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John-Henry Hill, M.D., Ph.D. shared this post via CopBlock.org’s submit page.
Are You Required To Show ID or Answer Questions To Police and Other Government Agents Upon Demand?
John-Henry Hill, M.D., Ph.D.
October 9, 2013
“They must find it difficult, those who have taken authority as truth, rather than truth as authority.” – Gerald Massey
“He, who would be deceived, let him.” – ancient Roman maxim of law
“We have people in government who should not be allowed to play with matches.” — Will Rogers
*********************
“It has long been established that the loss of constitutional
freedoms, “for even minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality
opinion) (citing New York Times Co. v. United States, 403 U.S. 713
(1971)).” — CANEISHA MILLS, ET AL., v. DISTRICT OF COLUMBIA, No.
08-7127, U.S. Court of Appeals for the District of Columbia, July 10,
2009
*********************
Are You Required To Show ID or Answer Questions To Police and Other Government Agents Upon Demand?
For showing an ID: The answer is NO, except ONLY under extremely
limited circumstances (detention with “reasonable, articulable
suspicion” during a Terry stop” OR when being detained under “probable
cause” for the commission of a crime.
For answering questions: Absolutely NO, NEVER! You are NOT required
to answer any questions or to speak at all. (Further, you are NOT
required to take any “tests” – such as a so-called “field sobriety test”
re: alcohol consumption or an “alcohol breath analyzer test.” Further,
you can NOT be punished for your refusal. However, the U.S. Supreme
Court recently ruled that you are required to clearly and explicitly
state that you “invoke your right to remain silent”, your “5th Amendment
guarantee against self-incrimination, or words to that effect.
Below are some U.S. Supreme Court decisions which affirm your right
to NOT show an ID (or otherwise identify yourself) or answer any
questions.
”Texas may not criminalize by statute or practice conduct that is
Constitutionally protected. — Coates v. Cincinnati, 402 U.S. 611, 616
(1971)
21. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) “a
statute which serves as “merely the cloak” for arrests which would not
otherwise be lawful is a pernicious affront to the Fourth Amendment and
cannot be upheld”
“Where rights as secured by the Constitution are involved, there can
be no rule making or legislation which will abrogate them.” Miranda v.
Ariz., 384 U.S. 436 at 491 (1966).
Thus: All State, county, city or town STATUTES (regulations,
ordinances, procedure/practice, etc), that “criminalize” a
Constitutionally-protected right, are VOID and of NO LEGAL FORCE !!!!!!
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) the Fifth Amendment “not
only protects the individual against being involuntarily called as a
witness against himself in a criminal prosecution, but also privileges
him not to answer official questions put to him in any other proceeding,
civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Some Constitutional protections and U.S. Supreme Court rulings on the matter.
Brown v. Texas, 443 U.S. 47 (1979)
In 1979, the U.S. Supreme Court ruled on Brown v. Texas, a case where a
man in Texas refused to show police ID because there was no probable
cause. The court noted “he was arrested for violation of Tex.Penal Code
Ann., Tit. 8, § 38.02(a) (1974), which makes it a criminal act for a
person to refuse to give his name and address to an officer “who has
lawfully stopped him and requested the information.” However, the court
reversed his conviction:
[Even if there is a STATE statute, Police need “reasonable suspicion” BEFORE they can demand you show ID or identify yourself.]
“Held: The application of the Texas statute to detain appellant and
require him to identify himself violated the Fourth Amendment because
the officers lacked any reasonable suspicion to believe that appellant
was engaged or had engaged in criminal conduct. Detaining appellant to
require him to identify himself constituted a seizure of his person
subject to the requirement of the Fourth Amendment that the seizure be
“reasonable.” Cf. Terry v. Ohio, 392 U. S. 1; United States v.
Brignoni-Ponce, 422 U. S. 873. The Fourth Amendment requires that such a
seizure be based on specific, objective facts indicating that society’s
legitimate interests require such action, or that the seizure be
carried out pursuant to a plan embodying explicit, neutral limitations
on the conduct of individual officers. Delaware v. Prouse, 440 U. S.
