More than a decade ago while traveling with an experimental electric three wheel vehicle tucked away in a rental box truck I and the builder were stopped at the California border at a checkpoint. This was a huge surprise to me and I didn’t understand what was going on. As far as I knew this was a California thing. I never looked at the uniforms of the “officers” to find out whether they were Federal or state law enforcement because I didn’t understand what was going on. I knew I wasn’t doing anything wrong. I had a legal driver’s license. I had the papers indicating that the truck we were driving was a legitimate rental and that I was the renter. I was even a little eager to show these “officers” what we were carrying. The entire purpose for the trip was to show off the vehicle in California to Californians.
Being a Hispanic that could totally pass for not being a “brown” person I never grew up with law enforcement being intimidating or as a possible problem. Law enforcement officers were people we would go to when we were in trouble. They were the good guys and we knew we were the good guys so as far as I was concerned we were on the same team. I never thought about this unplanned stop being a violation of my Constitutional rights. The process was slow and it seemed unnecessary and annoying, but I knew that complaining would only make the process longer. So, I kept a cheerful demeanor. I remember that we were close enough to Las Vegas that we thought of stopping there. That put us close to three-hundred miles away from the Mexican border. There was no need for this checkpoint to be there. As far as I knew the United States of America was one nation… you know… under God, indivisible, with liberty and justice for all.
It may have bothered me then because I felt it was a hit on my white privilege. That was until I saw this video that has gone viral on Facebook.
This middle-school teacher was detained at an “immigration Inspection Station” by the US Border Patrol far from the border and asked if she was a citizen. She simply refused to answer the question.
What these Border Patrol Agents were doing was a violation of both the 4th and 5th Amendments of the Constitution of the United States of America. Not only were they violating Federal law, they were violating an oath they all take at the point when they become Border Patrol Agents. They swear an oath to uphold the Constitution. I don't know what was on the card one of the officers was waving around in this video, but I can tell you that whatever was on it was bullpucky.
The 4th Amendment says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." That teacher was right not to cooperate with them. They needed to establish probable cause and ask for a warrant for each search and for person seized (in this case this would be the detention without an expressed limit) from a judge. Now, they didn't do a physical search, but I would argue that just being asked if they are citizens constitutes a search that needs to be preceded with an argument of probable cause to a judge.
The Border Patrol thinks they are being sneaky, since they are not conducting a physical search, but it is still against a person's rights to be asked a question that if they answer may enravel them in a legal entanglement. The 5th Amendment of the constitution protects us from self incrimination. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, ... nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The operative words here are "...nor shall be compelled in any criminal case to be a witness against himself…," and “deprived of … liberty.” Liberty being the freedom of movement here.
We should get the word out to everyone. Anyone who find themselves being illegally detained at one of these so called “immigration Inspection Stations,” or checkpoints and are asked the question of whether or not they are citizens, all of us should simply plead the 5th. They can back it up with pleading the 4th Amendment and not allowing the officers to search or even look into their cars. The rules of “in plain view” do not extend to law enforcement officials actively looking into your vehicles windows. Actively looking into a vehicle’s windows constitutes search. Without knowing if a person is a citizen or not, the Border Patrol can not assume that the person they are interacting with is a non-citizens. This means that the citizen and non-citizen are protected under the 5th Amendment alike since none of the people doing this are providing any substantive evidence to the Border Patrol of their citizenship. The only option the Border Patrol will have is to assume they are all citizens and let them go. The Border Patrol can't detain them without cause. And they can't argue to a judge that everyone going through a stretch of road was showing something that could be interpreted as indicating there undocumented status and providing the basis for probable cause to warrant being detained at an Immigration Checkpoint. The alternative would be that they would have to choose vehicles along the road showing something significant that would warrant them being pulled into an immigration checkpoint. They can’t do this based on race or racial traits. They can’t do this because the officer has a gut feeling. — Courts have ruled time and time again against law enforcement officers actions based on instinct or gut feelings. In the end, outside of Border Patrol hoping to see a vehicle with a big sign on it saying “WE ARE UNDOCUMENTED IMMIGRANTS” on it, they wouldn’t be allowed to pull anyone over. Even if they pulled the car with the sign on the top of it and ask them the citizenship question, the occupants of the vehicle would only need to plead the 5th and the Border Patrol wouldn’t be able to do anything. The checkpoints would then be useless. And having useless immigration checkpoints would be an embarrassment for the Border Patrol, which will eventually lead them being closed.
This time pleading the 5th may actually save people from being subjected to illegal activity rather than it being an indication of guilt.