In United States v. Martinez Fuerte, 428 U.S. 543 (1976), our United States Supreme Court ruled that the Border Patrol's routine stopping of a vehicle at a permanent checkpoint located on a major highway away from the Mexican border for brief questioning of the vehicle's occupants is consistent with the Fourth Amendment, and the stops and questioning may be made at reasonably located checkpoints in the absence of any individualized suspicion that the particular vehicle contains illegal aliens.
The Court went on describe the reasons for their decision and the impracticality of forcing Border Patrol Agents to obtain a warrant in advance of a checkpoint or requiring that Border Patrol Agents have reasonable suspicion for each vehicle stopped.
The Supreme Court’s ruling allows Border Patrol Agents to set up permanent checkpoints along major freeways, stopping all vehicles, and allowing Agents to question United States citizens regarding their citizenship and any other question that the Agents wants to ask in relation to your immigration status.
I have two questions for you: One, should you care? And two, if you do, how do you assert your rights at these checkpoints?
There are citizens who do not care about being stopped and asked, “Are you a U.S. citizen?” Or, “Where were you born?” Two arguments are generally advanced: (1) if you have done nothing wrong, you have nothing to hide; (2) we do not want illegal immigrants coming into our country and the brief stop is the price to pay for our added safety.
There are citizens who feel differently and do not like being stopped and questioned, while driving well-within the United States, without reasonable suspicion that they have committed a driving infraction or probable cause that they have committed a crime. I fall in this category. Let me tell you why.
Our country is founded upon the principle that law enforcement agencies must have some minimal evidence of wrongdoing before a citizen may be stopped and questioned. Police agencies must have probable cause that a citizen has committed a crime before an arrest can take place. A search of your personal effects or home is not allowed without a valid search warrant issued by a neutral magistrate. In sum, cops just cannot stop and question you or search your personal effects without just cause, pursuant to a lawful warrant. This concept is called Freedom. I am a firm believer that if we do not assert a right, we will eventually lose that right.
In March of 2016, I traveled with my investigator and former highway patrol officer, Jess Torres, to Nogales, Arizona to interview Homeland Security Officers with respect to a large drug case I was defending (my client was innocent but that is another story for another time). On our way back to Phoenix, we were stopped at a permanent border patrol checkpoint on I-19, just north of Tubac, Arizona. Tubac is 23 miles north of the Nogales, Mexico border. We never crossed into Mexico but conducted our interviews in Nogales, Arizona.
Jess was driving my white Chevy 4 by 4 Silverado truck. I was in the front passenger seat. We were stopped at the checkpoint with everyone else. Jess was asked if he was a U.S. citizen. He said “yes”. I was asked and I responded that I was not going to answer any questions and asserted my Fifth Amendment Right to refuse to answer questions from law enforcement. There was a lot of back and forth. Eventually, we were told to go to a secondary stop location, and I was ordered out of my truck. I complied but continued to assert my rights.
I video recorded what transpired. Eventually I was permitted to continue on my way home. I asserted my rights in a polite manner. I treated the officers with respect and never lost my temper or patience. I obeyed all commands but still vocalized my rights. I did not let them bully me into answering any question. I was not asked, but I would have objected to any search of my person or vehicle. I would have physically complied, but I would have still verbally objected. I did not answer any question. My main advice is that you never physically resist or attempt to drive away. You could be charged with a crime or, worse, be seriously injured. The time to fight is in a court of law, not out on the side of a freeway.
We live in a great country. We have rights that we take for granted. Many people in the world live under the thumb of a dictator. Our constitution is what sets us apart. However, if we fail to assert our rights, our government will usurp them. Our constitution was specifically written with the intent to prevent our government from hindering our freedom as citizens of the United States. I, therefore, prefer to subject myself to a little inconvenience at border stops rather than just going along. In this small way, I believe that I am helping protect our freedom from oppressive government.