648. Here, the State does not contend that appellant was stopped
pursuant to a practice embodying neutral criteria, and the officers’
actions were not justified on the ground that they had a reasonable
suspicion, based on objective facts, that he was involved in criminal
activity. Absent any basis for suspecting appellant of misconduct, the
balance between the public interest in crime prevention and appellant’s
right to personal security and privacy tilts in favor of freedom from
police interference.”
The court concluded “The application of Tex.Penal Code Ann., Tit. 8,
§ 38.02 (1974), to detain appellant and require him to identify
himself violated the Fourth Amendment because the officers lacked any
reasonable suspicion to believe appellant was engaged or had engaged in
criminal conduct. Accordingly, appellant may not be punished for
refusing to identify himself, and the conviction is Reversed.” Brown v.
Texas, 443 U.S. 47 (1979)
Berkemer v. McCarty, 468 U.S. 420 (1984) an individual stopped
pursuant to Terry is not “in custody” for purposes of Miranda v.
Arizona, 384 U.S. 436 (1966), precisely because the individual remains
free to ignore or otherwise decline to respond to an officer’s
questions.
Florida v. Royer, 460 U.S. 491, 500 (1983) “The person approached,
however, need not answer any questions put to him; indeed, he may
decline to listen to the questions at all and may go on his way” Id. at
497-98.
[http://supreme.justia.com/cases/federal/us/443/47/case.html.]
Terry v. Ohio, 392 U.S. 1 (1968)
In the 1968 case of Terry v. Ohio, the Court held that police could
“stop and frisk” a suspect on “reasonable suspicion” that he had already
committed, or was about to commit, a crime.
The right of privacy may not be intruded upon by the government
absent probable cause, see Dunnaway v. New York, 442 U.S. 200, 208
(1979); indeed, it is the probable cause requirement that “safeguard[s]
citizens from rash and unreasonable interferences with [their] privacy.”
Brinegar v. United States, 338 U.S. 160, 176 (1949).
Florida v. Royer, 460 U.S. 491, 500 (1983) “The person approached,
however, need not answer any questions put to him; indeed, he may
decline to listen to the questions at all and may go on his way” Id. at
497-98.
Illinois v. Wardlow, 528 U.S. 119, 125 (2000)
“If they do not learn facts rising to the level of probable cause, an individual must be allowed to go on his way.”
Brinegar v. United States – 338 U.S. 160 (1949) “The citizen who has
given no good cause for believing he is engaged in [criminal] activity
is entitled to proceed on his way without interference” (Page 338 U. S.
177)
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
CONSTITUTIONAL PROTECTIONS FROM WARRANTLESS SEARCHES AND COMPULSORY ID
1. In this case, there were no “exigent circumstances”, there was no
“reasonable suspicion” that a crime had been committed or was about to
occur; (1968 case of Terry v. Ohio) There were no grounds for a
warrantless search or arrest, detainment, Terry stop, or for a demand
for ID. Brown v. Texas 1979 held that absent reasonable suspicion of
criminality, the police can not simply stop people and ask for their
names.
2. Brown v. Texas, 443 U.S. 47 (1979)
“Detaining appellant to require him to identify himself constituted a
seizure of his person subject to the requirement of the Fourth Amendment
that the seizure be “reasonable.” Cf. Terry v. Ohio, 392 U. S. 1;
United States v. Brignoni-Ponce, 422 U. S. 873 (1975). The Fourth
Amendment requires that such a seizure be based on specific, objective
facts indicating that society’s legitimate interests require such
action, or that the seizure be carried out pursuant to a plan embodying
explicit, neutral limitations on the conduct of individual officers.
Delaware v. Prouse, 440 U. S. 648. Here, the State does not contend that
appellant was stopped pursuant to a practice embodying neutral
criteria, and the officers’ actions were not justified on the ground
that they had a reasonable suspicion, based on objective facts, that he
was involved in criminal activity. Absent any basis for suspecting
appellant of misconduct, the balance between the public interest in
crime prevention and appellant’s right to personal security and privacy
tilts in favor of freedom from police interference.”
http://supreme.justia.com/cases/federal/us/443/47/case.html
3. Terry v. Ohio, 392 U.S. 1 (1968)
In the 1968 case of Terry v. Ohio, the Court held that police could
“stop and frisk” a suspect on “reasonable suspicion” that he had already
committed, or was about to commit, a crime.
