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The Praetorians: An Analysis of U.S. Border Patrol Checkpoints Following Martinez-Fuerte

AbstractThis Note analyzes interior immigration checkpoints following the US Supreme Court’s decision in United States v. Martinez-Fuerte, which upheld the use of checkpoints for the narrow purpose of conducting brief, routine questioning of persons traveling within the United States in order to verify a person’s citizenship and immigration status. The Court’s holding, however, has been broadened by Border Patrol officials to cover other law enforcement functions such as apprehending narcotics and weapons. This broader use of the checkpoints “subverts the rationale of Martinez-Fuerte and turns a legitimate administrative search into a massive violation of the [Constitution].” This Note makes several proposals that could curtail the abusive practices that have taken place at the checkpoints since the Court’s decision in Martinez-Fuerte. First, it recommends that Congress install an ombudsman with the purpose of overseeing border patrol operations at the checkpoints. The ombudsman would be primarily concerned with remedying the current lack of data surrounding activity at the checkpoint and documenting such activity in order for the information to be used to assess the checkpoints from a cost-benefit standpoint. Second, and somewhat an additional function of the ombudsman, this Note recommends that Congress and/or the Department of Homeland Security implement a readily-accessible complaint forum for individuals who suffer constitutional grievances at the checkpoints. Third, this Note recommends that border patrol adopt a monitoring system for regular travelers; namely, a mirror-like SENTRI system that requires extensive background checks and readily apparent ways for border patrol to identify trustworthy individuals at the checkpoints. Finally, this Note recommends that even if Congress or the agencies mentioned in the discussion fail to implement reformative measures to curtail abuse at the checkpoints, the United States Supreme Court should intervene in a future case involving the application of fundamental constitutional rights at the checkpoints in order to clarify whether it intended the checkpoints to effectively operate as crime checkpoints rather than immigration checkpoints. The former has resulted in millions of individuals forgoing the exercise of their constitutional rights within the United States at the mercy of the powerful arm of the government.

Topics: Supreme court (54%), Homeland security (54%), Immigration law (51%), Law enforcement (50%)

Summary (2 min read)


  • Following September 11, 2001, there was a “radical restructuring” of some federal agencies whose missions related to national security.
  • 27 Furthermore, the HSA authorized the president to modify the departmental structure; the president subsequently did so, further dividing the immigration functions of the DHS into three immigration agencies: two enforcement bureaus and one service bureau.
  • 28 The enforcement bureaus are the US Immigration and Customs Enforcement (“ICE”) and CBP.
  • 31 CBP, on the other hand, conducts border inspections at various locations, including land borders, airports, seaports, and interior checkpoints.

A. Checkpoint Procedures 101

  • CBP plays a crucial role in curtailing illegal activity within the United States by operating interior checkpoints in areas reasonably located away from the international border.
  • 35 Since the United States shares a border with Mexico that is almost 2000 miles long, and much of the border area is “uninhabited desert or thinly populated arid land,” 36 the checkpoints provide support in monitoring secondary roads CBP determines are likely to be used by undocumented immigrants or narcotics smugglers.
  • The following section explores CBP’s authority to operate checkpoints within the United States and how the Supreme Court blessed this authority with its holding in Martinez-Fuerte.

A. Proving Citizenship and the “Mexican Ancestry” Criterion

  • While the majority of US Citizens carry their driver’s license on their person, this form of identification may be deemed insufficient to prove citizenship at checkpoints.
  • Some argue that the “Mexican ancestry” criterion is essential in pursuing law enforcement goals because CBP agents “have [a] very short period of time to make an assessment as to whether further inquiry needs to be given.”.
  • In multiple recent law enforcement contexts, questions have been raised about the legality of law enforcement procedures that either explicitly or implicitly rely on racial profiling.

