Border Patrol Violates Fourth Amendment of Military Officer

[VAPA]

This post has been re-created with permission from Mike Irwin who explained that the previous thread was closed because this forum expects users to provide their own insight into any topic introduced in a thread.

The topic here is a video showing a near thirty-five minute Border Patrol detention by a driver who crossed no borders. It is my belief the video demonstrates a fourth amendment violation and is evidence of a culture in LEO that is unconcerned with civil liberty. I am afraid those civil liberties are diminishing in this country. What say those who cherish the second amendment? How about the fourth?

Video of Uvalde Texas Border Patrol Incident from March 2010

[Buzzcook]

The 4th amendment only exists on paper. At best it's hold on relevancy is tenuous.

Over the last 30 years it has eroded under the assault from drug war "necessity". It was the war on some terrorists that finally killed it. Officers can search you, your vehicle, your home, your business, and any individuals or institutions associated with you, without a warrant.

To paraphrase a Bush era politician the 4th amendment has become "quaint".

[geetarman]

That video is VERY disturbing.

Geetarman

[gyvel]

It's definitely scary.

[blume357]

I think the big problem is the guy not rolling down his window.... and being stupid.

I would be ****** too if this guy was being such a pain in the you know what.

It disturbs me too that this group sees a need to do this kind of stuff.

[gyvel]

After conferring with a retired Customs and Immigration agent friend of mine, I was informed that both sides made mistakes.

The detainee could, in fact, have been prosecuted under one or more Federal statutes regarding audio recording. He failed to inform the agents at the outset that he was videotaping AND audio recording the whole event. (He told them later, but should have told them right off the bat.)

Also, the Feds should have asked if he were a U.S. citizen before they pulled him to secondary.

[SwampYankee]

Wow, so this guy did nothing wrong but refused to get out of the vehicle? They harassed him for 30 minutes and then his CO disciplined him because he answered all of their questions properly and they had no suspicion to pull him over? Notice they never force him out of the vehicle (they no they have no right to).

Unbelievable. I guess the border patrol will hire any idiot these days....

[pnac]

The detainee could, in fact, have been prosecuted under one or more Federal statutes regarding audio recording. He failed to inform the agents at the outset that he was videotaping AND audio recording the whole event. (He told them later, but should have told them right off the bat.)

Got a cite for that, gyvel?

[RedneckFur]

I find it rather frightening that it is legal for LEO or the goverment to videotape or record me for their saftey, but it would be a crime for me to record an encounter with LEO for my own saftey.

[maestro pistolero]

Exactly. What about an interaction with a PUBLIC official, especially law enforcement, conveys ANY presumption of privacy whatsoever?

[pnac]

Recording without both parties consent seems to be legal federally and in all but a few states. The exception was if there is a reasonable expectation of privacy (e.g. Showers, dressing room, bedroom, etc). You notice that I said was. The fourth does not seem to apply for some.

http://www.answerbag.com/q_view/29004

What you are describing is called Surreptitious Recording. Here's some info I found on this:

The following is from:

http://www.rcfp.org/handbook/c03p01.html

Of the 50 states, 38, as well as the District of Columbia, allow you to record a conversation to which you are a party without informing the other parties you are doing so. Federal wiretap statutes also permit one-party-consent recording of telephone conversations in most circumstances.1 Twelve states forbid the recording of private conversations without the consent of all parties. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.2

The federal wiretap law, passed in 1968, permits surreptitious recording of conversations when one party consents, "unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." Amendments signed into law in 1986 and 1994 expand the prohibitions to unauthorized interception of most forms of electronic communications, including satellite transmissions, cellular phone conversations, computer data transmissions and cordless phone conversations.

Most states have copied the federal law. Some expand on the federal law's language and prohibit all surreptitious recording or filming without the consent of all parties. Some state statutes go even further, prohibiting unauthorized filming, observing and broadcasting in addition to recording and eavesdropping, and prescribing additional penalties for divulging or using unlawfully acquired information, and for trespassing to acquire it. In most states, the laws allow for civil as well as criminal liability.

Many of the state statutes make possession of wiretapping devices a crime even though one-party consent to taping conversations may be allowed.

Most of the state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. Most also exempt from their coverage law enforcement agencies and public utilities that monitor conversations and phone lines in the course of their businesses.

In general, state statutes apply to conversations that take place within a single state.

When the conversation is between parties in states with conflicting eavesdropping and wiretapping laws, federal law generally applies, although either state also may choose to enforce its laws against a violator

[Young.Gun.612]

Seems to me like he could show his CO the tape of this and get off the hook. It clearly shows the BP lied regarding questioning him about his citizenship status at the onset of the stop. Behavior unbecoming of an Officer? Seems to me he did his duty to protect the Constitution of the United States of America by not allowing them to circumvent his fourth amendment rights.

Especially since he crossed no national borders, why was there even this kind of a checkpoint?

[pnac]

Especially since he crossed no national borders, why was there even this kind of a checkpoint?

Hmmm... apparently you haven't heard, but don't feel bad, lot of folks haven't.
Do a search, much info.
I'm not a big fan of ACLU, but they do root up an acorn every once in a while.


http://rawstory.com/news/2008/ACLU_h...iles_1022.html

"ACLU highlights 'Constitution-Free Zone' 100 miles from border"

[Young.Gun.612]

Yeah, I tend to shy away form admitted communists. But I'll give the article a read.

[kodiakbeer]

I have to respect this guy for not allowing himself to be shook down by these cops. He paid the price for it - a junior officer with a "conduct unbecoming" on his record is going to miss his next promotion at best. His CO must be a complete idiot...

