Firebug4

This is going to be a long post. I will start off with this statement. A judge is usually who determines if an action that a law enforcement officer has done is legal or not. It could be a detention, a search or a use of force. That judge has access to all of the information. That information includes statements from the public, statements from the law enforcement officer, the officer’s official reports, physical evidence, statements from witnesses, and yes any video and audio recordings that may exist. You cannot watch five minutes of video tape alone and determine if something was legal or not. You do not have access to the officers in order to get there beliefs and justifications for the actions taken at the time and most of the time that is what determines if what they did was legal or not. That being said I will give you my opinion on the tape. However, that is all it will be is my opinion because I don’t have access to all the information either.

Is what happened at the checkpoint legal is the question that I was asked? The best answer is it depends. I will try to discuss most to the issues enter into the determination if it were legal or not. I believe that the stop was legal but that the Border Patrol agents did not handle the situation particularly well. I also believe that it didn’t really matter how the agents handled the encounter because the traveler intended to pick a fight to attempt to prove a point.

The stop itself has been determined be the US Supreme Court to be legal. The court found that the checkpoint stop is a reasonable 4th amendment seizure in order to determine the traveler citizenship and/or resident status. This is accomplished by as taken from the decision “answering a question or two and possibly the production of a document evidencing a right to be in the United States.”

http://supreme.justia.com/us/428/543/case.html <- is a summary you can get the whole thing from a link there.

This is where the agents tend to get jammed up. The answer to the traveler’s question “am I being detained?” is yes. You are being detained in order for the agents to determine citizenship. This has been ruled to be a reasonable seizure by the US Supreme Court. The Court even when as far as to rule that determination can be made in the secondary environment of a checkpoint. This means the agent can stand in the roadway at the checkpoint and without asking you a single question can direct you to the secondary area for another agent to ask those questions. This is to take into account traffic related issues.

In this particular encounter, the Border Patrol agent attempts to do exactly what the US Supreme Court ruled to be legal. The traveler was uncooperative and was lawfully directed to the secondary area. The traveler refused to comply with that direction. The traveler continues to ask the same question over and over. I personally believe that the agent should have answered his question in the affirmative and continued with the inspection. That may have diffused the situation but I doubt it.

Each situation is different and each agent is different in how they handle it. I personally don’t care if I am videotaped while doing my job. However, if you are the person that I am in contact with you will not be pointing a handheld video camera at me. A friend can do it, bystander can do, but the person that I am in contact with will not have things in their hands certainly not pointing something at me. This is for my safety, your safety and the public at large.

The first Border Patrol agent did not appear to be familiar with the traveler. The first agent attempted to determine the traveler status. The traveler was uncooperative so the agent correctly directed him to the secondary area. This done in order to keep the flow of traffic going and not block the road for extended periods. This is important because backed up traffic can be a factor in traffic accidents in the vicinity of the checkpoints. Border Patrol is aware and is sensitive to this condition.

What follows on the tape is the part that is difficult to determining legality from the tape alone. This is because it would depend heavily on what is in the mind of the agents on scene. We do not have the benefit of their reports or the ability to ask them what they believed at the time. The following is what I observed from the tape.

The traveler has approached the checkpoint and is being uncooperative. The traveler will not comply with simple directions or answer any questions whatsoever. The traveler attempts to speak over top of the agent while the agent is conducting the inspection. This can be indicative of someone who is engaging in smuggling aliens or narcotics. This tactic is used to intimidate the agent into concluding the encounter.

The traveler refused several directions to proceed to the secondary area. A reluctance to comply with proceeding to a secondary inspection area is again indicative of someone who may be engaged in smuggling aliens or contraband in their vehicle.

The traveler will not roll down his window more than a few inches. This is another action that can be indicative of a person engaged in smuggling. This action is encouraged on many websites. Many of these websites advertise this action as flexing your rights, but this action was circulated long before that and not in the context of exercising your rights. It was circulated in the drug trade as an attempt for the odor of the smuggled narcotic not to reach the law enforcement officer during a traffic stop. It is also employed to hide the odor of alcohol when one has been drinking and driving.

