Train search by Border Patrol just another incident from the Constitution-free zone

January 4, 12:01 PMCivil Liberties ExaminerJ.D. Tuccille

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Customs and Border Patrol canine officer
(Photo: CBP)

You're traveling by train. Suddenly, it slows and comes to an unscheduled stop. Armed, uniformed men come aboard with dogs. They question passengers, search luggage and remove one of your fellow travelers for further interrogation. Is this some Cold War-era movie? Nope. It's  New Year's Eve on an Amtrak train in California.

I wrote not too long ago about my family's experience at a Border Patrol checkpoint along Interstate 8 in Arizona. We were stopped in the desert, briefly questioned, and then allowed to proceed -- a little wiser about the modern security state. My family's experience was far from unique. The following story comes to me from a Southwestern state legislator with whom I frequently correspond (he prefers to remain anonymous):

At about 5:30am Dec 31 in Imperial Cty. CA, but well away from the Mx. border, US Border Patrol agents stopped and boarded our westbound Amtrak train with a dog and proceeded to walk through all the cars.  This woke up my sleeping child and angered me.  Amtrak staff told me this was 'random', not based on any specific suspicion or request, and sometimes BP makes trains stop for these searches.  Nevertheless, Amtrak staff seemed to fully be part of the program and did not protest or protect passengers in any way.

I saw the dog 'hit' on one passenger's backpack, which BP then searched, without asking for consent, and found a pipe.  The guy was pulled off the train, made to put his hands on his head and searched, then let go with only having his pipe taken (likely due to being in CA, if in AZ or many other states he likely would've been hauled off in handcuffs). 

I asked BP agents 'why the stop?', and had a bright flashlight directed at my head in a threatening manner for a while as I was told their view that 'we can stop any person, vehicle or aircraft any time for any reason anywhere within 100 miles of the border'.  I followed them to observe and eventually IDed myself as a State Rep. and made my disapproval of this conduct clear to BP and Amtrak and their behavior improved and they soon left.  The USBP sector chief here (El Centro) is Calhoun.   

Our train was on time up to this point, but ended up being late to our destination due to this approx. 30 min. invasive stop.  This stop and search, without any reason, disrupted passengers, did not make us any safer, and delayed our trip.

This also happens a lot on buses, I've been told.

My correspondent is right -- this does happen on buses. It also happens along the highways, as I well know, and at ferry terminals. Searches at ferry terminals have become such an issue in Washington state that Customs and Border Patrol provided San Juan Islanders with a FAQ as to what they can expect during such checks, and their (limited) rights when encountering CBP agents. Among the information provided by the CBP is a hint as to what sort of treatment travelers who resent questions from uniformed enforcers can expect:

Am I required to answer the agent's questions at the checkpoint?

No person can be required to give evidence that incriminates themselves - that is a constitutional right. Neither can any public official compel or coerce such a statement if the person being questioned refuses to give one voluntarily. However, the law is quite clear that agents can interrogate any person who is an alien or who the agent believes to be an alien as to his right to be or remain in the United States. A refusal to answer could be construed as an articulable fact supporting a level of suspicion to further investigate and possibly to arrest, depending on the totality of the circumstances at hand.

So, if you keep mum and stand by your right to remain silent, that may be taken as grounds to haul you off in handcuffs as a suspicious character.

The U.S. government claims special powers to conduct such searches anywhere within ... well ... about a two-hour drive of the border. That's right. Up to 100 miles inland, you can expect the sort of treatment my correspondent received on his train journey.

The American Civil Liberties Union refers to this 100-mile corridor round the perimeter of the United States as the "Constitution-free zone." As a map of the zone demonstrates, it includes many of the largest cities in the United States -- and about two-thirds of the population.

My correspondent was a little more courageous than many of us might be when he challenged federal agents during the encounter and voiced his displeasure. He's also a public official who reports an improvement in the behavior of Border Patrol agents once he revealed his identity.

I don't know that the rest of us could expect such respectful treatment. In fact, there's a good chance that most of us would just earn extra scrutiny by failing to bow and scrape, just as that FAQ provided to San Juan Islanders suggests. The ACLU provides the following video of San Diego resident Vince Peppard describing what happened to him when he declined to open his trunk at a checkpoint within the Constitution-free zone.

That's America in 2008. Without muss, fuss or a public vote, many of the constitutional protections we thought we had were quietly stripped away.

Feeling a bit of relief because you don't live near the border? Don't feel too safe. If the government can effortlessly trim your rights once, it can do it again.

Contact J.D.: civilliberties (at) tuccille.com