The Fourth Amendment gets conveniently skirted by Homeland Security

[Plot Device]

The Fourth Amendment (http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution ) is the right to be free from unreasonable search and seizure without probable cause:



'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.



There is, however, one long-standing --and perfectly reasonable-- exception to this right: the Fourth Amendment absolutely DOES NOT apply at "the border" of the United States of America. So, if you intend to cross the US border (either crossing into our nation, or crosing out) the authorities have the right to search and seize at willl, no formal warrants needed at all. Few people would have a problem with that exception.

Unfortunately, the word "border" is NOT legally defined in our Constitution in a concrete, objective, numeric manner. The "border" could be the first 50 feet of US soil that rims the edges of our land. Or the first 50 yards. Or the first half mile. Or the first ten miles. No one has ever defined it!

So now ... Homeland Security has taken it upon themselves to come up with their own convenient definition. They now say that the first 100 miles that rims all sides of all our soveriegn lands constitutes "the border." So now they have the blanket-right to search and seize any persons physically within that zone, as well as any molecule of their houses, papers, and effects likewise found within that zone.

http://www.aclu.org/privacy/spying/areyoulivinginaconstitutionfreezone.html

http://www.aclu.org/privacy/37293res20081022.html




The upshot of all this is that this 100-mile zone of anything-goes encompasses all of Maine, New Hampshire, Massachusetts, Connecticut, Rhode Isalnd, New Jersey, Deleware, Hawaii, and Florida. It also covers 90% of Vermont, 90% of Maryland, 80% of New York State, all of DC, and all of Long Island. And it even includes the greater metropolitan areas of over a dozen of some the very largest cities in the United States including (but not limited to) Boston, New York City, Philadelphia, Richmond, Detroit, Chicago, Cleveland, Houston, Seattle, San Diego, San Francisco, and Los Angeles. In total, nearly two-thirds of all US citizens live and work within the 100-mile border zone. (And I live and work within that zone.)

The ACLU has responded to this outrage by labeling this 100-mile zone the "Constitution-Free Zone."

Our rights are now being impinged upon by virtue of geography.


http://www.aclu.org/privacy/spying/cfz_map/Image-Map.gif


Anyone here who's ever watched an episode of Law & Order should be familiar with just how difficult it is to get a warrant under the Fourth Amendment, and also familiar with how easilly evidence can get overturned in court if the warrant was not in proper order or not followed to the letter. But now we have a search-and-seizure free for all.

[Monkey]

There's me, right there under San Antonio, in the middle of all that orange.

Now what we need is a court case where police use this law to sieze a few ounces of pot from a teenager or something...and for it to get deemed illegal by the court.

[mscelina]

That's an awful big line to just represent a hundred miles, PD. Just sayin'...

[kuwisdelu]

Wow. :Headbang:

[Bartholomew]

To whom do I send my angry letter?

[LaceWing]

TWO THIRDS OF THE POPULATION

I have nothing but ugly on my mind at the moment.

[robeiae]

I'd like to see the actual evidence, first. The ACLU doesn't cite anything, that I can see. It just states that this is the case.

[Bartholomew]

I'd like to see the actual evidence, first. The ACLU doesn't cite anything, that I can see. It just states that this is the case.

Hm. I was taking Plot Device at her word. I'm working on my WIP at the moment, and I'd lose my whole writing period if I started following links.

If the OP is correct, it means that two entire states have no protection against invasive searches.

[Williebee]

And suddenly it pays to live in the middle of nowhere.
Well. That's a first.

[LaceWing]

I'd like to see the actual evidence, first. The ACLU doesn't cite anything, that I can see. It just states that this is the case.

Thank you for this reminder.

Here's something I found.

Customs and Border Protection, which falls under the Department of Homeland Security, was authorized by Congress nearly 50 years ago to operate within a “reasonable distance” inside the border, which it designates as a 100-mile radius. The agency operates 33 checkpoints, and the ACLU said complaints about the checkpoints have risen since Sept.11.

http://news.medill.northwestern.edu/washington/news.aspx?id=101659

[robeiae]

Thank you for this reminder.

Here's something I found.



http://news.medill.northwestern.edu/washington/news.aspx?id=101659
Yeah, I saw that, too. But it doesn't tell us when that 100-mile designation was made, what it was before, etc.

[Julie Worth]

The ACLU has responded to this outrage by labeling this 100-mile zone the "Constitution-Free Zone."



I don't get the 100 mile thing. Why didn't they specify 1000 miles, then they could do away with that pesky fourth amendment altogether. It's a failure of audacity.

