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Comment by ck2 | Hacker News Reader

Here's the hidden worst part about this they don't mention.

You think border means at the point you cross into another country.

That's not what it means. Government can now do this behavior a HUNDRED miles inland from a border. You could be just driving across town, to or from work, and they can use this border search law because you are a hundred miles from the border.

Oh and the border also includes the ocean, doesn't have to be another country.

https://d320ze5h7gg57a.cloudfront.net/sites/default/files/we...

100% of NY, NJ, Florida and half of Texas is subject to these searches as their state is blanketed by the hundred mile limit.

edited to correct hundred instead of hundreds, bad memory

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That's not true. The USG tried to make this case in the 70s and was rejected at SCOTUS. I believe the confusion here is between the notion of a 100 mile wide Constitution-free stripe of the country (which does not exist) and the presence of specific, preordained customs checkpoints fixed within 100 miles of a border (which do).

From 'rayiner's post, here's the 3-part test suggested by CRS:

* You have to recently have crossed the actual border

* "an agent should know that the object of a search hasn’t changed"

* Reasonable suspicion must exist

The first bullet here torpedoes the idea of a "100 mile wide Constitution free zone". But: that's also just CRS's interpretation; CRS is simply a Congressionally-funded think-tank. Without digging up the SCOTUS cite, I'll suggest that the judicial branch restrictions on these searches are even more severe.

One way to think of the "100 mile" concept is that the USG probably has the authority to put a border control check that would have applied to someone crossing the border anyways as many as 100 miles from the border, rather than at the border itself.

I did some research and found this 1973 SCOTUS case that matches your description:

http://scholar.google.com/scholar_case?case=6933260753627774...

Here is the key quote, taken from section 273:

  But the search of the petitioner's automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border,[5] was of a wholly different sort. In the absence of probable cause or consent, that search violated the petitioner's Fourth Amendment right to be free of "unreasonable searches and seizures."

Edit: Reading through the decision, sections (pages?) 280-285 briefly summarize some of the conditions under which warrantless searches are permissible. This is very interesting reading, thanks for the heads up!

Here's someone who was stopped and (refused) search at an far inland checkpoint who had not "crossed the actual border".

http://www.youtube.com/embed/WVMZUgmrJrk

Ended very badly for them. Very badly.

So cite all the SCOTUS you want, police are doing whatever the hell they want in that 100 mile zone including false triggers by dogs that are proven wrong most of the time.

Once again: CBP tried to charge this guy, and had those charges dismissed with prejudice when the judge could not be convinced that the search was legal; the guy is now a plaintiff in a civil suit. Also, a dog told CBP it was OK to search, which is a different problem.

I'm not arguing that CBP doesn't abuse the law, but the notion that there is a "100 mile wide Constitution-free strip" of the US is harmful to citizens, who could be misled into believing that (a) they are required to consent to searches and (b) that they won't be able to fight the government if they are searched illegally. It is important that people know their rights, whether or not those rights are invariably respected.

Watching the video and looking at some other info, my take on this is that he was A) well aware that arguing points of law with officers on the street is a bad idea (argue them in court later) and B) quite willing to do so anyway. It's not so much that he refused search as that he refused to even get out of the car when told to do so by an officer after a dog alerted on the car. I'm not sure if he was tied in with conspiracy theorist Alex Jones before this or only after the fact, but if it was before then I'd have no real problem considering him an agent provocateur looking for trouble to get into.

I'm well aware that dog alerts are very questionable and are (arguably) regularly used as a pretext for illegal searches, but what you do in these situations is comply with ALL lawful orders (including GET OUT OF THE CAR) but decline to consent to searches. If you're not sure whether an order is lawful, you comply and let the lawyers and judges sort it out later.

Or put differently, "idiot."

He was practicing civil disobedience. Calling him an "idiot" is missing the point.

He was not practicing civil disobedience, because he wasn't deliberately violating any law. He seems instead to be the victim of an assault.

He indeed was the victim of an assault, which IMHO is not mutually exclusive with his behavior being idiotic.

There is a good argument to be made for this being civil disobedience in that he was refusing the orders of law enforcement officials, but in this particular case the evidence later showed that (roughly) A) the officers ordering him out of the car had no legal authority to do so and B) the officers who did have the legal authority to do so didn't actually order him out before breaking in, tasing, etc. At his later trial he was found not guilty of all the charges against him based on this - I don't know if civil disobedience was even brought up but I doubt it.

Among other things, you seem confused about the meaning of 'agent provocateur'.

An agent provocateur a law enforcement agent who infiltrates a group. Once there, they get violent in order to justify reprisals against the group.

Is being an agent of law enforcement actually a part of the definition? Still, I agree that I probably should have found a better term.

It may now be bad law, but if so, the Border Patrol is still using it anyway. Here's a description of some of what they've been up to in recent years around Rochester and Syracuse: http://chronicle.com/article/Far-From-Canada-Aggressive/1258...

Of particular note: searches of passengers on trains from New York City to Chicago.

Well NYC is an embarkation point for international travelers to the USA, is it not? I'm not sure that searching a passenger on a train from NYC is inherently more infringing on liberties than searching a passenger on a van from the Mexican border, as both "start points" for travel are very much borders of the U.S.

