Border Patrol Checkpoints and Civil Rights
HandelontheLaw.com Staff Writer
A tasing incident on May 7, 2015 in Upstate New York highlights the difficulty of safeguarding Civil Rights and public safety. Jessica Cooke, a 21-year-old Criminal Justice student, was stopped at a Border Patrol checkpoint in Waddington, NY, a town with its north line defined by the St. Lawrence River, the international border between the United States and Canada.
Cooke appeared nervous, so the Border Patrol agents pulled her over in for a secondary inspection. Cooke refused a search of her car trunk and was asked to wait for the K-9 Unit. The conversation between agents and Cooke intensified. Cooke refused to comply with an agent’s request for her to move. An agent grabbed her, she resisted, she was tackled and tased.
Were the Border Patrol agents right or wrong? That’s a tougher call than you’d think because of the grey legal area surrounding Border Patrol checkpoints. Mind you, Border Patrol checkpoints differ from borders and traffic stops.
The Supreme Court deems checkpoints intrusive and “seizures”; consequently, they may be used only for particular reasons. The primary purpose of Border Patrol checkpoints in Upstate New York is border security through determination of citizenship, immigration violations, and possible criminal activity.
Vehicles can be stopped without any reasonable suspicion and the vehicles’ occupants can be asked consensual questions. The vehicles can be pulled in for secondary inspections, still without reasonable suspicion, to allow the free flow of traffic. Due to the competing interests of border security, the Fourth Amendment’s protections against unreasonable search and seizure, and the Fifth Amendment’s protections against self-incrimination, Cooke’s predicament fell into a gray area.
The Fifth Amendment protects her right to refuse to answer any questions; however, her silence can be problematic if she doesn’t at least identify herself because a reasonable goal of the Border Patrol checkpoint is border protection through determination of citizenship, immigration violations, and possible criminal activity.
The Fourth Amendment protects her right to refuse a request to search her trunk at a Border Patrol checkpoint and her denial is not probable cause to search. However, it’s unclear as to how long she can be forced to stay at the secondary checkpoint, though detention is supposed to be “brief.”
I was born and raised near the Canadian border, have been stopped at Border Patrol checkpoints several times and simply answer questions and “pop” the trunk when asked. They’re just doing their jobs, I have nothing to hide (certainly nothing illegally fun or lucrative), and complying is easier than resisting.
Cooke chose a different stance and is pursuing her remedies against the Border Patrol at this time.
By Kathy Catanzarite
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