[LaceWing]

Rob, per the part I quoted: Congress established the 100 mile radius 50 years ago. Not being much of a researcher myself, I can only guess that maybe the Congressional Record would have more info.

[robeiae]

Rob, per the part I quoted: Congress established the 100 mile radius 50 years ago. Not being much of a researcher myself, I can only guess that maybe the Congressional Record would have more info.
Well, no. That's not what it actually says. Look again:


Customs and Border Protection, which falls under the Department of Homeland Security, was authorized by Congress nearly 50 years ago to operate within a “reasonable distance” inside the border, which it designates as a 100-mile radius.
It's not well-written. Clearly, Customs and Border Protection was authorized 50 years ago to operate within a reasonable limit. The last clause may or may not be a part of that designation.

I've tried looking for the info on the record, but I haven't found it, yet. I think that the "reasonable distance" in quotes indicates that was the original language and I have a feeling that a SCOTUS decision--somewhere--allowed that range to be as a far as 100 miles. Why or when? I don't know.

[willfulone]

If someone can find something to substantiate the ACLU posts - please link. I have been on homeland security (and other sites) and there is no mention of 100 mile radius surrounding the country other than on that one site. Not saying it is not out there - just saying I cannot locate substantive evidence that it is more than ACLU making the claims.

All the specific information I read states only the southwest border where the wall is being erected, and at ports of entry. I find nothing to state it will go off the ports - except for occasional random "checks" on roadways leading to/from such places. Where there has been incidence and proof of high crime in those specific areas that necessitate the random checks.

So, if anyone finds something - post. I will post if I can find anything to support also.

Christine

[Haggis]

Unreasonable search and seizure has been going on for a long time. DUI stops are commonplace now, and to my knowledge, all challenges have been turned away by the courts.

[LaceWing]

Got it, Rob, finally.

[willfulone]

Okay - so they have been able to do this for 50 years (per constitution)- I see that 100 mile part in the article someone linked additionally here. I guess if it has been around that long - I have always been in that zone for I am only 43. Just did not know I was in it. Don't feel safer knowing or more subjected to being searched than I did yesterday either.

