
A U.S. Citizen Was Detained While Trying to Pay for a Gift for His Daughter - jbegley
https://theintercept.com/2019/10/23/customs-border-searches-civil-liberties/
======
bloody-crow
The fact that CBP can do whatever they want without a need to produce any
justification is a red-flag already. I wonder if there are precedents of
successfully suing them for something like this.

~~~
riffic
Good luck suing the government:

[https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...](https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States)

~~~
refurb
The Wikipedia article states the US govt waives their sovereign immunity for
most issues.

~~~
munk-a
They may voluntarily do so, but they are not compelled to do so. That's a
seriously big issue and a common way for tyranny to get a foothold - going
against convention and tradition because they aren't legally binding while
hiding in a technicality of the law.

If the US government doesn't generally need sovereign immunity then it should
be forced to surrender the right to exercise it or it'll be used in the worst
way the first way.

~~~
refurb
Every democracy has given up nearly all their sovereign immunity with a few
exceptions.

I guess they could reverse that decision.

------
superkuh
Sounds like the constitution free zone really is a constitution free zone. And
most people in the USA live in it.

~~~
refurb
Constitution free is hyperbole. You still have constitutional rights.

~~~
munk-a
No, it isn't hyperbole, officers of the law in these zones are given leeway to
violate the fourth amendment without any of the normal exceptions (like
exigent circumstances) applying.

That said, it isn't usually exercised... but that sort of makes it worse since
any usages of their elevated powers can be applied arbitrarily and without
consistency which, IMO, is intensely worrying in a country where incarceration
rates by race are so wildly out of balance with population proportions.

~~~
Spooky23
It is hyperbole, because the situation missing is the nexus with the border.

Driving in Queens doesn't give CBP the ability to pull you over and rip apart
your car. Picking up someone at JFK may give them the ability for them to do
so on the way home.

~~~
munk-a
Except it actually does, they probably won't exercise that ability frequently,
but they have the power to do that without any inherent legal restrictions or
conditions.

A CBP officer could yank you out of your car on the cross bronx expressway and
then search the vehicle top to bottom and your legal recourse would be to hope
that CBP feels bad and reimburses you somehow, you would be owed no legal
damages because it isn't illegal.

This isn't hyperbole, it's actually that ridiculous.

~~~
Spooky23
Only if there was a "significant temporal nexus" between the search and border
crossing.

From the Congressional Research Service:
([https://fas.org/sgp/crs/homesec/RL31826.pdf](https://fas.org/sgp/crs/homesec/RL31826.pdf),
page 8)

> Under the “extended border search” doctrine, government officials may
> conduct a warrantless search beyond the border or its functional equivalent
> if (1) the government officials have a reasonable certainty that a border
> was crossed or there exists a “high degree of probability” that a border was
> crossed; (2) they also have reasonable certainty that no change in the
> object of the search has occurred between the time of the border crossing
> and the search; and (3) they have “reasonable suspicion” that criminal
> activity was occurring.

In online reporting, there is often significant confusion between the
"Extended Border Area" (ie. the 100 mile zone) and the "Functional Equivalent
of the Border" (ie. an airport customs zone).

~~~
munk-a
So, prior to this thing there was always an exemption for warrantless searches
carried out under exigent circumstances. The addition of this law does nothing
but weaken an existing, and highly clarified, exemption.

~~~
Spooky23
The current policy has been in effect since the Korean War. It’s difficult to
compare pre-war policy to today. Border activity was mostly about taxation in
those days.

The only new thing is the increased size of the sprawling bureaucracy of
Customs and the Border Control, and the increased tempo of operations.

The real problem is the growth of executive power and the supine nature of the
Congress and courts. This particular issue has attention due to the disgusting
conduct of the current administration. We live in an era where the President
believes that he posses banana republic like presidential immunity and
executive privilege.

------
equalunique
The somber reality is US CBP exercises athority to do this anywhere within 100
miles of the border: [https://www.aclu.org/other/constitution-100-mile-border-
zone](https://www.aclu.org/other/constitution-100-mile-border-zone)

~~~
dev_dull
That 100-mile border thing really bothers me, since it includes basically
every major city in the US. Does anyone know if there's been any legal
challenges to this ruling in court?

And now an annoying aside. I really wish the ACLU was sincere in fighting this
but they won't get any more of my money. I used to support the ACLU because
these were the types of P1 issues they would battle. It seems in the last
years it's faded to more social justice platform. Fine for them if that's what
they believe are the most pressing issues of our time, but not my P1
constitutional concerns.

