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Old May 26, 2010, 04:13 PM   #101
VAPA
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LOL. Yeah, I guess it is all situational...
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Old May 26, 2010, 08:11 PM   #102
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First, the PA law doesn't apply to the driver as far as exiting the vehicle.
VAPA, you clearly fail to understand PENNSYLVANIA v. MIMMS. Mimms was not about a Pennsylvania law, but how the Supreme Court of Pennsylvania applied the Fourth Amendment of the United States Constitution. The United States Supreme Court's decision in Mimms established a national standard for the Fourth Amendment, which applies to all states.

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The driver had no legal obligation to exit the vehicle because this was not a lawful stop for the purpose of immigration status but was a fourth amendment violation from the onset.
In UNITED STATES v. MARTINEZ-FUERTE, the United States Supreme Court decided that a brief detention at an immigration checkpoint does not violate the Fourth Amendment.

"Brief" is an uncertain term, but from the time the first BP agent approached the driver (Video #1 @ 0:26) until the driver was ordered to exit his vehicle in secondary (Video #1 @ 1:36), a total of 70 seconds had elapsed. I doubt that 70 seconds is so long as to exceed the meaning of "brief" and invalidate the stop.

In PENNSYLVANIA v. MIMMS, the police authority to order an individual who has been detained (stopped at a checkpoint, per Martinez-Fuerte) to exit a vehicle is discretionary. The officer can have a reason, or no reason at all, but the order to exit the vehicle is still legal.

Finally, I personally think the BP agent should have asked the driver about his citizenship status before referring him to secondary. However, the Supreme Court has even endorsed selective questioning and referral to secondary.

Quote:
U.S. Supreme Court - UNITED STATES v. MARTINEZ-FUERTE

Most motorists are allowed to resume their progress without any oral inquiry or close visual examination. In a relatively small number of cases the "point" agent will conclude that further inquiry is in order. He directs these cars to a secondary inspection area, where their occupants are asked about their citizenship and immigration status.
.....
Moreover, selective referrals - rather than questioning the occupants of every car - tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public.
So it may well be that the "point" BP agent did not need to fully question the driver and had the legal discretion to direct the driver to secondary for further questioning.
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Old May 26, 2010, 09:33 PM   #103
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My take on it. He was within his rights as a citizen. But it was not the kind of behavior I expect from someone who enjoys the priveleges of rank in the US armed forces. He made his choice, his military career is over.
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Old May 27, 2010, 01:10 AM   #104
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Gc,

What I think you fail to understand is that the difference between the PA law and this incident lies in the fact that, in this incident, the request to exit the vehicle was unlawful. To go back to the Nipples example, if the BP agents had demanded he pinch his nipples and yet the driver only pinched one nipple, that would not be cause to order the driver out of the vehicle. For you to think otherwise is to think BP agents can order a person out of their vehicle for any reason, or no reason at all, despite being limited by the Courts to only determine immigration status. As others have said on this forum, you and I can disagree on "reasonable" and "probable cause" and "suspicion" but the determiner will be the Courts. If you want to make a wager on what is determined in the Courts with the pending lawsuit concerning this incident, please let me know. I would love to make some quick money.

Edit: I'm not challenging your assertion that the driver could be secondaried for "mere suspicion." But, they cannot order him out of his vehicle without probable cause. In the video they had neither. The Fourth Amendment violation begins early on when it's clear they are not interested in his immigration status (only question in primary, "is this your vehicle") which is outside the scope of the checkpoint's legal purview (to establish citizenship). Do you think a Judge is going to watch that video and come to the conclusion that the driver was secondaried and ordered out of his vehicle to determine immigration status? No way. So it's a violation from the beginning. It's made much more clear as time passes that they don't care about his status. He puts ID up on the window which should have ended it, but it doesn't. In fact, they later tell him his ID is irrelevant because it's not immigration documentation despite the fact they asked for it. So if the Judge takes them at their word, the question is, "why did you further extend the stop by asking for documentation that was irrelevant because it's not immigration documentation?" Then the DRIVER has to ask if they want a passport and they ignore it. Instead they finally ask if he's a citizen and he gladly says yes. But even THAT doesn't end it. Instead the agents begin lying to justify WHY they secondaried him (you didn't answer that question when we asked in primary...a lie that is furthered by the supervisor much much later in the long detention). Then later when the supervisor shows up, the driver already has two IDs, and two passports on his glass. Still, that doesn't end the detention. Then when the supervisor asks for the passports, already offered by the driver much earlier, that should end it right? But no, the supervisor further extends the detention, passports in hand, to ask questions not related to his immigration status (who is your boss) and takes more time to retaliate against him. The Fourth Amendment violation in this video is massive and the Courts will have no problem establishing that fact I am certain. Relevant case law says their scope is to be brief solely to determine immigration status. That wasn't done. Case law says that questions which further the detention that are not related to immigration status are a violation of the Fourth Amendment. Waiting to call somebody's boss after they have provided two passports, two IDs, and said they were a U.S. citizen is therefore a violation of the Fourth Amendment. The retaliation against the driver, well, that's even more nefarious and it will be interesting to see how the Courts rule there. I would expect the taxpayers will be paying for this one.

BTW, the full video of Pastor Anderson's trial was just released: https://www.checkpointusa.org/blog/i...2/p216#more216

Poptime,

That's an interesting perspective. You say the driver was within his rights as a citizen yet you think there is another standard that justifies ending his career as a military officer. Is there a standard for military officers to submit to unlawful authority or to unlawful requests by the government? And how do you square this with an officer's oath to support/defend/bear truth faith and allegiance to the Constitution (which includes the Fourth Amendment right to be free from unreasonable searches and seizures)? Yes or No...would you agree that exercising one's rights supports those rights (ie the more people who exercise their rights to keep and bear arms support those rights by preventing anti-2nd Amendment types from painting pro-gun citizens as fringe lunatics, for example)? If you think exercising rights does in fact support those rights, then what is the source of your expectation of a military officer to submit to unlawful demands which trumps the oath to support the Constitution? Or perhaps you would rather the oath to Constitution, demanded by the Constitution itself, be replaced by your standard that government officials submit to any government demand regardless of its Constitutionality (for example, disarming American citizens when ordered regardless of the rights that are violated in the process)?

Last edited by VAPA; May 27, 2010 at 08:34 AM.
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Old May 27, 2010, 02:34 AM   #105
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But it was not the kind of behavior I expect from someone who enjoys the priveleges of rank in the US armed forces.
Do we thank veterans for service, or do they thank us for all the privileges we don upon them? Is it different if they are officers?

Yes, his career is over, probably even if he overturns the disciplinary action. People will remember and the fact that he brought a civil suit will especially be remembered

If an officer of the armed forces had refused to give up firearms in NO the same people castigating him here probably would have cheered him non-stop and been outraged at the punishment he received. Fourth amendment on the other hand and he should repeatedly sit there and take it.

Military officers have to accept they give up some of their constitutional rights as part of their job, but should that extend to off base or things totally unrelated to their job? The actions of the BP agent are nothing short of retaliatory. What law enforcement officer can call your boss and report your actions to them without a trial? The officer does sort of open himself up to this when he makes a big deal out of being an officer I guess.

Of course, this officer probably wasn't a good fit for the military if he did this in the first place, so his career probably isn't that much worse off than it was before.

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Old May 27, 2010, 08:19 AM   #106
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"The officer does sort of open himself up to this when he makes a big deal out of being an officer I guess."

In the video the driver never even mentions he's an officer. They ask if he's in the military and he says, "I am in the military" and that's the extent of his discussion of him being in the military. Therefore, he certainly doesn't make a big deal out of it. If you have another quote otherwise please share.

Does anybody else notice the tendency to WANT to punish the driver even by people who admit the retaliation against the driver and the legal behavior of the driver and the illegal behavior of the agents? It just seems to me that this idea of "obey" is so conditioned in us that it's almost subconscious to attack those who stand up to the government. Maybe I'm reading too much into it.