Do we need to fear what has been there so long? I am not saying no or yes. I guess I just wonder why the focus on this now - by the ACLU? Do they imply that something worse is coming? Or just wish to get support for the fight they are currently in with Homeland Security to stop such - for the cases they are fighting right now?
~~~~
Haggis makes a good point. DUI patrols go on all the time in the same manner. While maybe a bit of a put off, it has saved lives.

Interesting article - thanks op. I am gonna go search more.

Christine

[LaceWing]

On SCOTUS actions, here's a clue.

The checkpoint issue reached the Supreme Court in 1976, which claimed that warrantless stops and searches do not violate the Constitution in areas near the border.

excerpted from http://www.wsws.org/articles/2002/nov2002/bord-n19.shtml

[Plot Device]

Unreasonable search and seizure has been going on for a long time. DUI stops are commonplace now, and to my knowledge, all challenges have been turned away by the courts.


I believe that DUI always falls under "probable cause" such as when the car is swerving or the smell of alcohol is present. Now I admit that "swerving" and "the smell of alcohol" is subjective, so then the next step is to do the brethalizer test, which is as concrete and objective as you can get.

[Plot Device]

On SCOTUS actions, here's a clue.

The checkpoint issue reached the Supreme Court in 1976, which claimed that warrantless stops and searches do not violate the Constitution in areas near the border.


excerpted from http://www.wsws.org/articles/2002/nov2002/bord-n19.shtml

This is good research.

And now ... the $64,000.00 question: What is "the border?"

[MarkEsq]

Hmmm... this sounds fishy to me and I wonder if the ACLU (or someone) is making improper leaps of logic. From what I see posted here, we have:

1. Border patrol allowed to operate a "reasonable distance" inside the border, now defined as up to 100 miles.

followed by...

2. The assumption that "allowed to operate" means warrantless searches and seizures.

I'm not sure that the first isn't just a grant of jurisdiction and the second a mistake in interpretation.

Still, on the off-chance it's true, maybe a good idea to have a court somewhere take a peek.

[mscelina]

A DUI checkpoint wouldn't fall under that. There is no probable cause to stop and check every driver on the road at a randomly selected checkpoint.

[MattW]

Don't forget to draw a 100 mile circle around every port of entry, including all international airports. That would be a border, yes?

Should cover most of the East, West, and South. The Wide Open Middle might still have some pockets, but we'll get them with Patriot Act 2.0.

[Plot Device]

Try this YouTube video for size:

http://www.youtube.com/watch?v=NPOuj-WzAoA

This guy got stopped over 10 miles from the border.

[LaceWing]

This is more information than I wanted, but should be useful to anyone who wants to get into the legal history of the 100 mile designation.

IV. THE BORDER PATROL LACKS THE AUTHORITY TO STOP VEHICLES OVER 100 MILES FROM AN INTERNATIONAL BORDER

A. Stops Over 100 Miles

The INS and its Border Patrol agents are authorized to search for illegal aliens in vehicles only if the vehicles are within a reasonable distance from an international border.(76) A reasonable distance is defined as no more than 100 miles from the border.(77) The Supreme Court has suggested that the Border Patrol lacks the authority to stop vehicles more than 100 miles from the Mexican border.(78) Furthermore, the Tenth Circuit has indicated that roving border patrol stops over 100 miles from the border are per se unreasonable.(79) Nevertheless, the Fifth and Ninth Circuits permit stops that occur well into the interior of the United States.(80)

. . .

(76) 8 U.S.C. [sections] 1101(a)(34) (1994); 8 U.S.C. [sections] 1357(a)(3) (1994) (emphasis added).

(77) 8 C.F.R. [sections] 287.1(a)(2) (2000).

(78) See United States v. Brignoni-Ponce, 422 U.S. 873, 882-83 (1975).

(79) United States v. Venzor-Castillo, 991 F.2d 634, 635-37, 639 (10th Cir. 1993) (relying upon [sections] 1357(a)(3) and the C.F.R. in holding a step 235 miles from the Mexican border unreasonable and noting prior Ninth Circuit and Tenth Circuit cases permitting steps over 100 miles from the border had not defined "reasonable distance").

(80) See, e.g., United States v. Chavez-Chavez, 205 F.3d 145, 147 (5th Cir. 2000) (approximately 150 to 160 miles from the Mexican border), cert. denied, 121 S. Ct. 251 (2000); United States v. Morales, 191 F.3d 602, 603 (5th Cir. 1999) (150 miles from the Mexican border), cert. denied, 120 S. Ct. 1211 (2000); United States v. Orozco, 191 F.3d 578, 579 (5th Cir. 1999) (200 to 300 miles from the Mexican border), cert. denied, 120 S. Ct. 996 (2000); United States v. Magana, 797 F.2d 777, 778, 780 (9th Cir. 1986) (1500 miles from the Mexican border and just north of Eugene, Oregon); United States v. Varela-Andujo, 746 F.2d 1046, 1047 (5th Cir. 1984) (over 170 miles from the Mexican border); United States v. Salazar-Martinez, 710 F.2d 1087 (5th Cir. 1983) (165 miles from the Mexican border and fifteen miles east of San Antonio, Texas). But see Orozco, 191 F.3d at 584 (Dennis, J., dissenting) (arguing Brignoni-Ponce, 8 U.S.C. [sections] 1357(a)(3), and 8 C.F.R. [sections] 287.1 do not permit border patrol stops based on reasonable suspicion more than 100 miles from the border).

http://www.entrepreneur.com/tradejournals/article/73393470.html

[Plot Device]

Once again, LaceWing, this is good research.

I want to know if anyone here can explain what it means when it says "cert. denied."

[MarkEsq]

Once again, LaceWing, this is good research.

I want to know if anyone here can explain what it means when it says "cert. denied."

Cert denied means that one side appealed from the court to a higher court, and the higher court declined to hear the case. Effectively, it means that the decision is affirmed by the higher court.

[ajkjd01]

Unreasonable search and seizure has been going on for a long time. DUI stops are commonplace now, and to my knowledge, all challenges have been turned away by the courts.

Actually, the wording is that DUI checkpoints have been found to be reasonable, by the United States Supreme Court, but it's not a blanket allowance. There is a test that has to follow. And yes, I can cite the case law. The case was Michigan Department of State Police v. Stitz, (1990) 496 U.S. 444, if you want to read more. No where in that case do they say that all checkpoints are okay, but they did lay out a way of making sure that the Fourth Amendment is protected.