What's the point of anything if the government can railroad your 1st and 4th
amendment rights? Are there good alternatives to the ACLU of yore?

~~~
joeblow9999
the institute for justice. and they actually care about the first amendment
too!

------
SolaceQuantum
> The CBP officer present pressed Doe on why he had two cellphones before
> ordering him to hand them both over

Wait why are two cellphones suspicious? Work and personal phones are super
common

~~~
wongarsu
Their thought was probably "personal phone for normal stuff and burner phone
for illegal activities". I would argue carrying two phones (especially if one
is very cheap) makes you slightly more suspicious, but it's probably not a
very strong signal. Something that warrants a closer look, nothing more.

~~~
grawprog
I've seen quite a few people carrying a newer fancier phone for actual use and
an older less good phone they use basically like an mp3 player.

------
dawnerd
So how exactly is this news? You go to a border crossing without ID, you're
going to get detained until they figure out who you are. They're not just
going to take your work for it that you 'left your id at home'. It also sounds
like he ended up talking to the same people that process people actually
crossing which makes this even more tricky. How is that person supposed to
know the guy didn't get off a bus (which stop there and people go inside the
building) and is just saying something to get past them?

~~~
chmod775
> How is that person supposed to know the guy didn't get off a bus (which stop
> there and people go inside the building) and is just saying something to get
> past them?

Yeah no. That's not how border crossings work at all.

It would be pretty embarrassing if people going in, going out, and those who
are there to visit the customs office weren't kept separate.

But then I'm only assuming that border crossings in the US work the same way
as border crossings elsewhere. Maybe they're a clown fiesta instead. Who
knows.

~~~
iamthirsty
> It also sounds like he ended up talking to the same people that process
> people actually crossing which makes this even more tricky.

Kinda looks like you ignored the preceding sentence to look snarky.

~~~
djsumdog
No this is reasonable. There is no reason he would be talking to the same
people. Sure the same border agent can work incoming/outgoing, but not at the
same time (not at any airport or road crossing I've ever been through).

Border agents should know which side they're facing and which direction those
people are traveling in. If they're not, they're incompetent.

------
isostatic
So much for the 4th amendment. It seems that most of america only cares about
the second.

~~~
gnode
You don't get the 2nd amendment at the border either.

~~~
isostatic
If the 2nd ammendment didn't apply at "The Border" (aka the 100 mile wide
'constitution free zone'), then perhaps there wouldn't be such a zone

[https://www.aclu.org/sites/default/files/styles/scale_1200w/...](https://www.aclu.org/sites/default/files/styles/scale_1200w/public/wysiwyg/constitutionfreezonemap.jpg)

~~~
gnode
It's actually worse than this; this map neglects the zones around
international airports.

~~~
dsfyu404ed
IIRC they asked for those but they didn't get them because the other federal
law enforcement gangs didn't want their turf encroached on. Did that change?

------
annoyingnoob
This border zone thing is pure Fascism. I live and work in a border zone and I
still have rights.

~~~
benc666
Gestapo in the making.

------
campfireveteran
15 years ago, I brought back a suitcase full of pirated DVDs and knockoff
purses. Most people are better off declaring uncontroversial minimums on
declarations forms rather than naively being "too honest" because they're
going to cause themselves and others no end of problems trying too hard to be
"honest" while simultaneously incriminating themselves by filling out forms
incorrectly by not using street smarts. Carrying ID and making the
bureaucrat's job easier, where possible, will lead to smoother sailing for the
traveler.

~~~
outworlder
What is the point you are trying to make?

------
Havoc
So who’s up for some tourism to the USA?

Yeah no. Last time I had to go for work was quite unpleasant too.

The border agent was a complete moron and on a power trip. Kept going on about
how American citizenship law doesn’t allow dual nationality. So no sir you
can’t have two passports. Which I’m pretty sure is bullshit but I’m not gonna
argue with a border agent. Was really hoping that he’d be bright enough to
grasp that neither of the two passports he’s holding is bloody American
though.

~~~
whiddershins
Why did you present two passports?

~~~
Havoc
>Why did you present two passports?

Two reasons: Internationally if you do this the official will (normally) pick
the most favorable/least paperwork one.

For transparency - I have nothing to hide & wanted to play open cards. If he
wants to run both through his systems that's cool - they'll both come back
clean.

Me: Good morning sir. Here are my passports. My US ESTA Visa for entry into
the USA was issued on the German one.

Him: You can't have two passports.

Me: I have dual citizenship, hence two passports.

Him: No US law doesn't allow you to have two passports.

