CBP boards bus and arrests visa overstay Grandmother

[Amica Nostra 4,803]

16 minutes ago, Bill & Katya said:

Schumer said he was not going to allow funding the wall.

He didn't, he took his previous offer of support off the table because it was essentially rejected.

[yuna628 9,671]

Something that you and I agree on NB. It's a bad slippery slope. Had this conversation with a group of people a few days ago. If someone stops you there needs to be probable cause. A cop uses bad driving for example, to pull you over, and ask for ID. This is akin to every individual being subjected to ''probable cause''.

 

I have no problem with officers boarding a plane and specifically removing a target. However I am not comfortable with boarding anything and specifically demanding to see everyone's ID collectively. I'm sure you could work out a few scenarios where people may not have an ID on them, and I know of instances where even visitors are leery taking their passports with them (choosing to lock them in a hotel safe) while on tours.

 

Granted LPRs by law, must carry documentation at all times. However they are just as protected under the Constitution as USCs are. There was a couple cases last year where the CBP actually boarded a domestic flight (iirc nowhere near any border either) and demanded to see ID from every passenger and prevented passengers from leaving the flight until they had done so under threat of arrest (where they have no authority to do that). They are being sued regarding this, but I don't know what happened with the case. Keep in mind they were looking for a specific individual (they knew his name and what he looked like) but they demanded ID and interrogated every passenger, including women and children. They never found their target either. Searching for an alien does not preclude Constitutional rights.

[Dashinka 24,488]

19 minutes ago, yuna628 said:

Something that you and I agree on NB. It's a bad slippery slope. Had this conversation with a group of people a few days ago. If someone stops you there needs to be probable cause. A cop uses bad driving for example, to pull you over, and ask for ID. This is akin to every individual being subjected to ''probable cause''.

 

I have no problem with officers boarding a plane and specifically removing a target. However I am not comfortable with boarding anything and specifically demanding to see everyone's ID collectively. I'm sure you could work out a few scenarios where people may not have an ID on them, and I know of instances where even visitors are leery taking their passports with them (choosing to lock them in a hotel safe) while on tours.

 

Granted LPRs by law, must carry documentation at all times. However they are just as protected under the Constitution as USCs are. There was a couple cases last year where the CBP actually boarded a domestic flight (iirc nowhere near any border either) and demanded to see ID from every passenger and prevented passengers from leaving the flight until they had done so under threat of arrest (where they have no authority to do that). They are being sued regarding this, but I don't know what happened with the case. Keep in mind they were looking for a specific individual (they knew his name and what he looked like) but they demanded ID and interrogated every passenger, including women and children. They never found their target either. Searching for an alien does not preclude Constitutional rights.

Can we equate buses and planes?  To the best of my knowledge, buses do not have assigned seats, so if they have probable cause for one specific person, do they need to check IDs to make sure they get the right person?  I was on a plane from Korea one time that landed in Detroit, as usual when the plane got to the gate and the seat-belt sign was turned off, everyone started getting up.  Then the purser made an announcement for everyone to go back to their assigned seat.  The police came on board and asked for a specific person to come forward, and lucky for us he did and he was taken off the plane in handcuffs.  I imagine if he hadn't been so cooperative, they would have checked his assigned seat, and if not finding him there, started searching and asking others for IDs. 

[charmander 692]

5 minutes ago, Bill & Katya said:

Can we equate buses and planes?  To the best of my knowledge, buses do not have assigned seats, so if they have probable cause for one specific person, do they need to check IDs to make sure they get the right person?  I was on a plane from Korea one time that landed in Detroit, as usual when the plane got to the gate and the seat-belt sign was turned off, everyone started getting up.  Then the purser made an announcement for everyone to go back to their assigned seat.  The police came on board and asked for a specific person to come forward, and lucky for us he did and he was taken off the plane in handcuffs.  I imagine if he hadn't been so cooperative, they would have checked his assigned seat, and if not finding him there, started searching and asking others for IDs. 

Southwest Airlines do not have assigned seats either. I think the flight Yuna was referring to was a United flight from SFO to JFK. I don't know the exacts of that search but they said they were looking for a specific person, dunno if that person showed as boarded the plane but the assigned seat was empty to trigger IDing everyone.

