US Citizen Jessica Cooke Tasered By Border Patrol In Upstate New York

[zuluweta 250]

I just read the replies.

That doesn't constitute a scientific poll with such a miniscule sample.

[zuluweta 250]

With an Executive out of control is this any surprise?

She had her puppy in the car.

Obama is out of control? What about the Legislative branch? Not out of control for you?

[Boiler 43,434]

Obama is out of control? What about the Legislative branch? Not out of control for you?

[TBoneTX 43,058]

Excerpted from (and worth the full read):

http://reason.com/archives/2013/12/28/americas-internal-checkpoints

Unfortunately, not all the refuseniks understand the complete legal picture governing checkpoints. Most defend their lack of cooperation by citing the Fourth Amendment. But they usually struggle to come up with any more legal analysis on the spot.

Internal checkpoints are legally separate from checkpoints on international borders or their "functional equivalent," such as international airports. At these border crossings, CBP agents have wide latitude to search and seize, absent any warrant or probable cause. They can also unilaterally refuse to admit international travelers. Internal checkpoints are more complicated.

In a pivotal 1976 Supreme Court case, U.S. v. Martinez-Fuerte, the defendant was caught transporting illegal aliens through an internal immigration checkpoint located on Interstate 5 between Oceanside and San Clemente in California, about 90 miles from the border. After the immigrants were discovered and admitted their status, Amado Martinez-Fuerte was charged with two counts of illegally transporting aliens. A court majority opined that "brief questioning of [the motor vehicle's] occupants even if there is no reason to believe that the particular vehicle contains illegal aliens," is legal.

In the Supreme Court case United States v. Montoya de Hernandez (1985), the court further ruled that "automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion, even if the stop is based largely on ethnicity." Flowing from this case is the assumptive creation of the "border search exception" allowing for warrantless searches within 100 miles of the border. This Fourth Amendment-lite zone encompasses the place of residence for nearly two-thirds of the U.S. population.

Martinez-Fuerte held that internal checkpoints were considered to be a functional equivalent of a border crossing only if the government could prove with reasonable certainty that traffic passing through was international in character and would be comprised of only a "negligible number of domestic travelers."

The Border Patrol's Inspector's Field Manual governing internal checkpoints has been public information since 2008, thanks to a successful FOIA request from immigration attorney Charles M. Miller. According to Section 18.7 of the manual, before an inspector may constitutionally detain a traveler at a non-entry checkpoint, the inspector "must have reasonable suspicion that the person is an alien and is illegally in the United States." The manual goes on to say: "This higher degree of suspicion arises generally in questioning persons encountered in and around the port who are awaiting persons referred to secondary. This suspicion is based on questioning of alienage alone and also involves specific articulable facts, such as particular characteristics or circumstances which the inspector can describe in words."

If, according to the CBP's guidelines, inspectors shall not indefinitely detain a traveler without at least reasonable suspicion, the collection of videos online clearly shows agents breaking their own rules.

Many travelers don't realize that complying with the Border Patrol's questioning can be completely optional. It is well within their Fifth Amendment rights to remain silent. If this right is exercised, the agent does not have the power to further detain them absent consent, reasonable suspicion, or probable cause that the traveler is committing a crime. While the Supreme Court ruled in Martinez-Fuerte that temporary detention at internal checkpoints is not an unconstitutional encroachment, the detention must not be indefinite and may only be for a reasonable amount of time.

What does that mean in practice? When I asked Bill Brooks, a U.S. Customs and Border Protection spokesman, he didn't answer directly. Instead he cited the Supreme Court's opinion in Martinez-Fuerte that "very brief detention" of motorists does not constitute an unreasonable search or seizure. He added, "Under normal circumstances this takes just a short period of time. In unusual instances, agents will detain a member of the public long enough to establish their citizenship." CBP agents "may question the occupants about their citizenship, place of birth, and request document proof of immigration status, how legal status was obtained and make quick observations of what is in plain view in the interior of the vehicle."

Denise Gilman, co-director of the immigration clinic at the University of Texas School of Law, argues that a reasonable amount of time is roughly 20 minutes.

Although an agent may "request" documentary proof of immigration status, it is not a legal requirement to produce such proof unless the agent has obtained probable cause or at least has reasonable suspicion that the traveler is committing an immigration crime. Simply passing through one of these checkpoints shouldn't qualify as such suspicion. In Martinez-Fuerte, the court declared, "We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search."

Still, many refusenik videos show officials forcibly removing travelers from their cars absent individualized suspicion, then removing their wallets in search of identification.

