Hacker News Reader

Comment by tptacek | Hacker News Reader

This is an urban myth, unfortunately amplified by the ACLU, that will never, ever die.

The following link will take you to a multiplicity of HN posts describing why the "100 mile Constitution-free zone" is false:

https://hn.algolia.com/?query=Almeida-Sanchez&sort=byDate&pr...

The short summary is: in order to be searched under the border search exemption, law enforcement either needs probable cause (like in any other search), or a demonstrable nexus to an actual border crossing. If you happen to live 5 miles from the Mexico border, the police cannot in fact search you at random, nor can CBP or ICE.

View on HN

Many if those posts are written by your favorite authority on this topic: you.

They all cite my second favorite authority: the United States Supreme Court. The Court heard cases --- more than one --- directly about this question.

Yes, and you continue to mischaracterize them (in the opposite fashion that the ACLU does). While they don't completely negate the 4th amendment in this zone, they absolutely do negate it for stops at fixed checkpoints. The fourth amendment prohibits not just unreasonable searches (which Almeida-Sanchez addressed) but also seizures. The SCOTUS majority in Martinez-Fuerte basically says that because these seizures are helpful for CBP purposes, that they're reasonable, even without the normal requirements for individual, particularized suspicion: "Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints", where a footnote clarifies that "the choice of checkpoint locations is an administrative decision that must be left largely within the discretion of the Border Patrol". In theory this could be challenged, in practice not.

Brennan's dissent, while leaning a bit heavily on dignity concerns for my tastes squares a lot better with 4th amendment case law prior to that term.

No individualized suspicion needed makes parallel construction and other selective abuses far easier to apply to a large swath of people.

While they don't completely negate the 4th amendment

But that's what the post the reply was to claimed. And adding 'parallel construction' to this is a bit like throwing in black helicopters.

"Doesn't apply" can uncharitably be glossed as "doesn't apply at all" or charitably as "doesn't fully apply".

Parallel construction has actually been attested and reported on by mainstream news sources.

I hate the metonymy of "black helicopters". Helicopters that are painted black do exist, after all. It's merely that there is no reasonable evidence for their use in extralegal conspiracies. If you're going to dismiss something as a conspiracy theory, I'd rather you do that directly.

This is what it says:

"That hasn't applied at or within 100 miles of a US border point of entry since 1953."

The plain meaning of that is not 'doesn't apply fully and maybe sometimes applies and sometimes not'. There's a difference between 'charitable interpretation' and 'so charitable as to coincidentally be bent into something originally unsaid but happens to support my argument'.

The goal of charitable interpretation is to avoid assuming ill-faith, not to reinterpret the position to something other than what it is.

"Opens a large hole in, allowing violations to large numbers of travelers at governmental discretion and thus doesn't usefully constrain the government against those in the area" is well within charitable interpretation of the quotation.

Apparently small loopholes can be readily, repeatedly violated.

Apparently small loopholes can be readily, repeatedly violated.

I... I think I'll never argue about anything on the internets again.

You didn't read Martinez-Fuerte carefully, or the previous comments I linked to, which (amusingly) discuss Martinez-Fuerte in comparison to Almeida-Sanchez.

In short:

Martinez-Fuerte authorized stops within range of the border, but explicitly disallowed searches; what made the stop in Martinez-Fuerte lawful was that it wasn't a search. You can be stopped anywhere in the country with virtually no probable cause; it's what happens when a traffic cop pulls you over for a "bad lane change", or to check your insurance. When that happens, the police cannot then pop your trunk and rifle around in your glove compartment --- nor can they take and image your phone.

You are reiterating my complaint about Martinez-Fuerte while stating that I didn't read it. Even stops that don't lead to searches are seizures that implicate the fourth amendment rights. Martinez-Fuerte acknowledges this, but then says "oh it's not that bad, and if the government has what it says is a compelling reason, go ahead."

Bad lane change is explicitly probable cause -- it's direct witnessing of a traffic code violation. It's usually pretextual: they have some other reason they don't want to articulate that might not pass constitutional muster, but pretextual stops and even searches are unfortunately allowed. And no, they're not supposed to pull you over to check your insurance absent some reason to think that there's a problem with it.

Stops without probable cause are bad not just because they are interruptions and wastes of time, but because they allow more opportunities for other abuses such as pretextual searches.

Administrative checks for commercial trucking (i.e. weigh stations) would be a better instance for stops that no one generally complains about.

No, a bad lane change is not probable cause for a search. How you know that is, upon being pulled over for improper lane change, the police cannot demand a search of your car. I think we're talking past each other.

If you'd like to move the goal posts and talk about roadside detention, fine. But that's (a) not a search and (b) not relevant to the question of whether the border search exception means that tens of millions of Americans are continually exposed to warrantless searches of their devices by dint of living close to a border.

(I didn't say you hadn't read Martinez-Fuerte; I said you hadn't read it carefully. A decent-sized stretch in the middle of the opinion is about exactly this distinction, and reaffirms the fact that LEOs can't search you within a 100 mile range of the country's border).

Yes, we are talking past each other. I never claimed a bad lane change is probable cause for a search. But searches are not the only thing the fourth amendment is supposed to protect against.

I don't think talking about roadside detention is moving the goal posts at all -- it's an abrogation of the fourth amendment allowed within 100 miles of the border, and has knock-on effects that make searching easier.

I agree that the way the ACLU characterizes the rulings are wrong, and said as much in a parenthetical. But that's not the same as "thus we shouldn't be worried about the fourth amendment being ignored within 100 miles of the border".

> I never claimed a bad lane change is probable cause for a search.

Perhaps not in so many words...

tptacek states that a bad lane change can be given as an excuse for a stop, but not a search, because it is not probable cause. In the following comment, you reject that claim:

> Bad lane change is explicitly probable cause -- it's direct witnessing of a traffic code violation.

A reasonable interpretation of your comment would be an argument that a bad lane change is probable cause for a search. It makes no sense to differentiate "probable cause for a stop", because there is either no such test, or it should otherwise be the same standard as for a search.

On the other hand, I don't think tptacek has tried to give any advice as to whether a person should be worried about this or not.

The SCOTUS has been wrong, egregiously so, many times, and this overreliance on their views amplifies the very real problem of stare decisis and the bad precedents we allow it to set, especially when people confuse dictum (commentary) with order and findings.

One of my favorite examples of this: Wickard v. Filburn

Laws passed by Congress and signed by the President can overrule the Court. And if the Court finds that the law is unconstitutional, Congress and the States can amend the Constitution. But who has time for all that?

YANAL

IAAL; this area of the law isn't my field, but in more than one area where I do claim some expertise, Thomas has a better knowledge of the law than some attorneys I know.

YAAL

Reply on news.ycombinator.com