Agents have broad discretion to pull over people for a secondary inspection
BY DAVID SOMMERSTEIN | NCPR
May 12, 2015 — The St. Lawrence County woman who videotaped an altercation with border patrol says Homeland Security agents visited her house while she was at her college graduation.
Jess Cooke of Ogdensburg posted a video on Facebook of what appears to be agents taking pictures of her car. The time stamp on the video, she says, coincides with when she was receiving her criminal justice degree from SUNY Canton on Saturday.
A U.S. Border Patrol spokesperson wouldn’t speak to the video of the agents. But she has acknowledged the initial incident during which border patrol agents tackled and apparently Tased Cooke during a roadside checkpoint on Route 37. Cooke’s video of the incident went viral after she posted it on Facebook. The Border Patrol says the investigation is ongoing.
Read the original story and watch Cooke’s video here.
NOTE: We are collecting your questions about U.S. Border Patrol’s roadside checkpoints to put to a legal expert on the matter. E-mail them to news-at-ncpr-dot-org.
UPDATE, 4:30pm: U.S. Customs and Border Protection has released an updated response to the Jess Cooke videotaped incident, in which it acknowledges an “electronic control device” was used during the stop. Here’s the complete statement:
U.S. Customs and Border Protection continues to investigate a report from the U.S. Border Patrol’s Swanton Sector about an altercation between an individual and two Border Patrol agents at a checkpoint Thursday. The altercation followed a brief verbal exchange between the individual and the two agents regarding their intent to inspect the vehicle. CBP investigators have analyzed the scene of the incident, are taking statements and have reached out to the individuals involved. Based on preliminary information from the investigation, one of the two agents deployed an electronic control device during the altercation. As standard procedure, Swanton Sector notified the DHS Office of Inspector General after the incident.
Questions Over Border Stops Inside the Border
The incident returns the controversial checkpoints to the spotlight and raises thorny questions about what law enforcement can and cannot do, and what people’s rights are when they’re stopped at a border patrol checkpoint on a road in the North Country.
Immigration law professor Rick Su of SUNY Buffalo says the U.S. Supreme Court ruled in 1976 that roadside checkpoints for determining immigration status are legal within 100 air miles of the international border. That includes all of the North Country, and almost all of New York State.
The U.S. Supreme Court has ruled federal agents have broad discretion to conduct checkpoints within 100 miles of the international border. Map via American Civil Liberties Union.
Su says agents have broad discretion to pull over people for a secondary inspection. “There have been cases where appearing nervous is enough reasonable suspicion to detain for further investigation, or to get a real search warrant,” says Su. That includes pulling over a motorist for a secondary inspection at a checkpoint.
“However,” Su continues, “it’s not sufficient enough at that point usually that that is enough to suggest that there is probable cause, that there is some sort of criminal activity that will be uncovered that will lead them to a full-on search.”
In other words, agents cannot insist a motorist open the vehicle’s trunk or submit to a search of the car, beyond a look inside the windows. Su says it remains a legal gray area to what extent a citizen has to cooperate with law enforcement at these checkpoints.
Su says how they’re being used can lead to a slippery slope of overapplication to issues beyond immigration, like drug interdiction, “that the federal government is, in some ways troublingly, using immigration checkpoints to enforce other areas of law enforcement, including the war on drugs.”
Following is a transcript of David Sommerstein’s conversation with Rick Su:
Rick Su: Technically, none of us are required to answer any questions, because we have the Fifth Amendment right to not incriminate ourselves. So we have the Fifth Amendment right to remain silent. But that doesn’t mean that the government necessarily has to accept that. They are allowed to, essentially, continue questioning to that extent until they are satisfied—at least with regard to immigration checkpoints—about your status to be legally present in the United States.
DS: So they can do something like pull you over for a secondary inspection as you go through these checkpoints.
RS: That’s right. Technically, you don’t even require any special reasonable suspicion to go to secondary; all that’s required is to say that more time is necessary in order to ascertain the immigration question.
DS: One of the big questions that came up in this video is that the officers said that she appeared to be nervous. Is that enough of a probable cause to move to the next step of asking to search the vehicle or open the trunk and stuff?
RS: So there’s different standards for actually just detaining someone versus actually conducting a search. There have been cases where appearing nervous at a checkpoint is enough reasonable suspicion to detain for further investigation, or to get a real search warrant. However, it is not sufficient at that point, usually, to say that that is enough to suggest that there is probable cause of criminal activity that would be a cover that would lead them to an actual full-on search. And I think it was clear in the video that they weren’t able to just search the car itself. They were going to call in some dogs to do so. They couldn’t open the trunk for example, unless they got consent from the individual.
DS: In fact, just last month there was a Supreme Court decision that rules that you can’ force somebody to wait around while they get a canine unit to come to sniff around the trunk—that you can’t wait for ten minutes or twenty minutes.
RS: So this is what’s interesting about this case and the recent Supreme Court decision. Essentially what that decision came down to was that if you are detaining someone for one reason, you can’t then continue to detain them for different reasons. So in that particular case, the individual was being stopped because of a traffic violation. And the court held that once all that business with the traffic violation is done, you can’t detain them even for a few mnutes in order to then do a subsequent search for let’s say a drug violation unless you had some other reasonable suspicion. And that’s what makes this case particularly interesting.
DS: This case—the second case you’re talking about—the video.
RS: That’s right—the video particularly interesting—is that the checkpoint itself and the exception that the Supreme Court has made is essentially for immigration violations. It’s an immigration checkpoint. But what it seems from the video is that the interest of the officials is not so much immigration at that point. It’s something else, maybe a drug violation, or other ordinary crimes that they were investigating for. And this believe actually sets up a very dangerous dichotomy between the exception that’s granted for immigration and the use of immigration checkpoints to do all sort of other law enforcement priorities.
DS: A lot of people have been asking me and asking each other, “what can I do?” “What are my rights?” We’ve talked about some of those things, what you have to say, and what you don’t have to say. But in a lot of situations, it just comes down to you and an officer with a weapon, and you’re out there on the road, and that’s the reality that you find yourself in.
RS: I think the problem is there is a routine that’s relatively simple, but what I’m afraid is that Customs and Border Patrol are starting to use these checkpoints beyond their intended goal. I think if it was part of the goal that the U.S. Supreme Court has set down for this very unique exception, it really should be relatively non-intrusive. Ask questions about identification, about residency, and, as long as they are satisfied that there is no reasonable suspicion, that there is an immigration violation, most people should be waved through. It should be a relatively quick check.
I think the problem is because the exception is so broad – it’s an exception that shouldn’t apply to most other areas of law enforcement – the federal government is, in some ways troublingly, using immigration checkpoints to enforce other areas of federal law, including the war on drugs.
DS: But let’s put it on its flip side. Some people would say that the problem here is a woman who is doing her very least to help the process move smoothly, that she could have been more cooperative and that she brought this on herself, that we should make an effort to answer the questions, rather than say, “am I free to go?” or “I don’t have to answer these questions.”
RS: I believe a certain degree is cooperation is necessary. To extent that we are interested in these issues, we are all in it together. But I think it’s important to realize that when we’re talking about the limits of constitutional rights, and we’re talking about who tests them, it’s often individuals who are willing to go a little bit further, who are willing to ask the questions that most of us are not willing to ask, and that is really ensuring and checking federal government authority in these cases, that they’re really on the right side of the law. So even if many of us agree I wouldn’t do that in that situation, I think it’s important that some people do, if only to clarify, as we are doing now, what those limits are, so that we are sure that they’re not being stepped beyond the boundaries that the Constitution requires.