And no, not all checkpoint cases have been found to be reasonable. There have been narcotics checkpoints that have been found to be unreasonable, and the fruits of those searches suppressed. There have other cases where the checkpoints have been overturned. So, the Fourth Amendment is still healthy in regards to this.

That said, I have been against Homeland Security's parameters since the beginning, and I'm in law enforcement. Who was it that said that whoever gives up a little bit of freedom for security has neither freedom nor security?

[willfulone]

Hmmm... this sounds fishy to me and I wonder if the ACLU (or someone) is making improper leaps of logic. From what I see posted here, we have:

1. Border patrol allowed to operate a "reasonable distance" inside the border, now defined as up to 100 miles.

followed by...

2. The assumption that "allowed to operate" means warrantless searches and seizures.

I'm not sure that the first isn't just a grant of jurisdiction and the second a mistake in interpretation.

Still, on the off-chance it's true, maybe a good idea to have a court somewhere take a peek.

The Homeland Security site has documentation and interviews posted related to the court cases involving ACLU issues brought up. And, some of it has been in court (if one believes what that site posts of course - who knows what they have edited for govt purposes) and some is still being battled.

ACLU evidently (hard to decipher some of it) lost the border range thing based upon reasonableness and that searches (even random) were (seemingly) only set up in high crime areas in ports borders and near the southwest "wall" border area. Depending upon what you believe as you read, of course.

Christine

[LaceWing]

ajkjd01, might that have been Ben Franklin?

"Any society that would give up a little liberty to gain a little security will deserve neither and lose both."
Benjamin Franklin (From brainyquote.com)

wikiquote btw cautions against attributing quotes without knowing sources.



Side bet: Regardless of source, Obama on his worst day would have more informed, intelligent and intelligible comments on this (alleged) quote than McCain on his best day.


And some hedging: note the word "little," used twice.

[robeiae]

Side bet: Regardless of source, Obama on his worst day would have more informed, intelligent and intelligible comments on this (alleged) quote than McCain on his best day.
Double down: Don (from here) will make Obama look uninformed in this regard.

[Cybernaught]

First The Patriot Act, now this. Is it 1984?

[LaceWing]

Double down: Don (from here) will make Obama look uninformed in this regard.

Heh. That's a righteous way to play odds, indeed.

If Obama had the luxury of not needing to keep on point right now, the two of them could have a great conversation and each would thrive on the stimulation of the other, to the benefit of all.

[robeiae]

Heh. That's a righteous way to play odds, indeed.

If Obama had the luxury of not needing to keep on point right now, the two of them could have a great conversation and each would thrive on the stimulation of the other, to the benefit of all.
Then, I would correct them...


:tongue

[LaceWing]

Then, I would correct them...


:tongue


Okay; tell me about it, and if you could, pretend old Ben is listening.

Specifically, how do we juggle external security and internal freedom issues?

I have this (globalist) tendency to disappear the words internal and external, for starters. Am I doing it wrong? Or is this question not the right place to start?

[robeiae]

No, I can't do that. I need them to lay it out so I can pick it apart...



But seriously, "liberty" or "freedom" in the sense used by the Framers and the Constitution is not unfettered freedom to do whatever one wants to do.

I'll quote Locke, as a starting point:

Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it.--Locke, 1690

Freedom proceeds from an acceptance that all are subject to the Law, properly made.

From that alone, you can see that security and liberty are not incompatible, at all. The rest, as it comes up...

[Plot Device]

Freedom proceeds from an acceptance that all are subject to the Law, properly made.



I think that by that assessment right there, Carl Rove is likewise subject to the law just like anybody else. And yet he STILL refuses to answer that subpoena.

If anyone else flouted a subpoena, they'd be in jail. So why does he get a free pass?

[robeiae]

I think that by that assessment right there, Carl Rove is likewise subject to the law just like anybody else. And yet he STILL refuses to answer that subpoena.

If anyone else flouted a subpoena, they'd be in jail. So why does he get a free pass?
Helluva tangent.

[Plot Device]

Helluva tangent.


But a valid tangent.

[ajkjd01]

ajkjd01, might that have been Ben Franklin?

"Any society that would give up a little liberty to gain a little security will deserve neither and lose both."
Benjamin Franklin (From brainyquote.com)

wikiquote btw cautions against attributing quotes without knowing sources.



Side bet: Regardless of source, Obama on his worst day would have more informed, intelligent and intelligible comments on this (alleged) quote than McCain on his best day.


And some hedging: note the word "little," used twice.

It might well be Ben Franklin. I've also heard that it was from Winston Churchill. Either way, I think the point's valid.

[robeiae]

But a valid tangent.
There's a thread (http://www.absolutewrite.com/forums/showthread.php?t=108658) on it.

Kinda died when no one could justify why Congress should be able to subpoena Rove when no legislative function was being served.

As I said: Freedom proceeds from an acceptance that all are subject to the Law, properly made. I should have added "and executed."

The Legislature needs to follow the rules, too. They shouldn't be using their power improperly.

[benbradley]

First The Patriot Act, now this. Is it 1984?
The Patriot Act was not the first, the War On Drugs had already been going on for decades. If the police find a large sum of cash on you, they WILL confiscate it, on suspicion of it being drug-related, as in "only drug dealers have large sums of cash."

[donroc]

I miss the days of the $500 and $1000 bills. So easy to carry, especially on trips to Vegas.