Crossing the Border: What You Need to Know about ICE and Your Constitutional Rights

Every single day, around a million people cross the border between the US and Mexico, in both directions. South Florida is the home of many international travelers and immigrants. More than 50% of the population was born in a foreign country.

If you are in trouble with immigration or customs, it may be a good idea to contact a Miami defense lawyer and to keep reading this blog.

US Customs and Border Protection’s Rules and Regulations

The Fourth Amendment of the Constitution guarantees that you have certain protections from searches and seizures. For the most part, law enforcement needs your consent or a search warrant before they are allowed to search your property. It is more complicated than this, but for right now you should keep that in mind.

In 2014, the Supreme Court ruled on the case Riley v. California. The court held that the police could not seize or search the digital contents of a cell phone during an arrest unless they had a warrant or the owner’s consent. They made one exception, however. If someone is crossing the border, law enforcement may search a phone to protect its national sovereignty.

This decision was upheld in the court case US v. Caballero. Border patrol has taken this as a license to run roughshod over the rights of people everywhere.

This wanton treatment is reflected in US Customs and Border Protection’s internal documents. In a memo concerning the search of electronic devices, the organization has created a few loopholes to exploit and vague terms to allow searches.

The new policy differentiates basic and advanced searches. A basic search is when an agent manually searches a device by using their fingers on the screen. An advanced search would be when an agent uses other devices or software to examine the files, contents, and internal structure of a device.

Basic searches can be done without any suspicion of a crime. Manual searches can be as intrusive as more advanced searches, and they are both looking for the same things. The policy requires travelers to unlock their device at the border, but the legality of this is in question.

Agents are also allowed to conduct an advanced search when they believe that national security is at risk, but this statement has not been defined further.  This broad interpretation grants agents license beyond the scope of many other law enforcement agencies.

Fundamentally, the government is using border security as an excuse to search people they suspect of other crimes without having to worry about violating their rights.

The “Constitution-Free Zone”

Federal laws give US Customs and Border Protection the authority to operate within 100 miles of America’s external borders. While this may not sound like a lot, around 200 million Americans live within 100 miles of a border. As a matter of fact, the entire state of Florida falls within this zone.

Within this zone, Border Patrol is allowed to institute immigration checkpoints, conduct “routine searches” of vehicles, and perform other activities that may be outside the scope of the Constitution. There have been reports of ICE and Border Patrol abuse circulating as well.

Currently, the Electronic Frontier Foundation and the American Civil Liberties Union are pursuing a lawsuit that would grant certain protections to people who are crossing the border. It may be a good idea to keep a close eye on how the case develops.

Our office is closely watching this case as it may ultimately prohibit law enforcement from conducting shady border patrol searches to circumvent the 4th Amendment.  Right now, HSI is exploiting this “Constitution-Free Zone” by conducting sham border searches on suspects they believe to be involved in criminal activity when they don’t have enough to get a warrant and when person would never consent.

If you are in trouble with the law and you believe your rights are being violated, then you may want to contact a Miami defense attorney. They will be able to explain your rights and help you build a defense. Schedule a free consultation today.

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