B. Refusing to Answer Non-Immigration Questions

  • In Martinez-Fuerte and its progeny, the Court has failed to address whether a motorist may refuse to answer a CBP agent’s questions— primarily those that go beyond the scope of a routine immigration inquiry.
  • One federal circuit has held that checkpoint stops ought to be “limited to the justifying programmatic purpose of the stop: determining the citizenship status of persons passing through the checkpoint.”.
  • Washington University Open Scholarship held, for different reasons, that a referral to secondary inspection was valid.

C. Recording Individual Checkpoint Data

  • // checkpoints to primarily seize narcotics, 120 which, according to the statistics, has overwhelmingly been CBP’s greatest success, also known as https.
  • See Bill Ong Hing, Border Patrol Abuse: Evaluating Complaint Procedures Available to Victims, 9 GEO.

A. Judicial Relief

  • There are two types of judicial remedies: equitable relief and damages.
  • Thus, assuming federal judges err on the side of not granting injunctive relief, individuals are more likely to successfully receive relief by pursuing remedies under Bivens and/or the Federal Torts Claims Act (“FTCA”).
  • Prior to Bivens, “[n]o federal statute authorize[d] federal courts to hear suits or give relief against federal officers who violate[d] the Constitution of the United States.”.

B. Qualified Immunity and Other Barriers to Relief

  • Both Bivens relief and FTCA relief have shortcomings.
  • For an enlightening analysis of the good faith immunity doctrine at the time of its enactment, see Saylor, supra note 146, at 292–98 (noting that “good faith” could apply based on an official’s reliance on operating procedures, departmental procedures, supervisory instructions, and regulations).
  • So while the majority in Martinez-Fuerte dismissed Justice Brennan’s concerns by noting that the “courts would not be powerless to prevent the misuse of checkpoints to harass those of Mexican ancestry,” 198 individuals do, in fact, face substantial barriers in seeking relief following an improper checkpoint stop.

A. CBP Ombudsman Proposal

  • House Bill 4303 proposed creating an Ombudsman to monitor checkpoint operations.
  • Clearly then, one solution is for the Ombudsman to request and monitor how much is being spent at each checkpoint by sector to determine costs.
  • In addition to its reporting role, the Ombudsman can also serve an advisory role in assuring that CBP complies with the law.

B. CBP Complaint Forum Proposal

  • House Bill 4303 also provided protection to persons who are reluctant to file a complaint for fear of retaliatory actions by law enforcement officials.
  • Any implemented complaint procedure should be externalized, not further internalized by CBP’s current bureaucracy.

C. Community Sticker Program Proposal

  • In addition to the previously discussed proposals set forth in House Bill 4303, several supplemental proposals may address issues with the current procedures at checkpoints following Martinez-Fuerte.
  • If the registrant initially registered his or her family of six, only six people could be in the car when arriving at the checkpoint.


  • Many Americans are unaware of the militaristic procedures that occur every day at CBP checkpoints within the United States.
  • In 1976, checkpoints were designed to solely curtail the flow of undocumented immigration from Mexico, but now counterterrorism and drug-trafficking prevention are cognizable law enforcement functions.
  • Https:// ought to be scrutinized in order to preserve fundamental constitutional rights where they presumably are applied in the highest regard: within the United States.
  • My sincerest gratitude goes out to my colleagues at the Washington University Law Review.

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Washington University Law Review Washington University Law Review
Volume 93 Issue 3
The Praetorians: An Analysis of U.S. Border Patrol Checkpoints The Praetorians: An Analysis of U.S. Border Patrol Checkpoints
Following Martinez-Fuerte Following Martinez-Fuerte
Jesus A. Osete
Washington University School of Law
Follow this and additional works at:
Part of the Constitutional Law Commons, and the Immigration Law Commons
Recommended Citation Recommended Citation
Jesus A. Osete,
The Praetorians: An Analysis of U.S. Border Patrol Checkpoints Following Martinez-
, 93 WASH. U. L. REV. 803 (2016).
Available at:
This Note is brought to you for free and open access by Washington University Open Scholarship. It has been
accepted for inclusion in Washington University Law Review by an authorized administrator of Washington
University Open Scholarship. For more information, please contact

