For years Greyhound, by far the largest operator of intercity bus service in the United States, has routinely allowed Border Patrol agents to board its buses without warrants or probable cause. During those "transportation checks," which have become increasingly common under the Trump administration, agents interrogate passengers with brown skin or foreign accents, asking for proof that they are in the country legally. Last Friday, Greyhound announced that it would no longer tolerate such harassment of its customers, reversing a policy that was based on an unconstitutionally broad understanding of the Border Patrol's legal authority.
Even while complaining about the impact of the bus sweeps on its customers and its operations, Greyhound had justified its policy by citing 8 USC 1357. That law says Border Patrol agents "shall have power without warrant…to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle," provided the search occurs "within a reasonable distance from any external boundary of the United States," defined as a 100-mile zone that happens to include about two-thirds of the country's population.
But as the American Civil Liberties Union pointed out, that sweeping power is inconsistent with the Fourth Amendment's ban on unreasonable searches and seizures. In Almeida-Sanchez v. United States, a 1973 case involving a Border Patrol car search 25 miles from the Mexican border that was conducted without probable cause or consent, the Supreme Court rejected the government's claim that the search was authorized by 8 USC 1357. "No Act of Congress can authorize a violation of the Constitution," it noted.
The Department of Homeland Security, which includes the Border Patrol and its parent agency, Customs and Border Protection (CBP), seemed to acknowledge the implications of that decision in its regulations, saying "an immigration officer may not enter into the non-public areas of a business…unless the officer has either a warrant or the consent of the owner or other person in control of the site to be inspected." Those "non-public areas" include Greyhound's buses, which ordinarily are open only to employees and passengers with tickets. But that general policy was not enough to reassure Greyhound CEO David Leach, who worried that barring the Border Patrol from the company's buses would lead to confrontations between armed agents and its drivers.
Greyhound's reversal is based on a more specific internal CBP memo that the Associated Press recently obtained. "When transportation checks occur on a bus at non-checkpoint locations, the agent must demonstrate that he or she gained access to the bus with the consent of the company's owner or one of the company's employees," Border Patrol Chief Carla Provost says in that January 28 memo.
"We welcome the clarity that this change in protocol brings, as it aligns with our previously stated position, which is that we do not consent to warrantless searches," Greyhound said. "We are providing drivers and terminal employees with updated training regarding this policy change." The company said it would put signs on its buses "clearly displaying our position" and send "a letter to the Department of Homeland Security formally stating we do not consent to warrantless searches on our buses and in terminal areas that are not open to the general public."
The ACLU welcomed Greyhound's new policy. "We are pleased to see Greyhound clearly communicate that it does not consent to racial profiling and harassment on its buses," said Andrea Flores, deputy director of policy for the ACLU's Equality Division. "By protecting its customers and employees, Greyhound is sending a message that it prioritizes the communities it serves. We will continue to push other transportation companies to follow its leadership."