• Gay BlogAds

  • Gay News Watch

  • Chris Tweets

  • « The emperor wears thin skin | Main | Defend us or defend us not? »

    March 19, 2007

    I miss my Fourth Amendment, Part 2

    Posted by: Chris

    Peace_bridge_from_canadian_side It's been a month since I wrote about how my partner, an American friend and I were subjected to a harrowing roadblock and search by the Brazilian military police on the highway between Rio De Janeiro and Buzios. I remarked at the time that I missed the constitutional protections of our Fourth Amendment, which requires the police to have "reasonable suspicion" of a crime before stopping a vehicle and "probable cause" before conducting a search.

    Flash forward to last week, and a short trip I took to Toronto. I am back in the States for a short visit and wanted to check out Toronto as a possible new home. As much as we love Brazil, it may be that hard economic realities lead us to live up north. (More later on the immigration vagaries faced by gay couples seeking refuge north of the border.)

    Good friends from Pittsburgh were kind enough to lend me their (very nice) new Saab, and I drove three hours to Niagara and the Peace Bridge (pictured above) into Ontario. A polite and friendly Canadian immigration official asked me a few short questions about my visit and welcomed me into the country. My trip back into the U.S. two days later would not go so smoothly.

    From the moment I approached the American border, the mood was decidedly different. The U.S. immigration guard barked at me to pull my car forward and asked me to tell him my license plate number without looking. Huh? I couldn't do that in my own car, and I quickly explained that I was in a friend's vehicle. It all went downhill from there.

    I produced my license and the car's registration, as requested, and the guard said, "You know your registration is expired, right?" No, of course I didn't; it wasn't my car. He told me he was confiscating my documents and sending me to an area off to the side for further questioning.

    Once parked and inside, I answered even more questions about my trip, but then the inquiry began to range far afield, about my life in general. I told the officer I that I didn't understand how his questions were relevant. That led to a sharp rebuke from the border guard, who said that every question was asked with good reason and I needed to answer.

    Now I'm not your average citizen. I'm an attorney with many, many years of experience in civil rights and civil liberties work. I know by heart my constitutional protections. Yet even as an American citizen on American soil, I was unsure of how to proceed. Do I have the same rights at the border, trying to enter, as I would have once I was through the crossing? Did I have the right not to cooperate with this fishing expedition into my personal life, even if my answers wouldn't incriminate me?

    I'm embarrassed to say that I didn't — and don't — know. Like most people, I felt the pressure and mostly wanted to be done with the confrontation. I was worried they might impound the car if the registration is expired, and where would that leave me?

    So I answered all the questions as best I could, though the border guard seemed to grow more incredulous with every reply. He took copious notes as well and for the next 45 minutes to an hour, typed a large amount of information into his computer. Is this some sort of record about me and my life? Will it be used against me in the future, either domestically or when I want to enter or leave the country?

    Is the government entitled to retain this information indefinitely, simply because I availed myself of the basic right to travel outside the country?

    I couldn't help noticing, as well, my fellow travelers stopped and questioned by U.S. authorities. To look at them, you would think that America faces an especially significant threat from 70-something women with bad hair and a penchant for bingo. I know I felt safer just knowing these ladies couldn't enter the country without some sort of screening. And this was the screening room for Americans, mind you, not for non-citizens. I can only imagine what they get put through.

    After more waiting, I was informed that two officers were going to search my car and its contents, and I could watch if I wanted. Of course I wanted, but I was kept so far at a distance that if they were planting something, I almost certainly wouldn't have seen it.

    Finally, after a search about as thorough as the one in Brazil, and with no more "probable cause," I was told I was free to go. But what about the car registration, you ask? It was a lie. A bold-faced lie. It was valid and not due to expire for months.

    At the time of our shakedown last month by the Brazilian military police, I wrote that I was reminded of how "absolute power corrupts absolutely":

    The constitutional protections we Americans take for granted — including our Fourth Amendment right against unreasonable search and seizure — aren't just protecting us from overzealous law enforcement and "anti-terrorism" measures, they're protecting us from the corruption that would inevitably follow if the police were given even more power over the citizenry.

