Strip search rights?
#61
Join Date: Jul 2006
Location: NYC
Programs: DL PM, Marriott Gold, Hertz PC, National Exec
Posts: 6,736
I think the real issue here is not what the CBP can do, but how far can they carry it? CBP, can have their initial reasoning for a strip / cavity search, that bar is pretty low but to continue to more intrusive measures seems they would need to be able articulate their probable cause / reasonable suspicion. There is probably little case law on this issue.
#62
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Join Date: Mar 2008
Location: DFW
Posts: 28,082
The only SCOTUS case I'm aware of in this area (US v. Montoya de Hernandez) came out that reasonable suspicion was sufficient for CBP to detail someone long enough for whatever was in her digestive tract to pass through. Court didn't rule on other searches (body cavity, strip, etc.), though.
So how does being selected for secondary inspection stack up against reasonable suspicion as reportedly happened to this lady?
http://newspapertree.com/articles/20...-of-us-citizen
Upon her return through the Cordova port of entry at approximately 2 p.m., Doe was randomly selected for additional screening at a secondary inspection area, the complaint states. Doe was allegedly frisked through her clothing, over her genital area, and in the crevice of her buttocks with a finger by a CBP agent. No drugs or contraband were found.
Doe was then directed to return to a line with other people, when a CBP dog allegedly lunged onto her, “landing its front paws on her torso.”
The complaint says that Doe then was led to a private room and strip searched by CBP agents.
Doe was ordered to pull down her pants and crouch, as a CBP agent “examined her anus with a flashlight;” then she was “commanded to lean backwards in her crouched position,” while one of agents “parted Ms. Doe’s vulva with her hand, pressed her fingers into Ms. Doe’s vagina and visually examined her genitalia with a flashlight.”
“The strip search did not produce any evidence of contraband or of internal drug smuggling,” states the complaint.
Doe’s attorneys state that she was humiliated and began crying as agents taped the cuffs of her pants to her legs and placed her in handcuffs. At about 4 p.m., she was transported to the University Medical Center of El Paso.
“During the car ride to the Medical Center, Ms. Doe asked if the agents had a warrant. One of them responded that they did not need a warrant,” the complaint states.
Doe was then directed to return to a line with other people, when a CBP dog allegedly lunged onto her, “landing its front paws on her torso.”
The complaint says that Doe then was led to a private room and strip searched by CBP agents.
Doe was ordered to pull down her pants and crouch, as a CBP agent “examined her anus with a flashlight;” then she was “commanded to lean backwards in her crouched position,” while one of agents “parted Ms. Doe’s vulva with her hand, pressed her fingers into Ms. Doe’s vagina and visually examined her genitalia with a flashlight.”
“The strip search did not produce any evidence of contraband or of internal drug smuggling,” states the complaint.
Doe’s attorneys state that she was humiliated and began crying as agents taped the cuffs of her pants to her legs and placed her in handcuffs. At about 4 p.m., she was transported to the University Medical Center of El Paso.
“During the car ride to the Medical Center, Ms. Doe asked if the agents had a warrant. One of them responded that they did not need a warrant,” the complaint states.
#63
Join Date: Nov 2007
Location: WAS
Programs: enjoyed being warm spit for a few years on CO/UA but now nothing :(
Posts: 2,504
Probable cause is left up to the CBP. Probable cause to one agent may not be to another so people who are at the hands of a power hungry agent are bound to have a bad day.
Surely body scanners can be used to see if anyone has anything hidden inside them or on their person. It's a lot more respectful. I'm thinking of those people who are innocent. Being subjected to invasive searches to the innocent will be very damaging
Surely body scanners can be used to see if anyone has anything hidden inside them or on their person. It's a lot more respectful. I'm thinking of those people who are innocent. Being subjected to invasive searches to the innocent will be very damaging
Probable cause is not left up to the CBP. An officer uses guidelines and discretion at the time of the interaction to decide whether or not to search. If contraband is found and the person is tried on criminal charges a Court will decide if the facts reached the threshold of probable cause and the officer's decision to search was reasonable and justified. As noted elsewhere, the threshold for acceptable searches in the border areas is MUCH lower than in non-border areas.
Your point that people might have a bad day is well taken. Unfortunately, there is little that can be done about it.
If the search turns up no contraband the person having the bad will have zero to little recourse about how they were treated, any costs associated with the treatment or any emotional distress because government cannot be held accountable for doing its job, even for "mistakes", unless the aggrieved can show the government action was not just unreasonable, but either illegal or negligent (and often even grossly negligent). Those are extremely high barriers that very few plaintiffs are ever able to overcome.
The reason for the very high thresholds is that our society has enshrined the principle that it is not in the public's best interest for government to be liable for every action it takes or doesn't take.
It goes so far - and hopefully this will really wake you up - that law enforcement literally has no federal constitutional duty to protect you.
Yes, that's right, irregardless [sic] of the famous "To protect and serve" slogans painted on their cars, police in fact have no duty to protect YOU. Even if a crime against you occurs RIGHT IN FRONT OF THEM! Bet you didn't know that. This is very well established constitutional law going back to the founding of the country and much more recently (look up Deshaney in 1989 and Castle Rock in 2005). I do believe a few state constitutions or statutes do create an affirmative duty to protect but most do not. Police have a duty to protect society as a whole but except in very few and rare circumstances with exceedingly high thresholds, absolutely no legal obligation to protect any one individual.
