TexasCHLforum.com

In reply to the original post (OP):

Addressing first the authority of Border Patrol to conduct checkpoint operations, as long as you are within 100 -air miles- of the border, it's kosher. Road miles do NOT count, as I can attest from personal experience that illegals will often walk sometimes great distances before they get picked up by a vehicle or some other method of conveyance. Some will walk very near to that hundred-mile limit, arbitrarily designated in law and precedent. Agree or disagree with the principle, but it's been held up in court as valid.

Border Patrol checkpoints are usually set up at major choke points for routes of egress from the border into the interior of the United States. Interstate and US highways, state highways, and local back roads are all "fair game" for checkpoints; the checkpoint southeast of El Paso is one such choke point, and well within the hundred air miles of the Mexican border. Under the Immigration and Nationalization Act, BP Agents are authorized to stop all traffic at such checkpoints and conduct a brief "immigration inspection" of the persons within each vehicle. Oftentimes, this amounts to a cursory visual inspection, or a brief "are you an American citizen?" HOWEVER, agents are also authorized to enforce ALL federal laws, and investigate apparent violations of such; in this case, this means evidence, or "reasonable suspicion," of a violation is apparent to the agent conducting the immigration inspection. Such "reasonable suspicion" must, by legal precedent, be sufficient not only in the agent's eyes, but articulable by the agent to a judge, and if necessary, a jury, in a court of law.

Note that "reasonable suspicion" does NOT equal "probable cause."

Bloodshot eyes and/or odd behavior certainly can qualify as reasonable suspicion. Under this, agents can "detain" persons appearing at their checkpoint. HOWEVER, standard 4th Amendment probable cause rules still apply. If no probable cause for an arrest can be made, nor permission to search voluntarily given, agents may NOT conduct such an invasive search.

Visual inspections do not count as searches, so long as what's being inspected is visible to the naked eye, with or without a flashlight. Xray, backscatter, and the like are not covered under this, as they reveal things not apparent to "plain view," and are more intrusive. Drug-sniffing dogs are counted the same as visual inspections, as odors are immediately apparent to the dog without any sort of physical intrusion upon a person or property. For purposes of search and seizure, a dog alert is judged in court to be the same as if the agent himself had seen a giant doobie sitting in the ashtray, as they're both immediately apparent to each without physical intrusion.

What it comes down to is, if the agents searched your car without your permission, they either A) Believed they had enough probable cause to conduct the search, that a judge would uphold said search and any discoveries therein, OR B) They were careless, forgot their law training, and went nuts. The little asides spoken to you by the agents, such as "you know weed is illegal," were most probably calculated not to be accusatory, but rather investigatory, trying to gauge your reactions more than the actual content of the questions.

One other note: drug dogs can and do give "false hits." I've seen dogs hit on drugs; I've also seen them hit on food items. While they are generally trained NOT to give alerts to non-drug items, occasionally a dog will give a false positive. And as has been stated, they usually do NOT bark; instead, each dog has its own body language cues that they've discovered contraband, whether it be sitting, sudden excessive wagging, pawing at the vehicle, or some other cue. Each dog is different; what may be a "holy smokes, look at the amount of dope here!" reaction for one dog, may be another's indication that it's hungry. The dogs are also trained to alert to hidden humans; while a person is harder to hide than a brick of marijuana or a bag of cocaine, one might be surprised to see exactly where and how people have concealed themselves.

On the firearms, I've no idea why they unloaded them. But while there may well be some "firearms database," and I certainly do not trust the ATF to not have one somewhere, we have no access to such a filing system. Most of us would spit on it, if we did. I imagine whoever unloaded it was probably instructed to do so by some journeyman, who might have received the same instruction himself when he was new, stretching back to whoever first said it was a good idea "for officer safety." My take on it: if you're a crook, and separated from the gun, then you can't shoot me anyways. If I'm going to arrest you for some crime, I'll unload the gun for transport. But if I'm just going to cut you loose, tell you to have a good day, well, you already HAD opportunity to shoot me when you pulled up to the checkpoint, and didn't. I'm not worried about firearms as some people, both agent and non, seem to be.

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Please note, this is NOT an attempt at justification of the whole concept of checkpoints, nor a defense of the agents' actions in your case; it is simply the way such things are currently legally held. I have my own thoughts about whether probable cause did exist, but in all honesty, had this gone to court, had they found contraband, you probably would have lost the case due to testimony of a dog alert, unless it could be established that such probable cause for the search was NOT present, that the dog had NOT alerted.

I personally don't like the checkpoints, but it's the current legal reality that both you and I have to deal with.