    I hadn't imagined that those words would be echoing in my ears just one month later, this time because I had been bullied with bold-faced lies by abrasive and rude U.S. police — no doubt emboldened by the Patriot Act and the disrespect shown for the rule of law all the way up their chain of command.

    I understand and respect the need to safeguard our borders and protect our national security. But my border crossing reminds me just how willing we have been to sacrifice our ideals supposedly for the sake of protecting them. If we can't uphold them in times when they're threatened, what good are they really in times when they're not?



    TrackBack URL for this entry:


    1. gleeindc on Mar 20, 2007 6:58:14 AM:

      Reading this has caused my fear-factor about my own government to increase exponentially. I would hope that the agency that runs the border guards would apologize for their actions but, am almost certain they will not. I will certainly be telling my friends the story to alert them to yet another abuse of rights.

    1. Kevin on Mar 20, 2007 10:55:22 AM:

      Ugh. Real sorry to hear that Chris. I've been wondering also why the Department of Homeland Security has apparently adopted intense, obnoxious rudeness as a tactic at the border and in airports. What could they possibly think it accomplishes?

    1. Rob Power on Mar 20, 2007 11:29:22 AM:

      Sorry to hear about that, Chris. My husband (who's a naturalized US citizen from China) and I experienced something similar at the Canadian border on Christmas Eve 2005. But you closed with something worth noting:

      "I understand and respect the need to safeguard our borders and protect our national security."

      Unfortunately, you can't have it both ways, Chris. If you insist that our borders be truly "safeguarded," then the only option is to give the federal government extremely broad latitude to defy the Constitution. If the Bill of Rights is going to be 100% protected even at the borders, then any security is an illusion (much like everyone having to take off our shoes at the airport when not all checked luggage is being screened for explosives).

      So my question is this:

      Why can't crossing between Canada and the United States be like crossing between Nevada and California? They're both different geopolitical bodies, with a different set of laws and law enforcement regimes, different standards for welfare and other social services, and different tax schemes. Yet people cross peacefully between Nevada and California all the time. Are there some problems? Of course. Socially conservative Californians near the border don't like looking across the street and seeing a brothel. Nevada residents looking for free social services can easily get them in California. And California certainly loses some business to lower-tax Nevada. But you don't see California building a wall and border checkpoints.

      I'm sorry, but "safeguarding" our border with Canada has absolutely zero to do with "protecting our national security." And libertarian conservatives need to put their allegiance to the Constitution above their allegiance to the Bush regime.

      For those worried about the "dirty bomb" boogeyman that the Bush regime likes to scare us with, even if we set aside the fact that such a device would not be brought in via a highway checkpoint but rather through a rural area, why can't we just install radiological detectors along the border? Only if one gets set off would you then "lock down" the border crossings (much as state troopers can shut down an interstate highway leading out of the state if they're trying to catch a fugitive).

      Conservatives cheered when the Berlin Wall fell in Germany. Why are they talking about building a new one here?

    1. Constantino on Mar 20, 2007 11:39:24 AM:

      A good friend of mine has had similarly harrowing experiences coming in through Dulles. He was unjustly convicted of a crime when he was only 18, which makes things worse for him. The invasion of his privacy has been such that he has even been forced to show them the pictures on his camera, and they have attempted to get the password for his gmail account. It seems like you have little, if any, Fourth Amendment rights at the border and airports... Which honestly doesn't make any sense to me. The Constitution "shall be the supreme law of the land." Not the land minus border and airport control rooms.... Even there, you are still an American Citizen on American land. The constitution must apply, and any laws not made "in pursuance thereof" should be invalid.

      The most important question, however, is what can we do about this?

    1. Andoni on Mar 20, 2007 7:19:14 PM:

      Wow! Quite an experience. I’m glad you are OK!

      With that said, what you experienced is what tens of thousands of the underclass experience every day in the interior US at the hands of the government/police. The police nominally respect the 4th Amendment only with people who look like they have the education/connections or money to know what it is and fight back in court. For the poor, blacks, Hispanics or immigrants...forget it.

      If you aren't already a card carrying member of the ACLU, I think that you now have a very good reason to become one.

    1. keith.d on Mar 20, 2007 8:49:34 PM:

      My partner and I went through a similar experience crossing the border going into Canada from Washington.