So, especially with the special circumstances and leeway the Courts give to law enforcement in the border areas, however outrageous the treatment of this woman, she (and we) will never get anything from the government (such as new rules or procedures) when its employees are doing their job the way they were trained. At most, the employees might receive some disciplinary action if they didn't follow all procedures exactly correctly. The most the woman will get is whatever she is lucky to get from the hospital.
Surprising to learn the truth of how your government REALLY works, isn't it?
#64
Suspended
Join Date: Mar 2015
Location: Newport Coast, CA
Posts: 498
Given that "society as a whole" is made up of individuals, I'm not sure how they get away with not protecting one.
On the other hand, given that laws are written by (and for) lawyers, and not for society, and given how well these people have completely screwed up society as a whole, no, I'm not even a little surprised.
On the other hand, given that laws are written by (and for) lawyers, and not for society, and given how well these people have completely screwed up society as a whole, no, I'm not even a little surprised.
#65
Join Date: Jun 2012
Posts: 729
Again, such a search should require probable cause, and should be extremely rare (and I think they probably are extremely rare). Nothing excuses doing so without that probable cause. And "probable cause" should have a pretty high burden of proof on the police, a category that I place the CBP into.
With all that said, calling a strip search (even one that includes cavity search) "brutality" suggests to me that you really don't know what brutality is, and that you've never experienced it personally. (I'll admit that I haven't, and thank God for that.)
With all that said, calling a strip search (even one that includes cavity search) "brutality" suggests to me that you really don't know what brutality is, and that you've never experienced it personally. (I'll admit that I haven't, and thank God for that.)
Previously, you introduced your age as if that qualifies you as an expert in a subject. Yet, you attempt to devalue the arguments of people who may very well be in the same age bracket as if age is not relevant to their expertise.
That's ridiculous.
#66
Join Date: Jun 2012
Posts: 729
Here's the document filed with the court against the hospital: http://www.aclutx.org/download/169 (auto download). Among other details, it indicates that she was originally randomly selected for secondary screening and her vagina and anus were examined at the border crossing (pre-hospital) and found to be clear of drugs. Assuming there was justification for the vaginal/anal exam at the border crossing in the first place, escalation of the search thereafter was heinous mistreatment of a human being (though I doubt CBP saw her as a human being) and an unconscionable abuse of power.
Did CBP have an alternative to abusing this woman? Yes. They didn't have to let her enter the U.S. They could even have held her without abuse for the hours needed to ensure that any ingested drugs passed her system. Maybe the latter would have resulted in charges of unlawful detention, but it wouldn't have scarred her for life.
Did CBP have an alternative to abusing this woman? Yes. They didn't have to let her enter the U.S. They could even have held her without abuse for the hours needed to ensure that any ingested drugs passed her system. Maybe the latter would have resulted in charges of unlawful detention, but it wouldn't have scarred her for life.
#67
Original Poster
Join Date: Mar 2015
Location: Ottawa, Ontario Canada
Posts: 50
If one everyday citizen handcuffed a woman and inserted anything into her private parts without her consent, people would be justifiably outraged. Just because the one doing it is wearing a fancy authoritative uniform doesn't make it acceptable.
#68
Join Date: Jun 2012
Posts: 729
...So, especially with the special circumstances and leeway the Courts give to law enforcement in the border areas, however outrageous the treatment of this woman, she (and we) will never get anything from the government (such as new rules or procedures) when its employees are doing their job the way they were trained. At most, the employees might receive some disciplinary action if they didn't follow all procedures exactly correctly. The most the woman will get is whatever she is lucky to get from the hospital....
#69
Join Date: Nov 2007
Location: WAS
Programs: enjoyed being warm spit for a few years on CO/UA but now nothing :(
Posts: 2,504
Given that "society as a whole" is made up of individuals, I'm not sure how they get away with not protecting one.
On the other hand, given that laws are written by (and for) lawyers, and not for society, and given how well these people have completely screwed up society as a whole, no, I'm not even a little surprised.
On the other hand, given that laws are written by (and for) lawyers, and not for society, and given how well these people have completely screwed up society as a whole, no, I'm not even a little surprised.
#70
Original Poster
Join Date: Mar 2015
Location: Ottawa, Ontario Canada
Posts: 50
Did CBP have an alternative to abusing this woman? Yes. They didn't have to let her enter the U.S. They could even have held her without abuse for the hours needed to ensure that any ingested drugs passed her system. Maybe the latter would have resulted in charges of unlawful detention, but it wouldn't have scarred her for life.
#71
Join Date: Feb 2011
Location: Houston, Texas
Posts: 959
<...snip...>
Did CBP have an alternative to abusing this woman? Yes. They didn't have to let her enter the U.S. They could even have held her without abuse for the hours needed to ensure that any ingested drugs passed her system. Maybe the latter would have resulted in charges of unlawful detention, but it wouldn't have scarred her for life.
Did CBP have an alternative to abusing this woman? Yes. They didn't have to let her enter the U.S. They could even have held her without abuse for the hours needed to ensure that any ingested drugs passed her system. Maybe the latter would have resulted in charges of unlawful detention, but it wouldn't have scarred her for life.
#72
Join Date: Nov 2007
Location: WAS
Programs: enjoyed being warm spit for a few years on CO/UA but now nothing :(
Posts: 2,504
Acceptable to whom? It certainly does make it acceptable under our country's laws. I will go out on a limb and say most, in not almost all, other country's have the same perspective.
#73
Original Poster
Join Date: Mar 2015
Location: Ottawa, Ontario Canada
Posts: 50
#74
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#75
Join Date: Nov 2005
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