Suppose José needs a gallon of milk from the grocery store. He puts on
his shoes and grabs his car keys and his wallet. The grocery store is
located outside of town. José is aware of the inevitable: he’ll have to cross
an immigration checkpoint located halfway between his house and the
grocery store. Upon arriving at the checkpoint, José must declare his
citizenship to an immigration officer. José tells the officer that he is a US
Citizen. The officer, however, is skeptical; he asks José for
documentation. José, befuddled, pulls out his driver’s license and presents
it to the officer. The officer scoffs, informing José that his driver’s license
does not prove his citizenship. Thereafter, the officer instructs José to pull
over to the side for further inspection. José complies, and other officers
inform José that they will search his vehicle. José, having nothing to hide,
consents to the search. José waits while officers and a canine inspect his
vehicle. He’s nervous; the canine is sniffing all sorts of things in his car.
Perhaps it’s the scent of pizza in the rear seat, or perhaps it’s his dog’s hair
spread all over the driver’s seat. An immigration officer approaches José,
telling him that the canine sniffed marijuana in the vehicle. José can’t
believe what he’s hearing. He can only imagine how much longer he’ll be
detained at the checkpoint. Will officers tear up his vehicle and find
nothing? Will officers delay him further? An officer eventually lets José
go. His five-minute trip to the grocery store became a thirty-minute trip.
Unfortunately for José, the grocery store closed the minute he left the
checkpoint. José returns home, fearful and empty-handed.
The Constitution applies to every person in the United States. It applies
to every person regardless of race, citizenry, and immigration status. It
certainly applies to individuals like José. Specifically, when a person
travels within the United States, he or she can rest assured that in his or
her travels, the Constitution will attach itself to each step he or she takes.
This includes instances where a person crosses the border from Mexico,
Canada, or elsewhere into the United States. But in recent times, it seems
as if the Constitution is no longer recognized in some parts of the United
States. Concealed by the cloud of an omnipotent and intrusive
government, people like José find themselves having to prove their
citizenship, defend their ethnicity, and routinely fold on exercising
fundamental constitutional rights within the United States. These
Washington University Open Scholarship

procedures occur within 100 miles of the international border. One then
must truly ponder when exactly did we begin to shrug off constitutional
protections that, presumably, apply within the United States.
The answer leads us to the late seventies, when the Supreme Court held
in United States v. Martinez-Fuerte that the United States Customs and
Border Protection (“Border Patrol,” or CBP) could constitutionally
operate checkpoints within the United States for the purpose of conducting
brief, routine questioning in order to verify a persons citizenship and
immigration status.
The case was fueled by efforts to curtail the flow of
undocumented immigrants into the United States from Mexico.
Some of
these undocumented immigrants came to the United States because of
economic opportunities unavailable in Mexico.
But throughout the thirty-
eight-year history since the Courts holding, some argue that CBP
routinely ignores, misunderstands, or continuously refuses to acknowledge
the fact that the checkpoints were to be solely utilized for immigration
In addition to preventing undocumented immigrants from entering the
United States, the checkpoints yield a far richer harvesta cornucopia of
contraband, particularly illegal drugs.
Moreover, checkpoints are utilized
in other law enforcement functions, such as apprehending human
and intercepting unregistered firearms.
One can hypothesize
. United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976).
. Id. at 551 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)) (finding that
approximately 1012 million undocumented immigrants were in the United States).
. Id. (citing United States v. Baca, 368 F. Supp. 398, 402 (S.D. Cal. 1973)).
RULE 1 (2014), available at
100-mile_ rule_final.pdf.
. United States v. Soyland, 3 F.3d 1312, 1316 (9th Cir. 1993) (Kozinski, J., dissenting). For
recurring examples, see Press Release, U.S. Customs & Border Prot., San Clemente Border Patrol
Agents at Checkpoint Near $2M Mark in Seizures for the Week (Aug. 25, 2014); Press Release, U.S.
Customs & Border Prot., Border Patrol Arrests Two Men on I-5 with $780K of Narcotics (Aug. 21,
2014); Press Release, U.S. Customs & Border Prot., San Diego Border Patrol Agents Nab $600K of
Drugs at Checkpoint (Aug. 18, 2014).
. See, e.g., Border Patrol Agents Find 15 People at Checkpoint, THE MONITOR (Nov. 23,
2015, 8:32 PM),
. See, e.g., United States v. Approximately $18,000.00 in U.S. Currency Seized on or About
Oct. 29, 2013 at the U.S. Border Patrol Checkpoint in Sierra Blanca, Tex., No. EP-14-CV-00129-FM,
2015 WL 1003872, at *4 (W.D. Tex. Mar. 5, 2015) (firearm); US Border Patrol Checkpoint in Upstate
NY Detains 17, WASH. TIMES (Sept. 25, 2015),
sep/25/us-border-patrol-checkpoint-in-upstate-ny-detains-/ (detaining individuals for weapons
violations, among other things). But see Bob Ortega, Incidents at Border Patrol Checkpoints Spur
Complaints, AZCENTRAL.COM (Feb. 1, 2015, 1:20 PM),
immigration/2015/01/30/teacher-legal-guns-triggers-cbp-checkpoint-incident/22634247/ (inspecting a
woman with a registered firearm).

