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Originally Published: 11/19/2008


By The Issue Wonk


Do you live in a Constitution-Free Zone? The chances are pretty good that you do. About 66% of all U.S. residents live in a Constitution-Free Zone. The problem isn’t just for those who live in “The Zone.” It effects everyone. Recently I was traveling in my own state, having never left the country, but suddenly I ran into a border checkpoint deep in the state where I was stopped and questioned. Unbeknownst to me, I had crossed into the Constitution-Free Zone. I no longer had the Fourth Amendment to protect me.


Border Searches


The Fourth Amendment to the U.S. Constitution says:


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


There is an exception to this, however, called the “Border Search Exception.” This doctrine of U.S. criminal law exempts travelers and their property from the warrant requirement of the Fourth Amendment. Searches by U.S. Customs and Border Protection (CBP), a division of the Department of Homeland Security (DHS), are permitted and CBP may stop and search any traveler entering or exiting the U.S. at random, even based largely on ethnic profiles.


How did this happen? It was United States v. Montoya de Hernandez, 473 U.S. 531 (1985) that said that “travelers may be stopped [and searched] at . . . the border without individualized suspicion even if the stop [or search] is based largely on ethnicity . . .” However, according to Montoya, body searches (e.g., patdown, strip, body cavity, x-ray) may only be conducted if CBP officials have “reasonable suspicion” to believe that a traveler is concealing contraband. In United States v. Flores-Montano, 541 U.S. 149 (2004), the Supreme Court added that border searches are still subject to the Fourth Amendment’s “reasonableness” requirement.


Border searches are also determined to be “routine” or “non-routine.” Routine searches may be conducted with no level of suspicion. Non-routine searches must be supported by “reasonable suspicion.” Searches of property (e.g., luggage, briefcases, purses) are considered routine. Body searches are considered non-routine.


What Is The Border?


The problem comes in when you define the border. Almost 50 years ago Congress authorized CBP to operate within a “reasonable distance” inside the border, which it designated as a 100-mile radius, but also allows the CBP district directors to petition the Commissioner in special circumstances to extend the “reasonable distance.” [See Code of Federal Regulations – Title 8. Aliens and Nationality. 8 CFR 287.1(a)(1-3).] As a result, people who live far away from the border and people traveling from one place to another are being stopped and harassed in a way not permitted by our Constitution.


These problems aren’t just occurring on the southern border with Mexico. “After 9/11, Congress gave the Department of Homeland Security the right to use some of its powers deeper within the country.”1 They’ve set up checkpoints “on highways in states like California, Texas, and Arizona”2 and at ferry terminals in Washington State.3 Anything that is an external boundary of the U.S. is included, up to 100 miles. There are now at least 33 internal checkpoints where they stop people, question them, and ask them to prove citizenship.”1 These are known as administrative stops and they are allowed by the above noted court decisions. [Note: Currently they cannot become general drug search stops or other law enforcement stops but, with the institution of “fusion” centers, this too may change. See The Weekly Wonk, Intelligence Centers, 7/28/07; Domestic Spying, 4/5/08; Fusion Centers, 4/19/08; Who’s Snooping, 7/5/08; Stepping Back, 8/16/08.]


The American Civil Liberties Union (ACLU) is very concerned. It says that the court’s guidelines are being stretched and border agents are “stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing. The bottom line is that the extraordinary authorities that the government possesses at the border are spilling into regular American streets.”4


The ACLU created a map and spreadsheet to show you how extensive the area is. As I mentioned earlier, it’s about 66% of the U.S. population – about 197.4 million people who live within 100 miles of the U.S. land and coastal borders. Nine of the largest 10 metropolitan areas (as determined by the 2000 census) fall within the Constitution-Free Zone. “Some states are considered to lie completely within the zone: Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont.”4


So, while you’re driving around your state, having never left the U.S., you can be stopped. (See story by Westneat.5) Once the federal agents have your name they can check that against all the other data they’ve collected – watch lists; the Automated Targeting System (ATS); tracking systems, like the new RFID passports; the Western Hemisphere Travel Initiative (WHTI); and “intrusive technological schemes such as the Secure Border Initiative Network (SBINet) or the “virtual border fence” and unmanned aerial vehicles, or drones. (See ACLU’s description of these technologies.6) While I had no problem at the checkpoint, “People are also reporting that even after they provide passports or state driver’s licenses, CBP continues to interrogate them and try to pressure them into permitting a search.”2


The ACLU says:4


This illegitimate expansion of the extraordinary powers of agents at the border is also part of a general trend we have seen over the past 8 years of an untrammeled, heedless expansion of police and national security powers without regard to the effect on innocent Americans.


This trend is also typical of the Bush Administration’s dragnet approach to law enforcement and national security. Instead of intelligent, competent, targeted efforts to stop terrorism, illegal immigration, and other crimes, what we have been seeing in area after area is an approach that turns us all into suspects. This approach seeks to sift through the entire U.S. population in the hopes of encountering the rare individual whom the authorities have a legitimate interest in.


What’s worse is that all the data they’re collecting is being kept for at least for 15 years and, as I mentioned above, with the new “fusion” centers, the data can be used for criminal and intelligence investigations.7


Will these kinds of attacks on the U.S. citizenry end soon? We can only hope.




1  Singel, Ryan. ACLU Assails 100-Mile Board Zone as ‘Constitution-Free’ – Update. Wired, October 22, 2008.


2  Steinhardt, Barry. Homeland Security Assuming Broad Powers, Turning Vast Swaths of U.S. Into “Constitution-Free Zone.” American Civil Liberties Union, Technology & Liberty Program, October 22, 2008.


3  Valdes, Manuel. Ferry Worker Denounces Anacortes Patrol Agent. Associated Press, Jun 19, 2008.


4  American Civil Liberties Union. Fact Sheet on U.S. “Constitution Free Zone.” October 22, 2008.


5  Westneat, Danny. Checkpoint sticks in Forks’ Craw. Seattle Times, March 21, 2007.


6  American Civil Liberties Union. Border Security Technologies. October 22, 2008.


7 Nakashima, Ellen. Citizens’ U.S. Border Crossings Tracked: Data From Checkpoints To Be Kept for 15 Years. Washington Post, August 20, 2008.



© The Issue Wonk, 2008




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