4th Amendment "Suspened" at Border

Discussion in 'The Constitutional & RKBA Forum' started by 45nut, Apr 20, 2009.

  1. 45nut

    45nut Well-Known Member

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    WND Article here

    Pastor beaten, Tasered for defending his rights
    But Supreme Court grants agents exception to obeying Constitution
    Posted: April 18, 2009
    12:15 am Eastern

    By Drew Zahn
    © 2009 WorldNetDaily


    Pastor Steve Anderson, facial wounds visible

    An Arizona pastor – Tasered, bloodied by broken glass and sporting 11 stitches in his head – claims his injuries came from being stopped at a Border Patrol checkpoint 75 miles inside the U.S. and then being battered by police for refusing to allow agents to search his vehicle.

    The incident earlier this week highlights tension between constitutional rights, the issue of border security and a controversial Supreme Court ruling that grants an exceptional level of police authority near the Mexican border.

    Pastor Steven Anderson of Faithful Word Baptist Church in Tempe claims he did nothing to deserve his eventual arrest and believes that when he refused to allow the search of his car he was simply standing up for his Fourth Amendment rights, which protect him against unreasonable search without a warrant.

    Anderson further questions why the Border Patrol is allowed to stop and search cars at a checkpoint along Interstate 8, 75 miles inland of where the highway nears the Mexican border at Yuma, Ariz.

    "I was in the United States! I had crossed no international border!" writes Anderson in commentary accompanying a video he made about his experience.

    "I didn't have any drugs; I didn't have a human beings in my car," he claims in the video itself. "Why is this happening in the United States of America?"

    Pastor Anderson's video explaining his side of the controversy and his rough treatment at the hands of police officers can be seen here:

    The U.S. Border Patrol, however, explained to WND that Anderson misunderstood his constitutional rights and that because a drug-sniffing dog alerted to Anderson's rental car, the pastor was wrong not to allow the agents to search his vehicle.

    Ben Vik, a supervisory Border Patrol agent for the Yuma sector, further told WND that the Supreme Court and federal law permit the Border Patrol to establish checkpoints up to 100 miles inside the U.S. and that with probable cause the Fourth Amendment doesn't apply to searches of automobiles.

    "The Supreme Court found that only minimal intrusion existed to motorists at reasonably located checkpoints," said Vik. "The Supreme Court found that the very brief detention of motorists at a well-marked and identified immigration checkpoint did not constitute an unreasonable search and seizure."

    Vik's statement, however, doesn't apply to typical law enforcement agencies, but – thanks to a controversial ruling – only to "immigration" checkpoints established by the Border Patrol.

    The courts have typically ruled against "suspicion-less" stops and searches of vehicles at police checkpoints, such as the one that detained Anderson. As recently as 2000, the Supreme Court ruled in Indianapolis vs. Edmond that police cannot establish roadblocks staffed by dogs to randomly search automobiles for drugs.

    "We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing," the Supreme Court majority wrote in Indianapolis vs. Edmond. "The [Indianapolis] checkpoints violate the Fourth Amendment."

    The 1976 United States vs. Martinez-Fuerte decision, however, created an exception allowing the Border Patrol the unique power to establish checkpoints for seeking illegal immigrants, with the secondary purpose of finding drugs. So while Yuma-area police cannot operate a K-9, or drug-detecting dog, checkpoint without violating the Fourth Amendment, the Border Patrol can.

    A second exception was also created for drunk driving checkpoints under 1990's Michigan Department of State Police vs. Sitz, but some – including Supreme Court Justice Clarence Thomas – do not believe the exceptions to the Fourth Amendment are warranted.

    "I am not convinced that Sitz and Martinez-Fuerte were correctly decided," Thomas wrote in an opinion on the 2000 Indianapolis vs. Edmond decision. "Indeed, I rather doubt that the framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing."

    Graham Boyd, director of the American Civil Liberties Union's Drug Law Reform Project in Santa Cruz, Calif., told the Phoenix New Times that an immigration checkpoint is "thin justification" for sniffing random cars for drugs without a warrant.

    "Even if somebody has no sympathy for a marijuana user," Boyd says, "you should still be concerned that the U.S. government is saying the border is an area where the U.S. Constitution is suspended."

    Senior Patrol Agent Vik assured WND that even in the checkpoints, citizens do maintain certain rights limiting officers' actions.

    "Border Patrol immigration checkpoints don't give Border Patrol agents carte blanche to automatically search persons or their vehicles," Vik explained. "To conduct a legal search under the Fourth Amendment, agents must develop an articulable probable cause to conduct a lawful search."