Me - thinking...oh fk...this guy isn't grasping that US citizenship law
doesn't apply to all 7.5 billion people on the world. Do I argue with this
idiot? Nope...read enough horror stories on HN about US border arbitrarily
detentions. US border agents can clearly do whatever the fuck they want. Went
with a fake sorry sir won't happen again.

Oh and this is for a white male in a business suit for a business meeting with
a company that's on the HN frontpage on a fuckin German passport speaking
perfect English. I dread to think what the experience is like for someone more
ahem diverse.

~~~
refurb
_For transparency_

Yeah, don’t do that. When interacting with the government, you give them what
they need and no more.

Sounds like you got a really stupid CBP agent.

~~~
Havoc
>(transparency)Yeah, don’t do that.

Gov needs to decide. They can't penalize me for not being transparent (e.g.
encrypting docs and refusing to hand over password at border) and at the same
time punishing me for being transparent (like in this example).

Fuckin decide what you want....

------
fortran77
Why do they mention Cellebrite when there's no reason to believe that they had
anything to do with this story? Odd.

~~~
thejenk
They mention Cellebrite because they share specific stats on how much data
they can copy off a device in a given time. It's essentially used as a source
for the end of the paragraph where they explain why it matters that CBP had
their phones for that period.

------
ahbyb
It does not even include the name of the citizen. How do we know this is not
just fiction?

~~~
LocalH
CBP has been infamous for asserting that the Constitution doesn't apply _at
all_ in these border areas. I wouldn't put it past the government to harass
this person further, so I don't blame the person for not wanting their name in
the public sphere (even still, they might harass him, I'm sure there are
enough details in the story for them to identify him).

~~~
coldcode
Which is funny since they only exist because of the Constitution. So where
does it says it doesn't apply to them?

~~~
LocalH
The US government has basically turned the Constitution into toilet paper,
only useful when they want to pay lip service to the inherent rights of the
people. Any other time, they prefer to wipe their ass with it.

------
rayiner
Textbook illustration of subtle bias:

> This time, however, when he arrived at the bridge office as instructed,
> carrying a handwritten note from the original customs office, the man, _a
> U.S. citizen_ , was detained and searched by Customs and Border Protection,
> he said. His phones were seized and his car rifled through. His father and
> cousin, who had been waiting in the vehicle, were themselves detained,
> ordered into the office to answer questions about their national
> backgrounds.

The fact that the man is a US citizen is interposed into an otherwise
chronological narrative to make the reader evaluate the reasonableness of the
border agents’ actions against information the border agents do not have.

~~~
djsumdog
It's relevant, and pretty critical to the entire story. He wasn't traveling.
He was picking up a package. The purpose of the 4th amendment to applying at
border crossings is to secure the border. Everything customs did in this case
should be totally and completely illegal.

~~~
rayiner
The issue isn’t the relevance, but the way the fact is interjected within the
otherwise chronological narrative. Imagine if the fact of his US citizenship
had come at the end, when CBP was able to learn about it. The story would read
very differently.

How would borders work if CBP was simply required to accept people’s
unsubstantiated assertion that they were citizens who just forgot their ID?

~~~
pcwalton
> How would borders work if CBP was simply required to accept people’s
> unsubstantiated assertion that they were citizens who just forgot their ID?

Hold on. Nobody objects to citizens having to show identification or risk
detention _when crossing the border_. The issue is that the man wasn't
crossing the border.

Borders would work just fine if CBP could only require identification at the
border. In fact, I suspect if you were to poll Americans, most probably think
that this is already the case. That's why this was an issue to begin with:
presumably if the man had known he was going to be detained if he didn't bring
his ID, he would have done that.

It's like if you went to the DMV to take a driving test, having forgotten your
ID at home, and instead of telling you to come back with your ID the DMV staff
took you into custody. You'd be pretty outraged, citizen or not.

~~~
rayiner
> Borders would work just fine if CBP could only require identification at the
> border.

No they wouldn't. In many cases it's impossible to put a border checkpoint at
the literal border. That's why they're often at choke points in the
transportation system near borders.

I think there's a reasonable debate to be had about whether those choke points
should be on highways dozens of miles from the literal border. That's not the
situation here.

> In fact, I suspect if you were to poll Americans, most probably think that
> this is already the case. That's why this was an issue to begin with:
> presumably if the man had known he was going to be detained if he didn't
> bring his ID, he would have done that.