4. Miranda v. Arizona – 384 U.S. 436 (1966)
https://supreme.justia.com/cases/federal/us/384/436/case.html
5. The right of privacy may not be intruded upon by the government
absent probable cause, see Dunnaway v. New York, 442 U.S. 200, 208
(1979); indeed, it is the probable cause requirement that “safeguard[s]
citizens from rash and unreasonable interferences with [their] privacy.”
Brinegar v. United States, 338 U.S. 160, 176 (1949).
6. United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975) The
government agents can not stop and search all vehicles; that is not
reasonable under the Fourth Amendment
7. The exception to the Fourth Amendment is an exceedingly narrow one, United States v. Place, 462 U.S. 696 (1983)
8. Florida v. Royer, 460 U.S. 491, 500 (1983) “The person approached,
however, need not answer any questions put to him; indeed, he may
decline to listen to the questions at all and may go on his way” Id. at
497-98.
9. Failure to observe these limits converts a Terry encounter into a
full-fledged arrest under the Fourth Amendment that can only be
justified by probable cause. Royer, 460 U.S. at 1325; Dunaway, 442 U.S.
at 216; Brignoni-Ponce, 422 U.S. at 881-82.
10. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) the Fifth Amendment
“not only protects the individual against being involuntarily called as a
witness against himself in a criminal prosecution, but also privileges
him not to answer official questions put to him in any other proceeding,
civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings”
11. Haynes v. United States, 390 U.S. 85, 97 (1968)
12. Illinois v. Wardlow, 528 U.S. 119, 125 (2000)
“If they do not learn facts rising to the level of probable cause, an individual must be allowed to go on his way.”
13. Brinegar v. United States – 338 U.S. 160 (1949) “The citizen who
has given no good cause for believing he is engaged in [criminal]
activity is entitled to proceed on his way without interference” (Page
338 U. S. 177)
14. Kolender v. Lawson, 461 U.S. 352, 369 (1983) probable cause, and
nothing less, represents the point at which the interests of law
enforcement justify subjecting an individual to any significant
intrusion beyond that sanctioned in Terry. See also Kolender, 461 U.S.
at 366-67 noting that states “cannot abridge this constitutional rule by
making it a crime to refuse to answer police questions during a Terry
encounter.”
15. Texas may not criminalize by statute or practice conduct that is
Constitutionally protected Coates v. Cincinnati, 402 U.S. 611, 616
(1971)
21. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) “a
statute which serves as “merely the cloak” for arrests which would not
otherwise be lawful is a pernicious affront to the Fourth Amendment and
cannot be upheld”
Thus: All State, county, city or town statutes (regulations,
ordinances, conduct, etc), that “criminalize” a
Constitutionally-protected right, are VOID and of NO LEGAL FORCE !!!!!!
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
16. Berkemer v. McCarty, 468 U.S. 420 (1984) an individual stopped
pursuant to Terry is not “in custody” for purposes of Miranda v.
Arizona, 384 U.S. 436 (1966), precisely because the individual remains
free to ignore or otherwise decline to respond to an officer’s
questions.
17. Michigan v. DeFillippo, 443 U.S. 31, 40 (1979)
18. Adams v. Williams, 407 U.S. 143 (1972)
19. Camara v. Municipal Court, 387 U.S. 523, 534-35 (1967)
20. United States v. Robinson, 414 U.S. 218, 227-28 (1973)
21. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) “a
statute which serves as “merely the cloak” for arrests which would not
otherwise be lawful is a pernicious affront to the Fourth Amendment and
cannot be upheld”
22. In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S.
177 (2004), The issue was whether someone who had been lawfully subject
to a Terry stop can also be required to provide his name to the police
officer who stopped him. The justices answered yes (5-4) but all nine
justices agreed that a person who is not behaving in a way that gives
rise to an articulable suspicion of criminality may not be required to
state his name or show identification. The Hiibel majority took care not
to disturb precedents like Brown v. Texas.
23. BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE IN SUPPORT OF PETITIONER, Hiibel v. Nevada No. 03-5554
http://www.aclu.org/files/FilesPDFs/hiibel.pdf
“Justice Brandeis famously observed that the Fourth Amendment to the
United States Constitution embodies an individual’s “right to be left
alone,”, an entitlement constituting the “most comprehensive of rights
and the right most valued by civilized men.” Olmstead v. United States,
227 U..S. 438, 478 (1928) (Brandeis, J., dissenting). The Supreme Court
has long held that the Fourth Amendment protects this “inestimable right
of personal security,” Terry v. Ohio, 392 U.S. 1, 8-9 (1968), by
prohibiting the search and seizure by the police of an individual’s
person in the absence of probable cause. Florida v. Royer, 460 U.S. 491,
498 (1983).
In Terry v. Ohio, 392 U.S. 1, 8-9 (1968), the Court recognized a
“limited exception to this general rule,” allowing a law enforcement
officer to briefly detain a person on the street based upon a reasonable
suspicion of criminal activity, and to frisk the person for concealed
weapons. See also United States v. Sokolow, 490 U.S. 1, 17 (1989).
“Because Terry represented a departure from the constitutional mandate
of probable cause, this Court has maintained it as a narrowly defined
exception defined solely by its underlying purpose. See Dunaway v. New
York, 442 U.S. 200, 207-09 (1979). Thus, while Terry allows a police
officer to “ask the detainee a moderate number of questions to determine
his identity and try to obtain information confirming or dispelling the
officer’s suspicions,” this Court has also held that the individual
detained “is not obliged to respond” to such questions, and must be
released unless his “answers provide the officer with probable cause to
arrest him.” Berkemer v. McCarty, 468 U.S. 420 (1984)
“The Fourth Amendment expresses the recognition that the power to
arrest is among the greatest intrusions on individual liberty; the
social, legal, and human consequences of this power have thus led the
court to refrain from unduly expanding the right of law enforcement
officers to demand compliance from individuals briefly detained pursuant
to the limited investigatory stops condoned in Terry.” Berkemer v.
McCarty, 468 U.S. 420 (1984)
…”a statute that compels self-identification, and thereby disregards
the Constitutionally significant distinction between reasonable
suspicion and probable cause, represents an unjustified expansion of
Terry and must be invalidated.” Berkemer v. McCarty, 468 U.S. 420 (1984)
+++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++++++++++++++++++++
USSC Rulings re:BORDER PATROL Fixed-Site, Suspicionless Internal Checkpoints (NOT on the international border)
U.S. v. Martinez-Fuerte (USSC) – MOST IMPTORTANT !!
“It is agreed that checkpoint stops are ‘seizures’ within the meaning
of the Fourth Amendment.” (U.S. v. Martinez-Fuerte) Supreme Court
required that these checkpoint seizures be limited to, “brief
questioning” to inquire into immigration status (U.S. v.
Martinez-Fuerte). Further, the courts have ruled that these checkpoints
cannot be “catch all” checkpoints, that operate looking for any and all
types of violations, but rather that they are limited to immigration
status. Border Patrol internal, fixed-site (permanent) suspicionless
checkpoints require the seizure to be brief and limited to inquiring
into immigration status. The Supreme Court stated that “[A]ny further
detention . . . must be based on consent or probable cause.” (U.S. v.
Martinez-Fuerte).
Indianapolis v. Edmond (USSC)
“A search or seizure is ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing.” (Indianapolis v. Edmond) In
other words, if a government agent has articulable “reasonable
suspicion” that a person has violated a law, they can seize that person
in order to begin an investigation.
Florida v. Bostick (USSC)
What questions are individuals required to answer at these Border
Patrol stops, if any? The answer is none. Cooperation during
suspicionless checkpoints is not required. Individuals have a right to
not answer questions, and there is no law that requires them to provide
any identification. Further, cooperation with an investigation/inquiry
is NOT required even in stops that are based on suspicion, so they are
most certainly not required in a stop where there is no suspicion of
wrongdoing. Still further, choosing not to cooperate with government
actors at a suspicionless checkpoint, cannot be used against you as a
basis for suspicion. The Supreme Court ruled, “We have consistently held
that a refusal to cooperate…does not furnish the minimal level of
objective justification needed for a detention or seizure.” (Florida v.
Bostick) The Fifth Circuit that holds jurisdiction over the checkpoint
in Uvalde, Texas agrees stating, “[I]t would make a mockery of the
reasonable suspicion and probable cause requirements if citizens’
insistence that searches and seizures be conducted in conformity with
constitutional norms could create the suspicion or cause that renders
their consent unnecessary.” (United States v. Machuca-Barrera, 5th Cir.
