Jessica Cooke was on her way from Norfolk to beautiful Ogdensburg, New York, at the tippy-top of New York State where the predominant industry is prisons, when she came to a border checkpoint. A CBP agent decided to have her pull over for a secondary screening, meaning a dog sniff, claiming she was “nervous.” Contrary to popular belief, there is no Nervous-O-Meter 2700 to register and provide confirmatory proof when someone is so incredibly nervous as to evoke criminality, so we’re left with only the agent’s word.
Cooke got a little tired of waiting around for the brave pooch, and confronted the CBP agents, recording it on her cellphone.
At Reason, Jacob Sullum runs through the plethora of constitutional rights that should apply given that this is a person who is traveling from one place in America to another, as she is fully entitled to do.
After presenting her driver’s license, Cooke, who surely learned in college that police (and even CBP agents!) need “reasonable suspicion” to detain someone, asks why she was pulled over. “You guys have no reason to be holding me,” she says.
“Why do you want to get in my trunk when you have no right to?” Cooke asks. That question also reflects a potentially disquieting familiarity with Supreme Court decisions related to traffic stops. Just last month, the Court ruled that, in the absence of reasonable suspicion, police may not extend a traffic stop for the purpose of walking a drug-sniffing dog around the vehicle.
Then there is the manhandling, then tasing for refusing to “move over there” upon command. Or the opening of her car trunk because the dog didn’t alert. And Cooke’s arrest and detention, though she was subsequently released without charges being filed. A CBP spokesman says they’re still pondering charges for Cooke’s assaulting the agents’ hands and taser tips with her body.
Tim Cushing at Techdirt sums up, in another great turn of a phrase, the initiation of this mess:
Cooke knew the CBP agents needed something in the way of reasonable suspicion to continue to detain her. But they had nothing. The only thing offered in the way of explanation as they ordered her to return to her detained vehicle was that she appeared “nervous” during her prior interaction with the female CBP agent. This threadbare assertion of “reasonable suspicion” is law enforcement’s blank check — one it writes itself and cashes with impunity.
All of this, of course, is absolutely right, and completely wrong. Because law! No suspicion, no cause, is required for a border search. But, you accurately note, Cooke wasn’t crossing any border. She was a nice, American woman traveling within the nation of her citizenship to visit her boyfriend in Ogdensburg. If anyone has cause to complain, it’s the guy who lives in Ogdensburg. I’ve seen Ogdensburg. Trust me on this.
So how, one might thoughtfully ask, is it possible that an American traveling in America could possibly have her constitutional rights magically voided at the whim of border agents? Because the courts, in fixing another problem, held that the border isn’t the border, but the border plus, covering a whole lot of people and a whole lot of turf. Because law!
There are perfectly good reasons to expand the border to 100 miles inward, what with all those illegals pouring over the border who will steal lawn-mowing jobs from law-abiding Americans, but these are also horrendously bad reasons when the person has nothing to do with a border crossing. The CBP hasn’t missed this opportunity to get a free border search at will.
Border searches are a prime example of the maxim, “remember the rubric and forget the rationale.” That the law requires no cause, no suspicion for a border search is as black letter as it gets, but then, it was premised on a world quite different from today. The expansion to 100 miles inward reflects the combination of a judicial weighing of values and executive fiat, that the societal need to prevent illegal immigrants is big and important, while the impact on individual citizens’ Fourth Amendment rights is negligible and unimportant. Boom. Free search!
Sullum quotes SUNY Lawprof Rick Su, who explained to NPR that this stop and its sequelae emitted an unpleasant odor:
It’s an immigration checkpoint. But what it seems from the video is that the interest of the officials is not so much immigration at that point. It’s something else, maybe a drug violation [Ed. Note: Maybe?], or other ordinary crimes that they were investigating….This belief actually sets up a very dangerous dichotomy between the exception that’s granted for immigration and the use of immigration checkpoints to [pursue] all sorts of other law enforcement priorities….
[A checkpoint stop] really should be relatively nonintrusive. Ask questions about identification, about residency, and, as long as they are satisfied that there is no reasonable suspicion that there is an immigration violation, most people should be waved through. It should be a relatively quick check.
While Su’s tepid explanation focuses on the rationale belying the rule, the rule remains that they can stop without reason, search without reason, and, if you have the audacity to assert that you’re an American, in America, and therefore entitled to those technicalities called constitutional rights, you’re gonna get a good tasing for it.
What this reflects is the Rube Goldberg approach to law, where ad hoc exceptions are crafted to accommodate specific needs without regard to the unintended consequences that flow from rules, but aren’t on the table before the courts. What this further reflects is that concern for constitutional rights is deemed so trivial, so unworthy of concern, that the weighing of rights against government authority is often a foregone conclusion.
Just for kicks, here’s a piece from Justice Lewis Powell’s majority opinion in United States v. Martinez-Fuerte, explaining why the border expansion is permissible despite the Fourth Amendment (citations omitted).
The Fourth Amendment imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. In delineating the constitutional safeguards applicable in particular contexts, the Court has weighed the public interest against the Fourth Amendment interest of the individual, a process evident in our previous cases dealing with Border Patrol traffic-checking operations.
While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists’ right to “free passage without interruption,” and arguably on their right to personal security. But it involves only a brief detention of travelers during which
“`[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.'” United States v. Brignoni-Ponce, supra, at 880.
That was the rationale. The rule is 100 miles. And Jessica Cooke still got tased, as nobody seems to remember why border searches are allowed, or to what extent CBP agents are authorized to intrude on constitutional rights. Go figure.