A Little Known Fact: Most Americans Can Be Searched and Arrested without Probable Cause

 In Asset Forfeiture Blog

Most Americans Can Be Searched and Arrested without Probable Cause

It is common knowledge that the Fourth Amendment of the U.S. Constitution protects American citizens from unreasonable searches and seizures by the Government or its agents. However, few people know that certain federal officers are permitted to search travellers without establishing probable cause or obtaining search warrant, and they can do so within a 100-mile zone that begins at the nation’s borders. Willie Nelson, Snoop Dogg, Fiona Apple and Nelly all had to learn about this the hard way.

19 U.S.C. § 482 allows customs officials to search persons, vehicles, and mail at the border without establishing probable cause. 8 U.S. Code § 1357 gives immigration officers the power to interrogate, detain, and search individuals and vehicles without obtaining a warrant. While being stopped and searched at a checkpoint on the actual border of the United States or even a few miles from the border of the United States is to be expected, many are shocked to find out, the zone where customs and immigration officials have the power to stop, search, and arrest individuals extends to 100 miles from our borders.

Your Constitutional Rights in the 100-Mile “Border Zone”

Roughly two-thirds of the US population lives within this 100-mile border zone, which encompasses many large cities and several entire states. Nearly 200 million people live within this zone.

You may be asking yourself how a border checkpoint can exist well inside the interior of the United States. You may also be asking how your Fourth Amendment rights can be reduced under the auspices of border protection when you do not live in a border town or ever travel to Mexico or Canada? Like it or not, U.S. Customs and Border Protection (CBP) has broad authority to operate internal checkpoints deep into the country.

Legal Authority that Establishes the 100-Mile Zone

The regulations that established the 100-mile border zone were adopted in the 1950’s by the Department of Justice.

18 U.S.C. § 1357(a)(3)g gives U.S. Customs and Border Protection authority to stop and conduct searches on vessels, trains, aircraft, or other vehicles anywhere within “a reasonable distance from any external boundary of the United States.” Regulations define this “reasonable distance” as 100 miles from any external boundary of the U.S., including coastal boundaries.

The Supreme Court has upheld the use of internal checkpoints, but only to the extent that the stops can consist only of a brief inquiry into whether someone is a resident. Checkpoints cannot be used primarily for drug-search or general law enforcement duties. However, Border Patrol agents often do not limit themselves to brief immigration inquiries and routinely conduct criminal investigations and illegal searches at checkpoints.

The Supreme Court case United States v. Montoya de Hernandez (1985) ruled that “automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion, even if the stop is based largely on ethnicity.”

These regulations and cases support the Government’s authority to conduct searches and seizures based on a broad range of conduct. Although probable cause is needed to search a vehicle, you may be detained for a lengthy period of time while probable cause is established and the search takes place.

Former Arizona Governor Raul Castro who was 96 at the time, was detained in 100 degree heat for more than a half-hour at an internal checkpoint in Arizona.

Widespread Use of Interior Checkpoints in Texas

In fact CBP operates 71 traffic checkpoints, 33 of which are permanent checkpoints, near the southern border. These permanent checkpoints are located in the border states of California Arizona, New Mexico and Texas. Of the 33, 15 are permanently fixed in Texas.

Of note, one internal checkpoints, located in Sierra Blanca, Texas has been the site of searches and arrests of American musicians such as Willie Nelson, Snoop Dogg, Fiona Apple and Nelly who were all detained for suspicion of possessing marijuana.

It is important to recognize however, that interior checkpoints provide more constitutional protection than border crossing checkpoints. That is, while any vehicle may be stopped for any reason at an interior checkpoint, such cars can’t be searched without probable cause. While this is a significant improvement in terms of a person’s rights, it is still striking that law enforcement agencies have the right to stop cars for no reason as far as 100 miles inland.

These checkpoints aren’t just located in sleepy border towns. Large cities in Texas, which lie within this 100-mile zone, include El Paso, Laredo, McAllen, Brownsville, Corpus Christi, Victoria, Beaumont and Houston. If you are traveling within Texas, but do not intend to ever go into or even close to Mexico, it is important to know that your vehicle can be stopped for any reason.

If there is probable cause, then your vehicle or luggage may be searched for the presence of illegal aliens, narcotics or other contraband.

