Last week, local Montana media reported the story of a Border Patrol agent who questioned two women speaking Spanish at a gas station in the city of Havre. As the following KRTV report shows, the two women were U.S. citizens and they began to film the agent to ask him why he wanted to see their IDs.
“Ma’am, the reason I asked you for your ID is because I came in here and saw that you guys are speaking Spanish, which is very unheard of up here,” the agent is heard in the video.
Ana Suda, the woman who took the video, is originally from Texas but now lives in Havre, KRTV reported. Her husband used to work for Montana Department of Correction.
Border Patrol issued a statement about the video to KRTV:
Although most Border Patrol work is conducted in the immediate border area, agents have broad law enforcement authorities and are not limited to a specific geography within the United States. They have the authority to question individuals, make arrests, and take and consider evidence.
Havre, Montana, is about 35 miles south of the U.S.-Canada border, which falls within the 100-mile zone that Border Patrol can use to conduct immigration checkpoints. However, as the ACLU points, out, “Border Patrol, nevertheless, cannot pull anyone over without ‘reasonable suspicion’ of an immigration violation or crime (reasonable suspicion is more than just a ‘hunch’). Similarly, Border Patrol cannot search vehicles in the 100-mile zone without a warrant or ‘probable cause’ (a reasonable belief, based on the circumstances, that an immigration violation or crime has likely occurred).”
The Fourth Amendment of the U.S. Constitution states that the “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.”
Here is how Border Patrol interprets that, as per its website:
U.S. Customs and Border Protection’s Office of Border Patrol is responsible for securing the U.S. border between the ports of entry.
To do this, they use a layered approach that includes patrolling the border itself, (including the use of electronic surveillance devices), patrolling nearby areas and neighborhoods where illegal immigrants can quickly fade into the general population, and conducting checkpoints – both stationary and temporary.
The authority for this is based on the Immigration and Nationality Act 287(a)(3) and copied in 8 Code of Federal Regulations (CFR) 287 (a)(3), which states that Immigration Officers, without a warrant, may “within a reasonable distance from any external boundary of the United States…board and search for aliens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle. 8 CFR 287 (a)(1) defines reasonable distance as 100 air miles from the border.
Two key court decisions affirm the authority of the Border patrol to operate checkpoints and to question occupants of vehicles about their citizenship, request document proof of immigration status, and make quick observations of what is in plain view in the interior of the vehicle.
In US v. Martinez Fuerte (1976) the U.S. Supreme Court balanced the governmental interest in stopping illegal immigration against the Fourth Amendment’s protections against unreasonable search and seizure, finding that only minimal intrusion existed to motorists at reasonably located check points, even in the absence of reasonable or individualized suspicion.
In US V. Gordo_Marin, the U.S. Supreme Court also found no substantive difference between a permanent or temporary checkpoint.
Border Patrol checkpoint case law has provided the basis for numerous other checkpoints beneficial to the public, such as DUI checkpoints, driver’s license/proof of registration checkpoints, etc.
Border Patrol checkpoints do not give Border Patrol Agents carte blanche to automatically search persons and their vehicles, other then in the manner described above. In order to conduct a legal search under the Fourth Amendment, the agents must develop particularly probable cause to conduct a lawful search. Probable cause can be developed from agent observations, records checks, non-intrusive canine sniffs and other established means. Motorist’s may consent to a search, but are not required to do so.
The Border Patrol protects the United States by interdicting terrorists, illegal narcotics, and illegal aliens attempting to egress away from the border area into the interior portions of our nations.
As expected, the video started making the social media rounds over the weekend:
Border Patrol agent detained two US Citizens because they were speaking Spanish at a gas station.
“I came and saw that you guys were speaking Spanish which is very unheard of up here.”
Sickening. He should be fired! Please spread. pic.twitter.com/3KkpnCpObc
— Together we rise 🙌🏾 (@Matsamon) May 21, 2018
The Washington Post published a story about Suda’s video on Sunday night, saying that Border Patrol is “is reviewing the incident to ensure all appropriate policies were followed.”
According to the Post, Suda was born in El Paso, Texas. Her friend, Mimi Hernández, is from California.
Eventually, Suda and Hernández were free to go, but it took about 35 minutes, several reports stated.