Privacy

by Tim Cushing


Filed Under:
4th amendment, border patrol, cbp, search



CBP Will Search You And Your Property If You're Paying Too Much Attention To An Agent. Or Too Little.

from the all-that-can-be-said-for-sure-is-the-CBP-is-going-to-be-performing-searches dept

There's a lot of talk about border security recently. Rather strangely, it involves CBP officers going without paychecks for an indefinite amount of time as government funding is held hostage in exchange for border wall/fence money.

Not that the CBP needs to remain near the wall/fence. It's able to hassle people within 100 miles of the border, which also includes international airports and has the capability to sweep up most of America's population. And that's just CBP officers. The CBP's drones are being lent out to anyone who wants to use one as far inland as they want to use it.

The CBP performs a whole lot of searches. Over the past couple of years, the CBP has vastly increased the number of electronic searches it performs, needing little more than "because it's there" to perform at least a surface scan of a device's contents. Deeper digging requires extra paperwork, but a staggering amount of exceptions to the Fourth Amendment apply at the borders which, as we noted earlier, covers far more than points of entry.

The ACLU's FOIA lawsuit has resulted in the production of a couple of lengthy documents from the CBP. These documents detail search procedures and the CBP's long list of justifications for performing these searches. There are 1,200 pages in the newly-released stash. 1,100 of them are the CBP's "Enforcement Law Course" [PDF]. The other 100 are a Powerpoint [PDF] containing "legal update training."

The CBP has studied every Fourth Amendment-related legal decision to compile a long list of things officers can use to predicate a warrantless search. This multi-jurisdictional paper chase results in the expected internal contradictions, resulting in the CBP being able to argue both sides of a flipped coin can give them permission to perform a search. Here's a quick summation of some of the documents' contents by Max Rivlin-Nadler of The Intercept.

[The CBP] can determine “whether the vehicle or its load looks unusual in some way,” or “whether the passengers appeared dirty.” If those descriptions don’t apply, they can assess “whether the persons inside the vehicle avoid looking at the agent,” or conversely, “whether the persons inside the vehicle are paying undue attention to the agent’s presence.” And if those don’t apply, they can simply determine that the car is in an area nearby the border and pull it over on that basis alone.

Being near a border is inherently suspicious, even if someone has only made the mistake of residing legally within 100 miles of a border or airport. That sucks for them since it means any trip out of town and onto a major highway could result in a fully "justified" search.

When Border Patrol officers aren't claiming their dogs can detect smuggled humans in moving vehicles dozens of feet away, they're saying whatever comes to mind to justify a search they've already performed. A much longer list of search predicates -- culled from hundreds of legal decisions all over the nation -- is contained in the documents.

(1) whether the vehicle is close to the border;
(2) whether the vehicle is on a known smuggling route;
(3) whether the vehicle’s presence is inconsistent with the local traffic patterns;
(4) whether the vehicle could have been trying to avoid a checkpoint;
(5) whether the vehicle appears to be heavily laden;
(6) whether the vehicle is from out of the area;
(7) whether the vehicle or its load looks unusual in some way;
(8) whether the vehicle is of a sort often favored by smugglers;
(9) whether the vehicle appears to have been altered or modified;
(10) whether the cargo area in the vehicle is covered;
(11) the time of day or night at which the vehicle is spotted, and whether it corresponds to a shift change;
(12) whether the vehicle is being driven in an erratic or unsafe manner;
(13) whether the vehicle appears to be traveling in tandem with another vehicle;
(14) whether the vehicle looks as if it has recently been driven off road;
(15) whether the persons inside the vehicle avoid looking at the agent;
(16) whether the persons inside the vehicle are paying undue attention to the agent’s presence;
(17) whether the persons in the vehicle tried to avoid being seen or exhibited other unusual behavior;
(18) whether the driver slowed down after seeing the agent;
(19) whether the passengers appeared dirty;
(20) whether there is intelligence available that suggests that smuggling will occur in the area or by a specific vehicle; and
(21) whether the vehicle is coming from an area of a sensor alert.

Heads, the CBP wins. Tails, citizens and visitors lose.

As this chart shows, a whole lot of searching can be performed under the "Border Exception." Things and people that have crossed a border tend not to require probable cause or warrants to be searched.

The CBP is going to perform a search. That's pretty much all there is to it. The only thing limiting it is hours in the day. The courts aren't helping either. They've been lulled to sleep with statements about "border integrity" and "national security," becoming complicit in a unilateral removal of rights for anyone in the areas the CBP is allowed to roam.

There's no upside here. The steady deterioration of rights near the border will continue. There hasn't been a presidential administration yet willing to put an end to the DHS's mission creep. And it really doesn't matter how well the CBP knows its Fourth Amendment caselaw. It will still be granted good faith exceptions for searches that somehow manage to implicate what's left of the Fourth Amendment because protecting the nation is somehow more important than protecting the rights of its citizens.