These three observations can be used to build reasonable suspicion for an investigative detention beyond the original seizure to determine citizenship or status in the United States, though in this case that is really not needed here because citizenship or status was never determined. The traveler has in the course his choices in behaving the way he did has started to impede the agent in performing his duty of determining the citizenship or status of the travelers at this checkpoint. The traveler at this point has committed an arrestable offense. 18 USC 111. http://codes.lp.findlaw.com/uscode/18/I/7/111

The second agent appears to know who the traveler is. The second agent does not enter into the encounter until well after the traveler has ignored several directions to proceed to the secondary area. The traveler has already spent enough time refusing to comply with lawful directions to be impeding the agent so in reality the agent has probable cause to arrest the traveler. What follows after that is purely speculation on everybody’s part including me. This first agent may have begun to believe that there was more going on here than just a traveler that doesn’t agree with the current case law and is trying to prove a point. We don’t even know if he even considered that to be the case. If that is true and the first agent believed something else is going on it doesn’t matter if the second agent knows him or not. If the first agent believes that he has enough reasonable suspicion to continue with an investigative detention for smuggling or what ever criminal action he believes is taken place the fact that the second agent knows who he is and is a US citizen doesn’t really matter.

The problem with the video is that we do not have insight as to what the agents were thinking at the time and no way to question them as a judge would to determine that. Which is another important point, a law enforcement officer is required to articulate his facts that lead to reasonable suspicion, probable cause etc. to a court and a judge. The law enforcement officer is not required to articulate it to the subject or to the public at large. The court and judge takes into account what a reasonable officer would do based on training and experience. That may not be the same as what an untrained member of the public would do. The law enforcement officer is very aware of what will constitute reasonable suspicion and probable cause in the jurisdiction that he is working in.

The next thing that happens on the video is that a supervisor arrives. The supervisor makes the decision to let the traveler continue on his way. While I watch this portion of the tape I notice that the supervisor spends much of his time looking down the road behind the vehicle. The supervisor spends very little of this time focused on the traveler. It is a very bad officer safety kind of thing to be doing. However, it tells me that he is concerned about the traffic backing up. The supervisor is in a better position to know who this traveler is, the traveler history and decides rightly in my opinion that the traveler is wasting everybody’s time and is more likely causing a dangerous condition behind him just to get his 15 minutes of fame on YouTube.

This is my personal opinion of the whole thing at Border Patrol checkpoints. Every body gets hung up on the “Am I being detained” question. The agents should just answer the question truthfully. Yes, you are being detained to determine citizenship. The US Supreme Court as ruled that is reasonable and legal and it hasn’t changed. Someone coming along with a video camera is not going to change that. What will change it is someone challenging convictions and seizures that come from these Border Patrol checkpoints so far that hasn’t happened. In this particular case, this particular individual approaches the Border Patrol checkpoints with the intention of cause problems. If it were me calling the shots I would let him be the person to attempt to get it changed using the legal system. It is easy to just let him go and continue his tactics at the checkpoints. It avoids the conflict that is sure to follow if the government attempted to fix the problem and enforce the laws that are there for this. In this particular case, he was given lawful direction to proceed to secondary. He repeatedly refused to comply. He should be arrested for impeding the agent in his duty to determine citizenship and/or Immigration Status. The AUSA should then use everyone of his YouTube videos against him to show that he intends to disrupt the process that the US Supreme Court has ruled is reasonable and legal.

I agree that everyone has rights and is allowed to exercise them. However, we have a legal system that adjudicates situations and determines what is legal and constitutional. This topic has been ruled to be legal and constitutional. If you don’t agree there are steps that can be taken so that the court may revisit the topic. However, those steps don’t include violating the law just because you don’t agree with it.

FB

Firebug4

Ok now that the post is out of the way.

I will remind you that I don't get paid to answer your questions on this website. I don't mind doing so when I can because I enjoy the discussions. I also attempt to give the most accurate information that I can. This means if the topic concerns things that I haven't done since the beginning of my career if takes a fair amount of research on my part sometimes several days with phone calls.

This particular thread on this topic will generate a lot of discussion that quite frankly I don't have the time to dedicate to follow it. I am sure that there will be many questions concerning my post and I can't guaranty that I can be available to answer them unless of course you are volunteering to pay me a salary to do so I can quit my job. There are topics that I can comment on readily and follow pretty easily like ICE is an agency that does Child Porn investigations and the DHS as the Department that manages other agencies doesn't do any investigations at all. That is because it is a pretty easy concept that everybody should be able to understand. This is because it involves a lot of technical issues in the law. Even so this particular topic about BP checkpoints has been argued in the courts and the court has decided that they are reasonable and legal. The only thing that will change that is another court case not some guy with a video camera though it does make interesting viewing.

FB

Ari

The word "forcibly" appears at the beginning of the definition of the offense . . . your reading of the statute is overbroad.

I will also add that a jury, not just a judge, is empowered to reach that obvious conclusion without a judge reaching a constitutional issue.

