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Border Patrol Stops

In late 2003 the U.S. Customs and Border Protection division of the Department of Homeland Security began traffic “checkpoints” on I-91 south of White River Junction. The purpose is to prevent terrorists from entering the country.

At first the stops operated only on weekends. They were termed "temporary." Then operations expanded throughout the weekend, then ‘round-the-clock, every day. Recently the frequency has been reduced, as agents have been needed in other parts of the country. They appear to have started up again, however.

The ACLU-Vermont has received numerous inquiries about the stops. Most travelers -- Vermonters and visitors alike -- are incensed at this intrusion into their lives. Everyone is made to feel a suspect. Citizens should not have to prove their innocence to government officials.

Security experts call stops such as these "security theater." The stops may make some people feel safer, but the stops are ineffective as a tool to stop terrorists. The reason is obvious. Any serious terrorist would know to avoid the I-91 stop by getting off the highway at White River and taking secondary roads.

The Border Patrol reports that arrests have been made at the stops. But the arrests have been for relatively minor immigration violations, not terrorist activities, and drug violations. (On the absurd end: One person was apparently cited for a windshield violation; she had hung a keepsake from her rearview mirror, which is illegal.)

Almost everyone -- even drivers supporting the stops -- have asked if the stops are legal. They are. The Border Patrol has the authority to operate stops within 100 miles, as the crow flies, of an international border. The White River stop is 97 miles from Canada.

While the stops themselves are legal, the legality of certain practices that Border Patrol officers can use at the stops is not as clear. What questions, and how many, can officers ask? Can officers search a car? Can officers arrest someone for a criminal offense that has nothing to do with immigration control? Can officers "profile" people of a certain race or ethnicity and interrogate them more extensively than others?

These are tricky questions. Answers have come largely through court cases rather than statutes. For the most part:

  • Officers have broad discretion in the questions they ask, and who they single out for lengthy interrogation and verification of citizenship.
  • Officers generally can only search cars if they have a warrant, or have probable cause to believe someone in the car is in violation of a law. Officers may, however, do a visual search of a car by looking in the windows. It is only at checkpoints at the border, or their "functional equivalent" near the border, where officers have virtually unlimited power to do searches.
  • Officers may make arrests for offenses other than immigration law violations. They must follow usual procedures concerning reasonable suspicion and probable cause.
  • The Border Patrol once proposed upgrading the stop from "temporary" to "permanent" status, though a $9-million construction project. The difference in status is important. An upgrade could result in a change in the legal status of the stop, giving the Border Patrol broader authority. So far, the proposal has not moved forward -- despite encouragement from Vermont Gov. James Douglas that the project could represent an economic boost to the region.

Many of the complaints received by the ACLU concern allegations of racial profiling. The Border Patrol has denied that racial profiling is occurring, but anecdotally it appears that Caucasians of European descent are rarely detained for extensive questioning, while people of color, Hispanics, Middle Easterners, and Asians are singled out. Op-ed pieces that have appeared in The Boston Globe and other papers have termed the I-91 stop “The Whiteness Checkpoint.”

 

Here are some things you can do to oppose the stops:

  • We would like to hear from people who have passed through the stops and have been asked more than one or two perfunctory questions. Please e-mail us at info@acluvt.org. Include the approximate date and time of the stop, the questions you were asked and the length of the questioning, your race or ethnicity, and the names of any officers you may remember. Gathering additional data will help us in analyzing the situation, and possibly bringing litigation.
  • The Department of Homeland Security has an officer for civil rights and civil liberties who receives complaints about civil liberties violations. The process for filing a complaint is described at the Department of Homeland Security Web site. The contact information is:

    Daniel W. Sutherland
    Officer for Civil Rights and Civil Liberties
    U.S. Department of Homeland Security
    Washington , D.C. 20528

 

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