Saturday, September 25, 2010

More Law: Refusing To Answer Questions At U.S. Passport Control

Hanoi, Vietnam

1. CBP Officers Have Acknowledged The Right of U.S. Citizens To Remain Silent. Lost in the many comments is the fact that, at the end of my silent entry into the United States, a CBP officer -- who was the oldest and seemingly most educated and experienced of the CBP officers -- said, "Just inspect his bags. He has a right to remain silent.”

Another CBP officer has admitted as much on a CBP message board. CBP employee "onemoreshot" posts:

what a delta bravo... looks like one too. It's sad he doesnt realize how much quicker he could be on his way if he just answered the question.

Also sadly, he is right. Once someone proves they are a USC, all we can do is inspect their bags/conveyance, and absent anything derogatory being found, we cant force them to answer questions. Non-USC's do it, back home you go. They did that and he was off, but he made it a lot harder than need be.

Another CBP poster in the same thread discussed the refusal to answer the question "Did you pack your bags yourself?":

In baggage, him refusing to answer whether or not he packed the bags or if everything in that bag is his could have some legal implications. Lets say you open the bag and find dope but you never got a verbal declaration that those were his bags. Be aware that something like could get your case tossed by the USA.

The questions CBP asks are not innocuous. They are designed to trick citizens into making incriminatory statements. If someone were to sneak prohibited material into your baggage, and you verbally admitted that you packed the bag, you are now in a world of hurt. If you had said nothing, you would have preserved a potential defense.

Silence is the best protection when dealing with CBP.

2. A U.S. Citizen's Fourth Amendment Rights Against Unreasonable Searches and Siezures Are Limited -- But Are Not Nullified -- At The Border. Many commenters confuse CBP's augmented border search authority with a right to interrogate. This conflation is understandable, since CBP goes out of its way to blur the distinction.

In short, the law currently says that a U.S. citizen's Fourth Amendment rights against an unreasonable search and seizure are limited at the border (or its equivalent in an airport) -- but they are not eliminated. Usually, your bags and your laptop can be searched in the airport even if the CBP officer has no suspicion of wrongdoing. The U.S. Supreme Court left open the possibility that some searches of property at the border are so intrusive as to require particularized suspicion or a warrant -- and I hope the Supremes place laptop searches into that category when they ultimately rule on this issue. But the bottom line is that the Fourth Amendment is weak at the border.

But it's not gone. The cavity searches that people love to joke about may only be conducted by CBP with reasonable and particularized suspicion that the traveller has swallowed contraband. It wouldn't be reasonable to order such a search solely because a traveller refused to answer questions, and a CBP officer who so ordered would be exposing himself and the agency to monetary liability.

The Fourth Amendment is concerned with protecting physical objects -- it refers to
"the right of the people to be secure in their persons, houses, papers, and effects" -- from nosy government eyes. If a policewoman wants to read the diary you keep in your bedroom, she is going to have to show cause and obtain a warrant from a judge.

3. Returning U.S. Citizens Retain Their Fifth Amendment Right To Silence. Some lawyerly commenters have noted that, when CBP forces a traveller to stand at its kiosks, the traveller is not under full, must-read-Miranda arrest. At many U.S. airports (depending on the federal appellate circuit in which the airport is located), this makes no difference.

Although the lower courts have issued conflicting decisions, the judicial trend is to hold that pre-arrest silence is entitled to Fifth Amendment protection. And, as a practical matter, what a returning U.S. citizen doesn't say is far less likely to boomerang than what she does say.

Here's a quick summary of the Fifth Amendment protections available to people who, like returning U.S. citizens, are subject to some form of law enforcement questioning:

We believe that application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime. The Supreme Court has given the privilege against self-incrimination a broad scope, explaining that it can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used . . . . See also Hoffman v. United States ("The privilege must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer."); Hoffman ("To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."). In a prearrest setting as well as in a post-arrest setting, it is clear that a potential defendant's comments could provide damaging evidence that might be used in a criminal prosecution; the privilege should thus apply.

Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000) (collecting cases ruling on both sides of the issue of use of pre-arrest silence as substantive evidence of guilt; edited for readability).

This describes CBP questioning. The returning citizen's answers could provide damaging evidence in a criminal prosecution. The entire point of the CBP interview is to obtain damaging evidence. Consequently, the Fifth Amendment right to silence applies.

4. CBP And Its Supporters Need To Stop Conflating These Two Separate Concepts. The comments are riddled with people invoking the Fourth Amendment border search exception and then making the illogical, unfounded and unlawful conclusion that a citizen must answer CBP questions.

There is no legal authority for this novel proposition. These are two different amendments which protect different dignities, and the reasoning behind the border search exception -- to enforce customs and tariff laws -- does not counsel in favor of a corresponding loosening of Fifth Amendment rights. If anything, the law enforcement nature of CBP questioning increases the need for Fifth Amendment protections.

This confusion is caused in part by CBP's propaganda. CBP loves to talk about citizens "cooperating" -- a term which means "waive your rights." CBP brochures and websites describe CBP's broad search powers and cite to statutes and regulations promulgated incident to that search authority, but none of these rules repeal -- or could repeal -- a returning citizen's constitutional right to silence. (I can't currently link to a typical CBP page, because I'm getting the "There is a problem with this website's security certificate" result.)

If a CBP supporter can cite a court decision holding that a returning U.S. citizen has no right to silence at the border, I'm happy to review and discuss the decision. But the burden of persuasion falls on the party arguing that, in a certain situation, U.S. citizens lose a constitutional right.

5. Semi-Ironic CBP Silence. In the last two weeks, I've twice asked the head of public affairs for CBP's admissibility programs for an official statement regarding the right of U.S. citizens to decline to answer CBP's questions. CBP has not provided me with a substantive response.



Anonymous Anonymous said...

Ooh … big freaking deal. You refused to answer their questions and instead of spending 5 minutes in the airport like everyone else you spent 30 minutes. Unfortunately, CBP officers just like cops are a necessary evil. If people could get along with their neighbor we would not need law enforcement. I know your type. You are the first one to complain about cops and the first one to ask for cops when someone is MEAN to you. You are the type that thinks that the law should apply to everyone else except you. As I am sure you can tell I was not born over here. You don’t have the first idea what government abuse is.

8:34 AM  
Blogger Dave Sailer said...

Thank you once again. I know of no one else really addressing these situations, but I do know that it is almost always ordinary people "just following the law" or "just trying to get through the day" who do the most evil in the end. We can all be better than that.

10:24 AM  
Blogger Neil said...

I thought it was disturbing how the CBP officer that commented said that you "sadly" had the right to remain silent. What is truly sad is that so many Americans disparage the rights that American servicemen and women have fought and died for throughout the history of our nation.

It is sad that American government agencies would become angry with us or seek to inconvenience us for exercising those rights.

It is sad that Americans call names and become infuriated at the thought of another American exercising his rights as an American.

It is sad that Americans are so quick to encourage other Americans to relinquish their rights because a law enforcement officer wants or orders them to.

You have the freedom of speech. They say, "No, you must only speak words approved of by the State."

You have the right to remain silent. They say, "No, don't remain silent. You must answer all question asked by the State!"

You have the right to keep and bear arms. They say, "No, don't bear arms. Give them to the State for a small monetary return."

You have the right to assemble with people of your choosing. They say, "No, don't assemble. Gather only with those approved of by the State!"

You have the right to be secure in your person and property. They say, "No, what have you to hide? Let the State look in every house, drawer, car, pocket and orifice."

You have the right to worship God. They say, "No, don't worship God. worship the State only!"

You have the right to exercise your rights as an American. They say, "No, don't be such a rude, uncooperative, ungrateful, unpatriotic, douche-bag. Don't exercise your rights. Waive your rights. Let the State do things to you that you have the right to resist and refuse. It is for your own good, you know? The State is only doing its job: keeping us all safe from bad people. If we're not safe, then we can't be free, you know? Why don't you just be polite and answer the question like a good American should? We need to get home to watch 'Jersey Shore' tonight."

