U.S. Customs and Border Protection (CBP) officials (“customs officials”) can set up roving patrols within 100 miles of the U.S. border to supplement checkpoints. (See our articles on permanent and temporary checkpoints.) These patrols may operate by foot, bicycle, or vehicle. Roving patrols can also operate in bus terminals that are near the U.S. border.
(For even more on this area of law, including information on the importance of legal consultation, see our article on Search and Seizure at and Around the U.S. Border. That article also links to a piece on the potentially complicating factor of state (rather than federal) law.)
The legal standards for roving patrols are generally different from the rules for permanent and temporary checkpoints. A roving customs official generally must have reasonable suspicion that the occupant of a particular vehicle (or person at a bus terminal) is undocumented before he can detain and ask questions about immigration status. (U.S. v. Singh, 415 F. 3d 288 (2d Cir. 2005).) As with checkpoints, the roving patrol official cannot stop the vehicle for any reason other than investigation of immigration status (unless the official witnesses the commission of a federal offense).
REASONABLE SUSPICION AROUND THE BORDER
Reasonable suspicion is more than a hunch. It isn’t enough for customs officials to rely on broad profiles that cast suspicion on an entire category of people (such as all Hispanics).
Courts have found the factors below to be relevant considerations in determining whether there’s reasonable suspicion that a particular vehicle contains undocumented travelers. It isn’t necessary that all these factors exist in a given situation. Rather, courts will look at all the circumstances, including the involved official’s actual knowledge of the area and prior experience with “aliens” and smugglers. Among the potentially relevant factors in evaluating whether there is reasonable suspicion are:
- Vehicle characteristics. For example, does the car have a large or modified holding compartment? Is it heavily loaded? Does it have an extraordinary number of passengers?
- Characteristics of the area. For example, how close is the automobile to the border? Is the vehicle following the usual patterns of traffic for that road? What is the official’s previous experience with undocumented-person traffic and drug smuggling in this area? Do officials have information about recent illegal border crossings in the area?
- Driver/passenger behavior. Has there been erratic driving? Has the driver made attempts to evade officials? Do passengers appear to be hiding? Does the driver have prior smuggling convictions?
- Driver/passenger appearance. The lawful consideration here is whether the traveler’s appearance suggests he or she isn’t from the U.S. Officials can consider factors like mode of dress or haircut, notapparent ethnicity. And even Mexican mode of dress or haircut is insufficient by itself to raise reasonable suspicion.
(U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975); U.S. v. Monero-Camargo, 208 F. 3d 1122 (9th Cir. 2000).)
If the roving customs official has reasonable suspicion that there are undocumented people in the vehicle, she can stop the car. She can detain only for as brief a time as is necessary to ask questions about citizenship, immigration status, and any suspicious immigration circumstances.
If the stop is valid, any searches and any extension of the detention beyond the time necessary for brief immigration status questioning must be based on probable cause. If, during this brief detention, the official develops probable cause that the driver or a passenger has committed or is committing a non-immigration-related felony, she may be able to question, search, and arrest for that offense. (Or she might call in local law enforcement for the arrest.)
As with checkpoints, roving patrol customs officials may look through vehicle windows for anything illegal or suspicious, but cannot enter a vehicle or its trunk without probable cause, a warrant, or consent.