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  • identicon
    Anonymous Coward, 11 Jan 2019 @ 11:06am

    Where's "paying a suspiciously non-conspicuous amount of attention to an agent?"

    I mean, obviously, if word gets out that paying too much attention or not paying enough attention are both red flags, bad actors will aim for somewhere in the middle, so that's where CBP should focus their attention.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Hero, 11 Jan 2019 @ 11:23am

    This is why I typically like to pay the correct amount of attention to CBP.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 11 Jan 2019 @ 1:22pm

      Re:

      Yes, you wouldn't want to pay too little attention or they'll feel slighted and you don't want to pay too much attention because then they'll think there is more to be had.

      Paying the proper amount of attention is an art worth, well, your attention when having to reside in a country with thoroughly corrupt government.

      reply to this | link to this | view in chronology ]

      • identicon
        Pixelation, 11 Jan 2019 @ 4:26pm

        Re: Re:

        I wonder what their guidelines are if you ask them on a date. Is that the right amount of attention?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Jan 2019 @ 8:16pm

          Re: Re: Re:

          Excuse me, did you just assume the right amount of attention? Or the intention of the CBS to go with you on a date? You do not go on a date with the CBS, the CBS goes on a date with you - and the CBS probes your ass on the first date!

          reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 11 Jan 2019 @ 11:33am

    Can this be used in a court of law?

    Aa Habeas corpus appeal depends on the court being able to demonstrate its legitimacy and the legitmacy of a given imprisonment. That the public is supposed to have protections against bad faith of a given state institution, such as the courts or the Department of Justice.

    If one can present in court evidence that the policy of an institution allows agents to use conflicting, overlapping justifications to violate the rights of an individual, that would demonstrate bad faith of the institution. An upstanding court of law would be obligated to dismiss cases presented by that institution, as is consistent with the one lie rule regarding witness testimony. Is that right?

    Protections such as this are (as far as I know) considered essential in order to establish the US and individual states as open or free, that is states in which the rights to life and liberty are preserved.

    If we're not doing that, can we go ahead and stop pretending the United States is no longer free? Can we admit that interest in life and liberty of the people has been superseded by interest in preservation of government institutions, regardless of whether or not they serve the public? Can we now admit that we are too afraid of (alleged) terrorists and criminals to value rule of law or human rights?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Jan 2019 @ 12:17pm

      Re: Can this be used in a court of law?

      Hint, the potential terrorists, and criminals are doing far less damage to our rights and freedoms than the government agencies stealing our data, violating our rights and criminalizing more and more every day without oversight. Don't forget that the NSA has been around long enough to have accidentally sucked up the blackmail info on most of the current senators and congressmen and the last few presidents. The government is benefitting itself over its populace which means it has to be replaced.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Jan 2019 @ 12:00pm

    It's surprising that neither a person's race nor English proficiency are on that list. To a typical agent assigned to the Mexican border area, both would seem like determining factors that would automatically warrant additional suspicion. Or maybe it's the sort of thing that every border agent knows to be true but can't ever admit to or dare put in writing.

    reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 11 Jan 2019 @ 1:39pm

      Re:

      I got pulled over into secondary inspection at a California border checkpoint last year and I'm as white as Elizabeth Warren.

      They said they wanted to search my vehicle (late 90s Toyota 4Runner) because they said it's a model popular with the cartels.

      I showed them my federal badge (because I had my duty weapon in the vehicle) and they apologized told me I was free to go.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Jan 2019 @ 2:09pm

        Re: Re:

        I got pulled over into secondary inspection at a California border checkpoint last year and I'm as white as Elizabeth Warren.

        With that much Cherokee in your ancestry, it's no wonder they flagged you. ;)

        reply to this | link to this | view in chronology ]

      • identicon
        Pixelation, 11 Jan 2019 @ 4:27pm

        Re: Re:

        "I showed them my federal badge (because I had my duty weapon in the vehicle) and they apologized told me I was free to go."

        How many kilos did you manage to smuggle through?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Jan 2019 @ 7:07am

        Re: Re:

        "I showed them my federal badge"

        Sorry to hear you are not being paid for the work you have performed.

        reply to this | link to this | view in chronology ]

  • icon
    stderric (profile), 11 Jan 2019 @ 12:46pm

    The CBP has studied every Fourth Amendment-related legal decision to compile a long list of things officers can use to predicate a warrantless search.

    Gotta admit that LEAs have a pretty tough balancing act to perform here: it must be hard to train agents & officers to know every little legal pretext to perform a search while, at the same time, making sure that they're so ignorant of the law that good-faith exceptions and qualified immunity will always kick in when needed.

    reply to this | link to this | view in chronology ]

    • icon
      stderric (profile), 11 Jan 2019 @ 1:11pm

      Re:

      (20) whether there is intelligence available that suggests that smuggling will occur in the area

      Isn't this really kind of a wildcard/catchall that could be used for everything? Wouldn't this let the CBP argue that their presence in an area, by its very nature, means that they believe smuggling will/may occur?