 

edit: Not United, it was Delta. https://www.washingtonpost.com/news/post-nation/wp/2017/02/23/federal-agents-ask-domestic-flight-passengers-to-show-ids-in-search-for-undocumented-immigrant/?utm_term=.43c6d5b1884d

Edited January 24, 2018 by charmander

[Dashinka 24,488]

2 minutes ago, charmander said:

Southwest Airlines do not have assigned seats either. I think the flight Yuna was referring to was a United flight from SFO to JFK. I don't know the exacts of that search but they said they were looking for a specific person, dunno if that person showed as boarded the plane but the assigned seat was empty to trigger IDing everyone.

I understand, and the plane I was on did have assigned seats, so it wasn't SW.  My only point was that if the guy hadn't given himself up, LEOs may have had to do some searching.  All in all though these examples are not really relevant since this was CBP doing a document check.

[Italian_in_NYC 259]

These searches are against the IV Amendment. And the Constitution trumps any Federal law, so I'm against this. And you could refuse to be searched without probable cause (which they obviously do not have).

Deportation of the overstay is good though. That's why most (legit) applicants in the world go through hell to get a visa.

[Cyberfx1024 7,980]

32 minutes ago, Italian_in_NYC said:

These searches are against the IV Amendment. And the Constitution trumps any Federal law, so I'm against this. And you could refuse to be searched without probable cause (which they obviously do not have).

Deportation of the overstay is good though. That's why most (legit) applicants in the world go through hell to get a visa.

According to the SC it's not against the law because they are not searches at all, they are just checkpoints.

[Cyberfx1024 7,980]

1 hour ago, yuna628 said:

Something that you and I agree on NB. It's a bad slippery slope. Had this conversation with a group of people a few days ago. If someone stops you there needs to be probable cause. A cop uses bad driving for example, to pull you over, and ask for ID. This is akin to every individual being subjected to ''probable cause''.

 

I have no problem with officers boarding a plane and specifically removing a target. However I am not comfortable with boarding anything and specifically demanding to see everyone's ID collectively. I'm sure you could work out a few scenarios where people may not have an ID on them, and I know of instances where even visitors are leery taking their passports with them (choosing to lock them in a hotel safe) while on tours.

 

Granted LPRs by law, must carry documentation at all times. However they are just as protected under the Constitution as USCs are. There was a couple cases last year where the CBP actually boarded a domestic flight (iirc nowhere near any border either) and demanded to see ID from every passenger and prevented passengers from leaving the flight until they had done so under threat of arrest (where they have no authority to do that). They are being sued regarding this, but I don't know what happened with the case. Keep in mind they were looking for a specific individual (they knew his name and what he looked like) but they demanded ID and interrogated every passenger, including women and children. They never found their target either. Searching for an alien does not preclude Constitutional rights.

This is one of the times where I am completely in agreement with you on an issue. But this is reality especially if you live within 100 miles of the border with Mexico. You will see and go through checkpoints all the time. These checkpoints also have facial/car/license place recognition cameras at EVERY SINGLE ONE OF THEM. Also if you go from Los Angeles/San Diego to Los Vegas or anywhere out of SoCal on the highways they have those cameras set up as well monitoring everything FYI.

[yuna628 9,671]

41 minutes ago, Italian_in_NYC said:

These searches are against the IV Amendment. And the Constitution trumps any Federal law, so I'm against this. And you could refuse to be searched without probable cause (which they obviously do not have).

Deportation of the overstay is good though. That's why most (legit) applicants in the world go through hell to get a visa.

This was brought up a few times by lawyers on a radio show talking about the case (the plane one) at the time iirc. They were asked what rights, if any, did they have to refuse to show an ID if asked in such a way by CBP (and it's not really asking.. it's demanding). They sort of said, you did have the right to refuse - but it was a gamble as to what the CBP would do next... there were serious concerns about that.

4 minutes ago, cyberfx1024 said:

This is one of the times where I am completely in agreement with you on an issue. But this is reality especially if you live within 100 miles of the border with Mexico. You will see and go through checkpoints all the time. These checkpoints also have facial/car/license place recognition cameras at EVERY SINGLE ONE OF THEM. Also if you go from Los Angeles/San Diego to Los Vegas or anywhere out of SoCal on the highways they have those cameras set up as well monitoring everything FYI.

I can sort of understand border checkpoints to a degree, even though I don't agree with the practice without probable cause... and I believe they are intentionally trying to skirt the law...

I don't want this to be a place where it's the norm everywhere.