How people expect border crossings to work has no relevance. The question is
what is an "unreasonable" search and seizure under the fourth amendment. The
Constitution uses the fuzzy term "unreasonable" precisely because it
acknowledges the legitimate need of the government to search and detain people
without a warrant. Effectuating the nation's sovereign right to control its
borders is one of those reasons. A rigid mechanical rule that only permits
searches of people as they cross the literal border cannot be reconciled with
the much more--well, reasonable--language the fourth amendment uses.

~~~
pcwalton
This misses the point. The issue isn't whether the border crossing checkpoint
is at the literal line separating the countries. I didn't mean "at the border"
in the sense of "one foot in Canada and one in the US"; I meant "intending to
enter the United States from Canada". (That's what the lawyer quoted in the
article says: "It is incumbent on CBP to determine when someone is actually
trying to enter or leave the country.") Nobody cares that the Canada border
crossing is a few hundred yards away from the actual 49th parallel. People
_do_ care that someone who obviously didn't mean to cross the border at all
was detained for interacting with customs and forgetting ID, when they were
making a good-faith effort to obey the customs laws.

The fact that nobody expects to be detained for the equivalent of a DMV trip
is a good indication that this was "unreasonable" per the plain meaning of the
word. Maybe case law says otherwise. But ask a "reasonable" person on the
street what the appropriate response of a customs agent to someone (citizen or
not) who forgot their ID to take care of some bureaucratic hurdle on a package
is, _especially_ when the agency was supposed to be aware of the person's
arrival (note the mention of the email in the article). That's what I care
about.

I should mention, by the way, that the pedestrian lane at a US-Canada border
crossing typically has a queue on the Canada side, and the border agent calls
groups in one-by-one, just as at an airport. I have no idea how someone just
trying to interact with customs, who drove up and parked their car on the US
side, could be confused with someone trying to enter the US. It's worth
looking at a map of the Peace Bridge [1]. This isn't a checkpoint some ways
away from the border; it's a road with one way into the US, through the
checkpoint (and the Niagara River in between the two countries!) Unless you
have a flying car, there is no way you could end up with a car on the US side
without having already gone through border security. The incompetence _itself_
is ridiculous.

[1]:
[https://goo.gl/maps/PTm1xCv6aEEaGpWY9](https://goo.gl/maps/PTm1xCv6aEEaGpWY9)

------
merlincorey
I am not making a judgement on if this was good or bad, either way, as we do
not have all the facts (especially as the border patrol declined to comment,
so we only have one side).

On the other hand, I think the headline and the tone of the article definitely
want me to judge this as "bad" on the part of the border patrol. Indeed, I
strongly believe in personal privacy and due process.

However, there is a fact buried in the article that makes this a non-routine
pickup indeed:

"""He was asked for his identification in order to pay the small duty fee for
his daughter’s gifts, and only then realized that he’d left his wallet at
home. When he explained this, that he’d made an honest mistake and wanted only
to pay the routine duty owed and depart, he was told that in fact he wasn’t
permitted to leave."""

So again, I agree in general that the privacy protections afforded to U.S.
citizens are very important; but, I am not so surprised after reading this
that things went sideways.

It seems to me, many government agencies and employees are used to things
going a certain way, and as soon as something unexpected happens, they clamp
down and things can get a lot more serious.

A few years ago I was flying domestically between two states, and the fancy
bomb detection thing flagged me. Of course, I wasn't carrying anything
remotely explosive. Nonetheless, I was taken to a back room with a supervisor
and two regular homeland security agents. I was told this time they would
search my bag and scan me again. If it came back negative, I would be free to
go. If it came back positive, they would conduct a strip search. Thankfully,
it came back negative.

I nearly missed my flight, it was incredibly terrifying in the moment, but I
didn't feel like my rights were violated. According to the agents, the most
likely cause was that I had used hand sanitizer prior to getting in the
security line.

Back to the article -- personally, I'm very interested in the results of the
court proceedings, but unclear how to keep track of them.

~~~
magashna
What I found more interesting from other comments on this thread is that you
don't have to be crossing a border, just within 100 miles of one, to be
harassed in a way that would seem unconstitutional. The "65% of the
population" living in this border zone area really struck me as a serious
overreach. If you live in nearly every major US city you're susceptible to
what OP went through it seems.

~~~
LocalH
One of these days I expect to hear CBP say "we need more than 100 miles radius
of authority, so now it's 200 miles". If we're not careful, CBP will end up
with 100% coverage of their supposed "authority".

~~~
munk-a
I have never lived in an area where I would have guaranteed access to my
constitutional rights, most people (65% IIRC?) are in the same boat.

