FliesWay2Much

Major Constitutional issues about these checkpoints aside for the moment, they must have reasonable suspicion that you have crossed a border on a continuous trip in order to detain you for a secondary border inspection for a border you never crossed. I don't recall the Supreme Court case that defined these criteria, but I do know that there are 2-3 criteria like these the border patrol needs to satisfy.

Unless...you consented to a search. Recognize that cops of all paychecks will use coercion, deception, and manipulation in order to obtain your consent. That's because it's so hard to do it using reasonable suspicion, because it potentially puts the cop's job on the line if he/she is wrong and/or goes too far.

A common ruse is to trip you up on the answer. Generally, at times like these, you are thinking they will ask you if you consent to a search. Unless you are very intimidated or naively live by the "I have nothing to hide" credo, you are thinking "no."

But, if the cop asks, "Do you mind if I search your vehicle?", "No" means you just consented to a search..."No, I don't mind if you search my vehicle." It's always wise to repeat his/her question back at them: "Are you asking me if I consent to a search?" Of course, they can lie in response to this question as well. So, the better way is to simply state as often as necessary: "I do not consent to a search of my vehicle or my person."

Please recognize I'm not picking on you, because Monday Morning Quarterbacking is easy. I am saying that it's important that we aggressively protect our rights when dealing with police and other (real) government cops, because they have no obligation to protect our rights.

Firebug4

What you are writing is somewhat confused. Go back and read what you are quoting. What the OP described was neither a consent search nor a extended border search. The OP stated that the agents told them that the K9 alerted to the vehicle. Regardless, if you believe the agent or not the K9 alert is probable cause to search the vehicle. Consent is not needed nor are any of the factors that are required for an extended border search. The factors that are needed for a extended border search are as follows:

1. The government officials have a reasonable certainty that a border was crossed or there exists a “high degree of probability” that a border was crossed.
2. They also have reasonable certainty that no change in the object of the search has occurred between the time of the border crossing and the search.
3. They have “reasonable suspicion” that criminal activity was occurring.

That translates to what is called nexus with the border. In simple terms you have to have the vehicle that you are going to search under surveillance from the time it crosses the border to the point you are going to search it or be able to show that the vehicle had to have crossed the border for example tire tracks in snow (for the northern border) leading from the border directly to the vehicle. etc and a reason to believe a crime has occurred. Most often this is that the vehicle crossed somewhere other than a Port of Entry or was observed picking something or someone up along with other factors in the vicinity of the border.

If what the OP has posted is what actually happened, which I believe that it probably is pretty accurate, none of that was needed. That is because the K9 alert is probable cause, which is a higher standard then #3 above and allows a search all on its own. He could have said "I do not consent to a search of my vehicle or my person." until he was blue in the face and it would not have made a difference because the K9 alert was probable cause and neither consent nor extended border search authority was needed to legally perform that search.

FB

T.J. Bender

"I'm sorry, officer, I know you're just doing your job, but I do not consent to any searches. Am I free to go?"

Worked for me a couple of times at a checkpoint southeast of San Diego. I drove the route (CA-94) frequently, and was asked twice to pull to the side for random inspection at the checkpoint. I just used the line above. The first time, the BP officer just kind of shrugged and sent me on my way. The second time, there was a bit of back-and-forth between us. Can't remember it verbatim, but this should give you the gist:

"Pull to the right for an inspection."
"Why is my vehicle being inspected?"
"Random check."
"I'm sorry, officer, I know you're just doing your job, but I do not consent to any searches. Am I free to go?"
"No. Pull over to the right."
"Why am I being detained? I've already told you that I do not consent to any searches."

By this point, my car had been circled by the dog, the dog had not alerted to anything, and the officer begrudgingly let me go. The checkpoints are set up to make you feel like you have no power whatsoever and no ability to stand up for yourself, but if you play it right, you can get through with minimal BS.

Even if their dog had alerted, refusing consent in that way protects you if they tear your car to shreds (as the Border Patrol is known to do). Consenting to the search is seen by many jurisdictions as waiving your right to pursue reimbursement for any damages that occur during it.

MaximumSisu

Is error or outright lying probable cause? Because the K9 and/or handler was wrong, as evidenced by the negative search. Get enough wrong, and soon no one going to believe you.

Does the CBP keep statistics on the false-negative rates of K-9 units, and retrain or decertify them for poor performance?