[Italian_in_NYC 259]

18 minutes ago, cyberfx1024 said:

According to the SC it's not against the law because they are not searches at all, they are just checkpoints.

You do not have to show any ID. You do not even have to carry it (unless it's a driver's license and you are driving, obviously).

You can refuse to answer any questions at those so-called checkpoints. You are free to go unless they detain you. And of course they have no legal ground (probable cause) to detain you.

[Cyberfx1024 7,980]

2 minutes ago, Italian_in_NYC said:

You do not have to show any ID. You do not even have to carry it (unless it's a driver's license and you are driving, obviously).

You can refuse to answer any questions at those so-called checkpoints. You are free to go unless they detain you. And of course they have no legal ground (probable cause) to detain you.

Good luck trying this at a checkpoint because they will detain you for "further questioning"

[Italian_in_NYC 259]

1 minute ago, cyberfx1024 said:

Good luck trying this at a checkpoint because they will detain you for "further questioning"

They need to have probable cause too for further questioning. And they can't detain you. You could sue them and it would be an easy win (although meaningless).

This is (not yet) a police state.

[Boiler 45,467]

I had something like this happen when I was on a bus, lot further than 100 miles from the coast, bust stopped, everybody's papers checked. Seemed a regular thing.

[TBoneTX 45,266]

Be careful, folks -- there's something called the "border-search exception" to the Fourth Amendment.

It even applies to travelers heading southbound, into Mexico.

This is why the 100-mile border area (esp. southern) is called "the De-Constitutionalized Zone."

Most CBP agents (at POE or inland) are in foul moods and are looking to nail somebody.

In particular, do everything in your power (as a USC!) to avoid the inland checkpoint south of Alpine, TX.

(Incidentally, as to an earlier observation:  Houston is not part of the inland-checkpoint area.)

 

Here are some cut/pasted examples of what we're talking about.  In some cases, the URLs are no longer active.

============================

Interesting, and still on-line:

http://blog.wired.com/27bstroke6/2008/10/aclu-assails-10.html

 

---

The link is dead, but this appeared in the Alpine (TX) Avalanche:

 

Cited 2009 Apr 28

 

 

Agents at Presidio pick up man wanted in Missouri murder

 

U.S. Customs and Border Protection (CBP) officers and Border Patrol agents working at the Presidio port of entry nabbed a man wanted in connection with a Missouri homicide investigation late Saturday night. The man was stopped as officers and agents were performing inspections of people attempting to leave the United States and enter Mexico at the remote West Texas international border crossing.

 

“The suspect was just yards away from making it to Mexico when CBP officers made the apprehension,” said John Prewit, Presidio port director with CPB.

 

At approximately 10:20 p.m. Saturday, a man driving a black 1995 Jeep Wrangler was stopped after CBP officers determined that the vehicle had been reported stolen in Kirksville, Mo., Prewit said.

 

Officers then initiated a query on the driver, 33-year-old Stephen H. Palmer, and discovered that he was being sought by authorities in Pike County, Mo., in connection with a house fire that had killed a man Thursday.

 

Palmer was taken into custody without incident, the Border Patrol said.

 

CBP officers confirmed the warrant information with law enforcement officials at the Pike County Sheriff’s Office.

 

Palmer was turned over to the custody of the Presidio County Sheriff’s Office and booked into the Presidio County Jail to await extradition to Missouri.

 

“CBP officers routinely perform outbound inspections looking for people who are smuggling money, weapons and ammunition out of the country. These exams also result in the apprehension of numerous fugitives,” Prewit said.

 

“Name queries and thorough inspections often generate significant fugitive apprehensions for CBP officers working at border ports of entry,” he added. “It is part of the CBP mission to keep this country safe.”

 

CBP officers screen all people, vehicles, and goods entering the United states, while facilitating the flow of legitimate trade and travel into and out of the United States. Their mission also includes carrying out traditional border-related responsibilities, including narcotics interdiction, enforcing immigration law and protecting the nation’s food supply and agriculture industry from pests and diseases. While anti-terrorism is the primary mission of CPB, the inspection process at the ports of entry associated with this mission results in large numbers of enforcement actions in all categories, Prewit said.

----- end Avalanche article -----

 

About 9 years ago, a law firm extracted this from the CBP Training Manual.  "INS" is still referred to, but one imagines that the instructions are the same:

 

http://www.millerlawoffices.com/publicatio... 1 2008.pdf

 

12.1 Inspection of U.S. Citizens.

When you are convinced that an applicant for admission is a citizen of the United States, the examination is terminated. This is not to say that your role as an inspector is always completed at that time. Listing of the subject in a lookout system may dictate further action, such as notifying Customs or another agency of the person’s entry.