the endless law enforcement functions that checkpoints could serve
outside the immigration context: perhaps apprehending inmates who break
out of prison, catching notorious drug lords like El Chapo Guzman, or
perhaps even preventing terrorist organizations like Al Qaeda and ISIS
from committing gruesome acts against Americans.
Thus, the checkpoints
can pursue laudable objectives within the United States.
This broader use of the checkpoints, however, subverts the rationale
of MartinezFuerte and turns a legitimate administrative search into a
massive violation of the Fourth Amendment.
The underlying reasons the
checkpoints are scrutinized are twofold. First, the MartinezFuerte
[court] approved immigration checkpoints for a very narrow purpose
detecting, and thereby deterring, illegal immigrants.
Second, individuals
have become frustrated by the undermining of fundamental constitutional
protections that, presumably, apply within the United States.
traveling through the checkpoints consist of US citizens, lawful permanent
residents, and foreign travelers. Hispanics
primarily take issue with the
controversial language from Martinez-Fuerte, where the Court allowed
CBP to use Mexican ancestry to interrogate, and potentially search,
certain individuals.
Non-Hispanics likewise take issue with the
checkpoints because the procedures have opened the floodgates to
harassment and abuse.
A round-the-clock US Border Patrol presence at the checkpoints
means that American citizens must endure inspection when they commute
. For other law enforcement functions, see United States v. Camou, 773 F.3d 932, 936 (9th
Cir. 2014) (child pornography); State v. Grijalva, No. 2 CA-CR 2014-0051, 2015 WL 686025, at *1
(Ariz. Ct. App. Feb. 17, 2015) (enforcing state DUI law).
. Soyland, 3 F.3d at 1316 (Kozinski, J., dissenting).
. Id. at 1318.
. Such constitutional protections include the Fourth Amendments protection against
unreasonable searches and seizures and the Fifth Amendments protection against self-
incrimination, commonly referred to as the right to remain silent.” U.S. CONST. amend. IV, V.
. I recognize that there are different names for Spanish-speaking groups such as Hispanics,
Latinos, Chicanos, etc. For the sake of convenience, I solely use “Hispanics” throughout this Note with
the exception of the discussion of Martinez-Fuerte, where the Supreme Court uses the label
“Mexican,” and the discussion of the PHP Study, where the report uses the label “Latino.”
. United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976).
. See, e.g., Curt Prendergast, Are You Detaining Me? Citizens, Lawyers Question Legality of
BP Vehicle Searches, NOGALES INTL (Oct. 11, 2013), http://www.nogales
4bcf887a.html, archived at; Border Patrol Checkpoints Foiled by Drivers
Asserting Their Rights (VIDEO), HUFFINGTON POST (Mar. 1, 2013, 11:16 AM), http://www.huffington
Washington University Open Scholarship

