Saturday, 28 August, 2004
Object lessons in the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I spent 35 minutes in pseudo-custody this morning thanks to the United States Customs and Border Protection Agency. I say "pseudo-custody" because although I wasn't under arrest, and wasn't explicitly threatened with arrest, I was told to stand in a very particular spot and watched carefully ("supervised" might be the more appropriate word) by an armed federal agent while four other agents and a dog more or less dumped the contents of my car on the side of the road and began searching through it.

Background: I was driving north on I-5, heading for the Peace Arch crossing back into Canada. I'd been down in the US since Monday morning, traveling as far south as Lincoln City, Oregon (beautiful beach and coastline, tacky town). The purpose of this trip was baseball and a little vacation, ultimately enriching the economy of Oregon and Washington states to the tune of a couple thousand bucks. Roughly 500 meters shy of the border itself (and ~800 shy of the Canadian Border Services Agency booths) the interstate narrowed from two lanes to one, and a CBP roadblock appeared, manned by six CBP agents. This made no sense to me, so I drove up to the barrels curious as to the reasons for this obstruction.

The usual questions -- identification, residence, occupation, length of stay in the United States, reason for travel to the United States -- followed. I can't say anything was surprising, and I certainly don't think my answers were particularly surprising. A CBP dog ran around the car a couple times. "Pull over behind that white vehicle over there," the agent told me. "We need to check your car."

With some grumbling as I pulled away, I did as requested. "Step out of the vehicle, and stand over by that cone." The cone was some 75 feet away from the indicated parking spot, and as I turned over my keys I was followed by an armed agent who spent the entire time eyefucking me and asking me to not walk around so much (I had been driving for about two hours and was trying to stretch my legs). I guess this was to prevent me from making a run for the border (dong), but who knows.

I watched in dismay was they began to pull my car apart. Agents removed most of the contents of my trunk. They pulled the floor mats out of the interior. They pawed through my luggage and my shoulder bag. At one point I thought they were going to flip hallie on and go for a stroll through its hard drive, but eventually decided that it was a laptop and that it didn't really need to be examined (which is a good thing; I was already annoyed and I think I would have freaked had they searched my hard drive). They attacked something in the car with a screwdriver and a pair of pliars. They looked under the car and in the engine compartment.

About halfway through I got a companion in pseudo-custody, another Asian guy, in his 20s, driving a nice BMW 3-series. "Greetings, fellow criminal," I said as he walked up. Agent #2 continued to eyefuck me. "I guess this isn't the day for Asian guys driving nice cars." He shook his head. "What a goddamn gong show." His story was instructive -- he'd gone south for some gas and to grab a quick bite at a restaurant in Blaine before going back home to Richmond and had been in the States less than an hour when he'd been selected for the Roto-Rooter search.

And as we exchanged stories, I started to think carefully about what was happening. I was in the United States, legally admitted as a tourist. As I said, I was still some 400 meters shy of actually being on Canadian soil, so legally speaking I was still under the protection of the US Constitution -- the Fourth Amendment protection against search and seizure came prominantly to mind. Could CBP legally search my car without a warrant or probable cause (sorry, but "intending to cross an international border" does not constitute probable cause, not when there are ~200 people attempting to do the same thing)? "Is what I am currently being subjected to hilariously unconstitutional?" I asked myself. I thought over everything I knew about search and seizure law on both sides of the border. "Yes. Yes it is," came the answer.

It was about this point that I noticed the button on my fleece vest: "Oh well," it says. "I wasn't using my civil liberties anyway." I bought this button my last trip to Seattle, in May, and I've been wearing it ever since. It's my act of political subversion. It's a pretty sad comment that standing up for one's civil liberties is considered a subversive act in this day and age. And I started to wonder why the hell I had been so complacent about this.

Regular readers of this blog know I have traditionally taken a dim view of those who meekly consent to unreasonable requests from law enforcement officials, and wonder idly why it is that people never stand up for themselves. It's a given that if police approach a group of youths on a streetcorner and tell them to move along, they'll move along; it's unthinkable for one of them to stand up and assert their right to free assembly. Rarely do we think of asserting those rights, and so as a result we have reached the point where anything less than full and immediate cooperation with law enforcement officials is viewed as proof you're doing something wrong or, at the very least, something fishy. And, indeed, people have gone to jail in both the United States and Canada for refusing to cooperate with police when they had no reason to.