Federal and local law enforcement agencies have become skilled at circumventing these legal strictures through the seeming manufacture of probable cause. A Government Accountability Office study published in 2009 shows there were 3,540 drug-related seizures at southwestern checkpoints in 2008. That same year, southwestern checkpoints saw 16,959 apprehensions of illegal aliens. A key method is through canine sniffing. Internal checkpoints, particularly permanent installations, typically employ drug- and bomb-sniffing dogs that patrol nearly every vehicle passing through. By using canines, the CBP is pushing the line between stops for immigration purposes and "ordinary criminal wrongdoing." The immigration portion of the stop becomes a mere pretext to establish a probable cause for searching the car or driver.

Civil libertarians point out that deploying these dogs appears to run against the City of Indianapolis vs. Edmond principle that checkpoints be conducted for a specific and not general area of wrongdoing. The Border Patrol is "pushing that line very hard," David Loy, legal director of the American Civil Liberties Union's San Diego chapter, said in a March 2013 interview with KPBS-TV. Suspicionless checkpoints, Loy said, "are the hallmark of a police state, not a free society."

CBP's own rules seem to incorporate Edmond in that internal checkpoints are supposed to be used for "determining citizenship of those who pass through" and "not for the general search for those persons or vehicle." But the preponderance of canines at internal checkpoint stops would seem to contradict these guidelines, since dogs have no demonstrated ability to sniff out the difference between an American and a Mexican.

[TBoneTX 43,058]

From the CBP Field Manual, as apparently obtained by a law firm:

---

12.1 Inspection of U.S. Citizens.

When you are convinced that an applicant for admission is a citizen of the United States, the examination is terminated. This is not to say that your role as an inspector is always completed at that time. Listing of the subject in a lookout system may dictate further action, such as notifying Customs or another agency of the person’s entry.

It must be emphasized that the grounds of inadmissibility contained in 212(a) of the INA are applicable only to aliens. Consequently, the examination of a person claiming to be a United States citizen is limited to matters required to establish present citizenship. Once you are satisfied the person being examined is a U.S. citizen and any required lookout query has been completed, the examination is over.

Temporary detention of a U.S. citizen for extensive questioning generally requires reasonable suspicion that the person is involved in illegal activity. Inspectors cross-designated to perform Customs inspections may, of course, continue questioning for Customs purposes. If probable cause to arrest the U.S. citizen cannot be developed within a reasonable period of time, the person must be released.

---

18.5 Arrests Based on IBIS or National Crime Information Center (NCIC) Information.

(a) Outstanding Federal Warrant. Authority to arrest is limited to agency statutory arrest authority. An officer should verify that a warrant is still valid and that the person to be arrested is the person specified on the warrant. The officer need not have the warrant in possession at the time of the arrest, but upon request the officer is required to show the warrant to the suspect as soon as possible. If the officer does not have the warrant at the time of the arrest, the officer should inform the suspect of the offense charged and of the fact that a warrant has been issued. See Rule 4(d)(3), Federal Rules of Criminal Procedure.

Should you discover that a person you have detained has an outstanding Federal warrant for a crime outside the scope of your statutory authority, you may detain the individual until an officer or agent with the proper authority can make the ‘official’ arrest. This could be either a Federal or state officer.

(b) Outstanding State Warrants. No Federal statute authorizes an arrest by a Federal law enforcement officer based on an outstanding state warrant. Federal officers making such an arrest are arresting either as a peace officer or a citizen depending on the law of the state in which the arrest is made.

However, when a person moves or travels in interstate or foreign commerce with the intent either:

to avoid prosecution, or custody or confinement after conviction for a felony under the laws of the place from which the fugitive flees, or to avoid giving testimony in any felony criminal proceeding, or to avoid service of, or contempt proceedings for alleged disobedience of lawful process requiring attendance, that person has committed a Federal felony under 18 U.S.C. § 1073.

The better practice is to detain an individual for a reasonable period of time until state or local police officers can effect an arrest. When you call the state or local police officers, ask them if they want you to hold the suspect for them. If they say yes, state law may give you additional authority because of their request.

If an individual is detained beyond a reasonable time because of delay in the arrival of state or local police, the Federal officer will have, in fact, arrested the individual. Authority for that arrest will be based on state law and the existence of the outstanding warrant will provide the necessary probable cause.

18.6 Warrantless Searches and Seizures.

(a) Border Searches. Routine searches by INS officers at an international border or the “functional equivalent” (International Airports) may be conducted without a warrant or probable cause. The interrogation and search of individuals and their effects at the border without probable cause or a warrant, is considered reasonable under the fourth amendment.

