Border Patrol Probable Cause

[martywj]

My apologies if this is in the wrong place, Mods feell free to move it.

A friend of mine on another forum(motorcycle) was down in the Big Bend area near Study Butte heading back to the DFW area very early Sunday morning. Time was around 3:30 AM. said he made the turn off 170 on to 118 heading north when he was tailgated by a BP. I am assuming he was on the bike. He did everything right proper turn signal, full stop at the stop sign, and running under the speed limit. When the road went to 2 lane he pulled over slowed down to get the tailgater with high beams on to pass. Instead he backed off for a mile or so then roared up again lighting him up with red & blues. Turned it was in fact a BP and said reason for tailgating was to get lcense number. No citation was issued.

Do Border Patrol agents need probable cause for a stop just as regular LEO's do or they exempt? I suggested he report the insident to a supervisor. What are your thoughts?

Marty

[Keith B]

LEO's don't need probable cause to make a stop, just reasonable suspicion. Like the name says, that can be in any form that would be 'reasonable'. Time of night, report of suspicious motorcycle, etc., etc. They then need probable cause to initiate an arrest.

[b322da]

It is possible that this case may have qualified as a "border search," which is exempt from the protections of the 4th Amendment. While your friend was not right at the border, DHS, etc., pushes the envelope as far as they can with respect to how far away from the border can still qualify. The further away from the border, the tougher a judge will be in determining the legality of the action

For further info Google "border search."

Elmo

[Grog]

Some feds would probably be willing to go way over the line for the sake of "Homeland Security".




In The Morning

[WildBill]

It is possible that this case may have qualified as a "border search," which is exempt from the protections of the 4th Amendment. While your friend was not right at the border, DHS, etc., pushes the envelope as far as they can with respect to how far away from the border can still qualify. The further away from the border, the tougher a judge will be in determining the legality of the action

For further info Google "border search."

Elmo

The San Clemente Station in California is 67 miles from the Mexican border.

[srothstein]

I disagree on whether or not police need probable cause for a stop. I think they do, and it was made even more clear in recent case law. But that is irelevant to this discussion, I just could not resist.

Border patrol does not need probable cause, or even reasonable suspicion for a stop if they consider it part of the border search. And under the 'flexible border" concept, this does not have to be at the border. I would say the Big Bend area is close enough to the border for them to be able to do this.

But the interesting part is that Border Patrol also has no legal authority to run traffic. They are not LEO's in Texas and cannot write traffic tickets. They can arrest under some conditions (like a felony in their presence). This is why there was no citation issued. If they accused him of a traffic violation, they were lying or abusing their authority. Your friend can complain to the are supervisor, but I doubt (unfortunately) that it will do much good.

[martywj]

But the interesting part is that Border Patrol also has no legal authority to run traffic. They are not LEO's in Texas and cannot write traffic tickets. They can arrest under some conditions (like a felony in their presence). This is why there was no citation issued. If they accused him of a traffic violation, they were lying or abusing their authority. Your friend can complain to the are supervisor, but I doubt (unfortunately) that it will do much good.

Turns out he was not on his bike as I originally thought, but in his F250 with 2 dual sport bikes & gear in the back. He also said he will probably not complain since he did get the BP Officer's name.

[PappaGun]

I disagree on whether or not police need probable cause for a stop. I think they do, and it was made even more clear in recent case law. But that is irelevant to this discussion, I just could not resist.

Border patrol does not need probable cause, or even reasonable suspicion for a stop if they consider it part of the border search. And under the 'flexible border" concept, this does not have to be at the border. I would say the Big Bend area is close enough to the border for them to be able to do this.

But the interesting part is that Border Patrol also has no legal authority to run traffic. They are not LEO's in Texas and cannot write traffic tickets. They can arrest under some conditions (like a felony in their presence). This is why there was no citation issued. If they accused him of a traffic violation, they were lying or abusing their authority. Your friend can complain to the are supervisor, but I doubt (unfortunately) that it will do much good.

Steve,
If you don't pull over for them, say in this case, what do you think they could or would do if they have no traffic authority?

[surprise_i'm_armed]

The San Clemente Station in California is 67 miles from the Mexican border.[/quote]

Look at the situation right here in Texas. If you travel US 281, northbound from Hidalgo, TX (Near McAllen and
right on the Rio Grande) to the border patrol checkpoint in Falfurrias, Texas you will have gone 84 miles.

The last time I went through there, all traffic had to stop at this checkpoint.
The Border Patrol officer looked at my son and myself and simply asked
"Are you American citizens?" I responded "Yes" and we were allowed to proceed up the road.