    In Anderson's case, the pastor claims the K-9 dog made no bark or indication that his rental car was tainted with drugs, while Vik insisted to WND that the dog did alert agents to drugs, thus granting probable cause for the search.

    Both Anderson and Vik confirm that no contraband was discovered on the vehicle.

    As for the Tasering and other alleged rough treatment by police, Vik told WND that Anderson was extracted from his car and arrested by Arizona Department of Public Safety officers, not the Border Patrol, a statement Anderson confirms in his video.

    The Arizona DPS told WND that an investigation into the officers' actions is ongoing and no comment can be made until it is complete.

    Anderson spent the evening of his arrest in jail and is awaiting a formal arraignment at which he intends to plead "not guilty."
     
  2. mrkirker

    mrkirker New Member

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    We have been stopped numerous times by agents of the 'Border Patrol' and have always found them to be polite and courteous, regardless of the time of day or night in which our encounter occurred. They would be welcome to search our vechile.

    The sniffer dog 'alerting' and the uncooperative attitude of the bible-thumper led to predictable results, if you ask me.
     

  3. Blackhawk Dave

    Blackhawk Dave Member

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    When someone asks to check your car, SAY NO. I've seen too many cases of the police planting stuff. It's happened in Texas, it's happened in Florida, it's happened in Lousiana, and it can happen to you. No "urban myth".

    I worked in a City Attorney's office and have heard police officers admit to lying on the stand just to make a conviction. I've seen police officers lie to protect themselves. I've seen police officers use deadly force and then use the infamous "throw-down gun" to defend their actions.

    Most LEOs are out there to protect you. But, there are enough of the bad ones that you have to protect yourself.
     
  4. mrkirker

    mrkirker New Member

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    Ordinarily, I’d be inclined to agree. However, in the border instances, cooperation is the best path. But then again, to each his own path.
     
  5. armedandsafe

    armedandsafe Guest

    The thing is, he was not assaulted for refusing search without warrent. He was assaulted for not getting out of the vehicle when ordered to do so. This according to statements by BP.

    What's the difference?

    Pops
     
  6. RunningOnMT

    RunningOnMT New Member

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    This is a tough one. On one hand I don't want to see an infringement of any of our constitutional rights. On the other I hate tying the hands of those we hire to protect our borders from smuggling of contraband AND illegals. This is one case where I have to bow out and just listen to the debate.
     
  7. mrkirker

    mrkirker New Member

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    not getting out of the vehicle when ordered to do so
    A very good point, armedandsafe!

    If 'snifferdawg' alerted, is that not seen as 'probable cause', which would have allowed for an immed search?
     
    Last edited: Apr 20, 2009
  8. kingcuke

    kingcuke Member

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    I'm not sure why, but personally I feel a big difference between searches at the border and on the open highway. As for the "sniffer dog alerted" to me this seems a lot like the "driver crossed the center line" reason used to stop cars. A friend of mine's 16 year old step-daughter was expelled from school and arrested for possession because the ex rental car he bought for her alerted the drug dog the school ran through the parking lot. The car had two pounds of pot between the inner and outer rear fender. It cost him several thousand dollars but it was eventually proved both by the private lab he hired and the state lab that the pot was several years old and was there when he bought the car.
    As far as LEO/FEO personnel it's pretty much the same as gun owners, the majority are law abiding decent people, but there are enough wackos to give the rest a bad name.
     
  9. alhefner

    alhefner New Member

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    Ask any "criminal law" attorney and the will tell you to never give permission for a search. Always insist on exercising your rights to the fullest. that means all of your rights including the one to "shut up!"

    If we routinely give up our rights, then that will become the norm.

    As for the preacher, he pretty much brought on the physical confrontation! The cops may have gone well beyond what would be reasonable but that is for the courts to decide. When ordered to exit the vehicle, you exit the vehicle. When asked if you mid if they search, tell them that they do not have your permission for any search. If asked questions, politely inform them that you are exercising your rights not to speak. If asked for ID, driver's license, and insurance or registration paper work, produce it and allow them to examine it.

    All of the above is simple common sense.
     
