Border Patrol Violates Fourth Amendment of Military Officer

[gc70]

In Mimms you say that once a detention is done, they can order a driver out of the car. That presupposes probable cause.

Probable cause is not needed.

You may want to read Mimms more carefully. The Pennsylvania court thought probable cause or reasonable suspicion was needed, but the US Supreme Court disagreed.

"The Pennsylvania court did not doubt that the officers acted reasonably in stopping the car. But the court nonetheless thought the search constitutionally infirm because the officer's order to respondent to get out of the car was an impermissible "seizure." This was so because the officer could not point to "objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety.""

"We do not agree with this conclusion."

[kodiakbeer]

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.

I don't want the thread shut down for going off topic, so this will be my last post on this related matter. I'll just say that "Jerry" (of Jerry's landscaping services) is the ringleader and the real criminal. As it is now, when Jerry gets caught, he pays a small fine or faces no charges at all, and then rehires new workers and goes on as before. The taxpayer picks up the tab for the deportation and all the indirect social costs that Jerry's slavery ring creates. The obvious solution is to throw Jerry in prison for a year - a year for each illegal he employs. Then Jerry will stop luring illegals across the border.

And yes, we'll all have to pay more for a variety of services, but they'll be a direct cost where we have an option to buy or not. As it is now, we pay indirectly (with no choice in the matter) for everything from medical and social services to crime to decreased wages and poverty, unemployment, welfare, etc, created by illegal workers. I'll pay an extra five bucks for my restaurant meal and be happy to do so.

We have 10% unemployment in this country and if a living wage was paid, those people would take the jobs. Some jobs - seasonal agricultural jobs - will still require imported workers (and we'd need to create a workable system for that), but if there's no off-season jobs for them, they'll have to go home at the end of the summer. They'll have no choice since anyone else hiring them will go to prison.

'nuff said - back to the original topic.

[cannonfire]

OK i'm back but I want to ask how unreasonable this is and I'm not fighting either way, because no offense (I said no offense so I can say what I want, its in the Geneva Convention (Sorry, Will Ferrell quote)) but VAPA, your posts are getting way too long and too many big words for me to understand all at once ... But what do you think about each of those check points having a copy of the U.S. Constitution (With court ruling, etc) somewhere at the check point and if someone feels their rights are violated, then they can refer to the U.S. Constitution instead of having a "he said, she said"

[Buzzcook]

Just thought I'd post this vis a vis photographing police.

http://www.prisonplanet.com/uk-terro...e-illegal.html

New laws set to be passed in England and Canada would make it illegal to use bad language or take photographs of police officers, moving us further away from the idea of police as public servants and more towards the notion of cops assuming God-like status.

Laws that keep us from filming police are meant to protect police from embarrassment or possible legal action.
They are marketed as protecting the police from having their likenesses falling in the "wrong" hands. That's not something that passes the smell test.

However, even before the passage of the legislation, police in Britain have already been harassing and arresting fully accredited press photographers merely for taking pictures of them at rallies and protests.

Now this is about a proposed law in the UK and Canada. But the same thing is happening in the US.

http://rawstory.com/rs/2010/0506/dem...-2008-arrests/

Over 800 arrests were made during the convention. The New York Times noted that an estimated 50 of those detained were journalists.

While I realize most of the posters here have little sympathy for journalists, I just want to point out the similarity between the two instances. Government doesn't want to be recorded when it is acting improperly. Whether it is by private citizens or the media.

Those folks who are saying the man in the video "baited" or "trapped" the government agents are missing the point. If these officers were behaving properly the bait wouldn't have worked and the trap would not have been sprung.

One of the reasons we have a first amendment to so that government abuses of our other rights don't go unexposed.

[VAPA]

"You miss the point of what detain means."

Gc, I don't miss the point of what detain means. I said he was not detained FOR immigration status. Just because it's labeled as an immigration checkpoint does not mean that every detention is done to determine immigration status. This is obvious.

As for PC being needed with the PA law...that is an interesting finding. But what I know is that LEO cannot order a driver out of their vehicle for no good reason. Well they can, but the driver doesn't have to get out. And then on and on it goes until it ends up in court and the courts will decide if the LEO was justified for the order (whatever standard they choose to determine the "reasonable" factor needed for the 4th Amendment, be it probable cause, reasonable suspicion, or whatever). But there will be a standard. The Fourth Amendment protects us from unreasonable seizure. LEO cannot just order people out of their vehicles because they feel like it.