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 11 Jan 2019 @ 5:17pm

      Re:

      Not difficult at all, just because they may technically know that what they do has been ruled illegal doesn't mean they have to admit that they knew.

      So long as they violate the law differently each time all they have to do is lie and claim that they had no idea that what they did was prohibited and presto, the legal abominations of good-faith exception/qualified immunity applies.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jan 2019 @ 7:10am

      Re:

      "pretty tough balancing act to perform here"

      This type of activity is usually associated, in my mind anyway, with scams. They try to find rip offs that are not illegal and get all upset when called out.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Jan 2019 @ 1:28pm

    Knowing that Disneyland is within the 100 mile constitution free zone, I always encrypt and reset my smartphone several days before going, so CBP will have no clue that I ever did it.

    Some smartphone models to have encryption such where when the phone is reset, the decryption key to the data that is still there is lost, and the data becomes unrecoverable.

    I do it a few days ahead of time, so there is no way they ever get any proof for prosecution under Sarbanes Oxley. I do it about week or so before I leave, so it will be harder for CBP/ICE to prove anything.

    I also do it few days ahead of time, to give me time to reinstall most of my apps, but do not install any social media, or log on to YouTube.

    This also gives time for some call log to appear, so it would not be so obvious that I wiped the phone, in case I am ever pulled over anywhere by ICE or CBP, or the checkpoint on I-5 near San Clemente is open, shuold I decide to go to San Diego.

    I don't log on to my YouTube account anyway, from my phone, becuase the ad blocking app does not block ads while I am logged in, but if I log out, all pre-roll videos ads are blocked.

    Having to endure two ads in a row is very irritating when I am driving, and cannot hit Skip Ad in the app, so I make sure to have a good ad blocking app on my phone so I have listen to my favourite tunes on YouTube without having to endure their annoying pre-roll adds.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 11 Jan 2019 @ 2:56pm

      Re:

      Knowing that Disneyland is within the 100 mile constitution free zone, I always encrypt and reset my smartphone several days before going, so CBP will have no clue that I ever did it. [...]

      Having to endure two ads in a row is very irritating when I am driving, and cannot hit Skip Ad in the app, so I make sure to have a good ad blocking app on my phone so I have listen to my favourite tunes on YouTube without having to endure their annoying pre-roll adds.

      Let me guess: "The Land of the Free and the Home of the Brave" is not in your short list. It would probably draw suspicion.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Jan 2019 @ 11:04pm

      Re:

      i expected one of these lectures as soon as i saw the aticle title. i am somehiw never disappointed.

      reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 11 Jan 2019 @ 1:34pm

    Question

    So all the talk about the "constitution-free" and "4th Amendment free" 100-mile zone always seems to center around either vehicles or electronic devices.

    Does this legal principle also apply to homes? There are plenty of private residences that fall within that 100-miles zone (*cough*entire states of Hawaii and Florida*cough*). Can CBP and ICE also just show up to someone's home and search it without a warrant? Or is this just limited to cars and iPads?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 11 Jan 2019 @ 5:22pm

      Re: Question

      If they haven't tried that one in court yet I imagine it's only a matter of time. When you argue, and courts accept, that there are parts of the country that certain constitutional rights simply don't apply in it's all but inevitable that the list of which rights don't apply will grow as more and more (effectively unchecked) power is sought.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jan 2019 @ 7:13am

      Re: Question

      With the government shut down, they will prob want to quarter soldiers in your homes.

      reply to this | link to this | view in chronology ]

  • icon
    discordian_eris (profile), 11 Jan 2019 @ 1:56pm

    What bothers me most is not the fact that law enforcement is corrupt (by design apparently), it is the fact that the courts are just as corrupt. All the way up to the supreme court.

    Every time LEOs need an out, the courts provide one. Cops don't need to know the laws they enforce. Cops don't need to know that they aren't supposed to violate the constitution. At both the federal and state level they have an easy out, created by the courts just for them. They just have to claim that their illegal and/or unconstitutional behaviour was made in good faith. (We all know, and the record supports, that they'll lie their asses off to accomplish this.) Between good faith and qualified immunity, they can do almost anything. And with the collusion of prosecutors (at all levels) they can literally get away with murder. Hell, they can get away with almost anything.