Last edited by VAPA; May 27, 2010 at 08:38 AM.
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Old May 27, 2010, 08:40 AM   #107
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My own view is that an officer in the military is held to a higher standard of conduct. IMO, he should have treated the BP's request to roll down the window at the outset as an order from a 5 star general. I doubt that there would have been a confrontation at all if he had. It looks to me like he was deliberately being provocative. An "I don't HAVE to, so I'm not going to, so THERE!" attitude.
Not a crime, but clearly not a higher standard.
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Old May 27, 2010, 08:46 AM   #108
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Here are a couple question for those who think the conduct of the driver did not measure up to what he "should" have done in the situation (despite it being legal) and who think he in some measure deserves punishment by the military. First, does the officer's oath to support/defend the Constitution require him to forcefully exercise his rights in this situation (as he did) or should he be more compliant and give up those rights in the face of unlawful requests? Second, does the same standard of "should" despite the oath apply to politicians and judges who have also taken that same oath to support/defend, why or why not? Finally, if the government decides to confiscate your guns and ignore the Second Amendment...didn't your standard for public servants lead to that and what will be your complaint if that were to happen?
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Old May 27, 2010, 08:46 AM   #109
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Finally, I personally think the BP agent should have asked the driver about his citizenship status before referring him to secondary.
Why? If the stop is good, why a preference for an upfront question about citizenship?

Quote:
However, the Supreme Court has even endorsed selective questioning and referral to secondary.



Quote:
U.S. Supreme Court - UNITED STATES v. MARTINEZ-FUERTE

Most motorists are allowed to resume their progress without any oral inquiry or close visual examination. In a relatively small number of cases the "point" agent will conclude that further inquiry is in order. He directs these cars to a secondary inspection area, where their occupants are asked about their citizenship and immigration status.
.....
Moreover, selective referrals - rather than questioning the occupants of every car - tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public.
So it may well be that the "point" BP agent did not need to fully question the driver and had the legal discretion to direct the driver to secondary for further questioning.
Emphasis added.

The problem here appears to be that the BP agent conducted no inquiry relevent to a leagl purpose before detaining the driver, so this stop doesn't appear to fall within the rule of Martinez-Fuerte.
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Old May 27, 2010, 08:51 AM   #110
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"My own view is that an officer in the military is held to a higher standard of conduct."

I agree. That higher standard is embodied in the oath he took to support/defend the Constitution and he met that higher standard.

"IMO, he should have treated the BP's request to roll down the window at the outset as an order from a 5 star general."

Why?

"An "I don't HAVE to, so I'm not going to, so THERE!" attitude."

That's not the what the video shows. His window was partially rolled down when he got there. The agent asked if he could roll down his window and if it could roll down more, and the driver rolled it down more and more than enough to communicate and pass documentation. Your assertion of his "so THERE" attitude isn't supported by the video when I watch it.
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Old May 27, 2010, 09:03 AM   #111
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Maybe I'm reading too much into it.
Pretty much

We do submit to law enforcement when we have nothing to hide.If you will notice most people who have something to hide tend to act like this guy in the video.

He's done this before and made sure he did it again but this time added a camera,therefore he had an agenda and i'm sure he'll win his lawsuit when some hotshot lawyer takes his case.

After this the border patrol will have the same authority as was walmart securty.They have no weapons and as all illegals and do-badders cross our borders,they will have to stand there and wave them through with a smile and a nod.
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Old May 27, 2010, 09:07 AM   #112
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We do submit to law enforcement when we have nothing to hide.
That's not a sentiment arising from law or courtesy.

People with nothing to hide routinely deny the state access to their affairs.
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Old May 27, 2010, 11:41 AM   #113
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After this the border patrol will have the same authority as was walmart securty.They have no weapons and as all illegals and do-badders cross our borders,they will have to stand there and wave them through with a smile and a nod.
??? The issue here is not stopping illegals - the man in the video provided every document asked for, immediately and politely.

Illegal immigration is never going to be stopped at the border anyway. It will be stopped when "Jerry" of "Jerry's Landscaping Services" gets tossed in prison for hiring illegals. Jerry is the criminal, not some poor fool from rural Mexico that Jerry hires for slave wages.

While we are militarizing our border and throwing billions at overzealous BP agents, Jerry is still luring illegals in by offering them jobs. Jerry is the problem - hell, we're all the problem! When we're ready to throw the local fast food manager in jail and pay an extra buck for our hamburger or an extra 50 bucks for our landscaping services, then the flood of illegal immigration will cease. Until then, we're just throwing taxpayer money at the border with one hand while offering cash incentives to illegals to sneak through with the other hand.
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Old May 27, 2010, 12:03 PM   #114
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Until then, we're just throwing taxpayer money at the border with one hand while offering cash incentives to illegals to sneak through with the other hand.
I had a similar conversation with bay Buchanan once. Seems that so long as we have a labor shortage, and Mexico doesn't give enterprising citizens adequate opportunity, no wall will fix the problem. East germans made it to the west, cubans make it to florida, and boat people made it out of vietnam.