      We weren't stopped by Canadian security but by U.S. Agents who had set up a roadblock in front of the entrance to Canada.

      I was told it didn't make sense that we weren't crossing at the Interstate 5 crossing (why was the one we were crossing at built then!) - my explanation that the I5 crossing was practically blocked on a Friday night didn't suffice and they grilled me until they got an answer they didn't like. (It didn't seem reasonable that we'd go to Canada to shop for a crate for our new puppy.)

      So we got marched into an empty UNLIT PARKING LOT surrounded by hundreds of acres of barren farmland as agents went over our car and were sat down on a curb in the dark.

      Yeah, with six agents and the only car around we weren't even allowed to watch the search but were held some 20 yards from our car.

      In the dark.

      Welcome to the New America.

    1. Adam on Mar 21, 2007 12:00:30 AM:

      I was a college student in Mexico 40 years ago. Nothing has changed. It was the same then in Texas, Arizona, California, and even coming back from Canada into North Dakota. What rights are you talking about?

    1. Andoni on Mar 21, 2007 10:12:33 AM:

      Actually, I just fount out THERE IS NO 4TH AMENDMENT RIGHTS AT THE BORDER ANY MORE. A friend of mine on the ACLU Board pointed out a recent U.S. Supreme Court case -- US v Flores-Montano, 541 US 149 (2004) where the Court unanimously upheld a border search that involved disassembling a car's gas tank when there was no suspicion or probable cause. The 9 -0 decision tells you what the Court thinks about the standing of the 4th Amendment at the border.

      And oh, there’s no 4th Amendment rights inland up to 100 miles where you can be stopped looking for illegal aliens or contraband for no reason at all. Good by USA, hello Brazil.

    1. Robbie on Mar 21, 2007 2:57:28 PM:

      I don't know, Chris. The fact you were in a car not your own with expired registration is enough for at least a few follow up questions. We hear this thing all the time; some individual who doesn't mean well caught after the slightest of technicalities and questioned. When it happens to them, we think "Border Patrol did a damn good job." It happens to us, "Where are my rights!?"

      It's a balance. When it comes to the 4th Amendment, think about customs. They break the lock on your suitcase, rummage on through, do just as they please, ask you plenty of questions, some reasonable, some bizarre, and then they send you on your way. I've been subjected to lengthy questioning and searches here, Britain, France, and Italy.

      Actually, now that I think of it, I wonder what it is that predisposes me to shakedowns by foreign governments. Hrm.

      The point being that this happens every single day on a variety of borders - even before 9/11. I think maybe you're being just a teensy bit paranoid. Why was one of your first instincts that they might plant something in your car?

      Contrary to what the president might pontificate, security and freedom are sometimes mutually exclusive. It's all about what you're willing to trade. A guy who's been living abroad, traveling to different countries, and running around in a car he doesn't own and seems to know nothing about? I want the patrol to look a bit closely at someone matching that profile. Just to be certain. Even if it's me.

      And it has been me on occasion.

    1. North Dallas Thirty on Mar 21, 2007 3:17:20 PM:

      Agreed, Robbie.

      Having been to Tel Aviv on numerous occasions, Chris, what you went through is par for the course. They actually sit you down and interview you; while the questions they ask may seem unrelated and, as Robbie put it, "bizarre", they actually are designed to glean bits of comparable information to see if you contradict yourself or if a certain pattern shows up. For instance, if you say you were going across the border to visit family, the agent may note that, and then, a few minutes later, ask when your family emigrated to the United States.

      And to Rob's question about radiological sensors, two words....."lead shields". Indeed, that's why the Border Patrol is deploying scales to checkpoints that don't already have them; using a series of equations, you can determine whether or not a car is carrying the load you would expect it to be carrying for the make, model, number of people, etc.; anything drastically over or under the expected amount makes them look twice.

      Finally, if you were going to sneak something across the border, which would be wiser....a rural area that would ordinarily never see that kind of activity, or a checkpoint which sees maybe thousands of transits a day and is full of harried border guards who want to keep the line moving and who are scared to death of getting slapped with lawsuits from the ACLU for making thorough and aggressive investigations?

