Free Minds & Free Markets

SCOTUS Declines Opportunity to Limit Random Border Patrol Stops

The Court's decision leaves motorists vulnerable to the whims of armed government agents who can stop them at will.

Richard RynearsonRichard RynearsonToday the Supreme Court passed up an opportunity to impose limits on a disturbing exception to the Fourth Amendment that allows random detention of motorists within 100 miles of a border—a zone that includes two-thirds of the U.S. population. Since the rationale for these stops is immigration enforcement, they are supposed to be very brief. Yet in 2010 Richard Rynearson, an Air Force officer who brought the case that the Court today declined to hear, was detained at a U.S. Border Patrol checkpoint in Uvalde County, Texas, for a total of 34 minutes, even though there was no reason to believe he was an illegal alien or a criminal.

In United States v. Martinez Fuerte, the 1976 decision that approved random stops at internal immigration checkpoints, the Court said "the consequent intrusion on Fourth Amendment interests is quite limited," because each stop "involves only a brief detention of travelers" during which "all 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." For those motorists who are not simply waved through, the Court said, "the average length of an investigation in the secondary inspection area is three to five minutes."

Given the importance that the Court attached to the brevity of the checkpoint stops and the limited nature of the inquiry, it is hard to see how Rynearson's detention could pass muster under the Fourth Amendment. Two minutes into the stop, Rynearson presented his military ID and his driver's license, placing them against the window on the driver's side door. That should have been the end of the stop, since a driver's license is the only form of identification motorists are legally required to carry, and Texas issues licenses only to U.S. citizens or legal residents. But the Border Patrol agent questioning Rynearson—identified in the lawsuit only by his last name, Lands—insisted those IDs were not good enough, at which point Rynearson offered his military and civilian passports.

Instead of immediately verifying the passports and sending Rynearson on his way, Lands and his supervisor, Raul Perez, detained him for another 23 minutes, much of which was spent on irrelevant calls to Rynearson's military base. It seems clear from Rynearson's recording of the encounter that Lands and Perez, irked by his insufficiently deferential attitude, decided to punish him by detaining him much longer than necessary while trying to get him in trouble with his employer. Rynearson, who had started recording his interactions with the Border Patrol because he was tired of being hassled at the checkpoint, declined to roll down his window all the way, declined to get out of his car, and repeatedly asked if he was free to go and, if not, why he was being detained.

When it rejected Rynearson's lawsuit against Lands and Perez last year, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit described his behavior as  "unorthodox" and "unusually uncooperative." Dissenting Judge Jennifer Walker Elrod emphatically disagreed. "While he provided the information needed to prove his citizenship, Rynearson explained several times that he would not indulge the officers' commands when he thought that they exceeded the limited scope of the immigration checkpoint inquiry," she wrote. "Standing on one's rights is not an 'unorthodox tactic.' It is a venerable American tradition."

The 5th Circuit declined to decide whether Rynearson's rights were violated, saying only that the law on this point was fuzzy enough in 2010 that Lands and Perez deserved qualified immunity. The case therefore presented the Supreme Court with a chance to clarify when a checkpoint stop is so long that it violates the Fourth Amendment. The Court's precedents suggest that Rynearson's detention qualifies.

Regarding so-called Terry stops of pedestrians, which are justified by reasonable suspicion of criminal activity, the Court has said any investigation must be "reasonably related in scope to the circumstances which justified the interference in the first place." In the context of stops justified by suspected traffic violations, the Court has said "a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Last year it deemed unconstitutional a routine traffic stop that was prolonged by seven or eight minutes to facilitate an inspection by a drug-sniffing dog. The rule for the length of a detention should be at least as strict in the context of an immigration checkpoint, where stops do not require reasonable suspicion of a legal violation.