It must be emphasized that the grounds of inadmissibility contained in 212(a) of the INA are applicable only to aliens. Consequently, the examination of a person claiming to be a United States citizen is limited to matters required to establish present citizenship. Once you are satisfied the person being examined is a U.S. citizen and any required lookout query has been completed, the examination is over.

 

Temporary detention of a U.S. citizen for extensive questioning generally requires reasonable suspicion that the person is involved in illegal activity. Inspectors cross-designated to perform Customs inspections may, of course, continue questioning for Customs purposes. If probable cause to arrest the U.S. citizen cannot be developed within a reasonable period of time, the person must be released.

 

---

 

18.5 Arrests Based on IBIS or National Crime Information Center (NCIC) Information.

(a) Outstanding Federal Warrant. Authority to arrest is limited to agency statutory arrest authority. An officer should verify that a warrant is still valid and that the person to be arrested is the person specified on the warrant. The officer need not have the warrant in possession at the time of the arrest, but upon request the officer is required to show the warrant to the suspect as soon as possible. If the officer does not have the warrant at the time of the arrest, the officer should inform the suspect of the offense charged and of the fact that a warrant has been issued. See Rule 4(d)(3), Federal Rules of Criminal Procedure.

 

Should you discover that a person you have detained has an outstanding Federal warrant for a crime outside the scope of your statutory authority, you may detain the individual until an officer or agent with the proper authority can make the ‘official’ arrest. This could be either a Federal or state officer.

 

(b) Outstanding State Warrants. No Federal statute authorizes an arrest by a Federal law enforcement officer based on an outstanding state warrant. Federal officers making such an arrest are arresting either as a peace officer or a citizen depending on the law of the state in which the arrest is made.

 

However, when a person moves or travels in interstate or foreign commerce with the intent either:

to avoid prosecution, or custody or confinement after conviction for a felony under the laws of the place from which the fugitive flees, or to avoid giving testimony in any felony criminal proceeding, or to avoid service of, or contempt proceedings for alleged disobedience of lawful process requiring attendance, that person has committed a Federal felony under 18 U.S.C. § 1073.

 

The better practice is to detain an individual for a reasonable period of time until state or local police officers can effect an arrest. When you call the state or local police officers, ask them if they want you to hold the suspect for them. If they say yes, state law may give you additional authority because of their request.

If an individual is detained beyond a reasonable time because of delay in the arrival of state or local police, the Federal officer will have, in fact, arrested the individual. Authority for that arrest will be based on state law and the existence of the outstanding warrant will provide the necessary probable cause.

 

18.6 Warrantless Searches and Seizures.

(a) Border Searches. Routine searches by INS officers at an international border or the “functional equivalent” (International Airports) may be conducted without a warrant or probable cause. The interrogation and search of individuals and their effects at the border without probable cause or a warrant, is considered reasonable under the fourth amendment.

INS officers may interrogate individuals to determine admissibility without reasonable suspicion or probable cause. However, border searches are subject to constitutional limitations. Searches of persons, particularly body cavity searches and similar intrusive procedures, require some level of suspicion under the fourth amendment. Routine searches of persons or things may be made upon their entry or exit in or from the country without probable cause or a search warrant. The border search authority extends to all persons or vehicles attempting to enter or seen entering the United States.

 

(b) Extended Border Searches. An extended border search takes place after a person, vehicle, mail or some other property has crossed the border or cleared a prior checkpoint, or a significant amount of time has elapsed since the object first arrived in the United States. An extended search must be justified by “reasonable suspicion” that the subject of the search was involved in criminal activity. An extended border search requires:

reasonable suspicion of criminal activity; reasonable certainty that the vehicle/person crossed the border; and reasonable certainty that the condition of the vehicle/person remained unchanged since the border was crossed (often established through constant surveillance).

 

(c) Functional Equivalent. The broad authority which exists at the international border also extends to areas found to be the “functional equivalent”. An airport which is the destination of a nonstop flight from outside the United States. If there is a mixture of domestic traffic with the international traffic, then the location will not be considered a functional equivalent. If there is any question of whether a particular area is a functional equivalent, an officer should apply reasonable suspicion and probable cause standards for searches and seizures that are applicable to interior locations.