In this incident, it's clear the BP had no reason to order the guy out of the vehicle. The driver knew it, the agents knew it, and that's why they eventually sent him on his way.

[VAPA]

Cannon,

I suppose that might be somewhat useful but I doubt much. I think rather, lawyers should talk to LEO and they should come up with policies for the BP agents to follow and the BP agents should be well trained and follow those policies. Like many if not most do right now. The problem as I see it (having watched the full Pastor Anderson trial video), is that policy is not clear and the BP agents seem to operate in the realm of "make stuff up" a bit too much. While many do the right thing, some do not. Like the agents in this video. Had they done what most BP agents do, all would have been fine. But they messed up and they knew it and then they all huddled and tried to cover it up with some story (he didn't answer the question in primary). Ah! Yes, most agents ask for citizenship in primary (their purpose) just as the BP agent in the Anderson trial said they do in primary. But the BP agents in this video did not...in fact they wanted to push off the immigration status query because they wanted to mess with the driver.

I think there should be policy (there may be already), the agents should be trained, they should follow the policy and when they fail to, they should be disciplined. If they violate civil rights, in my opinion, they should be fired.

[gc70]

And then on and on it goes until it ends up in court and the courts will decide if the LEO was justified for the order (whatever standard they choose to determine the "reasonable" factor needed for the 4th Amendment, be it probable cause, reasonable suspicion, or whatever). But there will be a standard.

Mimms has already set the standard you think you are waiting for - and that standard is officer safety.

Your comments make it clear you have not read Mimms, or do not want to acknowledge its findings because they are contrary to your position.

[VAPA]

Gc,

Is your position then that because of "officer safety," in any interaction with the public whatsoever an LEO can order people out of the vehicle? Do you think the law states that?

How about handcuffing all individuals too for "officer safety?" A cop who pulls somebody over (no matter the reason, no matter if it's lawful or not, or if they have PC or reasonable suspicion) can just handcuff people because, after all, that makes the officer safer. Right?

You're simply wrong. Mimms, and all other case law, requires that an LEO have some reason before they can stop, order out, or do anything to the public. Your view seems to be that LEO can do whatever they want for officer safety. That's not how it works nor should it.

[cannonfire]

I think there should be policy (there may be already), the agents should be trained, they should follow the policy and when they fail to, they should be disciplined. If they violate civil rights, in my opinion, they should be fired.

I absolutely agree with you 100% on that... But don't you think that they are trained to up hold the policy? After all they aren't just handed a uniform and told to go mess with the public (at least I hope not). Personally I think that if you violate someone's civil rights, you should be arrested... But what is needed, I think, is more of checks and balance system since the courts can not be out at the check point.

Lets say every year there is an updated manual of the Constitution with all the case laws, etc. in there. Have it available to the public as well. This way, if someone has an arguement the BP can say 'well sir according to section blah blah on page blah, this temporary stop is not a violation of your 4th amendment.' or something to that effect.

I have no doubt that the BP were properly trained to conduct these checkpoints, but who is there to check them? I think that is the problem, but it takes a very strong person to not abuse power over people without being constantly checked

[gc70]

Your view seems to be that LEO can do whatever they want for officer safety.

A LEO can't do whatever he wants, but he can order a detained driver out of a car. That is not my opinion, but the Supreme Court's.

"The order to get out of the car, issued after the respondent was lawfully detained, was reasonable and thus permissible under the Fourth Amendment. The State's proffered justification for such order - the officer's safety - is both legitimate and weighty, and the intrusion into respondent's personal liberty occasioned by the order, being at most a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer's safety."

[VAPA]

Cannon,

In a perfect world I think your suggestion would be good. I just don't think most people (myself included) are informed enough to interpret case law at a BP checkpoint. There are disagreements even in the judiciary. That's why I think it boiled down to simple policy is the best bet.

You say, "But don't you think that they are trained to up hold the policy?"

I would imagine this is the case but after watching the full Steve Anderson trial on YouTube I'm not so sure. After watching those BP agents testify...it seems like the just kind of make stuff up. I don't know that there is clear guidance or policy for them.

[VAPA]

Gc....