Rynearson argued that Supreme Court intervention was necessary to resolve a circuit conflict about the permissible scope of checkpoint stops. The 10th Circuit allows Border Patrol agents to "briefly question individuals" about "‘vehicle ownership, cargo, destination, and travel plans' long as such questions are 'reasonably related to the agent’s duty to prevent the unauthorized entry of individuals into this country and to prevent the smuggling of contraband.'" The 9th Circuit says the inquiry must be "confined to a few brief questions, the possible production of a document indicating the detainee's lawful presence in the United States, and a visual inspection of the to what can be seen without a search." Both circuits say agents may exceed these limits only if they have reason to suspect illegal activity.

The 5th Circuit, by contrast, "permits agents to undertake inquiries that are plainly not related to any special duties of the Border Patrol with respect to immigration, including calling an employer to report an encounter. The Fifth Circuit held that the agents' actions were not clearly unreasonable even when the detention was measurably lengthened for an investigation that ranged far afield from any inquiry into authorization to be in the country." Rynearson also noted that in the 5th Circuit the clock does not start running on the length of the detention for Fourth Amendment purposes until after the motorist's legal presence in the U.S. has been established, a rule that "leaves agents free to pursue even unrelated inquiries that appreciably lengthen the detention, so long as those inquiries occur before the agent determines citizenship."

Another circuit split relates to the question of when a motorist's actions justify an extended detention. The 5th Circuit cited Rynearson's "unorthodox tactics" and defense of "his right against unlawful searches and seizures" as reasons to think his detention was not objectively unreasonable. The 3rd and 9th circuits, by contrast, "have recognized as clearly established that even if a detainee's conduct contributes to the length of a detention short of arrest, further detention that was neither caused by the detainee's actions nor the result of a reasonably diligent investigation would be prohibited."

The Supreme Court's decision to pass over Rynearson v. Lands leaves American motorists (especially those driving in the states that comprise the 5th Circuit) vulnerable to the whims of armed government agents who can stop them at will. "The net effect of the Fifth Circuit's decision is quite remarkable," Rynearson's brief concludes. "It permits the Border Patrol to conduct suspicionless seizures free of the constraints that obtain even for suspicion-based seizures—to hold someone more than 30 minutes for purportedly brief questioning, while spending most of the time pursuing unrelated inquiries and calling an individual's employer. Most troublingly, the Fifth Circuit allows agents to unreasonably extend a detention because an individual asserted his rights—all without even the barest minimum of individual suspicion at any time during the encounter."

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  • The Late P Brooks||

    It's a war; on drugs. Why do you want little schoolchildren to die from heroin overdoses?

  • Anomalous||

    Because they're assholes.

  • Playa Manhattan.||

    So I don't have to pay for "free" college.

  • Fist of Etiquette||

    For those motorists who are not simply waved through, the Court said, "the average length of an investigation in the secondary inspection area is three to five minutes."

    Accounting for inflation, those 1976 minutes of court-determined valueless American time translate into roughly 35 2016 minutes of acceptable liberty-free time. No need for the court to waste part of its own precious day re-evaluating this.

  • WTF||

    Given the importance that the Court attached to the brevity of the checkpoint stops and the limited nature of the inquiry, it is hard to see how Rynearson's detention could pass muster under the Fourth Amendment.

    We've already decided the 4th amnedment can be violated, we're just haggling over the extent.

  • Mainer2||

    Perfect. Works for any amendment or principle.

  • Marty Feldman's Eyes||

    Also, that length of time is bullshit, because it doesn't include the time spent crawling in the traffic build up before the checkpoint, which is often not trivial.

  • Anomalous||

    I guess the Fourth Amendment has a FYTW clause.

  • WTF||

    They all do.

  • pan fried wylie||

    "the consequent intrusion on Fourth Amendment interests is quite limited,"

    "Just the tip, baby."

  • The Hyperbole (▲'s r 2D)||

    "Standing on one's rights is not an 'unorthodox tactic.' It is a venerable American tradition."

    Venerable? I think she misspelled antiquated.

  • Rich||

    Standing? I think she misspelled trampling.

  • Rich||

    "the production of a document evidencing a right to be in the United States."

    If I ain't being too inquisitive, what document might that be?

  • WTF||

    Papieren, bitte?

