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The Constitution in 100 Miles: The Questionable Nature of U.S. Interior Checkpoints

In the 1976 case of United States. V. Martinez-Fuertethe Supreme Court ruled that interior checkpoints did not violate the Fourth Amendment, which allowed the United States Border Patrol to establish interior checkpoints near the United States-Mexico border to prevent undocumented immigration and promote public safety. Currently, over 150 interior checkpoints exist up to 100 miles from the border. True to their name, these checkpoints function as brief stops at which Border Patrol agents check immigrants’ documentation before they travel farther into the interior of the United States. In theory these checkpoints create limitations on movement inside of the border. In practice they are blatantly unconstitutional. They operate with little oversight leading to stark Fourth Amendment violations and racial profiling. Granting Border Patrol practically unsupervised authority in such a large area of the United States — especially with the ongoing controversies and abuse allegations — is both unconstitutional and unacceptable. There are too many stories of racial profiling, physical and sexual abuse, and shameless law-breaking for Border Patrol to hold this unchecked authority. The first step in addressing this constitutional violation needs to be the elimination of both checkpoints and the 100-mile zone as well as greater oversight with regard to Border Patrol’s practices.

The Fourth Amendment grants Americans the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…”, which effectively requires the establishment of probable cause in order for a warrant to be issued. However, in this 100-mile zone, certain parts of the Fourth Amendment are inapplicable to Border Patrol agents. More specifically, Border Patrol can search people, vehicles and private property without a warrant — an act which would be considered unconstitutional anywhere else in the United States. Furthermore, Border Patrol circumvents the Fourth Amendment’s protection against unreasonable search and seizure by doing visual searches at checkpoints and having drug-sniffing dogs near cars that pass through checkpoints. If the dogs draw attention to a certain vehicle, this gives them the probable cause they need to perform a manual search. Workarounds like this are indicative of how Border Patrol functions in a gray area between law and tyranny.

The Supreme Court further enabled subjectivity in enforcement practices in United States V. Martinez-Fuerte by ruling that these checkpoint stops may include brief questioning on matters of citizenship and residency status and that the protections of the Fourth Amendment can be shown in the “limitations on the scope of the stop.” The Supreme Court outlined this by limiting the stop to a couple questions without prolonged detainment but like much of the language pertaining to the checkpoints and Border Patrol’s authority, “limitations on the scope of the stop” is vague and allows for different definitions of the mandated brevity of the stop. The “brief questioning” clause is a loose definition that enables Border Patrol to abuse the privilege. There are countless stories in which agents have continued past brief questioning, using drug-sniffing dogs and even violence during arrests and detainment. Although they are not blatantly breaking the law, Border Patrol has found methods to blur the lines and push the limits of their authority. As such, traveling between areas near the border and the rest of the United States can become uncomfortable and even scary for many people, particularly Latinos.

Deep racial bias plays a significant role in many of the stops and detainments that occur at checkpoints. There are three times the number of Latinos living within the 100 mile zone as there are in the rest of the U.S, and many of these individuals are subject to questioning when they travel farther into the country. People who are being questioned are disproportionately Latino. Even in overlooking how they are operated, the existence of the checkpoints within this space shows a clear choice by the U.S. government in regards to who receives full constitutional protection and who does not. The ingrained racial bias of these interior checkpoints was acknowledged in the majority opinion of United States V. Martinez-Fuerte: “Even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation.” With this acknowledgment, the Supreme Court was implicitly condoning these instances of racial profiling.  “Reasonable suspicion” is all Border Patrol needs to proceed with further questioning and even detainment. Not only can the principle be based on a “hunch” or “gut feeling,” but in many cases, race is also a contributing factor.

This policy is not only racially biased, but also acts as a second border trapping undocumented immigrants within 100 miles of the border and restricting their access to the rest of the United States. Undocumented parents with natural-born children are often unable to get their children to specialized medical care out of fear of being deported at an interior checkpoint. There are too many jarring stories in this vein, including families unable to evacuate for hurricanes and parents incapable of getting to their child’s graduation. Although there are valid arguments for a secure border, having a second quasi-border cannot be truly constitutional.

The context of the border has changed since the ruling of U.S. V. Martinez-Fuerte, displaying a near-complete divergence from the original purpose of interior checkpoints.  In this 1976 case, the Supreme Court held that the goal of the checkpoints was to confirm immigration status only and was ruled at a time of 1,100 Border Patrol agents. In 2014, there were over 21,000.

The expansion of Border Patrol’s authority was within the context of immigration, but their power is being used other purposes. For example, they use the checkpoints for law enforcement purposes such as preventing drug and human trafficking as well. Without clear language in policies or oversight, Border Patrol can continue to use these checkpoints however they decide, ignoring the intentions of the original ruling.

There is a trope of the classic Border Patrol agent as a racist villain, but a lack of regulation and clear policy is a large contributor to many of their documented abuses. There is little to no transparency in their actions and their mentality seems to be “kick ass, ask questions later.” Border Patrol needs clear and detailed policies to check its nearly unfettered authority in 100 mile zones. Too many facets of its authority are defined by vague lines such as “reasonable distance” and rely too heavily on the decisions of individuals. There have been far too many human rights abuses and constitutional violations for the organization to continue operating as it does, starting with the existence of the 100-mile zone and interior border checkpoints.

Photo: “Checkpoint