These guys happen to be border patrol agents, but the same scenario is played out every day by many agencies. Pull a guy over for what is generally a legitimate reason, then threaten and intimidate him into a search. If he doesn't intimidate, then take any revenge they can think of - in this case, call the military (his employer) and make a complaint. In a lot of cases, it means bringing some dog over and using the subjective "judgment" of the handler that drugs are present, destroy the vehicle - gut the interior, etc, while the driver is handcuffed and thrown down on the pavement. That'll teach him to fear law enforcement!

[TXGunNut]

Officer was being a jerk and the BP fell for his baiting. Officer may have been within his Fourth Amendment rights but the BP has a huge responsibility and a very tough job. According to veteran agents they seize more drugs and contraband as a byproduct of their primary duties than some agencies do on purpose. Dunno if they suspected contraband was in the car but that wouldn't surprise me. It bothers me that this officer feels he has to challenge these agents who work for the same employer as he, the American Citizen.
I'm afraid the Fourth Amendment is a casualty of the War on Terrorism. As a nation we may be safer but we've lost a bit of our precious liberty.

[pnac]

More than just a "bit", I would say. Jefferson said, to paraphrase, "We only have the rights we're willing to fight for".

But, hey, we're "safe".

I'm afraid the Fourth Amendment is a casualty of the War on Terrorism. As a nation we may be safer but we've lost a bit of our precious liberty

[Young.Gun.612]

They make work for the same company, but their method of operation are far different.

I don't knock the border patrol. But when it was obvious that the man in question is a MILITARY OFFICER, its time to drop the hardass act and let him on his way.

Also, I fail to see how the officer was being a jerk? He wasn't asked about his citizenship until AFTER he was asked to move to secondary. They asked if the car was his, he said yes, they moved him to secondary. And, all the info on the video states that the driver had finally put up recording devices after multiple instances of harassment at this particular checkpoint. If i had to put up with that, time after time, I'd get pretty mad too. Now throw in the fact that he's a decorated officer with 2 years of combat deployment time, and I'd be downright LIVID!

"More than just a "bit", I would say. Jefferson said, to paraphrase, "We only have the rights we're willing to fight for".

But, hey, we're "safe"."

Hows it go? "He who would trade liberty for safety, deserves neither"?

Probably not the exact wording, but it gets the point across.

[kraigwy]

Looks to me the guy was being a jert, trying to get something started.

We complain about our borders, drugs, illegals, etc. and now we are complaining because the customs folks are doing their job.

I've made hundreds of border crossings, some times its my turn in the bucket, sometimes its not.

Customs has the right to check anyone entering the country. Thats what we pay them for.

We're not talking about your neighborhood cop jacking you up, it customs, its no more illegal then searching you bags when you come in on an international flight.

If I was his commander, and saw the tape, it wouldnt look good on his OER.

[kodiakbeer]

A thought...

I wonder if the "conduct unbecoming" was about the border crossing rather than the actions in the video? A lot of commands put border towns off limits and a complaint might have revealed he was having a little unauthorized cheap beer.

[pnac]

video showing a near thirty-five minute Border Patrol detention by a driver who crossed no borders

Emphasis mine. The video is in response to multiple cases of harassment according to the video.

[Young.Gun.612]

Apparently no one read the info on the video.

He HAD NOT crossed any international borders. On his way from one U.S. city to another.

[kodiakbeer]

I just assumed he was heading down or back from the border. Still, no reason for the detention other than driving while ethnic.

If he hadn't crossed the border, his CO is a real jerk.

[johnwilliamson062]

It bothers me that this officer feels he has to challenge these agents who work for the same employer as he, the American Citizen.

If you have ever been around the border they have these checkpoints everywhere. They stop everyone and give everyone ****. I have never been bothered this bad, but I am usually in a caravan with a trailer with a dozen or so Kayaks on it when I am near the border. I am always surprised they don't want to search in the kayaks for drugs.
The video claims this was taped due to multiple instances and we have no knowledge of what the total history is. Maybe this guy was totally unstable previously and got into it with them. Future stops b/c of that would not be professional, but it also wouldn't be inhumane. There is obviously some history here.

Conduct of BP is at least un-professional, but not rolling down the window seems a bit odd. Afraid they are going to pull him out of the vehicle? Wants to conserve the AC? Who knows.

I don't think they have any grounds to charge him on the wiretapping/taping deal. I don't see how they could expect privacy in this interaction. I am pretty sure there was a case about people following officers with cameras where that bit was shot down some time ago.

[TXGunNut]

The background on this guy is not a part of this video and we don't have any proof of this, doubt the BP agents were aware of it either. I can't be sure it's even relevant. I somehow doubt there's an ethnic issue here as BP agents are quite often Hispanic, as are many of the inhabitants of border areas. My point is that despite many minutes of video, there's something we're not seeing here. Mistakes were made by both sides but I think there's a reason this incident happened and I didn't see it. The way I saw it the officer antagonized these agents and they went for the bait, no prizes for good judgement forthcoming from this incident.
YoungGun612, I couldn't agree more about giving up liberty for safety. It's wrong, but it seems to happen anyway. Fourth Amendment has seen a lot of challenges over the past 40 or so years and not all have had good outcomes. The most disturbing developments are usually the result of abuses by LE. Some folks believe that terrorism is just a convenient excuse for abridging our Fourth Amendment rights and they may be right.
This stop may seem on the surface to be a case of LE violating the rights of this military officer but I think there's more to it than this. I think the next few weeks or months will prove me right. JMHO, of course, and you're welcome to disagree with me.