December 3, 2012
Border officers from the U.S. Department of Homeland Security at an internal suspicionless checkpoint in New Mexico were shown last week that if they have no reasonable suspicion or probable cause, they can not deter occupants of a vehicle even if the person does not answer their questions.
A commercial truck driver was off duty in the sleeper berth when he was awakened by an officer at the checkpoint, which was nowhere near an international border. The driver, having dealt with the issue before, did not appreciate being woken up by cops once again. Federal Motor Carrier Safety Administration regulations dictate that every commercial driver must have a 10 hour off duty period to sleep between shifts, and is not to be disturbed. Any driver who violates these safety rules can be prosecuted. So why are federal law enforcement officers and police across the country in the habit and practice of waking up truckers illegally, when the federal rules were put in place to specifically maintain the safety of both commercial drivers and individual motorists? Federal agencies have completed studies on the danger of fatigue related big-rig crashes, thus enforcing extremely strict guidelines and logbook rules. [See also The Effect of Rest-Schedule Orientation on Sleep Quality of Commercial Drivers.]
The driver had two Texas troopers wake him up in 2010 when he was off duty sleeping and his co-driver pulled into a weigh station. The Texas Department of Public Safety officially admitted wrongdoing in that case, admonishing the two officers with ‘corrective action’ and ‘retraining provided’. The troopers are currently defendants in a federal lawsuit as a result of their acts.
In this case, a similar situation, a New Mexico border agent shouted through the window while standing on the truck, waking the sleeping person and demanding to know if he was a citizen. Once again, the driver recorded the entire interaction and refused to answer questions, rebuking both the officer and his supervisor for violating federal law.
Upon questioning the supervisor briefly claimed he was detaining the man, but upon being asked what crime he was being accused of, the supervisor quickly did a 180 degree turnabout and admitted that the man was free to go “now that we know that you’re a U.S. citizen.” However, note that the man never once answered any questions or said that he was a U.S. citizen. On what basis therefore, were the New Mexico officers claiming knowledge of his citizenship? Is it merely because he was white and speaks English? Does this mean that they racially profile? Because that is the exact opposite of their department’s own stated policy.
The reality is that Americans are not obligated to answer questions asked by border agents at suspcionless checkpoints regarding citizenship, “where they’re headed”, or anything else. Terry Bressi ofCheckpointUSA.org recently won over $200,000 in a federal lawsuit from Homeland Security. [Be sure to check out his youtube channel!]. Bressi points out on his blog that the border patrol themselves have answered questions in writing regarding internal checkpoints, and they admit the following:
“Q. 11. Am I required to answer the agent’s questions at the checkpoint?”
A. “No person can be required to give evidence that incriminates themselves – that is a constitutional right. Neither can any public official compel or coerce such a statement if the person being questioned refuses to give one voluntarily…”
Bressi also notes
Referring back to the first question, the Border Patrol admits an agent must believe the individual being interrogated is unlawfully in the United States. While operating away from the border or its functional equivalent, merely being suspicious is not enough of a legal basis to further a detention or interrogation. In fact, at an internal checkpoint, the Supreme Court ruled agents MUST have probable cause or consent in order to extend the detention or to search. If an agent diverts a vehicle to secondary for further scrutiny after asking the immigration question, that represents an extended detention and must be premised on probable cause:“Our prior cases have limited significantly the reach of this congressional authorization, requiring probable cause for any vehicle search in the interior and reasonable suspicion for inquiry stops by roving patrols. Our holding today, approving routine stops for brief questioning is confined to permanent checkpoints. We understand, of course, that neither longstanding congressional authorization nor widely prevailing practice justifies a constitutional violation” - U.S. v Martinez-Fuerte
“…We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search….And our holding today is limited to the type of stops described in this opinion. -[A]ny further detention…must be based on consent or probable cause.” – U.S. v Martinez-Fuerte
This article was posted: Monday, December 3, 2012 at 11:22 am