So there I was, standing in the United States, being searched by agents of the federal government with absolutely no probable cause, treated as though I had done something wrong, and being watched over by a guy with what looked like a SigSaur P228 (a very nice gun, by the way), in complete violation of the spirit and the letter of the Fourth Amendment of the United States Constitution. I had caved in the face of the guys with the guns. (Moral: Don't judge people who aren't willing to risk jail time so you can enjoy your vicarious legal fight.) And I started to get really mad.

Agent #1 handed me my passport and my keys back. "You're free to go," he said.

"Wow, thanks. I really enjoyed this experience," I said, not working very hard to conceal my sarcasm. "Standing on the side of the road, watching you guys empty my car, being stared at by other people.. lots of fun all around."

He didn't seem impressed by my complaint. "Is there a problem, sir?"

What the hell, I figured. I might as well see what happens. "Yeah. Why'd you do that?"

"What, search you?"

"Yes. What were your grounds for the search?" Translation: I happen to know how the Fourth Amendment applies in this case, and I want to know whether you know.

"We don't need grounds to search your car," he said (with a straight face -- I'm convinced CBP agents have no sense of humor). And there you have it, folks: A CBP agent who is either dumb like a post (thus missing the point of my question) or who actually believes the Constitution is inapplicable in this instance. I don't know what's worse.

"Really?" I said, my voice rising (tough, because I burned out my throat yelling at the game last night) along with my eyebrows. "That's interesting. I'm pretty sure you need search warrant and probable cause, or to take me into custody, to search a vehicle or a person's possessions."

Agent #1 turned a lovely shade of purple and I dearly wish I'd taken pictures to commemorate this event (sadly, They had my camera). "Look, 9/11 changed everything," he said, somewhat exasperated. "We're doing what we need to do to protect this country."

"Funny," I said, "because I'm in the process of leaving this country. Are you telling me you're protecting Canada?" This would be an interesting statement, since if he was acting on behalf of the Canadian government his actions would have still been illegal. (Thank you, Section 8! Most people aren't aware of this, but activities by foreign actors at the behest of the Canadian government must conform to the Charter regardless of where they happen. This is why a "torture the prisoner in a country where it isn't illegal" policy won't fly in Canada, and it's one of the nicer things about the Charter of Rights and Freedoms.)

"No, we're protecting the United States," he said. This continued for a few minutes more, during which time he intimated they were looking for drugs (which explains why they were looking under my car; I drive an Acura, and I'm pretty sure the number of terrorists that can fit underneath is measured in fractions, and the number of terrorist who can fit in my engine compartment can be measured in even smaller fractions) but continually insisted he didn't need to explain anything to me, and not-too-subtly hinted that if I wanted to go home, it would be in my best interests to stop asking questions and get on my way.

So let's recap here. I was stopped, in the United States, by CBP agents who felt like looking through my car for reasons they didn't particularly feel like sharing with me. This search was almost certainly unconstitutional though we all know both the letter and spirit of the Fourth Amendment are nearly worthless thanks to the concurrent war on (some) drugs and (some) terrorists. As far as I can tell, the search was conducted with about as much authority as one associated with a random roadblock. (Remember that the reason CBP can rifle through your things on the way in to the United States is because although you're on US soil you haven't yet been legally admitted and therefore aren't entitled to the protection of the Constitution.) As far as I can tell they were looking for any evidence of some kind of criminal activity, and this, incidentally, is completely unconstitutional in the United States. When I pointed this out (though without the benefit of knowing about City of Indianapolis v. Edmonds et al), the agent who was responsible for starting this whole process made an unsubtle hint that he might toss me in the pokey if I didn't stop being a troublemaker and get on with my business.

One could argue that CBP was acting to secure a border, but that argument makes little sense on its face. It's true that they're securing a border, but it's my border they're securing for me; other than international cooperation I see little logic in American agencies attempting to prevent people from crossing over into Canada. (I would think they'd want terrorists or drug dealers to leave the country, but what do I know?) In any event, I'm a little fuzzy about how the rights-free zone that is an international border is defined; it wasn't at all clear to me that by approaching the border I was voluntarily surrendering my rights to be secure in my person and in my possessions, and in any event I'm not sure that matters since I was still on US soil -- the rights-free zone really only works when you're on foreign soil for the first time without the official blessing of the government.

The CBP Web site is singularly unhelpful. It includes a FAQ section, but all the questions about being selected for a search apply to incoming travelers. I've never had this happen to me on any of my previous trips to the US regardless of how I've left the country. To underscore how ridiculous this is, it took me a total of five minutes (two at immigration in Sidney, three at Customs in Anacortes) to enter the United States. It took 35 to leave.

