There was recently a question regarding the “Consitution Free Zones.” This is a term coined by the ACLU. The ACLU refers to title 8 CFR 287.1 (b). Where the definition of reasonable distance is defined in subsection (b) as 100 air miles from the external border. The claim is that anywhere in the United States that is within 100 miles from the border, Federal agents can search any individual without probable cause and the warrant requirement of the 4th Amendment. Upon causal perusal of the law it appears to the average reader that this is in fact the case. As 8 CFR 287.1 reads as follows. “External boundary . The term external boundary, as used in section 287(a)(3) of the Act, means the land boundaries and the territorial sea of the United States extending 12 nautical miles from the baselines of the United States determined in accordance with international law. “Reasonable distance . The term "reasonable distance," as used in section 287(a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the chief patrol agent for CBP, or the special agent in charge for ICE, or, so far as the power to board and search aircraft is concerned any distance fixed pursuant to paragraph (b) of this section.” Reading that definition any Constitutionalist hearing the ACLU claims would be in full fledge panic mode. However, the key is to notice where it says. “The power to search and board aircraft.” and prior to that the law was referencing nautical miles “in accordance with international law”. What this actually means that aircraft APPROACHING the United States Borders from outside the US fall into US Jurisdiction 100 Miles out from the physical border. Seafaring Ships enter US Jurisdiction 12 Miles from the physical borders. This is how the Coast Guard is able to interdict drug smugglers. It does not refer to American citizens inside the United States. Section 287.9 makes this abunduntly clear when it states “A search warrant should be obtained prior to conducting a search in a criminal investigation unless a specific exception to the warrant requirement is authorized by statute or recognized by the courts. Such exceptions may include, for example, the consent of the person to be searched, exigent circumstances, searches incident to a lawful arrest, and border searches.” Now there IS a border exception that has been recognized by the Supreme Court. There are actually 5 exceptions; consent, exigent circumstances, search incident to arrest, border searches and the Carroll Doctrine. But what the border exception refers to is limited in scope. The border exception is predicated off the concept that the US Government has a vested, interest, a responsibility even, in protecting their citizens and societies from external threats. This government interest is weighed against the infringement of the individual’s rights. The result is the border exception. Agree with it or not it. The border exception is not blanket permission to infringe on an indivuals right from search and seizures. Rather it is an exception to the warrant requirement under specific conditions. The condition being that it can not specifically target any specific individual or groups of people; the options are random, everyone or no one. The agents do not get to pick and choose who to search. It obviously has to be at a border checkpoint. Finally it cannot be evidentiary in nature. What this means is that the purpose of the search must be to safeguard it cannot be specifically to discover evidence. However, if evidence is discover so long as the search was valid the evidence can be admissible in court. This is why in 287.9 is is specific that a warrant should be obtained prior to a search for a criminial investigation. Because the purpose of a search in a criminal investigation is to discover evidence. I will include several links in the comments for educational and reference purposes. - Slain
Posted on: Sat, 10 Aug 2013 20:11:16 +0000
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