Appeals).
United States v. Machuca-Barrera (5th Appeals) – VERY IMPT !!
Fifth Circuit Court of Appeals (which has jurisdiction over the
checkpoint in Uvalde, Texas), a stop of “a couple of minutes” is “within
the permissible duration of an immigration checkpoint stop (United
States v. Machuca-Barrera).” That Circuit has also ruled that Border
Patrol officers may “ask questions outside the scope of the stop,” ie
questions that are not related to immigration status, but they may do so
“only so long as such questions do not extend the duration of the stop
(United States v. Machuca-Barrera, 5th Cir. Appeals).” The Fifth Circuit
that holds jurisdiction over the checkpoint in Uvalde, Texas agrees
stating, “[I]t would make a mockery of the reasonable suspicion and
probable cause requirements if citizens’ insistence that searches and
seizures be conducted in conformity with constitutional norms could
create the suspicion or cause that renders their consent unnecessary.”
(United States v. Machuca-Barrera, 5th Cir. Appeals). An individual does
not have to cooperate with agents at these checkpoints, and after the
“couple of minutes” required to “briefly inquire” into immigration
status, agents who have developed no reasonable suspicion for any
violation, must release the motorist in order to comply with the Fourth
Amendment – even if the individual chose not to answer questions or
cooperate.
The Fourth Amendment to the United States Constitution guarantees the
people the right to be free from “unreasonable searches and seizures.”
The United States Supreme Court stated, “It is agreed that checkpoint
stops are ‘seizures’ within the meaning of the Fourth Amendment.” (U.S.
v. Martinez-Fuerte). The reason the High Court maintained that these
checkpoints are seizures, is because all traffic is required to stop at
these checkpoints. As such, for the time a vehicle is stopped at the
checkpoint, both it and its passengers have been “seized” by the
government and cannot depart the checkpoint without permission from the
government. The question then becomes, is that seizure reasonable or
not?
The Supreme Court ruled that, “A search or seizure is ordinarily
unreasonable in the absence of individualized suspicion of wrongdoing.”
(Indianapolis v. Edmond) In other words, if a government agent has
articulable “reasonable suspicion” that a person has violated a law,
they can seize that person in order to begin an investigation. This is
the standard used, for example, when a police officer pulls over
somebody speeding. They develop the suspicion through a radar gun or
other mechanism, and can then make the individual stop and issue a
citation, which then has to be proved in court. If a police officer
pulls somebody over without suspicion that they have committed a crime
then, according to the courts, they have conducted an unreasonable
seizure and therefore violated the Fourth Amendment.
Border Patrol checkpoints not on the border are often referred to as
suspicionless checkpoints. That is because all people have to stop and
are seized, despite the lack of suspicion that any crime or violation
has been committed. So while the Supreme Court has historically ruled
such seizures a violation of the Fourth Amendment, the High Court did
make an exception for these checkpoints. In doing so, however, they laid
down specific parameters that must be followed for the seizure at these
checkpoints to remain reasonable. Namely, the Supreme Court required
that these checkpoint seizures be limited to, “brief questioning” to
inquire into immigration status (U.S. v. Martinez-Fuerte).
Further, the courts have ruled that these checkpoints cannot be
“catch all” checkpoints, that operate looking for any and all types of
violations, but rather that they are limited to immigration status.
Anybody who has much experience with these checkpoints knows they
routinely stray outside these lines and are effectively in place to also
look for drugs. Drug dogs are not gifted in the art of smelling
citizenship (they’re also prone to false alerts especially when handled
by a dishonest dog handler). But legally, these checkpoints are limited
to briefly inquiring into immigration status, and they are not allowed
to investigate into anything else unless they have reasonable suspicion
for a non-immigration violation. The reason for this is because these
suspicionless seizures are an intrusion into the lives of law abiding
citizens who are forced to stop there, and the courts have reasoned that
as long as they are limited to brief inquiry into immigration status,
then the intrusion is minimal and therefore justified. As an aside,
Supreme Court justices Thurgood Marshall and William Brennan vehemently
disagreed with this view that such an intrusion would be minimal and
therefore did not think them reasonable under the Fourth Amendment. In
fact, they argued that the ruling allowing these checkpoints to seize
motorists, no matter how brief, did not justify the intrusion upon
citizens suspected of no wrong doing who were simply traveling down the
highway. They wrote:
The starting point of this view [the majority opinion] is the
unannounced assumption that intrusions are generally permissible; hence,
any minimization of intrusions serves Fourth Amendment interests. Under
the Fourth Amendment, however, the status quo is nonintrusion, for, as a
general matter, it is unreasonable to subject the average citizen or
his property to search or seizure. Thus, minimization of intrusion only
lessens the aggravation to Fourth Amendment interests; it certainly does
not further those interests (U.S. v. Martinez-Fuerte).
