There are more than 70 immigration checkpoints manned by U.S. Customs inside the U.S.
Many travelers don't realize that complying with the Border Patrol's questioning can be completely optional. It is well within their Fifth Amendment rights to remain silent. If this right is exercised, the agent does not have the power to further detain them absent consent, reasonable suspicion, or probable cause that the traveler is committing a crime. While the Supreme Court ruled in Martinez-Fuerte that temporary detention at internal checkpoints is not an unconstitutional encroachment, the detention must not be indefinite and may only be for a reasonable amount of time.
Noncitizen permanent residents over 18 years old are required to carry green cards when they travel within the United States, according to the Immigration and Nationality Act. Those caught without one face a maximum fine up to $100 and/or imprisonment for up to 30 days for each offense. But you can't tell the difference between a citizen and green card holder without seeing some kind of government identification. Given Americans' historical antipathy toward national ID requirements, which are routine in most of the rest of the world, it comes as a surprise to many that they can be asked to provide proof of citizenship even when venturing nowhere near an international border.
More than 70 immigration checkpoints manned by U.S. Customs and Border Protection (CBP) now operate well inside U.S. territory, as far away from the Mexican frontier as Sarita, Texas-nearly 90 miles north of the nearest major border crossing. The agency has used internal traffic checkpoints since 1924. Since the 9/11 attacks, the Border Patrol's mission has increasingly emphasized preventing terrorists and illegal weapons from entering the United States. Some of the checkpoints are on roads that never intersect the border. No reasonable suspicion or probable cause or consent is required for these indiscriminate detentions. Travelers usually comply politely, not knowing-and likely not caring-that by doing so they are waiving their constitutional rights.
But not everyone plays along. as scouring YouTube videos, border-state news archives, and court cases can attest, hundreds of resisters, mostly males in or around their thirties, are refusing to comply, capturing the often nerve-rattling conflicts on their smartphones. They may be lone dissidents, but they have created a robust online community of checkpoint constitutionalists.
CBP agents, at times accompanied by area law enforcement officers, await as the motorist pulls up. Drug-sniffing dogs are often led by another CBP agent around the line of vehicles as they wait in a queue. Drivers are instructed to roll down their window if they haven't already. The CBP agent then firmly asks the driver, along with any other passengers, if they are United States citizens.
Citizen warning: The CBP claims they delete their videos after 30 days.
This is when the confrontation begins.
"Am I being detained, agent?" is the common refusenik reply.
"No you are not being detained, sir," the agent replies. "We need to know if you are a United States citizen."
The scene is usually tense. Drivers are visibly nervous in many of the videos. It's not easy to stand up for your rights on a lonely desert road when surrounded by German Shepherds and heavily armed men in green, military-looking uniforms.
"If I'm not being detained, then I'm free to go, correct?"
Agents are not accustomed to non-compliance. "You are not free to go until I can verify you are a United States citizen," goes the common reply.
"Well, if I'm not free to go, does that mean I am being detained?"
At this point agents will sometimes declare that the driver is indeed being detained, but only temporarily. The refusenik will then ask why he is being detained, and request to see a supervisor. The Border Patrol cop, his supervisor, and other law enforcement officials who sense an emerging situation will gather around the vehicle. Traffic builds up. Blood pressure rises.
"You are being detained temporarily for immigration purposes. We need to know if you are a United States citizen. Please answer the question."
The driver may then point out to the agent that at least some reasonable suspicion of criminal activity is required in order for any further detention to be lawful. If the refusenik is lucky, the built-up traffic or just the ongoing hassle of the exchange will pressure the agent to wave the driver on through.
If he is unlucky, the border cop may declare that he indeed has probable cause. At this point, the motorist has little choice but to comply with the demand to pull into secondary and submit to a search.
Internal checkpoints are legally separate from checkpoints on international borders or their "functional equivalent," such as international airports. At these border crossings, CBP agents have wide latitude to search and seize, absent any warrant or probable cause. They can also unilaterally refuse to admit international travelers. Internal checkpoints are more complicated.
In a pivotal 1976 Supreme Court case, U.S. v. Martinez-Fuerte, the defendant was caught transporting illegal aliens through an internal immigration checkpoint located on Interstate 5 between Oceanside and San Clemente in California, about 90 miles from the border. After the immigrants were discovered and admitted their status, Amado Martinez-Fuerte was charged with two counts of illegally transporting aliens. A court majority opined that "brief questioning of [the motor vehicle's] occupants even if there is no reason to believe that the particular vehicle contains illegal aliens," is legal.
In the Supreme Court case United States v. Montoya de Hernandez (1985), the court further ruled that "automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion, even if the stop is based largely on ethnicity." Flowing from this case is the assumptive creation of the "border search exception" allowing for warrantless searches within 100 miles of the border. This Fourth Amendment-lite zone encompasses the place of residence for nearly two-thirds of the U.S. population.
Martinez-Fuerte held that internal checkpoints were considered to be a functional equivalent of a border crossing only if the government could prove with reasonable certainty that traffic passing through was international in character and would be comprised of only a "negligible number of domestic travelers."
The Border Patrol's Inspector's Field Manual governing internal checkpoints has been public information since 2008, thanks to a successful FOIA request from immigration attorney Charles M. Miller. According to Section 18.7 of the manual, before an inspector may constitutionally detain a traveler at a non-entry checkpoint, the inspector "must have reasonable suspicion that the person is an alien and is illegally in the United States." The manual goes on to say: "This higher degree of suspicion arises generally in questioning persons encountered in and around the port who are awaiting persons referred to secondary. This suspicion is based on questioning of alienage alone and also involves specific articulable facts, such as particular characteristics or circumstances which the inspector can describe in words."
If, according to the CBP's guidelines, inspectors shall not indefinitely detain a traveler without at least reasonable suspicion, the collection of videos online clearly shows agents breaking their own rules.
http://reason.com/archives/2013/12/28/americas-internal-checkpoints
"Police state" drivers license checkpoints set up in Virginia:
http://massprivatei.blogspot.com/2013/07/police-state-drivers-license.html
DUI checkpoints are an end run around the Constitution:
http://massprivatei.blogspot.com/2013/08/dui-checkpoints-are-end-run-around.html
Public Safety director claims illegal checkpoints are a response to “various criminal activities and unsafe driving behaviors”
http://massprivatei.blogspot.com/2013/10/public-safety-director-claims-illegal.html
ACLU legal director discusses how to deal with checkpoints in America:
http://massprivatei.blogspot.com/2013/07/aclu-legal-director-discusses-how-to.html