Law in Focus: The Peninsula Checkpoints

(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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