Jessica Cooke, a 21-year-old from Ogdensburg, New York, recently graduated from SUNY Canton with a degree in law enforcement leadership and had already applied for a job as a U.S. Customs and Border Protection (CBP) agent when she was surprised by an impromptu final lesson at a CBP checkpoint on Route 37 in Waddington last week. What she learned—that people who insist on their constitutional rights in this setting run the risk of being roughed up and shot with a stun gun—should help make her a better CBP agent, although CBP may not see it that way.
Cooke was driving from Norfolk to her boyfriend's house in Ogdensburg, the northern border of which is the St. Lawrence River. If you cross the river, you are in Canada, but Cooke was not crossing the river. She nevertheless became subject to the arbitrary orders of CBP agents by driving through one of the country's many internal immigration checkpoints, which can be located anywhere within 100 miles of the border (a zone that includes two-thirds of the U.S. population). For some mysterious reason, she was instructed to pull into a secondary inspection area, where she used her cellphone to record a five-minute video of the stop (below).
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. A male agent who identifies himself as a supervisor has no explanation for the detention, but he says Cooke will have to wait for a drug-sniffing dog to inspect her car. "Well, they'd better be here soon, because if not, I'm calling 911, and this can all be figured out," Cooke says. "You guys are holding me here against my will." Eventually the female agent who first interacted with Cooke says she seemed nervous—an all-purpose excuse for detaining someone, since people tend to be nervous when confronted by armed government officials.
"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. But the Court also has said that if a dog alerts to a car (or, same thing, a cop claims that the dog alerted), that is enough by itself to supply probable cause for a search, even though there are lots of reasons (including a handler's deliberate or subconscious cues) why a dog might alert to a car that contains no contraband.
"If they're not here within 20 minutes, I'm gone," Cooke says. "You can leave," the male agent says. "You can walk down the road right now….Your car's not going anywhere….I'll spike the tires." After Cooke refuses to comply with his order to "stand over there" instead of "here," they have this exchange:
CBP agent: I'm going to tell you one more time, and then I'm going to move you.
Cooke: If you touch me, I will sue your ass. Do you understand me?
CBP agent: Go for it.
Cooke: Touch me then.
CBP agent: Move over there.
Cooke: Go ahead. Touch me.
CBP agent: I'm telling you to move over there.
At this point the agent seems to grab Cooke, and soon she is lying on the ground, screaming. According to a CBP spokeswoman, the agent "deployed an electronic control device." Naturally, the government is considering assault charges—against Cooke.
While Cooke is rolling around on the ground, screaming in pain, the agent repeatedly orders her to "get on your stomach." Her response: "What the fuck is wrong with you?" Also this: "Are you fucking retarded?" And this: "You fucking Tased me, you asshole!" These rejoinders do not have quite the same emotional impact as "I can't breathe," especially since Cooke survived the incident. Still, she asks good questions.
The video ends at this point. But according to Cooke, the dog finally arrived, sniffed around her car, and did not alert. The agents opened her trunk anyway. They found no contraband.
If that account is accurate, it is hard to see how the search could have been legal. While nervousness alone might be deemed enough for reasonable suspicion, SUNY Buffalo immigration law professor Rick Su told the local NPR station, "it is not sufficient" to justify a vehicle search, which requires probable cause to believe the vehicle contains evidence of a crime. Su notes that CBP is "starting to use these checkpoints beyond their intended goal":
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, 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.
But because "the exception is so broad," Su says, the feds are "using immigration checkpoints to enforce other areas of federal law, including the war on drugs." In other words, the Supreme Court, which has explicitly rejected drug interdiction as a rationale for randomly stopping cars, has effectively allowed such stops within 100 miles of any "external boundary," as long as the feds claim to be looking for illegal immigrants.
Even though she was preparing for a career as a CBP agent, Cooke clearly was disturbed by this development. But the Watertown Daily Times found some local residents who think her objections are much ado about nothing. "I'm all for border patrol checks," said one. "Look at the drugs seized weekly by these that would otherwise go right onto the streets. If you have nothing to hide, why be a jerk? Just cooperate."