The praetorians: an analysis of U.S. border patrol checkpoints following Martinez-Fuerte.

Author:Osete, Jesus A.


Suppose Jose needs a gallon of milk from the grocery store. He puts on his shoes and grabs his car keys and his wallet. The grocery store is located outside of town. Jose is aware of the inevitable: he'll have to cross an immigration checkpoint located halfway between his house and the grocery store. Upon arriving at the checkpoint, Jose must declare his citizenship to an immigration officer. Jose tells the officer that he is a US Citizen. The officer, however, is skeptical; he asks Jose for documentation. Jose, befuddled, pulls out his driver's license and presents it to the officer. The officer scoffs, informing Jose that his driver's license does not prove his citizenship. Thereafter, the officer instructs Jose to pull over to the side for further inspection. Jose complies, and other officers inform Jose that they will search his vehicle. Jose, having nothing to hide, consents to the search. Jose waits while officers and a canine inspect his vehicle. He's nervous; the canine is sniffing all sorts of things in his car. Perhaps it's the scent of pizza in the rear seat, or perhaps it's his dog's hair spread all over the driver's seat. An immigration officer approaches Jose, telling him that the canine sniffed marijuana in the vehicle. Jose can't believe what he's hearing. He can only imagine how much longer he'll be detained at the checkpoint. Will officers tear up his vehicle and find nothing? Will officers delay him further? An officer eventually lets Jose go. His five-minute trip to the grocery store became a thirty-minute trip. Unfortunately for Jose, the grocery store closed the minute he left the checkpoint. Jose returns home, fearful and empty-handed.

The Constitution applies to every person in the United States. It applies to every person regardless of race, citizenry, and immigration status. It certainly applies to individuals like Jose. Specifically, when a person travels within the United States, he or she can rest assured that in his or her travels, the Constitution will attach itself to each step he or she takes. This includes instances where a person crosses the border from Mexico, Canada, or elsewhere into the United States. But in recent times, it seems as if the Constitution is no longer recognized in some parts of the United States. Concealed by the cloud of an omnipotent and intrusive government, people like Jose find themselves having to prove their citizenship, defend their ethnicity, and routinely fold on exercising fundamental constitutional rights within the United States. These procedures occur within 100 miles of the international border. One then must truly ponder when exactly did we begin to shrug off constitutional protections that, presumably, apply within the United States.

The answer leads us to the late seventies, when the Supreme Court held in United States v. Martinez-Fuerte that the United States Customs and Border Protection ("Border Patrol," or "CBP") could constitutionally operate checkpoints within the United States for the purpose of conducting brief, routine questioning in order to verify a person's citizenship and immigration status. (1) The case was fueled by efforts to curtail the flow of undocumented immigrants into the United States from Mexico. (2) Some of these undocumented immigrants came to the United States because of economic opportunities unavailable in Mexico. (3) But throughout the thirty-eight-year history since the Court's holding, some argue that CBP routinely ignores, misunderstands, or continuously refuses to acknowledge the fact that the checkpoints were to be solely utilized for immigration inquiries. (4)

In addition to preventing undocumented immigrants from entering the United States, the checkpoints "yield a far richer harvest--a cornucopia of contraband, particularly illegal drugs." (5) Moreover, checkpoints are utilized in other law enforcement functions, such as apprehending human traffickers (6) and intercepting unregistered firearms. (7) One can hypothesize the endless law enforcement functions that checkpoints could serve outside the immigration context: perhaps apprehending inmates who break out of prison, catching notorious drug lords like "El Chapo" Guzman, or perhaps even preventing terrorist organizations like Al Qaeda and ISIS from committing gruesome acts against Americans. (8) Thus, the checkpoints can pursue laudable objectives within the United States.

