4th Amendment and Consequences

Model_Timber_HomeA local man stood his ground despite the severe consequences. Imagine being ordered out of your own home and then forcibly removed, handcuffed, and arrested when you refused. Imagine then spending just over two months in jail. Imagine losing your job, car, and almost your home. All because you didn’t immediately yield to a police officer telling you to leave your home. A home is a man’s castle, until apparently, the police decide you should leave. Gilbert Cruz lived that nightmare that we can only imagine.

Police arrived at Cruz’s home after a former neighbor, who recently became homeless, called police claiming he wouldn’t allow her to stay with him. The neighbor further accused Cruz of assaulting her.

Forget about the Fourth Amendment – the right to be secure in your person and your home. It’s supposed to protect you from an unlawful seizure – the taking of your body by the police. Especially, inside your own home. We often think of the Fourth Amendment as protecting against unlawful searches of your person and your home, but it also protects against unlawful seizures.

The Harris County Sheriff’s deputy who arrived certainly forgot about the Fourth Amendment. He told Cruz to leave the home so he could conduct an investigation and interview the woman in private. When Cruz explained the woman did not live there and that he did not feel comfortable leaving his own home, the deputy forcibly removed him. Then arrested him for interfering with his investigation.

His case was eventually dismissed when a prosecutor agreed he had not interfered with the officer’s duty to investigate. Having Cruz leave his own home was not the answer to how to interview the woman in private. Certainly, the officer could “ask” him to step out. But barring his acquiescence, the officer cannot demand he leave his own home absent a warrant or some other legal circumstance. So the deputy created his own – he placed him under arrest for interfering with his public duties. That’s not “interfering with the duties of police officer”; it’s pissing off the police for not doing whatever he wanted! So Cruz might have avoided the wrap, but he wasn’t going to avoid the ride…or the consequences of two months in jail waiting to clear his name.

In Texas, a person commit the offense of interfering with public duties if he interrupts, disrupts, impedes, or otherwise interferes with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.

Of course it is an officer’s duty to investigate potential criminal activity. But his ability to investigate is not unfettered. He cannot simply order a person out of his own home to perform his investigation. The officer generally cannot even enter the home to start an investigation absent an invitation into the home. Even where invited inside the home, the officer cannot just start ordered occupants of the home to leave. If he wanted some privacy to interview the woman, he could have asked the woman to step outside. Officers often conduct interviews in their mobile offices. Yes, it’s not uncommon to have a person come sit out in the police car to give a statement or answer questions.

The tragedies of this story are Cruz being arrested, sitting in jail for months, losing his job and car, and almost losing his home. Sitting in jail, even for the innocent, has devastating consequences. But the tragedy doesn’t stop there. What happens when officers violate the Fourth Amendment? Usually nothing. Unreasonable searches and seizures (arrests) are unconstitutional and more common than you could ever imagine. They occur daily. We trust cops to determine who is a bad guy and who isn’t. But what happens when they get it wrong? Sure, the evidence is suppressed or the case is dismissed, just like here, but is that enough? Should the officer be accountable? How does Cruz get his job back? How does he undo his car being repossessed? What about the late fees he incurred because he was sitting in jail waiting for justice? How does he get back that time spent in jail waiting on the system to right the wrong and dismiss his case?

Some people won’t care. They will think he should have just stepped outside and let the officer talk to the woman. Yes, he could have. But why should he have been forced out of his own home at the hands of a law enforcement officer? Law enforcement officer. There’s a catchy term. He’s there to enforce the law. And, of course the law says people are to be secure in their persons and homes. I guess we just want some laws enforced.

Some people will think Cruz just should have just posted bond and got out of jail. If it were only that easy. Many people live paycheck to paycheck and don’t have the $2,500 to deposit with the court. Many are not capable of posting a bond or even hiring the services of a bondsman. Yes, a bondsman only charges about 10% of the bond, but imagine not having $250 to scrape together just to fight for your Fourth Amendment right to be free from an illegal seizure. If only the deputy had followed the law. If only the deputy had respected the Fourth Amendment instead of arresting Cruz for disregarding his bogus order to step outside and give him some privacy. Imagine that: being arrested because a police officer wanted privacy inside your home. Crazy huh? But very real.

Border Patrol Crossings and the Erosion of the Fourth Amendment

United_States_Border_Patrol_badge_(1992-2003).svgEarlier this summer, a friend of mine took a trip down to South Padre Island to enjoy the sun, surf, and the white sandy beaches. When they called me before they were coming back, they off-handedly mentioned that they would have to go through the “border checkpoint” on the way back.

I was completely aghast at this. “You didn’t cross into Mexico, why would there be a border patrol crossing checkpoint?” I asked incredulously. My friend shrugged it off and said they didn’t know, it was just there and they had to go through it. I had never heard of this before! South Padre is completely within the United States, why would anyone have to go through a checkpoint on the way north? Thus started my mini-quest into figuring this out. As a side-note, this was made even more fascinating to me because, as a child, I went to South Padre Island with my family, and I have no recollection of going through a checkpoint.

A quick perusal of Google Maps tells us that, yes, there are two checkpoints within the state of Texas on the major highways north from South Padre: one on State Highway 550 right outside Brownsville, and one on Interstate 69E outside Harlingen. A cursory look at the Customs and Border Patrol website makes it seem like the Harlingen checkpoint is, in fact, permanent, but it is not clear.

The agents at the checkpoint are legally allowed to ask motorists where they are headed, where they are coming from, and what their nation of citizenship is. Most people dutifully answer the questions and then are waved through the checkpoint, free to go on their way. There is a “secondary checkpoint” within the main checkpoint, where border patrol agents can siphon vehicles if they need to investigate them further.

This is all well and good, except it seems to me to be a massive and flagrant violation of the Fourth Amendment to the Constitution, wherein we’re all supposed to be safe from unreasonable searches and seizures. If I’m coming back from either Mexico or Canada—or overseas of course—it’s more than reasonable for me to be subjected to a border crossing and customs interview. But, I have the absolute right to travel unhindered and without being accosted within the country, as long as I’m not committing any crimes. Period.

Now, of course, driving a car is a privilege, not a right. Which is why your privilege to drive can be suspended by the states if you break enough traffic laws, or for other reasons. Indeed, the Fourth Amendment protections change when it comes to a vehicle; unlike a search of my home, which requires a warrant, a search of my car only requires probable cause. If I’m speeding down the road, and an officer pulls me over for that infraction and then subsequently smells the strong odor of marijuana coming from me and my car, he has probable cause to search my vehicle.

These border patrol checkpoints, however, are a different animal. I’m not committing any traffic infractions which rise to reasonable suspicion, and I am certainly not committing any actions that would rise to probable cause for a search. I’m merely driving down a freeway or highway, minding my own business. Yet, it is perfectly constitutional and legal—under a Supreme Court case called United States v. Martinez-Fuerte 428 U.S. 543 (1976)—for a border patrol agent to ask me to stop my car, and then proceed to interrogate me about where I’m from and where I’m going and if I’m a U.S. citizen. This, to me, is outrageous.

There has been some success, however, by some citizens refusing to answer questions and even refusing to be stopped at the secondary checkpoint. I would say this needs to be the standard response by any citizen who is just traveling from Point A to Point B within the United States. Unless you have probable cause to seize me and subsequently try to search me, I’m not going to answer your questions. This Supreme Court decision needs to be revisited, especially in the current climate regarding concern over a growing police state in this country. As long as I’m minding my own business and not violating any laws, leave me in peace; this is the heart of the Fourth Amendment.