FliesWay2Much

The court rulings over the years have limited these checkpoints to a "brief stop" (avoiding the word "detention" like the plague) to determine citizenship. #1 and #2 above are the criteria for a real detention. The issue is that cops at all levels have started including drug dogs as part of the "limited and brief stop for citizenship determination." That's what is completely out of bounds. Cops at all levels continue to get away with this because We, The People, are wimps. Call it tin-foil hat if you'd like. I call it un-American. I'm all for getting drugs off the street. But, for Heaven's sake and for the sake of our democracy, do it right.

Firebug4

Again, what you are posting is confusing multiple topics. You should go back and reread those rulings you are referring to. The court rulings concerning Border Patrol checkpoints used plain language and clearly stated that they are a seizure of your person. Border Patrol checkpoints are a detention. #1 and #2 of the criteria I posted are NOT needed for that detention to happen. In fact, those three criteria have NOTHING to do with detention. They are about the extended Border Search which is NOT the same thing as the detention that occurs at a Border Patrol checkpoint.

Law Enforcement at all levels have used drug dogs as part of many different types of detentions not just brief stops for citizenship determination. While you may believe this is completely out of bounds, the courts do not agree with you. Law Enforcement is not "getting away" with anything. Law Enforcement is proceeding the way the courts have ruled that they can. The drug dog as been challenged in court many times. It has been ruled many times that the public as no expectation of privacy regarding smells coming from there person or property. It has been ruled many times that a drug dog can be used on any type of detention as long as the length of that detention is kept to a reasonable amount of time to concluded the business that is necessary to resolve the subject of the initial detention unless further reasonable suspicion is developed to justify a continued investigative detention.

I understand that you are not fond of the Border Patrol checkpoints. However, the information that you believe to be true concerning them is flawed. You are taking bits and pieces from different concepts and making connections where there are none. As with any topic concerning law enforcement, practices and policies change with court rulings. What was legal years ago is not legal now and what is legal now may not be legal years from now. The vast majority of law enforcement officers follow the policy they are given. The agencies also pay many people to make sure that the policy is in line with current court rulings and the rank and file officers get the changes and understand them. Does that mean that mistakes don't happen or that officers can still not understand the concepts? Of course not. Officers are human and they make mistakes like everyone else. That is why there are courts to resolve issues when there are questions if something was legal or handled incorrectly.

FB

Firebug4

No lying is not probable cause. Error is if it is in good faith. What negative search are you referring to? If you are talking about the OP's story, there was a positive search. I don't have enough information to even begin to decide if the OP is telling whole truth concerning what happened. I wasn't there. There are many variables that have to be taken into account. what was reported to have been found was a partially smoked joint. This is certainly in the realm of what a drug dog would alert to. Was the vehicle owned by the OP or was it rented. Who was in the vehicle with the OP? Were they all family? Could the joint have come from someone in the family and the OP is not aware of the fact (we all would like to believe that our family specifically our children do not have these things but that is not always true). Did the OP have an acquaintance in the car recently that may have left it behind? These are all factors that may have or may not have happened. There is no way to have or get that information from a internet forum to make an accurate determination.

I can talk about drug dogs a bit. They are very good at what they do. They will alert to what they have been trained to alert to even when the substance is no longer there. If you have been transporting drugs in a vehicle, they will hit on that vehicle for days after the substance as been removed. If you are carrying a drug that the K9 is trained to alert to in a back pocket for instance that scent very often will transfer to car seat you are sitting in. The longer you sit there the longer that scent remains. A negative search after a K9 alert doesn't mean the drugs were never there it just means that the drugs aren't there now.

Generally, the dogs train once a week to maintain their ability to recognize the scents they are trained to alert to. The dogs and the handler have to pass a annual certification test. If they do not pass, they are indeed sent to remedial training. If that does not improve the dogs or handler depending upon what the issue is the team is in fact de-certified.

Back to the original post. I can tell you as an agency Border Patrol is not interested in a partially smoked joint. They are interested in trafficking not personal use quantities. When personal use quantities are found it is nothing but a headache and wasted time for the agent. What is gained by planting a partially smoked joint as the OP infers that the agent did? The agents didn't charge the OP with anything they let him go. The agents don't get any gain from it other that additional paperwork not the agents favorite thing to do I can promise you. They don't have to justify the search to the OP at all. I just can not see what they would have to gain from it but I can see what they would have to lose. Why would agents risk losing there lively hood making easily 80 to 90 thousand dollars a year to plant a joint that they are not even going to charge over it just doesn't make a lot of sense.

FB

Firebug4

Not really true at all, especially in the Federal arena. If the officer/agent has reasonable suspicion to believe there is a criminal offense taking place the courts that given large latitude in what can be done to vehicles to resolve that issue. You will be given a Tort Claim form to fill out. You submit the form and the government either approves the claim or not. My understanding is not many of the claims get approved and paid but the officers/agents don't really have any say in that at all.

