Washington University Law Review Washington University Law Review
Volume 93 Issue 3
2016
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
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Recommended Citation Recommended Citation
Jesus A. Osete,
The Praetorians: An Analysis of U.S. Border Patrol Checkpoints Following Martinez-
Fuerte
, 93 WASH. U. L. REV. 803 (2016).
Available at: https://openscholarship.wustl.edu/law_lawreview/vol93/iss3/9
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803
THE PRAETORIANS: AN ANALYSIS OF U.S.
BORDER PATROL CHECKPOINTS FOLLOWING
MARTINEZ-FUERTE
INTRODUCTION
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
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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 person’s citizenship and
immigration status.
1
The case was fueled by efforts to curtail the flow of
undocumented immigrants into the United States from Mexico.
2
Some of
these undocumented immigrants came to the United States because of
economic opportunities unavailable in Mexico.
3
But throughout the thirty-
eight-year history since the Court’s 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
inquiries.
4
In addition to preventing undocumented immigrants from entering the
United States, the checkpoints “yield a far richer harvest—a cornucopia of
contraband, particularly illegal drugs.”
5
Moreover, checkpoints are utilized
in other law enforcement functions, such as apprehending human
traffickers
6
and intercepting unregistered firearms.
7
One can hypothesize
1
. United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976).
2
. Id. at 551 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)) (finding that
approximately 10–12 million undocumented immigrants were in the United States).
3
. Id. (citing United States v. Baca, 368 F. Supp. 398, 402 (S.D. Cal. 1973)).
4
. See AM. CIVIL LIBERTIES UNION, CUSTOMS AND BORDER PROTECTION’S (CBP’S) 100-MILE
RULE 1 (2014), available at https://www.aclu.org/sites/default/files/field_document/14_9_15_cbp_
100-mile_ rule_final.pdf.
5
. 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).
6
. See, e.g., Border Patrol Agents Find 15 People at Checkpoint, THE MONITOR (Nov. 23,
2015, 8:32 PM), http://www.themonitor.com/news/local/border-patrol-agents-find-people-at-checkpoint/
article_9a386abe-9253-11e5-ac86-e7d57d676250.html.
7
. 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), http://www.washingtontimes.com/news/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), http://www.azcentral.com/story/news/politics/
immigration/2015/01/30/teacher-legal-guns-triggers-cbp-checkpoint-incident/22634247/ (inspecting a
woman with a registered firearm).
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2016] PRAETORIANS 805
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.
8
Thus, the checkpoints
can pursue laudable objectives within the United States.
This broader use of the checkpoints, however, “subverts the rationale
of Martinez–Fuerte and turns a legitimate administrative search into a
massive violation of the Fourth Amendment.”
9
The underlying reasons the
checkpoints are scrutinized are twofold. First, the “Martinez–Fuerte
[court] approved immigration checkpoints for a very narrow purpose—
detecting, and thereby deterring, illegal immigrants.”
10
Second, individuals
have become frustrated by the undermining of fundamental constitutional
protections that, presumably, apply within the United States.
11
Individuals
traveling through the checkpoints consist of US citizens, lawful permanent
residents, and foreign travelers. Hispanics
12
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.
13
Non-Hispanics likewise take issue with the
checkpoints because the procedures have opened the floodgates to
harassment and abuse.
14
A “round-the-clock US Border Patrol presence at the checkpoints
means that American citizens must endure inspection when they commute
8
. 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).
9
. Soyland, 3 F.3d at 1316 (Kozinski, J., dissenting).
10
. Id. at 1318.
11
. Such constitutional protections include the Fourth Amendment’s protection against
“unreasonable searches and seizures” and the Fifth Amendment’s protection against “self-
incrimination,” commonly referred to as “the right to remain silent.” U.S. CONST. amend. IV, V.
12
. 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.”
13
. United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976).
