U.S. Customs and Border Protection (CBP) officials (“customs officials”) can set up permanent checkpoints within 100 miles of the U.S. border. These are generally located near intersections of important roads leading away from the border. They’re typically 25 to 100 miles from the border, distant enough to avoid interference with traffic in populated border areas. And they also tend to be in locations that are difficult for vehicles to avoid.
(For information on other checkpoints, see What are the search-and-seizure rules at temporary immigration checkpoints? Also, see our article on Search and Seizure at and Around the U.S. Border, which discusses the importance of legal consultation and links to an article on the potentially complicating factor of state (rather than federal) law.)
The government must give motorists unambiguous advance warning of permanent checkpoints. The warning—for example, signs, cones, and flashing lights—must indicate that drivers will be stopped ahead.
At fixed checkpoints, customs officials may conduct warrantless, routine stops of vehicles to briefly ask questions, but only for purposes of determining whether occupants are entering the U.S. unlawfully. To make these stops and ask these questions, officials don’t need reasonable suspicion that the vehicles in fact contain undocumented people. (Indianapolis v. Edmond, 531 U.S. 32 (2000).) Quite the contrary: Permanent checkpoint stops cannot be random—officials must stop all vehicles.
Custom officials can, without justification, order any driver to move to a secondary inspection location for visual inspection of the vehicle and to ask additional questions. But the questioning still must be for the purpose of determining immigration status and must be as brief as possible. Customs officials can select which vehicles to refer to these secondary locations. They can even consider an occupant’s appearance of Hispanic descent in making this selection. (U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976).) Officials can also use drug-sniffing dogs, but only so long as the dogs’ use doesn’t lengthen the detention beyond the least time necessary to determine immigration status.
The rationale for these stops and searches is that the inconvenience and intrusion are relatively minor when compared to the border-security interests involved. After all, the detention must last only as long as needed to determine immigration status. (U.S. v. Martinez-Fuerte, supra.)
Customs officials can ask a few, brief questions about immigration and residence status, and can request documentation indicating a right to be in the U.S. (They can even board buses to question passengers.) They can also ask those they encounter to agree to extended detention. But, in general, the stop can take only as long as necessary to ask these questions and make these determinations.
The law is unclear, however, as to issues like exactly how long a customs official can detain a person and the scope of the questions he can ask to determine immigration status. Travelers do have a right not to answer questions. But if you won’t answer the questions, you risk the customs official using your refusal as a factor that gives him reasonable suspicion to detain you for further questioning.
During permanent checkpoint stops, customs officials are allowed to look at the exterior of a vehicle and through its windows for anything illegal or suspicious. But they cannot search the interior of a vehicle or its trunk without probable cause, a warrant, or consent. Similarly, customs officials can visually inspect the outside of bus passengers’ luggage, but not feel or open it without probable cause, a warrant, or consent.
Even though customs officials cannot stop a vehicle for the purpose of detecting non-immigration criminal activity, again, they can use drug-sniffing dogs. If, during the course of valid, brief checkpoint questioning, drug-sniffing dogs alert a customs official to the presence of drugs, the official can further question the traveler or search the inside of the car. With probable cause for a non-immigration-related crime, the official may have authority to arrest the traveler, or might bring in local law enforcement for that purpose.
Above all else, keep in mind that it is a crime to evade or flee a checkpoint.