FB

Liquidape

I was recently stopped at this checkpoint on my cross country move because 'The Dog alerted to your vehicle'. I am confused at why the dog alerted to the vehicle. They claimed the dogs are trained to alert to narcotics and hidden humans. I had neither in my car.

Things that I think might have alerted the dogs:
-My Dogs (2 Siberian Huskies)
-Dog Treats
-60 LBS of Dog food
-Laundry from my newborn baby (stuffed in wheel well to save space - could this be mistaken as hidden human?)
-$1500 cash from recently sold motorcycle - I kept this on my person when I was asked to exit the vehicle. Would this have caused me more trouble had they found it in the car (or on my person)?

Anyway, after threatening to taze my dogs if they misbehaved and me keeping them under control (and a number of questions on how I trained them so well) I was waved through the checkpoint. My bet was on the clothes, but after reading this thread it might have been the cash. Just seeking other thoughts.

MaximumSisu

While I realize that you want to support your brother agents, do you really think that this scenario is plausible?

Scenario A

1. OP or other occupant is smoking joint, sees checkpoint, discards joint out driver's window (at driving speed) which lands and sticks to driver's door handle.

2. Joint is not noted by flanking agents standing adjacent to driver's door during K9 "hit" which should have been strong and localized. Joint remains unnoticed and stable during OP's exit of the vehicle and closing of door.

3. Despite your statement of extreme dog sensitivity, no hit on the persons traveling with OP who were in close proximity.

4. No findings within vehicle.

Scenario B

Or, more likely, a K9 false positive.

Scenario C

Or, more troubling, a "joke" or harassment by the agents in question.


B or C appear much more likely than A. It appears unlikely that a guilty party would become the complaining OP.

Again, I suggest you review the concepts of false positives, Bayes' theorem, and confirmation bias. Your view of the "can do no wrong" CBP is at odds with reality and with the 100's of your fellows under CBP IA and DHS IG investigation, and the numerous convictions.

Firebug4

My view is not that CBP can do no wrong, far from it actually, and your assumption that is my view is ignorant at best. I am in a much better position to be aware of what can occur in the course of this job. Are there officers/agents that are problems? Of course I never have said other wise and have dealt with some first hand.

I said early on that there was not enough information given in this account for me to determine with any accuracy what occurred or didn't occur and I have better understanding than most what can occur let alone someone else just reading it without any experience to draw from.

As for your scenarios, all three are hogwash because you weren't there either and have no idea what could or couldn't have occurred. I have seen numerous objects that have been left on the outside of vehicles that have defied physics and still are on the vehicle miles later including some of my own items I am some what embarrassed to admit.

The agents attention at the primary point of contact and the whole time the vehicle is occupied actually is not on the exterior of the vehicle. The exterior of the vehicle is not what is going to kill you. It is the occupants that will kill you so that is where your attention is focused. Mainly the occupants hands and the more occupants that you have the harder it is to notice anything else on the outside of that vehicle until the occupants are secured or are controlled away from the vehicle and the many places to hide weapons that vehicle represents.

As for the drug dog alerting on people, CBP dogs are not run on people at all. It is outside of policy as the dogs are not trained to be run on people unfortunately that doesn't fit in with your theory however it is reality. Also, it really is not my statement concerning a dog sensitivity to smell do some research yourself you will find the dogs ability is well documented.

Do K9's have false positives? Yes, but they are very rare and it doesn't really sound like a false positive does it. The poster stated that there was a half smoked joint present. That is not a false positive at all.

Let's move on to option 3 the joke or harassment. I will say it again. What would the motivation be? You are not talking about one agent. You are talking about five agents all risking their careers to make a joke concerning a half smoked joint. This was not on the side of the road out in the middle of no where. This occurred at a Border Patrol checkpoint which I promise you is under video surveillance and those tapes are readily available to IA very easily and not from the port or checkpoint itself. So you really think that five agents are going to risk their 90 thousand dollar a year job to make a joke. That really isn't anymore likely than your scenario A.

As for the OP being a guilty party complaining, the OP is not complaining to the agency. The OP is complaining on an internet forum where ultimately there is no way whatsoever to verify the claims either way so the complaint in and of itself proves nothing. A bit more on that subject as well, people file complaints all the time and guess what the guilty ones very often file complaints too. They think that it will change the outcome. Many times they are very surprised to find that it doesn't work especially when they find that what they have done is on tape or has been witnessed by multiple officers/agents or the public. They are even more surprised when they find that extra charge for filing a false report and lying.

