"Reasonableness" and Police Power

In the study of the Fourth Amendment, the question of "reasonableness" is the key to the constitutionality of search and seizure practices. In the next section of this paper, "reasonableness" and its relation to the warrant clause of the Fourth Amendment is examined. In the balance between rights/reasonableness and police power the courts have clearly upheld an expansion of the police power.

At which point does a police presence in an area make warrantless searches unreasonable? Is the imposition of force, in a single city, of many hundreds of border patrol agents and military (thousands including all governmental personal on the border) so intrusive that it, becomes unreasonable? Are the many hundreds of weekly stops by roving Border Patrol agents so intrusive as to be unreasonable?

The Fourth Amendment states, "The right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause...ä The "Reasonableness Clause" of the Fourth, is often subjugated to "Warrant Clause' by the courts in nearly every border search case. By making most border search warrantless and reasonable, the courts have open the door to a police presence in an area scarcely known in American history.

To demonstrate the degree to which the number of police in the region grows, one only need to look at reports in the popular media. The Arizona Daily Star reported on June 12, 1998.

The Tucson sector, which has grown from about 280 agents to more than 900 in five years, will add 240 more by September. More than 3,000 agents have been added to the Border Patrol since 1993, when its ranks numbered about 3,400. Congress has committed to adding 1,000 more each year through the year 2000, said U.S. Border Patrol Chief Gustavo de la Via.

Senator Jon Kyl of Arizona put out a press release recently which took credit for the massive increase in the police presence at the border. It said:

WASHINGTON, D.C.- February 23, 1998 ÷ The U.S. Senate approved measures by Senator Jon Kyl (R-Arizona) to beef up the U.S. Border Patrol and the drug-fighting capabilities of federal and local law enforcement agencies today when it passed the Senate Commerce-Justice-State Appropriations bill with a 99-0 vote. Included in the bill is $104 million to hire 1,000 new Border Patrol agents to combat illegal immigration, crime and drugs along the border -- satisfying the requirement established by Senator Kyl in the 1996 immigration reform bill that 5,000 new agents be added to the border between 1997 and the year 2001. (Sen. Jon Kyl Thursday, July 23, 1998).

The actions of the Border Patrol to expand its numbers reveal the extent to which it believes police can solve the immigration and drug problem. The Immigration and Naturalization Service (INS) is also on the increase. As CNN reported on January 25, 1998 :

Thanks to the growing national concern over immigration, the nation now has more immigration officers authorized to carry a gun and make arrests than it has FBI agents.
Led by a 31 percent increase at the Immigration and Naturalization Service, the number of armed federal agents with arrest power rose to 74,500 by mid-1996, the Justice Department reported Sunday.
The INS had 12,403 agents in 1996, compared to 10,389 at the FBI, according to the survey.(CNN.COM, http://cnn.com/US/9801/25/briefs.pm/federal.lawmen/index.html)

An example of the police state tactics of the border patrol is "Operation Gatekeeper. The INS and the Border Patrol recently announced a "partial victory" in the war on illegal immigration. On October 16, 1997, a CNN report characterized the Border Patrol's Operation Gatekeeper thusly:

Mexican illegal immigrants risk their lives to cross the border into the United States, while U.S. Border patrol agents will struggle to the death to keep them out. And while illegal immigrants may yell "freedom" as they cross the border into the United States, for many, that freedom is becoming harder to come by. Operation Gatekeeper, instituted along San Diego's border with Tijuana, Mexico, is one such attempt to close down the border. The 14-mile fence, policed by almost 3,000 border patrol agents and armed with the latest technology, has curbed illegal immigration by more than 40 percent, according to the Immigration and Naturalization Service. http://cnn.com/U.S./9710/09/operation.gatekeeper/index.html
(Or hear also a NPR report on operation gatekeeper at: http://www.npr.org/ramarchives/nc7m1301-12.ram )

The Arizona Daily Star reported on April 13, 1998 about Operation Gatekeeper's affect on the Tucson Border Patrol sector that,

U.S. Border Patrol officials say ... the force that has roughly doubled since 1993 has failed to put a dent in the number of people trying to illegally enter the United States from Mexico. Apprehensions are running at a record pace this year, while the number of illegals successfully entering the country hasn't changed, according to federal estimates.

The laws which authorize Border Patrol actions demonstrate the willingness of the US Congress to make the Fourth second to the War on drugs. The Border Patrol and INS have wide investigation and enforcement powers. They enforce federal immigration and naturalization laws under 8 U.S.C. §§ 1225, 1357; 8 C.F.R. §§ 100.2(f),103.l(q), and 287. 1 et seq. Federal law authorizes Border Patrol officers to make warrantless arrests based on probable cause for "any felony cognizable under the laws of the United States," but only "if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest." (8 U.S.C. # 1357(a)(5)(B).)

The law also gives the Border Patrol the power to search·

within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States. (8 U.S.C. # 1357(3)).

The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. When Border Patrol agents conduct a search on a location other than the border or its functional equivalent, they are governed by ordinary Fourth Amendment restrictions. (United States v. Brennan (5th Cir. 1976) 538 F.2d 711, 716 719.). These statutes have been the subject of many cases to the US Supreme Court Nearly all which have expanded police power, especially in the border region.

previous pageReturn to title pagenext section