Let me bring your attention to a couple parts of the case law you quote:

"after the respondent was lawfully detained,"

He must be lawfully detained! As I have been saying this entire time, there must be a valid REASON for the detention... It's not just some random reason that allows LEO to do whatever they want. In this video, there was no valid reason that would support pulling the driver out of the vehicle. Yes, just stopping at a checkpoint is a detention...that is true...a detention the courts have said must be done briefly to determine immigration status only. When it's clear the detention is done not to do that....it is UNLAWFUL.

Another great part of your quote: "when balanced against legitimate concerns for the officer's safety." Legitimate concerns! It's another STANDARD applying to ordering people out of the vehicle...it doesn't say that LEO's can do it whenever they feel it's in their interest of safety, it uses the word LEGITIMATE just like the Fourth Amendment uses the word REASONABLE.

Come on now...your arguments are bordering on ridiculous. You seem so intent to establish this view that LEOs can do whatever they want, for any reason they want. Face it, the driver did nothing wrong, the agents were wrong, and it's perfectly clear. I'll be happy to cite the opinion of the Court when the driver takes this to Court for you.

[gc70]

Come on now...your arguments are bordering on ridiculous.

The vast majority of my statements are summaries of court cases, which I link to, and quotes from the court's decisions.

You only seem to provide opinion.

Again, read the court's decision. The law is a worthy topic of debate; opinions, not so much.

[johnwilliamson062]

The vast majority of my statements are summaries of court cases, which I link to, and quotes from the court's decisions.

I can take out of context quotes from the bible to support almost any position. Doesn't really mean much at all though. You ignore some key phrases in those quotes also.

legitimate concerns

What were their legitimate concerns? At what point did this guy do anything to threaten them? Was it the fact that he was on the phone with the FBI?
'THIS ONE ISN'T A SHEEPLE OMG OMG WHAT DO WE DO???? HE IS A THREAT!!! PRONE HIM OUT!!!'

[gc70]

I can take out of context quotes from the bible to support almost any position. Doesn't really mean much at all though. You ignore some key phrases in those quotes also.

What were their legitimate concerns?

You are absolutely correct about the potential to take words out of context - and prove it with your question.

Following are two full paragraphs from Mimms (so you won't think the quote too out of context).

"Placing the question in this narrowed frame, we look first to that side of the balance which bears the officer's interest in taking the action that he did. The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation. The State argues that this practice was adopted as a precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground. Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault."

"We think it too plain for argument that the State's proffered justification - the safety of the officer - is both legitimate and weighty. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Terry v. Ohio, supra, at 23. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. "According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings - A Tactical Evaluation, 54 J. Crim. L. C. & P. S. 93 (1963)." Adams v. Williams, n. 3 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, (1973). Indeed, it appears "that a significant percentage of murders of police officers occurs when the officers are making traffic stops." Id., at 234 n. 5."

The Supreme Court discussed why concerns for officer safety outweighed "a mere inconvenience" to citizens. But you were not referring to the Supreme Court when you asked "What were their legitimate concerns?" (even though you lifted 'legitimate concerns' out of context from the Mimms quote).

Consider what safety concerns the BP agents might have had. Below are some things that can be observed on the video before the first BP agent tells the driver to go to secondary (Video #1 @ 0:37).

• the driver refuses to roll down his window more than an inch or two
• the window appears to be tinted, which would reduce the ability to easily see inside the car
• the driver's hands are low (right hand) or against the door (left hand) and probably out of sight from outside
• there are also 'things' in the front passenger seat that may not be readily identifiable from outside (laptop not visible in Video #1 but seen in Video #2 @ 4:08)

With a driver acting a bit unusual and possibly not being able to see what was going on in the car, the BP agent in secondary might have decided it was safer to ask the driver to get out of the car so that the driver's movements could be observed.

The four observations listed above probably meet the criteria of "objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety" which the Pennsylvania Court wanted to use but the Supreme Court said was not necessary in Mimms.

[gc70]

johnwilliamson062,

We probably share the same feeling that no free American citizen should have to undergo the indignities shown in the checkpoint video. However, before I get involved in such a situation and tell a LEO to pound sand, I want to know that I am legally in the right, rather than just feeling that I should be in the right.

[VAPA]

Gc,

I'll read this Mimms case this weekend. If it is saying that LEO can order people out of their cars after pulling somebody over randomly...with no reasonable suspicion, with no probable cause, with no traffic infraction, in the name of "officer safety" for "legitimate" reasons then you will have greatly educated me and I'll be very appreciative. But I just can't believe it will say that (of course they've said several things I can't believe they said).