So in the end let's just call a spade a spade and get right to it. Where did that joint come from. You don't think that it could have come from inside that vehicle OK. Where did it come from then. Was it just flying around in the air and came to rest on that car. Is that probable? You make it sound as if it coming from inside that car and GASP the OP not telling the truth about it just as implausible as it just flying around and landing on that car.

Do you want to know what else is also pretty plausible. That the whole story is fabricated and never happened. It would not be the first time a story was made up and posted on an internet forum to get just this type of reaction. I don't know one way or the other and either do you. I do know based doing the job that we are talking about for a fair amount of time that in reality it is pretty far-fetched.

You clearly believe that the agents planted this joint. However, you are very light on the motivation for such an action. The agents did not charge the OP with any crime at all so they get nothing out of it there. If it as you believe that it is, all they did was create extra paperwork for themselves at great risk to their careers. That makes no sense whatsoever. Even if they did not lose their jobs, you have no idea what havoc an IA investigation causes. They take a very long time to resolve (months and in some cases years if it is serious and complicated) during that time the agent can not promote or even transfer to another location. This is not taken lightly by the officers/agents at all.

You allude to hundreds of officers/agents under investigation. You will find that those investigations usually are in reference to criminal acts that involve smuggling, DTO's and large amounts of money. CBP found that if you pay your officers/agents a decent wage that it reduces the small time stuff. However, there is a lot of money the DTO's and alien smuggling organizations throw around.

What you are suggesting occurred just doesn't make sense. There just would be no point to it. Now, if the OP was charged maybe but the reality is that a Federal AUSA is not going to take a case of possession of a half smoked joint just not going to happen. The only folks that would care would be local law enforcement and the agents did not call them according to the OP so again what would the point of planting anything be?

FB

Ari

This is certainly a more compelling analysis for purposes of speculating what did or did not happen.

You mean at the BP roadblocks, not at airports, right?

The problem with K9 false positives is that they are very difficult to detect at the field level; whenever a dog alerts on a car in the field and no drugs are found, it is dicided that "drugs were there" because K9s don't make false alerts. And K9s don't make false alerts because whenever a K9 makes what you think is a false alert, it means drugs were there. It is circular logic; virtually the only time a dog can be 'caught' making a false alert is during a training exercise. Otherwise, the handler just assumes there were drugs in the car at some point. To the extent that dogs do make false alerts in the field, they are likely never recognized as such because the assumption is that "drugs were there" and the dog was right. My point is that there might be more false alerts than are recognized, particularly in the field. Does this make sense?

A partially-smoked joint is quite pungent, even to the untrained human nose.

How is the decision to call local LE made?

studentff

Welcome to FT. You're very fortunate that your dogs were not shot and killed. Much of law enforcement these days seems to enjoy shooting people's pets for sport and then having their superiors deny any wrongdoing (google Cheye Calvo). I fear for my dog in any encounter with law enforcement. If they shoot me, there might at least be a token investigation. They'll just write off the dog after a closed internal investigation determines that "proper procedures were followed."


CBP officers are IMO definitely better trained and probably better paid than TSA, but it's still worth noting that there are proven cases TSA employees at an airport checkpoint which is under video surveillance engaging in jokes/harassment against innocent passengers. E.g. http://www.nbcphiladelphia.com/news/...-82389097.html http://blogs.lawyers.com/2010/11/pra...ner-loses-job/

What was the motivation of the TSA employees? The reality is that people don't always act rationally.

Global_Hi_Flyer

That's a real good question, but a very similar thing happened to a friend of mine who was piloting his own plane (he is a doctor - and an FAA medical examiner - and happened to have an LEO riding as passenger/copilot on the trip) and crossed the border from Mexico. I don't recall all the details, but they were told to leave the plane and stand away (LEO sensed that something wasn't right, so he watched carefully & IIRC saw the plant take place). CPB claimed to have found a joint in plain sight in the cabin (absolutely impossible with these two folks). LEO/copilot made a quick call, and a few minutes later the CPB folks (very red faced) got a call and told the two of them to leave. LEO told my friend that they really shouldn't report it because "sometime I might need them to cover my back".

My friend no longer flys his own plane to Mexico. Not worth the risk from our own CPB.

So, yes, it's a real good question as to what happened.

T.J. Bender

$1500 shouldn't have. Hell, you're going through an internal checkpoint, so no amount should have been an issue. If you were at the border, anything north of $9,999 has to be declared, and if it's not, you have a problem. At internal checkpoints, you can carry $100k in unmarked singles in your trunk, and there's not much they can do about it because there's no law against carrying your life savings in small bills in the back of your car.