The Department of Homeland Security (DHS) operates some 170 constitutionally questionable internal checkpoints across the country. Some of these checkpoints were set up on a “temporary” or “tactical” basis and yet have remained in place for years. They are staffed by Customs and Border Protection agents and operate like typical border checkpoints. But they aren’t located on U.S. border crossings.
DHS has claimed the authority to set up checkpoints located as far away as 100 miles from the actual U.S. border. That means millions of U.S. citizens who travel within 100 miles of the border – and who aren’t coming from or going to Mexico, Canada, or any other foreign country – can be hassled for documentation and subjected to intrusive questioning and vehicle searches. Along with possible detainment or arrest for non-compliance.
The U.S. Supreme Court case United States vs. Martinez-Fuerte gives the government the legal ability to run these inland checkpoints. That same case also recognizes the constitutional right of citizens to be free from unreasonable searches. “Checkpoint searches are constitutional only if justified by consent or probable cause to search,” according to the Court.
Legal and Illegal Searches of Your Car
If there is no probable cause for a federal agent to suspect you of criminal activity and you do not consent to a search, then no search of your vehicle or person can legally take place. But border agents aren’t obliged to inform you of your rights. They may pose intrusive questions and act as if your compliance with their requests is mandatory even though it’s not. Most people simply comply.
But an increasing number of privacy-conscious Americans are refusing to be treated like foreigners in their own country. Some are posting personal video recordings of their checkpoint encounters on the Internet.
The responses of checkpoint agents vary. Some calmly let people who assert their rights pass through. Other agents become agitated, even aggressive or threatening.
Yes, there are risks to asserting your constitutional rights to federal agents. But if you are polite and calmly reference the right to refuse consent to searches, as affirmed specifically by Martinez-Fuerte, you are likely to avoid being searched or detained.
Technically, you don’t even have to respond to any questions posed to you at a security checkpoint that isn’t located at a border crossing. If asked, “Are you a U.S. citizen?” you can legally refuse to answer.
You can turn the tables on border agents by asking, “Am I being detained?” If the answer is no, then you are free to go.
But you will likely get through with less of an ordeal if you affirm your U.S. citizenship and present your driver’s license/Passport. That’s all the information the Border Patrol agent needs to verify that you aren’t a foreign national. At that point, you can confidently assert your right to remain silent when probed with any further questions.
Caution! Crossing the Border Means Giving Up
Some of Your Constitutional Rights
It must be cautioned that different rules apply when you are attempting to leave or enter the U.S. at the U.S. border or an airport. Basically, you have no Fourth Amendment protections against searches in such situations. You are deemed to “consent” to searches by traveling out of the country. That means border agents may rummage through your vehicle and even browse the contents of your cell phone or laptop computer – all without needing a search warrant.
According to the American Civil Liberties Union, “U.S. Customs and Border Protection (CBP) claims the right to search and confiscate laptops, mobile phones, digital cameras, and other electronic devices upon entry to the United States, without any suspicion of wrongdoing. In some reported cases, CBP has held travelers’ electronics for more than a year.”
And according to Flex Your Rights, “If agents have reasonable suspicion to believe you’re concealing contraband, they may search your body using pat-down, strip, body cavity, or involuntary x-ray searches.”
The onus is on you to avoid making border agents suspicious. You may decide it’s better to avoid border crossings altogether.