This broader use of the checkpoints, however, "subverts the rationale of Martinez-Fuerte and turns a legitimate administrative search into a massive violation of the Fourth Amendment." (9) The underlying reasons the checkpoints are scrutinized are twofold. First, the "Martinez-Fuerte [court] approved immigration checkpoints for a very narrow purpose--detecting, and thereby deterring, illegal immigrants." (10) Second, individuals have become frustrated by the undermining of fundamental constitutional protections that, presumably, apply within the United States. (11) Individuals traveling through the checkpoints consist of US citizens, lawful permanent residents, and foreign travelers. Hispanics (12) primarily take issue with the controversial language from Martinez-Fuerte, where the Court allowed CBP to use "Mexican ancestry" to interrogate, and potentially search, certain individuals. (13) Non-Hispanics likewise take issue with the checkpoints because the procedures have opened the floodgates to harassment and abuse. (14)

A "round-the-clock US Border Patrol presence at the checkpoints means that American citizens must endure inspection when they commute to work or run errands." (15) Some individuals encounter checkpoints while on their way to the supermarket, a doctor's appointment, or the bank. (16) Others claim that the checkpoints have negatively affected local communities' economies, including the real estate market, (17) tourism, shopping, and recreational activities. (18) In fact, in certain places, there is no way to get out of town without encountering a checkpoint. (19) Complaints range from allegations of "unnecessary delays, harassment and sometimes abuse at the checkpoint[s]" (20) to allegations of "unconstitutional searches and seizures, excessive use of force, racial profiling, and other agent misconduct." (21) While these occurrences are infrequent, they are clear violations of the Constitution and should concern all of us.

This Note proposes standards for checkpoint procedures that would strike an equilibrium between implementing effective law enforcement procedures at interior checkpoints and preserving constitutional values within the United States. This Note distinguishes CBP procedures conducted at the international border, which address compelling governmental interests in regulating foreign commerce and preserving national security, from CBP procedures not conducted at the international border that should be scrutinized much more stringently. (22)

Thus, this discussion is broken down as follows. Part I provides a brief history of the checkpoints, including CBP's organizational structure, its functions at the checkpoints and its authority for carrying out those functions, and the Supreme Court's approval of checkpoints in Martinez-Fuerte. Part II discusses the practical implications of Martinez-Fuerte, including how to prove US Citizenship at checkpoints, whether individuals may refuse to answer non-immigration related inquiries, and the dilemma over CBP not recording individual checkpoint statistics for law enforcement functions. Part III discusses the procedures and legal standards for specific actions that have potential damages claims for unlawful or improper conduct by CBP agents at checkpoints. Moreover, Part III discusses potential barriers one may face when seeking relief from the federal government and its officers for being subject to allegedly unlawful or improper conduct at checkpoints. Lastly, Part IV proposes several reforms that could determine whether the federal government has gained substantial benefits from checkpoint operations that outweigh the costs of operating the checkpoints. Reform efforts include implementing an ombudsman's office for CBP, implementing an effective, accessible, and external complaint forum, and implementing a "SENTRI-like" program for local communities. Moreover, this Note argues that a Supreme Court fix may clarify whether checkpoints can continue to be utilized the way they have been for almost four decades.


    Following September 11, 2001, there was a "radical restructuring" of some federal agencies whose missions related to national security. (23) The Homeland Security Act of 2002 ("HSA") (24) consolidated several federal agencies into a single entity, the Department of Homeland Security ("DHS"). (25) Approximately twenty-two federal agencies, 185,000 federal government employees, and "countless specific functions were transferred" over to DHS. (26) When Congress passed the HSA, it also divided the immigration functions of the DHS into two different entities: one responsible for the immigration enforcement function and the other responsible for the service function. (27) Furthermore, the HSA authorized the president to modify the departmental structure; the president subsequently did so, further dividing the immigration functions of the DHS into three immigration agencies: two enforcement bureaus and one service bureau. (28) The enforcement bureaus are the US Immigration and Customs Enforcement ("ICE") and CBP. (29) These entities are responsible for interior enforcement and border enforcement, respectively. (30) ICE is responsible for "investigations, intelligence-gathering, detention, certain elements of the deportation process, the registration of noncitizens, and other interior enforcement operations." (31) CBP, on the other hand, conducts border inspections at various locations, including land borders, airports, seaports, and interior checkpoints. (32) This Note focuses...

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