INS officers may interrogate individuals to determine admissibility without reasonable suspicion or probable cause. However, border searches are subject to constitutional limitations. Searches of persons, particularly body cavity searches and similar intrusive procedures, require some level of suspicion under the fourth amendment. Routine searches of persons or things may be made upon their entry or exit in or from the country without probable cause or a search warrant. The border search authority extends to all persons or vehicles attempting to enter or seen entering the United States.

(b) Extended Border Searches. An extended border search takes place after a person, vehicle, mail or some other property has crossed the border or cleared a prior checkpoint, or a significant amount of time has elapsed since the object first arrived in the United States. An extended search must be justified by “reasonable suspicion” that the subject of the search was involved in criminal activity. An extended border search requires:

reasonable suspicion of criminal activity; reasonable certainty that the vehicle/person crossed the border; and reasonable certainty that the condition of the vehicle/person remained unchanged since the border was crossed (often established through constant surveillance).

© Functional Equivalent. The broad authority which exists at the international border also extends to areas found to be the “functional equivalent”. An airport which is the destination of a nonstop flight from outside the United States. If there is a mixture of domestic traffic with the international traffic, then the location will not be considered a functional equivalent. If there is any question of whether a particular area is a functional equivalent, an officer should apply reasonable suspicion and probable cause standards for searches and seizures that are applicable to interior locations.

The functional equivalent of the border may be the mouth of a canyon, or the confluence of trails or rivers. The key factor for consideration is whether the person or item entered into the country from outside. Three factors are used to determine whether a location other than the actual border is a “functional equivalent”:

reasonable certainty that a border crossing has occurred; lack of time or opportunity for the object to have changed materially since the crossing; and execution of the search at the earliest practical point after the actual crossing.

(d) Entry of Lands Within 25 Miles of the Border. Immigration officers may enter private lands, but not dwellings, within 25 miles from any external boundary of the United States for the purpose of “patrolling the border to prevent illegal entry of aliens into the United States” as “conducting such activities as are customary, or reasonable and necessary, to prevent the illegal entry of aliens into the United States.

A dwelling is protected under the fourth amendment of the constitution and entry should only occur with consent, exigent circumstances, or a properly executed search warrant.

As to private lands, the officer shall inform the owner or occupant that they propose to avail themselves of their power of access to those lands.

(e) Checkpoints. The Border Patrol conducts two types of inland traffic-checking operations: checkpoints and roving patrols. Border Patrol agents can make routine vehicle stops without any suspicion to inquire into citizenship and immigration status at a reasonably located permanent or temporary checkpoint provided the checkpoint is used for the purpose of determining citizenship of those who pass through it, and not for the general search for those persons or the vehicle. Inquiries must be brief and limited to the immigration status of the occupants of the vehicle. The only permissible search is a “plain view” inspection to ascertain whether there are any concealed illegal aliens.

In contrast, INS officers on roving patrol may stop a vehicle only if aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion (reasonable suspicion) that the vehicle contains illegal aliens. Absent consent, a more in-depth search requires probable cause for both types of inland traffic-checking operations.

18.7 Degrees of Suspicion.

(a) Mere Suspicion. At the border or its functional equivalent, an inspector needs only mere suspicion to justify a search and comply with the requirements of the Fourth Amendment. This is because the person is attempting to enter the United States from abroad and may reasonably be required to demonstrate that the person and his or her belongings are entitled to enter the United States.

(b) Reasonable Suspicion. Before an inspector may constitutionally detain a person (non-entry related case), the inspector must have reasonable suspicion that the person is an alien and is illegally in the United States. This higher degree of suspicion arises generally in questioning persons encountered in and around the port who are awaiting persons referred to secondary. This suspicion is based on questioning of alienage alone and also involves specific articulable facts, such as particular characteristics or circumstances which the inspector can describe in words.

© Probable Cause. Probable cause is the degree of suspicion which an inspector must have before constitutionally making an arrest under either civil or criminal law. An inspector has probable cause to arrest or search if evidence and circumstances which would lead a reasonable person to believe that an offense has been or is being committed are known by the inspector.

---

21.1 Land Border Inspection Procedures.

© In your role as primary officer, you must rely heavily on your powers of observation. On the vehicular lanes, as you clear one vehicle and turn to watch the next approach, you make several determinations in the short time it takes for the vehicle to stop. [WITHHELD] In most cases you will determine almost immediately if you will be referring the vehicle for a secondary inspection. In other cases, the occupants may initially appear to be admissible, but their responses to your questions, combined with your observations, may indicate that further inspection is required. A conversational knowledge of Spanish for officers assigned to the Mexican border or French, for officers assigned to some Canadian border ports, is essential.

(d) As a primary officer dealing with pedestrians, you can learn by observing arriving persons (especially during very heavy traffic periods) as they approach the inspection point. [WITHHELD] may all have some bearing on the determination that you make as to admissibility.

