4 ms·

It seems to me that Martinez-Fuerte was wrongly decided. The court treated it as a dilemma between stopping all traffic passing a particular point with no suspi

by Zak 8y ago

It seems to me that Martinez-Fuerte was wrongly decided. The court treated it as a dilemma between stopping all traffic passing a particular point with no suspicion at all, and requiring a warrant from a judge based on probable cause. There was already legal precedent for a middle ground at that time: the Terry stop, requiring only reasonable suspicion based on evidence as determined by the officer and subject to later review by a judge. More generally, I don't think government agents should ever be able to detain and question people in public places without reasonable individualized suspicion based on evidence. To whatever extent the law fails to prohibit such actions, it should be changed.

koheripbal 8y ago
The Martinez-Fuerte ruling specifically applies to a section of US territory along the border. The ruling accepts that illegal border crossings DO occur and that therefor Border Patrol need jurisdiction to stop and question people within a reasonable distance from the border in areas where illegal border crossings occur. A less penetrable border would be the cleanest solution here.
- JshWright 8y ago
  So, your argument is that because people who cross the border illegally exist, it is reasonable to suspect anyone who is within 100 miles of the border crossed it illegally?
- kurthr 8y ago
  Since the "border" extends 100 miles inland, covers the majority of large cities and 2/3 of the US population, I don't think this is a clean solution. It only seems that way when you aren't personally affected.
  - deleted 8y ago
    [deleted]
  - tptacek 8y ago
    Border stops have to have a connection to an actual border crossing regardless of where they occur. CBP can't conduct suspicionless searches of 2/3rds of the US population.
    - Zak 8y ago
      They can't search with no suspicion, but they can operate checkpoints at which they stop and question everyone in every passing vehicle under US v. Martinez-Fuerte. That ruling is a little vague, requiring that the placement of the checkpoints be "reasonable". It further allowed CPB officers to "refer motorists selectively to the secondary inspection area at the San Clemente checkpoint on the basis of criteria that would not sustain a roving patrol stop" (Terry stop). This is not a suspicionless search, but it's a much lower level of suspicion than is required for a search under other circumstances. Federal regulations allow CPB to operate within 100 miles of the border. That doesn't necessarily mean it's legal to operate a checkpoint anywhere in that zone, but the restrictions on where they can be placed are pretty vague.
      - tptacek 8y ago
        Check out Martinez-Fuerte at 560, which ACLU (at least in California) says is controlling, and which states that secondary inspection areas can be used only for routine and limited inquiries into residence status, and that the areas are used exclusively for traffic alleviation, not to facilitate actual searches, which the case (at 558) says are disallowed. I'm certainly never going to claim that CBP doesn't push its authority, or even abuse it outright. I assume they somewhat routinely do that. Patrick Leahy got pulled over 125 miles from a border a few years ago (that had to have been fun to watch). I'm just saying that there's a mythology about the "100 mile wide Constitution-free zone" which is not useful or productive and deserves to be punctured whenever it's brought up. A lot of what people believe CBP can do by dint of being within 50 miles of a border would, if it occurred, in fact be unlawful, and should be challenged on those terms. Not in a Wesley Snipesian idiosyncratic "originalist" sense of the word unlawful, but straight-up normal-lawyer bring-a-case unlawful.
- mikeash 8y ago
  Illegal killings exist, does that mean the police need jurisdiction to stop and question people everywhere?
  - zdkl 8y ago
    ...yes?
    - mikeash 8y ago
      That sure isn’t what the courts think. Police can’t just stop people at random because murderers exist. They need some reason.
hfdgiutdryg 8y ago
I'm no lawyer, but I believe Terry Stops are about having to produce identification on demand (e.g. while walking down the sidewalk). When you're driving a car on public roads, you have to produce a valid license and proof of insurance (in every state I'm aware of) on demand. If you're a passenger, then it's reasonable to refuse to produce ID, but if you're the driver then I don't know how you can argue that you don't need to.
- Zak 8y ago
  I'm not a lawyer either, but I don't think that's quite right. A Terry stop is about reasonable suspicion of wrongdoing, based on evidence, but not sufficient evidence for an arrest. A person can be detained temporarily in order to alleviate that suspicion and searched for weapons for the officer's safety. In some jurisdictions, a person who has been detained can be required to identify themself, but I don't believe any court has held that involves producing government-issued ID. Under normal circumstances, a person cannot be stopped just to check that they have a valid driver's license. A driver can argue that they don't need to produce ID because there was no valid reason for the stop. There have been some exceptions carved out for checkpoints of various types, and I think all of them are legally problematic and morally unjustifiable. There are also issues of jurisdiction. I'm not sure if immigration agents have jurisdiction to enforce traffic laws.
  - hfdgiutdryg 8y ago
    Under normal circumstances, a person cannot be stopped just to check that they have a valid driver's license. They absolutely can. They just don't because it's a waste of time since the hit rate would be so low.
    - Zak 8y ago
      No, they cannot. The supreme court ruled in Delaware v. Prouse that "except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment" https://www.law.cornell.edu/supremecourt/text/440/648 https://www.law.cornell.edu/supremecourt/text/440/648

by Zak 8y ago

koheripbal 8y ago

The Martinez-Fuerte ruling specifically applies to a section of US territory along the border. The ruling accepts that illegal border crossings DO occur and that therefor Border Patrol need jurisdiction to stop and question people within a reasonable distance from the border in areas where illegal border crossings occur. A less penetrable border would be the cleanest solution here.