    At this point, there probably isn't much anyone can do about it. Hell, we have two sex offenders on the Supreme Court as it is. Republicans will put in anyone who hates abortion and goes along with the fictional crap the corporations are people. Democrats will put in anyone who supports abortion rights. The only thing that really separates them at this point is that at least the Dems don't support sexual predators in the judiciary.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Jan 2019 @ 3:38pm

    Goldilocks and Jerry Lee Lewis

    spring to mind here. There's a whole lot of searchin' goin' on, AND we need to pay exactly the "just right" amount of attention. I note that they haven't (yet) covered "vehicle appears too lightly laden".

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 11 Jan 2019 @ 5:27pm

    'Oh look, another case that said we can do anything...'

    There hasn't been a presidential administration yet willing to put an end to the DHS's mission creep. And it really doesn't matter how well the CBP knows its Fourth Amendment caselaw.

    Unfortunately I suspect that they have been paying attention to fourth amendment cases, in particular the repeated rulings where gutless and spineless judges see violations of it(and other rights) and not only look the other way but support those violations, since doing otherwise would force them to tell a government employee/agency 'no', something they are too cowardly to do.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2019 @ 3:35am

    Visualized attention scale for law enforcement.

    |---------------| |-----------------|
    ^ ^ ^
    A B C

    A: Too little attention paid: Everything allowed.

    B: Juuust right. No one knows exactly what this is. AKA the "Man this person looks dirty" zone: Everything allowed.

    C: Too much attention paid: Everything allowed.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jan 2019 @ 3:37am

      Re: Visualized attention scale for law enforcement.

      Damn it TD... My fancy scale I spent hours on is ruined :(

      reply to this | link to this | view in chronology ]

      • icon
        Coyne Tibbets (profile), 12 Jan 2019 @ 7:00pm

        Re: Re: Visualized attention scale for law enforcement.

        It's just as well. You had the sweet spot center gap way too wide anyway. You just can't represent angstrom widths in this medium.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 Jan 2019 @ 4:38am

          Re: Re: Re: Visualized attention scale for law enforcement.

          Nahh they can pretty much fill it in with whatever reason they wish which is why I found the looking "dirty" reason so funny... it is even more subjective than the others.
          Also I changed my mind and decided that scale is probably accurate... in a law enforcement handbook it could very well look like that because no one would really pay attention to it since it is not really needed for them.

          reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 12 Jan 2019 @ 12:06pm

    CBP stop and search rules, annotated

    (1) whether the vehicle is close to the border; ["close" as with nuclear explosions, "border" as in the nearest collie]
    (2) whether the vehicle is on a known smuggling route; [as defined by having had one smuggler in the last century]
    (3) whether the vehicle’s presence is inconsistent with the local traffic patterns; [driving faster, driving slower, driving the speed limit]
    (4) whether the vehicle could have been trying to avoid a checkpoint; [turned off the interstate somewhere between Denver and the Texas border]
    (5) whether the vehicle appears to be heavily laden; [loaded with anything the agent couldn't carry with one hand]
    (6) whether the vehicle is from out of the area; [out of the area being anywhere over the horizon]
    (7) whether the vehicle or its load looks unusual in some way; [exceptionally dirty, exceptionally clean, attempting to look like in between]
    (8) whether the vehicle is of a sort often favored by smugglers; [includes planes, trains, automobiles, trucks, motorcycles, and covered wagons]
    (9) whether the vehicle appears to have been altered or modified; [stickers count, so do license plates and dashboard hula dolls]
    (10) whether the cargo area in the vehicle is covered; [covered in canvas, cargo topper, paint, whatever]
    (11) the time of day or night at which the vehicle is spotted, and whether it corresponds to a shift change; [whether the time is day or night, and if the vehicle shifts gears]
    (12) whether the vehicle is being driven in an erratic or unsafe manner; [which, thanks to manufacturers, is any speed above 20 MPH]
    (13) whether the vehicle appears to be traveling in tandem with another vehicle; [rush hour is the best time to to find this, when the cars are bumper-to-bumper]
    (14) whether the vehicle looks as if it has recently been driven off road; [like if it was driven in a driveway, for example; i.e., all vehicles]
    (15) whether the persons inside the vehicle avoid looking at the agent; [applies to ugly agents]
    (16) whether the persons inside the vehicle are paying undue attention to the agent’s presence; [applies to cute agents]
    (17) whether the persons in the vehicle tried to avoid being seen or exhibited other unusual behavior; [for example, if they're hiding their nudity under clothing, or are wet from the shower]
    (18) whether the driver slowed down after seeing the agent; [best for the agent to stand near a stop sign]
    (19) whether the passengers appeared dirty; [i.e., not wet from the shower]
    (20) whether there is intelligence available that suggests that smuggling will occur in the area or by a specific vehicle; [even if that is a different vehicle than the one being stopped] and
    (21) whether the vehicle is coming from an area of a sensor alert. [the same sensors that go off all the time for no reason]

    "Remember, only you can search anyone, anytime, anywhere."

    reply to this | link to this | view in chronology ]


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