  • Steve G||

    I'm sorry but in the era of sanctuary cities giving homes to illegals, what's the point of looking for them elsewhere? ..and yes, I think I know the answer.

  • prolefeed||

    A copy of the Constitution and the Declaration of Independence?

  • Jerryskids||

    We're still allowed to criticize the government for these sorts of things though, right? I mean, for now, anyway.

  • WTF||

    But there are "reasonable " limits, of course. To be constantly adjusted and re-defined.

  • My Dog Bites Better Than Yours||

    As long as you're careful, JK. You know, fire, theater, crowd and all that.

  • Don Escaped Texas||

    Happened to me in west Texas ten years ago: I was insufficiently compliant because it never occurred to me that this could be remotely constitutional, and I got 30 minutes in queue for my sins.

  • Don Escaped Texas||

    I was coming back from hiking Big Bend and, as is my custom, had all loose impedimenta that wouldn't fit in the trunk under a tarp in the back seat. My main sin: refusing to allow a search; so they detained me long enough to decide that they didn't want to push the issue...and sent me on my way.

  • prolefeed||

    I only got detained for perhaps 5 minutes coming back from Big Bend, but fumed for the next 40 minutes while my liberal GF defended that jackass for "just doing his job" while I pointed out said job involved violating my rights.

  • Some Engineer||

    I would have deposited her along the roadside after 15 minutes. You're pretty tolerant.

  • MSimon||

    A free country?

  • ||

    No,it isn't. It isn't a fucking republic any more, either.

  • commodious spittoon||

    If you can keep it Terms and conditions apply.

  • Just say Nikki||

    possibly the production of a document evidencing a right to be in the United States

    And we all carry one of those.

  • Anomalous||

    Deine papieren, bitte.

  • CatoTheChipper||

    That's what Nazis used to say.

    DHS thugs, cops, and other American swine have dispensed with pleasantries like "bitte".

  • thom||

    Right on. Want to know what it feels like to be belittled or codes ended to? Search out your closest cop. For some reason most people like being shit on by our heroes in blue. We're basically a nation of battered spouses.

  • commodious spittoon||

    Cucks with a fetish for men in uniform.

  • Rhywun||

    Well when you put it that way...

  • WTF||

    Yeah, remember the good old days when the height of Fascism was having to fear "a knock on the door in the middle of the night"? Now, it's like at least the Nazis had the decency to knock.

  • commodious spittoon||

    Those cribs aren't going to flashbang themselves.

  • BYODB||

    Came here literally to say just that. Absurd that in this day and age we would need to show our papers to police just to travel. The justification being 'immigration' is even more absurd. By the time most people realize what's happened, it'll be far too late.

    Oh, shit, my bad. It's already too late

  • Rhywun||

    I see we've dispensed with the more polite Ihre.

  • commodious spittoon||

    +1 du hast sie haben

  • GroundTruth||

    "Ihre".... "Deine" is really pretty demeaning.

  • Whahappan?||

    Which is why it was used

  • SIV||

    When traveling East on US 90 you can avoid the Uvalde checkpoint by turning North near Brackettville to Rocksprings, TX.

  • Don Escaped Texas||

    I was near the Guadalupes on US180, so hours north of Marathon much less Big Bend proper, but conceivably within 100 miles of the river as the crow flies: a good spot, tactically.

  • Mainer2||

    Here again I will reference my father, who was a circuit court judge for 30 years. Way back in the 1970's he was complaining how the Supreme Court had made a hash of the 4th Amendment. This is from memory, but apparently there used to be a pretty straightforward "plain sight" rule when a cop made a traffic stop. Then they started torturing those words. What if there is a suspicious lump under a coat laying on the seat ? That sort of thing. And at every slip down the slope, deference to the policeman's judgment.

  • Don Escaped Texas||

    Similar tack: I often "toyed" with the idea of wearing a waterpistol inside my belt back when concealed carry was the only mode licensed in TX because I thought it would be fun to be hassled for my "gun" "printing."

  • Idle Hands||

    I'll take "ways to die early" for 500 alex.