    1. Daniel on Mar 21, 2007 3:35:31 PM:

      I hope you and the partner will still make a go of it in Brasil. Consider teaching English to the natives. They are in dire need of educators in that country especially to teach the poor.

    1. tim on Mar 21, 2007 5:59:27 PM:

      Canada's borders are notoriously porous so it's not unforeseen that they are brutal in questioning. You are raising some flags with your traveling and a car that wasn't in your name. Our state borders are open and free because our national borders are (laughably secure). i suspect that the federal government wants less international travel and is not adverse to creating these situations to make it more bother than it's worth. a tiny bit of social engineering i noticed years ago.

    1. Citizen Crain on Mar 21, 2007 6:35:07 PM:

      Chris here:

      For those expressing sympathy for my experience, I appreciate it. And I also understand the skepticism expressed by some, though apparently Robbie missed the end of the post where I reveal that the claim that the registration was expired tag turned out to be a LIE.

      I expected some questioning and have no problem with an inquiry that seems reasonably designed to focus on possibly illegal activity. I assume we would all agree that a wide-ranging inquiry into my sexual orientation or my politics would be outrageous, so let's focus on where to draw the line and not whether the mere idea of questions is OK.

      If I encounter the police inside the border, they aren't even entitled to stop me without "reasonable suspicion" that I have committed a crime. While I would expect a greater scrutiny at the border, I do not think the relationship between police and citizen should be flipped on its head.

      Why does the fact I am entering from Canada (Canada?!) empower my government to ask unlimited questions about my personal life, with absolutely no proof or "reasonable suspicion" of anything?

      Some of you have focused on the fact the car wansn't mine. But if I was stopped for speeding in a car that wasn't mine, a quick check to determine whether it has been reported stolen is all the police would be entitled to do. Why does the border context change that? I was going into the U.S., after all, not leaving it.

      Robbie calls me paranoid for thinking the police might plant evidence in my car. I'm surprised at the naivete. Police corruption is not unheard of in this country. And why else would I be worried about a car search?

      I have done my own fair share of traveling and have never experienced anything approaching the gruff and aggressive treatment I've seen from U.S. border guards. How do all these other countries manage to balance security and civil liberties so much better than we do?

    1. Tim on Mar 21, 2007 9:57:25 PM:

      I think I am lacking outrage because I wasn't there and can't tell how far over the line they went. You said they asked you personal questions but when trying to catch someone in a lie that's the only way to do it. you ask than re-ask in a different way. I expect the border police to be efficient, honest and clever.
      Within those guidelines i would allow them great leeway, in fact i would defer to their assessment depending on their history and experience level.
      In all honesty however you travel more than us and it's your experiences that are giving you guidance in your level of outrage. Did you think to ask if they were looking for a suspect that day? or if you already fit the description of a fugitive? Perhaps there have been a run of stolen cars. You yourself said this has been the exception, no harm came to you, no evidence was planted, I cannot find evidence the system abused you. But i am noting it as evidence which is not the same in my mind as proof yet. I hate the way this make me sound because i come off as a hard ass but i'm merely trying to maintain skepticism.

    1. Citizen Crain on Mar 21, 2007 11:16:41 PM:

      But this is exactly my point, and perhaps I'm not communicating it very well. We don't believe in a country that allows the police to go on investigatory fishing expeditions, stopping citizens and questioning them about their lives and trying to catch them in "lies."

      Lies about what? None of their questions related to anything that might involve illegal activity. They were about where I live, what I do for work, how much money I make, what kind of writing I do, etc.

      We have all bought in too much to this idea that "the war on terror" justifies these intrusions into our lives. It's not a trade-off we have to make. And with every story of how the Bush administration has abused its "war on terror" powers, we should be reminded of the price we pay.

    1. Robbie on Mar 22, 2007 1:28:47 AM:

      Chris, perhaps we simply have different experiences. One experience that comes to mind is one trip between America and Britain. At the time, I had been in a long-term relationship with a British citizen for a number of years, traveled in and out of the country frequently, lived there, held bank accounts, etc. The majority of the time, my experiences were smooth, almost casual.

      Then one day, a random customs agent wanted to know every detail of our relationship, where I was working, where I lived, where I lived prior to that address, how we met, etc. And this was the British government, one that is notoriously lax about things like customs.