(g) (1) You must then determine the nationality and admissibility of each applicant for admission as well as obtain an oral CBP declaration from the operator of each vehicle and other persons as may be indicated. Based on the answers to questions asked and your observations of the occupants of the vehicle, you must determine immediately whether an in-depth inspection is required. If you are satisfied that all of the Federal requirements have been met, you will admit the vehicle/and or persons.

(2) (A) In determining which oral claims to accept as is, an officer may rely on the confidence of the applicant’s demeanor and English language ability. Veteran officers rely upon their developed questioning skills, recognition of applicants, and past experience to conduct an effective inspection.

[ready4ONE 5,400]

I got as far as the page 1 responses to the OP video and written article. Her behavior led to the tasing. Plain and simple. Obama was not involved. Nazi Germany not involved.

Act like an idiot with law enforcement of any kind and stupid things follow. I too look forward to the follow up on this. I'm curious what was in the trunk. I know crossing any border, any international border means that myself, my belongings, my vehicle may be searched. For cause or randomly. Not sure what this woman thought she was doing with her attitude nor does she seem to have learned much from her ironic degree.

Edited June 11, 2015 by ready4ONE

[zuluweta 250]

from ethereal (http://tinyurl.com/noba3z5):

"My rights! My rights! My rights..." Looking nervous at a border crossing is a red flag. Whether you agree with what the cop is doing AT THE TIME or not realize that if you do not comply and cause a physical altercation SOMETHING BAD IS GOING TO HAPPEN. If you need to stand up for your rights; comply, then wait until after they let you go and file a complaint with the department. Standing on the road acting like a Constitutional know-it-all isn't going to work in your favor either so use honey to catch the flies not the vinegar. Based on what I saw (granted we don't know what happened before hand) I don't think what the officers did was out of line. You could be anyone so just because you know you aren't a "bad guy" remember they have no idea who you are so looking nervous is going to get some attention. Use your brain.

Edited June 11, 2015 by zuluweta

[Boiler 43,434]

She was not at a border crossing nor had she crossed any border.

[zuluweta 250]

She was not at a border crossing nor had she crossed any border.

Blame the Supreme Court for establishing a 100-mile constitution-free zone around the border.

The CBP officers were doing their job within those 100-miles delineated by the US Supreme Court.

Don't like it? Get in line. File a lawsuit to have that ruling overturned or lobby for Congress to slash away at that ruling.

[zuluweta 250]

From progressiverebel (http://tinyurl.com/noba3z5):

I have to tell you I just loved this.. I worked US Customs for a time... and people who act agressively many times are trying to conceal something. This woman pushed the confrontation... While the investigation is continuing... Agents don't have to tell people what they are doing... I thought these agents very restrained until the end, when they should have just shut up unless she tried to leave with the vehicle in question. The real problem here is that we don't know what the agents suspected... and what information they were acting on...Agents Protect us... The US and are instructed not to back off when somebody gets pushy and beligerent.. There is more here than is known... you have a very pushy person who is acting agressively in what appears to be a search of a vehicle... Getting into a he said she said... why are you doing this..is not what the agents were trying to do.. she pushed the fight... Great Job Border Patrol...

[zuluweta 250]

I got as far as the page 1 responses to the OP video and written article. Her behavior led to the tasing. Plain and simple. Obama was not involved. Nazi Germany not involved.

Act like an idiot with law enforcement of any kind and stupid things follow. I too look forward to the follow up on this. I'm curious what was in the trunk. I know crossing any border, any international border means that myself, my belongings, my vehicle may be searched. For cause or randomly. Not sure what this woman thought she was doing with her attitude nor does she seem to have learned much from her ironic degree.

Nothing was found in the trunk. Nevertheless, her belligerent behavior and failure to obey a law enforcement officer landed her in this boiling water.

The most ironic thing I read is that claims she wants to be a CBP officer or something similar.

[TBoneTX 43,058]

The CBP officers were doing their job within those 100-miles delineated by the US Supreme Court.

Read the cited regulations just above.

She was not at a border crossing nor had she crossed any border.

Read the cited regulations just above.

[Mr. Big Dog 10,747]

And she's white too.

That's why she's still breathing...

[Transborderwife 4,666]

Two things I noticed: 1) why didn't she ask for their info (badge number, name, etc) to make a valid complaint? 2) if she had a dog in the car, why not comment on how it could possibly be animal abuse?

[Boiler 43,434]

http://www.watertowndailytimes.com/news05/new-video-shows-border-patrol-agents-visiting-house-of-jessica-cooke-video-20150512

Update