The reason I'm skeptical it says that from your quote:

"The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation."

He was pulled over for a traffic violation I am assuming just as the State says was the officer's practice. It doesn't say here that it was his practice to pull people over randomly and then order them out.

I suppose you will say that stopping at a checkpoint initially is a detention. That is correct. And pulling somebody over for a traffic violation is a detention. That is correct. But they are not the same. One does NOT have reasonable suspicion or probable cause...ie the checkpoint stop. It's a suspicionless checkpoint. As such, the agents at the checkpoint must act differently. They cannot just pull people who stop out of their vehicles at a whim. They must have RS or PC that a crime has been committed. They cannot say "officer safety" and pull somebody out. Concern for their safety is not legitimate no matter what, if there is no RS or PC for a crime.

You cite reasons you think there was a legitimate safety concern (absent any RS or PC for a crime) by the driver in this video. Windows tinted? Didn't appear to be the case when I watched the video but most cars have some tint factory installed. Hand position? No different than any other driver more than likely. Here are more...his glove compartment may not have been open, perhaps there was a gun there. He probably had pockets in his clothing, could have been a gun there. Under the seats, COULD have been grenades who knows. So what? He's driving his vehicle on a highway and has done nothing wrong. LEO are not allowed to SEARCH his vehicle other than looking in the windows without RC or PC. Face it, they just won't know everything. It's a big scary world out there and they must operate in it knowing they cannot unreasonably search or seize people...that means they can't do so unless there is RS or PC for a crime. Like a traffic violation in your Mimms case. But there wasn't at the checkpoint.

This is basic stuff. So please let me know if Mimms said it was ok for LEO to pull people over without any violation, any reasonable suspicion for a violation, any probable cause, no traffic or other violation...just pull them over randomly and then order them out of the vehicle. If that's what it says (I highly doubt it) then I'll thank you for pointing out another horrible SCOTUS ruling and I'll read it in detail this weekend and admit that you have made an excellent point.

[Al Norris]

Originally Posted by VAPA

I suppose you will say that stopping at a checkpoint initially is a detention. That is correct. And pulling somebody over for a traffic violation is a detention. That is correct. But they are not the same.

In fact, they are exactly the same.

Detention: The act of keeping back, restraining, or withholding, either accidentally or by design, a person or thing.

Detention occurs whenever a police officer accosts an individual and restrains his or her freedom to walk away, or approaches and questions an individual, or stops an individual suspected of being personally involved in criminal activity. Such a detention is not a formal arrest. Physical restraint is not an essential element of detention.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

The detention first occurs in the stop at the check-point.

Once detained, Mimms kicks in and the BP officer can lawfully ask the driver to exit the vehicle. Probable Cause is not needed. ARS is not necessary, as Mimms states that a mere believable expression of officer safety is all that is required.

This is a very low standard, but it doesn't matter whether we like it or not. Unless or until the Court sets another standard, it is the one by which we will all have to operate under.

The Court also allows such encounters, as long as they are brief. The Court has given a lot of latitude in what the word "brief" means. Each case is different. What may be brief in one case, may not be in another. And vice versa. It is the particulars of each case that the Court looks at.

The driver was an Officer of the US Military. His conduct was certainly unbecoming. Had the situation been reversed, you can be assured that the Officer would have placed the driver in irons for gross insubordination.

[B. Lahey]

I am not a lawyer.

The 4th gets weird around borders, and this is nothing new. You can't just look at precedent from the rest of the US and think it applies, even SC cases and their stated rules and tests and whatnot if those cases were not dealing with a border area. You have to look at border cases, the SC has picked up a few, and they are unusual.

[gc70]

VAPA,

It is not quite as bad as you think. And the answer is in two parts - Martinez-Fuerte for the stop/detention and Mimms for exiting the car.

Part One: A stop/detention has to be legal. The general rule is that PC or RS is required for a stop/detention, but Martinez-Fuerte provides a special rule for immigration checkpoints. The Court allows stops/detention at immigration checkpoints, without PC or RS, simply to help achieve the public policy goal of preventing illegal immigration. The only limit on a checkpoint stop/detention is that it must be "brief" (more later).

Part Two: Once a legal stop/detention has occurred, Mimms kicks in. Mimms is a general rule that a driver can be ordered out of a car, totally at the police officer's discretion. There is no special provision in Mimms, or any other case, about exiting a car at immigration checkpoints, so the general rule always applies.