That kind of behavior is referred to and might be permitted by the SCOTUS decision 'tptacek cied above. Relevant paragraph:

Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. For 273273 example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.[4]*

There are certainly important differences: the court gives the example of a search of passengers that definitively crossed a border and who are searched where they disembark.

That being said, since NY is a major international travel hub, the searches described in that article might qualify as "functionally equivalent" to border searches. In any case, I think it's a stretch to say that DHS treats everything 100 miles from the border as a "Constitution-free zone". Have we seen equivalent searches being performed in Georgia or Virginia?

The reason I singled out the train as a particular case is that it's clearly domestic travel, not international. If there are foreigners on board, they'd have to come through some other border crossing before getting on the train. You can't get to Penn Station from outside the country without going through customs somewhere else, most likely an airport. Which means that this is not equivalent to a border crossing, unless you adopt a meaning of those terms so vague that anything within 100 miles of the border is the functional equivalent of a border crossing, which seems to be what the border patrol is doing.

And yes, it is possible to find places in the country, even in the 100-mile zone, where DHS is not engaged in abusive activity. That's cold comfort to folks who have to deal with them when they are.

ETA: if you're wondering about international train travel, like from Canada, I've taken one of those trains, from Montreal to New York. (Very scenic route, right down the shore of Lake Champlain.) The border-crossing inspection happened in Vermont, outside St. Albans, within minutes of where the train crossed the border. That's what "functionally equivalent to a border crossing" means, if it means anything at all.

I cited the examples of Georgia and Virginia to emphasize that known cases of these Border Patrol operations seem to cluster in areas that are frequently points of disembarkation for international travel.

I don't disagree with you that DHS operations are often abusive, and I have even suggested that the examples cited by that article might not be justified as "functionally equivalent". I do think, however, that the idea of a "Constitution-free zone" isn't a useful concept for describing DHS practices.

http://www.peninsuladailynews.com/article/20130925/news/3092...

Ah, it's Thomas Ptacek, who as usual, doesn't have the slightest fucking idea of what he's talking about but nevertheless feels free to lecture others.

There are dozens of immigration/law enforcement checkpoints routinely deployed around the U.S. They stop all persons and feel free to check them for suspected illegal immigration, drugs, and so on, with absolutely no reason to believe the searchees have ever crossed the border.

For instance, the Border Patrol runs a check near Camp Pendleton, California, about 70 miles north of the Mexican border. You can even check in with Foursquare:

https://foursquare.com/v/i5-border-patrol-checkpoint--weigh-...

All cars on the interstate are stopped, any time they feel like it, and searched or not as the Border Patrol desires. No suspicion exists or need exist. Most of those stopped have not crossed the Mexican border in years, or ever. And no, none of it is illegal in any way.

Or compare, if you like, the EXIT searches that Customs is now doing at many border crossings - people who are attempting to (but have not yet) exited the United States. By definition, they aren't entering the U.S. and haven't crossed any border, but again, they're being searched, entirely legally, every day, and woe to you if you attempt to resist, as author (and now convicted felon) Peter Watts will be happy to tell you.

Simple rule of thumb: if tptacek says it, you can ignore it.

Peter Watts is a Canadian who was searched at the actual Canadian border.

Peter Watts is a traveller who was searched by U.S. Customs in the United States, just prior to crossing out of the United States, and Canada had nothing to do with it. All travellers exiting the U.S. are subject to exit inspections if desired by Customs. Or indeed, which is the subject of this thread, subject to search even if they have no intent of crossing any border and have never done so in their lives, as long as they are within 100 miles of the border.

I don't understand how someone being subjected to a border search while crossing the actual border has to do with the supposed "100 mile wide Constitution-free zone" that is the topic of this thread.

The last sentence in your comment is simply incorrect.

The "Constitution-Free Zone" extends 100 miles from the border or coast, not "HUNDREDS". I find it as abhorrent as you do, but there's no need to exaggerate or FUD.

https://www.aclu.org/national-security_technology-and-libert...

This is total misinformation: http://blog.constitutioncenter.org/2013/02/does-a-constituti....

Print out your blog post and go driving around in southern TX / NM. When you are stopped, show them your blog post.

Jump on highway 77 in Texas coming from Houston to South Padre... you will be stopped. Pretty sure they take pictures of license plates, dogs sniff cars, and they ask for your identification.

It's basically a check point. The line to get through it can take a while and some vehicles are heavily searched. I've never had that opportunity fortunately.

Have you ever seen the videos of the people refusing to comply with these checkpoints?

For CBP to search you under the aegis of border security, you must have recently crossed the actual US border. The law doesn't require CBP searches to occur at the actual border; for instance, there may be so many possible crossing points at e.g. the Canadian border that, logistically, search only makes sense at some chokepoint 20-30 miles from the border. But they can't search people at random. The CRS says so, and, 30 years before that, so did SCOTUS.

Traveling home from upstate NY, I've been stopped (having never left the USA) at a border patrol checkpoint well inside NY, we were within 100 miles of Canada.

