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.