My sense was that would prefer to decrease available labor to drive up wages.
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Old May 27, 2010, 12:44 PM   #115
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Ok instead of Border patrol,put a bigger wall and have real military checkpoints,Nothing gets in or out.While we are at it put a $200.00 price on any illegal that gets captured.


Quote:
Until then, we're just throwing taxpayer money at the border with one hand while offering cash incentives to illegals to sneak through with the other hand.

This is very true and we should put a higher price on the heads (say $500.00) of those who help in the smuggling,harboring or hiring of known illegals.
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Old May 27, 2010, 12:51 PM   #116
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Jerry is the criminal, not some poor fool from rural Mexico that Jerry hires for slave wages.
Once that "poor fool" illegally crosses the boarder into the United States, he is just as much a criminal as Jerry is. They both are in violation of the law.
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Old May 27, 2010, 01:02 PM   #117
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While I am not entirely sure how political is too political for this board, I think that we've wandered sufficiently from the legal question that I would invite anyone interested in the political facets of the issue to post at the board in my signature.

It seems important to read exceptions to the general rights of a citizen narrowly since a broad reading of necessary or practical exceptions would be unduly erosive. A citizen's fourth amendment protections are at a low point when re-entering the country, i.e. at the border. I wouldn't like the government to see a work-around in calling routine law enforcement an immigration stop; I don't doubt that the BP finds evidence of all sorts of illegal activity but that should remain incidental to its primary purpose, border enforcement.
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Old May 27, 2010, 08:11 PM   #118
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When the utmost portion of your job which is proven by oath is to uphold the Constitution of the United States of America...

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Not a crime, but clearly not a higher standard.
Than the HIGHEST STANDARD is to make error or blatant disregard for the OATH they also take (OR SHOULD), on the part of our BP officers, known to their superiors, your superiors, and the USofA in general...

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Old May 27, 2010, 08:53 PM   #119
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We do submit to law enforcement when we have nothing to hide.If you will notice most people who have something to hide tend to act like this guy in the video.
BS. Look at how many people on this board who can legally own firearms aoid NICS checks and how many people on classifieds sites want to do FTF only but have a CCW card to show they can legally own. They obviously don't want .gov to know any more about them then necessary even though they can legally own a firearm.

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He's done this before and made sure he did it again but this time added a camera,therefore he had an agenda and i'm sure he'll win his lawsuit when some hotshot lawyer takes his case.
Maybe you have never been to the border, but anyone who has gone to the border much in the last decade has gone through some sort of similar treatment. Some of it just has to do with how quickly the BP has expanded. To meet those expansion goals they hired a lot of people turned down by other law enforcement agencies and probably have not been able to train those people to the highest standards. This treatment isn't uncommon at all.

Quote:
They have no weapons and as all illegals and do-badders cross our borders,they will have to stand there and wave them through with a smile and a nod.
Do you really think they don't have weapons or have you made grammatical errors and think this will result in them being disarmed?
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Old May 27, 2010, 09:23 PM   #120
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When (and if that ever happened) I have had "anything to hide" I act like a little cherub!!! When I am "in the clean and right" I get the chance to exercise all my rights! I will utilize this feller's tactic of placing my ID and "papers" 'tween the glass and window seal.

Too bad many of my rides didn't even have glass in the doors and I still get pulled over for my "TINT IS TOO DARK" when Fla law has no stipulation on Limo tinting in that my front sides and windshield are subject to tint limits but my rear sides and back glass can be painted over so long as I have to outside mirrors...

Tell me I don't have a right to buck the harassment! And when they "walk the dog around the vehicle", He always seems to alert when on the opposite side of my car that hadn't had weed, coke, heroin, large quantities of cash inside in the several years I owned it...

Let the goob do his puppy walk and I sit in cuffs on the side of the road getting bit by fireants while they trash my old ride!

When done it is, somehow, my job to properly reinstall the 2 back seat portions, my air cleaner box, and various other items.. not to mention my ruined hi-lite marker I was using to mark my route on the map I showed them!

A perfectly good explanation wasn't good enuff! I was lookin' to move to a LOWER crime area... So why couldn't they bust any of the 6-12 dozen groups of OBVIOUS MEXICAN "workers" I seen in the 10 or more miles I was "tailed"?