The functional equivalent of the border may be the mouth of a canyon, or the confluence of trails or rivers. The key factor for consideration is whether the person or item entered into the country from outside. Three factors are used to determine whether a location other than the actual border is a “functional equivalent”:

reasonable certainty that a border crossing has occurred; lack of time or opportunity for the object to have changed materially since the crossing; and execution of the search at the earliest practical point after the actual crossing.

 

(d) Entry of Lands Within 25 Miles of the Border. Immigration officers may enter private lands, but not dwellings, within 25 miles from any external boundary of the United States for the purpose of “patrolling the border to prevent illegal entry of aliens into the United States” as “conducting such activities as are customary, or reasonable and necessary, to prevent the illegal entry of aliens into the United States.

A dwelling is protected under the fourth amendment of the constitution and entry should only occur with consent, exigent circumstances, or a properly executed search warrant.

As to private lands, the officer shall inform the owner or occupant that they propose to avail themselves of their power of access to those lands.

 

(e) Checkpoints. The Border Patrol conducts two types of inland traffic-checking operations: checkpoints and roving patrols. Border Patrol agents can make routine vehicle stops without any suspicion to inquire into citizenship and immigration status at a reasonably located permanent or temporary checkpoint provided the checkpoint is used for the purpose of determining citizenship of those who pass through it, and not for the general search for those persons or the vehicle. Inquiries must be brief and limited to the immigration status of the occupants of the vehicle. The only permissible search is a “plain view” inspection to ascertain whether there are any concealed illegal aliens.

 

In contrast, INS officers on roving patrol may stop a vehicle only if aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion (reasonable suspicion) that the vehicle contains illegal aliens. Absent consent, a more in-depth search requires probable cause for both types of inland traffic-checking operations.

 

18.7 Degrees of Suspicion.

(a) Mere Suspicion. At the border or its functional equivalent, an inspector needs only mere suspicion to justify a search and comply with the requirements of the Fourth Amendment. This is because the person is attempting to enter the United States from abroad and may reasonably be required to demonstrate that the person and his or her belongings are entitled to enter the United States.

 

(b) Reasonable Suspicion. Before an inspector may constitutionally detain a person (non-entry related case), the inspector must have reasonable suspicion that the person is an alien and is illegally in the United States. This higher degree of suspicion arises generally in questioning persons encountered in and around the port who are awaiting persons referred to secondary. This suspicion is based on questioning of alienage alone and also involves specific articulable facts, such as particular characteristics or circumstances which the inspector can describe in words.

 

(c) Probable Cause. Probable cause is the degree of suspicion which an inspector must have before constitutionally making an arrest under either civil or criminal law. An inspector has probable cause to arrest or search if evidence and circumstances which would lead a reasonable person to believe that an offense has been or is being committed are known by the inspector.

 

---

21.1 Land Border Inspection Procedures.

 

(c) In your role as primary officer, you must rely heavily on your powers of observation. On the vehicular lanes, as you clear one vehicle and turn to watch the next approach, you make several determinations in the short time it takes for the vehicle to stop. [WITHHELD] In most cases you will determine almost immediately if you will be referring the vehicle for a secondary inspection. In other cases, the occupants may initially appear to be admissible, but their responses to your questions, combined with your observations, may indicate that further inspection is required. A conversational knowledge of Spanish for officers assigned to the Mexican border or French, for officers assigned to some Canadian border ports, is essential.

 

(d) As a primary officer dealing with pedestrians, you can learn by observing arriving persons (especially during very heavy traffic periods) as they approach the inspection point. [WITHHELD] may all have some bearing on the determination that you make as to admissibility.

 

(g) (1) You must then determine the nationality and admissibility of each applicant for admission as well as obtain an oral CBP declaration from the operator of each vehicle and other persons as may be indicated. Based on the answers to questions asked and your observations of the occupants of the vehicle, you must determine immediately whether an in-depth inspection is required. If you are satisfied that all of the Federal requirements have been met, you will admit the vehicle/and or persons.

(2) (A) In determining which oral claims to accept as is, an officer may rely on the confidence of the applicant’s demeanor and English language ability. Veteran officers rely upon their developed questioning skills, recognition of applicants, and past experience to conduct an effective inspection.

