And as I will outline below, the majority made a monumental mistake in taking CBP’s assertions at face value about the typical interaction at such stops: “Motorists whom the officers recognize as local inhabitants, however, are waved through the checkpoint without inquiry”.
The effect of the Martinez‐Fuerte decision was that CBP agents were allowed to use the Court’s ruling to conduct “immigration inspections” on any vehicle seeking to pass through a checkpoint, and CBP officers were instructed to inquire as to the citizenship of the drivers and passengers. What the decision did not require—at least explicitly—was that motorists actually answer the questions posed by CBP agents. Rather that actually waving through known, recognized locals, CBP agents continue—on a daily basis—to stop, and frequently detain, American citizens simply seeking to go about their business in the communities in which they live. The court also apparently did not anticipate that CBP agents would elect to ignore the court’s admonition in the Martinez‐Fuerte ruling that “[A]ny further detention … must be based on consent or probable cause.”
If you conduct a YouTube search utilizing the phrase “checkpoint refusal videos”, you will get nearly 6 million hits—and you could easily spend days watching them. One Arizona man has created Roadblock Revelations, a website dedicated to exposing CBP abuses of motorists (the website operator has to travel through a CBP checkpoint daily in order to get to and from work). A recent ReasonTV piece documents the case of one American citizen who, upon refusing to disclose his citizenship at the Laredo, Texas checkpoint, was detained by CBP without charge for 19 days (the case is now the subject of litigation). In some cases, CBP agents have used violence to remove motorists from their vehicles when they decline to answer questions after asserting their rights. DHS’ offices of inspector general and privacy and civil ciberties have yet to respond to an Arizona ACLU complaint filed in October 2013 regarding CBP mistreatment of multiple Arizona residents at checkpoints in the state. The abuses at these checkpoints have become so serious that the ACLU has initiated the Border Litigation Project, which seeks to monitor and combat in court CBP’s excesses at the checkpoints.
And the CBP is not simply concerned with conducting warrantless (and usually pointless) searches of motorists. Private pilots have recently been the victims of similar tactics
In 2012, the Aircraft Owners and Pilots Association (AOPA) began receiving reports from its members that their aircraft were being searched without warrants by CBP personnel. In 2013, The Atlantic’s James Fallows published a major piece on the topic, noting that CBP was profiling pilots and aircraft, looking for drug smugglers. One incident involved Larry Gaines, a California resident and private pilot. Fallows lays out the chronology of Gaines’ flight and experience with CBP:
- “A private pilot set out from an airport in the Sierra foothills of California, headed to Oklahoma;
- “He made the trip ‘VFR’ — under visual flight rules, choosing his own path and knowing that he did not need to check in with air‐traffic controllers as long as he stayed out of certain kinds of airspace (around big airports, in military zones, or subject to other restrictions).
- “He eventually landed at a tiny little airport in rural Oklahoma, where a friend met him and took him home for dinner.
- “The pilot realized that he had dropped his eyeglass case at the airport and went back to retrieve it.
- “At which point all hell broke loose, as he describes in detail. In short, local, county, and federal enforcement agents were there to inspect him and his plane — and when he asked why, they said that his ‘suspicious’ profile was ‘flight west to east, from California.’”
Gaines was detained for two hours without probable cause on the basis of nothing more than an untested “suspicious profile” that Gaines was a drug smuggler.
AOPA documented more incidents in 2013 and 2014, finally engaging Rep. Sam Graves (R-MO) and Senator Pat Roberts (R-KS) to lean on CBP to explain why it was engaged in search and seizure operations against general aviation (GA) pilots. CBP officials asserted that they had the right, under federal regulations, to seek to inspect documentation all GA pilots are required to have on hand. AOPA challenged that assertion, and demanded a meeting with the head of CBP, R. Gil Kerlikowske. Kerlikowske met with AOPA officials in April 2014 and promised a thorough review of the incidents. As of January 2015, AOPA had not received any further reports of its members being detained or their aircraft searched without probable cause by CBP personnel.
That good news is tempered by the fact that Kerlikowske’s top‐down review of CBP domestic general aviation law enforcement operations makes clear that the very opaque profiling process that led to AOPA’s confrontation with CBP will continue. From the report: