Kitsap Crime and Justice

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Law in Focus: The Peninsula Checkpoints

October 2nd, 2008 by josh farley

(Blogger’s note: Back to help us untangle our often complex legal system is Stan Glisson, a local Bremerton defense attorney. You might remember his last segment explaining the legal woes of Paris Hilton. Here’s his take on the recent stop-and-ID checkpoints the U.S. Border Patrol is conducting on the Olympic Peninsula.)

Since 9/11, Americans’ civil liberties have been limited in the name of national security. Is additional safety worth minor intrusions into our personal lives? Or as Benjamin Franklin said, is a society that trades liberty for safety deserving of neither?

For several months, the U.S. Border Patrol has been increasing its use of checkpoints on the Kitsap Peninsula as a mechanism for seeking out illegal — and possibly terrorist — border crossers. All along the peninsula, residents are reacting with a mix of surprise and outrage: If I haven’t done anything wrong, why am I being stopped and questioned by the police?

According to Joe Giuliano, deputy chief patrol agent, officers at a roadblock can spend less than a minute per car and still achieve their goals with minimal delay for most drivers. Federal agencies follow federal law. In Sifuentes v. United States (1976), the U.S. Supreme Court clarified that the
Constitution, while protecting an individual’s right to privacy, doesn’t prohibit this type of border check traffic stop.

While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited, the decision states.

Giuliano explains that the increased use of the checkpoints has been successful by their standards, and they do intend to continue it. In a Border Patrol checkpoint, every car is subject to stop and each driver and passenger subject to some basic questions. The Border Patrol’s primary goal in these stops is the prevention of entry of terrorists or their equipment. But should the agents discover evidence of some other potential criminal activity, such as drug possession or driving while under the influence, they can and will detain the vehicle and call local law enforcement to investigate, or make an arrest themselves in the right situation.
Giuliano cites the United States Code, which gives the Border Patrol (now part of the Department of Homeland Security) the right to search any vehicle within a reasonable distance from any external boundary of the United States for the purpose of preventing illegal aliens from entering the
country. He explains that with the hundreds of miles of maritime border, foot or vessel patrol is impracticable. Highways like 104 create natural “funnels,” where a few agents can get greater bang for their buck by checking hundreds of people an hour.

Washingtonians are expressing their outrage at this policy, because we are not accustomed to such governmental intrusion. Unless you have crossed the border into Canada lately, you have probably never been subject to random stop and investigation in Washington. The reason for this is that the law of the State of Washington affords more protection of personal privacy rights than does federal law.

At the federal level, protection from police investigation in one’s private affairs is provided by the Fourth Amendment to the Constitution, which protects our “persons, houses, papers, and effects” against “unreasonable” searches and seizures. Article One, Section Seven of the Washington State Constitution is drafted to provide broader protection. It reads simply, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Period.

The Washington constitution has been interpreted very plainly by our State Supreme Court to not authorize police to stop, or search, any person without individualized suspicion of criminal behavior. Unless you visibly break a law, or fit specific criteria for suspicious or dangerous behavior, a state or city police officer may not detain you, or require that you submit to a search or to questioning.

So a federal agent in the course of her duties can certainly operate a checkpoint, where local police cannot. Federal agents would not have authority to actively search for state law violations once they have determined that a car isn’t involved in a homeland security threat. But if they plainly see evidence of violation of local law, no judge would expect them to turn away and let that person go, simply because it isn’t the particular crime for which they were searching. So local law enforcement is authorized to further investigate the crime, which was only discovered because of the search of the federal agents, which would have been unlawful for the local police to conduct.

The Port Angeles Station of the Border Patrol is manned by a couple dozen well-trained, experienced agents. We trust that these agents are working hard at protecting our borders and our safety, not conducting random DUI or drug searches. We don’t yet have any meaningful statistics for how many
local criminal cases will be created from federal agents conducting random searches, but make no mistake: the rules have changed. Your natural, Washingtonian instinct that tells you that police can’t stop you randomly is no longer reliable.

Stan Glisson is an attorney in Bremerton with the firm Glisson and Witt. Their firm mainly handles DUI and misdemeanor defense, as well as felony defense. Glisson earned his law degree at the University of Washington, has worked as a Kitsap County deputy prosecutor, and as a Kitsap and Snohomish defense attorney before entering private practice.

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6 Responses to “Law in Focus: The Peninsula Checkpoints”

  1. Sharon O'Hara Says:

    Mr. Glisson…Thanks for comments worth reading this time.

    And thanks for explaining why local law enforcement officers didn’t do what I thought they should have done regarding the mass groups of what I believe to be illegal aliens in PO/SK….they must not be able to legally stop them and ask if they were legal immigrants.
    Didn’t know that…thank you!
    Sharon O’Hara

  2. trooper2899 Says:

    In police parlance there is a difference between a “roadblock” and a “roadcheck”, a roadcheck is less intrusive and involves a short encounter with uniformed officers usually making a verbal inquiry of the stopped motorists status, (in other states it may include an observation of the physical condition of the driver, (DWI Roadcheck) and or a safety inspection of the condition of the vehicle, (commercial – log truucks etc).

    There are many appealate decisions up to and including the US supreme court that affirm this not a violation of the 4th ammendment.

    I realize that the state of Washington and the states in the 9th federal circuit have a so called “higher standard” but I don’t think the citizens of the 9th circuit appreciate what a high price they pay for their “high standard” in terms of DUI fatal accidents etc. A good example is that the 9th circuit doesn’t consider multiple DUI convictions (felonies – some involving the deaths of innocent motorists), as being grounds to deport an illegal alien back to his country of birth, usually Mexico. There are many examples of this throughout the 9th circuit. All the other states have their own standard. They deport them.

  3. Chris Allen Says:

    I am thoroughly outraged by this. Border patrol agents can patrol the border- that’s fine and dandy and if I were crossing over into Canada, I would expect to see them. But a checkpoint near the Hood Canal bridge? This is entirely unacceptable!! I am appalled that any officer would willingly engage in this kind of intrusion. What happened to conscience?

  4. Sharon O'Hara Says:

    “… 9th circuit doesn’t consider multiple DUI convictions (felonies – some involving the deaths of innocent motorists), as being grounds to deport an illegal alien back to his country of birth, usually Mexico. There are many examples of this throughout the 9th circuit. All the other states have their own standard. They deport them….”

    trooper2899… If the above comment is true, what is wrong with Washington State and the 9th federal circuit to allow such a twisted unjust and prejudicial ‘standard’? What did the legal citizens do to cause such lack of judgement – how can it be ‘higher standard’ to be so misused in the case of DUI illegal aliens?

    Who has the freedom? Not the citizens, forced to pay for 9th federal court injustice…a mockery of justice…to keep and house ANY illegal alien in spite of their crimes…beginning with coming here illegally.

    Where is the justice?
    Hopefully, this will turn out to be untrue, a joke……?
    Sharon O’Hara

  5. trooper2899 Says:

    It’s no joke….the 9th circuit decisions prevent the deportation of aliens for multiple DUI convictions, (felonies) – every other federal district allows deportation of aliens for multiple DUI convictions. The 9th district decisions say they don’t recognize this as a deportable offense, (even for aliens that entered the country illegally to begin with and in some instances were involved in fatal accidents while DUI). ICE doesn’t deport them from the 9th district……the court prevents them from being deported.

  6. Sharon O'Hara Says:

    Okay… I believe you.

    How do we fire them? How do they justify keeping DUI illegal aliens at taxpayer expense in money and potential future lives?
    Maybe because the judges are the same nationality as the illegals?
    Could bias be a factor?

    We might be paying their salary but the 9th couldn’t work for U.S. citizens and refuse to deport the illegal alien criminals.

    “Alberto GONZALES, )
    Attorney General,…”

    Who pays the attorney fees for all the appeals? How can anyone appeal anything on people who aren’t legally here? We have U.S. laws …shouldn’t the illegals committing criminal acts be immediately deported and why aren’t we doing it?

    While the illegal criminal is not deported, do they go back to work for the same employer knowingly breaking the law by hiring illegal aliens?
    Who supports them during this process?

    And all this is under the name of freedom and justice…well.
    it isn’t.
    Sharon O’Hara

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