Put the two parts together and you have the whole picture. A normal stop/detention requires PC or RS, so there is already a logical officer safety basis for making the driver exit the car. An immigration checkpoint stop/detention does not require PC or RS, so the officer safety basis for making the driver exit the car may not seem as strong. But Mimms does not recognize any difference between the two types of stops and simply says: legal stop = exit the car.

Regarding "brief detention" at immigration checkpoints, Martinez-Fuerte gives a bit of time for normal questioning, but requires PC, RS, or some other suspicion to detain someone for an extended time. At the checkpoint in Martinez-Fuerte, the BP reported that the average time for a secondary stop was three to five minutes. The Court did not object to that amount of time, so "brief" must be at least three to five minutes. How much more time would exceed "brief" and possibly cause a detention to become illegal? The Supreme Court will tell us when they see it in a future case.

[VAPA]

Anti-[America],

You're simply wrong but I love your advocacy for a police state.

By your view, any detention is a detention. We can agree on that. But in your view once that box is checked (it's a detention-no qualifiers needed) then Mimms "kicks in" and the officer is then able to order people out of the vehicle lawfully (though you don't mention the "legitimate" standard which is convenient to your argument). So an UNLAWFUL detention is a detention still, right? Yes it most certainly is. So by your standard the officer can legally order somebody out of a vehicle once they are detained...doesn't matter how, why, what, where...as long as it's a "detention." Nothing says it has to be a lawful detention in your view...just pronounce it a detention. You completely ignore the qualifiers in Mimms and, most importantly, common sense.

But, again, this will be decided in the Courts and if you're interested let me know and we can put a wager on the outcome. I'm always interested in easy money.

But your claim that the officer's conduct was unbecoming really blows me away...wow! What a scoundrel he was, right! I certainly feel less safe knowing that man is out there making war against our enemies on foreign soil. I mean, by God, he rolled his window down only enough to communicate with agents who were charged with determining his immigration status and in accordance with the expectations set by the agents themselves when they finally released him! It's absolutely scandalous! We can't allow people of that caliber to serve this nation, I agree. Who cares if he took an oath to defend the Constitution and who cares if everybody and their mother, including the agents (except you) admit his actions were completely legal... he did not bow down to you and your ilk. Completely unacceptable and, as you correctly state, conduct unbecoming a complete cowardly servile traitor to his uniform. Oh, is that not what you said? I'm sure that's what you meant though. His conduct was unbecoming a sheeple, no doubt.

The weather is nice in China this time of year... Ever thought about visiting? I think you would love it there.

[cannonfire]

VAPA,

Ok this is what I want you to do before you respond any further...

1. Close your eyes
2. Grab both your earlobes
3. Start massaging
4. Take a deep breath in, exhale out
5. Say "WooSaaa" a couple of times.

Calm now? BP down? Ok good, now continue, love the sarcasm!

P.S. Is China actually nice this time of year or are you just saying that?

And I must say, just because you are in the military, does not mean you are not an American citizen. So unbecoming of an officer I think is total BS. He did nothing illegal, although being a pain in the @$$, but playing dumb is not illegal and never will be. It should have never gotten to his CO, if he did get in trouble, it was because this was made public.

I do not believe it says he actually got in trouble but rather the BP attempted to get him in trouble by the 3 page letter and emails.

[VAPA]

Calm now. Thanks Cannon!

[gc70]

VAPA,

Best of luck with your Fourth Amendment efforts related to the OP video. While I think your efforts have little prospect of success, I can't fault a person's motives for genuinely trying to broaden personal liberties. However, when insulting personal innuendo is introduced into a discussion, that is my cue to depart.

[VAPA]

This is the second time you have said you will depart Gc. Thanks for the conversation.

As far as "insulting personal innuendo," I'm not sure I'm the first or the only to introduce it.

You said previously of me, "You have already drank the kool-aid and there is no room for debate or disagreement in your mind." You further called me an "agenda-driven posters who [denies] the obvious and claim[s] their position to be absolutely, incontestably right." You then accused me of "propaganda" rather than discussion and debate and implied I was not "open to rationale debate."

I'm not the only person who has been insulting. But I'm not complaining as I will gladly take your insults combined with the great info and viewpoints you have brought into this discussion (though I disagree with your interpretation of that info and think it's done in a "how can I support my view fashion").

I appreciate your viewpoint and your disagreeing with me....disagreement, even insult, is a very American characteristic.