Ari

So what would you charge someone with for refusing to put down the camera? Obstruction? Resisting arrest?

Would you use force against the person and then claim you reasonably felt threatened? What force would you use? Would you be willing to defend that force in a 1983 suit?

Saitek

Personally... if I was to stop at one of these BrownShirt Stops. and they asked me if I were a US Citizen I would say yes. Outside of that, what business is it of theres, where I am coming from where I am going, what I am doing, what I have in my car, what business I am in or conducting.

As a United States Citizen, I am free from Tyranny, and unreasonable search and Siezure with out probable cause. Stopping at a random check point (can we say, brownshirt) is not enough reason to conduct a search of my person or my artifacts/vehicle, or interrogation. Period.

They ask, are you a US Citizen. Yes. Under Federal Law, it is up to THEM to prove I am not. Answering anymore questions, you are not obligated, or encouraged to do so. (I spoke to a criminal defense attorney I know about this)...

Firebug4

A jury is not present at the preliminary hearing to determine if probable cause existed for the detention, or an arrest. A jury is also not present at a motion to suppress evidence found in search or the legality of statements made in an interview. Judges with the proper legal training do that not jury's. In a criminal court the jury is there to decide the innocence and the guilt based upon the evidence that is presented. If there is a question about how that evidence, or statement was obtained, or if a stop was legal or not that is decided long before a jury gets to hear any of it.

FB

Firebug4

It would depend up the nature of the encounter. If the encounter is consensual, it is a different set of rules. As long as the encounter stays consensual, the subject can tape away. If I have reasonable suspicion either before the encounter started or it was developed during the course of the conversation the encounter then becomes an investigative detention. An investigative detention is considered a seizure of the person. Courts have ruled that reasonable amount of force can be used to restrain a person during the course of an investigative detention even if enough probable cause for an arrest has not be found. Courts have also ruled that since the investigative detention is a seizure the officer can take steps to protect his safety and the subjects safety. The courts have given the officer board latitude when it comes to this. I can easily articulate why I don't want an individual that I have seized during an investigative detention to have a solid object in his hand to use to hit and bludgeon me with. That is why I stated that officers are very aware of what is expected in their Judaical jurisdictions when it comes to supporting their actions. These type of actions are not of the cookie cutter kind of thing. Each one is distinct and separate and are examined as such. They contain too many variables, many which depend upon what the officer was thinking at the time and what else was going on around the scene that the camera can't see. That is why you can't make these determinations by watching a video that is posted on You Tube and expect to get it right.

The level of force would depend largely on the subject and his reaction to the commands given. The level of force would be enough to gain compliance and would rise with the subject's resistance to compiling with the officers commands.

Yes, I would be very comfortable defending my actions. I am very aware of my use of force policy and the continuum that I am required to follow.

FB

Firebug4

You are correct. However, that is not what happened in this video is it. The subject refuses to answer the citizenship question at all. You should also read the US Supreme court decision that allows this to happen. It discusses some of what the officer is permitted to do. It is not as simple as just answering the question. The officer can direct you to the secondary area to ask that question.

Being stopped at a Border Patrol Checkpoint (can we say SCOTUS has declared to be reasonable and legal) to determine citizenship or status is reason enough to ask question concerning that citizenship or status. Other questions are allowed to be asked you are not required to answer those questions. If the officer has reasonable suspicion to detain you he has the authority to do that. The biggest point I am trying to convey is that in most cases you can not watch a video and determine what was legal and what was not because you don't have access to be able to question the officer as the the reason he took what ever action you are watching.

I would also give you this small piece of advise. When talking about Border Patrol, CBP Officers concerning Immigration and Customs matters you should not limit your consultation to criminal defense attorneys, you should include and attorney that is very familiar with Immigration and Customs administrative law as well. The administrative side of the equation does not work the same a criminal law and in many ways can be used to much greater detrimental effect to you be the government. ( I know about this because I have seen it happen)

FB

Firebug4

I would let the AUSA and the judge determine that. That is what they are paid to do.

FB

Boggie Dog

Can I take from your comments that you do not believe that a person in the United States has the right to remain silent when being questioned by a LEO?

bluenotesro

Firebug, I enjoy your posts and respect your position but beyong answering that Im a US citizen, I would never, ever answer anymore questions. That's the biggest mistake a person can make when confronted by LEOs or people with arrest powers. Ask any lawyer. Doesn't matter how innocent you are, never, never answer any more questions without an attorney at your side.