I'm a little baffled to think that I fit some kind of profile. The fact that another Asian guy driving a nice car got yanked out of the lineup while everyone else drove on -- sometimes without even being asked to produce identification (as happened to the car ahead of me) -- leads me to suspect some form of profiling was at work. It would be unkind of me to say they were looking for yellow folks, but that seemed to be what was happening, and I can't help but wonder what CBP's motivations were for singling me out. I don't remember reading anything about a rash of Asian drug smugglers or terrorists, though god knows the Vietnamese gangs have their fingers in enough marijuana grow ops in the lower mainland. Again, though -- the traffic was going the wrong way for the search to make sense.

The more I think about this event, the angrier I get: At the behavior of the CBP agents, at the search process itself, at my own complacency. I put up with this kind of stupidity at airports (though I've never been subject to this degree of stupidity at airports) because I acknowledge I don't actually have a right to fly and it's stupid to presume that I do. I do, however, have a right to cross a boarder, particularly back into my country, and to do so in the possession of my personal belongings unmolested by agents of the government which I am leaving. The United States has never, to my knowledge, been particularly interested in preventing people from leaving (unlike former eastern bloc states that wanted to search you carefully before you left) and if I'm going to get hasseled at the border I figure it's going to come from the destination country, not the origin. The reverse situation is totally unthinkable -- can you imagine the RCMP randomly searching cars that approach the US border? I can't.

I'm in the process of writing to the Commissioner of the CBP to figure out exactly what happened here. I'm not looking for disciplinary action against anyone who was working today. I am, however, looking for information: Why is CBP (apparently randomly) searching cars approaching the Peace Arch crossing? What are the grounds for this search? Does CBP feel this is a constitutional activity? If this is being done at the behest of the Canadian government, is it in conformance with the requirements of the Charter? I'll accept drugs as an explanation though I think it's a cop-out and I really don't like the idea that I look like a drug smuggler.

For the past three years, I've periodically complained on this blog about the state of search and seizure laws in both the United States and Canada. I've only ever been asked once whether the police could look in my car, and I declined to grant them permission; it took about fifteen minutes of wrangling before the cops decided it wasn't worth their time to fight me on the issue (this was at an impaired driving roadblock and it was late at night). This was, however, the first time I've been subject to arbitrary examination of identification documents and a fairly non-consensual search of my belongings. I've known this has been happening in both countries for a while. I haven't liked it before, and I really hate it now. This is the future, kids, if we don't do something about it now -- random, "consent" searches of your personal property just because. Refusal to cooperate is evidence of guilt.

I won't end this entry with a call to stand up for your rights, having received a lesson in how damn hard that is when there are armed federal agents on the other side of the line. But I will say that people need to stop being so goddamn complacent about this stuff, and wake up to what's happening. There's almost a kind of indoctrination going on right now -- how many cop shows have you seen on TV where the not-so-subtle message is "if it weren't for this pesky Constitution we'da had these fuckers by now"? You listen to people invoke their Fifth Amendment rights; you listen to stories about evidence getting tossed out because of unlawful searches and you start to think that maybe these technicalities are a bad thing in the pursuit of justice.. and then you're standing on the side of the road, watching cars go by as occupants stare at you, wide-eyed, and you wonder what, exactly, you did wrong. Even if the answer is nothing, you still feel like a criminal.

Don't let this happen to you.

Tuesday, 31 August, 2004
Constrained outrage

It looks like I may have jumped the gun a bit there.

I'm still plenty pissed at CBP's behavior. But I'm no longer as convinced of its unconstitutionality as I was over the weekend. The reason? United States v. Boumelhem. If you're too lazy to click through and read this Sixth Circuit decision, here's my summary: Boumelhem was suspected of shipping weapons to Lebanon. Customs participated in an interagency task force that focused its attention on an ISO shipping container that was supposed to contain engine components but actually had guns and ammo inside. Customs agents searched the container in November of 2000 as it was being readied to leave Detroit for Montreal and uncovered "twelve boxes of nine millimeter ammunition, three boxes of 7.65 millimeter ammunition, a Remington twelve-gauge shotgun, an upper receiver for an M-16 or AR-15 assault rifle, hand grips for the barrel of an AR-15, flash suppressors, a butt stock assembly for an M-16 or an AR-15, and some speed loaders." They also "discovered another twelve-gauge shotgun, along with a two-way radio, in a shopping bag that had been wrapped in a shirt." In a development that I am sure will shock and dismay you, Boumelhem was arrested.

