applying the correct legal standard.
Law enforcement do not need a warrant to search a vehicle, but they do need consent from the driver or probably cause. next time, read the post.
I admit that I did not read the entire post because it was too long and boring. Certainly, absent consent, law enforcement needs probable cause to search a vehicle.
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p>If you don’t think the law enforcement had probable cause then file a lawsuit, request the police report. Just because you don’t think there was probable cause, doesn’t mean that probable cause didn’t exist.
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p>If law enforcement are using drug-sniffing dogs to fake hits and unconstitutionally search vehicles, then in your lawsuit you could subpoena which dog was used in your search, and the success rate of that dog in previous searches. The success rate of the dog will show if law enforcement is using the dogs simply as a way to search the vehicles or it will confirm the success rates of these dogs.
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p>Anyways, your post was just long whining. If you feel your rights were violated, take it to court to be compensated, and so the law enforcement agency doesn’t do it again to others.
http://www.newstribune.com/art…