      I'm not sure what set them off that particular day (I was never bothered like that again), but I sat through the tedious, unrelenting lines of questioning and didn't really think about it again.

      Like I said, you yourself admit you've been doing some moving and traveling. You might have fit a certain profile, you might have been picked at random. I doubt they'd disclose their methods, but you might want to try calling someone at the DHS and ask why you were singled out for this treatment and whether or not that's standard procedure.

      I'm not naive about corruption in law enforcement, but I will admit it's not one of my first responses to heavier scrutiny at a border crossing. It strikes me as a little odd. Perhaps your experiences in Brazil aren't coloring your perspective a touch?

      As for the registration, if that's the case you should definitely file a complaint.

    1. tim on Mar 22, 2007 9:35:20 AM:

      well should the border guards never question someone just because their paperwork is in order? That would make spies very happy.
      I think you have mistaken the purpose of the questioning as well as the very different responsibilities along a border. the purpose of the banter and questioning is to see how well you actually know your supposed job and place you claim to live and work. In essence you have to prove you are a citizen. That should not be a given, anyone can get papers and fake an accent.

    1. North Dallas Thirty on Mar 22, 2007 1:14:04 PM:

      "We don't believe in a country that allows the police to go on investigatory fishing expeditions, stopping citizens and questioning them about their lives and trying to catch them in "lies.'"

      Once you're INSIDE the border, yes.

      But the tradeoff for being able to do that inside the border is to be extra-vigilant OUTSIDE it.

      I used to work for a country with a great deal of import/export business and special privileges because of our American affiliation -- and you would be astounded how many people tried to buy/bribe us into smuggling goods into the United States. I was personally offered the equivalent of $100k to, as they charmingly put it, "obscure the manifest". When they tell you not to leave your luggage unattended, to make sure that you check everything, and that you personally account for everything in your bag before you leave hotel rooms or accomodations in foreign countries, they are not kidding or being paranoid; people have and continue to try to smuggle things into the United States, willingly or unwillingly, by using Americans as "mules" -- because they think we will have an easier time going through Customs and border security.

    1. Ray on Mar 25, 2007 3:10:07 AM:

      It's been interesting reading the comments here.

      As a Malaysian who just graduated from an american university last year, I can tell you it was an interesting experience entering and leaving the US.

      Post 9/11 there was increased vigilance by the US authorities on Muslim countries. I'm not Muslim myself, but Malaysia is a Muslim country.

      The first time I arrived in the US for university, my friend was asked to a room just after the immigration checkpoint. As you can imagine, I was worried, cos being asked to go to a room at the immigration checkpoint in any country is seldom good news. There he stayed for about 1.5 hrs. They needed to register him and from then on he had to report to someone whenever he left or entered the US. Apparently they chose registrees from Muslim countries randomly. I escaped this time, but was not so lucky the next time I entered the US (after going home for the winter break). It was definitely a hassle...and I was initially sceptical about how seriously they had thought this through--the room i was supposed to report to for each entry and departure was tucked away deep inside the airport near lost baggage collection, it was quite an adventure looking for it.

      All in all though, I wasn't angry with the INS. Sure, there were things they could improve on and it'd be good if someone could help them come up with more efficient screening measures. They recently implemented SEVIS though, which tracks all international students (so hopefully renewed I-20 forms won't be issued to dead terrorists anymore). In any case, what I told each myself each time I went through the hassle at the border was that this was to protect a country where individuality is cherished, hard work by and large is rewarded, and gay people aren't prosecuted (jail time for that in Malaysia) and more importantly, where there seems to be a great deal of trust amongst people. I agree with North Dallas Thirty, freedom inside american borders needs tight security at the border. How else can you know that the person you just helped find his way on the map isn't likely to be heading towards the building to blow it up in the name of God?

      Maybe people could send word out about the present shortcomings at the border so people can go to the INS with better ideas on enforcing border security?

    1. ghd straghtners on Nov 17, 2011 3:52:27 AM:

      in their last moments

    The comments to this entry are closed.

    © Citizen Crain - All Rights Reserved | Design by E.Webscapes Design Studio | Powered by: TypePad