08.21.19

Senators Leahy, Murray, and Peters Ask Government Accountability Office (GAO) For Review of Border Patrol Checkpoints

. . . Senators ask GAO to conduct testing of U.S. Border Patrol’s Fourth Amendment compliance at checkpoints.

WASHINGTON (TUESDAY, Aug. 20, 2019) — Senators Patrick Leahy (D-Vt.), Patty Murray (D-Wash.) and Gary Peters (D-Mich.) on Tuesday requested that the U.S. Government Accountability Office (GAO) conduct a comprehensive review of the Border Patrol’s use of interior immigration checkpoints as part of their border security mission and their compliance with the Fourth Amendment of the U.S. Constitution, which protects the right of Americans to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Two-thirds of Americans live within 100 miles of the Northern, Southern and maritime borders of the United States, and could be stopped and searched within that “border zone.”

In the letter, the lawmakers pressed for information on how Customs and Border Protection (CBP) prioritizes taxpayer dollars to strengthen border security while ensuring that Fourth Amendment rights protecting against unreasonable searches and seizures are respected.

“We request that the Government Accountability Office (GAO) conduct a comprehensive review of the U.S. Border Patrol’s use of interior immigration checkpoints to better understand how the agency balances its critical national security mission while ensuring compliance with the Fourth Amendment protections against warrantless searches and seizures enshrined in the U.S. Constitution,” the Senators wrote. “While the GAO has previously reviewed the Border Patrol’s use of immigration checkpoints as part of its “defense in depth strategy,” it has not investigated the process for deciding whether, when, and under what circumstances Border Patrol may conduct additional screening, searches, and seizures at immigration checkpoints.”

Last month, Senators Leahy and Murray reintroduced legislation to strengthen Americans’ privacy protections within the expansive “border zone.” The bill limits the warrantless “border zone” in which DHS may conduct vehicle checkpoint stops and searches from 100 miles to 25 miles, and limits warrantless entry onto private property from 25 miles to 10 miles. Representative Peter Welch (D-Vt.) introduced an identical version of the bill in the House of Representatives.

Full text of the letter is below:

The Honorable Gene L. Dodaro

Comptroller General of the United States

U.S. Government Accountability Office

441 G Street, N.W.

Washington, D.C. 20548

Dear Comptroller General Dodaro:

We request that the Government Accountability Office (GAO) conduct a comprehensive review of the U.S. Border Patrol’s use of immigration checkpoints to better understand how the Agency balances its critical national security mission while ensuring compliance with the Fourth Amendment protections against warrantless searches and seizures enshrined in the U.S. Constitution. 

While the GAO has previously reviewed the Border Patrol’s use of immigration checkpoints as part of its “defense in depth strategy,” it has not investigated the process for deciding whether, when, and under what circumstances Border Patrol may conduct additional screening, searches, and seizures at immigration checkpoints.

In 2017, the GAO published a report that looked at, among other things, the Border Patrol strategy of placing and utilizing immigration checkpoints generally between 25 and 100 miles from the border.  As a result of this review, the GAO found that 40 percent of checkpoint seizures were from U.S. citizens for one ounce or less of marijuana.  The GAO did not make recommendations as part of this review, but it had previously recommended that Border Patrol establish guidelines for collecting more complete checkpoint data.  While the Department of Homeland Security (DHS) concurred with this recommendation, the GAO did not believe in 2017 that it had been fully implemented.  Comprehensive data on who receives additional screening at checkpoints, and the reasonable suspicion that undergirds these encounters, searches, and seizures, is fundamental to understanding if and how Border Patrol abides by constitutional limits.

Given the concerns about Border Patrol’s compliance with Fourth Amendment protections at immigration checkpoints, we request that GAO build on its 2017 assessment and conduct a comprehensive review that examines, at a minimum:

  1. A review of nationwide checkpoint data, both fixed and temporary, broken down by sector, including:
    1. Number of screenings and number of people/vehicles sent for secondary screening;
    2. Number of vehicle and/or personal searches;
    3. Number of apprehensions;
    4. Race/ethnicity/gender breakdown of each apprehension;
    5. Number and category of property seizures;
    6. Number of “removable” and “non-removable” subjects;
    7. Number of U.S. citizens apprehended and reason for each arrest;
    8. Number of use of force incidents at checkpoints;
    9. Number of checkpoints employing CCTV cameras or other video recording equipment, including the policies and procedures for the use, storage, and dissemination of any video captured during checkpoint operations; and
    10. Number of checkpoints employing any form of biometric technology, including the policies and procedures for the use, storage, and dissemination of any biometric data captured during checkpoint operations.
  2. How is checkpoint data collected and stored?  What procedures are in place to ensure accurate data collection and reporting? Where is this data stored and how can it be accessed?
  3. How are canines trained and certified for searches?
  1. Does the agency track officer interactions, such as canine alerts and the race/nationality of people subject to searches and seizures?  If not, why not?  Are there other data gaps that should be fixed?  How can the agency develop protocols to track these interactions and fill the other gaps?
    1. How many canine searches are employed? How many arrests occur as a result of canine searches?  How often do canine searches result in false positives, to include the number of times the handler or other agent fails to find and seize the relevant contraband?
    2. How does Border Patrol measure the effectiveness of checkpoints and how is this documented?
    3. Does Border Patrol appropriately separate a refusal to answer questions from the existence of reasonable suspicion or probable cause?
    4. What training is provided to Border Patrol agents regarding the Fourth Amendment and is that training adequate?
    5. The number of lawsuits filed by U.S. Persons alleging violations of civil or constitutional rights by CBP personnel at checkpoints.
  1. How frequently does the agency analyze trends in drug seizures and apprehensions to evaluate its priorities at each checkpoint? 
  2. How many complaints are filed with DHS and/or CBP regarding checkpoints? These could be complaints to the DHS Office for Civil Rights and Civil Liberties, DHS Office of Inspector General, CBP Office of Professional Responsibility, CBP Information Center, CBP local officials, or other sources.
    1. How many of these complaints have been pending for longer than 30 days?
    2. How many of these complaints involve allegations of physical abuse or misconduct by CBP personnel?
    3. How many of these complaints came as result of secondary stops lasting more than 15 minutes?
  3. Does Border Patrol articulate and document the reasonable suspicion that exists when sending people for additional screening or conducting searches? If so, how? How long are such records retained per National Archives and Record Administration guidance?
  4. What time period is considered to be a “brief inquiry” for searches?
  5. Does Border Patrol appropriately articulate and document the probable cause that exists when apprehending people?

As part of this request, we ask that your investigators meet with local officials and citizens, including organizations or stakeholders groups, who have expressed concern with CBP over checkpoint operations in order to ensure their views and investigative leads are addressed. We also ask that you meet with national civil liberties and immigration groups who also have expressed concerns or filed litigation in connection with checkpoint operations to hear their views.

Finally, we request that your Office of Special Investigations (OSI) meet with our staff to discuss the feasibility of conducting covert testing of CBP Fourth Amendment compliance at checkpoints. We know that prior OSI covert testing of airport scanning technology has been of great benefit to Congress and the public.

If you have any questions regarding this request, please contact Deborah Fleischaker with Senate Judiciary Committee staff at (202) 224-4242 or Samuel Rodarte with Senate Homeland Security and Governmental Affairs Committee staff at (202) 224-2627.

Sincerely,

________________________                                                                                               

Patrick Leahy                                                              Gary C. Peters
United States Senate                                                  United States Senate

                                               

Patty Murray

United States Senate

 

 

 

 

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