Firebug4

I am not sure where you got that from. The text you have quoted is all in relation to someone under investigative detention and why I would not allow that person to have a solid object (the video camera) to hit me with in their hands. They don't have to answer the LEO questions at all.

In relation to a Border Patrol checkpoint SCOTUS as determined that it is reasonable seizure under the 4th amendment to determine citizenship or status. Again this is taken directly from the decision. The court determined that the national interest out weigh the 4th amendment privacy concerns.:

Their words not mine. The court ruled that stopping people at immigration checkpoints to determine citizenship and/or status by asking questions and in some cases to produce documents evidencing the right to be in the United States. The subject is required to answer those questions related to citizenship. However, this is very narrowly limited to Immigration checkpoints and Ports of Entry. The subject is not required to answer any other questions that do relate to citizenship. This only applies at the checkpoint. In encounters the occur in places other than a Immigration Check point or a Port of Entry. The subject doesn't have to answer anything.

I didn't make the rules or the decisions. I just operate under the parameters that the rules and decisions create. It could change tomorrow and that would be OK to. It just changes how I do about my job.

FB

Firebug4

I agree with you. However, it would make my job much more difficult.

FB

jtodd

Therein lies the rub Firebug. It makes your job more difficult, but that is not near the top of my list of concerns. My concerns are for the protection of my rights as a citizen, to be secure in my person and possessions. As we see, with alarming regularity, law enforcement personnel abusing, injuring and sometimes killing citizens, for as little as being deaf(Seattle). Then we see video of bp agents damaging a citizens car and then injuring the person. It takes a year or more for the legal system to provide restitution of any kind.

What this has done is pitted American citizens against personnel in a position to serve the citizenry. This is why the court should have sided on the Constitution instead of turning it on it's ear. By making rulings such as this, we are being pushed in to a you vs us challenge just for us to keep the rights guaranteed by the Constitution.

Ari

You miss my point; I don't expect a Judge to overrule the Supreme Court. I would expect a Judge to rule such a stop constitutional. Whether the Judge would let the case go beyond a PC hearing (based on the reading of "forcible" in the statute) is a closer question. Assume the Judge decides to let a Jury hear the case (or a Judge sitting as trier of fact).

The jury (or Judge) hears the case and acquits. That's it. Case closed. No court that has any say or power to change things-- in this case the Supreme Court though I don't put much past the 9th Circuit-- will never hear the case.

So, while a Judge will make the initial determination that determination will not be reviewed in the case of an acquittal.

I am aware of how the court system works; my point was that the issue is unlikely to be reviewed by a higher court if a jury were to acquit in such a case. There would be no standing to appeal the initial determination. The only to sidestep this is to plead guilty subject to an issue on appeal, but I can hardly see one doing that in a case in which one would have a good shot at acquittal. The Judge's initial determination is meaningless since it isn't binding on any other courts.

And the jury determines guilt only-- or lack thereof-- not guilt or innocence. A jury does not declare someone innocent, only not guilty. The law presumes innocence until proven guilty, so in the eyes of the law the defendant is innocent-- but not the jury. Had a jury found OJ "innocent" instead of "not guilty," the civil suit probably would have been barred.

It is important to remember that your use of force policy must yield to the 4th Amenment and not the other way around (I'm sure you are aware of this). It is also important to remember tha the law evolves over time.

There is a difference between RS for a temporary detention and RS for a search. Making a person put down a cell phone camera on RS to detain alone (but no RS for a search-- i.e. missing the "armed and presently dangerous" component) might push the envelope in the view of a court. Courts are well aware that LE doesn't like to be filmed and are constantly ruling in favor of the filmer as long as the filmer isn't interfering with the investigation or being threatening.

Cameras and cops are a new issue to the courts and it hasn't been reviewed extensively (so qualified immunity might attach in any event). Your position that anyone you have RS to detain can't film you because they are holding a small object in their hand might not come down on your side. And please don't invoke the cell phone gun. "Keep your hands out of your pockets" and "put your small camera phone down" are two very different commands even if they both have an impact on your perception of your safety and a Court might find as such. It isn't necesarily the same as any other object.

The AUSA would drop the case for the obvious reason-- the exact reason you would have brought the charge in the first place according to your post-- and told you not to do it again.

And that's why LE continues to punish people for exercising this right, even when that right is properly invoked far from any administrative search.

It is the same reason cops don't like cameras-- it makes their job more difficult because it adds a new dimension of accountability. That a tape doesn't tell the whole story is true. Cops don't always tend to tell the whole story either (and studies say most will completely lie when it suits them).