The majority of Supreme Court justices found otherwise, and made an
exception for Border Patrol internal, fixed-site (permanent)
suspicionless checkpoints, but required the seizure to be brief and
limited to inquiring into immigration status. The Supreme Court stated
that “[A]ny further detention . . . must be based on consent or probable
cause (U.S. v. Martinez-Fuerte).”
So what is brief, and what is further detention? According to the
Fifth Circuit Court of Appeals (which has jurisdiction over the
checkpoint in Uvalde, Texas), a stop of “a couple of minutes” is “within
the permissible duration of an immigration checkpoint stop (United
States v. Machuca-Barrera).” That Circuit has also ruled that Border
Patrol officers may “ask questions outside the scope of the stop,” ie
questions that are not related to immigration status, but they may do so
“only so long as such questions do not extend the duration of the stop
(United States v. Machuca-Barrera, 5th Cir. Appeals).”
What about an order to exit the vehicle? Do individuals have to exit
the vehicle if requested to do so during the brief immigration inquiry?
The answer is no. Regardless of whether requested in primary or
requested in secondary, an individual has no legal obligation to exit
their vehicle. Certainly such action is not required to briefly inquire
into immigration status, and further, the Border Patrol has no authority
to order a person to exit their vehicle. Why not? Yet again, it’s
because there is no suspicion of any wrongdoing. The Supreme Court has
ruled otherwise in the case of suspicion-based stops by law enforcement
[police], such as a traffic stop for suspicion of speeding (Pennsylvania
v. Mimms). In that case, the Supreme Court has said law enforcement can
order vehicle operators out of their vehicles for “officer safety.” The
High Court chose, during suspicion based stops, to value the safety of
government actors during routine traffic stops over the safety of
American citizens. However, agents of the Border Patrol have no such
authority at suspicionless checkpoints.
So what questions are individuals required to answer at these Border
Patrol stops, if any? The answer is none. Cooperation during
suspicionless checkpoints is not required. Individuals have a right to
not answer questions, and there is no law that requires them to provide
any identification. Further, cooperation with an investigation/inquiry
is not required even in stops that are based on suspicion, so they are
most certainly not required in a stop where there is no suspicion of
wrongdoing. Still further, choosing not to cooperate with government
actors who intrude into your life at a suspicionless checkpoint, cannot
be used against you as a basis for suspicion. The Supreme Court ruled,
“We have consistently held that a refusal to cooperate…does not furnish
the minimal level of objective justification needed for a detention or
seizure.” (Florida v. Bostick) The Fifth Circuit that holds jurisdiction
over the checkpoint in Uvalde, Texas agrees stating, “[I]t would make a
mockery of the reasonable suspicion and probable cause requirements if
citizens’ insistence that searches and seizures be conducted in
conformity with constitutional norms could create the suspicion or cause
that renders their consent unnecessary.” (United States v.
Machuca-Barrera, 5th Cir. Appeals). An individual does not have to
cooperate with agents at these checkpoints, and after the “couple of
minutes” required to “briefly inquire” into immigration status, agents
who have developed no reasonable suspicion for any violation, must
release the motorist in order to comply with the Fourth Amendment – even
if the individual chose not to answer questions or cooperate.
The Fifth Circuit has also stated, “Our decisions have held that
police violated the Fourth Amendment by extending a stop by even three
or five minutes beyond its justified duration (United States v.
