There are legal advocates and activists in Sanctuary Cities who think that under the Fourth Amendment all searches and seizures of persons in the United States require the state actor to seek and obtain a warrant, supported by probable cause, signed by a judge, before the search or seizure occurs.
The current legal reality is more complex. The rights of human beings in America can nevertheless be strengthened, particularly in Sanctuary Cities.
Analysis of the Fourth Amendment
The case that established how the Fourth Amendment is applied for all persons is Katz v. United States, 389 U.S. 347 (1967).
In that case, a three-part inquiry takes place.
- Does the person expect they have a right to privacy?
- Does society agree that the expectation of privacy is reasonable (on the basis of established principles or property law conceptions)?
- Did the state infringe this right to privacy?
Note that citizenship does not provide the Fourth amendment protection. Neither does non-citizenship status defeat the right.
Relevant Warrant Exceptions
Many exceptions exist to the Katz Fourth Amendment inquiry. Two of them are the border exception and the consent exception. These are discussed in the context of trying to bolster the human rights of persons who live in Sanctuary Cities near borders of the United States. Under the border and consent exceptions, the right to privacy is not found, and these are upheld via caselaw, as well as federal and state regulations under which they are promulgated.
The border exception has been established in various caselaw as existing within 100 miles of the actual border, as well as international ports of entry such as airports. See 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). Authorized by the First Congress, 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. The customs search in these circumstances required no warrant, no probable cause, not even the showing of some degree of suspicion.
However, when further inland, the inquiry is more onerous. “Roving” patrol searches by federal law enforcement (homeland security, immigrations and customs enforcement) have been found not to fall under this border exception even 20 miles inland. Thus in Almeida-Sanchez v. United States, 413 U.S. 266 (1973). 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 lacked probable cause to believe that the vehicle contained illegal aliens. It violated the Fourth Amendment.
But a checkpoint set up within 100 miles of the border would be valid and would not require a search warrant or even probable cause that a crime had been committed or was about to be committed. The fact that a person or item has entered the United States from outside suffices to endow a border search with the reasonableness required by the Fourth Amendment. No additional requirement of probable cause is necessary. State v. Rirard, 57 N.C. App. 672, 292 S.E.2d 174 (1982).
The consent exception also exists in caselaw. Amos v. United States, 255 U.S. 313 (1921); Zap v. United States, 328 U.S. 624 (1946); Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The burden is on the prosecution to prove the voluntariness of the consent, Bumper v. North Carolina, 391 U.S. 543 (1968), and awareness of the right of choice. Johnson v. United States, 333 U.S. 10, 13 (1948).
Where a person waives his right and consents to a search, no warrant or probable cause is required. However, the original detaining that occurred in which consent was requested does require reasonable suspicion (more than a mere hunch) that a crime occurred or was about to occur. A detaining becomes a seizure when the person objectively is not free to walk away, for example, via a show of authority by the state or federal agent. See Terry v Ohio, and Florida v. Royer, 460 U.S. 491, 497 (1983). See also id. at 497 (citing Terry, 392 U.S. at 32–34; United States v. Mendenhall, 446 U.S. 544, 556 (1980)). Further, Constitutional protections are not violated when the individual’s voluntary responses to these inquiries are used as evidence in a subsequent criminal prosecution. Id. at 497 (citing Dunaway v. New York442 U.S. 200, 210, n. 12 (1979))
Stopping someone briefly to ask their name, address and destination, is allowable for federal or state LE agents without a warrant or even probable cause if they can articulate the reason for the brief inquiry. People v. DeBour 40 N.Y.2d 210 (N.Y. 1976) Nearly anything would fall under this umbrella, including suspicion that someone is in this country illegally. A lengthy stop with many questions must be based on reasonable suspicion or safety concerns, and a full search or seizure would require probable cause. Terry v. Ohio392 U.S. 1 (1968), People v. Debour 40 NY.2d 210 (N.Y. 1976).
RECAP
As stated, brief stops by law enforcement, for instance in a Sanctuary city some 12 miles from a border outside a bus station (on the sidewalk) are legal and requests for basic identifying information is also legal. Law enforcement agents requesting consent to search individuals or their property is legal.
Proving non-voluntariness of consent to search is likely difficult in real life.
What can be done? If a city purports to be a Sanctuary City that protects Constitutional rights for its residents and guests, how can the guarantee be strengthened, against random, roving patrols and constant detaining of individuals by federal state and local law enforcement agents, of people who are not even suspected of having committed or being about to commit violent or public health and safety crimes? Who, at most, are suspected of paper status crimes?
POLICY CHANGES:
- One policy change that could be made would be to post signs prominently on bus station walls that announce that The City is a Sanctuary City and that it is every person’s right to refuse consent to a request to search.
- Another sign could advise people that they may always legally ask law enforcement agents if they are free to leave, or if they are being detained. If they are told they are not free to leave, they can ask for an attorney under the Sixth Amendment and state they are exercising their Fifth Amendment right to silence and will not answer further questions. If they are not being detained, they may legally get up and leave.
- Bus drivers could be instructed not to consent to law enforcement boarding a bus without a ticket and requesting to search passengers without the reasonable suspicion required to detain and the probable cause required to search those passengers whenever they are in the Sanctuary City. If the agents insist they can legally board the bus and request passengers consent to search, they must produce a warrant or describe the warrant exception they are using to board and search the bus.
- Further signs could state that Trailways/Greyhound bus property is City-leased and under legitimate property law conceptions, privacy rights for all persons are objectively reasonable, and a warrant is here required for all searches, unless an arrest is made or a relevant warrant exception exists (e.g. plain view, emergency). The signs could state unequivocally, “City leased property will not be construed as the US/Canada border and any warrantless search or seizure without probable cause that takes place here shall be considered an illegal roving patrol search and seizure by state law enforcement agents or by federal agents including DHS or ICE, and will not here fall under a border exception.
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