JshWright 8y ago
So, your argument is that because people who cross the border illegally exist, it is reasonable to suspect anyone who is within 100 miles of the border crossed it illegally?
kurthr 8y ago
Since the "border" extends 100 miles inland, covers the majority of large cities and 2/3 of the US population, I don't think this is a clean solution. It only seems that way when you aren't personally affected.
- deleted 8y ago
  [deleted]
- tptacek 8y ago
  Border stops have to have a connection to an actual border crossing regardless of where they occur. CBP can't conduct suspicionless searches of 2/3rds of the US population.
  - Zak 8y ago
    They can't search with no suspicion, but they can operate checkpoints at which they stop and question everyone in every passing vehicle under US v. Martinez-Fuerte. That ruling is a little vague, requiring that the placement of the checkpoints be "reasonable". It further allowed CPB officers to "refer motorists selectively to the secondary inspection area at the San Clemente checkpoint on the basis of criteria that would not sustain a roving patrol stop" (Terry stop). This is not a suspicionless search, but it's a much lower level of suspicion than is required for a search under other circumstances. Federal regulations allow CPB to operate within 100 miles of the border. That doesn't necessarily mean it's legal to operate a checkpoint anywhere in that zone, but the restrictions on where they can be placed are pretty vague.
    - tptacek 8y ago
      Check out Martinez-Fuerte at 560, which ACLU (at least in California) says is controlling, and which states that secondary inspection areas can be used only for routine and limited inquiries into residence status, and that the areas are used exclusively for traffic alleviation, not to facilitate actual searches, which the case (at 558) says are disallowed. I'm certainly never going to claim that CBP doesn't push its authority, or even abuse it outright. I assume they somewhat routinely do that. Patrick Leahy got pulled over 125 miles from a border a few years ago (that had to have been fun to watch). I'm just saying that there's a mythology about the "100 mile wide Constitution-free zone" which is not useful or productive and deserves to be punctured whenever it's brought up. A lot of what people believe CBP can do by dint of being within 50 miles of a border would, if it occurred, in fact be unlawful, and should be challenged on those terms. Not in a Wesley Snipesian idiosyncratic "originalist" sense of the word unlawful, but straight-up normal-lawyer bring-a-case unlawful.
mikeash 8y ago
Illegal killings exist, does that mean the police need jurisdiction to stop and question people everywhere?
- zdkl 8y ago
  ...yes?
  - mikeash 8y ago
    That sure isn’t what the courts think. Police can’t just stop people at random because murderers exist. They need some reason.

hfdgiutdryg 8y ago

I'm no lawyer, but I believe Terry Stops are about having to produce identification on demand (e.g. while walking down the sidewalk). When you're driving a car on public roads, you have to produce a valid license and proof of insurance (in every state I'm aware of) on demand. If you're a passenger, then it's reasonable to refuse to produce ID, but if you're the driver then I don't know how you can argue that you don't need to.

Zak 8y ago
I'm not a lawyer either, but I don't think that's quite right. A Terry stop is about reasonable suspicion of wrongdoing, based on evidence, but not sufficient evidence for an arrest. A person can be detained temporarily in order to alleviate that suspicion and searched for weapons for the officer's safety. In some jurisdictions, a person who has been detained can be required to identify themself, but I don't believe any court has held that involves producing government-issued ID. Under normal circumstances, a person cannot be stopped just to check that they have a valid driver's license. A driver can argue that they don't need to produce ID because there was no valid reason for the stop. There have been some exceptions carved out for checkpoints of various types, and I think all of them are legally problematic and morally unjustifiable. There are also issues of jurisdiction. I'm not sure if immigration agents have jurisdiction to enforce traffic laws.
- hfdgiutdryg 8y ago
  Under normal circumstances, a person cannot be stopped just to check that they have a valid driver's license. They absolutely can. They just don't because it's a waste of time since the hit rate would be so low.
  - Zak 8y ago
    No, they cannot. The supreme court ruled in Delaware v. Prouse that "except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment" https://www.law.cornell.edu/supremecourt/text/440/648 https://www.law.cornell.edu/supremecourt/text/440/648