(I digress at this point to remark about how funny it is that ammunition, two shotguns, and some interchangable gun parts constituted the bulk of the government's case against Boumelhem. Two whole shotguns! Holy crap! Look out, Lebanon. Two whole guns! And ammo!)

At trial, Boumelhem argued that the search was a violation of his Fourth Amendment rights. There were two components to this argument -- he first argued that export searches, rather than import searches, need to have probable cause or meet a standard of reasonable suspicion. This turns out to be wrong, for reasons the Supreme Court identified in United States v. Ramsey. (I'll spare you the gory details but Ramsey basically affirmed Customs' right to search for violations of customs laws, and it's hard to argue with ~30 year-old Supreme Court decisions that haven't been overturned.)

Boumelhem argued that although the constitutionality of export searches has been affirmed by the judiciary, those searches have historically been focused on currency smuggling. (That $10,000 reportable limit? Yeah, apparently the Feds are pretty serious about that.) The Court didn't buy it, explicitly writing, "the border search exception applies to the search of the outgoing cargo container here" -- which, remember, was searched because agents had grounds to believed it contained material whose intended export violated customs laws.

This is an important point. Remember it.

Moreover, in United States v. Oriakhi, the Fourth Circuit noted that "every other circuit addressing the issue has held that the exception applies regardless of whether the person or itesm searched are entering or exiting the United States." This also came up in Julian v. United States. One thing these cases all have in common is drug or currency smuggling. Make of that what you will.

The second part of his argument centered around the participation of the FBI in the search, and to explain that I need to explain something about how the Fourth Amendment works when it comes to Customs.

Customs agents derive their authority from Title 19 of the United States Code. Section 1581 reads, in part:

Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act (19 U.S.C. 1701 et seq.), or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.

Translation: Customs doesn't actually need to have probable cause to search you or your belongings, anywhere in the United States (or elsewhere as defined by Congress). The moral of the story would seem to be that Customs can take your car apart in your driveway if they think it was involved in a violation of customs laws. Again, see the decision in Ramsey. You'd think this would be a particularly bad thing, and it is, of course, and that it might get worse because Customs agents could then turn stuff over to other law enforcement agencies for prosecution of non-customs-related offenses. But they can't do that; the poisonous fruit doctrine applies, albeit rather spottily from my search of the case law.

Boumelhem's argument, as I read it, essentially came down to the fact that because the FBI was involved in what was at heart a Customs operation, the evidence obtained against him by Customs (but used by the FBI). The Court didn't buy it, and I'm not entirely certain the Court was wrong in that. You can read their arguments in the link above; I won't bother summarizing them, but I think they're reasonably compelling if a little bit worrying.

So: Customs has statutory authority to search anything anywhere in the United States if they have reason to believe it was involved in violating customs laws. The authority has been affirmed in many court cases, and no, they don't need a warrant (and even if they did, the standard of probable cause would be much lower). Other law enforcement agencies, lacking this authority, can nag Customs to act within its scope to further the investigations of those other agencies as long as there is a Customs component to the case, and tbe evidence will probably be considered safe.

So it seems my argument about the unconstitutionality of what happened to me on Saturday goes right out the window. CBP was acting within its legal mandate and although the search itself wasn't much fun, it wasn't illegal. This is me, eating crow. (Mmm! Crow with ketchup! Tasty!) I remain somewhat skeptical, however, of the methods CBP used to identify me for the screwdriver-and-pliars search -- my Chinese friend from Richmond and I seemed conspicuous by our ethnicity on the side of the road, and I'm still not completely clear on what CBP was trying to accomplish. And I'm even more curious to know what would have happened had I refused to consent to the search (not that I was asked): Would they have taken me into custody? Would they have told me I couldn't return to my home country? Would I have forfeited my car and everything in it by virtue of non-compliance? CBP can refuse to let you into the country if you don't want your stuff searched; can they refuse to let you out, when you haven't done anything wrong? (I can't find anything to suggest that it's illegal to refuse to consent to a Customs search, though the agent certainly implied that.) If I'd said "piss off, I'm going home," would I still be sitting in a Washington jail cell right now? It isn't clear.

I'm still writing to CBP. I want answers to these questions, because they'll probably end up affecting my travel plans in the future. And I'm not sure whether this information makes things better or worse. Ok, so you guys were acting like bozos, and now I know you're acting like bozos by mandate from Congress. Great! I feel safer already!

Epilogue: No one from any law enforcement agency I wrote to ever got back to me.