They didn't ask to check my laptop or anything, but did want ID etc.

Can't talk to the legality of it all but they do exist.

You can probably be stopped by any law enforcement agency in the US and have ID demanded of you, and while ID is not mandatory in the US, you can be inconvenienced for not having it. That's a result of Hiibel v. Nevada. It sucks a lot, but we're still better off than most of Europe in that regard.

But if CBP could not convince a judge or jury that you'd crossed the Canadian border, and demanded a search of your vehicle and found e.g. an eighth of weed, that evidence could probably be tossed in court; CBP needs both the fact of your crossing of the actual border and a reasonable suspicion to search you.

> It sucks a lot, but we're still better off than most of Europe in that regard.

Having lived in both Europe in the US for large part of my life, I can tell you that this completely misses the mark.

Yes, you can be ID'd, but what law enforcement can get away with in the US would be inconceivable in most of Western Europe. I was never afraid of the cops before I came to the states.

Edit: Spelling.

I have the opposite experience; from my (few) visits to Continental Europe, my impression is that foreigners are searched at random in arbitrary locations more or less at the whim of police. I've actually never had a bag searched in the US, but can't say that about Europe.

How do they recognize you as an alien?

At the border, sure, but inside the country?

Inside. Not at the border. I'm presuming it had to do with me being foreign but maybe it's something even more insidious.

My thinking was: how do they single you out?

But I guess it was speaking English without an awful accent. :-)

Interesting. Was that in England? I should have excluded GB from this. :)

Germany and Italy. I've been to England more than I have to the Continent and have never been searched there.

I've had related experiences in Germany. The police stop cars with no suspicion nor any explanation other than "police control". I told several German friends that this would be quite illegal in the US, and they were all shocked; it seemed normal and routine to them.

Denying the Holocaust and using Nazi symbols is illegal in Germany, but "papers please" is normal? I think they learned the wrong lesson.

Yes, it seems normal to me, unless it happens regularly.

I am now 32 years old. I have been in a police stop when driving my car only twice (and one of those was a mistake, I thought they wanted me to stop, but they actually meant another car).

I have never been controlled or ID checked by the police in any way when not travelling by car. Exceptions are border controls, of course. And private entities wishing to check my age: discos, liquor stores and so on.

On another note: I'm really tired about all this attitude we get from Americans regarding Nazi symbols and free speech. Maybe take a minute to contemplate why we have those laws?

"Because of Holocaust" is correct, but not what I'm getting at. We have those, because Americans (together with the other Allied Powers) forced us to after the war.

Unfortunately Americans have this tendency to think that their system is the very best and can't imagine why anyone could or should have another system, despite the fact that everywhere they were involved in nation-building they actively promoted other systems.

Not sure you are correct on the first point. Border Patrol are law enforcement officers. Though they are primarily focused on border enforcement, I don't believe they are confined to that. A Border Patrol agent could probably give you a speeding ticket regardless of whether you had recently crossed the border, if he observed you speeding (guessing few would do so however).

If you're saying that absent any other reason, you would have to have recently crossed a border for the initial stop to be legal, maybe you're right. But random checkpoints for intoxicated drivers happen everywhere, and are legal.

> If you're saying that absent any other reason, you would have to have recently crossed a border for the initial stop to be legal, maybe you're right. But random checkpoints for intoxicated drivers happen everywhere, and are legal.

As you point out, Border Patrol are fully sworn law enforcement officers and can therefore enforce other laws besides mere border protection statutes.

However the legal requirements to perform a search of a vehicle (incl. the need to have crossed the border) are different from the requirements to stop a vehicle to interview the driver (which any LE can do incl. Border Patrol), which is one of the reasons that DUI checkpoints are legal in some circumstances.

I wouldn't be surprised if you're right, but how do you know that's what this means? I would think the ACLU would be all over that and would have at least mentioned it in the press release.

It means the fake "checkpoints" that already exist in certain states like Texas that are a hundred miles inland, are completely legitimized.

There was a guy who was almost beaten to death at one of them for refusing to comply, there is a youtube video somewhere of it.

News like this is buried just like all the gun deaths every week in Chicago, it never makes national news for some reason I don't quite understand.

The only videos I've seen are of people refusing to comply and being waved through. In one of those videos, the driver was asked for proof of citizenship, and spent 4 minutes attempting to demand proof of citizenship from the agent before they finally waved him through. It's pretty great.

Also: be careful that we're talking about the same thing. There are CBP searches that protect border integrity and search for contraband, and then there are ICE checkpoints that aim to catch illegal immigrants. In practice, ICE's authority is nothing like CBP's: CBP's is much more potent, and CBP is what this article is talking about.

This video shows a pastor being beaten and tased by border patrol after not answering their questions: https://www.youtube.com/watch?v=duSiAwGzU9c

http://www.azcentral.com/news/articles/2009/04/17/20090417bo...

CBP attempted to have this guy charged as a result of this incident. A judge dismissed all those charges with prejudice, in part because CBP couldn't show that the search was legal. He's now a plaintiff in a civil suit, where that dismissal will presumably be damning evidence.

Additional wrinkle in this case: a dog authorized the search.

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