  • ||

    Perhaps we dodged a bullet given the current makeup of SCOTUS. Perhaps better to leave this undefined for a while than risk a disastrous decision that would stick for decades.

  • Mr Drew||

    I think I agree, this may have been a deliberate "push" to a later time when the court makeup is more favorable.

    /this is my naively hopeful face

  • WTF||

    I don't know, Scalia wasn't exactly a champion of the 4th Amendment.

  • ||

    No, he wasn't.

  • Don Escaped Texas||

    Now as then, I tarp over everything. My wife thinks I'm nuts; I tell her it's basic good sense: no one needs to know what's in the backseat, the bed, or the hatchback. But, like anything else, the cops are gonna hate on you when you do get pulled over because you're one of "those guys." Then, when you won't answer any of their cop questions or agree to a search, it's going to get testier. I've spent 30 years pissing off cops just trying to be an American.

  • SugarFree||

    It seems clear from Rynearson's recording of the encounter that Lands and Perez, irked by his insufficiently deferential attitude, decided to punish him by detaining him much longer than necessary while trying to get him in trouble with his employer.

    Trump wants to double the number of these charming fellows roaming about.

  • SIV||

    So does Nick Gillespie. See his support for the comprehensive immigration reform bill.

  • SugarFree||

    Who will have the ability to make this happen: President Trump or Journalist Nick Gillespie?

  • WTF||

    President Hillary?

  • MSimon||

    Voting this year - as in any other - is about deciding which set of problems you would prefer.

  • R C Dean||

    Isn't it wrong, whoever supports it?

  • SugarFree||

    Isn't it wrong, whoever supports it?

    Yes, but supporting it to get some sort of reform of the labyrinth of Federal immigration reform and accepting increase Border Patrol monies as a political sop to the Messicans! hysterics and wanting the Border Patrol increase and not really giving a shit about fixing any part of the system are two different things.

  • R C Dean||

    I agree, but I guess I see "comprehensive immigration reform" as proposed to date as more in line with not really giving a shit about fixing any part of the system, really.

  • SIV||

    President Trump won't be signing the comprehensive immigration reform bill. Congress will have to come up with some other piece of legislation authorizing an increase in BP agents. Of course right now he's a private citizen like Nick Gillespie and all of his primary opponents (including Rand Paul) supported "increased border security". Ted Cruz is campaigning on "tripling" the number of Border Patrol agents so Trump is a "moderate" in comparison.

    Maybe John McAfee will be against this shit if the LP is smart enough to give him the nomination.

  • Suicidy||

    We need to get control of the border. Open borders is suicidal bullshit.

  • VartAndelay||

    Go polish your gunzz, Suinutbar.

  • sarcasmic||

    I got stopped by a Border Patrol checkpoint on the highway outside Bangor (which isn't at all close to the border). They asked us if we were citizens, we said yes, and they let us drive away. Took all of thirty seconds.

  • WTF||

    You're just lucky you didn't say "eh".

  • sarcasmic||

    I thought about saying "oui" for a second, but figured that would be a bad idea.

  • WTF||

    Oui! Of course wee-ra seetyzans! Now go away or I shall taunt you a second time-a!

  • Suicidy||

    Good. Now do that in a Maurice Chevalier accent. Like in 'Gigi'.

  • Stormy Dragon||

    I remember one time I got pulled over by a traffic cop on the way to the shooting range with two friends. When he got to the "are the any guns or drugs in the car?", I was expecting things to get bad when my response was "we're on the way to the range, so there is a bunch of guns in the trunk", trying to decide how I was going to respond if he asked me to open the trunk. Surprisingly, he seems completely unphased by this and just sent us on our way with a ticket.

  • coloraDOOM||

    Vermont doesn't have any, as far as I can remember. They do have several offices all over the state though.

  • Ron||

    they should not be allowed to stop anyone period without probable cause and just driving or even location is not probable cause. but we know that isn't the real reason anyway.

  • coloraDOOM||

    Like DUI checkpoints. Fuckers.
    I'd wager they find more pot than drunks.