14
. See, e.g., Curt Prendergast, ‘Are You Detaining Me?’ Citizens, Lawyers Question Legality of
BP Vehicle Searches, NOGALES INT’L (Oct. 11, 2013), http://www.nogales international.com/news/
are-you-detaining-me-citizens-lawyers-question-legality-of-bp/article_2053f0a8-3295-11e3-ade3-001a
4bcf887a.html, archived at http://perma.cc/FRH2-87N2; Border Patrol Checkpoints Foiled by Drivers
Asserting Their Rights (VIDEO), HUFFINGTON POST (Mar. 1, 2013, 11:16 AM), http://www.huffington
post.com/2013/03/01/border-patrol-checkpoints_n_2789592.html.
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to work or run errands.”
15
Some individuals encounter checkpoints while
on their way to the supermarket, a doctor’s appointment, or the bank.
16
Others claim that the checkpoints have negatively affected local
communities’ economies, including the real estate market,
17
tourism,
shopping, and recreational activities.
18
In fact, in certain places, there is no
way to get out of town without encountering a checkpoint.
19
Complaints
range from allegations of “unnecessary delays, harassment and sometimes
abuse at the checkpoint[s]”
20
to allegations of “unconstitutional searches
and seizures, excessive use of force, racial profiling, and other agent
misconduct.”
21
While these occurrences are infrequent, they are clear
violations of the Constitution and should concern all of us.
15
. Amy Lieberman, Arizona’s Checkpoint Rebellion, SLATE (July 20, 2014, 7:31 PM),
http://www.slate.com/articles/news_and_politics/politics/2014/07/arizona_immigration_checkpoint_cr
iticism_border_patrol_harasses_people_and.html.
16
. See Massoud Hayoun, US Nationals ‘Under Siege’; Citizen Dies at Border Patrol
Checkpoint, ALJAZEERA AM. (Dec. 29, 2013, 8:45 PM), http://america.aljazeera.com/articles/2013/12/
29/us-nationals-undersiegeamidsuspiciousborderpatrolcheckpointdeath.html; Fernanda Santos, Border
Patrol Scrutiny Stirs Anger in Arizona Town, N.Y. TIMES (June 27, 2014), http://www.nytimes.com/
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), http://www.npr.org/2015/10/01/444780811/at-checkpoint-of-the-stars-texas-sheriff-takes-a-
pass-on-pot-cases.
17
. See, e.g., JUDITH GANS, THE BORDER PATROL CHECKPOINT ON INTERSTATE 19 IN SOUTHERN
ARIZONA: A CASE STUDY OF IMPACTS ON RESIDENTIAL REAL ESTATE PRICES 2 (2012), available at
http://udallcenter.arizona.edu/ucpubs/gans_2012b.pdf (finding that real estate prices declined in
communities near a checkpoint by an average of over $2700 in a three-month period).
18
. See Joe Sharkey, Border Patrol Grows as Seizures Drop, ALJAZEERA AM. (Aug. 22, 2013,
6:00 AM), http://america.aljazeera.com/articles/2013/8/22/border-patrol-growingasapprehensions drop.
html.
19
. 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), http://www.nytimes.com/2015/11/23/us/checkpoints-isolate-many-
immigrants-in-texas-rio-grande-valley.html?_r=0.
20
. Cindy Carcamo, Arizona Residents Begin Monitoring Immigration Checkpoint, L.A. TIMES
(Feb. 26, 2014, 6:58 PM), http://www.latimes.com/nation/la-na-ff-border-crossing-20140227-story.
html#axzz2uURn4Zzw.
21
. Letter from James Lyall, Staff Attorney, Am. Civil Liberties Union of Ariz., to Charles K.
Edwards, Deputy Inspector Gen., Dep’t of Homeland Sec., Office of Inspector Gen. 1 (Jan. 15, 2014),
available at http://www.acluaz.org/sites/default/files/documents/ACLU%20AZ%20Complaint%20re
%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 America’s
Most Out-of-Control Law Enforcement Agency, POLITICO MAG. (Nov./Dec. 2014), http://www.
politico.com/magazine/story/2014/10/border-patrol-the-green-monster-112220_full.html#.VGgQoZPF
-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), http://www.watertowndailytimes.com/news05/
no-criminal-charges-for-border-patrol-agents-who-used-stun-gun-at-waddington-checkpoint-video-20
151207 (CBP agents allegedly used a stun gun on a woman at a checkpoint); J.J. Hensley, Tempe
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