God help us all. God help the United States of America.

10:49 AM  
Anonymous Anonymous said...

Thanks for these posts Paul. I got on some kind of CBP list in 2002 because I had a printout of a Lew Rockwell article on me when I drove to a ski resort in Canada. I had been naive enough to think of border posts as just the friendly, perfunctory border stations that I knew in New England growing up, where they barely ever even stopped you or asked for your license. So I drove through a crossing in Montana without preparation or any concern for what I had on me. Big mistake. The LRC article triggered a ransacking of my van, which turned up a draft of a short story I was working on that had the word "cocaine" in it. I wouldn't have thought crossing the border with the word "cocaine" written down was an act of terrorism, but ever since I've been singled out and subjected to the total Guantanamo treatment when crossing a US border in airports and on the way to Canada. It's been difficult, and I've been growing increasingly reluctant to travel internationally because of the inevitable confrontation at the US border. I've actually become kind of an expert on CBP questioning. Most officers are not very bright and can't really pull it off, but what they are trying to do is dishonestly ask you a series of bogus questions, the premises of which are different than what you just told them, to try and trip you up and trap you in some kind of inconsistency. Sometimes when they're questioning you, you can practically see the gears turning and you can amuse yourself by trying to recreate the training seminar where they learned this stuff. Here's an example:

Q: What city did you visit in Canada?

A: Vancouver.

Q: Oh, so how was Butchart Gardens?

A: Yes officer, I lied when I told you I went to Vancouver. Actually, I went to Victoria and saw Butchart Gardens, which are lovely this time of year. Ok, take me to Gitmo.

Anyhow, I'm totally stoked about what I've read about my rights at the border in your CBP posts, and by following the links, and I'm tempted to book a flight right now just for the satisfaction of asserting my right to stand silent when some CBP punk with a room temperature IQ starts interrogating me. I can't wait to see the looks on their faces when I say "None of your business," and hand them a printout of your post and that forum post where they admit that you don't have to say anything. Thank you thank you thank you. --A fan.

12:40 AM  
Anonymous Anonymous said...

If you ever get an audience with CBP - can you ask them why they ask the question, "what were you doing in (insert foreign country)? What are they interested in hearing?

9:01 AM  
Blogger G Wolf said...

So then what would you recommend one does when face to face with a CBP agent? Do we just stand there, saying absolutely nothing, looking like we're ignoring them? Do we not even answer their basic questions? I would appreciate some guidance about this please.

10:42 AM  
Blogger Sunshine said...

I've been hassled every time I enter the US from Mexico. I've lived in Mexico for 3 years now, and the past month I've been sent to secondary inspection and been held for at least an hour each and every time. I cross over into the Us 2 times a week. Every time i am sent to inspection. They take my passport and throughly inspect my vehicle. I've asked for explainations and all CBP tells me is I need to get a copy of my FOIA file. WTF?
I am asked what my husband does for a living, why do I live in Mexico, what do I do for a living, do I have older sisters? I'm asked where am I headed. Where in the US am I going, What are my rights here. To be stopped4 consecutive times in a row. That is not acceptable. Then to be held for over an hour each time? What can I do?

12:12 PM  
Anonymous Anonymous said...

First off: thanks for taking the time and hassle to assert your rights. It's really admirable.

It seems clear that CBP is logging this information yet cannot do anything to stop you re-entering the country; what I wonder is whether they share this info with other countries' entry authorities. I imagine the UK would be quick to use this fact to blacklist you, and over there you'd be on much shakier legal ground. When my brother moved to the UK from the US for a new job, his employer made a mistake in his paperwork, triggering a long stay in secondary and a forced flight back to the States. Even after fixing it and moving there on a valid visa, he is told every time he comes and goes that because his name "is on the list," the entry agents are just doing him a favor by not locking him up and sending him back to the US. Do you ever worry that your refusal to answer questions could lead to a similar blacklisting in other countries?

1:38 AM  

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