  • retiredfire||

    What they do find is a vast majority of people, whose right to freely travel is infringed FOR NO REASON.

  • Game||

    Two-thirds of the country resides within 100 miles of the border? The southern border? I don't think so. Maybe two-thirds of the illegal immigrant population resides within 100 miles of the southern border.

    I'm okay with being stopped and asked a few questions. Happened all the time when I was out after 10pm on the weekend in the DUI Task Force areas by my home.

  • Rich||

    I'm okay with being stopped and asked a few questions.

    "What's your favorite color?"

    "Have you stopped beating your wife yet?"

    "Do you mind if we search your car?"

    Are you okay with being stopped and providing a few answers?

  • R C Dean||

    Two-thirds of the country resides within 100 miles of the border?

    Sure. The east and west coasts have borders, too.

    I'm okay with being stopped and asked a few questions.

    How nice for you. Too bad its a Constitutional violation when the cops, of any stripe, do it without probably cause.

  • sarcasmic||

    Too bad the cops use the Constitution as toilet paper.

  • John L.||

    If they meant the southern border, the phrase "southern border" would have been used.

    Lets make a new legal rule, call it the "Dumbass Rule"

    Is some random dumbass (Game) ok with abrogating the Bill of Rights? Then its fair game.

  • coloraDOOM||

    I'm sure quartering soldiers would be fine. How many rooms do you have?

  • Veritas et Libertas||

    By border I think they are referring to any international port of entry so most major metropolitan airports also get ICE enforcement who can pull you over as well.

  • onebornfree||

    Dream On?:

    "......In your dream, the constitution was not a scam,
    In your dream, the Supreme court is not a scam,
    In your dream, 9/11 was not a scam"
    In your dreams, the war on terror is not a scam,
    In your dream, al -qaeda was not a scam,
    In your dream I.S.I.S. is not a scam"

    Lyrics excerpted from "Dreams [Anarchist Blues]":

    Regards, onebornfree

  • Suicidy||

    Fucking weirdo spammer.

  • retiredfire||

    Double typo on second-last word.
    "g" should be a "t" and leave off the "s".

  • Conchfritters||

    Thank goodness I am one of the 1,976 people who lives more than 100 miles from either border.

  • AD-RtR/OS!||

    If you wish to be not bothered by the Border Patrol, only travel in the company of Cartel members.

  • crufus||

    I'm sure that congress will remedy this by passing a law that specifically limits what border patrol agents are allowed to ask and do during these stops.

  • Vanguard96||

    On I-35 north of Laredo, a co-worker who is a green-card holder from Mexico, was threatened with a $10,000 dollar fine and imprisonment during a lengthy 30+ minute stop because he did not have his passport - just a license and green card. Totally unreasonable. Each agent costs over $150,000 a year (salaries at least on the Canadian border I have heard are in the range of $75K) to the taxpayers. And it will only get worse with each terror incident and the drug and human trafficking wars continuing.

  • retiredfire||

    Must have missed the preamble to the Bill of Rights that they were not to be adhered to if the violation was "minimal and limited".
    How does that square with the blasting through of the Ninth and Tenth Amendments by the SC, in "decisions" like Roe and Obergefell - neither of which are minimal or limited.
    Seems like, since the eleventh amendment and Marbury vs Madison, the SC has pretty much been able to write its own rules and ignore the Constitution.

  • VAPA||

    "...passed up an opportunity to impose limits on a disturbing exception..." should have read "...passed up an opportunity to uphold limits on a disturbing exception..." This wasn't an opportunity for the SCOTUS to make something new, it was an opportunity for them to make good on their promises to us from 1976 when they created these abominations. But this latest punt shows that the court was like a rapist in a van, giving assurances to a young girl to get her in the vehicle without kicking and screaming. Now that we're in the van, the Supreme Court has made its intentions clear to us. And it hurts.

  • VAPA||

  • jabster||

    I keep telling people that the most dangerous person in the world is a butthurt LEO.

    When you can't tell off people in authority without consequences, while complying with their lawful orders, you do NOT live in a free country.


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