----- END OF LAW-FIRM'S EXTRACT -----

 

 

---

A lot of snippets from court rulings about border-searches:

 

        Border Searches.-- "That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.''\87\ Authorized by the First Congress,\88\ the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops.\89\  Moreover, while prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis,\90\ Terry protections as to the length and intrusiveness of the search do not apply.\91\

 

        \87\United States v. Ramsey, 431 U.S. 606, 616 (1977) (sustaining search of incoming mail). See also Illinois v. Andreas, 463 U.S. 765 (1983) (opening by customs inspector of locked container shipped from abroad).

        \88\Act of July 31, 1789, ch.5, Sec. Sec. 23, Sec. 24, 1 Stat. 43. See 19 U.S.C. Sec. Sec. 507, 1581, 1582.

        \89\Carroll v. United States, 267 U.S. 132, 154 (1925); United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971); Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973).

        \90\United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (approving warrantless detention incommunicado for more than 24 hours of traveler suspected of alimentary canal drug smuggling).

        \91\Id. A traveler suspected of alimentary canal drug smuggling was strip searched, and then given a choice between an abdominal x-ray or monitored bowel movements. Because the suspect chose the latter option, the court disavowed decision as to "what level of suspicion, if any, is required for . . . strip, body cavity, or involuntary x-ray searches.'' Id. at 541 n.4.

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        Inland stoppings and searches in areas away from the borders are a different matter altogether. Thus, in Almeida-Sanchez v. United States,\92\ the Court held that a warrantless stop and search of defendant's automobile on a highway some 20 miles from the border by a roving patrol lacking probable cause to believe that the vehicle contained illegal aliens violated the Fourth Amendment. Similarly, the Court invalidated an automobile search at a fixed checkpoint well removed from the border; while agreeing that a fixed checkpoint probably gave motorists less cause for alarm than did roving patrols, the Court nonetheless held that the invasion of privacy entailed in a search was just as intrusive and must be justified by a showing of probable cause or consent.\93\ On the other hand, when motorists are briefly stopped, not for purposes of a search but in order that officers may inquire into their residence status, either by asking a few questions or by checking papers, different results are achieved, so long as the stops are not truly random. Roving patrols may stop vehicles for purposes of a brief inquiry, provided officers are "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion'' that an automobile contains illegal aliens; in such a case the interference with Fourth Amendment rights is "modest'' and the law enforcement interests served are significant.\94\ Fixed checkpoints provide additional safeguards; here officers may halt all vehicles briefly in order to question occupants even in the absence of any reasonable suspicion that the particular vehicle contains illegal aliens.\95\

 

        \92\413 U.S. 266 (1973). Justices White, Blackmun, Rehnquist, and Chief Justice Burger would have found the search reasonable upon the congressional determination that searches by such roving patrols were the only effective means to police border smuggling. Id. at 285. Justice Powell, concurring, argued in favor of a general, administrative warrant authority not tied to particular vehicles, much like the type of warrant suggested for noncriminal administrative inspections of homes and commercial establishments for health and safety purposes, id. at 275, but the Court has not yet had occasion to pass on a specific case. See United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976).

        \93\United States v. Ortiz, 422 U.S. 891 (1975).

        \94\United States v. Brignoni-Ponce, 422 U.S. 873 (1975).

However, stopping of defendant's car solely because the officers observed the Mexican appearance of the occupants was unjustified. Id. At 886. Contrast United States v. Cortez, 449 U.S. 411 (1981), where border agents did have grounds for reasonable suspicion that the vehicle they stopped contained illegal aliens.

        \95\United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The Court deemed the intrusion on Fourth Amendment interests to be quite limited, even if officers acted on the basis of the Mexican appearance of the occupants in referring motorists to a secondary inspection area for questioning, whereas the elimination of the practice would deny to the Government its only practicable way to apprehend smuggled aliens and to deter the practice. Similarly, outside of the border/aliens context, the Court has upheld use of fixed "sobriety'' checkpoints at which all motorists are briefly stopped for preliminary questioning and observation for signs of intoxication. Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990).

 

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[[Page 1245]]

 

        "Open Fields.''--In Hester v. United States,\96\ the Court held that the Fourth Amendment did not protect "open fields'' and that, therefore, police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause. The Court's announcement in Katz v. United States\97\ that the Amendment protects "people not places'' cast some doubt on the vitality of the open fields principle, but all such doubts were cast away in Oliver v. United States.\98\ Invoking Hester's reliance on the literal wording of the Fourth Amendment (open fields are not "effects'') and distinguishing Katz, the Court ruled that the open fields exception applies to fields that are fenced and posted. "[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.''\99\ Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside.\100\ Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a 10- foot high fence in order to screen the area from ground-level view, there is no reasonable expectation of privacy from naked-eye inspection from fixed-wing aircraft flying in navigable airspace.\101\ Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy.\102\ And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling.\103\

 

        \96\265 U.S. 57 (1924). See also Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 86 (1974).