Internal checkpoints are legally distinct from checkpoints at international borders or their “functional equivalent,” such as international airports. Regardless of which type of checkpoint, CBP agents have wide discretion to search and seize, absent any warrant or probable cause.

Even though the internal checkpoints do not give the same limitless authority to search and seize as a border checkpoint, CBP still has a very broad range to search and seize. At an internal checkpoint, CBP needs to have probable cause to search of a vehicle, but this can be easily established if there is reason to believe illegal aliens are in the vehicle or a canine alerts to the presence of contraband.

What may surprise most of us is that within this 100-mile zone, the government can set up any internal traffic checkpoints either temporary or permanent, fly surveillance drones with radar and cameras to track people or vehicles, and conduct roving patrols.  And within 25 miles of an international border, CBP has the authority to enter private property without a warrant.

In fact the scrutiny is so high in this border zone that it is referred to by the American Civil Liberties Union as a “constitution-free zone.”  This is due to the fact that, although CBP must have probable cause to search a vehicle, agents often do not understand the limitations of their authority, and the constitutional rights of citizens are often violated.

Constitution Free Zone

Asset Forfeiture at CBP Checkpoints in Texas

It is important to recognize that law enforcement officials are not only interested in arresting offenders at checkpoints, they are also keenly aware of their ability to seize and forfeit property. In its simplest terms, seizure is the mere possession of private property by a governmental agency whereas forfeiture is the outright transfer of full ownership of private property to a governmental agency.

Asset forfeiture is a legal process that allows the federal government, and most state governments, to take private property on the basis that such property was either used in a crime or the proceeds of crime.  Art. 59.01-59.05 Tx.Code.Crim.P.; 18 USC 981-983. For example, a car used to transport drugs is said to be used to facilitate crime or as an instrumentality. Also, property obtained with the fruits of crime, for example, a car bought with bank robbery money, is called proceeds.

Under Articles 59.01 and 59.02 of the Texas Code of Criminal Procedure, any large amounts of cash or other property found that the government believes is connected to criminal activity, may be seized and forfeited even if no crime is ever charged.

Both facilitation and proceeds theories support the forfeiture of a person’s property under the law.  What is more, not only are these laws on the books, state and federal prosecutors are adept at defending their takings in court and, if they are successful, keeping private property outright.

Understand that forfeitures are sought on both the State and federal levels. Thus, facilitating property may not only be subject to forfeiture by the State of Texas, but the U.S. Government through agencies such as the FBI, IRS, CBP, HSI, and the DEA may also seek to forfeit either civilly or criminally. In fact Title 18 USC sections 981, 982, 983 and 924 all permit forfeiture on the basis of allegations that property is connected to criminal activity. Further, Title 21 USC sections 856 and 881 permit forfeiture of property used to facilitate drug distribution as well as property traceable to such offenses.

Although CBP has wide discretion as to how it conducts searches in the 100-mile border zone, citizens need to be aware that this zone exists and that their cash or other property can be seized and forfeited. If possible when traveling through Texas and other states, it is suggested that you bring any records that connect your cash, car, or property to legitimate income. Examples of such records are paystubs, deposit and withdrawal slips. This because even innocent citizens may be caught up at a checkpoint, and have property seized and forfeited if the government believes it is related to a crime.

Most forfeiture proceedings begin with a seizure. Once property has been seized by a governmental agency (whether a local police force or a federal agency), notice of the seizure and the entity’s intent to forfeit must be sent to potential claimants (owners).  18 USC 981(a); Art. 59.02-59.05. Notice must also be published either online or in a local newspaper. This notice, in effect, shifts the burden to the claimant or owner.

Soon after, it is incumbent on the owner to make a claim to the money.  If they don’t do so in about 30 days, the government gets to keep the property outright. 18 USC 983 and Art. 59.01-59.02 Tex.Code.Crim.Pro.

Also, specialized defenses such as the innocent owner defense, which is designed to protect claimants who are unaware of a property’s connection to crime whether such connection is via facilitation or proceeds, must be declared (pleaded) quickly or subject to being waived.

People finding themselves in this position need to arrange for legal assistance immediately. The laws upon which asset forfeiture laws are based are centuries-old precepts and can be unfamiliar even to attorneys. If you have had property seized by a government agency, contact the attorneys at Varghese Summersett PLLC today at (817) 203-2220.

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