  10. glocknut

    glocknut Active Member

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    THE FORUM MASCOTT...
    Bible thumper??

    mike
    gn
     
  11. GMFWoodchuck

    GMFWoodchuck New Member

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    I believe that what they did was illegal and wrong. The Border patrol should be at the BORDER. Not a hundred miles inland. It is amazing as to how a few crackheads and dealers killing each other makes it so that people think our Constitution and Bill of Rights can be suspended at will by the authorities. This is exactly what our founding fathers feared. Police stops on the roads are a little different because they are supposed to be only looking for registration/inspection and obvious safety issues. The border patrol made a deliberate and illegal attempt at breaking constitutional law and got away with it. Why does no one understand that these are the reasons why we revolted from England in the first place and developed the Bill of Rights????? Before long these few isolated cases will desensitize the american people into believing that this type of government trampling of our right is perfectly okay and acceptable. This is why we have the 2nd ammendment in the first place. To protect ourselves from a corrupt government and yet the constitution is failing right in front of our eyes. Never tell an officer who has no reason to search your car or house to feel free to do so. It is your private space!:mad:
     
    Last edited: Apr 21, 2009
  12. 45nut

    45nut Well-Known Member

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    What Woodchuck said. This is what I'm mad about, not the fact that the Pastor got beat up. If you don't do what LEO's say (even ones violating your 4th A), you are going to get Rodney Kinged. I'm mad at the 3 paragraphs below, which is the whole point of my post. :mad:

    The 1976 United States vs. Martinez-Fuerte decision, however, created an exception (read: your 4th A does not exist when dealing with Border Patrol) allowing the Border Patrol the unique power to establish checkpoints for seeking illegal immigrants, with the secondary purpose of finding drugs. So while Yuma-area police cannot operate a K-9, or drug-detecting dog checkpoint without violating the Fourth Amendment, the Border Patrol can.

    A second exception was also created for drunk driving checkpoints under 1990's Michigan Department of State Police vs. Sitz, but some – including Supreme Court Justice Clarence Thomas – do not believe the exceptions to the Fourth Amendment are warranted.

    "I am not convinced that Sitz and Martinez-Fuerte were correctly decided," Thomas wrote in an opinion on the 2000 Indianapolis vs. Edmond decision. "Indeed, I rather doubt that the framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing."
     
  13. 45nut

    45nut Well-Known Member

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    I'm glad you have that much good faith in your fellow man, because I sure don't. One of my best friends, a former LEO in north Texas told me NEVER allow any LEO to search your vehicle without a warrant. Period.
     
  14. Marlin

    Marlin *TFF Admin Staff Chief Counselor*

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    That is VERY GOOD ADVICE, 45. I second that !!!!!!
     
  15. Marlin

    Marlin *TFF Admin Staff Chief Counselor*

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    Funny the SOTUS issued a ruling today on this subject. Here is is:


    Supreme Court Limits Warrantless Vehicle Searches
    Tuesday, April 21, 2009
    By Staff, Associated Press

    Washington (AP) - The Supreme Court ruled Tuesday that police need a warrant to search the vehicle of someone they have arrested if the person is locked up in a patrol cruiser and poses no safety threat to officers.

    The court's 5-4 decision puts new limits on the ability of police to search a vehicle immediately after the arrest of a suspect.

    Justice John Paul Stevens said in the majority opinion that warrantless searches still may be conducted if a car's passenger compartment is within reach of a suspect who has been removed from the vehicle or there is reason to believe evidence of a crime will be found.

    "When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant," Stevens said.

    Justice Samuel Alito, in dissent, complained that the decision upsets police practice that has developed since the court first authorized warrantless searches immediately following an arrest.

    "There are cases in which it is unclear whether an arrestee could retrieve a weapon or evidence," Alito said.

    Even more confusing, he said, is asking police to determine whether the vehicle contains evidence of a crime. "What this rule permits in a variety of situations is entirely unclear," Alito said.

    The decision backs an Arizona high court ruling in favor of Rodney Joseph Gant, who was handcuffed, seated in the back of a patrol car and under police supervision when Tucson, Ariz., police officers searched his car. They found cocaine and drug paraphernalia.

    The trial court said the evidence could be used against Gant, but Arizona appeals courts overturned the convictions because the officers already had secured the scene and thus faced no threat to their safety or concern about evidence being preserved.

    The state and the Bush administration complained that ruling would impose a "dangerous and unworkable test" that would complicate the daily lives of law enforcement officers.

    The justices divided in an unusual fashion. Justices Ruth Bader Ginsburg, Antonin Scalia, David Souter and Clarence Thomas joined the majority opinion. Chief Justice John Roberts and Justices Stephen Breyer and Anthony Kennedy were in dissent along with Alito.

    © 2008 Associated Press
     
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