        \97\389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S. 433, 450 (1973) (citing Hester approvingly).

        \98\466 U.S. 170 (1984) (approving warrantless intrusion past no trespassing signs and around locked gate, to view field not visible from outside property).

        \99\Id. at 178. See also California v. Greenwood, 486 U.S. 35

(1988) (approving warrantless search of garbage left curbside "readily accessible to animals, children, scavengers, snoops, and other members of the public'').

        \100\United States v. Dunn, 480 U.S. 294 (1987) (space immediately outside a barn, accessible only after crossing a series of "ranch-style'' fences and situated one-half mile from the public road, constitutes unprotected "open field").

        \101\California v. Ciraolo, 476 U.S. 207 (1986). Activities within the curtilage are nonetheless still entitled to some Fourth Amendment protection. The Court has described four considerations for determining whether an area falls within the curtilage: proximity to the home, whether the area is included within an enclosure also surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to shield the area from view of passersby. United States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside fence surrounding home, used for processing chemicals, and separated from public access only by series of livestock fences, by chained and locked driveway, and by one-half mile's distance, is not within curtilage).

        \102\Florida v. Riley, 488 U.S. 445 (1989) (view through partially open roof of greenhouse).

        \103\Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (suggesting that aerial photography of the curtilage would be impermissible).

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        "Plain View.''--Somewhat similar in rationale is the rule that objects falling in the "plain view'' of an officer who has a right to be in the position to have that view are subject to seizure without a warrant\104\ or that if the officer needs a warrant or probable cause to search and seize his lawful observation will provide grounds therefor.\105\ The plain view doctrine is limited, however, by the probable cause requirement: officers must have probable cause to believe that items in plain view are contraband before they may search or seize them.\106\

 

        \104\Washington v. Chrisman, 455 U.S. 1 (1982) (officer lawfully in dorm room may seize marijuana seeds and pipe in open view); United States v. Santana, 427 U.S. 38 (1976) ("plain view'' justification for officers to enter home to arrest after observing defendant standing in open doorway); Harris v. United States, 390 U.S. 234 (1968) (officer who opened door of impounded automobile and saw evidence in plain view properly seized it); Ker v. California, 374 U.S. 23 (1963) (officers entered premises without warrant to make arrest because of exigent circumstances seized evidence in plain sight). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 464-73 (1971), and id. at 510 (Justice White dissenting). Maryland v. Buie, 494 U.S. 325 (1990) (items seized in plain view during protective sweep of home incident to arrest); Texas v. Brown, 460 U.S. 730 (1983) (contraband on car seat in plain view of officer who had stopped car and asked for driver's license); New York v. Class, 475 U.S. 106 (1986) (evidence seen while looking for vehicle identification number). There is no requirement that the discovery of evidence in plain view must be "inadvertent.'' See Horton v. California, 496 U.S. 128 (1990) (in spite of Amendment's particularity requirement, officers with warrant to search for proceeds of robbery may seize weapons of robbery in plain view).

        \105\Steele v. United States, 267 U.S. 498 (1925) (officers observed contraband in view through open doorway; had probable cause to procure warrant). Cf. Taylor v. United States, 286 U.S. 1 (1932) (officers observed contraband in plain view in garage, warrantless entry to seize was unconstitutional).

        \106\Arizona v. Hicks, 480 U.S. 321 (1987) (police lawfully in apartment to investigate shooting lacked probable cause to inspect expensive stereo equipment to record serial numbers).

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        The Court has analogized from the plain view doctrine to hold that once officers have lawfully observed contraband, "the owner's privacy interest in that item is lost,'' and officers may reseal a container, trace its path through a controlled delivery, and seize and reopen the container without a warrant.\107\

 

        \107\Illinois v. Andreas, 463 U.S. 765, 771 (1983) (locker customs agents had opened, and which was subsequently traced). Accord, United States v. Jacobsen, 466 U.S. 109 (1984) (inspection of package opened by private freight carrier who notified drug agents).

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