SIA

[srothstein]

I disagree on whether or not police need probable cause for a stop. I think they do, and it was made even more clear in recent case law. But that is irelevant to this discussion, I just could not resist.

Border patrol does not need probable cause, or even reasonable suspicion for a stop if they consider it part of the border search. And under the 'flexible border" concept, this does not have to be at the border. I would say the Big Bend area is close enough to the border for them to be able to do this.

But the interesting part is that Border Patrol also has no legal authority to run traffic. They are not LEO's in Texas and cannot write traffic tickets. They can arrest under some conditions (like a felony in their presence). This is why there was no citation issued. If they accused him of a traffic violation, they were lying or abusing their authority. Your friend can complain to the are supervisor, but I doubt (unfortunately) that it will do much good.

Steve,
If you don't pull over for them, say in this case, what do you think they could or would do if they have no traffic authority?

I don't know what will happen to you, but they would call it in as a chase and get help. But the way I read the law, they are not an emergency vehicle and you are not evading arrest because they are not peace officers. By the strictest reading of the state law, you are good to go. I don't know if there are any federal laws that might apply, such as interfering with a federal agent during an investigation, etc. When I see them parked on IH-10 by Seguin (which is far enough from the border for me to want to question the flexible border idea) I keep thinking it would be fun to find out. But then I honestly say I don't trust the courts to agree with my reading of the law and could not afford to test it to find out. Maybe after I hit the lottery and can afford some really good lawyers.

[gigag04]

I like the idea in concept of "trying it out" but I don't think it would end well. I think their authority and scope needs just a bit more specificity, if not an exception spelled out in the Chapter 2 of CCP. However, I appreciate the difficulty in their job, and I think they are at least ONE LE agency that most (legally residing) people in TX sympathize with. They're trying to play whack-a-mole with a handful of agents on a thousands of miles of game board. The CBP/ICE agents I have dealt with were great (not TSA).

[Keith B]

So Steve, because I do think this is relevant to the thread, please expand a little more on your statement of police needing probable cause. The reason I ask is that a Terry Stop to detain is based solely on reasonable suspicion (i.e. something harder than I had a hunch or gut feeling) and probable cause is needed for arrest.

I may know your thinking on this, that a traffic stop in your opinion is an arrest, so you need probable cause, but just want to see where you are headed with this.

[tacticool]

Their trying to play whack-a-mole with a handful of agents on a thousands of miles of game board.

All the more reason not to waste resources on low percentage strategies.

[srothstein]

Keith,

You got it. A traffic stop is an arrest. This has always been a real question for cops as some saw them as investigatory detentions and some arrests. I think allowing a Terry stop for a traffic offense based on suspicion is stretching that case way too far (without even getting into whether or not Terry was a good decision, just recognizing it for existing and what it said). When you make a traffic stop, what are you investigating? You either saw a violation or not, and seeing a violation is probable cause.

But, the Court of Criminal Appeals ruled that a traffic stop is an arrest in the Kurtz decision. The case was a DWI that was fought. The officer was from Plano and was on the wrong side of the street that is the border between Plano and Frisco. The CCP said that an officer did not have authority to arrest for class C traffic offenses outside his jurisdiction. No where in the CCP does it define and officer's jurisdiction. The court had previously ruled it was the county the officer was commissioned in.

Anyway, the CCA said the officer was wrong and threw out the case. The officer made the stop based on traffic offenses. The Transportation Code only gives authority to arrest for traffic offenses, not detain or investigate. Thus, a traffic stop for a traffic offense is an arrest, the officer was outside his jurisdiction, so the arrest was illegal. All evidence from the illegal stop was thrown out.

A lot of officers think this case was solely based on jurisdiction. They still think a traffic stop is a detention. I think the finding that a traffic stop is an arrest is critical and will turn out to have unexpected consequences. The justices were very specific that it was not a custodial arrest significant enough to invoke Miranda, but that it was an arrest.

Once you decide something is an arrest, it is going to have some consequences that people do not think of in advance. Think of searches incident to arrest for example. An officer stops a car and the driver says he does not have his license with him. I have made a legal stop and arrest. I can make a search incident to arrest for any evidence that might help prove the crime. I can then search the car for his license. And if I find anything else while I am searching, it is legal to use. That is just one example I can think of, in addition to the probable cause needed for a traffic stop. I really don't see why the need for PC gets so much argument. If you see a violation, it is pretty good PC, not just suspicion. But it is still a sensitive issue to a lot of police.

[Keith B]

Thanks Steve. I suspected that was your thought. I am not real familiar with the Kurtz case, but may need to check it out since I live just a couple of blocks from the Plano/Frisco border.