I learned today, for the first time, that a private property owner does not have the right to keep the Border Patrol off his/her land, even if the B.P. has no search warrant.
According to today’s local legal newspaper, federal law (8 U.S.C. Section 1357) (digression: How do I make the “section” symbol?) allows Border Patrol agents to freely enter private property within 25 miles of the border, regardless of the property owner’s wishes.
They can also place hidden motion sensors on private land, again without permission. While property owners initially welcomed additional B.P. agents in the area – illegal immigrants were “dashing across their property in hordes” – it seems that the B.P. are worse than the illegals ever were.
I think the B.P. are basically a bunch of bullies. It rankles me to no end to have to stop at the searchpoint on Interstate 5 coming back up from San Diego. Dammit, I’m a United States citizen who has not left the country – I should not be forced to undergo scrutiny by the Border Patrol because I dared to visit another United States city a hundred or so miles south of me.
I’m not sure what the answer is – but this ain’t it!
Dave, Melin, surely you don’t think its unreasonable to assume that everyone within 25 miles of the border has a Mexican (or a Canuck, if your up north) hiding in their basement.
Although U.S. v. Brigoni-Ponce, 422 U.S. 873 (1975) appears to predate the entactment of 8 U.S.C. § 1375 by a few years, it also appears to stand for the proposition that the Fourth Amendment protects against such intrustion. “Assuming that Congress has the power to admit aliens on condition that they submit to reasonable questioning about their right to be in the country, such power cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens. The Fourth Amendment therefore forbids stopping persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens. Pp. 883-884.” A fioriti, Congress lacks the power to authorize intrusions on to private land, which involve a greater degree of infringement than automobile searches. See Carroll v. US, Chimel v. California, etc… all the standard auto/Fourth Amendment cases.
I can’t find either a circuit or Supreme ruling that directly addresses § 1357. But based on Brigoni-Ponce, I’m guessing it would fail the test.
By the way – hold down the Alt key and hit 21 on the number pad. Make sure the NUM LOCK light is on. Volia! §
2/2/2000: Melin and David B agree on something again. I have therefore begun to hoard food, toilet paper, Negras Modelos and porno videos for the ensuing Apocalypse.
I agree! I live in the San Diego area and must drive through these unconstitutional checkpoints almost every day. It amazes me that this is considered legal and that it has gone on so long without contest. To me, it falls right under that old “illegal search and siesure” thing, but then again, I’m not claiming to know alot of anything in that field. I’m simply saying that I believe my rights as a “Legal Citizen” ARE being violated. I contacted the A.C.L.U. concerning this, but never heard a reply.
I will say this though. It’s only a matter of time before the BP are slapped with a major lawsuit against them. Eventually they are going to try and bring their strongarm down on the wrong person.
Y’know, it doesn’t make for nearly as good drama to admit this, but I’m willing to bet that David and I agree on a lot of stuff. We just tend to argue vociferously when we disagree. I don’t THINK we’re siblings . . . .
Actually, unless someone has the guts to try to tackle getting a declaratory judgement now, this pracetice will probably continue until they seize some contraband by vritue of being “legally” in a position to see it, and invoke the plain view doctrine to admit it… and the constitutionality of 1357 will be litigated over a suppression motion… not the best ground for it, although it theoretically shouldn’t matter.
I think the Border Patrol has the right to cross your land and search it for suspected contraband, or even take it over, with due cause, under a similar law of Eminent Domain. The reasoning is that it is for the Pubic Good.
I think the BP has a dangerous and thankless job. I also think they should have more funding and better training.
To handle yourself, use your head. To handle others, use your heart. unknown
This certainly seems extreme. Is the definition of “private property” here restricted to outdoor land or does it include dwellings and other buildings? If so, the Border Patrol would have the theoretical right to go inside any home in San Diego, El Paso, Detroit, or Buffalo (or several hundred other towns) without a warrant.
All gates on ranches around these here parts have at least two locks on them–the property owner’s lock and the Border Patrol’s lock.
It was explained to me by a local peace officer that in Trans-Pecos Texas (and presumably, other places with a similar geography), the “functional border” does not extend just 25 mi north of the Rio Grande, but all the way up to the first major crossroads! The border senso strictu is about 80 miles south of where I live. The border patrol checkpoint is only 20 miles south of where I live–that’s a 60 mile wide “functional border”.
It was also explained to me (by same said peace officer) that within the “functional” border, the law does not require Probable Cause (a right that the rest of you lucky bastards enjoy), but “Reasonable Suspicion”! Which means: single, long-haired male travelling alone? Wouldja please shut off yer engine and step out of the car, sir? Except BP agents rarely say “Please”. Fortunately for civil libertarians everywhere, a local court did recently throw out a BP Marijuana arrest on the grounds of it being the result of an illegal search. The BP agent claimed that he became suspicious when the driver of the car, while passing, did not make eye contact with him!
And–at night–they wait on the side of the road facing traffic. As you approach the unseen car, they suddenly turn on their brights! When you pass, they usually pull in behind you–brights still on–and tailgate you for ten or so miles before finally either pulling you over (and sometimes making you wait for the dogs), or finding a new victim to harass.
And THEN there’s the time the Marines were helping 'em out back in '97. Shot dead an 18-year old goatherder down in Redford who was tending the family livestock and shooting at rabbits with his .22! (The Marine was, of course, acquited, although the Texas Rangers continue to investigate.)
I gotta million of 'em. BP agents are mostly thugs who don’t give a rat’s ass about your constitutional rights. And they’ll tell you so. (Although I have known a couple of decent ones…)