Good job SOLDIER!!!

I was only dealin' with a sheriff detail that don't "profile"...

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Old May 27, 2010, 09:57 PM   #121
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originally posted by VAPA
For you to think otherwise is to think BP agents can order a person out of their vehicle for any reason, or no reason at all, despite being limited by the Courts to only determine immigration status. As others have said on this forum, you and I can disagree on "reasonable" and "probable cause" and "suspicion" but the determiner will be the Courts
Martinez-Fuerte allows a person to be detained to determine immigration status.

Once a person has been detained, Mimms gives officers the option (with no reason required) to order the person to exit the vehicle.
"The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it."
Quote:
The Fourth Amendment violation begins early on when it's clear they are not interested in his immigration status (only question in primary, "is this your vehicle") which is outside the scope of the checkpoint's legal purview (to establish citizenship).
I have not (yet) found where the Supreme Court has directly addressed the precise scope of questioning at a border checkpoint. In the interim, the Tenth Circuit's decision in Rodolfo Rascon-Ortiz sheds light on the subject.
"After the district court ruled in this case, we made clear that the permissible scope of a routine border checkpoint stop extends beyond a mere inquiry into citizenship. Thus, the district court did not have the benefit of our observation that a few brief questions concerning such things as vehicle ownership, cargo, destination, and travel plans may be appropriate if reasonably related to the agent's duty to prevent the unauthorized entry of individuals into this country and to prevent the smuggling of contraband."
Quote:
Do you think a Judge is going to watch that video and come to the conclusion that the driver was secondaried and ordered out of his vehicle to determine immigration status?
I think a court will not care whether questioning is done in primary or secondary, as explained in the Tenth Circuit's decision in Juan Manuel Rascon-Ortiz (no kidding - two Fourth Amendment cases involving guys named Rascon-Ortiz, decided in the same circuit and in the same year).
"There are two statements of law in Martinez-Fuerte which are especially relevant to our discussion. First, the Supreme Court held that border patrol agents may direct motorists from the primary inspection area to secondary without individualized suspicion and "have wide discretion in selecting the motorists to be diverted.""
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Old May 27, 2010, 10:23 PM   #122
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originally posted by zukiphile
The problem here appears to be that the BP agent conducted no inquiry relevent to a leagl purpose before detaining the driver, so this stop doesn't appear to fall within the rule of Martinez-Fuerte.
Emphasis added.

You are 'detained' from the time you are stopped at a checkpoint until you are told that you are free to leave. It would be impossible to question you before you were stopped. Below from Martinez-Fuerte.
"It is agreed that checkpoint stops are "seizures" within the meaning of the Fourth Amendment."

"The stop does intrude to a limited extent on motorists' right to "free passage without interruption," and arguably on their right to personal security. But it involves only a brief detention of travelers"
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Old May 27, 2010, 10:25 PM   #123
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VAPA,

Thank you for challenging me to reacquaint myself with the Fourth Amendment.
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Old May 28, 2010, 11:20 AM   #124
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Gc,

Glad to be of service and thanks for the great research. Your argument from above is good but requires clarification for this instance. You cited Fuertes accurately..."Martinez-Fuerte allows a person to be detained to determine immigration status." That is true. But in this video the agents clearly did not detain to determine immigration status. They detained for some other reason that we don't know (we only know the reasons they gave were false). We do know it wasn't for immigration status. So the detention was unlawful.

In Mimms you say that once a detention is done, they can order a driver out of the car. That presupposes probable cause. Again, it doesn't apply in this video. There was no probable cause of a crime being committed.

Your case law is good...it just doesn't support the agent's actions in this incident.
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Old May 28, 2010, 01:23 PM   #125
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Quote:
But in this video the agents clearly did not detain to determine immigration status.
You miss the point of what detain means.
To keep from proceeding; delay or retard. (thefreedictionary)
To keep from going on; hold back. (yourdictionary)
To hold back or delay. (Encarta)
From the moment the driver first stopped at the immigration checkpoint, he was detained (kept from proceeding; delayed; kept from going on; held back). It is hard to argue that a large, permanent immigration checkpoint that spans the highway and prevents "free passage without interruption" is for some purpose other than determining immigration status. So, the driver was stopped (detained) to determine immigration status.

Your objection seems to be about how long the driver was detained and how long it took the BP agents to get around to asking immigration status questions.
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