Machuca-Barrera).” As such, I am extremely confident that my lawsuit
will be victorious as I was detained for nearly thirty-four minutes,
after agents failed to ask me any questions related to immigration
status until more than ten minutes into the detention, and only did so
after I had provided my driver’s license, military ID card, and even
offered my passport (an offer the agent ignored). Beyond that, when the
supervisory agent even later finally asked for both of my passports, I
quickly provided them to him. Still, he put them in his shirt pocket and
detained me for another fifteen minutes while he called my military
chain of command to verify that I was actually in the military–questions
and actions that had nothing to do with my immigration status, but
rather demonstrated a desire to punish me for recording the incident.
The agents repeatedly lied, saying that they had asked me my immigration
status in primary, and that I had refused to answer the question. The
video shows that I answered every single question asked of me, with the
one singular exception of providing the identity of my commanding
officer, which I was not required to provide and which was information
irrelevant to my immigration status. Beyond extending the detention to
call my military employer, their intent to harass was further
demonstrated several weeks later when they wrote a letter to my military
commander and claimed that my conduct was “unbecoming.”
The law is clear, and even if I were to have to appeal my case to the
Fifth Circuit that ruled in Machuca-Barrera, I am very confident that
the Fourth Amendment will be vindicated.
These checkpoints are intrusions into the lives of law abiding
American citizens who simply wish to travel unmolested. Agents at these
checkpoints require no suspicion of any wrongdoing to force themselves
into your lives, but the Supreme Court has made it clear that they must
remain limited intrusions. It is important for us, especially for those
of us who have taken an oath to support and defend the Constitution, to
not blindly acquiesce to unlawful demands agents might make. If we do
so, we unwittingly train them to expect all who pass to likewise give up
their constitutional rights or be harassed. Even those who answer all
relevant questions, as I did, and who provide four forms of
identification including two passports, as I did.
If we don’t support and defend the Fourth Amendment, what will be
next? Government agents able to enter our homes without any suspicion of
wrongdoing and without a warrant? Government agents who seize us during
a walk to work without any suspicion of any wrongdoing? Let’s not allow
the further eradication of our rights. Not on our watch.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PLUS:
Border Patrol Internal Immigration Checkpoints (away from the international border)
Fixed-Site, Immigration Checkpoints, Away from the Border:
Source: http://www.legalupdateonline.com/4th/882
Established checkpoints located away from the border, such as at San
Clemente, on Interstate 5, and Fallbrook, on Interstate 15, were, at one
time, considered to be the “functional equivalent” of a border, and
therefore subject to the same rules, even though these two points are
miles from the U.S./Mexican border. (See United States v.
Martinez-Fuerte (1976) 428 U.S. 543 [49 L.Ed.2nd 1116].)
At the time, a checkpoint was thought to be the “functional
equivalent of the border” only when the government has proven to a
“reasonable certainty that the traffic passing through the checkpoint is
international in character. [Citation] In practical terms, this test
means that border equivalent checkpoints intercept no more than a
negligible number of domestic travelers.” (United States v. Jackson (5th
Cir. 1987) 825 F.2nd 853, 860.)
Actual “border checkpoints”(located at the international border)
implicate the broader powers of the federal government to conduct
searches and seizures of persons for immigration, drug interdiction, or
other purposes at the border or its functional equivalent. (See United
States v. Montoya de Hernandez (1985) 473 U.S. 531, 541-542 [87 L.Ed.2nd
381, 391-392]; United States v. Ramsey (1977) 431 U.S. 606, 616 [52
L.Ed.2nd 617, 626].)
More recent authority, however, recognizes that such internal
checkpoints are merely “immigration checkpoints,” and not the equivalent
of an international border. (United States v. Franzenberg (S.D.Cal.
1990) 937 F.Supp. 1414; United States v. Machuca-Barrera (5th Cir. 2001)
261 F.3rd 425, 432, fn. 15.)
Therefore, it has been held that stops at such points for immigration
purposes is lawful despite the lack of “reasonable suspicion,”
requiring only that such stops be “selective.” (United States v.
Martinez-Fuerte, supra.) THUS: One has to STOP one’s car; but does NOT
have to answer any questions or show an ID (or otherwise identity
himself).
“But the search of a vehicle at an [fixed-site, internal] immigration
checkpoint, away from the border, may require ‘probable cause’ to
justify.” United States v. Ortiz (1975) 422 U.S. 891 [45 L.Ed.2nd 623].
Thank you for reading.
John-Henry Hill, M.D., Ph.D.
