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Constitution ‘Suspended’ on Mexican Border

By Pat Shannan

Returning to his home in Tempe, Ariz., Pastor Steve Anderson refused to allow a search of his automobile by Border Patrol guards when he was stopped on April 14 at a routine check point on Interstate-8. Not willing to submit to the increased harassment of law-abiding Americans by so-called law enforcement, Anderson says he was merely standing up for his right to be protected against unreasonable search without a warrant.

After being held at the scene for an hour while awaiting the arrival of state police, Anderson saw his car windows cracked opened by officers who proceeded to smash his face into the broken glass before dragging him from the car. He was then tasered multiple times. According to Anderson, the cops ground his face into the asphalt with their boots. He was taken to jail for the night.


Border Patrol officers later claimed that their drug-sniffing dog had detected either drugs or a person hiding in Anderson’s trunk and that this was sufficient “probable cause” for the search following the stop. No grounds for the initial stop were cited, and no contraband was discovered.

The incident highlights tension between constitutional rights, the issue of border security and a controversial Supreme Court ruling that grants an exceptional level of police authority near the Mexican border. Following his release the next morning, Pastor Anderson returned to Tempe and immediately taped a 5- minute video report telling his side of the story and posted it on the Internet.

“I was in the United States. I had crossed no international border.” said Anderson in his video commentary. “I didn’t have any drugs; I didn’t have any human beings in my car,” he said. “Why is this happening in the United
States of America?”

A Border Patrol spokesman, however, told newsmen that Anderson misunderstood his constitutional rights and that because a drug-sniffing dog alerted officers to Anderson’s rental car, the pastor was wrong not to allow the agents to search his vehicle.

Ben Vik, a supervisory Border Patrol agent for the Yuma sector, further said that the Supreme Court and federal law permit the Border Patrol to establish checkpoints up to 100 miles inside the U.S. and that with probable cause the Fourth Amendment doesn’t apply to searches of automobiles. But Tempe is 120 miles from the Mexican border.

“The Supreme Court found that only minimal intrusion existed to motorists at reasonably located checkpoints,” said Vik. “The Supreme Court found that the very brief detention of motorists at a well-marked and identified immigration checkpoint did not constitute an unreasonable search and seizure.”

Vik’s statement, however, doesn’t apply to typical law enforcement agencies, but—thanks to a controversial ruling—only to “immigration” checkpoints established by the Border Patrol.

The courts have typically ruled against “suspicion-less” stops and searches of vehicles at police checkpoints, such as the one that detained Anderson. As recently as 2000, the Supreme Court ruled in Indianapolis vs. Edmond that police cannot establish roadblocks staffed by dogs to randomly search automobiles for drugs.

“We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing,” the Supreme Court majority wrote. “The [Indianapolis] checkpoints violate the Fourth Amendment.”

The 1976 United States vs. Martinez-Fuerte decision, however, created an exception allowing the Border Patrol the unique power to establish checkpoints for seeking illegal immigrants, with the secondary purpose of finding drugs. So while Yuma-area police cannot operate a K-9 (drug-detecting dog) checkpoint without violating the Fourth Amendment, the Border Patrol can.

“Border Patrol immigration checkpoints don’t give Border Patrol agents carte blanche to automatically search persons or their vehicles,” Vik explained. “To conduct a legal search under the Fourth Amendment, agents must develop a probable cause to conduct a lawful search.”

However, in Anderson’s case, the pastor claims the K-9 dog made no bark or indication that his rental car was tainted with drugs, while Vik insisted later that the dog did alert agents to drugs, thus granting probable cause for the search. Anderson suggested in his video report that this probable cause was “developed” by officers’ fabrications, became a mere excuse by the agents to proceed and that they refused to return with the dog to prove their point.

As for the tasering and other alleged rough treatment by police, Vik gave a “don’t blame us” retort, saying Anderson was extracted from his car and arrested by Arizona Department of Public Safety officers, not the Border Patrol, a statement Anderson confirms. Graham Boyd, director of the American Civil Liberties Union’s Drug Law Reform Project in Santa Cruz, Calif., told the Phoenix New Times that an immigration checkpoint is thin justification for sniffing random cars for drugs without a warrant.

“Even if somebody has no sympathy for a marijuana user,” Boyd says, “you should still be concerned that the U.S. government is saying the border is an area where the U.S. Constitution is suspended.”

Senior Patrol Agent Vik said that even in the checkpoints, citizens do maintain certain rights limiting officers’ actions. Both Anderson and Vik confirm that no contraband was discovered on the vehicle. Arizona authorities told AFP that an investigation into the officers’ actions is ongoing and no comment can be made until it is complete.

Pat Shannan is the assistant editor of American Free Press. He is also the author of several videos and books including One in a Million: An IRS Travesty and I Rode With Tupper, detailing Shannan’s experiences with Tupper Saussy when the American dissident was on the run in the 1960s. Both are available from FIRST AMENDMENT BOOKS for $25 each.

(Issue # 18, May 4, 2009)

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