to work or run errands.
Some individuals encounter checkpoints while
on their way to the supermarket, a doctors appointment, or the bank.
Others claim that the checkpoints have negatively affected local
communities economies, including the real estate market,
shopping, and recreational activities.
In fact, in certain places, there is no
way to get out of town without encountering a checkpoint.
range from allegations of unnecessary delays, harassment and sometimes
abuse at the checkpoint[s]
to allegations of unconstitutional searches
and seizures, excessive use of force, racial profiling, and other agent
While these occurrences are infrequent, they are clear
violations of the Constitution and should concern all of us.
. Amy Lieberman, Arizonas Checkpoint Rebellion, SLATE (July 20, 2014, 7:31 PM),
. See Massoud Hayoun, US Nationals ‘Under Siege’; Citizen Dies at Border Patrol
Checkpoint, ALJAZEERA AM. (Dec. 29, 2013, 8:45 PM),
29/us-nationals-undersiegeamidsuspiciousborderpatrolcheckpointdeath.html; Fernanda Santos, Border
Patrol Scrutiny Stirs Anger in Arizona Town, N.Y. TIMES (June 27, 2014),
2014/06/28/us/border-patrol-scrutiny-stirs-anger-in-arizona-town.html. Notably, celebrities such as
Willie Nelson and Snoop Dogg have been arrested at a checkpoint for possessing marijuana. John
Burnett, At ‘Checkpoint of the Stars,’ Texas Sheriff Takes a Pass on Pot Cases, NPR (Nov. 15, 2015,
9:55 PM),
ARIZONA: A CASE STUDY OF IMPACTS ON RESIDENTIAL REAL ESTATE PRICES 2 (2012), available at (finding that real estate prices declined in
communities near a checkpoint by an average of over $2700 in a three-month period).
. See Joe Sharkey, Border Patrol Grows as Seizures Drop, ALJAZEERA AM. (Aug. 22, 2013,
6:00 AM), drop.
. See id. In fact, thousands of undocumented immigrants, including those brought to the United
States by their parents as minors, are limited from traveling since they will undoubtedly encounter a
checkpoint. Manny Fernandez, Checkpoints Isolate Many Immigrants in Texas’ Rio Grande Valley,
N.Y. TIMES (Nov. 22, 2015),
. Cindy Carcamo, Arizona Residents Begin Monitoring Immigration Checkpoint, L.A. TIMES
(Feb. 26, 2014, 6:58 PM),
. Letter from James Lyall, Staff Attorney, Am. Civil Liberties Union of Ariz., to Charles K.
Edwards, Deputy Inspector Gen., Dept of Homeland Sec., Office of Inspector Gen. 1 (Jan. 15, 2014),
available at
%20CBP%20Checkpoints%20%202014%2011%2015.pdf. For other instances involving physical
altercations, see Garrett M. Graff, The Green Monster: How the Border Patrol Became Americas
Most Out-of-Control Law Enforcement Agency, POLITICO MAG. (Nov./Dec. 2014), http://www.
-6w; Tom Graser, No Charges for Border Patrol Agents for Stun Gun Use at Waddington Checkpoint,
WATERTOWN DAILY TIMES (Dec. 6, 2015, 5:23 PM),
151207 (CBP agents allegedly used a stun gun on a woman at a checkpoint); J.J. Hensley, Tempe

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Frequently Asked Questions (1)
Q1. What have the authors contributed in "The praetorians: an analysis of u.s. border patrol checkpoints following martinez-fuerte" ?

For example, this paper describes a case in which an undocumented immigrant needs a gallon of milk from a grocery store and has to cross an immigration checkpoint to do so.